COURT FILE NO.: FC-14-FS000053-0000

DATE: 2021-12-16

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

T.L.B.L. Applicant

– and –

T.E.M. Respondent

Applicant, Appearing in Person

Respondent, Appearing in Person

Ian Ross and Samantha Wisnicki, Counsel for the Children

HEARD: April 6, 7, 8, 9, 12, 13, 14, 15, 16, 19, 20, 21, 22, 23; May 11, 12, 13, 14, 17, 18, 19, 20, 21, 25, 26, 27, 28; September 13, 14, 15, 16, 17, 20, 21, 22, 23, 24, 27, 28; October 18, 19, 20, 21, 22, 25, 26, 27, 28; November 1, 2021 (By Zoom)

BEFORE: The Honourable Mr. Justice D.J. Gordon

REASONS FOR DECISION

[1] The issues requiring determination at trial include parenting of ten-year old twin children, child and spousal support, property and related matters. The parties cohabited in a common law relationship. This is a high conflict case.

A. Introduction

[2] On February 12, 2015, a consent order was granted directing the parties to jointly retain Dr. Peter Jaffe to conduct an assessment and provide a report regarding the parenting of the children, pursuant to section 30, Children’s Law Reform Act.

[3] Dr. Jaffe presented an interim report, dated August 6, 2015, saying, in part:

There is an extremely high degree of conflict over the parenting of … [the children] … beyond what one would expect even for a high conflict custody case … The conflicts are profound and endless. Almost every issue that emerges is fodder for a disagreement or protracted communications that have no resolution without the court intervention …

[4] In a subsequent interim report, dated December 16, 2015, Dr. Jaffe provided further comment as follows:

The parents bring out the worst in each other and have established a pattern in their relationship over the years together that is completely dysfunctional … The parents are involved in litigation that is one of the most extreme possible within the family courts because of how their lives were totally intertwined within their home, community and work. Each parent has unrealistic expectations of how the courts are going to resolve the conflicts and vindicate them. They are drained financially and emotionally and have spent hundreds of thousands of dollars from their RRSPs in litigation. They are headed towards bankruptcy without any resolution in sight or even an agreement on how to resolve the many issues.

[5] Most intelligent parents, having the best interests of their children in mind, would have considered Dr. Jaffe’s remarks as a warning. Not in this family. The parties did not allow Dr. Jaffe to complete the assessment. Instead, the conflict and arguments on every issue continued up to and during the trial in 2021. The evidence tendered at trial, and the manner in which the parties participated, confirmed the accuracy of Dr. Jaffe’s remarks.

[6] The parties spent their life savings, with additional borrowed funds, on this litigation. Nothing of consequence was resolved. When funds were depleted, the parties had to represent themselves at trial.

[7] The parties’ focus in the almost eight years of litigation has been their conflict, blaming each other regularly and repeatedly, rather than on their children. The children have been put in the middle of the parents’ conflict, told far too much about adult issues and regularly forced to observe the parents’ inappropriate conduct. The children have, sporadically, been in counselling. There can be no dispute, the children have suffered and, in all likelihood, are permanently damaged.

[8] It did not have to be this way. This is not how family law disputes should be addressed, even when a trial is necessary.

B. Factual Background – Briefly Stated

[9] The parties cohabited in a common law relationship from 1995 to 2013.

[10] The applicant, “T.L.B.L.” or “mother” is presently 54 years of age. The respondent, “T.E.M.” or “father” is 57. Twin children, A.M. and L.M., were born to the relationship in 2011. The children were two years of age when their parents separated, now 10 after these many years of litigation.

[11] T.L.B.L. is a veterinarian. She owns a veterinary practice, or animal hospital, in Waterloo Region. In 2017, she married W.L. His prior marriage ended by divorce. His adult children live independently. T.L.B.L. and W.L. reside in Huron County, with A.M. and L.M. when they are in their care, having re-located from Waterloo Region in 2019.

[12] T.E.M. is currently unemployed. He was the manager or administrator at the veterinary practice but was terminated from this position by T.L.B.L. on separation. He subsequently commenced an action for wrongful dismissal. It settled in 2019. T.E.M. has had limited employment in the past eight years. T.E.M. resides in Waterloo Region, cohabiting with J.J. since 2017.

[13] The veterinary practice, established in 1998, was successful. A family residence was purchased in 1999, title being taken solely in the name of T.E.M. The mortgage, required at the time of acquisition, was paid off in 2004. The parties purchased recreation property in Gravenhurst in 2006 and cottage or seasonal residence was erected thereafter. The cottage was sold during this litigation.

[14] The parties had also made significant contributions to registered retirement savings plans during cohabitation. The investments were liquidated to cover legal expense in this case. Additional funds were borrowed by both.

[15] Separation occurred on December 30, 2013, following a heated argument.

[16] This case commenced ten days after separation. While a temporary parenting plan was put in place shortly after separation, the parties have been unable to address a resolution of their dispute, save for matters of no real consequence. From time to time, they came to court. Otherwise, they just argued.

[17] The trial commenced seven years after the case started. Given the length of trial, this decision is being released almost eight years after separation.

C. Litigation History and Related Events

[18] The following chart describes most events:

(a) December 30, 2013 - T.L.B.L. charged by police with assault on T.E.M.

(b) January 10, 2014 - Application issued, T.L.B.L. seeking:

i) sole, alternatively joint, custody of children;

ii) child support;

iii) declaration T.E.M. holds title to the family residence in trust for both, each to a one-half interest;

iv) sale of jointly owned cottage;

v) restraining order; and

vi) related matters.

(c) January 10, 2014 - Order granted, without notice, by Campbell J. directing urgent case conference.

(d) January 16, 2014 - Case conference held before Reid J. Consent order granted for parenting time for T.L.B.L. on a daily basis during week and alternate weekends.

(e) February 6, 2014 - Answer served; T.E.M. seeking:

i) sole custody of children;

ii) child support;

iii) restraining order;

iv) sale of cottage property;

v) declaration T.L.B.L. is the constructive trustee for him as to his interest in the veterinary practice and payment of same; and

vi) related matters.

(f) March 17, 2014 - Further case conference before Taylor J. Order granted:

i) production of stated documents, and other items;

ii) on consent, equal parenting time pursuant to a schedule; and

iii) on consent, dogs to be exchanged with children on weekends.

(g) April 10, 2014 - T.L.B.L. enters into peace bond for 12 months and criminal charges withdrawn.

(h) April 11, 2014 - Statement of Claim issued, T.E.M. seeking damage award against T.L.B.L. for wrongful dismissal.

(i) October 8, 2014 - Statement of Defence delivered by T.L.B.L. in civil action.

(j) October 22, 2014 - Reply delivered by T.E.M. in civil action.

(k) October 2014 - T.E.M. charged by Humane Society with animal abuse.

(l) Unknown date - Sloan J. assigned as case management judge in both actions.

(m) February 12, 2015 - Consent order granted by Sloan J.:

i) parties to jointly retain Dr. Jaffe to conduct an assessment and submit a report;

ii) each party to pay one-half of the assessment cost, T.L.B.L. to initially fund with reimbursement by T.E.M. from cottage sale proceeds; and

iii) T.E.M. to pay costs of $1,000.00 to T.L.B.L. payable from cottage sale proceeds.

(n) March 9, 2015 - Consent order granted by Sloan J.:

i) cottage to be listed for sale;

ii) sale proceeds to be held by lawyers, each to one-half, save for assessment expense of $7,500.00 and cost award of $1,000.00 to be deducted from share of T.E.M. and be paid to T.L.B.L.;

iii) parties to communicate with each other regarding the children by Our Family Wizard and not to email, text or phone except in matters of emergency;

iv) T.E.M. to return to T.L.B.L. the items in Schedule “A” (personal property at residence); and

v) motions regarding restraining order, the dogs, child support and spousal support dismissed without prejudice to bring further motions for same relief.

(o) May 25 and 26, 2015 - Questioning of both parties.

(p) August 26, 2015 - Consent order granted by Sloan J.:

i) equal parenting schedule on 2:2:5;

ii) exchanges to occur at school during school year and at residence of T.E.M. when school not in session but facilitated by E.D. (nanny in residence of T.L.B.L.) if available, otherwise at police station;

iii) children to attend a stated school;

iv) parents of T.L.B.L. not to attend exchanges;

v) day-to-day decisions regarding children to be made by parent caring for child at the time;

vi) no disparaging remarks in the presence of the children; and

vii) T.E.M. to pay costs of $2,260.00 to T.L.B.L.

(q) October 19, 2015 - Consent order granted by Sloan J. amending order of August 26, 2015 regarding holiday weekends and exchanges.

(r) October 27, 2015 - Charges against T.E.M. by Humane Society stayed by prosecution.

(s) September 17, 2017 - Consent order granted by Sloan J.:

i) partial distribution of cottage sale proceeds, $40,000.00 to each party; and

ii) cost award above of $2,260.00 to be deducted from share of T.E.M. and be paid to T.L.B.L.;

(t) May 2, 2018 - Current order granted by Sloan J.:

i) requesting the Office of the Children’s Lawyer to provide services for the children;

ii) production of third party records from the Children’s Aid Society and Waterloo Regional Police Services; and

iii) sealing court file.

(u) June 22, 2018 - Consent order, granted by Sloan J.:

i) adjourning motion of T.L.B.L for various relief to be heard as a long motion and setting a timetable for cross-motion and other material; and

ii) leave granted to T.E.M. for motion regarding summer vacation.

(v) July 5, 2018 - Consent order, granted by Carpenter-Gunn J.:

i) permitting children to attend with T.E.M. on vacation to Prince Edward Island between July 23 and August 2;

ii) permitting children to be with T.L.B.L. for vacation between August 2 and August 10;

iii) children to be with T.L.B.L. between September 3 and start of school the following day; and

iv) otherwise, parenting schedule be unchanged.

(w) August 29, 2018 - Consent order granted by Sloan J.:

i) releasing balance of cottage sale proceeds;

ii) children to continue seeing specified physicians at Grand River Adolescent Mental Health Unit as recommended;

iii) application and civil action be pre-tried and tried together (similar order in civil action);

iv) T.E.M. not to further encumber title to family residence;

v) T.E.M. to provide monthly line of credit statements to T.L.B.L.;

vi) parties to evenly divide ongoing line of credit payments;

vii) motion by T.L.B.L. for sale of family residence and certificate of pending litigation dismissed;

viii) motions by both regarding counselling, exchanges and disclosure adjourned without date pending release of Children’s Lawyer’s report;

ix) motion of T.E.M. for child and spousal support adjourned without date;

x) specified disclosure; and

xi) undertakings from questioning addressed.

(x) September 24, 2018 - Consent order by Sloan J.:

i) T.L.B.L. to immediately return $22,000.00 and interest to parties’ joint line of credit; and

ii) neither party to withdraw funds from joint line of credit.

(y) April 23, 2019 - Consent order by Sloan J. at combined settlement conference and pre-trial:

i) parties to jointly retain counselling services of Calming Tree for children;

ii) children to be seen by counsellor without either parent present unless counsellor advises otherwise;

iii) cost of counselling to be split equally between parties;

iv) parties to alternate taking children to counselling; and

v) parties to follow advice of counsellor, including frequency of sessions.

(z) April 23, 2019 - Minutes of Settlement signed in civil action for:

i) T.L.B.L. to pay T.E.M. $95,000.00 less statutory deductions;

ii) settlement funds to be credited to T.E.M. in family law proceeding; and

iii) action to be dismissed without costs.

(aa) May 13, 2019 - Consent order granted by me dismissing civil action.

(bb) April 8, 2020 - Order granted by Madsen J., the triage judge during suspension of regular court operations due to COVID-19 pandemic:

i) exchanges to take place in the parking lot at the police station; and

ii) timetable for responding and reply material if T.E.M. wanted motion heard on its merits.

(cc) September 11, 2020 - Trial management conference before Piccoli J. – matter placed on November 2020 trial sittings.

(dd) November 2, 2020 - Speak to Court for November sittings – matter adjourned by me to January 2021 sittings due to outstanding motions.

(ee) January 6, 2021 - Order granted by Breithaupt Smith J.:

i) Office of the Children’s Lawyer requested to assign same clinician for a Voice of the Child Report;

ii) Calming Tree directed to produce notes and records pertaining to services provided to children (counsellor and Calming Tree did not respond to motion);

iii) parties not to discuss Calming Tree notes and records with children;

iv) trial to be heard on an urgent basis at January 2021 sittings; and

v) no further motions without leave.

(ff) February 8, 2021 - Trial commenced by Zoom before Sheard J. but mistrial declared due to technology problems.

(gg) April 6, 2021 - Trial commenced before me, scheduled for 10-12 days.

(hh) May 21, 2021 - Mid-trial Order granted by me requesting The Office of the Children’s Lawyer assign counsel for the children to address the issue of admissibility of statements made during counselling sessions.

(ii) May 28, 2021 - Trial adjourned for continuation on September 13, 2021 with order:

i) leave for motion regarding counselling for children; and

ii) children to be registered for in person education programs at stated school, with leave for motion for online education if either party sought a change.

(jj) July 23, 2021 - Mid-trial case management conference before me to discuss with parties and counsel from The Children’s Lawyer scheduling of submissions regarding admissibility issue.

(kk) August 3, 2021 - Order granted by MacLeod J.:

i) parties to jointly retain Qualia Counselling to provide counselling services to children;

ii) parties to equally share the costs of counselling;

iii) parties to follow schedule recommended by counsellor; and

iv) neither party to be present during counselling sessions unless authorized by counsellor.

(ll) September 13, 2021 - Trial continues.

(mm) November 1, 2021 - Trial completed. Decision reserved.

[19] Several observations flow from this chart, namely:

i) most motions were resolved by consent orders;

ii) other necessary motions not presented or not presented in a timely manner;

iii) periods of inactivity; and

iv) orders not complied with, in particular regarding the section 30 assessment, a matter that was obviously necessary given the clinical issues recognized by the original lawyers and identified in the preliminary reports of Dr. Jaffe.

D. Preliminary Comments

[20] Prior to reviewing the evidence and discussing the issues, I find it helpful to present some preliminary comments to put matters into perspective.

(a) Virtual Trial

[21] As a result of the COVID-19 pandemic, court operations were shut down in March 2020 with limited exceptions. On re-opening in June 2020, most cases were moved online. The court provides an essential service and had to find a way to continue operations.

[22] Virtual hearings, particularly in family law cases, are far inferior to in person attendance. The formality of a courtroom cannot be replaced by a computer screen. But this was our only option.

[23] Since re-opening, we have observed how much slower the process has become. There is now a significant backlog at every stage, from case conferences to trials.

[24] While we may have the technology to conduct virtual hearings, there is a significant shortfall in capacity. There is insufficient bandwidth in the Region of Waterloo, in part as a result of tens of thousands of people working from home who otherwise would have travelled outside of our region for their employment.

[25] In this trial, technical problems occurred every day, including freezing of video and/or audio and disconnection of participants. On average, one hour daily was lost due to these technical issues. Further, on three occasions, this trial, and many others in the province, was shut down for half of a day. This province wide problem resulted from mass communication by Ministry officials during court hours.

(b) Delay

[26] This case took eight years to complete.

[27] The parties spent their life savings and borrowed more funds for this litigation. They are now essentially insolvent. Little was accomplished. Positions on all of the issues at trial never changed.

[28] This was a high conflict case. Such was known at the outset. Yet it took over a year to agree on a section 30 assessment and it was never completed. Other events did not occur on a timely basis.

[29] The children were two years of age when this was started. They are now 10. In eight more years, the children will likely leave home for post-secondary education or employment.

[30] The delay is inexcusable. It has been prejudicial for the children and caused them unnecessary hardship.

[31] I have always been of the view that high conflict cases ought be scheduled for trial at the earliest opportunity as litigants rarely move from initial positions and will not meaningfully participate in resolution efforts. A section 30 assessment is needed in most high conflict cases and, hence, a trial should follow before the second anniversary of the commencement of the case.

[32] Nothing said at trial supported the delay. In my view, the trial in this case should have been in 2016.

(c) Trial Length

[33] At the trial management conference on September 11, 2020, Piccoli J. reported 12 days being required for trial. The trial took up fifty.

[34] The parties in their opening remarks indicated an understanding to focus on the issues as had been advised by judges on two trial management conferences. Perhaps they misunderstood what focussing on the issues meant. Much of the evidence presented, the volume being expanded by the delay, was about this relationship. Examples of matters of concern may be helpful. But not every event or every argument and not day by day.

(d) Unreasonable Expectations

[35] Trial length is often impacted by the parties’ expectations beyond a determination of the actual issues in dispute. This topic was identified by Dr. Jaffe in his preliminary reports quoted at the outset of these reasons.

[36] A trial judge decides only the issues raised in the pleadings and the evidence. Such cannot solve the problems in the parties’ relationship, eradicate conflict or determine who was right and who was wrong in every described event.

[37] The dysfunctional relationship of the parties was defined by argument. Rather than deal with issues in this case, the majority of time was spent in argument. Why either party thought the other would concede was unrealistic, at best. Indeed, on many occasions during cross-examination of each other, arguments took place.

(e) Respondent’s Health Crisis During Trial

[38] On five separate occasions, T.E.M. requested an adjournment, reporting panic attacks or anxiety problems. Trials are not an enjoyable experience for most litigants and so I granted his requests without question as it was important he be able to function and fully participate.

[39] On the day following the fifth adjournment, I inquired if he was able to continue. He reported having consulted his family doctor and felt he was able to participate. Cross-examination continued. It soon became apparent that he was struggling to answer questions and had difficulty recalling events described in his prior testimony. When I expressed my concern to father, he acknowledged having problems and that he was on medication prescribed by his physician. I directed him to contact his doctor’s office over the extended lunch break and that I required a medical opinion before proceeding further.

[40] That afternoon, T.E.M. reported speaking to his doctor and presented a report. Dr. O’Brien, who had previously testified as a witness in his capacity as the physician for both parties and the children, indicated father may be suffering from “medication side effects” and that a one to two week break in the trial was requested “for us to fully address this issue”.

[41] T.E.M. requested an adjournment. T.L.B.L. opposed.

[42] Given Dr. O’Brien’s report, I determined the adjournment was necessary. Whether it was anxiety or side effects from the medication, I was of the view T.E.M. could not properly participate in the trial.

[43] The issue of parenting during the adjourned period was then considered. T.E.M. expressed no difficulty in providing childcare. T.L.B.L. expressed concern with T.E.M. dealing with recovery while providing childcare, particularly as he had all summer to deal with any problems.

[44] I decided it was now of critical importance to father’s ability to continue the trial that he focus on and resolve his health crisis. Accordingly, I adjourned the trial for two weeks, suspended father’s time with the children, and directed the children reside with and be in the exclusive care of mother.

[45] When the trial resumed, T.E.M. appeared well and was fully able to participate. I vacated my prior order and directed the parenting schedule be re-instated. The trial continued without any further difficulty.

[46] To be clear, my decision to suspend father’s parenting time for two weeks was not based on parenting concerns. Rather, it only pertained to trial fairness and, in particular, to allow father to recover and thereafter fully participate.

(f) The Missing Evidence

[47] The parties presented a considerable volume of evidence, both in oral testimony and documents. Much of this evidence is of little relevance to the issues requiring determination. Yet, on the most important parenting issue, there was an evidentiary shortfall. The missing evidence.

[48] As previously mentioned, Dr. Jaffe was retained for a section 30 assessment. There were obvious clinical issues pertaining to the parties and the children and, no doubt, the parties’ original lawyers recognized the need for this assessment. A consent order directed such to occur.

[49] Two preliminary reports were presented by Dr. Jaffe in 2015. The final report was to be delivered in June 2016. But, the parties, or one of them, decided not to continue the process.

[50] Instead, they came back to court and obtained a consent order on May 2, 2018 for a section 112 report by the Office of the Children’s Lawyer.

[51] The report from Mr. To that followed was most helpful. But it was not an assessment and he could not address the clinical issues.

[52] To the extent the financial expense for completing the assessment was said to be a concern, such is rejected. Given the funds spent on this litigation, the assessment was a minor expense.

[53] Without the assessment, the best interests of the children were ignored. Their position was prejudiced. The court was denied the benefit of psychological and other expert evidence on the most important of all issues in dispute.

[54] The parties must now accept the consequences of the decision to not complete the assessment. The absence of this potential evidence may well impact on the decision that follows.

E. Evidence and Commentary

(a) Earlier Relationship

[55] The parties met in 1990 when both were students at the University of Guelph. They graduated several years later, T.L.B.L. as a Doctor of Veterinary Medicine, T.E.M. with a Bachelor of Science in Marine Biology. They moved to Toronto, each obtaining a separate rental accommodation.

[56] T.L.B.L. secured employment as a veterinarian at a local clinic. T.E.M. completed the required courses for a registered financial advisor/stockbroker and was hired by one of the chartered banks.

[57] Cohabitation commenced in 1995.

[58] As hereafter discussed, T.L.B.L. claims there was domestic violence and abuse inflicted on her by T.E.M. She testified such began in 1992, even prior to cohabitation.

(b) Re-location to Waterloo Region

[59] In 1997, the parties decided to move to Waterloo Region. T.L.B.L. had grown up in a local community and her parents were still residents. The plan was to establish a veterinary practice.

[60] While there was some dispute as to their respective roles in the planning process, it appears both were involved. Premises for the clinic were secured. Requirements of the Ontario Veterinary College were addressed. Clinic staff were recruited. T.E.M., at some point, completed small business management courses at Seneca College. The veterinary clinic/animal hospital opened in April 1998.

[61] The parties initially resided in a rental accommodation. In July 1999, they purchased a home in close proximity to the veterinary clinic and the residence of T.L.B.L.’s parents.

(c) Veterinary Practice

[62] Both parties were involved in the operation of the clinic from 1998 until separation in 2013. T.L.B.L. was the veterinarian while T.E.M. was the manager (administrator). T.E.M. would obtain a designation of a Certified Veterinary Practice Manager. As the licensed veterinarian, all business records show T.L.B.L. as the practice owner, operating as a sole proprietor. T.E.M. was described as an employee. As hereafter discussed, an issue arose as to whether there was an agreement for co-ownership of the practice.

[63] The clinic was financially successful in the early years, declining after the birth of the children. While T.E.M. was said to be receiving a salary, the fluctuating incomes suggest some form of income splitting, not unusual when both spouses are active in the business.

[64] On the date of separation, T.L.B.L. informed T.E.M. he was fired as the veterinary practice manager. Subsequently, she “re-branded” the practice, essentially changing the name of the clinic. T.L.B.L. continues to operate the practice at the same location.

(d) Family Residence

[65] Approximately one year after opening the veterinary practice, the parties began investigating the purchase of a residence. They ultimately agreed on acquiring a new home with the transaction closing in July 1999. Title was taken in the name of T.E.M.

[66] While the parties had different roles in terms of household chores, both were actively involved. The mortgage payments came out of the account of T.L.B.L. T.E.M. paid the utilities and other expenses. Most of the groceries were purchased by T.L.B.L.

[67] Given the financial success of the veterinary practice, the mortgage was paid off in 2004.

[68] A collateral mortgage, securing a line of credit with the Canadian Imperial Bank of Commerce, was registered on title in 2006, for $251,250.00. Part of the funds advanced were used in the construction of a cottage and to purchase equipment for the veterinary clinic.

[69] T.E.M. has been in sole possession of the residence since separation.

(e) Cottage

[70] The parties purchased recreation property in Gravenhurst and thereafter retained a builder to construct a cottage or seasonal residence. Reference was made as to the intention of the property becoming their residence on retirement. It is unclear when the property was acquired, or the cottage constructed. It was being used for some time prior to separation.

[71] Title to the property was taken in the names of both parties, as joint tenants. A mortgage was registered on title with TD Canada Trust. The mortgage payments came from the account of T.E.M.

[72] There was delay in selling the cottage after separation, in part due to a dispute with the builder. Ultimately, and after several motions and consent court orders, the property was sold in December 2016.

[73] The sale price was $700,000.00. After paying the mortgage, sale expenses and the builder, each party received $72,610.00, thus resolving one of the claims in this case.

(f) Children

[74] In 2007, the parties decided to have children. There was a discrepancy as to prior discussions in this regard. T.L.B.L. was then 40 years of age. She experienced difficulties, including several miscarriages. Treatments at a fertility clinic were not successful. Ultimately, the treating physician advised the parties only one further attempt at pregnancy was possible and that it would require donated eggs. The parties selected a donor. The process that followed resulted in pregnancy.

[75] A.M. and L.M. were born in 2011. It was a difficult delivery, resulting in an extended period of hospitalization for T.L.B.L. Both children were born healthy but stayed in pre-natal intensive care for a period of time as they were born premature. T.E.M. controlled the visitation schedule at the hospital, limiting contact from T.L.B.L.’s family.

[76] Similar restrictions occurred at the family residence when the children were discharged from hospital. The mother of T.E.M. stayed for some time to assist. The mother of T.L.B.L. was not permitted to help.

[77] Both parties were involved in childcare, a busy time with two children. T.L.B.L. was breastfeeding the children and continued doing so even after separation.

[78] As with all new parents, the parties experienced a change in lifestyle. In particular, adjustments were required in the operation of the veterinary clinic. Given the absence of T.L.B.L., there was a reduction in services provided and in income generated. She would later resume her duties on a part-time basis, gradually increasing her work hours.

[79] T.E.M. continued with his managerial duties although he would also be at home for extended periods of time assisting with childcare. He got behind with respect to some business matters, such as filing income tax returns.

[80] Over the two year period after the birth of the children, it appears the relationship between the parties was in decline, the reason for which is unclear. Balancing childcare responsibilities with business operations was likely a factor. However, there is a long history of arguments. It appears such escalated.

(g) Separation

[81] In 2013, the parties spent part of the Christmas holiday at their cottage in Gravenhurst.

[82] In the early hours of December 30, T.L.B.L. was feeding the children. She used T.E.M.’s cell phone, apparently to check the time, and discovered what she thought were messages of a sexual nature. A confrontation followed.

[83] The family returned to their residence in Waterloo Region. The argument continued. She accused T.E.M. of having an affair. He denied. T.L.B.L. announced the end of their relationship and that he was fired. During this heated exchange, T.L.B.L. slapped T.E.M. in the face. A cordless phone was in her hand. There was bleeding.

[84] T.E.M. left the residence and drove to the veterinary clinic. T.L.B.L. called the police, reporting T.E.M. taking her vehicle and was headed towards her business premises.

[85] Both parties were interviewed by police officers. Ultimately, T.L.B.L. was removed from the residence later that day by police officers, arrested and charged with assault and assault with a weapon.

(h) Parenting Following Separation

[86] Unfortunately, the events occurring on December 30, 2013 unnecessarily complicated subsequent parenting of the children. A.M. and L.M. were in the residence of T.E.M. T.L.B.L. was residing with her parents. T.E.M. limited contact between T.L.B.L. and the children.

[87] T.L.B.L. immediately consulted a lawyer and this case was commenced 10 days after separation. Both parties were initially represented by senior, experienced lawyers. At the urgent case conference, held on January 16, 2014, a consent order was granted for a temporary parenting arrangement. At the subsequent case conference, on March 17, 2014, the parenting plan was expanded to equal time on a two-week schedule. This was later modified to a 2:2:5 schedule by order granted, on consent on August 26, 2015. This arrangement has continued to the present.

(i) T.L.B.L. – Criminal Charges

[88] T.L.B.L. retained separate counsel for the criminal case. After several court appearances and discussions between her lawyer and Crown counsel, T.L.B.L., on April 10, 2014, entered into a 12 month peace bond. The criminal charges were withdrawn.

[89] I pause at this point to comment on this matter. Domestic violence is a concern in the community and police officers have been instructed to deal with complaints seriously. Unfortunately, the officers here were not provided with full disclosure of all pertinent matters. Crown counsel, in my view, quite correctly, exercised prosecutorial discretion to withdraw the charges. The event occurring on separation did not warrant criminal proceedings.

(j) T.E.M. – Humane Society Charges

[90] There were a number of pets in the family residence, including two Husky dogs and two iguanas. T.L.B.L. has a special interest in exotic animals.

[91] Care of the pets became an issue early in this case with allegations made by each party. For some reason, T.E.M. did not deliver the iguanas to T.L.B.L. until April 14, 2014 and May 14, 2014. T.L.B.L. was concerned with their condition and delivered them to the Ontario Veterinary College in Guelph for examination. A number of concerns were identified, including emaciation. T.L.B.L. was also upset regarding the condition of other pets.

[92] On April 14, 2014, T.L.B.L. made her first complaint to the Humane Society regarding the care provided by T.E.M. An investigation followed. In October 2014, T.E.M. was charged with a number of animal cruelty offences. He retained a lawyer. After a number of court appearances, the charges were stayed by the prosecutor on October 27, 2015.

[93] In my view, this is a matter that should never have been initiated.

[94] Of some interest, during this same time period, T.E.M. was attempting to have a different veterinarian provide care for the dogs. When T.L.B.L. refused to provide her clinic records for the dogs, T.E.M. submitted a complaint to the College of Veterinarians of Ontario on December 3, 2014.

[95] On February 5, 2014, the College informed T.E.M. his complaint did not meet the College’s criteria as a complaint given that it was a personal matter. T.L.B.L. never saw the complaint as it was dismissed administratively.

[96] There was much more evidence pertaining to the pets but, as with the above, hardly important or relevant to the case. All of these events simply demonstrate the conflict between the parties and their efforts at making the situation worse than it already was.

(k) Domestic Violence and Abuse

[97] Conflict in the relationship, as noted by Dr. Jaffe in his preliminary reports, has existed throughout cohabitation and continued after separation. It is difficult to understand how the relationship even began as complaints regarding conduct pre-date cohabitation.

[98] There are two documented events involving physical contact during an argument. Reference to the one occurring on December 30, 2013 was addressed previously, in part. The prior event was in the summer of 2004. The parties had been on a kayak trip in Algonquin Park. An argument developed in the vehicle on the return trip over directions provided by T.L.B.L. In the course of the verbal exchange, T.E.M. struck the arm of T.L.B.L. At some point, T.E.M. made disclosure of this event to the family physician, Dr. O’Brien.

[99] In her testimony, T.L.B.L. spoke, in general terms of an abusive relationship involving constant criticism and, control by T.E.M., as well as numerous threats of physical harm, including death. In particular, T.L.B.L. commented on the following events:

i) February 1992 - Prior to cohabitation, while attending a wedding reception, T.E.M. prevented her from dancing with family members.

ii) 1993 - Again, prior to cohabitation, when attending at her brother’s wedding, T.E.M. criticized her choice of attire and jewellery, saying such were inappropriate, while complimenting the choices of others.

iii) 1995 or 1996 - Shortly after cohabitation, following T.E.M.’s surgery, her mother came to help with household chores and meal preparation. T.E.M. yelled at T.L.B.L. and her mother to such an extent her mother left.

iv) Fall 1997 - When using the computer, T.L.B.L. observed pornographic photographs. T.E.M. claimed they were not his, that someone else must have put them there, and told her to get over it.

v) Summer 2002 - While in their bedroom, T.E.M. was complaining about her work hours, yelling and swearing. When she tried to walk away, he restrained her temporarily. She left the bedroom but heard him yell “stupid, fucking bitch”. T.L.B.L. went to the basement to hide. When she heard him go outside, she left the house.

vi) April 2004 - Her mother brought a birthday cake to the office. T.E.M. yelled at her mother, saying this was inappropriate and unprofessional and told her to stop her mother coming to the office or she would regret it.

vii) Summer 2008 - While reading a book at home, T.E.M. took it out of her hands and threw it across the room, saying reading was a waste of time. She went upstairs and locked herself in the bathroom. T.E.M. broke through the door and grabbed her, yelling that she was stupid.

viii) May 2010 - The parties were attending an event after work. T.L.B.L. was unable to go home to change clothes and asked T.E.M. if he would bring them to the office. He refused, saying she should have thought of dealing with it herself. During the drive to Guelph, T.E.M. yelled at her, saying not to treat him like that again, not to make him look bad at work. He continued to yell at her when walking from the vehicle to the building, then immediately changed on meeting other persons in attendance.

ix) Summer 2011 - T.L.B.L. was struggling with the pregnancy. During the drive to the mall, T.E.M. was yelling at her and driving erratically. He continued to yell at her when she tried to walk away on arrival at the mall.

x) January 2012 - In the living room at home, T.E.M. was complaining to T.L.B.L. and would not allow her to have visitors without his permission. When she replied that was unfair, he yelled again, hitting her while she was holding L.M. T.L.B.L. told T.E.M. to stop or she would call the police. He handed her the phone and said “go ahead, they won’t believe you anyways”.

Later that day, she was writing thank you cards to colleagues for baby gifts. T.E.M. became angry, saying she wrote inappropriate comments and made her show him every note for his approval.

xi) June 2012 - T.L.B.L. reported T.E.M. as having previously informed her she was there for his sexual pleasure. He attempted to have sexual intercourse while the children were in the room. She informed him this was not appropriate, but he replied she had no choice. T.E.M. proceeded with intercourse without her consent.

xii) Spring 2012 - T.L.B.L. brought the children to the office as she had to prepare for a College inspection of the premises. While speaking to a staff member, T.E.M. came into the room and told her to go home in an angry manner. She was embarrassed but informed T.E.M. she had never gone through an inspection before and wanted to be prepared. T.L.B.L. apologized to the staff member and went home.

xiii) August 9, 2013 - T.L.B.L. drove to Buffalo with her mother and sister to attend an aunt’s funeral. Prior, T.E.M. told her to be back by 3:00 p.m. for work. They left after the funeral to return home, and in so doing, were unable to visit with family at the reception.

[100] T.L.B.L. also reported T.E.M. to be abusive to her and staff at the veterinary clinic, causing unnecessary problems including with staff turnovers. One former employee, B.F., testified at trial. She is presently a teacher and in 2013 and 2014 was a veterinary assistant, employed by T.L.B.L. B.F. described a toxic work environment with tension and stress between T.L.B.L. and T.E.M. impacting activities. She further referred to the conduct of T.E.M. creating an unsafe workplace as he would interfere with consultations T.L.B.L. was having with patients and would belittle T.L.B.L. in the presence of staff and also make similar comments to her and other staff members.

[101] M.L.B., mother of T.L.B.L. testified as to numerous occasions when T.E.M. would yell at her daughter and make inappropriate remarks. She referred to T.E.M. as “controlling”, restricting her contact with T.L.B.L. throughout their relationship, including at the hospital after the twins were born.

[102] T.L.B.L. also complains about harassment from T.E.M. since separation, particularly regarding communications using Our Family Wizard. I will discuss this topic later in these reasons and simply comment here that the email messages by both parties contain unnecessary editorial comment. For the past many years, T.E.M. in particular, has been using this platform to address issues, contrary to the purpose of Our Family Wizard. While the communications do not meet the test for harassment, there are certainly too many messages and with unnecessary comment.

[103] T.L.B.L. further identifies financial abuse as a concern. The primary focus here is with management of the veterinary practice, including concerns regarding payment of staff and invoices, filing income tax returns, record keeping and withdrawal of funds without her knowledge or approval. As set out in more detail later in these reasons, I decline to address this item given the settlement in the civil action. The complaints should have been addressed with the wrongful dismissal claim.

[104] T.E.M. also spoke in general terms as to the abusive conduct of T.L.B.L. during cohabitation, referring to constant attempts to engage him in argument and insulting when he did not respond. Other than the incident occurring on the date of separation, his complaints focus on verbal or emotional abuse.

[105] T.E.M. addressed the following specific events:

i) December 1, 2010 - T.L.B.L. told him he was not man enough to get her pregnant.

ii) October 29, 2011 - Eleven days before the birth of the twins, T.L.B.L. said he would be a bad father.

iii) March 11, 2012 - T.L.B.L. informed T.E.M. she would rather kill him than commit suicide.

iv) July 20, 2012 - T.L.B.L. said if the children turn out like him, they will be worse off.

[106] T.E.M. also referred to the numerous police and Children’s Aid Society reports, saying T.L.B.L. repeatedly made false allegations to intimidate him after the separation. He also complained, as she did about him, regarding her communications on Our Family Wizard.

[107] Both parties strenuously denied the complaints presented by the other. Cross-examination was largely ineffective and, of some interest, often resulted in further arguments between the parties.

[108] Counselling was arranged by each of the parties, separately, before and since the separation to address what was considered abuse by the other. T.L.B.L. claims to have post traumatic stress disorder; however, she never consulted a medical practitioner and there was no evidence of any diagnosis. Rather, it is presented as a subjective complaint, perhaps a self-diagnosis of little interest in this respect.

[109] It must be remembered when considering the evidence as to conduct that the parties did not allow Dr. Jaffe to complete the section 30 assessment. In result, it is unknown what this psychologist might have reported had the assignment been allowed to proceed. I am left with serious complaints but an absence of independent evidence.

(l) Shared Parenting

[110] Several months after separation, a shared parenting regime was established, limited to the following:

i) equal parenting time schedule; and

ii) day-to-day decisions to be made by the parent in whose care the children were at the time.

[111] This regime has continued to the present. Numerous events occurred over the years, indicating problems with the regime.

(a) Family and Children’s Services

[112] Family and Children’s Services have been involved with this family on a number of occasions. Some, but not all, of their records were referred to during the trial. None of the Society workers were called as witnesses.

[113] In May 2017, T.L.B.L. submitted a report to F.A.C.S. expressing concerns with respect to the children being exposed to adult conflict and inappropriate discipline in the home of T.E.M. Following an inquiry, correspondence from the Society, signed by the child protection worker and her supervisor, dated July 7, 2017 was delivered to the parties, saying, in part:

Based on the available information, we have determined that your children are not in need of protection services at this time. Based on the available information we believe that the children are not at risk or harm, and there are no perceived risks that the children will not have their needs met on a daily basis. We were not able to determine that the children have been emotionally harmed yet by the post-separation adult conflict. However, we do believe that the cause of their stress is likely the inability that both parents have shown to co-parent effectively and inability to resolve longstanding conflict. We do believe the children would benefit from counselling with a specialist that is well versed in counselling children that live in conditions with post-separation conflict as a present factor. We also believe that the children would benefit from a lawyer appointed by the provincial Office of the Children’s Lawyer in future court appearances. We will now close your file.

[114] Unfortunately, this report did not end the matter but, rather resulted in the following:

i) further complaints as to parenting issues followed by inquiry by the child protection worker;

ii) a complaint by T.L.B.L. to the executive director at F.A.C.S. concerning the child protection worker; and

iii) T.E.M. using this report to withdraw consent for a counsellor engaged to provide services for the children.

[115] The children were interviewed on numerous occasions. On April 6, 2018, in a report to the parties, the child protection worker advised the Society was not able to verify domestic violence or sexual abuse. She again expressed concern with adult conflict and the impact on the children and suggested counselling. A further recommendation was to use a third party for exchanges instead of the police station.

[116] On June 20, 2018, the executive director responded to the complaint by T.L.B.L. regarding the child protection worker. She supported the worker’s findings and recommendations, further advising T.L.B.L. to complete the court process and obtain a final order.

[117] In July 2017, the parties agreed to retain Sherrie Steinberg to provide counselling sessions for the children. Each signed a consent in this regard. Ms. Steinberg met with each of the parties. Three counselling sessions took place. On September 21, 2017, T.E.M. withdrew his consent on the basis Ms. Steinberg was not a “specialist” as described in the original letter from F.A.C.S. In result, the children went without the assistance of a counsellor for some time.

[118] Reference was made to Society involvement in terms of a “safety plan”, namely cell phones for the children, in November 2020. No records were presented in evidence and it is unclear what the worker did or suggested.

[119] F.A.C.S. workers have spent considerable time with this family and at no expense to the parties. I am not persuaded there was any need for this involvement. Counselling had been previously recommended. The parties were involved, somewhat sporadically, in this litigation. Any legitimate issues should have been addressed in motions court.

(b) Waterloo Regional Police Services

[120] The parties also contacted the police on many occasions. In addition to the event on the day of separation, the following are a few examples of complaints presented by each of the parties, or others, to the police:

i) February 21, 2014 - T.L.B.L. called to report that the nanny, E.D., was being prevented from leaving the family residence by T.E.M., according to police records. T.L.B.L. said her call was only that E.D. had sent her a text saying she was afraid and was locked in her room. E.D. had already left the residence and advised the officer she was not afraid of T.E.M. E.D. testified as to same at trial. Officers concluded this was a false allegation.

ii) March 9, 2014 - T.L.B.L. reported damage to her clinic, determined to be caused by a pellet gun. The officer recorded her as saying she believed T.E.M. to be the suspect. In testimony, T.L.B.L. denied the accusation. No action taken.

iii) January 30, 2015 - T.B., father of T.L.B.L., called to report an incident with T.E.M. T.B., on an exchange of the children, presented bags of goldfish for each child but T.E.M. pushed the bags into his chest, saying he did not want the children to have them. T.B. did not want the officers to speak to T.E.M., asking only a record of the incident be recorded.

iv) June and July 2017 - T.L.B.L. made several reports regarding unwanted contact from T.E.M., alleging harassment, by way of emails on Our Family Wizard. Officers reviewed the messages and concluded such did not meet the threshold for criminal harassment, recording the allegation as unfounded.

v) November 6, 2017 - T.L.B.L. reported T.E.M. attended her business, that J.J. entered the clinic and delivered the children’s passports to her. T.L.B.L. said she was fearful of both and did not want either on her business premises.

vi) December 26, 2017 - T.E.M. called to report an incident occurring in the police station lobby on an exchange of the children, advising that W.L. was confrontational and they went face-to-face. T.E.M. requested only that the incident be recorded. Police concluded no grounds for charges.

[121] Other than calling to report damage to business premises, without alleging a suspect when such is unknown, none of these reports had merit. Police officers have more important things to do than referee spousal disagreements.

(c) Exchanges

[122] Exchanges of the children have been occurring at a police station, initially in the lobby of the building and, since COVID-19, in the parking lot. Court orders were granted in this regard. The initial request to use the police station was from T.L.B.L., expressing concern for her safety and to avoid contact and harassment.

[123] Given the level of parental conflict, even using a police station for exchanges has been problematic. Each party complains about the conduct of the other, alleging intimidation and unnecessary drama. What is clear is that these events are causing unnecessary stress for the children.

[124] In his interim report, dated August 6, 2015, Dr. Jaffe, made reference to attending one such “and witnessed the tension first hand”. He recommended an immediate change in how exchanges occur.

[125] Security cameras are placed in the police station lobby, recording all events. As a result of police disclosure, pursuant to the order granted May 2, 2018, T.L.B.L. obtained copies of some of the videos. Several were played in evidence for exchanges occurring on December 24 and 27, 2017 and on January 28, 2018.

[126] The videos reveal the following:

(i) on transfer from T.E.M. to T.L.B.L. the children go to her immediately and without hesitation;

(ii) on transfer from T.L.B.L. to T.E.M., when T.L.B.L. is still present, the children are reluctant to go to him but, rather, hide under the bench;

(iii) once T.L.B.L. leaves the police station, the children come out from their hiding place and approach T.E.M. without hesitation, with hugs and dancing;

(iv) the parties do not speak to each other, but the facial expressions reveal their animosity;

(v) T.L.B.L. took photographs of the children hiding under the bench.

[127] The videos confirm Dr. Jaffe’s observations in 2015. The tension caused by parental conflict is visited on the children on a regular basis.

[128] Police stations are a place of last resort for exchanging children and only on a temporary basis.

(d) Communication – Our Family Wizard

[129] Following separation, the parties initially made use of a journal travelling back and forth with the children. As a result of the consent order, granted on March 9, 2015, communication was made through Our Family Wizard.

[130] Several thousand pages of emails delivered on this platform were printed and presented in evidence. For what purpose?

[131] Our Family Wizard was developed to provide a method for parents to communicate with respect to matters pertaining to the children. It is an effective tool and, when properly used, eliminates conflict. Messages are intended to be for matters pertaining to the children’s health, school or other activities, scheduled appointments or family events and updates as to their development. The platform also allows for exchanging expense information and to permit professionals to join in providing updates or reports. Our Family Wizard is not to be used as part of the litigation process or to argue and present editorial comments.

[132] While most messages were appropriate, far too many contain argument and editorial comment, more so by T.E.M. The theme of this relationship is conflict, dominated by constant argument. Our Family Wizard has been used for an unintended purpose. This cannot continue.

(e) Unilateral Decisions

[133] The prior order in this case only addressed day-to-day decisions. It did not address major decisions required for the children and, hence, the parties were required to consult with each other and agree on such matters or, in the event of disagreement, to seek further direction from the court.

[134] Instead, each party made unilateral decisions in matters pertaining to the children, as follows:

(i) By T.L.B.L.:

• changing the dentist

• enrolling children in online education program following COVID-19

• refusing to exchange the dogs despite the court order; and

(ii) By T.E.M.

• refusing to use police station for exchanges following COVID-19

• taking children to optometrist

• consulting another veterinarian

• arranging dental care

• scheduling activities on her parenting time.

[135] Even if there was a legitimate reason for the decision, doing so without consultation was inappropriate. This demonstrates an unwillingness and inability to parent together, again sending the wrong message to the children.

(f) Independant Households – Independant Activities

[136] For the past eight years, the children have lived in two separate worlds, the only connection being at the exchanges. Each party arranged activities for the children, with some overlap, for example, swimming lessons.

[137] T.E.M., on several occasions, asked T.L.B.L. to schedule sports or camp during both of their parenting times. She refused. T.L.B.L. never presented a similar request, saying “independent households – independent activities”.

[138] Reference was made to some activities arranged for the children, including sports, scouts, education and social programs. There was no independent evidence as to what activities the children want.

[139] In result, the children have been denied the opportunity of regular participation in extra-curricular activities as they cannot commit to participation when residing in separate worlds. Extra-curricular activities are one of the major decisions required of parents, again demonstrating an inability to co-operate.

(m) The Children Know Too Much

[140] The children were only two years of age when their parents separated and, in result, have no memory of residing in their original family unit. However, as seen in the section 112 report by Mr. To, as hereafter discussed, the children have been informed of far too many events occurring prior, and after, separation.

[141] For example, the children know the father was fired by mother from his position at the veterinary clinic. They are also aware of “mean” messages delivered by each parent to the other. The children complain about father’s “lies”.

[142] As Dr. Jaffe opined, the children are absorbing the emotionally laden conflict and are reacting. The children have also been exposed to numerous social workers, counsellors and police officers, all as a result of parental conflict.

(n) Mother Moved

[143] In the summer of 2019, T.L.B.L. sold her house and moved to Huron County. She did not inform T.E.M. of her intention in this regard. He heard about the proposed move from the children. Letters were sent by his lawyer. No motion was presented to prevent moving the children.

[144] For the past two years, the children have resided in two residences more than one hundred kilometres apart. They travel over an hour in each direction for school and for exchanges.

[145] The two worlds are now further apart. Different communities means two sets of friends, new activities and a reduction in participation in programs in Waterloo Region. The travel time is a significant burden.

(o) Children – Health and Other Matters

[146] Dr. O’Brien has been the family physician for the parties and the children since 2011.

[147] In his testimony, Dr. O’Brien reported the children as generally healthy, presenting in his office as “normal little children, normal spirits”.

[148] Dr. O’Brien indicates he has seen A.M. and L.M. more often than children of other families. Other than the usual matters consulted on, one item addressed was constipation. T.L.B.L. had discussed this topic at length, in her evidence, including presenting photographs. Dr. O’Brien commented on the likely source of the bowel problems as diet or stress.

[149] A referral was made to a child psychiatrist. The report received by Dr. O’Brien was nothing of concern, save a “stressful environment”.

[150] There were issues at school in the earlier years, particularly for L.M. Intervention by teachers and a plan to address were implemented.

[151] There was no evidence as to recent school performance, likely meaning they are doing well.

[152] Overall, it appears the children are healthy, but the impact of stress caused by parental conflict is obvious.

(p) Section 30 Assessment

[153] Following the consent order, granted on February 12, 2015, the parties completed the Parent Questionnaire and delivered same to the London Custody and Access Project. The initial retainer was provided by T.L.B.L. The children were then three years of age.

[154] Dr. Jaffe, assisted by Maureen Reid, an experienced social worker, commenced the assessment process. The parties were interviewed on several occasions. Home visits with each parent and the children, as well as on an exchange, took place. Other interviews were conducted, and collateral materials were reviewed. Dr. Jaffe and Ms. Reid concluded a preliminary report might assist the parties, particularly with the children commencing Kindergarten in September 2015. This report was dated August 6, 2015,

[155] Psychological testing of the parties indicated both appeared to be “normal and high functioning individuals”. No mental disorders were discovered but distress from the separation was clearly present. Each party presented with a positive image of parenting while offering a negative report on the other.

[156] On the home visits, both parents were observed to be attentive to their children’s needs and demonstrating a strong desire to be a loving parent. There were no critical comments made as to the parenting of either party.

[157] The conflict between the parties was addressed at the outset of these reasons. Dr. Jaffe made reference to every issue being the fodder for disagreement or protracted communications, just as I observed during the trial.

[158] Recommendations were presented as to changing the exchange method, school enrolment and the parenting schedule, as well as with respect to using a parenting co-ordinator and a joint custody-parallel parenting plan.

[159] After the first report, Dr. Jaffe and Ms. Reid conducted further interviews and inquiry. In his report, dated December 16, 2015, Dr. Jaffe started by saying they had hoped to complete the assessment by the end of the calendar year; however, the parties “are still in crisis and in an endless litigation mode”.

[160] At this stage of the inquiry, the parties were expressing concern as to the children being exposed to negative information concerning the parents’ dispute. This has continued to the present.

[161] Dr. Jaffe recommended continuing with the parenting schedule and addressed a holiday plan. He also gave the parties information regarding resources, including a parenting co-ordinator, and suggested retaining a counsellor to provide services to the children. Dr. Jaffe anticipated completing the assessment by June 2016.

[162] One or both of the parties decided to discontinue the assessment process.

(q) Section 112 Investigation and Report

[163] The Office of the Children’s Lawyer accepted the request to provide services for the children, as presented in the consent order granted May 2, 2018. The children were now six years of age. Mr. Glory To, an experienced social worker, was assigned the task of conducting an investigation and submitting a report, pursuant to section 112, Courts of Justice Act. He commenced the project on August 1, 2018. Mr. To’s report is dated March 5, 2019. He testified at trial.

[164] In the investigation stage, Mr. To conducted interviews of the parties, the children and other persons. He also received and reviewed numerous reports and other documents provided by collateral sources.

[165] Mr. To attended at each residence to observe interactions between the children and parent and current partner. His comments were positive on each occasion, similar to that of Dr. Jaffe several years prior.

[166] With respect to the interviews of the children, Mr. To reported the following:

(a) they have no memory of the time period when the parties resided together;

(b) they are aware of their parents’ conflict;

(c) references were made to various comments by the children, such as their mother saying their father was “mean” to her;

(d) they saw messages sent by text by their father to their mother;

(e) they enjoy living with their mother, but not their father;

(f) they would prefer to live with their mother and see their father less than at present.

[167] Mr. To advised he was unable to determine the extent to which the parties had made negative comments about each other, but it was apparent the children were well aware the parties did not get along. He further opined that, the children acting out on the exchanges when both parents were present, appeared to substantiate that such reflected exposure to parental conflict.

[168] The child psychiatrist interviewed by Mr. To reported the children appeared to have been subjected to influence by both parties.

[169] As Dr. Jaffe experienced, both parents presented negative comments as to the other’s parenting ability when interviewed by Mr. To.

[170] As a result of the investigation, Mr. To concluded that neither party was incapable of providing care for their children “except for their failure to avoid exposing the children to parental conflicts which are emotionally damaging to the children”.

[171] Mr. To reported the children as being consistent in their views and preferences, adding they appear to over identify with their mother’s negative feelings towards their father. He went on to say the expression of their views and preferences, as compared to observations on the home visits, need to be considered in the context of parental influences and involvement in adult issues.

[172] The children, Mr. To said, have developed emotional bonds with each parent, perhaps stronger with their mother.

[173] The following recommendations were submitted at the end of Mr. To’s report:

(a) joint custody with parallel parenting, so as to avoid marginalizing a non-custodial parent, with decision-making assigned as follows:

(i) mother – children’s physical health and religion;

(ii) father – education;

(iii) the court to provide direction on counselling services for the children as the parties had been unable to then agree for two years;

(b) continue equal parenting time;

(c) exchanges to take place at school, if on a school day, otherwise at a supervised exchange site;

(d) communication by Our Family Wizard; and

(e) refrain from discussing adult issues or making negative comments about each other in the presence of the children.

[174] In their cross-examination of Mr. To at trial, each party attempted to obtain evidence supporting their position and negating that of the other. Both were unsuccessful.

[175] Mr. To expanded on comments in his report, as follows:

(a) as to comments by the children, such are informative of parental conflict and children may not know the meaning of words they use or be able to explain what they said;

(b) he could not confirm the source of information provided by the children;

(c) although concerned with what the children were saying, he could not conclude either parent was influencing their views and preferences;

(d) there was a discrepancy between what the children said about the parties and what he observed in the home visits;

(e) exposure to parental conflict will have a “major” emotional impact on the children;

(f) the children identify with their mother and are much aware of her feelings towards their father;

(g) his recommendation for parallel parenting was to reduce the conflict;

(h) he has a general knowledge as to how domestic violence can relate to parenting but does not have specialized training;

(i) Sherrie Steinberg was an appropriate counsellor for the children and father’s withdrawal of consent to her providing counselling services would add to the conflict;

(j) he does not determine the percentage of conflict caused by either party; and

(k) when an investigation reveals parental conflict, the goal is to address such in the recommendations.

[176] Mr. To’s report provided a framework for the parties to address resolution of their parenting dispute. They did resolve the issue of counselling for the children by way of consent order granted on April 23, 2019, retaining Calming Tree for that purpose. Such was discontinued a year later.

[177] The parties did not address the substance of the report, namely conflict. Instead, arguments continued.

[178] While Mr. To’s report was helpful, particularly as the same issues exist now and then, three plus years have passed. The children are now 10.

[179] Mr. To is a social worker, not a psychologist. He addressed the issues based on his education, training and experience. Mr. To could not comment on underlying psychological issues. Dr. Jaffe could have had he been allowed to complete the original assessment.

[180] Lastly, I am satisfied Mr. To conducted a thorough investigation. He spent considerable time on interviews and review of material and arrived at appropriate conclusions. His recommendations are of interest, but not determinative. The evidentiary record at trial was more extensive than available to Mr. To in 2018 and 2019.

(r) Voice of the Child Report

[181] A consent order was granted on January 6, 2021 requesting a Voice of the Child Report. This case was then on the trial list for the sittings commencing later in the month. The Office of the Children’s Lawyer immediately accepted the request and again assigned Mr. To for the task. His report was dated January 18, 2021.

[182] A V.O.C. report is limited to ascertaining the views and preferences of children. It is not an investigation. The assigned social worker does not analyze or interpret what children say, nor are other individuals contacted for input in the process. The only prerequisite to presenting a report is that the children understand the purpose of the inquiry and that they are able to express their views and preferences. Mr. To was satisfied with both criteria

[183] The children had been interviewed by Mr. To previously in 2018 and 2019 and were comfortable in talking with him. Mr. To described the children as appearing to be of average physical and cognitive development.

[184] The children were interviewed separately on two occasions, on January 15 and 18, 2021. The interviews were conducted virtually due to the COVID-19 pandemic. On the first interview, the children were in their mother’s residence and on the second interview they were at their father’s home. At the commencement of each interview, Mr. To instructed the child to rotate the camera to demonstrate being alone in the room with the door closed. The interviews, therefore, took place in a private manner, similar to an in-person meeting.

[185] Both children spoke without difficulty and provided detail or explanation as to views expressed, more so on the second interview.

[186] In his summary, Mr. To wrote:

During both interviews [A.M.] and [L.M.] expressed totally negative views and feelings towards [T.E.M.]. They both expressed the preference of living with [T.L.B.L.] 100% of the time and no contact with [T.E.M.].

I confirm that I have reviewed my notes with the children for accuracy.

[187] The children spoke about enjoying school and presented positive comments about time spent in mother’s home and participating in activities with her and W.L. Their comments about father and activities with him and J.J. were negative. Complaints were made regarding his conduct, discipline, food, activities and that he is “mean” to them and to his dog. When asked whether there was anything positive about spending time with father, each replied “none”.

(s) Counselling

[188] Counselling services were provided to the children as follows:

(a) August 2017 to September 2017 by Sherrie Steinberg at Southern Ontario Counselling Centre;

(b) May 2019 to April 2020 by Jeffrey Barber at Calming Tree Counselling.

[189] T.L.B.L. called both counsellors to testify at trial, the primary purpose being to present evidence as to the statements made by the children during the counselling sessions. In my gatekeeper role, and as the parties were self-represented, I indicated there was a preliminary issue as to the admissibility of the evidence.

(a) Production Order

[190] In preparation for trial, T.L.B.L. brought a motion for production of the notes and records of Jeffrey Barber and Calming Tree Counselling. The motion, originally returnable on October 7, 2020, was heard on January 6, 2021. Father opposed the request. For reasons unknown, the owners of Calming Tree did not respond to the motion, despite being properly served.

[191] After hearing submissions from T.L.B.L. and then counsel, as agent only, for T.E.M., Breithaupt Smith J. granted the request. At para. 6 in her endorsement, the rationale was expressed as follows:

With respect to the issue of the disclosure of the records of Calming Tree Counselling, the legal argument against such disclosure revolves around privacy issues and the potential damage to the patient-counsellor relationship. As the patient-counsellor relationship was discontinued by the service provider by means of letter dated April 29, 2020, this argument is moot. Ms. Carroll for the Respondent Father raises the further concern that the Applicant Mother may discuss the contents of the notes with the children and thereby discourage them from being candid with future counsellors. A mutual non-disclosure clause can be included to address that concern. Notably, Mr. Jeff Barber is listed as a witness on the TSEF dated September 11, 2020, and his summons to witness will require him to bring with him all notes and records pertaining to his involvement with the children. While the Court understands that the service provider must take a cautious approach to high-conflict litigation matters, and therefore I do not fault Calming Tree for requiring a Court Order for disclosure to be made, it is reasonable for all such notes and records to be disclosed in advance of trial.

[192] The notes and records were subsequently delivered to both parties, copies being presented at trial in the document brief of T.L.B.L.

(b) Evidence for Admissibility Issue

[193] To assist the parties, I conducted the initial examination of Mr. Barber so that an evidentiary foundation could be later used when addressing admissibility. Mr. Barber responded to my questions, as follows:

(i) the purpose of counselling for these children was therapeutic, to assist them in navigating the separation of their parents while living in two households;

(ii) the children were invited to express their personal thoughts and feelings;

(iii) he would only provide general information to the parties and would not reveal specific statements made by the children;

(iv) the policy regarding privacy and confidentiality of Calming Tree complied with the standards set by the College of Social Workers and Social Services Workers; namely that information shared during a counselling session was confidential and no identifying information is ever made to other persons without the consent of the client or court order or as required by statute, such as the duty to report child abuse;

(v) he informed these children that we are providing a safe place for them to talk and that he would not share the information provided, with certain exceptions, such as if they are about to be hurt or hurt themselves; and

(vi) when the children expressed concerns about him revealing what they had said, he informed them that “what we talk about stays within our four walls”.

(c) Office of the Children’s Lawyer

[194] After Mr. Barber presented this preliminary evidence, I informed him he was excused for now and would be contacted if there was a need for further testimony.

[195] The parties had a general understanding of the admissibility issue and provided some submissions. My concern was with the complexity of the issue and that it focused on the rights of two young children, not those of the parties.

[196] In result, with consent of both parties, I invited the Office of the Children’s Lawyer to provide representation on the discrete issue of admissibility of child counselling records, pursuant to section 89(3.1), Courts of Justice Act.

[197] The request was approved. Ian Ross and Samantha Wisnicki were appointed as counsel for the children.

[198] During the adjourned period, a case management conference was held on July 23, 2021 to discuss the procedure going forward and scheduling. Counsel reported that arrangements were being made with the parties to interview the children and for documentary disclosure. I asked counsel to advise the trial co-ordinator when they would be in a position to schedule submissions.

[199] On September 9, 2021, the first day scheduled to continue the trial, Ms. Wisnicki attended to advise they were preparing material and would be able to address the admissibility issue. In result, submissions were scheduled for September 20, 2021.

[200] On this occasion, Ms. Wisnicki advised as to concerns expressed by the children regarding public access to their counselling records. After discussion with counsel and the parties, I granted an order:

(i) sealing the court file (I later discovered a similar order had been granted on May 2, 2018); and

(ii) the parties, children and other family members would only be identified by initials in any document released to the public, including my reasons for decision.

(d) The Issue – Briefly Stated

[201] Whether the statements made by the children to their counsellors are admissible includes consideration of:

(i) privacy and confidentiality and whether privilege is attached to their communications (Wigmore test); and

(ii) principled approach to hearsay evidence of children (Khan test).

(e) The Hearing

[202] With the evidentiary foundation having been provided by Mr. Barber, a hearing was held on September 20, 2021 to address admissibility in the following manner:

(i) counsel reported as to the position of the children;

(ii) counsel addressed the legal principles; and

(iii) the parties presented submissions.

(f) The Children’s Position

[203] Mr. Ross and Ms. Wisnicki met with the children to determine their views and preferences relating to the use of their counselling records at trial. Two meetings took place, one in each home of the parties.

[204] Counsel reported that with the understanding their parents already knew of the contents of their counselling records, they were not opposed to such records being used at trial, provided “other people” could not see the records or obtain their private information (Order previously granted in this regard).

[205] In response to my inquiry, and those of the parties, Mr. Ross and Ms. Wisnicki provided the following information:

(i) they reviewed Mr. To’s report dated March 5, 2019;

(ii) the children understood the process and what counsel said to them;

(iii) the children are aware it is their statements or comments to their counsellors that are proposed to be presented in evidence;

(iv) the children are capable of saying they are not opposed to the use of their counselling records at trial;

(v) the children understood the position counsel would take and that such was appropriate; and

(vi) they had no information to suggest what the children said was the result of influence from others.

(g) Legal Principles

[206] Counsel for the Office of the Children’s Lawyer were most helpful in providing a Statement of Law on this unique issue, much more thorough than my own prior research conducted when the issue first arose.

[207] All litigation involving children must recognize that children have rights that are independent from those of their parents and others.

[208] Those rights are recognized in different manners in legislation addressing children’s matters. When, as in this case, the court will be granting a parenting order, one of the factors to consider in the best interests of the child test is the child’s views and preferences, set out in section 24(1) and (2), Children’s Law Reform Act.

[209] Our system discourages children being present in court proceedings. Hence, other methods are used, particularly the appointment of the Office of the Children’s Lawyer, to ensure the children’s views and preferences are presented. In so doing, the child’s “right to be heard”, as set out in Article 12 of the United Nations Convention on the Rights of the Child (“UNCRC”), is met.

[210] The evidence pertaining to the section 112 investigation and report and the Voice of the Child report, both completed by Mr. To, has been presented. But the issue regarding counselling records is different, such not prepared for the purpose of trial but, rather, being created as part of the therapeutic services provided to the children.

[211] In this regard, counsel identify the heightened privacy protections as a child’s right under Article 16, UNCRC, as follows:

Article 16

1. No child shall be subjected to arbitrary or unlawful interference with his or her privacy …

2. The child has the right to the protection of the law against such interference …

[212] This heightened privacy protection of children takes into account their inherent vulnerability. See: AB v. Bragg Communications Inc., 2012 SCC 46, at para. 17; and R. v. Jarvis, 2019 SCC 10, at para. 86. Children’s privacy rights are entitled to more, not less, protection than adults. See: Ontario (Children’s Lawyer) v. Ontario (Information and Privacy Commissioner), 2018 ONCA 559, at paras. 73 and 75.

[213] Courts have a special duty to safeguard the children’s interests and privacy rights, having regard to the UNCRC. See: Ontario (Children’s Lawyer) v. Ontario (Information and Privacy Commissioner), supra, at para. 51.

[214] Adults may consent to the use of personal or otherwise privileged documents, including counselling records, as evidence at trial. But can children?

[215] Records prepared as a result of therapeutic counselling may be considered as personal health information. While not determinative of the admissibility issue here, such information is addressed in the Health Care Consent Act (“HCCA”) and the Personal Health Information Protection Act (“PHIPA”).

[216] No age is specified for children at which they have the capacity to consent to treatment or the disclosure of records relating to that treatment. Rather, capacity is a fact-specific determination made by the health service provider with respect to the client. (HCCA, section 4). Where a child is capable of consenting to counselling on his or her own accord, then his or her consent will generally be required for the disclosure of counselling records to a parent. (PHIPA, section 23(1)).

[217] A person is “capable” where “the person is able to understand the information that is relevant to making a decision about the treatment, admission or personal assistance service, as the case may be, and able to appreciate the reasonably foreseeable consequences of a decision or lack of decision. (HCCA, section 4(1)).

[218] If a child is less that 16 years of age, a parent of the child, or a Society, or another person who is lawfully entitled, may give or refuse consent to the collection, use or disclosure of health information in the place of the child (PHIPA, section 23).

[219] However, if a child is less than 16 years of age, has the capacity to consent to treatment, and has done so, the child retains control over their own health information and records and, hence, the parent lacks standing to make decisions about the use of information collected over the course of that treatment. (PHIPA, section 21(1) and 24).

[220] Where a conflict arises between a child, who has the capacity to consent as to the collection, use or disclosure of their information, and a parent, a decision of the child prevails. (PHIPA, section 23(3)).

[221] A child may be capable of consenting to the collection, use or disclosure of personal health information at one point in time, but be incapable of consenting at another time. In other words, the capacity to consent must be addressed on every occasion. (PHIPA, section 21(3)).

[222] Children have the right to control their own personal health information, once they understand the information and the reasonably foreseeable consequences of giving, not giving or withdrawing their consent to the collection, use and disclosure of that information. (PHIPA, section 21(1)).

[223] As with consenting to treatment or disclosure of personal health information records, there is no specified age at which children can consent to their counselling records being admissible at trial. Every case is fact specific.

[224] In this case, I have the evidence of the parties and from others regarding the children. The information provided by Mr. To and by counsel on this issue are most helpful. A.M. and L.M. were nine years of age when last interviewed by Mr. To and when they met with other counsel for the Office of the Children’s Lawyer. The children, in my view, indirectly requested counselling services to address their parents’ conflict and how such impacted on their lives. The children are well aware this trial is taking place, the issues that are to be decided and also many, if not all, of the disputes between their parents.

[225] In result, I am satisfied A.M. and L.M. have the capacity to consent to their counselling records being presented in evidence. However, this does not end the inquiry.

[226] The next stage is to address the issue of privilege, having regard to the principles pertaining to privacy and confidentiality. This is often referred to as the Wigmore test.

[227] The jurisprudence recognizes two categories of privilege, “class privilege” and “case-by-case or non-class privilege”. The former is well defined, dealing with specific matters such as solicitor and client communications and settlement discussions between parties in litigation. In this case, we are dealing with the non-class privilege category which is said to arise from a special relationship that elevates the communications to one of privilege. Although there is no “blanket” approach, and the issue must be addressed on a case by case basis, the therapeutic relationship between a patient and a psychiatrist is often said to meet the criteria for privilege. See: Slavutych v. Baker, 1975 CanLII 5 (SCC), [1976] 1 S.C.R. 254 (S.C.C.) and A.M. v. Ryan, 1997 CanLII 403 (SCC), [1997] 1 S.C.R. 157 (S.C.C.)

[228] In Slavutych v. Baker, the “Wigmore test” was adapted as the basis for establishing case by case or non-class privilege.

[229] There are four fundamental requirements:

(i) the communication must originate in confidence;

(ii) the confidence must be essential to the relationship in which the communication arises;

(iii) the relationship must be one which should be “sedulously fostered” in the public good;

(iv) if all of these requirements are met, the court must consider whether the interests served by protecting the communications from disclosure outweigh the interest in getting at the truth and disposing correctly of the litigation.

The onus is on the person claiming privilege to demonstrate that the communications should not be disclosed.

[230] The Wigmore test has been applied in a number of family law cases, often at the disclosure stage. In my view, the same principles apply at the admissibility stage. The fact records were produced pursuant to a court order does not mean such are admissible at trial.

[231] Production of children’s counselling records was rejected in Children’s Aid Society of Ottawa v. N.S., 2005 CanLII 7661 (Ont. S.C.J.); Children’s Aid Society of Halton Region v. T.C.B., 2012 ONCJ 69; Child and Family Services for York Region v. L.H., 2013 ONSC 5622; Children’s Aid Society of Toronto v. F.D.S., 2016 ONCJ 520; and G.L.K. v. C.L.K., 2021 ONSC 5843.

[232] Consistent in this caselaw are themes of privacy, confidentiality and the heightened need to protect vulnerable children. Unlike an assessment, the purpose of counselling is therapeutic, to assist children in coping with a dilemma created by their parents.

[233] In L.H., supra, Boswell J. addressed the importance of protecting children’s privacy in therapeutic counselling saying, at paras. 28-31;

[28] There is no dispute that the disputed records relate to therapeutic counselling. A relationship between a person and his or her therapist is a very intimate and personal one. Effective therapy requires a discourse between therapist and patient that touches upon the private and core thoughts and feelings of the individual. The records in question did not arise from an assessment or clinical investigation relating to the issues in the litigation. They arose in the context of private therapy.

[29] I reject LH’s submission, which I acknowledge was thoughtful and articulate, that there is a lessened expectation of privacy where counselling takes place in the shadow of a child protection proceeding. The therapy in issue was unconnected to the protection proceedings. A final order had been made in the protection proceeding before Zuker J. A significant and traumatic change had occurred in the lives of the children. They had suffered. They had been put at risk. They were in need of personal therapy and they received it. The children would not reasonably have expected that the thoughts and feelings they shared in private sessions with their therapist would be shared with their mother, or even the Court. In my view, the therapeutic sessions between the children and their counsellors were intended, in the circumstances, to be confidential. Moreover, the confidential nature of the discussions was essential to the relationship between the children and their therapists.

[30] If the therapy, in these circumstances, is not acknowledged as private and confidential, it may very well have a chilling effect on similar therapy in the future. Children may be less likely to speak openly and frankly about their innermost thoughts and feelings if they know or might reasonably expect that those thoughts may be exposed through a disclosure order. Counselling may be rendered largely ineffective.

[31] Child therapy, particular in acutely dysfunctional circumstances such as the ones that are present here, is extremely important and there is a strong public interest in protecting and fostering such therapy. The long term deleterious effects on children who experience high conflict separations are now well documented in the scientific literature. If left untreated, children who experience such high conflict between their separating parents may well suffer lifelong mental health and relationship issues. As Chief Justice McLachlin noted in Ryan, as above, at para. 27, “The mental health of the citizenry, no less than its physical health, is a public good of great importance.”

[234] G.L.K., supra, was a high conflict case involving parenting of three children where allegations of domestic violence and abuse of the children. Paras. 51-54 of this decision are helpful.

[51] To support the therapeutic nature of the children’s counselling sessions, and to promote their ability and willingness to fully participate in therapy, I am satisfied that the privacy of their therapeutic relationships have transcendent public importance and should be sedulously fostered in the public interest: Ryan at para 28; Child and Family Services for York Region v. L.H., 2013 ONSC 5622 at paras 28-29. To this end, I accept that the children’s therapy records satisfy the first three arms of the Wigmore test, and raise a compelling prima facie case for protecting their privacy: Ryan at paras 20, 24-28 and 37.

[52] Turning to the fourth arm of the Wigmore test, I find on balance that the children’s privacy interests outweigh the Respondent’s fair trial interests in the DCAFS counselling records. Privacy is a cornerstone for any therapeutic relationship given the intimate and highly personal information that a client must share with their therapist to properly benefit from therapy. Accordingly, I accept that the children have significant privacy interests in their counselling records.

[53] From the record on this motion, I accept that much of what the children discussed in therapy is likely not relevant to the issues in this case. Unlike the content of the child protection file, which will answer why and how DCAFS verified physical and emotional harm to the children as a result of being in the Respondent’s care, the likely relevance of the children’s counselling records is speculative and unclear. Both B.K. and S.K. have said that much of what they discussed with their counsellors has nothing to do with the parties or the family conflict.[2] Although the Respondent suspects that the children may have discussed the abuse allegations against him during therapy, the content of their therapy records is highly speculative at this time. In my view, this motion is largely a “fishing expedition” to examine the therapy records to see what might be useful to the Respondent’s case: L.H. at para 34. Given the children’s compelling privacy interest in their counselling records, this approach is simply not appropriate: Ryan at para 37.

[54] Even if the counselling records contain some information about the abuse allegations as the Respondent suspects, the reliability of any such information is unclear and far from certain. Statements recorded by a therapist are second-hand hearsay used to address therapeutic needs. The therapist does not record the precise words said by a complainant to describe an incident, which makes such records inherently unreliable when used for this purpose in a court proceeding: A.(L.L.) v. B.(A.), 1995 CanLII 52 (SCC), [1995] 4 SCR 536 at paras 61-62. Having regard to the record on this motion, I conclude that DCAFS’ counselling records for the children likely have only limited, if any, bearing on the abuse allegations or the parenting motion.

[235] The fourth requirement, described as a balancing exercise, was addressed in A.M., supra, at para. 37, McLachlin C.J.C. saying:

My conclusion is that it is open to a judge to conclude that psychiatrist-patient records are privileged in appropriate circumstances. Once the first three requirements are met and a compelling prima facie case for protection is established, the focus will be on the balancing under the fourth head. A document relevant to a defence or claim may be required to be disclosed, notwithstanding the high interest of the plaintiff in keeping it confidential. On the other hand, documents of questionable relevance or which contain information available from other sources may be declared privileged. The result depends on the balance of the competing interests of disclosure and privacy in each case. It must be borne in mind that in most cases, the majority of the communications between a psychiatrist and her patient will have little or no bearing on the case at bar and can safely be excluded from production. Fishing expeditions are not appropriate where there is a compelling privacy interest at stake, even at the discovery stage. Finally, where justice requires that communications be disclosed, the court should consider qualifying the disclosure by imposing limits aimed at permitting the opponent to have the access justice requires while preserving the confidential nature of the documents to the greatest degree possible.

[236] If the children’s statements to their counsellor are not rejected under the Wigmore test, the issue of hearsay requires determination before the evidence is considered admissible.

[237] Children’s statements may be admissible solely for the purpose that such were made; however, when, as here, it is for the truth of their contents, admissibility must either rely on an exception to hearsay or under the principled approach, known as the Khan test.

[238] The state of mind exception to the hearsay rule has been relied upon for children’s views and preferences, for example, where the child says she wants to live with mother, or he says I want two days with father. This, of course, is a limited purpose. The purpose is said to capture the child’s feelings at the time the statements were made. See: Children’s Aid Society of Algoma v. J.B., 2018 ONCJ 834, at para. 13.

[239] The requirements for admissibility under the state of mind exception are:

(i) a statement asserting a condition or state;

(ii) the statement must describe a contemporaneous physical, mental or emotional state of the declarant;

(iii) the statement may not describe the cause of the state, whether it be past or present events;

(iv) the mental state can include a person’s present intention to do a future act; and

(v) the statement must not be made under circumstances of suspicion.

See: Hearsay and Exceptions to Hearsay Rule, Rollie Thompson, Dalhousie University, Chapter 9 in Niman, ed., Evidence in Family Law (Canada Law Book, 2010).

[240] T.E.M. attacks admissibility with reference to “circumstances of suspicion”, namely influence. T.L.B.L. seeks admissibility for a greater purpose than views and preferences. Hence, the next consideration is with the principled approach involving an analysis of necessity and reliable as set out in R. v. Khan, 1990 CanLII 77 (SCC), [1990] 2 S.C.R. 531 (S.C.C.)

[241] Necessity was addressed in the following manner in Khan:

The first question should be whether reception of the hearsay statement is necessary. Necessity for these purposes must be interpreted as “reasonably necessary”. The inadmissibility of the child’s evidence might be one basis for a finding of necessity. But sound evidence based on psychological assessments that testimony in court might be traumatic for the child or harm the child might also serve. There may be other examples of circumstances which could establish the requirement of necessity.

[242] The above passage has been considered in several family law cases, consistently concluding necessity is made out as courts are most reluctant to compel young children to testify in person so as to avoid further trauma. See, for example: C.(S.E.) v. P.(G.), 2003 CanLII 2028 (Ont. S.C.J.); Stefureak v. Chambers, 2004 CanLII 34521 (ON SC), [2004] O.J. 4253 (Ont. S.C.J.); Ward v. Swan (2009), 2009 CanLII 22551 (ON SC), 95 O.R. (3d) 475 (Ont. S.C.J.); Guillory v. Turbin, 2013 ONCJ 596; and Blackmore v. Blackmore, 2020 ONSC 6194.

[243] Reliability was described in Khan as follows:

The next question should be whether the evidence is reliable. Many considerations, such as timing, demeanour, the personality of the child, the intelligence and understanding of the child, and the absence of any reason to expect fabrication in the statement, may be relevant on the issue of reliability. I would not wish to draw up a strict list of considerations for reliability or to suggest that certain categories of evidence (for example the evidence of young children on sexual encounters) should be always regarded as reliable. The matters relevant to reliability will vary with the child and with the circumstances, and are best left to the trial judge.

[244] In the case at bar, I reserved my decision but allowed T.L.B.L. to call the two witnesses so as to avoid a further delay in this lengthy trial (combined voir dire and trial). I advised the parties, the evidence would not be relied on in my decision if such was excluded on the Wigmore or the Khan principles. Hence, at this stage, I will only consider the threshold reliability for the purpose of whether the evidence may be admissible. If admitted, the evidence would remain subject to further analysis on the basis of ultimate reliability.

[245] Threshold reliability was addressed most recently in R. v. Bradshaw, 2017 SCC 35. The following are the applicable considerations:

(i) the court must identify the specific dangers inherent in the out-of-court declaration and then identify the means by which those dangers can be overcome;

(ii) the damages can be overcome by showing there are adequate substitutes for testing truth and accuracy (procedural reliability) or there are sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy;

(iii) adequate substitutes for testing the evidence must provide a satisfactory basis for the court to rationally evaluate the truth and accuracy of the hearsay statement;

(iv) in determining whether a statement is inherently trustworthy, the court can consider the circumstances in which it was made and evidence that corroborates or conflicts with the statement;

(v) procedural reliability and substantive reliability may work in tandem, are not mutually exclusive and factors relevant to one can compliment the other; and

(vi) threshold reliability concerns admissibility while ultimate reliability involves reliance.

See, also: Children’s Aid Society of Toronto v. G.S., 2018 ONCJ 124, at para. 16.

[246] A non-exhaustive list of factors to consider with respect to out-of-court statements of children are:

(i) reliability of the statement maker and of the witness relaying the statement to the court; and

(ii) the circumstances of the child, including whether the child has a motive to fabricate, the age of the child, the cognitive ability of the child and the contents and context of the statement.

See: Ward v. Swan (2009), 2009 CanLII 22551 (ON SC), 95 O.R. (3d) 475 (Ont. S.C.J.)

[247] Blackmore, supra, is an example of admission of children’s statements where such were repeated to the court not only by the parties but also be teachers, school administrators, Society workers and the clinical investigator. The non-party witnesses were all professionals who work with children and were required to make accurate notes. The children’s statements were also consistent over time and place.

[248] Children’s statements have been rejected on the basis of unreliability when presented by persons with an interest in the litigation, were inconsistent or arose in suspicious circumstances having regard to very young children. See, for example, V.L.M. v. M.M.R., 2018 ONCJ 637; and Brooks v. Brooks, 2017 ONSC 1806.

[249] Lastly, even if the statements are prima facie admissible, the court retains the discretion to exclude evidence when its prejudicial effect outweighs its probative value, having regard to the effect of its admission on the children and their best interests. See: O.C.L. v. I.P.C., supra.

(h) Positions of the Parties

[250] Mother seeks to present the evidence of the two counsellors regarding statements made by the children. She says the purpose is to allow the children’s voices to be heard as to their views and preferences. Mother submits the children are capable and the criteria for admission have been met.

[251] Father opposes admission of the evidence. He refers to the discussion between the children and Mr. Barber regarding confidentiality. The children, father argues, are not old enough to process information, nor are they capable of understanding. The principal objection by father is with what he describes as influence by mother.

[252] Mr. Ross and Ms. Wisnicki declined to take a position on the ultimate issue of admissibility. They described a limited retainer to determine what the children wanted to do and to assist the court by presenting the relevant legal principles. As they had not been involved in the trial, nor addressed all aspects of the case, they were unable to determine if the statements made by the children were true or whether they ought be admitted in evidence.

(i) Analysis

[253] As seen in the caselaw, there is a reluctance to allow disclosure of children’s statements made during counselling sessions. However, there are two unique features in this case, namely:

(a) disclosure has already occurred; and

(b) the children do not oppose their statements being presented in evidence.

[254] Children’s records are more appropriately addressed at the production stage. This did not occur as the owners of the counselling agency did not respond to the motion for disclosure. It also appears the parties, one of whom being represented by counsel at the time, did not provide the motion’s judge with the relevant legal principles.

[255] In my view, counsellors have a professional obligation, and a duty to the child client, to participate in the court process in some fashion. They ought to have opposed the request for production, as counsellors have done in other cases, or, at least, informed the court as to their concerns having regard to their policy for privacy and confidentiality. This policy, being consistent with the standards set by their professional association, applies even though counselling services had been discontinued.

[256] As with many other aspects of this case, the children know their parents have copies of their private counselling sessions. Yet, they are not opposed to those statements being presented in court.

[257] Children’s rights, in my view, have not been consistently recognized or enforced. Their rights deserve the same consideration as adults, having regard to the principles set out in the Canadian Charter of Rights and Freedoms. Indeed, there is a heightened interest in protecting children’s rights due to their vulnerable status in legal proceedings.

[258] Children have the right to be heard and to have their views and preferences considered. They also have the right to privacy and to have such protected by the court. In some cases, conflict may develop between their respective rights, particularly when, as here, they want to be heard and are prepared to waive their privacy concerns. I will return to this topic.

[259] On my review of the evidence, the first, second and third requirement in the Wigmore test were met. Counselling for the children was meant to be therapeutic, to address problems created by their parents, to learn to cope with a situation they cannot control and to overcome the damage inflicted on them. The children were encouraged to express their personal thoughts. In so doing, counsellors would inform the children that they had a safe place to talk and that what was discussed would not be revealed to their parents or others. To ignore this inherent privacy right would, in all likelihood, impact on future discussions. To allow statements made in private by these children to be reviewed by others could have a negative effect for other children in other cases.

[260] I would also have been inclined to further conclude the fourth requirement in the Wigmore test was also met, that the children’s privacy rights outweighed the mother’s fair trial interests.

[261] The Khan test is more readily addressed. As in other cases, I find necessity is made out for the simple reason these children will not be testifying in this trial. As to reliability, I make the following findings:

(a) the children were nine years of age when this issue arose;

(b) they are at least of average cognitive development;

(c) they are well aware of their parents’ conflict;

(d) they have been consistent in voicing their concerns and their views and preferences since 2015, six years ago, when first interviewed in this case by Dr. Jaffe;

(e) both parties have attempted to influence the children; and

(f) there is insufficient evidence to conclude the statements made by the children to the counsellors was the result of influence by one parent.

[262] As hereafter discussed, the children have been waiting eight years for a decision and they want to be heard.

[263] Hence, I conclude the Khan test has been met. While there are always dangers with out-of-court statements, such can be addressed in cross-examination of the counsellors, just as occurred with the cross-examination of Mr. To. These are experienced counsellors who have recorded the children’s comments according to their professional standards. The counsellors can also be questioned as to their observations and impressions of the children, a more fulsome manner in addressing influence.

[264] The final issue is with respect to the children’s position as it relates to their privacy rights or privilege under the Wigmore test.

[265] There is no defined age for the ability to provide consent. Every case is fact specific. Children’s rights, including the right to consent or not consent, is independent of any rights of their parents.

[266] Counsel reported the children were capable of saying they were not opposed to the use of their statements. I am satisfied these experienced lawyers were fully able to canvas all the required matters with the children in order to advance that position. Of considerable interest, Mr. To was also satisfied the children were capable of articulating their views and preferences.

[267] In the unique circumstances of this case, I am satisfied the children have the capability to consent, or, as stated by counsel, to not oppose the admission of their statements into evidence. In result, the children are waiving their privacy right that would otherwise be enforced having regard to the Wigmore test.

[268] In result, the evidence as to statements made by the children to the two counsellors may be presented in evidence. I will address ultimate reliability of this evidence in my analysis.

(j) The Counselling Evidence

[269] Sherri Steinberg is a registered social worker, licensed by the College of Social Workers and Social Service Workers. She has a Master’s degree in social work. Ms. Steinberg is employed full time at Wilfrid Laurier University, presently as the acting manager of the counselling team providing services to students. She also has a part tine counselling practice as part of Southern Ontario Counselling Centre.

[270] Ms. Steinberg was contacted by the parties in 2017 regarding counselling services for their children. Information was exchanged. In July 2017, she met with each party separately to discuss goals and expectations. When the parties expressed concerns about the other, Ms. Steinberg advised her role would be to focus on the children and that she would not address the parents’ concerns unless raised by the children. Consent forms were signed that month. Sessions were booked. Only three took place.

[271] The sessions on August 2, September 9 and September 20, 2017 were essentially introductory in nature. T.L.B.L. was present with the children on each occasion, W.L. also present on the first two sessions. Ms. Steinberg advised she typically has parent(s) present until the children are comfortable being on their own.

[272] Ms. Steinberg spoke of using various resources, such as toys or activities, to assist the children in identifying emotions and then as to how to manage the same. She referred to A.M. as being comfortable, focused and engaging in the sessions from the outset. L.M. was more shy and reluctant to engage, clinging to his mother.

[273] On the second and third sessions, Ms. Steinberg met privately with A.M. to discuss a drawing the child presented. A.M. had described it as a tornado that killed bad people, like her father, on the second session. Ms. Steinberg reported trying to understand what the child was trying to say. At a further discussion on the third session, A.M. was able to express her feelings, according to Ms. Steinberg, and saying she would not want to see her father killed.

[274] Other matters were briefly explored in these sessions. More topics would have been planned had the sessions continued.

[275] Unfortunately, father withdrew his consent to Ms. Steinberg providing counselling services on September 21, 2017. He did so purportedly on the basis Ms. Steinberg was not a “specialist” as described in the correspondence from Family and Children’s Services dated July 7, 2017 and referred to previously. There is no such designation of a “specialist” by the College. Father did not have a replacement plan arranged, or even contemplated, at the time consent was withdrawn. Almost two years would go by without counselling.

[276] Ms. Steinberg was well qualified to provide counselling services for these children. She had experience in conflict cases. Mr. To commented positively on Ms. Steinberg’s ability. Three sessions were only the beginning, yet it appeared there were some positive developments, particularly with A.M.

[277] A consent order was granted on April 23, 2019 directing the parties to jointly retain counselling services of Calming Tree. Of interest, the order was granted at the settlement conference.

[278] Jeffrey Barber is also a registered social worker, licensed by the College of Social Workers and Social Service Workers and has a Master’s degree in social work. Mr. Barber is employed at Calming Tree Counselling. He provided counselling services for the children from May 2019 to April 2020.

[279] Calming Tree Counselling requires parents to complete an intake form, the purpose being to identify what they say are the needs of the child with respect to counselling. In these intake forms, the parties provided additional and unnecessary information pertaining to their dispute, including editorial comment. T.E.M., in particular, provided inflammatory commentary regarding mental health issues of mother’s family and with respect to conception of the children. These comments were appropriately ignored by Mr. Barber. As he said, the focus of counselling was for the children’s issues and the parents’ information regarding their dispute was not relevant.

[280] Mr. Barber met with the children separately, save for one occasion when a session was arranged for father and both A.M. and L.M. Mr. Barber made notes during the sessions, later preparing a summary for each child’s chart.

[281] In questioning Mr. Barber, the parties had him refer to his summary for each session. For my purposes, it is only necessary to provide a summary. In so doing, it is important to recognize that counselling sessions are meant to be driven by comments from the children. Mr. Barber used a variety of resources to assist the children open up to discuss their feelings and concerns, including games, art, puppets and play. Once the children expressed a concern, Mr. Barber would provide assistance and guidance.

[282] There is a pattern in what the children brought up or said in sessions with Mr. Barber, including the following:

(a) they referred to their father by his first name;

(b) they enjoyed time at their mother’s home, less so at their father’s, with reference to different rules, being bored or not liking activities he chose;

(c) sibling conflict arose from time to time;

(d) some concerns expressed about school, primarily with respect to behavioural problems of L.M.;

(e) they were concerned father would join in the sessions or be made aware of their comments;

(f) on several occasions, comments were made that father lies a lot or does not do things he had promised;

(g) they referred to father yelling and swearing;

(h) bad dreams were mentioned several times;

(i) they spoke of their anger;

(j) they enjoyed some activities with father, such as the vacation to Prince Edward Island or playing street hockey; and

(k) they missed seeing friends due to the COVID-19 pandemic.

[283] On one occasion, March 4, 2020, A.M. disclosed being hit by father but was inconsistent in providing detail to Mr. Barber. As required by statute, Mr. Barber reported the comments to Family and Children’s Services.

[284] The children also made reference to comments made by their parents. Mother is said to have told them their father lies a lot and that he said mean things to her. Father is also said to have told them mother lies a lot. On March 4, 2020, A.M. also reported mother telling her that if she told Jeff stuff he could help and that he would tell the judge and they could then stay with her.

[285] The family session with T.E.M. and the children occurred on April 18, 2020. The session was recommended by Mr. Barber to address concerns father had expressed. The focus of the meeting was on more “peace” in father’s home. During this event, L.M. sat on his father’s lap. He made some comments. A.M. would not participate.

[286] When the children made comments as above, Mr. Barber would attempt to engage them in further discussion and then respond, such as:

(a) explaining there are differences between two households, including rules and expectations;

(b) encourage ideas of fun things to do at each parent’s house;

(c) how to handle conflict and who to go to for support;

(d) talk about respect and what it means;

(e) encourage getting along with others and compromising; and

(f) develop techniques to deal with anger.

[287] The children informed mother about the family session with father after it occurred on April 18, 2020. She contacted Mr. Barber and the owners of Calming Tree to express her concern. Neither of the parties or their lawyers had provided Calming Tree with a copy of the aforementioned order. As a result of mother’s comments, the owners were concerned a conflict of interest had developed. They terminated services to the children.

[288] What is clear from the counselling notes is that the children were having difficulties dealing with their parents’ conflict. I previously referred to the reference by Dr. O’Brien regarding stress causing bowel problems. In counselling, anger was a common complaint. Bad dreams were mentioned several times. These items are a response to their parents’ conflict.

[289] In addition, the children’s comments confirmed other evidence at trial regarding different parenting styles, routines, rules and expectations. This inconsistency is troubling and confusing for children. Mr. Barber attempted to assist the children in developing coping strategies to deal with these unnecessary differences. Children need consistent parenting in each home.

[290] Counselling takes time to produce results. Mr. Barber was achieving some success in providing the children with the skills to cope and manage emotions. Much more work was required. Unfortunately, the counselling services provided by Mr. Barber were terminated. There would be further delay before other counsellors were retained.

[291] Qualia Counselling has been providing services for the children since the order granted by MacLeod J. on August 3, 2021. Both parties reported being satisfied with the counselling services and their intent to continue with this agency.

(t) Incomes and Employment

[292] The income and employment of the parties are of obvious importance given the competing support claims, past and future. Both seek to impute income to the other.

[293] Historical incomes, pre-separation, help set a benchmark. However, in so doing it appears there was some income splitting, not unusual in that the parties’ incomes came from the same source. Income also declined.

[294] The following chart sets out their respective Line 150 incomes to the date of separation:

T.L.B.L. T.E.M.

2007 $200,633 $131,392

2008 $191,902 $133,558

2009 $138,986 $130,428

2010 $ 95,006 $133,485

2011 $ 66,582 $100,327

2012 $ 79,684 $ 61,267

2013 $ 99,933 $ 74,875

[295] T.L.B.L. complains as to T.E.M. writing cheques to himself in 2013, recorded as draws to her. Regardless, the funds were used for family expenses.

[296] The income decline results from time away from the veterinary practice by T.L.B.L. due to fertility clinic appointments, subsequent pregnancy, childbirth, and maternity leave.

[297] Post-separation incomes show an even more dramatic decline for both parties. Registered Retirement Savings Plan withdrawals were needed to pay for legal fees and for family expenses. T.E.M. experienced difficulty finding replacement income. The following chart sets out their respective Line 150 post-separation incomes.

T.L.B.L. T.E.M.

Income RRSP Income RRSP

2014 $147,040 $155,678 $133,071 $133,071

2015 $ 99,978 $ 31,428 $156,529 $116,405

2016 $ 46,916 $ 21,428 $ 0.00

2017 $ 60,095 $ 24,566 $ 24,566

2018 $ 64,462 $ 10,000 $ 3,706

2019 $ 55,246 $ 24,917

2020 $ 65,789 $ 74,475

[298] T.L.B.L. anticipates her income in future will be comparable to 2020. No doubt, her income could rise to the level in 2007 to 2009 if she was prepared to make the time commitment. T.L.B.L. reports on a decision regarding her working hours as reflecting balance with family commitments. Nevertheless, there should be some increase in income as time spent on this case will no longer be required.

[299] T.E.M.’s last employment ended in November 2020. He was approved for employment insurance payments in March 2021, ending in March 2022. The weekly benefit is $595.00 or $30,940.00 per annum.

[300] The employment record of T.E.M. post-separation is concerning. Over the past eight years, he has worked for approximately two. T.E.M. created a consulting business in 2018, earning modest income in that year and in 2019. The business does not have any ongoing contracts. T.E.M. has taught online courses for Olds College, earning up to $6,000.00 yearly.

[301] T.E.M. was employed in his field as a regional manager for Arbutus Management in 2020. The Record of Employment states the reason being “dismissal”. However, the termination letter, dated December 3, 2020, says such was on a “without cause basis”.

[302] Veterinary services is a growth industry. T.E.M. acknowledged there is a high demand for veterinarians and support staff. Yet he has not been successful in obtaining employment. T.E.M. referred to numerous job postings, presented in evidence by both parties, and applications submitted. He also reported the job search including other fields for which he is qualified. The lack of employment is of concern. However, with the litigation now at an end, it is expected T.E.M. will find employment.

[303] Prior to separation, the parties enjoyed financial success. Their only debt was a mortgage secured on the cottage property and the line of credit registered against the family residence. They also had considerable savings. This litigation and declining incomes since separation has led to financial catastrophe. Both parties have incurred significant debt.

(u) Civil Action

[304] During their argument on December 30, 2013, T.L.B.L. informed T.E.M. he was fired from his position as administrator/manager at her veterinary practice. A civil action for wrongful dismissal followed.

[305] A statement of claim was issued on behalf of T.E.M. on April 11, 2014. The following relief was sought against T.L.B.L.:

1. The plaintiff claims:

(a) a declaration that he was wrongfully dismissed from his employment;

(b) the sum of $250,000 in lieu of the provision of advance written notice of dismissal;

(c) an order for the recovery of possession of personal property that is unlawfully detained by the defendant in accordance with s. 104 of the Courts of Justice Act, R.S.O. 1990, c.C.43;

(d) payment of the statutory termination pay plus vacation pay thereon and severance pay, and payment of damages in lieu of benefit continuation to which the plaintiff is entitled under the Ontario Employment Standards Act, 2000, S.O. 2000, c.41;

(e) payment of unpaid wages in the amount of $17,000 in unpaid wages for 2013 and $33,000 for 2012 interest thereon;

(f) damages in the amount of $100,000 on account of punitive, aggravated and exemplary damages;

(g) reimbursement for expenses incurred in attempting to secure other employment in the amount of $10,000;

(h) the costs of this action on a substantial indemnity basis, plus applicable taxes thereon;

(i) pre-judgment and post-judgment interest pursuant to the rates prescribed in the Courts of Justice Act R.S.O. 1990, c.C.43; and

(j) such further and other relief as this Honourable Court deems just.

[306] Of particular interest are the allegations presented in the following paragraphs:

5. The Plaintiff states that he was terminated from his employment on or about December 29, 2013 by the Defendant who unilaterally terminated him after assaulting him. The Defendant has been arrested and criminally charged in relation to this assault.

6. The Plaintiff states that he was employed as Hospital Administrator at [the veterinary practice] from 1998 to December 29, 2013. The Plaintiff states that he left his employment at TD Waterhouse to take on the Hospital Administrator position in 1998. The Plaintiff further states that he was involved in the planning and development of the business since in or about 1996. During the course of almost sixteen (16) years of employment, he maintained a positive record of performance and the revenue of [the veterinary clinic] significantly increased under his administration. The Plaintiff states that his role as Administrator was of significant responsibility including financial, human resources, and day to day operation of a non medical nature to free the Defendant to perform veterinary services.

7. The Plaintiff states that his income for 2013 was $88,031 of which $17,000 remains unpaid. The Plaintiff states that prior years income ranged and from 2007 to 2010 he earned just over $130,000 per year; 2011 $100,000; 2012 $61,267 of which $33,000 remains unpaid. The Plaintiff states that his income varied to assist in the business due to times of poor cash flow and following reduced hours and resulting income for the business when the Defendant worked part time only for several years with the intention to return his income to the prior levels. The Plaintiff states he expected to earn above $100,000 in 2014.

8. The Plaintiff states the [sic] is currently without income and the Defendant has failed to issue his Record of Employment despite having several months to do so.

9. The Plaintiff states that the Defendant has repeatedly threatened his reputation advising that she would seek to ruin his reputation within the veterinary community thus impairing the Plaintiff’s ability to mitigate his loss through alternate employment in his field. The Plaintiff further states that the Defendant has spoken negatively of the Plaintiff to current and former [veterinary practice] employees, industry representatives, local veterinarians and [veterinary practice] clients which actions harm the ability of the Plaintiff to mitigate his loss and impair his professional reputation. The Plaintiff states that the Defendant has set on a course of action designed to destroy his career and ability to obtain new employment.

10. The Plaintiff states that the Defendant terminated his employment without just cause.

11. The Plaintiff states that it was an implied term of his employment relationship with the Defendant that, in the absence of just cause, the Defendant could not terminate his employment without proper advanced notice of termination, or pay in lieu thereof, calculated having regard to his age, significant length of service, significant job responsibilities and remuneration, among other factors.

[307] The statement of defence was dated October 8, 2014. T.L.B.L. denied the allegations in the statement of claim and asserted termination was for cause. The following paragraphs are of interest:

6. The Plaintiff was verbally and physically abusive to [T.L.B.L.] and was belittling and condescending. The Plaintiff harassed [T.L.B.L.], and other staff members continually.

7. Throughout his employment, the Plaintiff worked as the Hospital Manager and had a number of tasks, including payroll, accounting, making remittances on behalf of employees and to CRA. Moreover, he was responsible for paying invoices and dealing with suppliers. The Plaintiff assigned to himself the title Hospital Administrator and assumed tasks, including inventory, setting fees, human resources, marketing and general maintenance.

8. In or about April 2013 [T.L.B.L.] became aware that tax returns for the business had not been filed for the years between 2010 and 2013. The Canada Revenue Agency indicated it was levying significant penalties for late filing. [T.L.B.L.] instructed the Plaintiff that he was required to keep his accounting up to date, reconcile the accounts monthly and to make remittances to CRA and on behalf of employees in a timely manner. In or about December 2013, [T.L.B.L.] learned that the monthly account statements and reconciliations had not been done for some time, contrary to the instructions she had given the Plaintiff in 2013.

9. In or about October 2013, an employee of [T.L.B.L.] resigned over difficulties she was experiencing with the Plaintiff. [T.L.B.L.] received notice from the Employment Standards Branch and the Ministry of Labour that no Record of Employment (ROE) or final pay for the departing employee had been issued. [T.L.B.L.] told the Plaintiff that he was required to provide an ROE to the employee and any wages due and owing. The Plaintiff said he would take care of the matter. [T.L.B.L.] was treated in a hostile and abusive manner at this time and any time she attempted to supervise the activities of the Plaintiff.

10. [T.L.B.L.] learned in December 2013 that the employee who resigned in or about October 2013 still had not received payment of wages or a Record of Employment saying he would. The Plaintiff had simply not complied with [T.L.B.L.]’s instructions that the employee be provided with an ROE and outstanding pay.

11. [T.L.B.L.] further learned in December 2013 that another departing employee had not received an ROE and wages due and outstanding and had made a complaint to the Ministry of Labour. In January 2014, [T.L.B.L.] while seeking to rectify the outstanding monies with the two employees, learned that one of the employees had received a cheque in January 2014 for her final pay, dated mid-December 2013. It appears the cheque was created after the termination of the Plaintiff and sent after his termination, but backdated to mid-December.

12. At the time of his termination, the Plaintiff was the subject of a complaint to the Veterinary College by another veterinary clinic, which complaint was directed towards the conduct and harassment by the Plaintiff of the clinic’s personnel. The veterinary clinic raises significant issues regarding the Plaintiff’s conduct. Despite being a Certified Veterinary Practice Manager, the Plaintiff was not acting in an appropriate and professional manner with other veterinary clinics, employees and clients. The complaint was withdrawn by the complaining veterinary clinic upon learning that the Plaintiff was no longer working at [the veterinary practice] because the complaint was limited to the conduct of the Plaintiff.

13. After his termination, [T.L.B.L.] found a number of discrepancies in withdrawals made by the Plaintiff without authorization, consent or knowledge of [T.L.B.L.]. The Plaintiff made a series of cheques payable to himself with the notation “[T.] draw” in various amounts while employed at [the veterinary practice]. These amounts were in addition to the Plaintiff’s regular wages and deposited into his personal account for his own benefit.

14. Subsequent to termination, the Plaintiff wrote cheques, including a cheque in the amount of $6,000.00 for his own benefit from the business account. The cheque is noted as “[T.] draw,” but was paid directly into the Plaintiff’s personal account. This cheque was made without authorization, consent or knowledge of [T.L.B.L.] and for an improper purpose. The Plaintiff at the same time paid himself wages which were not due and outstanding.

15. The Plaintiff alleges underpayment of wages for 2012 and 2013. The Plaintiff was solely responsible for directing payments to himself. He was paid on a salary basis. [T.L.B.L.] denies there was any underpayment and states that the Plaintiff was paid for the hours he worked.

16. After termination, [T.L.B.L.] learned that the Plaintiff had not been making statutory deductions for EI, CPP or other required deductions from his own wages, although he was an employee. The Plaintiff was solely responsible for employee remittances.

17. [T.L.B.L.] attempted to issue an ROE to the Plaintiff shortly after his termination. However, the Plaintiff took control of the business’ online information and blocked the Defendant [T.L.B.L.] access to the account with ServiceCanada. [T.L.B.L.] was required to obtain from Service Canada new authorization and account information to issue ROEs. An ROE for the Plaintiff was not issued given that it was determined that he had not been making EI or CPP deductions and was a non-arm’s length employee who did not remit or was exempt from EI and CPP deductions.

18. The Plaintiff harassed a number of employees, competing veterinary clinics, and clients. The Plaintiff routinely yelled at [T.L.B.L.] in the workplace and was insubordinate. The Plaintiff created a toxic environment and had confrontations with industry representatives, other businesses and suppliers, negatively affecting the reputation of [T.L.B.L.].

19. The Plaintiff removed most of the business records of the clinic and other business property. Some records have been returned, though many records and other property have not been returned.

20. The Plaintiff’s conduct, at all times, was not commensurate with the appropriate care, nature and professional manner expected of an administrator or general staff working in an animal hospital setting.

21. [T.L.B.L.] denies that she wrongfully terminated the Plaintiff’s employment. [T.L.B.L.] pleads she had cause to terminate the Plaintiff’s employment on the grounds of poor performance, insubordination, inappropriate conduct with other employees, suppliers, clients and with [T.L.B.L.]. [T.L.B.L.] also relies on acquired cause as earlier pleaded.

22. The Plaintiff also withdrew funds without authorization or knowledge or consent of [T.L.B.L.] for unknown purposes and for his own use.

23. [T.L.B.L.] specifically denies that she has made negative statements to other employees, industry representatives, other veterinarians and to her clients regarding the Plaintiff and puts the Plaintiff to the strict proof thereof.

[308] In his reply, dated October 22, 2014, T.E.M. made the following allegations:

3. [T.E.M.] denies that he assigned himself the title of Hospital Administrator as alleged at paragraph 7 of the Statement of Defence. [T.E.M.] states that in September 2006 his title was changed to Hospital Administrator following the release of standardized job titles and descriptions developed by the Veterinary Hospital Managers Association and adopted by the Ontario Veterinary Medical Association. [T.E.M.] further states that [T.L.B.L.] advertised that he was the Hospital Administrator and co-founder of [the veterinary practice].

4. [T.E.M.] denies that he was verbally or physically abusive towards [T.L.B.L.] or that he harassed [T.L.B.L.], other staff members or clients as alleged at paragraph 6, the last sentence of paragraph 9 and paragraph 18 of the Statement of Defence. There are no material facts pled to support these allegations; [T.E.M.] states that these paragraphs disclose no reasonable defence, are unnecessary, scandalous, frivolous and/or vexatious; these paragraphs may prejudice, embarrass, or delay the fair trial or hearing of this action and ought to be struck.

5. At paragraph 8, [T.L.B.L.] alleges that [T.E.M.] did not file tax returns for the years 2010 to 2013 and as a result, Canada Revenue Agency imposed significant penalties for late filing. [T.E.M.] states that the 2013 tax returns were due to be filed by June 2014, after his termination.

6. With respect to the 2010 to 2012 tax returns, [T.E.M.] acknowledged that the tax returns for these years were filed late, which [T.L.B.L.] was aware of. [T.E.M.] states that when [T.L.B.L.] returned to work, he stayed at home to look after their children and worked on [the veterinary practice] business in the evenings. While things did get behind, [T.E.M.] states that he consulted their accountant and he made sufficient quarterly tax instalments until he caught up on book keeping as advised by their accountant. [T.E.M.] states that [T.L.B.L.] was in a net credit position and received a tax refund, not a penalty.

7. Contrary to allegation at paragraph 19, [T.E.M.] states that for security and space reasons only the current year’s business records were stored onsite at [the veterinary practice]; for the past 16 years past business records have been stored in bankers’ boxes in the basement of the matrimonial home. Over 200 boxes were returned to [T.L.B.L.] in March 2014 and [T.E.M.] has not received notification of any missing records.

8. [T.E.M.] denies that the complaint to the OVC was related only to his conduct. There was two issues in the complaint, one being [T.L.B.L.]’s failure to send records to other veterinarians in a timely manner. [T.E.M.] acknowledges that the second part of the complaint did relate to his alleged conduct during a phone conversation with [another veterinarian] which was not dealt with after his termination from [the veterinary practice].

9. [T.E.M.] strenuously denies that he made improper withdrawals without the consent of [T.L.B.L.] as alleged at paragraphs 13 and 14, or that these withdrawals were in breach of his employment obligations. [T.E.M.] states that it was common practice for him to write cheques to himself, which were recorded as a draw from [T.L.B.L.] as it avoided writing multiple cheques from the [veterinary practice] account to other joint or personal accounts, which were used to cover household and other expenses.

10. [T.E.M.] states that he is a cancer survivor and he developed gynecomastia, which left him with pain in his chest and lob-sided on his right chest. Contrary to the allegation at paragraph 14, [T.E.M.] states that [T.L.B.L.] authorized the sum of $6,000.00 to be paid to him to cover a surgery to correct this condition that was not covered by OHIP. [T.E.M.] states he paid for the surgery on his Visa on November 25, 2013 in the sum of $6,068.38.

11. [T.E.M] denies that he was paid on a salary basis as alleged at paragraph 15 of the Statement of Defence. [T.E.M.] repeats and relies on paragraph 7 of the Statement of Claim.

12. Contrary to the allegation at paragraph 16, [T.E.M.] states that [T.L.B.L.] was aware that he made deductions from his pay towards the Canada Pension Plan, but that he did not make deductions for Employment Insurance as it was understood that they owned the business together.

13. [T.E.M.] denies that he blocked [T.L.B.L.] access to her account with ServiceCanada as alleged at paragraph 17. [T.E.M.] states that the [veterinary practice] is in her name and she is the controller of the account. [T.L.B.L.] granted [T.E.M.] primary officer rights several years ago, but she is the ultimate account holder and [T.E.M.] has no authority to block her access to the account.

14. Contrary to the allegations at paragraphs 9, 10 and 11, [T.E.M.] states that two employees made complaints to the MOL for unpaid wages in 2013. Each complaint involved employees who worked for [the veterinary practice] for less than two weeks and the complaints were filed after each employee had cashed their final paycheques. [T.E.M.] states that each complaint was a nuisance filing and immediately closed.

15. [T.E.M.] states that the allegations of cause in the statement of defence were known or ought to have been known to [T.L.B.L.] prior to his termination, but at no time did [T.L.B.L.] advise him that his employment was being terminated for cause. The first time this allegation was raised was in [T.L.B.L.]’s Statement of Defence.

16. [T.E.M.] denies that [T.L.B.L.] had just cause or after acquired cause for the termination of his employment.

17. [T.E.M.] states that he regularly met with [T.L.B.L.] and [veterinary practice] staff. [T.E.M.] states that, at no time, was he advised, or have reason to believe that his performance was insufficient, that he acted contrary to the interests of the [T.L.B.L.], without the authority of [T.L.B.L.], or otherwise advised that his employment was in jeopardy.

[309] I have made extensive reference to the pleadings given the interconnection with this family law case, and, as well, the evidence presented at trial.

[310] On August 29, 2018, a consent order was granted directing both actions be pre-tried and tried together. A combined pre-trial settlement conference was held on April 23, 2019. The civil action settled during or shortly after that event.

[311] By minutes of settlement, the parties agreed to the following terms:

(a) T.L.B.L. to pay T.E.M. “$95,000.00 in Notice, less statutory deductions”; and

(b) the settlement payment was to be a credit to T.E.M. in the family law proceeding.

[312] The parties neglected to address quantification of the statutory deductions in evidence. Prior to submissions, I directed them to consult with their accountants and attempt to resolve this item, failing which leave would be granted to present further evidence. Subsequently, the parties agreed to the following calculations:

(i) settlement amount $95,000.00

(ii) C.P.P. $ 3,166.45

(iii) E.I. $ 889.54

(iv) income tax $42,750.00

(v) net credit to T.E.M. $48,194.01

[313] T.L.B.L. will be required to remit the deductions to Canada Revenue Agency. In addition, she will also pay the employer’s portion of C.P.P., $3,166.45, and E.I., $1,245.36, for a total amount of $51,217.80.

[314] The aforementioned pleadings, and settlement, raise two other issues. T.E.M. claimed he was wrongfully terminated from his position. T.L.B.L. plead termination was for cause. In this family law case, T.L.B.L. presented evidence regarding what she described as financial abuse, or perhaps financial mismanagement. She identified work not performed by T.E.M., such as late income tax penalties, and payments from the business to T.E.M. but recorded as draws to her. Her evidence reflects matters set out in her statement of defence above.

[315] As such, issue estoppel applies. The allegations and evidence were properly part of the civil action. Having settled that claim, particularly on the basis of payment for notice, recognized as now a without cause termination, she cannot make the same claim in this proceeding. Hence, I have not addressed her evidence on this topic to any great extent.

[316] The pleadings and settlement create a further issue. T.E.M. sued in his capacity as a former employee. Yet at trial he said there was an oral agreement for equal ownership of the veterinary practice, despite not having made that claim in his answer. He cannot be an employee and a partner. Not having raised the issue of ownership in the civil action, he cannot now advance that claim in this action. Such inconsistency will not be allowed.

(v) Other Matters

[317] There are two other relatively minor matters, neither of which was claimed in the application or answer:

(i) T.L.B.L.’s personal items in family residence;

(ii) T.E.M.’s compensation request for the dogs.

[318] The consent order granted on March 9, 2015 directed T.E.M. to return the personal property described in an attached schedule to T.L.B.L. Most were. T.L.B.L. requests delivery of the remaining items, said to be:

(a) artwork of her father, save an original watercolour painting he gifted to T.E.M. of a swamp scene;

(b) teapot collection gifted to her by her grandmother;

(c) two cat statutes made in Bali;

(d) two iguana tanks;

(e) any other items deemed to be hers, including kayaking and scuba gear, Christmas keepsakes, photographs, books and baby items stored as keepsakes.

[319] T.E.M.’s response was:

(a) artwork was a gift to both but will return the three remaining items;

(b) photographs were previously delivered;

(c) does not have teapot collection;

(d) he purchased the cat statues;

(e) iguana tanks were sold years ago;

(f) does not have her kayaking and scuba gear; and

(g) unsure what she wants regarding Christmas keepsakes, books and baby items.

[320] This matter should have been addressed after the order was granted, not six years later at trial. I can only grant the following order on this limited and disputed evidence and only because there was a prior order, namely:

(i) T.E.M. will package the following items:

(a) the remaining artwork of her father, save the one gifted to him;

(b) one cat statue (his choice);

(c) one-half of the Christmas decorations and keepsakes, photographs, books and baby items,

such to be completed by January 7, 2022;

(ii) T.E.M. will notify T.L.B.L. by email when the packages are ready for pick-up;

(iii) T.L.B.L. will notify T.E.M. thereafter who she has designated to pick up the items;

(iv) the pick-up date and time to be arranged by email and to occur by January 14, 2022 at the latest.

[321] The parties had two pet Husky dogs. There was a dispute as to ownership although the contracts were in both names. The consent order granted on March 17, 2014 directed the exchange of the dogs with the children on the weekends. Subsequently, T.L.B.L. decided not to comply with the order, purportedly on concerns regarding their health and treatment when in the care of T.E.M. T.E.M. took no steps to enforce the order. One of the dogs later died. T.E.M. acquired his own Husky dog. He now seeks compensation for one of the two original dogs, namely $1,000.00. The request is rejected, given the total circumstances in this case and my subsequent determination on the property issues.

F. Analysis

[322] The analysis is restricted to the issues requiring determination. The underlying dispute between the parties, and other issues raised are beyond the ability of the court to resolve.

[323] The manner in which evidence was presented makes the analysis more difficult than it should be. The animosity between the parties influenced their testimony. Each party was of the belief in the correctness his or her actions and critical of the other’s conduct on every topic. Neither could acknowledge even the most basic of matters. Hence, I conclude neither party was particularly credible, and efforts were made to consider other evidence where possible.

(a) Parenting

[324] The dominant feature with respect to the evidence regarding the parenting of A.M. and L.M. was the conflict between the parents. This was one of the highest conflict cases imaginable. This litigation was conducted in a manner resembling combat. Every topic or event involved disagreement. They cannot speak to each other in a civil manner. Their written communications are routinely critical of the other. With the level of hostility that still exists, I see no possible hope or expectation such will change in the future.

[325] The parties’ perception as to the best interests of their children are clouded by their conflict and the need to succeed. Over the past eight years, the children have become collateral damage to the combat.

[326] Yet, as observed by Dr. Jaffe, in 2015, and Mr. To, in 2018, the children have a bond with each parent. They enjoy time in the two homes and most of the activities arranged by each parent.

[327] I am satisfied each of the parties has the ability to care for the children independently. The issue in this case is whether they can parent A.M. and L.M. together in some form of joint or shared responsibility.

(i) Legislative Provisions

[328] Sections 24 and 28 of the Children’s Law Reform Act provides:

Best interests of the child

24 (1) In making a parenting order or contact order with respect to a child, the court shall only take into account the best interests of the child in accordance with this section.

Primary consideration

(2) In determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.

Factors

(3) Factors related to the circumstances of a child include,

(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;

(b) the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;

(c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;

(d) the history of care of the child;

(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;

(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;

(g) any plans for the child’s care;

(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;

(i) the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child;

(j) any family violence and its impact on, among other things,

(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and

(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate on issues affecting the child; and

(k) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child.

Factors relating to family violence

(4) In considering the impact of any family violence under clause (3) (j), the court shall take into account,

(a) the nature, seriousness and frequency of the family violence and when it occurred;

(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;

(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;

(d) the physical, emotional and psychological harm or risk of harm to the child;

(e) any compromise to the safety of the child or other family member;

(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;

(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve the person’s ability to care for and meet the needs of the child; and

(h) any other relevant factor.

Past conduct

(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person, unless the conduct is relevant to the exercise of the person’s decision-making responsibility, parenting time or contact with respect to the child.

Allocation of parenting time

(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of the child.

Application to related orders

(7) This section applies with respect to interim parenting orders and contact orders, and to variations of parenting orders and contact orders or interim parenting orders and contact orders.

28. PARENTING ORDERS AND CONTACT ORDERS - (1) The court to which an application is made under section 21,

(a) may by order grant,

(i) decision-making responsibility with respect to a child to one or more persons, in the case of an application under clause 21 (1) (a) or subsection 21 (2),

(ii) parenting time with respect to a child to one or more parents of the child, in the case of an application under clause 21 (1) (b), or

(iii) contact with respect to a child to one or more persons other than a parent of the child, in the case of an application under subsection 21 (3);

(b) may by order determine any aspect of the incidents of the right to decision-making responsibility, parenting time or contact, as the case may be, with respect to a child; and

(c) may make any additional order the court considers necessary and proper in the circumstances, including an order,

(i) limiting the duration, frequency, manner or location of contact or communication between any of the parties, or between a party and the child,

(ii) prohibiting a party or other person from engaging in specified conduct in the presence of the child or at any time when the person is responsible for the care of the child,

(iii) prohibiting a party from changing the child’s residence, school or day care facility without the consent of another party or an order of the court,

(iv) prohibiting a party from removing the child from Ontario without the consent of another party or an order of the court,

(v) requiring the delivery, to the court or to a person or body specified by the court, of the child’s passport, the child’s health card within the meaning of the Health Insurance Act or any other document relating to the child that the court may specify,

(vi) requiring a party to give information or to consent to the release of information respecting the child’s well-being, including in relation to the child’s health and education, to another party or other person specified by the court, or

(vii) requiring a party to facilitate communication by the child with another party or other person specified by the court in a manner that is appropriate for the child.

(2) EXCEPTION - If an application is made under section 21 with respect to a child who is the subject of an order made under section 102 of the Child, Youth and Family Services Act, 2017, the court shall treat the application as if it were an application to vary an order made under this section.

(3) SAME - If an order for access to a child was made under Part V of the Child, Youth and Family Services Act, 2017 at the same time as an order for custody of the child was made under section 102 of that Act, the court shall treat an application under section 21 of this Act relating to parenting time or contact with respect to the child as if it were an application to vary an order made under this section.

(4) ALLOCATION OF DECISION-MAKING RESPONSIBILITY - The court may allocate decision-making responsibility with respect to a child, or any aspect of it, to one or more persons.

Allocation of parenting time

(5) ALLOCATION OF PARENTING TIME - The court may allocate parenting time with respect to a child by way of a schedule.

(6) PARENTING TIME, DAY-TO-DAY DECISIONS - Unless the court orders otherwise, a person to whom the court allocates parenting time with respect to a child has exclusive authority during that time to make day-to-day decisions affecting the child.

(7) PARENTING PLAN - The court shall include in a parenting order or contact order any written parenting plan submitted by the parties that contains the elements relating to decision-making responsibility, parenting time or contact to which the parties agree, subject to any changes the court may specify if it considers it to be in the best interests of the child to do so. 2020, c. 25,

(8) RIGHT TO ASK FOR AND RECEIVE INFORMATION - Unless a court orders otherwise, a person to whom decision-making responsibility or parenting time has been granted with respect to a child under a parenting order is entitled to ask for and, subject to any applicable laws, receive information about the child’s well-being, including in relation to the child’s health and education, from,

(a) any other person to whom decision-making responsibility or parenting time has been granted with respect to the child under a parenting order; and

(b) any other person who is likely to have such information.

[329] The above sections came into effect on March 1, 2021 as a result of amendments to the former statute. This case was commenced under the prior regime. Although no transition provisions were set out in the amendments, it is preferable to follow the current legislation. The terminology has changed, and existing principles codified.

(ii) Legal Principles

[330] The starting point in determining parenting issues is to recognize that the focus is on the child, not the parent. The best interests of the child it the only test to consider. See: Young v. Young, 1993 CanLII 34 (SCC), [1993] 4 S.C.R. 3 (S.C.C.); and Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27 (S.C.C.). Section 24 provides a non-exhaustive list of human goods required for the well-being of any child. See: Ojeikere v. Ojeikere, 2018 ONCA 372.

[331] Past conduct and family violence, specifically addressed in section 24 as pertaining to the best interests of the child primarily focus on the child. Parental conduct, however meritorious or reprehensible, does not enter into the analysis unless it relates to the ability of the parent to meet the needs of the child. See: Gordon v. Goertz, supra, at p.47. Misconduct, however, that results in the parents having a negative view or attitude towards each other may necessitate consideration when it affects the emotional well-being of the child. See: Van de Perre v. Edwards, 2001 SCC 60, at para. 23. Family violence may be a relevant consideration, particularly when considering a shared parenting regime, as the victim might be unable to co-parent due to the trauma and ongoing fear of the perpetrator. See, for example, Bell v. Reinhardt, 2021 ONSC 3352, at para. 15.

[332] Maximum conduct, is a principle long part of the Divorce Act and now codified in section 24 (6). Spending time with each parent is the right of the child, not the parent. See: MacGyver v. Richards, (1995) 1995 CanLII 8886 (ON CA), 11 R.F.L. (4th) 432 (Ont. C.A.). The goal of maximum contact will only be overtaken to the extent that contact with a parent conflicts with the child’s best interests. See: Young, supra; and Rigallo v. Rigillo, 2019 ONCA 548. An order granting parenting time on alternate weekends, one week night per week, three in the summer and shared holidays represented “minimal” time that fails to respect the “maximum contact principle” in the absence of any compelling reason to limit parenting time. See: Vamos v. Vamos, 2012 ONCA 262.

[333] For joint decision-making, there must be some historical evidence that, despite their differences, the parents are able to communicate effectively with each other. The fact one parent professes an inability to communicate with the other parent does not mean joint decision-making cannot be considered. The hope communication will improve is not sufficient. The standard of communication is not one of perfection. Rather, there must be a reasonable measure of communication and co-operation. See: Kaplanis v. Kaplanis, 2005 CanLII 1625 (ON CA), [2005] O.J. No. 275 (Ont. C.A.); Lawson v. Lawson, 2006 CanLII 26573 (ON CA), [2006] O.J. No. 3179 (Ont. C.A.); May-Iannizzi v. Iannizzi, 2010 ONCA 519; and Lambert v. Peachman, 2016 ONSC 7443.

[334] Joint decision-making incorporating a parallel parenting regime is a relatively recent development, used to reduce or avoid parental conflict. This regime envisages that the parents have equal status and exercise the rights and responsibilities associated with decision-making independently of the other. See: Kaplanis, supra.

[335] In Jackson v. Jackson, 2017 ONSC 1566, at para. 72, Chappel J. provided a helpful list of factors to be considered, as developed in the caselaw. Briefly stated, those factors include:

(a) Have both parents consistently played a significant role in the child’s life on all levels?

(b) Are the parenting abilities of each parent and the quality of their decision-making relatively the same?

(c) Should there be an equality of influence between the parties?

(d) Is there a power imbalance between the parents resulting from domestic violence?

(e) Is one parent seeking this arrangement solely as a means of controlling the other parent?

(f) Can each parent place the needs of the child above their own needs and interests?

(g) Will it de-escalate the conflict between the parties or inflame it?

(h) Will the conflict between the parents result in an inability to navigate basic issues, such as scheduling or interpretation of the court order where the dividing lines of responsibility are not clear?

(i) Is one parent the major cause of the discord?

(j) Will the parents ever be able to disengage from combat?

(k) Will the parties be able to respect the crafted terms of the order, having regard to compliance with prior orders?

(l) Is one parent interfering with the contact between the child and the other parent or alienating the child from the other parent?

(m) Does the geographic distance between the residences of the parents’ problematic in implementing decisions?

[336] The child’s views and preferences are a factor in the best interests analysis. Their views, particularly those of older children deserve significant weight as, in part, the decision requires the co-operation of the child. See: Kaplanis, supra; and [Maltina v. Maltina, 2018 ONCA 641](https://