K.M. v. J.R., 2022 ONSC 111

COURT FILE NO.: 85/20

DATE: 2022-01-05

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

K.M.

Applicant

– and –

J.R.

Respondent

A. Williams, Counsel for the Applicant

Self-Represented Respondent

HEARD: September 9, 10, 14, 15, 16, 17, 27, 28, 29; October 1; November 3, 4, 5, 9, 10, 12, 22, 23, 24, 25, 26, 30, 2021

JUDGMENT

The honourable mr. justice a. pazaratz

[1] Please, Please, Please...don’t use a police station for parenting exchanges.

[2] If you think mere proximity to the cop shop will make unruly adults behave – or protect children from emotional harm – you should have sat in on any one of the 22 days of this nasty trial.

[3] This was a motion to change a consent final order. Except, clearly the parents never really regarded the order as final. More like an interlude in a never-ending high-conflict war. A strategic pause while they assembled better evidence for inevitable motions and cross-motions.

[4] They love their son and hate each other.

[5] They really love their son.

[6] And really hate each other.

[7] We delude ourselves if we think court orders will ever overcome such powerful and conflicting emotions.

a. All we can really do is try to separate the good from the bad.

b. Promote more opportunities for the love.

c. And eliminate any opportunities for the hate.

[8] But routinely sending combative parents with their anguished children to a police station is an abdication of responsibility.

a. It’s like assembling a bomb every week and driving it to the fire hall.

b. Sure, it’s nice to know first responders will be on the scene if there’s an explosion.

c. But why set the stage for predictable disaster?

d. Wouldn’t it make more sense to defuse the bomb ahead of time? To keep volatile ingredients – volatile parents – as far apart as possible?

[9] The “safety” rationale for police station exchanges is dubious at best.

a. The police aren’t equipped for this type of service. The station is not a child-friendly environment.

b. They don’t know you’re coming.

c. They don’t want you there.

d. They don’t know anything about you, or what to watch for.

e. Generally, they’re so busy with other duties, they may not notice who’s doing what.

f. At any given time, there may not even be a police officer anywhere in sight.

[10] And if we’re choosing a location intended to intimidate adults – what about scaring the kids?

a. By the time high conflict couples make it to family court, their children have already been exposed to far too much chaos and upset.

b. Many have experienced significant family violence (with its recently expanded definition).

c. Painful memories of officers attending their home for family trouble calls may be triggered by the dramatic and hyper-stimulating stationhouse environment (the police cars, the uniforms, the guns, the crackling radios, the commotion, the people in crisis).

d. We can’t undo the unhappiness these children experienced pre-separation. But why perpetuate the trauma by exposing them to more negativity and upset in the strange and frightening environment of a police station lobby?

e. These are emotionally vulnerable children who need rescue from parental conflict. Not a ringside seat.

[11] What message do police station exchanges convey to the innocent child?

a. That the trouble’s not over?

b. That their world isn’t safe yet?

c. That they still need to worry?

d. That someone they love is dangerous or can’t be trusted?

e. That something bad could happen every time their parents meet?

f. That officers with weapons might have to intervene?

g. That one of their parents might get taken away or hurt or punished?

h. That every transition between parents will be anxiety-producing?

i. How is a fragile young mind supposed to process so much upsetting information?

[12] Candidly, far too little thought goes into selecting a police station for pick-ups and drop-offs. It’s a simplistic, convenient default position.

a. It’s an option if you can’t think of anything else.

b. It’s always open. You don’t have to re-arrange your schedule

c. It’s free.

d. It’s quick.

e. There’s no waiting list. It’s available instantly and for as long as you want.

f. There’s no paperwork or pre-arrangement.

g. There’s usually free parking or bus service.

h. It requires little effort and not much parental insight or discipline.

i. It’s open even during the pandemic.

j. It checks off a lot of boxes for adults.

[13] But how is any of this child-focused?

a. We are constantly told that the best interests of the child must always prevail over adult preference and convenience.

b. Why then do we gravitate toward this obviously terrible option, simply because adults lack the creativity or commitment to work at better solutions?

c. Should children suffer just because parents won’t put more effort into solving the problems they created?

[14] As soon as police station exchanges are proposed, the response should be obvious:

a. If the level of conflict is so great that these parents need armed guards to keep the peace, they shouldn’t be having face-to-face contact anywhere.

b. Even if actual misconduct is averted, children who have been exposed to family violence will likely experience heightened anxiety whenever they see their parents together. The presence of police officers isn’t calming. To the contrary, it reinforces the child’s perception of imminent danger.

[15] Why am I starting this judgment with such a strong warning? Because this trial could have been avoided – and a four-year-old boy could have had a much happier life – if only the parents had selected an exchange location better than Hamilton Police Station 30.

THE PEOPLE

[16] This case involves the following people and timelines: (NOTE: To protect children’s privacy, I am using initials for the parents, and pseudonyms for everyone other than professional witnesses).

a. The Applicant mother is 33 years old and resides in Hamilton.

b. The Respondent father is 46 and resides in Brantford.

c. They were married on February 14, 2015.

d. They separated on January 30, 2016.

e. Their only child Carson was born in May 2017 – long after separation. There is controversy about the circumstances of his conception. The mother says she was sexually assaulted. The father says they had consensual relations. I mention this because of how prominently this issue arose in the evidence.

f. They were divorced on June 7, 2018.

g. The father was previously in a relationship with Jennifer who also resides in Brantford. He and Jennifer share custody of their 10 year old son John on a 50-50 basis. Jennifer has two other children.

h. The father’s fiancé is Meg. For a period of time he lived in her Milton residence, but in September 2021 he returned to Brantford. Meg plans to sell her Milton residence and live with the father in Brantford.

i. In June 2019 the mother married her current partner Larry. On October 13, 2021 – during a hiatus in the trial – she gave birth to a child of that relationship Gerald.

j. The Applicant’s mother Clara has also been actively involved.

[17] This oral trial was conducted remotely by Zoom.

a. The mother has at all times been represented by counsel.

b. The father represented himself at trial, although in the past he has generally been represented. He said he had access to legal advice during the trial.

[18] The following people testified:

a. Witness #1: The Mother

b. Witness #2: Police officer April Bilton

c. Witness #3: Child protection worker Kelly Hayhurst

d. Witness #4: The maternal grandmother Clara

e. Witness #5: The mother’s husband Larry

f. Witness #6: Police officer Wendall Leytham

g. Witness #7: Carson’s teacher

h. Witness #8: The Father

i. Witness #9: Police officer Daniel Gaetan

j. Witness #10: The father’s partner Meg

k. Witness #11: Pastor Michael Shaw

[19] In addition, the parties referred to a huge volume of written materials. With few exceptions (irrelevant to the outcome) the admissibility of documents was not disputed. The documentary evidence included:

a. Hundreds of pages of text messages exchanged between the parties using a parenting app called AppClose.

b. Police records from Hamilton, Halton and Brantford.

c. Numerous pages of records and case notes from the Children’s Aid Society of Hamilton (“CAS”, “the Society”).

d. A private investigator’s report.

e. Regrettably, a small number of photographs, video recordings and audio recordings involving the child.

[20] The parties’ chronology is fairly straightforward and heightens the legal challenges herein.

a. During their less than a year of cohabitation in Brantford the parties had a highly conflictual relationship. The mother says the father was intimidating and abusive. The father says the mother was aggressive and mentally unstable.

b. Upon separation the mother returned to live with her mother Clara in Hamilton.

c. But the conflict continued after separation, and intensified after Carson was born. There has been significant involvement by CAS (no protection application was ever commenced) and police (no charges were ever laid).

d. Parenting issues were intensively litigated in Brantford. The parties were scheduled for trial in December 2018 but their matter was not reached. While waiting for their re-scheduled trial, through counsel they negotiated a last-minute settlement.

e. On August 16, 2019 Justice Braid made a final order pursuant to comprehensive minutes of settlement. That’s the order both parties now seek to change.

f. But the conflict continued unabated after the August 16, 2019 order. In fact, they had another nasty parenting dispute within hours of leaving the courthouse on August 16, 2019. Almost immediately after the final order was granted, the previous pattern of regular CAS and police involvement resumed.

g. In 2020 the parties brought motions and cross-motions to change the final order they had consented to about a year earlier.

h. It soon became apparent that with so many factual disputes and credibility issues, the motions to change would require a trial with oral evidence. But in the meantime, things became so heated between the parties that they brought further motions seeking a temporary change to the final order, pending the scheduling of what would inevitably be a long trial.

i. Once again, just before the motions were to be argued, the parties signed temporary minutes of settlement which were incorporated in the order of Justice Lafreniere dated November 20, 2020. Justice Lafreniere dealt with costs of that motion on May 4, 2021.

j. The temporary order primarily restructured timesharing and exchange arrangements. But again, almost immediately after the order was pronounced, there were more heated problems.

k. Even after the temporary order the parties had consented to, nothing really improved. Police and CAS have been regularly involved up to the commencement of the trial on September 9, 2021. Even during the trial.

l. The parties originally estimated the hearing would take 10 to 14 days. But by the completion of the 10th day of trial on October 1, 2021 we had barely completed the mother’s evidence, and a very brief police witness. We then took a hiatus as a result of the court’s scheduling commitments, and also the mother’s mid-October due date for her second child (with her current partner Larry).

m. Even when the trial finished at the end of November 2021, the parties were still calling CAS on one another.

THE NARRATIVES

[21] The complaints and proposals conveyed by each parent have been fairly consistent every time these parties have gone to court.

[22] The mother’s narrative includes the following:

a. The father is aggressive, intimidating and has serious anger control issues.

b. Following separation there was an incident in which the father sexually assaulted her. That resulted in Carson’s conception. The mother did not report the sexual assault to police, and she has no intention of pursuing criminal charges. But no matter how much he denies it, he knows he sexually assaulted her while they were alone.

c. The mother is afraid of the father. She has never been alone with him since the sexual assault. She will never again be alone with him.

d. The father is very controlling and domineering.

e. He is disrespectful toward her and refuses to consider her views in relation to their son.

f. The parents cannot communicate face to face or by telephone. They can only communicate in writing using a parenting app. But communication is completely ineffective because the father reacts badly and lashes out with vile, unwarranted language whenever the mother offers a question, comment or suggestion which the father doesn’t agree with.

g. The father has substance abuse issues with alcohol, marijuana and other drugs. This has affected his behaviour, parental judgment and standard of care when Carson is with him.

h. The father engages in alienating behaviour with Carson, constantly manipulating the young child to have negative feelings about the mother and pressuring the child to align himself with the father.

i. The father is unable to control his temper during timesharing exchanges. He creates horrible scenes in the presence of the child, causing Carson to become extremely upset.

j. The mother says when Carson returns from time with the father, the child often has bruises, cuts or other injuries which reflect a lack of supervision and poor parental judgment. She also says Carson has spoken of the father hitting him.

k. The father’s upsetting behaviour has had a serious impact on the child’s emotional health. At times he doesn’t want to transition to the father’s care. Usually when he returns from the father, Carson is upset and describes negative statements the father has made about the mother and her husband Larry.

l. The child has also repeatedly stated that the father is very angry, constantly shouts, and that the child has witnessed the father drinking heavily and then vomiting.

m. The mother says everything she and Carson have experienced with the father is an exact repeat of how he treated his former partner Jennifer and his older son John. She says he was similarly aggressive and disrespectful toward Jennifer. And he has not only alienated John against Jennifer, but he has also enlisted John in his campaign to harass the mother and alienate Carson from her.

n. She says the father is a bully and a misogynist.

o. The mother says the father is a dishonest person who has no respect for the law. He has wilfully and repeatedly breached court orders. He has deliberately ignored terms in court orders which were specifically intended to prevent direct interaction between the parties, and to avoid the child being exposed to adult conflict.

p. The father continues to engage in emotionally hurtful video recording of the child, even though professionals have warned the parents not to do this.

q. The father deliberately makes exchanges between households as upsetting for the child as possible, so he can then portray the child’s upset as evidence that the child doesn’t want to be with the mother. This is a very cruel and insensitive manipulation of a vulnerable and trusting child.

r. The father has also allowed his current fiancé Meg to become needlessly involved in Carson’s issues, particularly during exchanges.

s. The father refuses to share important information, cooperate in relation to Carson, or try to problem-solve. He acts unilaterally and imposes his will on Carson and on the mother.

t. The father ridicules and disrespects the mother’s lifestyle, her values, her husband and her family.

u. The father is oblivious to the emotional harm he is causing Carson. He has resisted her efforts to obtain much-needed counselling for the child. He contemptuously responds that it’s the mother and her husband who need the counselling.

v. The father has been resistant to appropriate medical care for the child, and he is uncooperative with respect to the child’s developmental issues.

w. The mother and the father have very different parenting styles and values. Spending so much time in the father’s destructive environment is having a serious negative impact on the child.

x. The child is currently unhappy and stressed. The father’s incessant provocative behaviour is making things worse. Carson requires the stability of spending the majority of his time in the stable, loving, sensitive, child-focussed environment which the mother is able to provide.

y. The mother wants the father to have a good relationship with the child. But the father needs to focus on the child rather than his own animosity toward the mother.

[23] The father’s narrative includes the following:

a. There is absolutely no truth to any of the allegations by the mother.

b. He denies being violent, aggressive or having problems with anger control or substance abuse.

c. He denies ever being physically inappropriate with the mother or the child.

d. He denies any deficiency in his parenting skills. He is a wonderful father toward Carson just as he is a wonderful father toward his older son John.

e. The father categorically denies that Carson was conceived as a result of a sexual assault. He says this is a vicious, offensive lie which reflects the extremes to which the mother will go to try to win in family court.

f. He says the mother has no basis whatsoever to fear him. But she uses fabrications of family violence as her excuse to avoid having to communicate or cooperate with him. He says she has manufactured and exaggerated conflict between them in a self-serving effort to preclude the court considering any form of co-parenting.

g. The father says the mother has significant mental problems and a “Jekyll and Hyde” personality. She hides behind her involvement in a very strict church group to mask her dark personality and portray an image of a calm, kind, rational person. But in private she is prone to spontaneous outbursts and physical aggression. Her family is well aware of her problems, but they cover up for her.

h. He says he has been fighting an uphill battle to be part of his child’s life since before Carson was born.

i. He says the mother is a shrewd manipulator. She has consistently fabricated complaints and excuses with a view to limiting his involvement with his son.

j. She and her husband Larry are sneaky and have engaged in various activities – like making false reports to authorities on unrelated matters – to ruin his life.

k. The father emphasizes that despite the mother’s relentless efforts to gather evidence against him – repeated complaints to CAS and the police; regular video and audio recording of exchanges – despite all that scrutiny, none of the mother’s allegations have actually been proven or verified by any third party. To the contrary, her complaints have generally been dismissed, and investigators have consistently concluded that Carson is completely safe and well-cared for while with the father.

l. Nonetheless, the mother keeps calling the authorities on the father, hoping to get some evidence against him, even though no such evidence exists. He says this endless barrage of fabricated complaints wears him down, and sometimes causes him to lose his temper out of exasperation. But he really doesn’t want confrontation with anyone. He just wants to be a father.

m. He says the mother and her husband Larry are devious and unscrupulous. The mother uses Larry to do her dirty work. She remains passive but sends Larry to provoke the father. Larry has maliciously tried to ruin the father’s life by making unfounded allegations that the father was committing insurance fraud. This caused the father to suffer extreme financial hardship because his disability benefits were wrongly cut off for a year. Larry has also used false names to send malicious and defamatory messages to people in the father’s life.

n. The mother and Larry will do anything they have to in order to destroy the father and take Carson away from him.

o. The father agrees there has been needless conflict during exchanges, but he blames Larry for deliberately inciting tensions and confrontations.

p. He admits Carson cries a lot during exchanges. But he says the crying only occurs when Carson is going from the father’s house to the mother’s house – because Carson doesn’t want to leave the father and go to the mother. He says Carson doesn’t cry when it’s time for the boy to come to his father, because he wants to be with his father.

q. He says the mother refuses to acknowledge the close and loving relationship which Carson has – not only with the father, but also with the father’s older child John. The father says the two boys are inseparable.

r. The father currently has Carson almost half the time, and he’s seeking a slight expansion to make it exactly equal. He says it is incomprehensible to him that the mother feels reducing him to an alternate weekend parent would be in the best interests of the child. He says the mother’s proposal is selfish and reflects her sense of entitlement.

s. The father admits that as a reaction to the mother’s “alternate weekend” proposal, in his cross-motion to change he proposed that she should be the one who has alternate weekends with the boy. But he’s abandoned that position. He feels both parents are equally important in their son’s life. Carson needs both of them, and they are equally capable of caring for him.

t. He also says Carson should attend school in Brantford, alongside his older brother John.

[24] As stated, each of these parties has consistently advanced these same types of allegations:

a. Before and after the August 16, 2019 final order.

b. Before and after the November 20, 2020 temporary order.

c. At trial both parties adduced extensive evidence about similar events and problems occurring before and after both of those orders.

[25] One notable difference: The father says the mother’s allegation about a sexual assault first arose in some court documents she filed on this motion to change. He says in the original application which led to the August 16, 2019 final order, she never mentioned this allegation.

a. He says her failure to raise such an important allegation earlier proves that there is no truth to her story, and she is simply creating more lies to get a better result on the motion to change.

b. The mother insists the sexual assault really did occur, and it was emotionally devastating. She still suffers from Post Traumatic Stress Disorder. It has taken her a long time to even start to talk about it. That’s why she didn’t mention it earlier.

AUG 16/19 FINAL ORDER

[26] Against that backdrop, the starting point on these cross-motions to change is to consider the contents of Justice Braid’s August 16, 2019 consent final order. The minutes of settlement were very detailed and crafted by the parties’ lawyers. The order stated:

DECISION MAKING

1. The Applicant mother shall have decision making authority for major issues relating to the child Carson, born May 2017. This shall include schooling, educational, medical, health and religious decisions pertaining to the child. The Applicant shall consult with the Respondent father on all major decisions involving the child and the Respondent shall provide his input on the proposed decisions.

2. The child's primary residence shall be with the Applicant.

3. Each party shall be responsible for day to day decisions during their time with the child.

4. Both parties shall have the same right and entitlement to information from third parties relating to the health, education and welfare of the child, without the necessity of any release, direction or acknowledgement executed by the parties and this shall constitute sufficient release, authorization and direction to any third party for the release of such information.

5. The Applicant shall provide to the Respondent copies of the child's activity and extracurricular schedule, along with details of medical appointments upon obtaining same. Both parties shall be able to attend the child's activities and medical care for the child.

6. Neither party shall change the child's name.

PARENTING TIME

Regular schedule

7. The Respondent shall have parenting time with the child on a four week rotating schedule as follows:

a. Week 1: Tuesday at 6:30 p.m. with the Applicant to provide transportation of the child to Brantford until Friday at 5:30 p.m., or school when the child is enrolled in school, with the Respondent to provide transportation to Hamilton.

b. Week 2: Thursday at 6:30 p.m. with the Applicant to provide transportation of the child to Brantford until Sunday at 8:00 p.m. with the Respondent to provide transportation to Hamilton and the exchange to occur at Life Point Church in Hamilton, unless otherwise agreed to in writing.

c. Week 3: Tuesday at 6:30 p.m. with the Applicant to provide transportation of the child to Brantford until Friday at 6:30 p.m., or school when the child is enrolled in school, with the Respondent to provide transportation to Hamilton.

d. Week 4: Thursday at 6:30 p.m. with the Applicant to provide transportation of the child to Brantford until Sunday at 6:00 p.m. with the Respondent to provide transportation to Hamilton.

e. Such further and other times as agreed to between the parties in writing.

Holiday schedule

8. For all holiday exchanges, unless agreed to by the parties, the Applicant shall drop the child off in Brantford and the Respondent shall return the child to Hamilton.

9. Carson's birthday: Either parent shall spend time with Carson on their time, unless otherwise agreed to by the parents.

10. Christmas: In even numbered years. the Respondent shall have time with Carson from December 24h at 1:00 p.m. to December 25"' at 1:00 p.m. The Applicant shall have time with the child from December 25"" at 1:00 p.m. to December 26 at 2:00 p.m. This shall reverse in odd years.

Il. New Year's: In even numbered years the Respondent shall have time with Carson on New Year's Eve at 5:00 p.m. until New Year’s Day at 2:00 p.m. The Applicant shall have this time in odd years.

12. Mother's day: The child shall spend Mother's Day with the Applicant from Sunday at 9:00 a.m. to 7:30 p.m. each Mother's Day.

13. Father's day: The child shall spend Father's Day with the Respondent from Sunday at 9:00 a.m. until Sunday at 7:30 p.m.

14. Summer Long Weekends; Should the Respondent's Sunday parenting time fall on the commencement of any of the following weekends, he shall have access until Monday at 7:30 p.m., rather than until Sunday at 7:30 p.m.; Victoria-day Long Weekend, Canada Day Long Weekend, August Civic Holiday Long Weekend, Labour Day Weekend,

15. Thanksgiving: In odd-years the Respondent shall have from Friday at 7:30 p.m. until Saturday at 7:30 p.m. and the Applicant shall have from Saturday at 7:30 p.m. to Monday at 7:30 p.m. This will reverse in even numbered years.

16. Easter: In odd numbered years, the Respondent shall have access from the Sunday at 5:00 p.m. to the Monday at 7:30 p.m. with the Applicant to have Carson in her care from Friday of Easter weekend at 10:00 a.m. to the Sunday at 5:00 p.m. This shall reverse in even numbered years.

17. Parent's birthday: Either parent may have the child on his or her birthday or any sibling's birthday for four (4) hours. Plans must be communicated to the other parent with at least two weeks' notice. The Applicant's birthday is October 16h and the Respondent's birthday is January 4". Either parent shall allow a phone call on Carson's birthday when in the other's care.

18. Summer holidays: The schedule shall remain the same as set out above; however, cither parent is entitled to three non-consecutive weeks (7 days on each occasion) with the child, so long as it does not fall on the other's parent's long-weekend time on more than one occasion each per summer. The Applicant shall have first choice of dates in even years and the Respondent shall have first choice of dates in odd years. Parties shall communicate their choice of dates by June [" of each year. Commencing summer 2021, each parent shall be entitled to four non-consecutive weeks (7 days on each occasion) with the child.

EXCHANGES, SUPERVISION AND COMMUNICATION

19. Hamilton exchanges shall occur at the Tim Hortons at Larch Street and Currie Street, 969 Upper Ottawa Street in Hamilton and all Brantford exchanges shall occur at the Tim Hortons located at 177 Paris Road, Brantford. Access may occur at such other location as agreed to in writing. The parties shall perform the exchanges in a respectful and business-like manner.

20. If either parent is unable to care for Carson for a period exceeding four hours, other than on their scheduled workdays, then the other parent shall have the right of first refusal to care for the child. If a parent is having an unknown person watching the child, then they shall provide the other parent with the name and contact number of that individual.

21. Neither party nor other caregivers shall smoke tobacco, marijuana or any other illegal substances while in the presence of the child.

22. Both parents shall ensure that the child consistently attends school and/or daycare when the child is in their care. The child shall only miss school or daycare for reason of illness, emergency, travel or other special event.

23. Parties shall communicate with one another using an application AppClose to discuss issues involving the child, Parties shall regularly communicate via the application AppClose for issues such as activities, and the child's health.

24. If the child Carson experiences any injuries requiring medical treatment, the parent who was caring for the child shall communicate this information vie the application to the other parent, unless an emergency, in which case they shall notify the other parent as soon as is reasonably possible by phone call. If prescribed medication is administered to the child on exchange days, this shall be communicated via the application, including time and dosage.

25. Parties shall phone one another in the event of an emergency involving the child.

26. All communication between the parties shall be respectful. Communication shall be child focused and deal only with issues affecting the child.

27. Neither party shall speak negatively about the other to the child or in front of the child, nor shell they allow others to speak negatively about one another in front of the child.

28. Parties shall ensure that the child is not present for any discussion involving court proceedings, children's aid society involvement, police matters or other adult issues.

MOBILITY

29. Neither party shall move outside of Brant County or the Municipality of Hamilton-Wentworth, save and except if their new residence is outside of Brant County or the Municipality of Hamilton-Wentworth but within 50 kilometers of the other party's residence.

30. Unless otherwise agreed to in writing or further court order, Carson shall attend elementary school in the Applicant's catchment area.

VACATION/TRAVEL

31. Each party shall have Carson in his/her care for one period not exceeding 10 consecutive days per year for vacationing purposes. This vacation period shall not be exercised during the Christmas school break or during the months of July and August.

32. The vacationing party shall advise, in writing, the other party of his/her vacation plans at least 30 days before the departure date, with additional travel information to be provided as follows:

a) For domestic vacationing, at least 14 days before departure, the flight information, trip itinerary and contact information during the vacation; and,

b) For international vacationing, at least 30 days before departure. the flight information, trip itinerary and contact information during the vacation; and,

33. The vacationing party shall provide to the non-vacationing party a Travel Consent Letter within 30 days of the scheduled departure.

34. Carson shall not be removed from the Province of Ontario without the written consent of other parent. Neither parent shall unreasonably refuse the child to travel or attend a vacation.

35. If the child is on vacation with a parent, during any time of the year, including summer holidays, each party shall permit the other parent phone calls with the child at reasonable times and upon reasonable notice.

CHILD SUPPORT/SECTION 7 EXPENSES

36. For the purposes of determining ongoing child support, the Applicant's income shall be set at $61,742 and the Respondent's income shall be set at $76,157. The respondent shall pay to the Applicant for the child Carson monthly child support in the amount of $300.00 commencing September 1, 2019 based upon the parties income and the Canada Child Support Guidelines and payable on the 1" of each month thereafter.

37. Parties shall provide updated financial disclosure on June 1" of each year. If there has been a change in the Respondent's income, parties will consent to a variation of child support in accordance with his income and the Canada Child Support Guidelines.

38. Both parties shall pay section 7/extraordinary and special expenses proportionate to their income. For the purposes of this order, based upon the parties current income they shall split the sharing of expenses with the Respondent to pay 55% of the expenses and the Applicant to pay 45% of the expenses. For purposes of settlement there shall be no arrears of section 7 expenses to present date.

39. Special and extraordinary expenses shall include:

a. Daycare costs;

b. School related trips exceeding $50.00;

c. Summer camp or Merch Break camp costs;

d. Child's identification documents such as passport (unless lost by parent in which case that parent shall pay for replacement);

e. Sports and extracurricular activities as agreed to between the parties;

f. Medical, dental, orthodontic and optometry costs not covered by health and dental insurance.

40. Both parties shall maintain the child on any extended health or dental benefits available to them through their employment.

41. The temporary order of Justice Harper, dated June 11, 2018 shall be terminated effective August 31, 2019.

42. Unless the support order is withdrawn from the Office of the Director of the Family Responsibility Office, it shall be enforced by the Director and amounts owing under the order shall be paid to the Director, who shall pay them to the person to whom they are owed.

43. This order bears post judgment interest at the rate of 3% per annum effective from the date of this order. Where there is default in payment, the payment in default shall bear interest only from the date of default.

NOV 20/20 TEMP ORDER

[27] Justice Lafreniere’s temporary order of November 20, 2020 which changed certain provisions in the final order – again, on consent of the parties – included the following terms:

1. The Applicant mother and the Respondent father shall share time with the child Carson (born May 2017) on a rotating two week schedule as follows:

a. Week one commencing Saturday, November 28, 2020 at 6:00 p.m. the father shall have the child in his care for 6 nights until Friday, December 4, 2020 at 6:00 p.m.

b. Week two commencing Friday, December 4, 2020 at 6:00 p.m. the mother shall have the child in her care for 8 nights until Saturday, December 12, 2020 at 6:00 p.m.

2.

a. All exchanges shall occur through Thrive Supervised Access Program in Burlington, Ontario. During the times that Thrive Supervised Access Program is not available, the parties shall exchange the child at the Burlington detachment of Halton Police lobby at 3800 Constable Henshaw Blvd. if they are open during the times that the parties must exchange the child. If the Halton police station is not available at the times that the parties must exchange the child, then the parties shall utilize the Hamilton Police Service on Rymal Road.

b. Both parties shall be equally responsible for this fee associated with using the supervised access centre.

c. Both parties shall participate in the intake process within 5 business days.

d. the parties shall not bring their spouses to any access exchange. The Respondent may attend with his other child, John. The Respondent shall not allow John to enter the supervised access centre unless permitted to do so by Thrive.

e. when exchanging the child at a police station, the parties shall release the child immediately upon seeing the other party for the exchange in the police station lobby. The parties shall face the entrance to the station to view when the other party has entered it. At that time, the parties shall allow the child to go to the other party in a safe and appropriate manner once the other parent enters the station. The parent who has the child in his or her care shall not prevent, nor prolong, the child from going to the other parent for any other reason other than to reasonably ensure the child’s safety.

f. both parties shall leave the parking lot of the exchange location within 5 minutes after the exchange has occurred.

g. there shall be no video-taping by either party of the other during any access exchanges.

5. Both parties shall ensure that the child is not exposed to cats during their time with the child.

6. Both parties shall be permitted to amend their Motion to Change and Response to Motion to Change by

December 31, 2020.

7. Costs of the motion and cross motion shall be in the discretion of the motions Judge, Justice Lafrenière. The parties shall serve and file costs submissions by December 31, 2020.

8. A settlement conference/trial scheduling conference shall be set for January 6, 2021 at 2:00 p.m. Settlement conference briefs and a trial scheduling endorsement form shall be filed with the Court by December 31, 2020.

OTHER ORDERS

[28] I will briefly note some of the other orders and endorsements which have been made.

[29] On May 4, 2021 Justice Lafrenière issued a 91 paragraph costs ruling in relation to the November 2020 cross-motions for temporary relief.

a. The father was ordered to pay $2,825.00 within 30 days of service of the order.

b. At the outset of the trial on September 9, 2021 the mother testified that he has still not paid those costs.

[30] On June 18, 2021 Justice Bale issued a lengthy endorsement in relation to the father’s request for an adjournment of the trial from the June 28, 2021 sittings. The mother had brought a cross-motion for other procedural relief.

a. Justice Bale adjourned the trial to the August 9, 2021 sittings. (But the matter was not reached until September).

b. Procedural orders were made.

c. The father was ordered to produce additional disclosure.

d. On consent, a final order was granted stating that Carson shall attend pre-school in the mother’s catchment area.

e. Not on consent, the father was ordered to pay costs “thrown away” in the sum of $4,000.00 within 30 days. (The mother says he paid those costs on September 8, 2021 – one day before the trial commenced.)

ORDER REQUESTED BY MOTHER

[31] At the outset of the trial the mother’s counsel provided a written summary of the exact order the mother is seeking:

1. Both parties shall provide each other with 60 days’ notice of any anticipated change of residence, and the exact address of where they will be moving to.

2. Each party shall ensure that the other party has their working phone number.

3. Paragraph 5 of Justice Braid's Order shall be varied such that the father may only attend Carson's medical appointments by videoconferencing, through WhatsApp if the appointment falls during the mother's time with the child.

4. Paragraph 7 of Justice Braid's order shall be varied such that the Respondent father shall spend time with the child Carson as follows:

a) On alternate weekends, from Friday after daycare or school until Monday at the commencement of daycare or school.

b) The father’s time shall be extended by 24 hours to include any statutory holiday or PD Day adjacent to his weekend.

c) Wednesdays from after daycare or school until 7:00 pm.

5. Paragraph 14 of the final Order shall be varied to: the child shall attend pre-school and school in the mother's jurisdiction.

6. Paragraph 23 of Justice Braid's order dated August 16, 2019 shall be varied such that:

a. the parties shall communicate with one another using APPClose to discuss issues involving the child.

b. The parties shall regularly communicate via APPClose for issues such as scheduling, activities, and the child's health.

c. All communication shall be between the parents only, and not include any third parties.

d. Once a question or inquiry is made by a parent, the other parent shall respond in the App within 36 hours.

7. Paragraph 25 of Justice Braid's order shall be varied such that the parties shall immediately phone the other parent in the event of an emergency involving the child, including any visit to an emergency room. The parent who has taken the child to the emergency room shall provide the other parent with a written summary, completed by the attending physician, of the discharge instructions and diagnosis, immediately upon returning home with the child, by attaching the photo of the document to an AppClose message.

8. Paragraphs 8 and 19 of Justice Braid's order shall be varied such that:

a. Once the child attends pre-school and/or school, the exchanges shall occur at the pre-school/school.

b. All exchanges of the child, prior to him attending pre-school/school, shall occur at Thrive in Burlington with the cost being shared equally. This shall also occur when pre-school/school is not in session.

c. When the Burlington Thrive supervised facility for access exchanges is closed, the exchanges shall occur at the Hamilton Police Station located at Rymal Road.

d. Both parties shall be equally responsible for the fee associated with using the supervised access centre.

e. When exchanging the child at a police station, the parties shall release the child immediately upon seeing the other party for the exchange in the police station lobby. The parties shall face the entrance to the station to view when the other party has entered it. At that time, the parties shall allow the child to go to the other party in a safe and appropriate manner once the other parent enters the station. The parent who has the child in his or her care shall not prevent, nor prolong, the child from going to the other parent for any other reason other than to reasonably ensure the child's safety.

f. Both parties shall leave the parking lot of the exchange location within 5 minutes after the exchange has occurred.

g. There shall be no video-taping by either party of the other during any access exchanges.

h. Should the father move out of Halton the parties shall conduct all exchanges at the Rymal Road police station pending further court Order or written agreement.

9. Paragraph 18 of the Court Order of Justice Braid shall be varied to provide that the parent who has the first choice of summer holidays shall provide these dates to the other parent by March 1st of each year and the parent who has the second choice of summer holidays shall provide these dates to the other parent by March 15th of each year.

10. Paragraph 31 of Justice Braid's order shall be varied such that both parties shall attempt to take their 10 consecutive day vacation to coincide with when they would normally be spending time with the child. Each party shall have Carson in his/her care for one period not exceeding 10 consecutive days per year for vacationing purposes. This vacation period shall not be exercised during the Christmas school break.

11. Paragraph 20 of the Justice Braid's Order shall be eliminated.

12. Neither party shall allow the child to be exposed to cat or dog dander if this is recommended by his physician.

13. There shall be no alcohol consumption to excess by either party while in a caregiving role.

14. Within 60 days the parties shall retain a parenting coordinator, at equal cost, in order to resolve any parenting disputes that arise.

15. The word Ontario in paragraph 34 shall be replaced with the word Canada in Justice Braid's Order.

16. Child support payable pursuant to the Guidelines.

17. Costs, including the unpaid costs of $2,825.00 awarded to the mother pursuant to the Order of Justice Lafreniere dated May 4, 2021.

[32] During the trial the mother identified a number of changes or additions to her requested relief.

a. With respect to parenting exchanges, the mother’s original proposal was based on her understanding that the father was residing in Milton. But when the trial commenced, the father revealed he had moved back to Brantford. Mid-way through the trial the mother announced that she and her husband were relocating to Waterford where they had purchased a house. So by the end of the trial the mother was no longer proposing exchange locations in either Burlington or Hamilton. Instead, her hierarchy of exchanges locations was #1 school/daycare if available; #2 at either the Brantford or Simcoe branches of Dalhousie Place, if available, or #3 otherwise at the Brantford Police Station.

b. She requested that when I deal with costs in relation to this trial, I also deal with costs previously reserved by Justice Bale at Purge Court on August 30, 2021.

ORDER REQUESTED BY FATHER

[33] At the outset of the trial the father summarized the order he is seeking:

a. “Sole custody” of the child. (In response to my inquiry, the father indicated he was unaware of any changes to parenting legislation, including changes to terminology. He said he would investigate the changes. He clarified that he is seeking sole decision-making authority.)

b. Both parties to keep one another informed of their address and telephone number (including any changes), with the telephone number to include the ability to voice mail and text.

c. Both parties to be permitted to attend any medical appointments for the child if they elect to do so. They may attend virtually if preferred.

d. Parenting time to be shared equally on a weekabout basis with exchanges after school on Fridays. Exchanges during the summer to alternate between the Hamilton Mountain police station and the Brantford police station, with only adults to be present (except for siblings).

e. In addition, each party would be entitled to a ten-day period not to be during July or August, and not to include any statutory holidays.

f. During exchanges the parties are not to speak negatively about one another in front of the child.

g. Carson to attend school in Brantford, with the father’s older child John.

h. Communication to be by an app, with responses to be within a reasonable timeframe (sooner than the 36 hours proposed by the mother).

i. If there is a medical emergency, the other parent is to be notified immediately and participate in decisions regarding emergency treatment, and both parents may attend the emergency room.

j. Day to day decisions to be made by the parent who has care of the child at the time.

k. Neither parent to have any input as to caregivers to be utilized by the other parent in their discretion.

l. Both parties to follow the recommendations of physicians regarding the child’s health.

m. There is no need for a parenting co-ordinator.

n. The provision in the existing order that neither party should remove the child from “Ontario” without the other party’s consent should remain in place and not be expanded to “Canada”.

o. Mother to pay child support to the father based upon the mother’s income and her partner’s income. (The father did not have a position on determination of income, and when asked he ballparked $500.00 as an appropriate child support figure, without any correlation to incomes.)

p. Costs.

SUMMARY OF DISPUTED REQUESTS

[34] To summarize the dispute in relation to decision-making:

a. The August 16, 2019 final order gives the mother sole decision-making authority on all issues, after consultation with the father.

b. The November 20, 2020 temporary order didn’t address decision-making.

c. The mother wants to continue to have sole decision-making authority, but with restrictions to prevent the father from attending medical appointments in person when the child is in her care.

d. The father now wants decision-making authority transferred to him.

[35] To summarize the dispute in relation to the regular time-sharing schedule:

a. The August 16, 2019 final order gives the father 12 overnights in a 28-day cycle.

b. The November 20, 2020 temporary order reduces the number of exchanges but still gives the father 12 overnights in a 28-day cycle.

c. The mother now wants to reduce the father’s time to six overnights (plus four non-overnights) in a 28-day cycle,

d. The father now wants to increase his time to 14 overnights in a 28-day cycle.

[36] To summarize the positions in relation to time-sharing exchanges:

a. Both parties agree that exchanges should occur at Carson’s school or daycare, when possible.

b. If school/daycare is not available, the mother proposes Dalhousie Place in Brantford or Simcoe, with the Brantford Police Station as a last choice.

c. If school/daycare is not available, the father wants exchanges in Brantford, preferably at Dalhousie Place if it is available. Although he admits that Waterford is closer to Brantford than it is to Hamilton, he is opposed to exchange taking place in Simcoe (which might be more convenient for the mother, but add significant driving for the father).

[37] Similarly, the dispute in relation to schooling became a bit of a moving target because of changing residences.

a. The August 16, 2019 final order specifies that education is included in the mother’s sole decision-making authority.

b. The November 20, 2020 temporary order only deals with time-sharing.

c. The June 18, 2021 consent final order states that Carson “shall attend pre-school in the mother’s catchment area.”

d. Carson commenced school in Hamilton in September 2021.

e. Even before he learned the mother was relocating to Waterford, the father proposed that Carson transfer to school in Brantford. But at the commencement of trial he did not seriously dispute the mother’s position that the June 18, 2021 order was final and there was no motion before the court to re-open the schooling issue.

f. After he learned the mother intended to transfer Carson to school in Waterford, the father renewed his request that the child attend school in Brantford.

g. The mother says the school issue is not before the court – at least not in relation to pre-school – because the June 18, 2021 order was made within the context of the existing cross-motions to change.

h. The father says the mother’s mid-trial, mid-school-year decision to change Carson’s school to another city constitutes a material change in circumstances, because the mother’s materials said she was permanently resident in Hamilton. He says relocation to Waterford was not contemplated when he consented to the June 18, 2021 order.

i. The mother responds that the June 18, 2021 order broadly refers to the “mother’s catchment area” without any geographic limitation.

FOCUS ON PARENTS

[38] By far the majority of the evidence on this trial focused on the parents’ relationship with one another, rather than their respective relationships with Carson.

[39] Days of testimony – perhaps weeks – could have been avoided if the parents had simply presented an agreed statement in relation to some incontrovertible facts.

[40] For example, at the outset of the trial they could have admitted:

a. The mother and father have a long-standing, high conflict relationship in which they cannot communicate with one another in a civil or productive manner.

b. They do not trust or respect one another, or their respective partners.

c. The parents are unable to be physically present in the same location without significant tension.

d. Carson is frequently upset and cries during face-to-face parenting exchanges.

[41] The parents could have admitted to those facts, without any attribution of fault.

a. It would have considerably narrowed the issues if both parties simply acknowledged that face-to-face parenting exchanges have been a prolonged disaster for the child.

b. It wouldn’t have been much of a concession, since neither parent is really proposing face-to-face exchanges in the future.

c. There is no shame in admitting that some separated parents should never meet again.

d. A simple, neutral admission that “we can’t get along” would still have left each party free to adduce evidence about other problems, apart from face-to-face interactions.

e. (Indeed, how much family court litigation would be nipped in the bud if at the outset both parties signed a no-fault acknowledgement: “We just can’t get along, so let’s work with that reality.”)

[42] But as often happens, much of the contention during this trial was not about whether problems exist – but rather who is responsible for the problems? Who is to blame?

[43] And once parents perceive that attribution of blame is the purpose of a parenting trial, they face the inevitable dilemma of deciding how much bad stuff to tell the judge. So, to be safe, they make sure to mention as many bad things about their ex as they can think of. That’s how we end up with 22 day trials.

[44] In fairness, this evidentiary overkill may result from a perception by nervous parents that they’re getting mixed messages from the court.

a. On the one-hand, recent amendments to the Divorce Act (applicable in this case) and the Children’s Law Reform Act have greatly expanded all of the things judges are supposed to consider in deciding children’s issues. To parents, it sounds like we’re saying “everything is important.”

b. But at the same time our court system warns: “Don’t tell us everything. Just tell us what we need to know to help us decide what’s best for the children.”

c. So...tell us everything, but not too much.

BEST INTERESTS

[45] The legislative framework creates tough judgment calls about what evidence to adduce:

[46] Section 16(1) of the Divorce Act provides that the court shall take into consideration only the best interests of a child when making a parenting order or a contact order. Section 16(2) says when considering best interest factors, primary consideration is to be given to the child’s physical, emotional and psychological safety, security and well-being. Pierre v. Pierre, 2021 ONSC 5650 (SCJ).

[47] It is also in a child’s best interests when making a parenting order that his or her caregiver be physically and emotionally safe. Q.M.S.Q. v. S.Q., 2021 ONCJ 334 (OCJ); N.S. v. A.N.S., 2021 ONSC 5283 (SCJ).

[48] Section 16(3) sets out a list of factors for the court to consider in considering the circumstances of a child and determining best interests:

16(3) Factors to be considered

In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including

(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 spouse, each of the child's siblings and grandparents and any other person who plays an important role in the child's life;

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

(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 cooperate, 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 cooperate 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.

[49] That’s a long list. Parents will inevitably want to adduce evidence addressing as many of those factors as possible.

[50] The court is required to undertake a broad analysis of each child’s specific situation.

a. The list of best interests factors in the Act is not exhaustive. White v. Kozun, 2021 ONSC 41 (SCJ); Pereira v. Ramos, 2021 ONSC 1736 (SCJ).

b. None of the listed factors are given priority, except the primary consideration in S.16(2) is overarching.

c. No single criterion is determinative.

d. The weight to be given to each factor depends on the circumstances of the particular child.

e. The listed factors are not a checklist to be tabulated with the highest score winning. Rather, the court must take a holistic look at the child, his or her needs and the people in the child’s life. Phillips v. Phillips, 2021 ONSC 2480. W.H.C. v. W.C.M.C., 2021 ONCJ 308 (OCJ); Harry v. Moore, 2021 ONCJ 341 (OCJ).

f. An assessment of the best interests of the child must take into account all of the relevant circumstances with respect to the needs of the child and the ability of each parent to meet those needs. Mokhov v. Ratayeva, 2021 ONSC 5454 (SCJ).

g. The focus is on the child’s perspective. Adult preferences or “rights” do not form part of the analysis except insofar as they are relevant to the determination of the best interests of the child. Young v. Young, 1993 34 (SCC); E.M.B. v. M.F.B., 2021 ONSC 4264 (SCJ).

[51] And if, as here, there are any allegations of family violence, the analysis – and the range of possibly relevant evidence – is further expanded.

[52] In determining the best interests of a child, the court must specifically consider whether there has been any family violence – and the impact of that violence on the child; and on the ability and willingness of any parties to care for and meet the needs of the child.

[53] The amendments to the Divorce Act have expanded the definition of family violence to highlight its importance in assessing the best interests of a child, and to address the reality that family violence is often hidden or unreported despite its insidious nature. V.M.W. v. J.Mc-M., 2021 ONCJ 441 (OCJ).

[54] “Family violence" is defined as any conduct, whether or not the conduct constitutes a criminal offence, by a family member towards another family member, that is violent or threatening or that constitutes a pattern of coercive and controlling behaviour or that causes that other family member to fear for their own safety or for that of another person — and in the case of a child, the direct or indirect exposure to such conduct — and includes

(a) physical abuse, including forced confinement but excluding the use of reasonable force to protect themselves or another person;

(b) sexual abuse;

(c) threats to kill or cause bodily harm to any person;

(d) harassment, including stalking;

(e) the failure to provide the necessaries of life;

(f) psychological abuse;

(g) financial abuse;

(h) threats to kill or harm an animal or damage property; and

(i) the killing or harming of an animal or the damaging of property.

[55] In McBennett v Danis, 2021 ONSC 3610 (SCJ) Justice Chappel commented on the rationale for this specific focus on family violence:

[86] The broad definition of family violence and the specific inclusion of this factor as a mandatory consideration in determining the best interests of children recognize the profound effects that all forms of family violence can have on children. These consequences can be both direct, if a child is exposed to the family violence, or indirect, if the victimized parent’s physical, emotional and psychological well-being are compromised, since these consequences in turn often negatively impact their ability to meet the child’s physical and emotional needs.

[56] Section 16(4) of the Divorce Act sets out an additional list of best interests factors for the court to consider related to family violence.

16(4) Factors relating to family violence

In considering the impact of any family violence under paragraph (3)(j), the court shall take the following 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 their ability to care for and meet the needs of the child; and

(h) any other relevant factor.

[57] The list of potentially relevant evidence gets longer, the further you read through the legislation.

[58] In addition, section 7.2 addresses the importance of parents protecting children from conflict related to the ongoing court case.

7.2 Protection of children from conflict

A party to a proceeding under this Act shall, to the best of their ability, protect any child of the marriage from conflict arising from the proceeding.

[59] This is a vitally important reminder that while parents in family court always say they are “fighting for the sake of the child”, the reality is that children often end up being collateral damage, while parents engage in self-centered, vindictive, and impulsive behaviour. (This section reinforces my earlier warning about sparing children from the inherently conflictual environment of police station exchanges.)

[60] Section 7.2 is particularly relevant in cases like this, where parents seem to act worse the closer they get to a court date. You’d think pending scrutiny by a judge would encourage good behaviour. But high conflict parents typically view court orders as an impediment rather than a solution. So rather than insulate children from the court process, angry parents often try to co-opt children into the unwanted role of ally.

[61] With so many enumerated “best interests” considerations, we set the stage for frustrated parents to vent by telling us as many negative things about their former partner as possible. Quite logically, they perceive that a trial is no time to hold-back or understate your case.

[62] But then, of course, there is section 16(5) of the Divorce Act which reminds us that the purpose of the exercise is not vindication or affirmation for parents. The one and only objective is to determine what’s best for the child. That’s the evidence we need.

16(5) Past conduct

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 their parenting time, decision-making responsibility or contact with the child under a contact order.

[63] As often happens in highly emotional trials, Carson’s parents had some difficulty ensuring that their list of what they wanted to tell me addressed my list of what I needed to hear.

a. I heard a lot of highly relevant evidence about inappropriate behaviour and unfortunate parenting decisions. The tone of this trial was very negative.

b. I heard a fair bit of marginally relevant evidence.

c. I heard the same evidence repeated too often. (If someone is going to give more than 10 examples of something, it’s time for an admission or an agreed statement of facts.)

d. From both parties I heard complaints which – even if true – would be irrelevant to my determination of the best interests of the child.

e. And despite coming away from this trial feeling I’ve known these parents for a decade, after 22 days of evidence Carson is still largely a stranger to me. I could have heard more about the child.

[64] In determining the best interests of a child, the treatment of evidence does not neatly fall into the binary categories of “relevant” or “not relevant.”

a. Parenting orders include many components. Under the broad categories of “decision-making” and “parenting time” there are many sub-components. Each component requires its own analysis.

b. Some evidence may be highly relevant in relation to aspects of decision-making, but less (or not at all) relevant in relation to “parenting time”.

c. With other evidence, the opposite may be true.

d. Some types of evidence may influence the court’s decision on many – if not all – topics.

e. Other evidence may be emotionally important to the litigants – but may not affect the outcome of the trial.

f. For evidence to be relevant it must relate to some issue the judge is being asked to decide.

g. And parents must remember that they need to present evidence on all issues – not just the ones they would prefer to talk about.

h. Having a strong case on some topics does not guarantee success on other topics where the evidence may be deficient – or absent.

[65] On these motions to change, both parents took a defensive approach. Each focussed on disputing changes proposed by the other parent, rather than establishing the basis for the changes they themselves were requesting.

a. The mother’s evidence focussed on decision-making authority. She has it. She wants to keep it.

b. The father’s evidence focussed on parenting time. He currently has almost half time. He wants a bit more. Definitely not less.

c. Both parties focussed on blaming the other parent for the extreme animosity and conflict between them. They seemed to presume that if the court is persuaded that one of the parents is “bad”, the “good” parent will win by default – even if the “good” parent lacks some of the required evidence.

d. The mother provided no evidence to support her bold contention that the solution to all problems was to reduce the father’s parenting time by half. She barely seemed to consider the profound negative impact which such a major change would have on the child.

e. Similarly, the father’s proposal that he take over sole decision-making authority for the child was little more than spiteful, wishful thinking. He resents the mother having control, but her decisions have generally been good – despite the father’s interference.

[66] Even if this had been a trial in the first instance – with no previous final order – the strategies and proposals were undermined by a fundamental lack of awareness of where each parent was strong – and where each parent was weak.

a. Sometimes it looked like each parent was truly focussing on the best interests of the child.

b. Other times it looked like they each forgot the child even existed.

MOTIONS TO CHANGE

[67] But this was a trial of motions to change.

[68] Section 17 of the Divorce Act sets out the Court’s authority to change a parenting order.

17(1) Variation order

A court of competent jurisdiction may make an order varying, rescinding or suspending, retroactively or prospectively,

(a) a support order or any provision of one, on application by either or both former spouses;

(b) a parenting order or any provision of one, on application by

(i) either or both former spouses, or

(ii) a person, other than a former spouse, who is a parent of the child, stands in the place of a parent or intends to stand in the place of a parent; or

(c) a contact order or any provision of one, on application by a person to whom the order relates.

17(5) Factors for parenting order or contact order

Before the court makes a variation order in respect of a parenting order or contact order, the court shall satisfy itself that there has been a change in the circumstances of the child since the making of the order or the last variation order made in respect of the order, or of an order made under subsection 16.5(9).

[69] To determine a request to change custody, access or parenting order, the court must embark upon a two-stage inquiry. Gordon v. Goertz, 1996 191 (SCC), [1996] 2 S.C.R. 27 (SCC).

[70] The first step: There must be a material change in circumstances since the last order was made.

a. The previous order is presumed to be correct based upon the circumstances which existed at the time.

b. The onus is on the person seeking to change the existing order to prove on a balance of probabilities that there is a material change that affects or is likely to affect the best interests of the child. There must be a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet those needs. The change cannot be “trivial” or insignificant: it must be material. Kirichenko v. Kirichenko, 2021 ONSC 2833 (SCJ); Hickey v. Hickey, 1999 691 (SCC).

c. The change must have arisen since the making of the order or the last variation of the order. N.S. v. A.N.S., 2021 ONSC 5283 (SCJ).

d. A change alone is not enough to justify a variation. The change must materially affect the child, the parents, or both.

e. It must be a change which was either not foreseen or could not have been reasonably contemplated by the judge who made the previous order. The change must be substantial, continuing and "if known at the time, would likely have resulted in a different order." L.M.L.P. v. L.S., [2011] SCC 64 (SCC); Dedes v. Dedes, 2015 BCCA 194 (BC CA); Oremush v. Hickey, 2021 ONSC 6833 (SCJ).

f. The threshold determination of a material change in circumstances can be based upon a single change or event; or more commonly a combination of changes as parents and children move on with their lives. But a change in a child’s age or level of maturity measured over just a few years will rarely constitute a material change, without further evidence that the existing order is no longer adequate. Gray v. Wiegers, 2008 SKCA 7 (Sask CA). It is obviously foreseeable that all children will continue to age after an order is granted.

g. Even if both parents seek to change the existing order – but for different reasons – that mutual desire for a new order isn’t enough. Unless the court is able to make an explicit finding that a material change in circumstances has arisen since the previous order was made, the court is without jurisdiction to make a variation order. Persaud v. Garcia-Persaud, 2009 ONCA 782 (ON CA).

h. The finding of a material change in circumstances is a prerequisite to an examination of the merits of an application to vary an existing parenting order.

i. The requirement of a material change in circumstances means that a motion to change cannot be an indirect route of appeal from the original custody and access order. The court must assume the correctness of the first order and consider only the changed facts since the first order was made. Kirichenko v. Kirichenko, 2021 ONSC 2833 (SCJ).

j. At this stage, the court should allow only limited consideration of the evidence predating the order to understand how it was made, in order to determine if a material change in circumstances has been established. Hornan v. Hornan, 2007 CarswellMan (Man. Q.B.); E.M. v. M.Q., 2021 ONCJ 533 (OCJ).

k. If there is no explicit finding of a material change in circumstances, the inquiry ends. The court would be without jurisdiction to vary the order. Litman v. Sherman, 2008 ONCA 485 (ON CA).

l. If there is a material change, the court must move to the second stage and consider the best interests of the child and whether to vary the original order.

[71] The second step:

a. Once a material change in circumstances has been established, the court then embarks on a fresh inquiry into the best interests of the child. P. v. G.-P., 2009 ONCA 782 (ON CA).

b. Section 16(3) sets out a non-exhaustive list of factors for the court to consider in considering the circumstances of a child and determining best interests.

c. In this fresh inquiry, both parties bear the evidentiary burden of demonstrating where the best interests of the child lie. There is no legal presumption in favour of the custodial parent, or in favour of maintaining the existing timesharing arrangements. The court should consider the matter afresh without defaulting to the existing arrangement. Bubis v. Jones, 2000 22571 (SCJ); Persaud v. Garcia-Persaud, 2009 ONCA 782 (ON CA); Deslauriers v. Russell, 2016 ONSC 5285 (SCJ); Roloson v. Clyde, 2017 ONSC 3642 (SCJ); E.M. v. M.Q., 2021 ONCJ 533 (OCJ).

d. At this stage the court should consider all of the evidence – which may include evidence predating the previous order – to conduct a comprehensive analysis of the best interests of the child. Segal v. Segal, (2002) 2002 41960 (ON CA); E.M. v. M.Q., 2021 ONCJ 533 (OCJ).

e. At the second stage of the analysis, the best interests test is the only test to be applied. E.M. v. M.Q., 2021 ONCJ 533 (OCJ); Young v. Young, 1993 34 (SCC).

f. The court must ascertain the child's best interests from the perspective of the child rather than that of the parents. Parental preferences and rights do not play a role in the analysis, except to the extent that they are necessary to ensure the best interests of the child. Gordon v. Goertz; Young v. Young, 2003 3320 (ON CA).

g. Similarly, the court’s disapproval or sanctioning of one parent’s inappropriate behaviour should not result in an order which creates entitlements by the other parent which are not in the best interests of the child. Ruffudeen-Coutts v. Coutts, 2012 ONCA 263 (ON CA).

h. Any assessment of the best interests of a child must take into account all of the relevant circumstances pertaining to the child's needs and the ability of each parent to meet those needs. Gordon v. Goertz.

[72] Before I review the evidence, it will help to understand the impressions and concerns which arose with respect to each of the main witnesses.

MOTHER AS A WITNESS

[73] The mother has worked for the federal government for ten years. She was previously a supervisor in Veteran’s Affairs. Since August 2021 she has been an immigration officer working from home, processing applications for permanent resident status. She is currently on maternity leave. She has a bachelor’s degree in psychology, and more recently she has taken multiple on-line educational courses relating to children.

[74] The mother was a very controlled, disciplined witness.

[75] She is very smart and very articulate.

[76] On most issues, she spoke carefully, with precision and a great deal of care to ensure that every fact, incident or allegation was described chronologically, and with context.

[77] Despite the emotional subject matter, and even during heated cross-examination by the father, her presentation and affect was generally calm – bordering on monotone.

[78] On most issues, she conveyed a very strong sense that she had a story to tell, and she wasn’t going to miss a detail. Even if it meant going back and filling in (or re-stating) the parts she was afraid she missed.

[79] On issues relating to her one-on-one interaction with Carson she was an excellent, highly credible and impressive witness:

a. She presented her evidence in a logical and efficient manner.

b. She had an excellent recall of dates and chronologies.

c. She was readily able to corroborate her testimony by referring to specific documents and passages in the voluminous exhibits.

d. She spoke with insight, sensitivity, and commendable child-focus.

e. She gave many examples of events or discussions which demonstrated a thorough understanding of the child’s emotional and psychological issues.

f. Her testimony confirmed her awareness of the child’s developmental issues.

g. She was able to explain her commitment to the child’s health issues in a comprehensive and entirely reassuring manner.

h. She spoke knowledgeably about the boy’s educational issues.

i. She was thoroughly able to explain and justify most parenting decisions she had made, pursuant to her authority under the August 16, 2019 final order.

[80] On issues relating to conflict between herself and the father, she was a bit more combative and shrewd.

a. She was entirely believable in cataloguing the father’s personality faults. He gave her a lot of material to work with.

b. But she appeared to be conspicuously resistant – almost offended – by the suggestion that maybe she might have contributed to the conflict as well.

c. Much of the self-represented father’s cross-examination was clumsy and ineffective. This gave the mother opportunities to re-direct the discussion, re-tell her own narrative, and at times lecture the father about the law.

d. But whenever the father got close to a potentially embarrassing question, the mother clammed up and became noticeably avoidant. She was pleasant and talkative...until suddenly she wasn’t.

e. The mother was particularly evasive in relation to the father’s pervasive theme that she and her husband Larry were doing everything possible to make the father’s life miserable. At times, when the father asked legitimate questions, the mother responded that he would have to ask Larry – even though clearly the mother had relevant information, and an obligation to answer the question.

f. The mother also stumbled when asked questions about why she kept reporting the father to CAS and the police – even though by far the majority of her allegations were determined to be either unverified or unfounded. Cumulatively, her weak explanations betrayed a proclivity to assume the worst – and an indifference to the complication she was creating for both the father and Carson by instigating multiple, highly intrusive investigations.

g. During her testimony the mother portrayed the father as an aggressive bully both during their relationship and since separation. But she glossed over (or failed to respond to) evidence that concerns had been raised about her own mental health and aggression.

h. As well, with respect to the chaotic and highly unpleasant police station exchanges, the mother had no shortage of suggestions about things the father should have done differently. But she displayed a peculiar lack of insight with respect to things she could have done to reduce the emotional upset experienced by the child on almost a weekly basis.

[81] There were a couple of occasions – only a couple – when the mother was caught in an outright misrepresentation (mainly in relation to her mostly persuasive theme that she knows Carson’s medications better than the father does). When cornered, the mother’s composure vanished and she became hostile.

[82] And on the issue of the mother’s proposal to drastically reduce the father’s time with Carson, I found her evidence to be uncharacteristically superficial and selfish.

a. Throughout her testimony she went on at great lengths about the quality and intensity of her relationship with her son; the bonding; their comfort level with one another; the importance of their daily routines and consistency. All of that was believable.

b. But when asked how Carson would be affected by a drastic reduction in the time he shares with the father – and John in the father’s household – the mother sounded like she had barely thought about it. She offered zero insight, apparently presuming that more time with mom is simply more important than less time with dad. I would have expected more from someone who itemized all of the diplomas and credentials she had amassed dealing with child psychology and child development.

[83] The mother was credible in relation to her own parenting skills.

[84] She was credible in saying that there are major problems which need to be addressed.

[85] She was less credible in alleging the father is solely responsible for those problems.

[86] And her superficial justification for her time-sharing proposal was not credible at all.

FATHER AS A WITNESS

[87] As a witness, the father was the exact opposite of the mother. In so many ways.

[88] The easiest way to describe him is as he described himself: A hothead. (Although he qualified that he’s only a hothead when someone tries to take his son away.)

[89] Except for closing submissions, during each of the 22 days of this trial he was unruly – both as a witness and in his more challenging role as a self-represented litigant.

a. He frequently interrupted the evidence of the mother, Clara and (especially) Larry with outbursts such as “Fuck You!”; “You’re a fucking liar”; and “I’m having trouble taking this shit.”

b. Indeed there wasn’t a day – perhaps not even a half-day – that the father wouldn’t disrupt proceedings with disrespectful comments; profanity; or both.

c. Apart from his verbal outbursts, the father would frequently shake his head in obvious angry disagreement with the mother, Clara or (especially) Larry.

d. At times he would put his face to the camera and glare during unfavourable testimony.

e. At times he would point his finger at the witness.

f. More often he would stage-whisper sarcastic asides, or make mocking sounds.

g. During cross-examination he would berate and argue with the mother, Clara and (especially) Larry.

[90] I had to warn and admonish the father on numerous occasions.

a. We had to take quite a number of breaks for him to settle down. Sometimes I would initiate the breaks. Sometimes the father would simply stand up while someone was talking and announce that he was leaving because he “couldn’t listen to the lies” any longer.

b. At times I had to ask the father to turn off his video so we could proceed without distraction. At times I had to ask him to turn off his audio as well.

c. During his cross-examination of Larry, the father became so rude and combative that we ultimately developed a routine of turning the father’s video off; letting the father ask a question; and then having the registrar turn the father’s audio off until I was satisfied that the witness had completed his answer without interruption. (Surprisingly, that technique worked really well. When the father knew he only had a limited window to speak, he used the time wisely, and the gaps allowed him to formulate much better questions.)

[91] As an aside, the father was never disrespectful or abusive to me.

a. Every time I told him his behaviour toward a witness was unacceptable, he stopped immediately and apologized.

b. As the days of the trial went by, I didn’t even have to say much. He would have an outburst. I would start to say something. He would immediately stop and apologize. I would ask him not to do it again. He would promise not to do it again. Then later he’d do it again.

c. Several times I reminded him of the obvious. It doesn’t look good to keep losing your temper during a trial where one of the central issues is whether you have trouble controlling your temper. He agreed it looked bad. But he insisted this years-long battle has ruined him financially; taken its toll emotionally; and he is desperately fearful he will lose his son without any justification.

d. He said his agitated emotional state is “situational” and he only reacts this way in court, when he has to deal with the mother and Larry.

[92] Court can have a complicated impact on people.

a. The more common experience for judges is that people behave better in the courtroom than in their daily lives when no one is watching.

b. There can be no doubt that the stress of protracted family litigation – and parenting trials in particular – can also make people act worse. Or cause them to testify in less than perfect ways (which could equally answer my concerns about some of the mother’s evidence).

[93] But it would be unrealistic to ignore the father’s courtroom outbursts and inability to regulate his emotions.

a. That’s precisely the kind of ongoing behaviour during exchanges which the mother quite convincingly described during her testimony.

b. The father’s aggression was confirmed by Clara and Larry (not exactly neutral witnesses). And also, to a more limited extent, by police officers April Bilton and Wendall Leytham (very much neutral witnesses).

c. The father’s aggressive and disrespectful attitude was confirmed repeatedly in some of the outrageously offensive text messages he sent to the mother on AppClose.

d. And some of the video and audio recordings submitted in evidence also revealed the father to be aggressive, angry, and/or volatile. (Although notably he’s not the only one caught on tape behaving inappropriately in front of the child.)

[94] So the father starts with a huge credibility problem when he tries to minimize or explain away his aggressive, disrespectful, and uncooperative behaviour – at least toward the adults in this bitter court case.

[95] It would be easy to dismiss or stereotype a father who behaves so badly. As a litigant, he is truly his own worst enemy. But apart from the obvious self-inflicted wound with respect to the father’s motion to take over decision-making, on the distinct issue of parenting-time he held his own – despite himself.

[96] During his evidence in chief the father was calm and reflective.

a. He wasn’t nearly as articulate and well-spoken as the mother. Certainly not as well organized.

b. But he spoke from the heart about the strength of his relationship with Carson. The strength of his relationship with his older boy John. And the strength of the relationship between the brothers.

c. The father didn’t boast any college degrees or online child psychology courses.

d. But he spoke with a sense of love, commitment, familiarity and beneficial day to day involvement with both boys.

e. On this topic he was credible.

[97] Notably, the father’s favourable description of his relationship with Carson was confirmed by CAS which knows a lot about this family.

a. The Society has consistently taken the position that the child is equally safe and happy with each parent.

b. The Society has no concerns about either party’s parenting skills or their home environments.

c. The Society’s only (and consistent) concern is that the child is being emotionally harmed by the adult conflict which both parents are exposing him to.

[98] I found the father’s evidence about the strength and importance of his relationship with Carson to be believable and compelling. Indeed, it was neither challenged nor contradicted.

[99] The father also gave a great deal of compelling evidence about the mother and (especially) Larry engaging in malicious and provocative behaviour, to ruin him financially, destroy his personal relationships, and distance him from his son. This area’s a bit complicated.

a. The father was almost trying to establish a defence of “provocation”. He acknowledged that sometimes during exchanges (and in court) he lost his temper. But he submitted that his hostility toward the mother and (especially) Larry was understandable – even justifiable – given how much mean-spirited mischief they have created in his life.

b. Provocation is no excuse for acting badly – in front of a child, or anywhere else.

c. But the father’s evidence was both relevant and credible in establishing that the intense animosity between these parties is not merely residual to marital break-up. The conflict has been greatly (and predictably) exacerbated by the litigation strategies of the mother and (especially) Larry.

d. On one level, this deliberate stoking of tensions should have made it even more clear to everyone that ongoing face-to-face exchanges at the police station (or anywhere else) were doomed.

e. On a broader level, the father’s evidence was both relevant and credible in refuting the mother’s assertion that she has always acted in good faith, and that she can be trusted to be fair to the father and promote his relationship with Carson.

[100] Throughout his evidence the father repeated a very simple theme: “You poke the bear – the bear gets angry.”

[101] Society worker Kelly Hayhurst was more nuanced.

a. She said parents can initiate conflict in different ways.

b. Some provocative actions are more obvious than others.

c. Sometimes it’s hard to tell whether there is a specific intent to initiate conflict.

d. In this case she was unable to attribute comparative responsibility for the ongoing conflict.

e. She saw signs that both parents were doing things that ended up promoting conflict.

[102] The evidence of the parents and their respective partners provided a dramatic reminder that as we try to understand and defuse high conflict cases, the court must be alive to the impact of both passive and overt aggression.

[103] But while the father was a credible witness on parenting issues, in other areas he couldn’t have made a worse impression.

a. When cross-examined about his many failures to provide financial disclosure or otherwise comply with court orders, the father was flippant, evasive, disinterested, sarcastic and rude.

b. He feigned confusion about what he was supposed to have done, even though the mother’s lawyer had previously explained her requests clearly and repeatedly (not to mention that most of the obligations were also set out in court orders).

c. He came up with lame excuses and seemed to intentionally play dumb (for example, about the difference between a tax return and a family court financial statement).

d. He kept re-directing questions back to topics he preferred to talk about.

e. At times he simply refused to answer, stating “You’ll have to ask my lawyer.”

f. He was similarly cavalier and disrespectful when asked about various occasions when he had deliberately ignored or changed a plan for Carson which the mother had made pursuant to her authority under the final order.

g. Basically the father made it clear that he’ll do what he wants, and won’t do what he doesn’t want.

[104] This father clearly has no filters.

a. Unlike the mother – who mostly maintained an impressive façade, with only a few chinks – the father was equally prone to saying the smartest and dumbest things, almost interchangeably.

b. In some ways that actually enhanced the spontaneity and credibility of his evidence.

c. Nobody trying to impress a judge would say half the things this father said.

[105] But apart from being an enigmatic witness, the father poses a difficult question for our family court system: What do we do with a bad ex-spouse – and an even worse litigant – who just happens to be a really good dad?

LARRY AS A WITNESS

[106] To better understand how the mother’s husband Larry came across as a witness, it helps to know a little about his background as he described it:

a. He is a decorated army veteran having spent 10 years in the armed forces. For a period of time he was a member of an elite helicopter squadron.

b. He is currently employed as a support counsellor for an agency assisting army veterans dealing with addiction and other issues.

c. His place of employment is ironically one block away from the father’s current residence in Brantford.

d. He is also attending university completing a double major in psychology and sociology. Prior to that, he received post-secondary education through the army as an information systems specialist.

e. From his military days he has a Level 3 Top Secret security clearance and a vulnerable sectors clearance.

[107] Larry testified as if he was still in the military, giving a dispassionate de-briefing about a mission. Except in this case his mission was clearly the father.

[108] During examination in chief, as soon as a question was presented, he embarked on a lengthy, detailed report – frequently circling back to make sure he hadn’t left out an important detail.

[109] He was conspicuously prepared, unwaveringly loyal to the mother, and went out of his way to say bad things about the father.

[110] Larry wasn’t just a witness to events. He was an active participant, bordering on agent provocateur. By the end of the trial, I agreed with the father that Larry did the mother’s dirty work.

[111] I’ll explain “Operation SunLife” in more detail later. But briefly,

a. After these motions were commenced, Larry embarked on an elaborate, detailed campaign to gather evidence to convince the father’s disability insurer SunLife that the father was committing insurance fraud, while he was off from his job as a plumber. Larry’s perseverance led to SunLife cutting off the father’s benefits (his only income) for one full year. Except it turned out the father wasn’t committing insurance fraud. It turned out Larry didn’t know what he was talking about. But he certainly knew how to create financial problems for the father, undermining his financial ability to pursue this case, and jeopardizing the father’s ability to present a plan for Carson (or provide financially for both of his sons).

b. Undaunted, Larry rejected any suggestion that he had done anything wrong. He said it was his civic duty to root out insurance fraud wherever he finds it. Even though he sent SunLife volumes of painstakingly gathered materials which turned out to be completely misleading, he assumed no responsibility for the devastating consequences experienced by the father. Larry said it was up to SunLife to decide what to do with his (mis)information.

c. Perversely Larry suggested he had actually done the father a favour by impoverishing him. The father ended up suing SunLife and won. Larry speculated that the father got a windfall settlement of around $300,000.00. Larry testified he had carefully researched the father’s insurance coverage and the father wouldn’t have been entitled to receive that much money if he had received uninterrupted payments. But once again the evidence confirmed that Larry didn’t know what he was talking about. The SunLife lawsuit ended up netting the father $113,000.00.

[112] Then there was “Operation RV”.

a. Larry had engaged in clandestine social media communications with the father, not using his regular name so the father would think he was talking to a stranger.

b. Based on those communications he told SunLife (and the mother told family court) that the father was hiding assets in the form of an expensive recreational vehicle (an “RV”).

c. All of this was intended to make the father look dishonest.

d. Except once again Larry’s inferences and conclusions were all wrong. The father didn’t own an RV. The RV belonged to the father’s father – who allowed his son to borrow the RV. Eventually the RV was sold, and the father didn’t get any of the sale proceeds – because the sale proceeds went to the registered owner.

e. But without any real evidence Larry testified that he didn’t need to see the ownership papers. He “knew” that the father actually owned the RV.

[113] Larry also hired a private investigator who followed the father around over the course of a month....and found nothing.

[114] On the witness stand – and in daily life – Larry made a concerted effort to make the father look as bad as possible. Even the mother acknowledged that the father loves Carson and that there are positives in their relationship. But Larry couldn’t bring himself to say anything nice about the father. And yet ironically, early in his testimony, he expressed disappointment that he and the father couldn’t be friends.

[115] In contrast, Larry had nothing but good things to say about the mother and her relationship with Carson. But when asked specific and potentially embarrassing questions about the mother, he became evasive and avoidant.

[116] On various topics Larry came across as a bit of a meddling know-it-all. Except in cross-examination it became evident that he didn’t really know that much. He over-reached and expressed damning opinions about the father, while having neither the evidence nor the qualifications to back them up.

[117] Larry’s animus toward the father was so transparent as to raise a number of important concerns:

a. Firstly, he was not a credible, reliable or unbiased witness.

b. Secondly, how could anyone have been surprised there would be fireworks when Larry and the father came face-to-face for weekly police station exchanges? Again, what was anyone thinking?

c. But most importantly, Larry’s pernicious interference highlighted the lengths to which he and the mother are prepared to go to ruin the father’s life; strip him of resources required to participate in this case; and undermine his financial ability to provide for both Carson and John. The mother authorized Larry’s malicious behaviour (although she tried to slightly distance herself on the witness stand). Between the mother’s unwarranted complaints about the father to police and CAS; and Larry’s heartless financial sabotage – their deeds contradicted their words about fairness and promoting a father-son relationship.

MEG AS A WITNESS

[118] The father’s fiancé Meg testified on his behalf.

a. They have been in a relationship for the past three years.

b. They have known each other much longer. They dated briefly about 12 years ago.

c. For the past 10 years she has been a risk manager with an international commodities trading firm in Toronto. Before that she did the same work for a different company.

d. She is a very intelligent, articulate person.

[119] Her evidence included a mixture of credible and less credible statements.

[120] She spoke with confidence and passion as she described the strength of the Carson’s relationship with the father and John. Her evidence about the new family unit she is building with the father was detailed and compelling.

[121] She glossed over the father’s anger management issues.

[122] She minimized her own contribution to conflict during exchanges.

[123] And she needlessly undermined her credibility by adamantly denying that she authored certain AppClose messages in the father’s name, despite overwhelming evidence. (Her explanation that the father would sometimes refer to himself in the third person made no sense.)

[124] Unlike Larry, she resisted temptation to go over the top in her praise of her partner.

[125] Also unlike Larry, she didn’t go out of her way to vilify the opposing parent.

[126] Overall, she was believable in her positive statements about the father, but less believable in portraying that she and the father were blameless with respect to the conflict.

CLARA AS A WITNESS

[127] The Applicant’s mother Clara testified on behalf of the mother.

a. She is employed as a senior inspector with the Canadian Food Inspection Agency.

b. She is also a licenced minister with the United Pentecostal Church. She is on staff at Lifepoint church in Hamilton.

[128] Clara was able to testify about a number of issues:

a. The parents met in Clara’s home when she was hosting church events. The mother lived in Clara’s home at the time.

b. After the parents separated, the mother returned to live with Clara.

c. Clara has continued to have regular contact with the mother, Carson and Larry.

d. Clara has also had more recent involvement in the ill-fated police station exchanges.

e. So Clara testified she knew the mother and her situation very well.

[129] Clara was a very well-spoken – and perhaps a bit talkative – witness, with an excellent memory on most topics.

[130] Her evidence was mostly consistent with the evidence of the mother and the Applicant’s other witnesses.

[131] She described events and discussions in a clear, sequential and internally consistent manner.

[132] Clara was very child-focussed and it is evident that she loves her grandson a great deal, and that she has a good understanding of his situation.

[133] I accept her evidence as it relates to the extreme level of conflict between the parents; Carson’s significant emotional reaction to the conflict; and Carson’s overall situation.

[134] Unfortunately – as often happens when supportive relatives testify in family court – Clara tried to be too helpful. She looked for any opportunity to say good things about her daughter, and especially to say bad things about the father. She tried to volunteer too much information.

[135] When the father attempted to cross-examine Clara about the possibility that the mother might have her own problems with mental health and aggression, Clara’s keen memory suddenly faded.

a. For example, when the father asked whether Clara had ever been told that the mother freaked out on their honeymoon and smashed a hotel room TV, Clara only reluctantly admitted that she’d heard something about a TV being broken.

b. She said she had no recollection of an incident described by the father, where the mother had a fit and caved a hole in the drywall of Clara’s home. When the father very specifically described having to repair the damaged wall, Clara seemed vaguely uncertain, but ultimately reverted to not remembering.

c. It seemed curious that Clara seemed to have no recollection of any allegations of aggressive behaviour by the mother – even though another of the mother’s witnesses (the church pastor) testified that the father specifically complained about the mother’s aggressive and irrational behaviour.

d. Clara’s absolute refusal to admit anything negative about the mother seemed even more curious, given the fact that the mother had an opportunity to deny many of the father’s allegations but failed to do so.

HAYHURST AS A WITNESS

[136] Kelly Hayhurst was the only CAS worker called as a witness, although both parties consented to numerous case notes from a number of Society workers being submitted in evidence. Hayhurst was a very helpful and informative witness.

a. At every stage she was child-focused and balanced in her description of the parents.

b. She had an excellent recollection of events and discussions.

c. Her evidence was consistent with the extensive CAS case notes and other evidence filed during the trial.

d. Neither parent challenged her methodology or the comprehensiveness of her investigation.

e. I am satisfied that she was thorough in her investigation. She was certainly thorough in her testimony and responsive to all questioning.

f. She appears to have developed a good rapport and insight with each of the parents, and a trusting relationship with Carson who felt comfortable to openly communicate with her.

g. On a file with so many serious allegations and somewhat complex personalities, it was of great assistance that Hayhurst appeared to have dug deep into this family’s dynamics.

h. I found her observations and recommendations quite helpful, and consistent with the evidence of other witnesses.

[137] Hayhurst didn’t really seem to buy into either parent’s attack on the other.

a. She emphasized that the Society’s only concern is Carson’s exposure to adult conflict.

b. She didn’t say either parent was more to blame for the conflict. She said they have a joint responsibility to shield Carson.

c. She urged the father to be less aggressive during exchanges, and particularly in relation to Larry.

d. But she didn’t let the mother off the hook. She said the mother also contributed to the conflict – whether or not she was aware of it; and whether or not she intended to do so.

e. Apart from that she described the parents in equal terms almost across the board.

f. Equal love for Carson.

g. Equal attachment.

h. Equal familiarity with his needs.

i. Equal parenting skills.

j. Equally secure home environments.

k. Equal.

CARSON’S TEACHER AS A WITNESS

[138] Carson’s teacher was the best type of witness because she was called at the last minute; she appeared not to know why she was called; and her testimony was brief and quickly resolved an issue.

POLICE OFFICERS AS WITNESSES

[139] Hamilton Police Service Officers April Bilton and Wendall Leytham were called as witnesses by the mother. Their brief testimony was not challenged:

a. They had observed separate police station exchanges which went very badly.

b. There was a lot of unpleasant interaction and the father behaved aggressively.

c. Carson was extremely upset by the adult conflict.

[140] Halton Police Service Officer Daniel Gaetan was called a witness by the father.

a. The father had complained about Larry breaching a court order, attending exchanges when he wasn’t supposed to be present, and videoing exchanges when he had been told not to do so.

b. The father had previously indicated an expectation that Gaetan would testify that he gave Larry a “warning.”

c. But Gaetan’s evidence was pretty tame. He took a statement from the father. He then spoke to Larry. They each had different versions.

d. Gaetan reported back to the father and then left it at that.

e. Gaetan had nothing bad to say about anyone.

EARLY RELATIONSHIP

[141] The parties agreed about how they met.

a. The mother and Clara have been long-standing members of the Lifepoint Pentecostal Church.

b. For a period of time the father was also a member. (As it happens, Larry is now a member.)

c. The father met the mother during the course of church meetings which Clara hosted in her home.

[142] The parties married on Valentine’s Day 2015. They disagree about why they separated a bit less than a year later in January 2016.

[143] The mother’s version:

a. Their relationship was very negative and destructive.

b. The father was regularly aggressive and verbally abusive with her.

c. He was very controlling, particularly in relation to finances.

d. The father did a lot of yelling and swearing. He would call her all sorts of unsavory names.

e. He would demean her and undermine her confidence, regularly trying to make her feel that she was crazy; that she had mental problems.

f. He would constantly tell her that she “needed help”, but not in a supportive way. He would make statements like that in a hurtful and dismissive way, trying to make her feel bad about herself.

g. Several times he told her to kill herself.

h. He would corner her and yell in her face.

i. He would order her to get money from her family.

j. He would pressure her to be untruthful in order to assist him with his ongoing custody case with Jennifer (at the time the father and Jennifer were involved in a bitter custody battle over John, although they have since patched things up).

k. After they separated, he tried to coerce her into moving back in with him “to make it look like he had a normal family”, so that it would help his custody case with Jennifer.

[144] The father’s version:

a. They didn’t live together prior to getting married.

b. Their relationship was fine until their wedding day.

c. He said on their wedding night the mother went into a rage with a number of unwarranted complaints, including resentment that at the wedding the father had spent too much time with his son John. That evening they had a terrible fight. The mother became extremely angry and violent. She smashed a TV in their hotel room.

d. The father said this was his first exposure to her “Jekyll and Hyde” personality.

e. He said during the following 10 months he came to realize that the mother had a dark side which she had hidden from him – and which she is able to successfully hide from most people.

f. She developed a pattern of everything being normal one moment, and then suddenly she would go into uncontrollable rages: becoming angry, physically aggressive and verbally abusive.

g. He said on one occasion she threw herself against a bedroom wall so violently that her back, head and elbow caved in the drywall.

h. He said she has hit him, pushed him, shoved him, thrown things at him, screamed at him, and locked him in the basement.

i. He said he hardly ever slept, and at times she would come into the bedroom while he was sleeping, rip the covers off, and stand over him screaming.

j. He said he never responded physically, but feared for his well-being.

k. The father said the mother was also very aggressive, verbally abusive and frightening toward his son John, and it was having a significant impact on the young child.

l. He said ultimately that’s why he decided to end the relationship. If he hadn’t been worried about the mother’s treatment of John, he would have tried to continue the relationship. But he couldn’t stand by and watch John witness and be the subject of the mother’s erratic and frightening behaviour.

m. Ultimately, at the father’s suggestion, the mother returned to live with her mother Clara.

[145] The father testified about the mother’s mental health.

a. He said during their year together, when he discovered that the mother was experiencing extreme mood swings and violent outbursts, he tried to get her professional help because he was still hopeful that the marriage could work out.

b. He said they went for 12 sessions of counselling with the church pastor Michael Shaw.

c. He said when the pastor learned the mother was being abusive to John, the pastor ended the counselling because he didn’t want to receive information which might obligate him to report child abuse to CAS.

d. During cross-examination, the mother’s lawyer advised she would be calling Shaw to refute the father’s evidence. The father welcomed the pastor testifying, although he speculated church members would stick together. But as it turns out, the pastor’s evidence corroborated certain aspects of the father’s narrative.

PASTOR SHAW

[146] Appearing as a reply witness for the mother, Shaw explained his connection to the parties:

a. He has been employed at Lifepoint Pentecostal Church since 2000.

b. The mother and Clara have been long-standing members of that church. For a period of time the father was also a member (he has since left).

c. Shaw is a senior pastor.

d. He provides spiritual guidance and direction for church members.

e. He also oversees some volunteer and paid staff.

[147] Shaw testified about counselling.

a. He said church staff are not counsellors and they don’t describe the assistance they provide to church members as “counselling.”

b. He said they provide advice and offer opinions to people on life and spiritual matters.

[148] The pastor testified about his involvement with Carson’s parents.

a. He met with the mother and father at different times over a number of years, both before and after they married.

b. He did not provide any advice or assistance after they separated.

c. He recalled speaking to each of them, including private discussions with the father.

d. He said most of the complaints were from the father. The father was primarily complaining that the mother was crazy, “that she was nuts”, and that there was a lot of hollering and swearing. Shaw’s understanding was that the swearing was coming from both of them.

e. He couldn’t recall learning any allegations of physical conflict between them. He testified that he would likely have remembered such allegations since he has known the mother since she was 15 years old.

f. He remembered reports of a lot of fighting and arguing and name-calling.

g. After further questioning he admitted the father mentioning the mother getting into a rage. He recalled some complaint by the father that the mother had come into a bedroom, but he couldn’t recall whether he was told that she pulled some blankets off of him. He said it sounded like there was “a tremendous amount of stuff that took place.”

h. He didn’t recall the father telling him that the mother had pushed him down some stairs or that she grabbed a steering wheel while he drove.

i. But he recalled the father describing an incident in which the mother was standing in a doorway, the father wanted to get by and had to push his way past.

j. Shaw said he can’t recall all the things he heard, but he didn’t feel anyone was in physical danger.

[149] Shaw was a neutral, credible and quite helpful witness. He testified in a very balanced manner.

a. The amount of detail he could – and couldn’t – remember about years-ago events seemed quite logical and understandable.

b. Similarly, as his questioning proceeded, he seemed to genuinely refine his recollections, adding a few more details, but emphasizing how difficult it was to remember events from so long ago.

c. Although he has known the mother longer – and continues to have a church relationship with her and Clara – he appeared to be completely balanced and fair minded in his treatment of both parents.

[150] When the mother subsequently took the stand to give reply evidence, she did not refute Shaw’s evidence. Nor did she specifically address the father’s allegations about her aggressive and destructive behaviour, or mental health issues, during their brief marriage.

SEXUAL ASSAULT

[151] The father described events after the mother moved out.

a. Two weeks after separation the mother filed for divorce.

b. He didn’t hear from her for about six months.

c. Then in about June 2016 the mother returned to the house, explaining that she wanted to return some of his belongings.

d. She told him that she had received some therapy.

e. He said that started a period of approximately four months when she came to the home every night after work. They had dinner together. They started acting as a couple again.

f. She told him she wanted to have a baby. All of her friends at the church were having babies.

g. He testified that they had consensual sexual relations and she became pregnant.

h. He said basically they had reconciled. They agreed to renovate and sell the house, relocate to a new home and find a different church. He didn’t want to return to the mother’s church because he felt the members had turned against him.

i. He said they remained together until December 2016 at which point the mother was about four months pregnant. But at the point the mother had another of her outbursts, smashing things in the kitchen, throwing things at the father, and yelling and screaming. The father said his son John witnessed the mother’s aggression and he couldn’t permit the boy to be exposed to that type of erratic behaviour.

j. Ultimately the mother said she was leaving and moved out. He didn’t hear from her again until after Carson was born.

k. The father testified that in retrospect it was clear to him that she had come back because she wanted to have a baby and she wanted to get the equity in their house. Once she had those two things, she didn’t want him anymore.

[152] The mother’s version was dramatically different.

a. After they separated in January 2016 they never reconciled.

b. On one occasion in the summer of 2016 she went to the former matrimonial home to discuss some issues with the father. While she was there, the father sexually assaulted her, resulting in Carson’s conception.

c. She later told her mother, but no one else.

d. She didn’t file a complaint and has no intention to do so.

e. She said she was overwhelmed and experienced post traumatic stress disorder (P.T.S.D.) following the incident.

f. She said she didn’t mention it when the case first went to family court because she didn’t want to talk about it. She needed to focus on her emotional well-being; on her pregnancy; and on her baby after Carson was born.

g. She mentioned the sexual assault for the very first time in a section 35.1 affidavit which she filed on this motion to change.

h. But she still doesn’t want to talk about the sexual assault. It’s too upsetting.

[153] Clara testified about the sexual assault allegation.

a. She said by January 2016 the parties had already separated and the mother was living with her.

b. She recalled that in August or September 2016 the mother returned from a trip to Brantford to deal with some issues relating to her former matrimonial home.

c. Clara said when the mother returned “she was beside herself”. She was extremely upset. Eventually the mother disclosed to her that the father had sexually assaulted her.

d. Clara said she encouraged the mother to report the assault. Clara said the mother “was so shell-shocked” that she couldn’t go to the hospital.

e. She said the mother was too upset to talk to anyone else about the assault.

[154] The father adamantly denied the allegation of sexual assault.

a. He said the mother made so many serious complaints about him in the first court case, that it wouldn’t have made sense for her to hold back on this type of complaint if it was true.

b. He said the mother was disappointed that she didn’t get her way in the August 16, 2019 order, so on the motion to change she decided she had to fabricate even more serious complaints for strategic reasons.

c. He said the malicious, unfounded allegation is evidence that the mother will stop at nothing to discredit him so she can take Carson away.

d. He resents the allegation that he is a “rapist”. (The mother never uses that word.) He feels that by waiting years to come up with the allegation, and then providing no details other than to call it “sexual assault”, the mother is destroying his reputation. During the trial he repeatedly asked that she either retract the allegation or go to the police and charge him, so he can “clear his name.”

e. The mother insisted she has no intention of pursuing criminal charges. But she said ever since the assault she has never been alone with the father – and she will never be alone with him again.

f. The father said it’s a convenient lie, to instantly portray her as the “victim” and him as the “abuser.”

[155] During this trial, the mother’s lawyer made it clear that she is not seeking any judicial finding that a sexual assault occurred. Nor could I make such a finding, given the fact that the mother provided no particulars or information. But the term “sexual assault” came to be a flash point between the parties.

a. The mother said it explains why she will never feel safe being alone with the father in any setting.

b. The father said the false allegation shows the mother is acting in bad faith and will stop at nothing to destroy him.

[156] Although the sexual assault allegation didn’t surface until after the August 16, 2019 order, it is clear that even prior to Carson’s birth in May 2017 there was an extremely high level of conflict between these parents.

CARSON IS BORN

[157] The father gave evidence about the period immediately after Carson was born:

a. He said he wasn’t allowed any contact until the baby was six weeks old. He got a letter from the mother’s lawyer informing him of the birth.

b. He said the mother demanded custody from the outset, and he had to go to court just to see his son.

c. He had just resolved a nasty parenting dispute with the mother of his older son John. He and Jennifer had made peace with one another, and he was seeing John regularly.

d. He wanted to avoid similar conflict with Carson’s mother. He wanted to be regularly involved in Carson’s life from the very outset.

e. But he said at every opportunity the mother tried to shut him out of Carson’s life.

f. She finally allowed him to see Carson in the café area of a Fortinos grocery store, three times a week for two hours at a time.

g. The father said Carson was 10 months old before the he was allowed to take the child to his home.

[158] The mother’s evidence about the early period in Carson’s life:

a. She was always willing to promote the father having a role in Carson’s life.

b. But she was not comfortable having direct contact with him. That’s why visits had to be in a public place.

c. She was still breastfeeding, so the visits had to be short and she needed to remain present with the child.

d. She was also concerned about how aggressively the father had pursued his family court claims in relation to John. She didn’t want the same sort of fight over Carson.

e. She felt it was best for the infant to remain in her custody, with the father having access.

[159] It didn’t take long for the face-to-face visits at Fortinos to go badly. The parties produced police and CAS reports in relation to an incident when Carson was four months old.

a. The mother said during a visit the father became intimidating and aggressive. She said the he tried to grab Carson out of a car seat; that the father made a scene at the Fortinos; and that he then got in his vehicle and started honking the horn at her.

b. The mother then contacted the police to file a report about his aggressive and frightening behaviour.

c. As it happens the father also contacted the police and complained that the mother had assaulted him while they were in Fortinos.

d. Police investigated and discounted the father’s complaint. After reviewing the store’s security camera recordings they concluded the mother had not assaulted the father.

e. CAS investigated and largely discounted the mother’s complaint. In a November 9, 2017 case note a CAS worker commented: “It became obvious, after speaking with (the mother) for some time, that her motivation for her call was custody/access.” The mother testified she disagreed with that assessment.

[160] That’s how all this began. And it could have ended there as well.

a. Even though the sexual assault allegation was years away, by the summer of 2017 these parents knew everything they needed to know.

b. They knew they couldn’t stand living together.

c. They knew they couldn’t stand being together.

d. They knew they were apprehensive and mistrustful of one another.

e. They had now demonstrated that they were incapable of being civil or mature in the presence of their child.

f. They knew face-to-face interactions were a disaster in 2017.

g. They confirmed all of this in 2018 when they kept returning to court with more motions and mutual allegations.

h. And by the time they signed minutes of settlement which led to the final order on August 16, 2019, the child had been traumatized by numerous unpleasant and volatile face-to-face exchanges. Police and CAS investigated multiple complaints. Nothing was getting better. Nothing was changing.

[161] If at any time in 2017, 2018 or 2019 the parents had simply accepted the reality that face-to-face interactions inevitably lead to serious conflict, their lives would have been better; Carson’s life would have been much better; and taxpayer’s would have saved hundreds of thousands of dollars from police, CAS and court budgets.

[162] Instead, they drafted and consented to a final order which entailed frequent face-to-face exchanges, with no meaningful provision to shield Carson from more adult conflict. The order specified:

19. Hamilton exchanges shall occur at the Tim Hortons at Larch Street and Currie Street, 969 Upper Ottawa Street in Hamilton and all Brantford exchanges shall occur at the Tim Hortons located at 177 Paris Road, Brantford. Access may occur at such other location as agreed to in writing. The parties shall perform the exchanges in a respectful and business-like manner.

[163] But within hours of obtaining their final order on August 16, 2019 – the same day – the parties had their next unpleasant exchange. The next of many.

[164] The father’s version:

a. He arrived at Tim Hortons to pick Carson up from the mother and Larry.

b. Despite the fact that there was a rainstorm, the mother removed Carson’s raincoat and released the child to the father wearing nothing but a T-shirt.

c. The father said he took off his shirt in the store and covered Carson with it as he took the boy to his truck.

d. He said as the mother and Larry drove past them they held the raincoat up in the car window, shaking it and pausing in the parking lot to laugh at them while Carson was caught in the rain.

[165] The mother’s version:

a. It was customary that each parent would have a coat for Carson during their time with the child.

b. She brought a coat when she was dropping Carson off. But it was a warm summer day, and when she arrived at the Tim Hortons exchange location it wasn’t raining.

c. She said immediately after the exchange occurred, as she returned to her car, there was a sudden flash rainstorm. It ended quickly.

d. She said when she was in her car she saw the father exit the Tim Hortons with Carson. He had taken his shirt off to cover Carson with it because of the rain. She said the father was yelling and waving his middle finger at her.

e. She said she didn’t think her son had much exposure to the rain. If the father had checked the weather forecast, he would have known to bring a coat for the child as a precaution.

[166] A middle finger and a soaked child. So much for “respectful and business-like”.

[167] The exchanges got worse. I heard heartbreaking evidence about Carson being repeatedly exposed to adult conflict which reduced him to tears. I’ll summarize just a few of the examples.

CHURCH EXCHANGES

[168] For a period of time, about once a month the parties did some of their face-to-face exchanges at the mother’s church. I heard evidence and received police reports in relation to conflict which arose during one such an exchange on the evening of September 22, 2019.

[169] The mother’s version:

a. It was a father-drop-off. The mother, Larry and Clara were waiting inside the church.

b. The father arrived at the church with Carson and his new girlfriend Meg. But only Meg entered the church and she started yelling aggressively at the mother.

c. The mother testified at that point she didn’t know Meg, and was surprised and confused about why this stranger was shouting at her and becoming involved in the exchange.

d. Meg kept shouting that the mother had to go outside the church to get Carson from the father.

e. The father was shouting aggressively from outside the church, repeatedly saying that he wasn’t coming in.

f. With Meg and the father each acting so aggressively, the mother said she was afraid to go outside the church and be alone with the father. She testified that she had selected the interior of the church as an exchange location because there were people around and the area is under video surveillance.

g. Carson witnessed all the commotion and the mother was quite concerned about him.

h. Eventually the father physically pushed the child in through the church door and left.

i. Meg then continued to berate the mother before also leaving.

j. The mother said both she and the child were very upset by the incident. She called the police.

[170] The mother’s husband Larry and Clara both corroborated the mother’s version of events.

[171] Meg described it differently:

a. She said in order to reduce face-to-face conflict, the father decided to wait outside the church with Carson, while Meg went inside with John.

b. Meg said she had never met the mother, but John pointed out Clara. Soon after, the mother appeared from behind Clara.

c. Meg said she asked if the mother was going to come and get her son. Meg said the mother took offence, and angrily told her not to speak to her that way. Meg testified she didn’t believe she was speaking inappropriately.

d. Meg then opened the door for the father to bring Carson in. The boy came in and joined the mother.

[172] The father corroborated Meg’s version.

[173] The mother testified that on a subsequent church exchange Meg again attended and there were more problems. The mother’s version:

a. Once again Meg started meddling and loudly berating the mother in the lobby of the church.

b. Meg said things like “This isn’t normal, what’s wrong with you?” and “What kind of mother are you?”

c. When the mother asked her to stop speaking that way in the presence of the child, Meg got louder and more insulting.

d. Meg’s shouting attracted the attention of passersby including a minister who stopped and asked if everything was ok.

e. Meg then started complaining about the mother to the minister, saying things like “Her son doesn’t love her.”

f. The mother testified she found the experience very upsetting, and Carson was also stressed.

g. The minister ended up reporting the incident to the head pastor. After church officials reviewed the video recording of the incident they issued a Trespass Notice forbidding Meg from attending the church.

[174] Again, Clara corroborated the mother’s version.

[175] Meg’s version:

a. The father and Carson accompanied her into the church for the drop-off.

b. Carson was upset, crying and screaming because he didn’t want to leave the father.

c. Larry was with the mother and immediately pulled out his cell phone and started videoing them.

d. Meg and the father left Carson with the mother, said goodbye and left.

[176] The father produced and played an audio recording of this exchange.

a. As I will discuss elsewhere, both parents were responsible for far too much audio and video recording of exchanges.

b. In this case, the 2:51 minute recording didn’t really tell the story anyone was hoping for.

c. It was muffled (having been recorded in the father’s pocket). There was a lot of background noise. There was a lot of inaudible talking, shouting and screaming.

d. And most importantly: there was the sound of a young child continuously crying and shrieking, from the moment the recording started to the moment the recording stopped.

e. It was impossible to make out who was saying what. Just a lot of chaotic shouting and arguing.

f. The father said the recording showed how unhappy the child was having to leave him and return to the mother.

g. The mother said the recording showed how much needless unpleasantness and provocation Meg and the father created.

[177] The 2:51 minute audio tape pretty much summarized the competing themes throughout this 22 day trial.

a. The mother saying: “Look what the father is doing to our son.”

b. The father saying: “Look what the mother is doing to our son.”

c. Neither of them noticing: “Look what’s happening to our son.”

[178] But the trespass notice against Meg only led to more problems. The mother’s version:

a. At a subsequent father-drop-off scheduled for the church, the father failed to appear at the designated 8:00 p.m. time.

b. The mother then observed that Meg had sent her a message in AppClose advising that since there was a No Trespass Notice in effect, the father and Meg would not be bringing Carson to the church.

c. The father took the position that even though he was not the subject of the No Trespass Notice, he wasn’t prepared to attend for the exchange unless he could bring who he wanted. He said if the mother insisted on having at least one support person with her during exchanges, he also had the right to have someone accompany him, to act as a witness to guard against false accusations. And if he couldn’t bring Meg he wasn’t coming to the church.

d. The message from Meg said that the mother would have to pick Carson up at the Hamilton police station at 8:00 p.m., failing which Meg was taking Carson to her residence in Milton and the mother would have to travel there to pick the child up.

e. The mother hadn’t received the AppClose message about the exchange location being changed until it was too late to get there on time.

f. The child was not returned to the mother that night. The mother had to contact her lawyer again, and after further court action was threatened, the child was released the following day at a Tim Horton’s in Hamilton. The mother couldn’t leave work, so her husband and the maternal grandmother went and picked up the child.

[179] The following day Larry and Clara picked up Carson from the father and John at a Tim Hortons. Like daytime soap operas, they used the three-camera format:

a. Larry and Clara each using cell phones to video the exchange for the mother.

b. John videoing for the father.

c. Carson the very reluctant star of the show.

[180] They used Tim Hortons for exchanges on other occasions. There was still a lot of tension, but not as much as at the church or police station. At least Carson got a doughnut. But at one Tim Hortons exchange the mother alleged that the father sat too close to her, and that the unwanted touching was an assault. She called the police who reviewed store security footage, and determined that the father hadn’t touched her at all.

NOV 20, 2020 ORDER

[181] The parents went on like this, week after week, creating new opportunities to ruin their son’s day. Until finally, when they decided the situation was intolerable – about three years too late – they brought emergency motions seeking a temporary change to the August 16, 2019 order, pending trial. That’s what led to the consent November 20, 2020 order.

[182] But think about what they did. And what they could have done.

[183] The November 2020 consent order provided that the father would get exactly the same amount of time with Carson – six nights out of 14 – but in a Saturday to Friday block, so there would be fewer exchanges back and forth. A good idea, reducing the number of opportunities for conflict.

[184] The parents agreed that when possible exchanges should take place through the Thrive Supervised Access Program in Burlington.

a. A great idea, eliminating face-to-face interactions.

b. The only problem was that when they agreed to this, they knew Thrive was closed because of the COVID pandemic.

c. So the great solution was really no solution at all because it wasn’t actually available.

[185] At that point, they should have stuck with the fundamentally important objective of eliminating face-to-face interactions. Find another agency or pay a private person (like a daycare provider) to be a neutral intermediary. Whatever the expense, it’s cheaper than a 22 day trial.

[186] Instead, their default position was to continue more high conflict, weekly, face-to-face exchanges at a police station.

a. They had already been using the police station regularly, and it never went well.

b. At the very least there was constant, palpable tension.

c. Usually angry shouting.

d. On many occasions the child was reduced to prolonged, hysterical crying.

e. This was the best they could come up with?

f. It’s reminiscent of the statement attributed to Einstein: “The definition of insanity is doing the same thing over and over again and expecting different results.”

g. Ironically, even after Thrive re-opened, they stuck with the police station. Because at that point nobody lived near Thrive any longer. So “what’s best” gave way to “what’s convenient.”

[187] The parties’ consent order included a couple of additional improvements, although they didn’t go far enough.

[188] They agreed that neither party would bring their spouse to any exchange.

a. This made a lot of sense because Larry and Meg never made things better.

b. Both of them were provocative and disrespectful – Larry more frequently than Meg, but Meg more egregiously than Larry.

c. And at times they fought with each other. So much for being peacekeepers.

d. Memorably, on one occasion Larry shouted at Meg that she had no right to be there because she was a non-parent – forgetting of course that Larry was also a non-parent with no better right to be there.

[189] It’s never a wise idea for angry parents to bring new partners to exchanges.

a. Dynamics become exponentially more complicated.

b. Adult jealousies and resentment can become a needless distraction.

c. The new partner invariably perceives an obligation to “stand up for their man/woman.”

d. Adding combatants can convert a fight into a brawl.

e. The stress and loyalty-bind on the child is intensified.

f. And the new partner’s utility as a “witness” is usually negligible – because just like Larry and Meg, new partners typically give evidence with transparent strategic purpose.

[190] I accept the evidence of the father that during the year since Larry and Meg stopped attending exchanges, the level of conflict has been somewhat reduced. But Carson is still being regularly exposed to intolerable tension and upset. It’s not good enough to say the child now cries hysterically less often than he used to cry hysterically. That’s no measure of progress. We shouldn’t be making him cry at all.

[191] Part of the problem is that while Larry and Meg are now (mostly) absent from exchanges, the mother still brings Clara and the father still brings his 10 year old son John.

a. The mother says she brings Clara because even at the police station she refuses to be alone with the father. But while Clara is not nearly as pugnacious as Larry was, there is still undeniable conflict between the maternal grandmother and the father. Carson is closely attached to both Clara and the father. So it’s really not good for the boy to watch the two of them regularly being hurtful toward one another.

b. The father says he brings John because exchanges occur at a time when John is in his care. And he also wants John as a witness to guard against false accusations. But as the Society has clearly explained to the father, all children – including John – should be shielded from adult conflict, rather than drawn into it as participants. The father has conscripted his 10-year-old son into the paternal “team”, in a bitter, never-ending war against the maternal “team”. CAS specifically advised the father that John should not be asked to video exchanges, but the father continued the practice. In the name of protecting one son, he’s abusing the other.

VIDEO/AUDIO RECORDINGS

[192] Another important improvement in the November 20, 2020 consent order was a new restriction prohibiting video recording by either party during exchanges. This is a very important issue, not unique to this family.

[193] With cell phone cameras now being ubiquitous, video and audio recording of children and family situations has come to be pernicious behaviour in family litigation. It can take multiple forms:

a. Electronic recordings during parenting exchanges – either overt or surreptitious.

b. Electronic recordings of the other parent (with or without the child) in other settings. Again, either overt or surreptitious.

c. Electronic recordings of the child while they are in a parent’s care – either overt or surreptitious.

[194] In this case both parties consented to my receiving a couple of audio recordings (created by each of them) and some brief video recordings. These included:

a. The mother presented a surreptitious audio recording of a police station exchange.

b. The father presented a surreptitious audio recording of a church exchange.

c. The mother presented an overt video recording of a Tim Hortons exchange.

d. The mother presented an overt video recording (which had actually been taken by the father) of a police station exchange.

e. The father presented a 30 second video “interview” he took of his son prior to an exchange, ostensibly to show how unhappy the child was about returning to the mother.

f. The mother presented two videos taken by the father from his earlier custody dispute regarding his older son John. In one brief video the father “interviewed” John about not wanting to go to Jennifer. The other video captured some arguing between the father and Jennifer while a very young John sat and played.

[195] But the mere fact that everyone consented to admissibility of these recordings begs the question of how the court should treat such recordings – and more importantly, whether parents should be creating these recordings in the first place.

[196] Notably, both parties admitted there were many more electronic recordings (primarily videos of parenting exchanges) which neither party chose to present to the court. This raised the possibility that there may be unintended consequences for prolific videographer.

a. The mother said she only produced a “sampling” of electronic evidence in her possession.

b. But the father insisted that if the mother had a huge number of videos which she didn’t want the judge to see, it must mean that either the father wasn’t doing anything wrong the vast majority of the time – or perhaps the videos showed that it was the mother and her entourage who were (equally) misbehaving.

c. He likened this to the fact that the mother had made numerous complaints to CAS and the police, in each case with no finding that the father had done anything wrong.

d. So taking videos and not producing them may inferentially vindicate the intended target.

[197] This is a reminder that in dealing with electronic recordings by parents, both the courts and the parties need to engage in a careful cost-benefit analysis.

[198] From the court’s perspective, surreptitious recordings in family law matters are strongly discouraged and are often not admitted into evidence. The court retains the discretion to determine whether the recording’s probative value outweighs the strong policy factors that lean towards its exclusion. Sordi v. Sordi, 2011 ONCA 665 (ON CA); Fiorito v Wiggins, 2015 ONCA 729 (ON CA 15); Van Ruyven v. Van Ruyven, 2021 ONSC 5963 (SCJ); Pantin v. Pantin, 2021 ONSC 6651 (SCJ).

[199] Justice Sherr addressed the issue in Hameed v. Hameed, 2006 ONCJ 274 (OCJ):

[11] ... Surreptitious recording of telephone calls by litigants in family law matters should be strongly discouraged. There is already enough conflict and mistrust in family law cases, without the parties' worrying about whether the other is secretly taping them. In a constructive family law case, the professionals and the courts work with the family to rebuild trust so that the parties can learn to act together in the best interests of the child. Condoning the secret taping of the other would be destructive to this process.

[12] I agree with Justice Henry Vogelsang who said in paragraphs [5] and [6] of Tatarchenko v. Tatarchenko (1998), 83 A.C.W.S. (3d) 792, [1998] O.J. No. 4685, 1998 14087 (ON SC), 1998 14087, 1998 CarswellOnt 4374 (Ont. Fam. Ct.):

[5] There is a wide scope for potential abuse in this practice.

[6] The reliability of such evidence is very difficult to determine, even for a trial judge who has the benefit of much more opportunity to explore all of the evidence than that enjoyed by a motions judge. The suspicious and disturbing circumstances surrounding the production of this "evidence" convince me that it should be struck in its entirety and should not be before the court.

[200] In Scarlett v. Farrell, 2014 ONCJ 517 (OCJ) Justice Spence summarized the case law in this area.

31 Although these cases may seem to take different approaches to the admissibility of surreptitious recordings of family conversations or events, in my view, all of the cases can be reconciled with one another. All the cases recognize the general repugnance which the law holds toward these kinds of recordings. However, at the end of the day, the court must consider what the recordings themselves disclose. And if the contents of those recordings are of sufficient probative value, and if, as Justice Sherr stated, the probative value outweighs the policy considerations against such recordings, then the court will admit them into evidence. It will do so having regard to the court's need to make decisions about the best interests of children based upon sufficiently probative evidence that may be available to the court.

[201] In Van Ruyven v. Van Ruyven, 2021 ONSC 5963 (SCJ) Justice Kurz urged that we maintain a vigilant approach in discouraging and scrutinizing this type of intrusive and often manipulative evidence.

[39] In the years since Hameed was first decided by Sherr J., the attempt to admit secretly made recordings by one parent of another and/or the child/ren has surged from a trickle to a gusher. I find that I am regularly provided with secret recordings that one party has made of the other, which the recording party asks me to then consider in order to prove the instability or perfidy of the other. Most of the times, the recording is an edited or selectively recorded version of a highly contentious argument between the parties.

[40] It is dangerous to the state of family law and more importantly, to the parties and children governed by it, to treat their dealings as if they were living under the Stasi in East Germany. Not everything is public and not every utterance or gesture needs to be recorded. To the contrary, routinely allowing our courts to reward a party’s attempt to secretly spy on the other by admitting the fruits of that conduct into evidence contributes to the corrosiveness of matrimonial litigation. That approach must be discouraged.

[41] The only way that judges can effectively discourage such conduct is to refrain from rewarding it. To do that, courts must presume that the prejudicial effect of those secret recordings far outweighs their probative value to our system of family law and the best interests of the children affected by it. That presumption cannot be rebutted short of evidence disclosing serious misconduct by a parent, significant risk to a child’s safety or security, or a threat to another interest central to the need to do justice between the parties and children. Short of such evidence, courts must say “hands (or phones) off” the recording feature of parents’ smart phones when they seek to secretly record each other and their children.

[202] From the parent’s perspective, the decision to create recordings of any sort – surreptitious or “in your face” – requires a balancing of potentially favourable vs. likely unfavourable consequences.

a. On the one hand you might capture some helpful evidence. Maybe even the “smoking gun” (that nobody ever seems to find).

b. On the other hand, you are certain to alienate the other parent, and inflame tensions and mistrust.

c. You should also seriously consider the potential damage to your credibility in the eyes of the judge, if your clandestine efforts end up looking unwarranted and devious.

d. And don’t ignore the impact on the child (because the judge won’t).

e. Surreptitious recording of a child is a betrayal of trust.

f. Overt recording of a child for strategic purposes is a theft of innocence. It complicates the child’s life immeasurably; heightens anxiety about parental conflict; tests the child’s loyalties; and imposes unbearable responsibility for the child to try to fix adult problems.

[203] In this trial, the surreptitious audio recordings did more harm than good, to each party’s case.

a. I heard adults screaming at each other against the constant backdrop of Carson crying hysterically.

b. They played the recordings more than once, in the hope that within the chaos I would be able to parse out which adult shouted what nasty word.

c. I’m pretty sure I heard Meg shout “loser” even though she denied it. I also heard her say that Carson didn’t want to go with the mother.

d. The father could be heard shouting words such as “fucking retard”, “fucking useless” and “mental”.

e. The father has a louder, angrier voice, so on tape he’s the more obvious combatant. But the mother’s and Clara’s voices could also be heard, giving as good as they got.

f. The adults were so busy arguing and screaming at each other that they didn’t seem to hear the boy say something that should have been obvious. “I’m scared.” That, I heard loud and clear.

[204] The audio taping also created a bit of a credibility issue for the mother.

a. As stated, the mother was an extremely well-organized, careful, meticulous witness.

b. At one point she specifically described how she was able to audio record a very unpleasant exchange at the police station using an audio recording device which had been hidden just outside the door.

c. Later, when it became evident that the recording couldn’t have been made that way, she changed her evidence to say that the recording device wasn’t hidden as she initially described, but that actually Larry was carrying it as he moved around.

d. It wasn’t a huge inconsistency. But when a witness goes to so much trouble to be very specific about everything, it’s concerning when the original precise explanation has to be changed to fit in with other evidence.

[205] More generally, the mother gave evidence about electronic recording:

a. She stated that from the very outset their exchanges at Tim Hortons were very unpleasant, with a lot of conflict. Each blamed the other.

b. She said CAS and the police all recommended that she videotape the exchanges so that there would be a record of who was misbehaving. The idea was that video recording would discourage misbehavior. Except it didn’t discourage the father.

c. She said as the child got older and became aware of the cell phone recording, she was told that it was no longer appropriate to video record exchanges, because it would add to the child’s stress. But she was advised that it was still permissible to audio record exchanges, since this could be done inconspicuously without the child being aware.

d. She said she followed professional advice and stopped using video recording. She switched to only audio recording.

e. But she said the father continued to video record exchanges.

f. As well the father enlisted the aid of his son John to video exchanges. She said CAS expressed concern about this being inappropriate for both children.

g. (There was actually a CAS case note which clarified that the Society had never recommended to the mother that she video exchanges. But the mother insisted the case note was wrong, and that for a while she had the Society’s blessing to video exchanges.)

[206] The father’s evidence about electronic recording was slightly different.

a. He said Larry and later Clara regularly created confrontations and baited him during exchanges. The mother stayed off in the corner, strategically out of the fray while others did her dirty work.

b. He wanted a record of the fact that they were constantly inflaming the situation.

c. He also wanted a record of the fact that Carson was generally very upset and reluctant to leave his care.

d. He said despite the November 20, 2020 temporary order, Larry continued to attend some exchanges and he continued to video.

e. He said the electronic recordings the mother produced were carefully edited to exclude provocative behaviour by Larry and Clara.

f. He said he knew the mother had taken video and audio recordings which would contradict her description of events during exchanges. He challenged her to produce them.

g. He acknowledged that CAS advised against either of them recording exchanges. But he said he was tired of facing false accusations. He said the mother was masterful at looking like she was completely calm and reasonable, but she sent Larry to do everything possible to provoke a confrontation.

[207] Apart from the recorded exchanges, the father produced a 30 second video of a private conversation he had with his son.

a. He introduced the video by saying it established how unhappy Carson is to go to his mother.

b. He said he took the video just before an exchange. He wanted to show the video to the mother to elicit her comment or explanation about why the child doesn’t want to be with her.

[208] The video was heart-breaking but not for the reasons the father intended.

a. In response to some clumsy and heavy-handed leading questions, it looks like Carson said what he thought the father wanted to hear. Evidence so tainted, you couldn’t possibly rely on it.

b. This was not a clandestine recording of a spontaneous, naturally flowing conversation between a father and a little boy.

c. This was an overt evidence gathering mission, with the father purposefully directing the conversation, to elicit specific statements from a trusting and distressed child.

d. The content of the recording neither proves nor disproves the father’s allegations.

e. But the manner in which the recording was created raises serious questions about parental insight and sensitivity.

[209] It is clear that these parents have become so obsessed with gathering damaging evidence against one another that they have lost track of the devastating consequences of their actions on the child.

[210] Electronic recording of parenting exchanges is a growing trend which should be strongly discouraged. It puts the child in the middle. It exacerbates tensions and creates a heightened sense of potential or imminent conflict. It clearly demonstrates that the parent holding the camera is focussing more on the litigation than the emotional well-being of the child. Guadalaxara v. Viau, 2014 ONSC 545 (SCJ); Luke v. Luke, 2014 ONSC 422 (OCJ).

[211] This court warned against these misguided home movies in Whidden v Ellwood, 2016 ONSC 6938 (SCJ):

96 Parents in custody disputes really need to stop taking photographs and videos of one another during access exchanges.

a. They should stop pretending they're assisting the court by assembling important evidence.

b. The obvious reality is that taking videos is a strategic act of aggression and escalation. The situation never improves when people pull out cameras. Usually it gets worse. Indeed, often that appears to be the intention.

c. Access exchanges in high conflict files are already tough enough for children. Pointing a camera — or multiple cameras — at the interaction merely heightens the child's unease and worry that something bad is expected to happen. That someone they love is about to misbehave. That one parent is trying to get the other parent in trouble.

d. Videos recklessly and maliciously transform an ideally brief, benign transition into a horribly unhappy and frightening experience for the helpless child. The unpleasant confrontation may last only minutes. But the emotional devastation for the child can extend for hours, both before and after the exchange.

e. Talk about spoiling a happy moment. (Again, perhaps that's the intention.)

97 How do we stop this epidemic of smartphone nonsense in Family Court?

a. Presumably parents only take these videos because they think it will help them win their case. They think it will make the other parent look bad.

b. We need to make it clear to parents that taking videos is not likely to help you win your case. It's more likely to backfire. To cause the judge to worry about your parental judgment.

c. Because taking videos raises doubts about how a loving and caring parent could be so insensitive as to place an innocent child in the middle of a needlessly inflamed and volatile situation.

d. What message is the videographer conveying to the child? "Look how bad your father is!" "I'm going to record this so everyone will see what a horrible mother you have!" "Be careful, the parent you love can't be trusted!"

e. Perhaps the more cynical and prophetical message: "Showtime!"

f. Do children really need to receive such hurtful and destructive messages, at an already tragic time in their lives?

g. When parents routinely pull out their cameras, ready to "click" at the slightest false move -- like gunslingers squaring off at the O.K. Corral — are they doing it out of love for a child? Or hate?

h. No matter what image they hope to record, it can't be as harmful to the child as the fear and apprehension automatically instilled as soon as one parent points a camera at the other.

98 Perhaps we can borrow from social media to coin a term which suitably describes judicial disdain for this type of behaviour:

a. We've all heard of the "SELFIE": A self-portrait, usually intended to make the subject look good.

b. How about a "SELFISHIE": A parent taking a disturbing video to try win in court, oblivious to the emotional trauma they are inflicting on their child.

[212] The father’s video “interview” of Carson prior to an exchange should be denounced even more strongly.

[213] It’s hard to convince parents to stop doing something, if they think there’s any chance that it might help them win their case. So we need to make it very clear to parents that eliciting recorded statements from your child not only won’t work – but it will inevitably backfire.

a. Nothing a child is compelled to say in such dubious and oppressive circumstances can be given much weight. So even if you think you’re recording valuable evidence, there’s almost zero chance that the judge will rely on it.

b. But by needlessly putting your child through such an unfair and anxiety-producing experience, there’s a 100% chance you’re going to look like a selfish, insensitive, exploitive parent.

c. If you know it won’t work, and it will only make you look bad....why do it?

POLICE STATION EXCHANGES

[214] Which leads us to another bad decision: Police station exchanges. It helps to understand the physical setting.

[215] Hamilton Mountain Police Station 30 looks like most modern police stations.

a. There’s parking lot out front.

b. A cement walkway leads to a see-through glassed entranceway.

c. The first door you come to is glass and unlocked. It leads to an interior area which the parties referred to as the vestibule. This is basically a large, empty space which is open to the public. The only time a police officer will be in the vestibule is if they happen to be entering or leaving the station (a rarity because officers usually use another entrance).

d. At the far end of the vestibule is a glass security door – locked until a police officer unlocks it electronically – leading to an interior lobby.

e. Inside the lobby is a desk which is usually – but not always – manned by a police officer.

f. Members of the public can freely enter and leave the vestibule.

g. But members of the public cannot enter the lobby unless a police officer opens that security door or unlocks it remotely.

h. If you’re in the vestibule and you want to get the attention of an officer in the lobby, you have to either gesture if you happen to see an officer, or otherwise you have to use a telephone-intercom at the security door, and explain your business.

[216] As may be evident by now, by the time the parties drafted the minutes of settlement which were incorporated in the November 20, 2020 temporary order, they already knew police station exchanges weren’t working well. They tried to fix the problem with some additional wording. But sometimes there aren’t enough words to overcome human nature.

[217] The additional wording in paragraph two of the order:

(e). when exchanging the child at a police station, the parties shall release the child immediately upon seeing the other party for the exchange in the police station lobby. The parties shall face the entrance to the station to view when the other party has entered it. At that time, the parties shall allow the child to go to the other party in a safe and appropriate manner once the other parent enters the station. The parent who has the child in his or her care shall not prevent, nor prolong, the child from going to the other parent for any other reason other than to reasonably ensure the child’s safety.

[218] Within that paragraph, seven words made Carson’s life miserable:

“....when the other party has entered it”.

[219] Here’s what happened:

a. Whether it was a father-drop-off or a father-pick-up, the mother would arrive first, with either Larry, Clara or both.

b. The mother’s party would wait inside the vestibule.

c. The father would then arrive with either John, Meg or both.

d. The father’s party would wait outside the vestibule, just outside the police station door.

e. Paragraph 2e said exchanges were to occur inside the police station.

f. But the father would refuse to physically enter the vestibule. He said he wanted to keep his distance to avoid more confrontations and false allegations.

g. So the father and his party would stand just outside the police station door.

h. The mother and her party would stand just inside the police station door.

i. They would stand – and remain – within feet of each other, looking at each other through the glass entranceway.

[220] If the father was picking up the child:

a. Carson would be inside the vestibule with the mother.

b. But frequently the mother wouldn’t release Carson until the father physically came through the door. She said that’s what the court order required.

c. So they would stand on opposite sides of the glass and have huge screaming matches.

d. The father would bang on the glass door shouting for the child to be released.

e. The mother generally remained silent, but Larry or Clara would shout back that the father had to walk through the door before they would release the child. Because that’s what the court order said.

f. This went on for many tearful minutes.

[221] If the father was dropping off the child, things went differently but not better.

a. The father would bring Carson to the outside of the station. But frequently he would linger outside with the child and talk to him quietly.

b. The father said he was trying to console Carson and convince the reluctant child to go to the mother.

c. The mother alleged the father was holding the child back and deliberately prolonging the exchange.

d. The father said Carson had many reasons to be apprehensive about going to be with the mother and Larry.

e. The mother said at pick-ups she always encouraged Carson to go to his father, but the father didn’t reciprocate at his drop-offs.

f. The father said the mother could have made transitions easier by stepping outside and greeting the child in a reassuring manner. He said instead she remained aloof at the far end of the vestibule, while either Larry or Clara engaged in conflict with the father.

g. The mother admitted she refused to come out and greet the child. But she said it was because she is afraid of the father and doesn’t feel safe coming near him. In any event, the mother insisted she didn’t need to come out because the court order specified that the exchanges were to occur inside the station.

h. The father responded that if the mother has the right to say she’s afraid of him, he has the right to say he’s afraid of her false accusations.

[222] So whether the father was picking up or dropping off, most police station exchanges became nasty, protracted events which usually led to extended periods of adults shouting and a little boy crying.

[223] The parties testified at length about how badly these police station exchanges went, and they referred to numerous police and CAS reports. I will briefly mention just some of the ongoing problems they described.

[224] At a father-drop-off:

a. Meg brought the child to the police station door but remained outside. The father was in the distant background (he said he sent Meg in the hope of avoiding conflict with the mother). The mother and Larry were inside the vestibule.

b. Carson refused to approach the building, so the mother said Meg started shouting “Go Inside!” and “Your mommy is going to call the police, do you want that?” The mother said this made Carson cry.

c. Larry went and told Meg to “stop the inappropriate coaching”. Larry told Meg to bring Carson inside pursuant to the order.

d. The father then stepped forward and started arguing with Larry. The father later complained that Larry called him a “loser” and a “retard”.

e. The mother then summoned some police officers inside the station, who eventually went out and broke up the disturbance.

f. The mother said it took about 10 minutes for the exchange to be completed, and Carson was upset and crying most of the time.

g. (Note: It is unclear why Meg couldn’t have just led Carson in through the police station door. It is equally unclear why Larry couldn’t have taken Carson by the hand when he came out to confront Meg. Instead Larry insisted that Meg bring Carson inside.)

[225] At a father-pick-up:

a. The mother, Larry and Carson were waiting inside the vestibule.

b. The father arrived and refused to enter.

c. Larry approached the father and they exchanged angry words while standing at the doorway. Carson also stepped into the doorway.

d. Larry testified he was concerned that the father didn’t realize Carson was underfoot, so Larry told the father “Watch out that you don’t hurt him.”

e. The father testified he took offence at Larry’s suggestion he might hurt his own child. So the father shouted back “Somebody’s going to get hurt.”

f. There was more arguing. The father said Larry kept making provocative statements and insulting him.

g. When the father left with Carson, he slammed the police station door so hard that it jammed.

h. The father denied that he slammed the door particularly hard. He also denied the mother’s allegation that he regularly pounds aggressively on the police station window. He said “I don’t pound, I knock like a normal person.”

i. But Officer Wendall Leytham testified that he was inside the station and heard “a big boom” loud enough to rattle the glass windows at the front of the station. Leytham said the door had been “hyper-extended inward about two inches” and it took maintenance staff more than an hour to release the door.

j. Leytham said he was familiar with the family because he had heard lots of unpleasantness during previous exchanges. He said it was always the father’s voice he heard yelling.

k. Later that evening the mother had police go to the father’s residence because she was concerned the father was intoxicated and she was worried about his state of mind. But police reported back that the father was not intoxicated, and he and the boy were fine.

l. (Note: Officers at the police station heard commotion on multiple occasions, but they were always busy doing other things. Police didn’t intervene that night until they heard a large “boom” damage their door. And their only response was to fix the door. It shows how police aren’t really equipped to “supervise” angry families who show up randomly.)

[226] At another father-pick-up:

a. The mother, Clara and Carson were waiting in the vestibule when the father arrived.

b. Clara testified that because the father refused to enter the vestibule, she picked Carson up and took him to the door.

c. She said Carson was crying because he was reluctant to go with the father. When she got to the door, the father shouted “Put him down”, and she said his tone made the child even more upset.

d. Clara said as soon as she put Carson down, he immediately ran back to the mother at the far end of the vestibule.

e. The mother consoled Carson. The father went in and got the boy and left.

f. Clara said this was one of those occasions when Carson simply didn’t want to go with the father.

g. But during his testimony the father alleged Clara had deliberately stage-managed this unpleasant exchange.

h. The father said after he left with Carson, the boy explained that he had wanted to say goodbye to the mother, but that Clara picked him up and said there was no time. The father said that’s why Carson was upset and ran back to the mother. It had nothing to do with not wanting to be with the father. He simply wanted to say goodbye to the mother, which the father said was entirely understandable.

i. The father said Clara was “messing with” his son’s emotions, by upsetting the child before the father’s pick-ups, so that it would look like the child didn’t want to be with the father.

[227] Even though the mother kept complaining the father wouldn’t enter the vestibule, on one occasion when he did enter, she accused him of trying to place something in her skirt pocket. He denied this. But she said she was very uncomfortable with how close he got, so she filled out a police report.

[228] Officer April Bilton of the Hamilton Police Service testified about her involvement with the family on August 29, 2020:

a. She was on duty, inside the station.

b. At approximately 7:30 p.m. she was called to assist in relation to a custody dispute in the vestibule area of the station.

c. She remained inside the station dealing with the mother, Larry, and Carson.

d. She observed that the father was outside the station doors. He was upset, yelling and screaming. She asked other officers to go out and talk to him, and soon after that the father left.

e. She said the mother and Larry were calm as they gave her information about conflict which had arisen during the exchange.

f. At that point Carson was with the mother and Larry. Bilton said she observed Carson to be quite upset. He was crying and shaking.

g. Bilton said she hadn’t heard any of the interaction between the father and the mother prior to her arrival on the scene.

[229] Bilton testified that she then checked police records and found seven previous reports about conflict between these parents at the police station during timesharing exchanges. She herself had been involved with three of those previous reports. She said the consistent theme in all of the reports was that the child was upset witnessing the interactions between the parents.

[230] The officer testified that she could see that the police station exchanges were actually harming Carson. And here’s another example of why police station exchanges don’t protect children:

a. On August 29, 2020 Bilton contacted a CAS worker to explain that the exchanges at the police station were an ongoing problem and that the parents were unable to effect timesharing exchanges calmly. She told the Society worker that the child was consistently upset witnessing the interactions between the parents. She suggested it would be helpful for the child if the Society could facilitate third party exchanges, so that the child wouldn’t be exposed to upsetting situations. It was an excellent suggestion.

b. The Society responded by reminding the parents – as CAS had previously told them on multiple occasions – that exposure to adult conflict was harming Carson. The parents were urged to resolve this problem, and find an alternative.

c. But even after being told by police and CAS in August 2020 that the conflict during police station exchanges was unbearable for Carson – three months later, in November 2020 – the parties signed temporary minutes of settlement continuing exchanges at the police station.

d. Had the parties been using an institutional parenting exchange service, firstly there never would have been face-to-face contacts to upset Carson. More importantly, if the exchanges were negatively impacting on the child, the service provider would have discontinued the exchanges and the parties would have been forced to find a better alternative.

e. The church kicked Meg out when she was acting up.

f. Tim Hortons would have been legally entitled to tell the parents to go away if they misbehaved during exchanges.

g. But police are powerless to stop people from bringing children to the station. It’s probably the only exchange site you could pick, where nobody can intervene no matter how badly parents muck things up.

[231] At many exchanges, there was a lot of name-calling.

a. Meg confirmed the father’s testimony that she witnessed Larry belittling the father, calling him a “faggot”, “retard”, “loser” and “deadbeat”. Larry denied saying most of those words. But he admitted that in a moment of anger he told the father, “You need to pay your child support. You’re acting like a deadbeat.” There was a certain irony to Larry making this complaint – because Larry is the one who caused the father to lose his income for a year.

b. Larry testified the father called him a “fucking cocksucker”.

c. The father said Larry would mock his voice and imitate him as if he had a speech impediment.

d. Both Meg and the father testified that Larry ridiculed Meg for wearing too much mascara, and called her “Dragon Lady”. Larry denied this, but Meg described it in so much detail and with such a sense of outrage that her complaint appeared to have some legitimacy.

e. Larry admitted he told Meg to go away because “You are not a trusted party for these exchanges.”

[232] The mother testified that after police station exchanges Carson sometimes repeats the bad words he heard, and appears confused about their meaning, and who they were directed at.

[233] During cross-examination of the mother, the father accused her of being unsupportive of his relationship with Carson.

a. He criticized her for making accusations which he described as horrible lies.

b. He said she pretends to be scared of him, when in reality she has no reason to be scared.

c. He said at police station exchanges the mother simply stands silently in a corner and refuses to say or do anything to encourage Carson to comfortably transition to the father’s care.

[234] The mother’s response:

a. She has not fabricated any allegations.

b. She is legitimately – deeply – afraid of the father, and she will continue to protect herself by never being alone with him and having as little contact with him as possible.

c. She said Carson has told her that the father has threatened to kill her and Larry. (The father denies threatening the mother, but admits threatening Larry if Larry doesn’t stop abusing Carson.)

d. The mother has never complained to police about his threats, but Larry has. No charges were ever laid.

e. She said she is deliberately passive and quiet during exchanges because she wants the transition to be quick and uneventful for the child. She wants each exchange to be completed as quickly as possible, with as little interaction between the parents as possible. She said it’s best for the parents, and it’s a lot easier for the child when the exchange occurs without any emotional upset.

f. She denied that her passive approach to exchanges meant that she was unsupportive of Carson’s relationship with the father. She suggested that if the father also quietly cooperated with a quick hand-off, exchanges would be a lot less stressful for their son.

g. She said that before and after exchanges she actively tries to encourage Carson’s relationship with his father. On route to dropping the child off she makes a point of telling the child how much fun he’s going to have, and she maintains a positive demeanor. After the child returns to her she tries to convey approval if Carson mentions things he did while in the father’s care.

h. She said for Carson’s sake she encourages the boy to have a positive relationship with the father, even if personally she is afraid of the man.

i. But she is not prepared to interact with the father in Carson’s presence, because she is too intimidated by the father.

[235] Even during the 22 days of the trial which extended over September, October and November 2021, these parents couldn’t avoid conflict.

a. There was so much hostility between the parties that they actually had to use separate parking lots at the police station.

b. But during a November 1, 2021 exchange, the father complained that the mother and Larry had gone to his parking lot, and the mother complained that the father and John had gone to her parking lot. Each alleged that these were acts of provocation.

c. In addition, the father said Larry was violating the court order by attending the exchange. Larry said he was simply driving the mother and their new baby, and he never got out of his car.

d. But mere eye to eye contact between the father and Larry resulted in more police reports being filled out.

[236] The parties testified about many similar problems during police station exchanges.

a. Larry and Clara generally corroborated the mother’s version of events.

b. Meg generally corroborated the father’s version of events.

c. The only common ground between all the witnesses: Unpleasant things happened regularly, and Carson did a lot of crying.

[237] Presumably, the parties selected a police station for exchanges expecting that there would be police officers around to keep the peace. But during dozens of exchanges, there were very few police officers and there was very little peace.

a. Most of the interaction between the parties occurred either in the vestibule or immediately in front of the station. For the most part there were never police officers in those areas to even notice what was happening, let alone to intervene.

b. Sometimes there would be an officer in the lobby area. Sometimes no one was in sight. But even officers in the lobby would not respond or intervene – even if they heard shouting – unless they were specifically summoned by one of the parties.

c. The mother and father each testified that there were times when they wanted assistance from an officer, but couldn’t find anyone. Sometimes there was a long wait when they tried to use the telephone intercom system.

d. Each party dutifully filed police reports about specific incidents during exchanges. But they seemed to be more interested in creating a paper trail for court, rather than coming to their senses and ending this misery for their son.

[238] Both parents now admit the police station exchanges have been unsuccessful. But they continue to blame each other.

a. The mother says the father should obey the court order and come inside the vestibule for the exchanges.

b. The father says at age four Carson can walk through the door on his own, and the mother is simply luring him into the vestibule so she can fabricate more complaints.

c. The mother says the father is too emotional with Carson during drawn-out drop-offs, and that he manipulates the boy into wanting to stay with him.

d. The father says Carson always runs to his dad but it takes a lot of coaxing to get him to go to his mom.

e. The mother says Carson gets upset prior to exchanges because he doesn’t like the tension and commotion which the father creates during exchanges.

f. The father says Carson never cries when he’s on his way to dad’s house, but he always cries when he’s on his way to mom’s house – because he doesn’t want to go to mom’s house.

g. The mother says Meg has done irreparable damage through her meddling.

h. The father says Larry has done irreparable damage through his meddling.

i. The list of complaints back and forth is as endless as it is pointless.

[239] The parents used most of their 22 days of trial time trying to establish the obvious: The animosity and volatility between them is so great that Carson should never witness the two of them interacting with one another.

[240] Keeping the mother and father apart is an important solution. But that’s just one part of a comprehensive restructuring which these parties require, for the sake of the child.

[241] To properly evaluate the extreme solutions which the parents have proposed regarding decision-making and parenting-time, I must consider broader family dynamics beyond the intense crucible of parenting exchanges.

[242] Again, I will mention only a few of the many situations which were described:

SUNLIFE

[243] One of the most recurring topics during this trial related to the father’s disability insurance policy with SunLife.

[244] Some background:

a. The father is a plumber by trade, but a skilled BMX rider by avocation.

b. The good part about being a BMX rider is that when he was younger he won many awards.

c. The bad part is that he had many injuries.

d. So periodically, old injuries combine with newer injuries to interrupt his ability to work.

e. That’s why he purchased disability insurance from SunLife.

[245] In October 2019 the father had to leave work for medical reasons. He applied for benefits through his SunLife disability insurance, and the company approved his claim. This was shortly after the final order in August 2019. (He said this was when he moved from Brantford to live with Meg in Milton, because he needed her help while he was disabled.)

[246] In 2020, at about the same time the mother commenced this motion to change, she and Larry embarked on a secret campaign to convince SunLife to terminate the father’s monthly disability payments.

[247] It’s unclear exactly when they started. But on July 28, 2020 the mother sent SunLife a follow-up email, to supplement a tip she had previously sent to the insurance company. Her email caption was “Additional Fraud Allegation follow-up documentation (the father’s name)”.

[248] Based on the mother’s information, SunLife terminated the father’s disability insurance payments as of July 2020.

[249] But the mother and Larry learned that the father was challenging SunLife’s decision. So they doubled down and continued to send SunLife more reasons to conclude that the father was committing insurance fraud. They went to great trouble to make sure his claim wasn’t reinstated.

[250] Larry took over primary responsibility for this mission. On November 5, 2020 he sent SunLife the following letter:

Subject: (Father’s name) Fraud

Good day,

My name is (whited out). Yesterday I called your benefits fraud report line with regards to (Father’s name and address).

He has spent the last several years having "accidents" in order to receive large cash settlements. He was injured while riding BMX racing bikes in his twenties, and continued to suffer injuries up into his 40's. He also injured his back lifting weights on more than one occasion. He has had two surgeries because of this, with the most recent being in July 2020. I have been investigating him. Besides claiming that he has "work related injuries" he is also refusing to pay child support and so on.

The reason for this message is to inform you that I had a conversation with (the father) via Kijiji about an RV that he purchased back in January of 2020 while he was in receipt of long-term disability payments from SUNLIFE. In this conversation, as you'll see, (the father) is desperate for money and is claiming that SUNLIFE has cut him off, he is going to sue them, and his injuries were from riding a BMX racing bike. It is interesting that (the father) offers this detailed information to a complete stranger.

(The father) is lying to everyone about this "work injury" that he sustained in order to make claims from your insurance company. I would encourage you to investigate this man.

Please find attached his conversation with me from yesterday.

Sincerely,

[251] Larry also sent other “tips” about the father to SunLife. He was both persistent and persuasive.

[252] Under cross examination Larry explained his actions.

a. He said he contacted the insurance company to advise them that the father was malingering and engaging in insurance fraud.

b. He said the father was very public about how he was actually injured riding a BMX bike, but he told the insurance company he had been injured at work.

c. He said “any type of fraudulent behaviour by anybody should be reported.”

d. He said even though the father was claiming to be seriously injured, he was camping with his children and doing various things which would be difficult for a person with a debilitating back injury.

e. He denied spying on the father. He said he simply reported to the insurance company the photographs and information which the father had posted on his publicly available social media.

f. He couldn’t recall if he signed his letter to SunLife. But he included with the letter numerous attachments including videos; a Kijiji exchange he had with the father concerning an RV; and copies of the father’s Facebook pages.

g. During cross-examination Larry told the father: “They investigated and found you to be dishonest so they cut off your payments from what I understand.”

[253] The father’s cross-examination revealed that Larry didn’t really know as much as he conveyed to the insurance company.

a. When asked about “several years having accidents in order to receive large cash payments”, Larry said he heard from the mother, Clara and an unspecified person at the church that the father had been involved in three car accidents over the course of three years. He said he didn’t know the details. He admitted it was hearsay. He didn’t know anything about how much money the father received.

b. When asked about what details he learned from Facebook, Larry answered that he didn’t have the father’s Facebook page in front of him so he couldn’t specifically recall some of the information that caused him to send the letter.

c. Even though Larry said the father “was lying to everyone” about his injury, Larry acknowledged that he wasn’t present when the father discussed his injury with either his boss or the insurance company. So really Larry had no way of knowing if the father had lied, because he didn’t know what the father actually told “everyone”.

d. Ultimately when challenged about the accuracy of his information, Larry distanced himself saying “this is just the tip line. I believed you to be malingering so I sent them a tip. It’s up to the insurance company to do to an investigation”.

[254] The father cross-examined Larry on his motive.

a. Larry said in the past he has filed other reports to insurance companies if he felt people were committing insurance fraud.

b. He said in this case he felt the father was malingering and he felt his information was accurate.

c. He admitted he sent a message to the father using a name the father would not recognize, in order to get information from him.

d. He said everything he told the insurance company about the father admitting he owned an RV and the father talking about his injuries and activities with his children was true.

e. He admitted he didn’t know that the RV was actually registered in the name of the father’s father. But he said that didn’t matter. The father had still spoken publicly about how he is the real owner.

f. He denied he was harassing the father or trying to create problems for him. He said the father was responsible for his own actions. He was committing insurance fraud and Larry was legally entitled to use publicly available information to disclose this to the insurance company.

g. Larry added that if the father was honest about his actions and lifestyle, Larry and the mother wouldn’t have had to resort to searching through publicly available information about the father.

h. But when pressed for examples of “dishonest” behaviour by the father, Larry gave examples which sounded more like inadequate disclosure as opposed to misrepresentations.

[255] The father cross-examined Larry about the consequences of his letter to the insurance company.

a. When asked how he felt about the fact that the father ended up having payments suspended and suffering financial hardship while trying to raise two children, Larry responded “I’m not the one who cut off your benefits. I believe SunLife did.”

b. When asked if he regretted sending the letter, Larry said he actually did the father a favour. His logic: After SunLife cut him off, the father sued the insurance company and ended up getting more money than he would have through monthly disability payments.

c. When the father asked incredulously how he was “better off” going a whole year without income until his lawsuit settled, Larry said he had thoroughly investigated the father’s insurance coverage on the SunLife website. He knew that the father got more from the lawsuit than he would have through monthly payments.

d. Larry seemed to have an answer for everything. Even if it wasn’t a correct answer.

[256] Larry’s actions and testimony in relation to the letter to SunLife raised fewer concerns about the father, and more concerns about Larry and the mother.

a. The mother was vague and evasive when cross-examined about her role in all of this. When asked what evidence she had that the father was committing fraud, the mother became uncharacteristically speechless and responded “You’d have to ask Larry for those details.”

b. But Larry came across as self-righteous and boastful. He sounded like he thought what he had done was ingenious.

c. His goal was clear: to create significant monetary and other problems for the father.

d. He showed no regard for the obvious impact his actions would have on the father’s financial situation, and on the father’s ability to provide financially for two children partially in his care – one of them being the subject of this trial, Carson.

e. Larry wasn’t trying to make trouble for a stranger. He was trying to make trouble for the ex spouse of his current partner, to undermine him during an ongoing parenting trial.

f. This was a strategic attack.

[257] Even if the mother and Larry were completely correct about the insurance fraud allegation, a question arises about their motive, timing and sensitivity to the hardship they were creating for the father.

a. During the trial, the mother and Larry each portrayed themselves as having acted in good faith in their dealings with the father. They both said they have tried hard to get along with him. They expressed surprise and disappointment that despite their efforts to be civil, the father wouldn’t reciprocate.

b. Even if their fraud allegation had been correct, neither the mother nor Larry appear to have considered how their actions might poison their working relationship with the father.

c. Nor did they consider how poisoned relations between the parents would make Carson’s life much more difficult.

[258] But as it turns out, the mother and Larry weren’t correct about any of what they told SunLife.

a. They got the facts all wrong.

b. They didn’t know anything about his injury.

c. They didn’t know anything about the nature of his claim.

d. None of the “evidence” they presented to SunLife turned out to be accurate and/or relevant.

e. The father ended up having to hire a lawyer to sue SunLife. And he won.

f. It was ultimately confirmed that he had never committed insurance fraud.

g. He should never have had his monthly disability benefits – his only income – cut off.

h. He shouldn’t have gone without any income from July 2020 until July 2021. One full year of no money while trying to fight for his child.

[259] This SunLife incident speaks volumes about some of the underlying dynamics in this complex case.

a. At first blush, the father tends to make a bad impression. He’s the one who swears, shouts, and slams doors. He’s impulsive, crude, and clearly has an anger control problem. It would be so easy to buy in to the mother’s narrative: “If this is what he’s like when we’re watching, what’s he like when we’re not watching?”

b. But this type of malicious behaviour raises a parallel set of questions about what Larry and the mother may be like when nobody’s watching.

c. At first blush the mother comes across as principled, mature, trustworthy and fair. Her “presentation” was as impressive on the witness stand as the father’s was unimpressive.

d. But this tag-team sabotage of the father’s life was exceptionally mean-spirited. And so very inconsistent with the image the mother has tried to convey.

e. The mother and Larry tried as hard as they could to destroy the father. And then they came to court expressing innocent bewilderment about why he’s in such a bad mood.

[260] The father gave evidence of another dirty trick which he attributed to the mother and Larry:

a. Someone using a fictitious female name sent a Facebook message to Meg’s former partner (the father of her children).

b. The untraceable message said Meg was “housing a dangerous man who has an affinity for young women. He is a pervert and a sexual deviant who preys on young women (and girls) and exploits them....” The inference was that Meg’s former partner should be worried about the father being around Meg’s children.

c. The father testified he was certain that the mother and/or Larry sent the message because it referred to Meg using a hyphenated last name – and the mother and Larry are the only ones who refer to her in that manner. As well, the message arose at the same time the mother and Larry were sending malicious emails to SunLife, and during the same period when they were on bad terms with Meg. The father said it was an obvious attempt to complicate and jeopardize his relationship with Meg.

d. The mother and Larry both denied any involvement with the Facebook message. And while the father thought had had electronic proof linking the message to Larry, I agreed with Larry that the evidence the father submitted didn’t establish any connection with either the mother or Larry.

e. So I am unable to make any determination that the mother or Larry were responsible for this malicious message.

f. But the father’s suspicion is certainly understandable.

g. For clarity, no evidence was presented to suggest that any of the allegations in the Facebook message are true.

[261] I don’t want to overstate the ultimate impact of the SunLife issue. The mother has many excellent traits and impressive parenting skills. But an essential part of her narrative is that she can be trusted.

a. Trusted to make good decisions.

b. Trusted to put Carson’s interest ahead of her own.

c. Trusted to recognize and promote the importance of the father-son relationship.

d. Trusted to be fair.

[262] Every day we see mothers and fathers invest thousands of hours and dollars trying figure out how to win their parenting cases.

a. Skulduggery isn’t the answer.

b. Hardball tactics rarely impress.

c. It often comes down to some basics that even their children could understand.

d. Who’s fair minded?

e. Who’s trustworthy?

f. Who’s reliable?

g. And who’s nice to the other side?

FATHER’S ATTITUDE

[263] Unfortunately, I also heard evidence of a lot of things the father did to undermine his trustworthiness and reliability.

[264] The very first paragraph in the August 16, 2019 consent final order specified very clearly that the mother “...shall have decision making authority for major issues relating to the child...(including) schooling, educational, medical, health and religious decisions...” The mother was required to consult with the father. But the order specified the mother gets to decide.

[265] It is clear that the father has never accepted the mother’s decision-making authority, even though he consented to it. Now he wants to take that decision-making authority away. But in many ways he’s been acting as if he’s already in charge. He seems to do whatever he wants – and not do whatever he doesn’t want. A few examples:

SCHOOL

[266] The father has ignored the mother’s decision-making authority over education.

a. Four-year-old Carson was supposed to start his first day of school ever in September 2021. This was a big deal for a little boy.

b. Even though the school year commenced September 7, 2021, the mother arranged with the school that Carson’s first day at school would be Monday September 13, 2021. Because of the time-sharing schedule, that was the first school day that Carson would be in her care, and she made arrangements to attend with him on his first day of school.

c. The mother notified the father of this arrangement and the rationale, well in advance. He gave no indication he would challenge her decision.

d. But the child was in the father’s care during Labour Day week. So he took it upon himself to take the child to school on September 8, 2021 without advising the mother. He was aware that this was contrary to the decision the mother had made about how the child would be introduced to school. But he overruled the mother’s authority, without forewarning or explanation to her.

e. During the trial he submitted that he acted appropriately, relying on paragraph three of the order which states: “Each party shall be responsible for day to day decisions during their time with the child.”

f. I disagree with the father’s interpretation of the “day to day decisions” clause. His interpretation would invite a free-for-all where each parent could do whatever they want whenever they have physical possession of the child. It would subvert planning and promote inconsistency. Independent decision-making authority alternating back and forth between parents is likely to invite conflict and instability for children, if parents are incapable of agreeing on joint decisions. Hennessy v. Brockett, 2021 ONSC 8280 (SCJ).

g. I find that the mother made an important decision which she was entitled to make. She advised the father and he deliberately countermanded that decision.

[267] A related issue arose with respect to a private daycare service operating at the school.

a. The mother learned that the father’s partner Meg had registered Carson in this after school program, without discussing it with the mother.

b. School officials expressed concern that Meg’s independent involvement appeared to be inconsistent with their understanding of who they should be dealing with.

c. Meg denied the allegation that she had represented herself as Carson’s step-mother. But she admitted she made these arrangements without discussing them with the mother.

d. Meg testified she didn’t think there would be a problem because she understood that the school and the on-site daycare shared the same “child profile” information.

e. But shortly thereafter there was an occasion when nobody came to pick Carson up at the end of the day. I heard conflicting evidence about who was responsible for the mix-up. But because of the manner in which Meg had registered the child, the daycare service did not have the mother’s contact information, so there was a delay in notifying the mother that no one had come to pick up the child.

f. Meg’s inappropriate involvement (authorized by the father) resulted in Carson needlessly spending extra time in the after-school program. The father ended up picking the child up late. He delivered the child to the mother at the police station at 6:22 p.m. rather than the 6:00 p.m. scheduled time. The mother said when he returned to her care the child was hungry, upset and confused about why he had been abandoned.

g. This is why even for simple things in young children’s lives, decision-making authority needs to be clearly spelled out and respected.

[268] Also on the issue of school, the mother testified that during a one-week break in the trial in September 2021, she had more problems with the father refusing to communicate on school-related issues:

a. On September 22, 2021 she texted the father because the school had notified her that he hadn’t completed the online COVID pre-screening which was required. She reminded him that it had to be done every morning. She asked if Carson went to school.

b. The next day she texted the father because once again the school had notified her that he hadn’t completed the online COVID pre-screening. She again reminded him that it had to be done daily. She again asked if the child had gone to school.

c. She testified the father did not respond to those inquiries.

d. Earlier in September she texted him about a student I.D. number which Carson’s teacher had placed in his school bag. She expressed frustration that the father appeared confused about the issue.

e. The mother testified she can’t get straight answers from the father in relation to simple school issues.

f. The father gave no evidence in relation to these allegations. But he said the mother never consults him or shares information in relation to school issues.

MEDICAL

[269] The father has not respected the mother’s decision-making authority in relation to some medical issues. It is particularly important that the parents act in unison on this topic, because Carson has ongoing problems with asthma and allergies. For example:

a. In December 2018 Carson was diagnosed with asthma by a pediatrician during an emergency room visit. The treatment prescribed at the hospital was continued by Carson’s pediatrician Dr. Oyebola. But it was important for Carson to connect with a respirologist.

b. An appointment was made for the mother to take Carson to respirologist Dr. McLaren on November 15, 2019. However, it subsequently became apparent that the child would be in the father’s care on that day. So the mother made arrangements to re-schedule the appointment to December 24, 2019 – a day when Carson would be with the mother.

c. The mother testified that pursuant to the final order she had been managing all of the child’s health issues and co-ordinating with health-care professionals. She said it was important that she be present at the initial meeting with the respirologist because she had all the background information – and she needed to be part of any ongoing treatment plan.

d. The mother emailed the father advising him that the November 15th appointment had been changed to December 24th. But the father took the child to the respirologist’s office on November 15. Even though there was no longer an appointment, the doctor’s office squeezed in a meeting.

e. The father subsequently stated he didn’t see the message in time, about the appointment being rescheduled. The mother doubted this explanation, and said that in any event he knew the mother had rescheduled the appointment when he arrived at the doctor’s office. Nonetheless he proceeded.

f. More broadly, the father felt he did nothing wrong in taking over responsibility for the initial meeting with the respirologist. He said he is just as capable as the mother, and this way the child saw the specialist sooner.

g. I do not regard the father’s action as malicious. There’s always a benefit to having a child seen by a specialist sooner rather than later. But nonetheless, his action was deliberate and inappropriate.

h. This was not an emergency situation. The mother had already been managing the medical treatment. It was important for the sake of consistency that she be present for what is generally an important first meeting with a specialist. She had the legal right to require that she be present. And it was a sensible position to take, for the well-being of the child; and for consistency in the child’s treatment plan.

i. It’s unclear why at that stage in their lives both parents couldn’t have attended that meeting. But now, of course, it’s too late for that. As I will discuss below, shielding Carson from face-to-face interaction between the parents is going to have to extend to things like doctors’ appointments (which are stressful enough for a child, even with parents who are nice to each other).

VACATIONS

[270] The father refused to co-operate with respect to a vacation.

a. The August 16, 2019 order set out that each party was entitled to an annual vacation period with the child. The vacationing parent would have to provide the other with at least 30 days’ notice of any international travel, with full details. Upon receiving such notice, the non-vacationing party was required to sign a travel consent letter.

b. In December 2019 the mother provided the father with the required notice with respect to a February 2020 vacation to Cuba which she intended to take with Larry and Carson.

c. The father refused to sign a travel consent letter unless she signed a travel consent letter allowing him to take Carson on an RV trip to Florida in March 2020.

d. However, the mother was correct in saying that she couldn’t sign his letter because he hadn’t provided sufficient information about his proposed trip.

e. It became an expensive standoff. The mother had to hire a lawyer and bring a motion.

f. Eventually the father provided more details about his proposed vacation, and they consented to one another’s trips. But it cost the mother a lot of money and grief, trying to arrange a simple vacation for the child.

g. This was one of many examples of the father stubbornly insisting the mother would have to do things his way.

DISCLOSURE

[271] The father regularly ignored court orders and disclosure requests.

a. The most obvious non-compliance: his consistent failure to enter the police station vestibule for exchanges. The father’s explanation that he thought it was safer to remain outside is a separate issue. But the fact remains that in November 2020, at a time when he was represented by counsel, he signed minutes of settlement which specifically required that exchanges occur inside the police station. He was wrong to ignore the order. (And arguably the mother might have reconsidered whether insisting on strict compliance was worth the escalation of conflict which the child was regularly exposed to.)

b. On May 11, 2021 he was ordered to file an updated 35.1 Affidavit by June 4, 2021. He never did it.

c. On May 11, 2021 and June 18, 2021 he was ordered to file an updated Financial Statement by June 4, 2021. On June 18, 2021 the same updated disclosure was ordered with a new deadline of July 9, 2021. But as of the trial the father still hadn’t produced an updated financial statement. It was only on November 18, 2021 – day 18 of the trial – that the father emailed a single pay stub (dated August 27, 2021) to the mother’s lawyer.

d. On June 18, 2021 he was ordered to provide his 2019 and 2020 tax returns and notices of assessment by July 9, 2021. All he ever produced were single page summaries of electronic filings. He said he had sent away for the documents but never received them.

e. The father did not provide required disclosure relating to his settlement with SunLife.

f. On June 18, 2021 he was ordered to pay $4,000.00 costs. Even after receiving his $113,000.00 SunLife settlement in June 2021, the father waited until September to pay that costs order. And there’s another costs order he still hasn’t paid.

g. The father has also been secretive about disclosing changes of address.

OFFENSIVE LANGUAGE

[272] The father’s regular use of offensive and disrespectful language was not only a violation of the existing order – but it constituted completely unacceptable intimidation and abuse.

[273] The August 16, 2019 final order included the following provisions:

23. Parties shall communicate with one another using an application AppClose to discuss issues involving the child, Parties shall regularly communicate via the application AppClose for issues such as activities, and the child's health.

24. All communication between the parties shall be respectful. Communication shall be child focused and deal only with issues affecting the child.

25. Neither party shall speak negatively about the other to the child or in front of the child, nor shell they allow others to speak negatively about one another in front of the child.

26. Parties shall ensure that the child is not present for any discussion involving court proceedings, children's aid society involvement, police matters or other adult issues.

[274] As stated, during the trial I was referred to hundreds of AppClose messages between the parties.

a. The mother’s messages to the father were always civil (although occasionally biting or provocative). More than 90 per cent of her communications were child focussed.

b. In contrast the father’s messages were frequently unpleasant, offensive, profane and crudely insulting. At least one-third of his messages had nothing to do with Carson. They were more of a hateful rant.

[275] The mother’s lawyer sent a November 25, 2019 letter asking him to stop. The letter included quotes from the father’s AppClose texts as of that date:

a. "are you out of your mind";

b. "nobody is playing your games except for you";

c. "you don't know how to keep your cram hole shut, and mind your business";

d. "your arrogance is astounding";

e. "you are deliberately confrontational and arrogant to think you can talk to (the father) the way you do while he is with his son";

f. "are you so ignorant and hell bent on causing shit ... ";

g. "two numb skulls";

h. "please fuck off!";

i. "what I am struggling with is you two dummies who can't seem to get a life and mind your business";

j. "nobody is playing your stupid games ... move on and find someone else to annoy";

k. "You can tell Larry he is full of shit ... I don't know how you sit in church all the while conducting yourselves like a couple clowns with nothing better to do";

l. "Is the dumb empty look on Larry face looking over and once again trying to be confrontational. That shit doesn't work with me. You two are the dumbest and most annoying people I know. Again with the mouthing off and allegations that are factless. Everyone is getting tired of you two."

m. "Not too sound like a broken record but the CAS and the police have no concerns with anything except they are getting tired of you two knuckle heads. You life is unstable and not good for Carson. Let's all go down to the church and babble in tongues and have an emotional orgasm and call it God."

n. "You deliberately and constantly are causing shit and everyone knows it. You should seriously consider getting a mental health assessment of you care so much about your son."

o. "Please have this clown (Larry) refrain from speaking to me .... There's 2 things Larry needs to understand. 1. I am His Dad. 2. If he hurts my son I will put him in a trunk."

p. "Larry is a goof, and has been nothing but another pawn in the anti Dad party. He saw several times that I had already arrived we saw him looking out the window along with several others several times. To come outside and strut around like some dumb rooster staring at us in our vehicle is inappropriate ... I am his Dad and I'm not interested in and parenting lessons from a coward who hides in church behind his phoney smiles and polite conversation and all the while doing some nasty shit. Do not speak to me, I have no interest and there is no need for it given the App."

[276] I read other insulting AppClose messages from the father in relation to the mother, including:

a. “Your disgusting language and the way you behaved tonight in front of my already upset son is not going to be tolerated. You will not call me a "Loser" u "retard" a "deadbeat dad" and a faggot in front of my son.” (The mother denied saying any of these things.)

b. “Your life is unstable not good for Carson. Let's all go down to the church and babble in tongues and have an emotional orgasm and call it God.”

c. “You should get back on your meds.”

d. “I don't care what you are ok with. You are impossible to get along with. You deliberately and constantly are causing shit and everyone knows it. You should seriously consider getting a mental health assessment of you cere so much about your son.”

e. “It's nice to see that you have a few brain cells left to rub together to understand the importance of (the father’s) presence at medical appointments and Hospital visits. Good job. 2.5 years later and if you had asked us with some manners and yank the pole out of you keester we would have no problem letting you know whether or not Carson was at the flying squirrel.”

f. “You are a liar and I intend on proving it. How dare you write that shit, and further say that you are further being victimized. You are a very sick woman. Care to change your bullshit story?”

g. “If need parenting advice from you I will ask. Until then shut your face. You are a train wreck.”

h. “Go fuck yourself.”

i. “It is nice to see that you are so miserable and have no life at all that you continue to try and sabotage mine. You have accomplished nothing by the way. You really need to get a life .. Sad you have nothing better to do.”

j. “I really think you are unwell and need to get some help. You want to spew all your ridiculous lies and then talk about what's destructive to Carson? You need help.”

k. “I do not like your tone, and your I certainly don't respect your self appointed dictatorship.”

l. “The pettiness and control you think you have is something else. Have a nice day”

[277] I read other insulting AppClose messages from the father in relation to Larry:

a. “You are one delusional little man. You will not be welcome at exchanges ever again.”

b. “Nobody is trying to fight you. It wouldn't be much of a fight. You are a mouth piece and a coward. You couldn't fight your way out of a wet paper bag. You are not worth the consequences.”

c. “You have got a very big mouth, and I'll gladly shut if for you. It is perfectly legal for two consenting adults to fight. Anytime you want to teach me a lesson you can let me know. The last guy brought a bat and a knife. Now I have his bat and his knife. So go piss up a rope and stop trying to interfere in my relationship with my son.”

d. ”Nothing you say makes any sense. You are just an uncontrolled idiot, and a lying coward, pussy piece of shit.”

e. “Next time you want to Mock and mimic (the father) for telling his son he loves him, you should walk over and do it. You are a pathetic excuse for a man. What an embarrassment you are. Why don't you just shut your face, or sit in the car. You are nothing but a big mouth idiot. I really hope someone shuts it for you one day. Carson is (the father’s) son, not yours. Grow the fuck up you immature little man.”

f. “Your pussy husband should not be allowed at exchanges ever. He Is nothing but a shit disturber, who thinks Carson is his son.

g. “Nobody wants to listen to the stupid shit that comes out of your mouth everytime you open it Larry.”

h. “Larry doing his military patrol out in front of the church. (Smiley face emoji) Please have this clown refrain from speaking to me. I have no interest in communicating with him.”

i. “Where'd you find this piece of shit! Oh yes at church ....”

[278] I read other insulting AppClose messages from the father in relation to the mother and Larry as a couple:

a. “The stupidity of you two clowns has hit a new level tonight.”

b. “I need no parenting advice from you. Keep your mouth shut, and if there's a problem you can take it too the police CAS or who ever is still listening to you dummies.”

c. “You are a disgusting lying sack of shit, and your husband is a fucken loud mouth idiot again tonight.”

d. “Your Idiot husband stands in front of the police station calling me a loser a faggot a retard and a deadbeat in front of Carson but that seems to be ok for you two dummies.”

e. “You are a couple of pathetic 9 year olds who have no life outside of trying to negatively affect mine.”

f. “You guys are fucking ridiculous.”

[279] Now. I could have given you fewer examples. And by no means did I give you all the examples. But think about how unpleasant it was just reading that quick summary. And think about how unpleasant it has been for the mother to try to dodge and tolerate such nasty, endless attacks, while still trying to co-parent a young child.

[280] The good news is that while Carson has been exposed to a lot of unpleasant shouting matches during police station exchanges, very few of these hateful written comments appear to have been verbalized in his presence.

[281] But as a court system we have to face the reality that where there is this much rage – no matter whether unilateral or reciprocal – we absolutely have to keep parents apart.

[282] The father was cross-examined extensively about his inappropriate AppClose messages:

a. He agreed communication between the parties has not always been respectful. But he said the lack of respect has been mutual. For example, he asked “Is it respectful to call me a rapist?”

b. He said since the November 2020 temporary court order, things have been going better not only with respect to the exchanges, but also in the text messages being exchanged on AppClose. He said there has been a drastic improvement in his tone and choice of words.

c. He said for the first few months of 2021 they stopped using AppClose entirely. And even when they resumed, he deliberately didn’t respond to many messages from the mother because they were self-serving and he didn’t want to get into needless quarrelling.

[283] I have already made it clear that I strongly disapprove of some of the things the mother and Larry have done. But no matter how much the father may claim provocation, no parent should ever be victimized by such verbal aggression. And while the father says things have been getting better, I agree with the mother that any improvement in their relations has been slight.

[284] Paragraph one of the final order included a common and usually laudable term:

“The Applicant shall consult with the Respondent, on all major decisions involving the child and the Respondent shall provide his input on the proposed decisions.”

[285] But as much as consultation between parents is generally beneficial for children, when a parent’s input is delivered in such an aggressive and disrespectful manner – that parent may have to forfeit their right to be consulted, simply because of their own unacceptable behaviour.

DUBIOUS CRITICISMS

[286] But as much as the father is a very much flawed ex-husband, he was also on the receiving end of some unfair accusations and criticisms.

[287] The mother made vague and completely unsubstantiated allegations of substance abuse.

a. The father acknowledged that in 1999 he had a “pretty significant head injury” from a BMX bike accident. This led to some depression and substance abuse, for which he successfully completed a Christian Drug Rehab program.

b. The father testified he was able to turn his life around. He doesn’t do drugs and he only drinks occasionally, never to excess.

c. The mother testified that while they lived together she sometimes saw him smoke marijuana. Beyond that she offered no real evidence of the father having any substance abuse problem.

d. But she and Larry frequently expressed suspicion that the father’s appearance during exchanges suggested some sort of impairment. Several times she sent police to check on him. And every time, police reported back that there was no sign of any problem or impairment, and that Carson was fine.

e. The mother even sent police to the father’s residence on two successive New Year’s Days – simply because she “knows” that people drink during the Christmas holidays, and she thought the father might be drinking. Again, police confirmed that the allegations were unfounded.

f. Larry originally testified that at times during exchanges he was close enough to smell alcohol on the father’s breath. But when he testified the following day he changed his recollection, and said that in all of this time there has only been one time that he actually smelled alcohol on the father’s breath.

g. (But hurtful behaviour spawns hurtful behaviour. One time the father sent police to the mother’s residence. Again police confirmed Carson was asleep and looked fine.)

[288] The mother made repeated complaints to CAS alleging problems with the father’s home environment, or inappropriate behaviours in the home. Again, every time, CAS went and checked the father out. They consistently reported back that the mother’s concerns were unfounded. Hayhurst testified that she was aware of the mother’s repeated allegations, but that during her involvement on the file she never found any evidence to suggest any problem with substance abuse, or any deficiency in the father’s parenting skills.

[289] The mother repeatedly criticized the father for failing to make disclosure with respect to his outstanding criminal charges in Nipissing. Except it turned out that there never were any criminal charges in Nipissing. The mother eventually abandoned the damning allegation, with no explanation as to why she had made it in the first place.

[290] The father was cross-examined about a police report regarding an incident in which a baseball bat was used as a weapon. The way the topic was introduced, it sounded like another example of the father being aggressive. But it turned out the father was the victim. He was attacked by someone wielding a baseball bat and a knife. He disarmed the assailant and held him until police arrived. He wasn’t charged. Again I heard a long story where the bottom line was that the father had done nothing wrong.

[291] During cross-examination the mother was evasive when asked if she or Larry had engaged in surveillance of the father.

a. At first she insisted the answer was no.

b. Then she speculated that her partner Larry may have acquired some information about the father. She wasn’t sure, but she emphasized that she hadn’t done it.

c. Then she acknowledged that a private investigator had followed the father. But she emphasized that Larry was the one who paid for the private investigator, so she had nothing to do with it.

d. The father then confronted her with a CAS case note in which the mother specifically referred to “their private investigator”, an obvious reference to the mother and Larry. At that point she begrudgingly acknowledged that she and Larry were both responsible for hiring a private investigator to follow the father.

e. But the mother then qualified her answer by saying that it was the private investigator who actually went out and physically followed the father – not her. So technically she wasn’t the one engaging in surveillance.

f. She didn’t voluntarily disclose the private investigator’s findings until about mid-way through the trial.

g. At that point she confirmed that the investigator came up with no damaging information about the father or his parenting skills.

h. (Larry also initially denied conducting surveillance on the father. He drew the distinction that “paying for” surveillance was different than “conducting” surveillance.)

MYSTERY HAIRCUT

[292] Another allegation against the father relating to a haircut also fizzled.

a. When Larry resumed his testimony after a weekend break, he said that when Carson returned to the mother after spending the previous week with the father, Carson had a missing chunk of hair. Both parents took pictures of everything (preparing for court). So I was shown two pictures of a little boy with a small patch of hair cut very short at the front.

b. Larry said when he asked Carson what happened, the child became very upset and gave two completely different explanations.

c. Explanation #1: He had cut his hair at school and nobody saw him.

d. Explanation #2: He found some scissors in the father’s residence and that’s where he cut his hair. He said the father told him not to tell anyone.

e. Larry immediately embraced the second explanation. He testified that it showed negligence on the part of the father, leaving sharp scissors around, unattended.

f. The father denied there were any sharp scissors in his home. And he denied that Carson’s hair had been cut in his home.

g. But Larry carefully explained that the father’s denial could not be believed, because children are carefully monitored at the school, and the children’s scissors which they use in the classroom are incapable of cutting human hair.

h. As with the SunLife insurance issue, Larry was very sure of his facts. The father was very angry about yet another personal attack.

[293] Both sides agreed that Carson’s teacher would be called to testify, to clear the air. And she did.

a. She didn’t recall noticing Carson’s hair being cut when he arrived from the father’s home in the morning.

b. She first noticed the hair was cut at the end of the school day.

c. She said she didn’t recall seeing Carson’s hair being cut. And she tries to keep a close eye on the 14 children in her classroom.

d. But she admitted that despite teacher supervision there had been previous occasions where children had cut hair (their own, or one another’s) while in class.

e. And she said the children’s scissors they use in the classroom are definitely capable of cutting human hair.

f. She said they never determined how Carson’s hair was cut.

g. But after the incident, the school immediately changed the way they store scissors.

[294] That was pretty much the end of the “dangerous scissors” allegation. It was never mentioned again. But it was yet another example of how the mother and Larry would pounce on the slightest possibility that the father had done something wrong, and hope that the evidence would follow.

[295] It’s the parenting equivalent of the board game “Battleship”. Just keep lobbing attacks. Maybe one of them will hit.

[296] In other instances, the parties made identical allegations against one another. Some serious. Others less so.

MALTREATMENT/CAAP

[297] At different times, they each alleged maltreatment of Carson by the other parent. This resulted in CAS investigations, and reports being prepared by the Child Advocacy and Assessment Program at McMaster Children’s Hospital (CAAP). Three CAAP reports were presented in evidence and discussed.

[298] The first CAAP report was dated June 2018:

a. The mother testified she called CAS because Carson had come home with really bad injuries on his head, ears, neck, and forehead; and very bad scrapes on his knees. The child had just turned one.

b. She presented in evidence a picture of a fairly large cut or gash on the child’s forehead, just below the hair line.

c. The mother said it appeared the boy was riding a bike without a helmet while with the father.

d. The CAAP report found no specific parenting deficiency. It recommended that the child wear protective gear if riding a bike.

[299] The second CAAP report was dated May 2020:

a. The mother said she called CAS because Carson returned from the father with bruises on his legs. She said they followed a pattern which resembled a hand mark. He also had a bruise on his head and a scratch on his arm.

b. Carson told her the scratch was caused by a cat at the father’s residence.

c. He also told her the other marks were caused by the father “hitting him and hurting him”. She said Carson made a fist to demonstrate a hitting motion.

d. Halton police also investigated the situation (the father was living in Milton at the time).

e. Ultimately no charges were laid, and the CAAP report concluded the injuries could have been imposed by some deliberate application of force, but they couldn’t tell for sure.

[300] The third CAAP report was dated June 3, 2021:

a. Hayhurst had requested that CAAP conduct an assessment as a result of the father’s complaint that the child had been harmed while in the mother’s care.

b. The father reported multiple bruises on Carson. The father expressed concern that the mother was hitting Carson, or that the child was not being properly supervised while riding a bike.

c. Hayhurst said part of CAAP’s role was to determine if the injuries were accidental or inflicted.

d. She said at the very least there were concerns about whether the child had been properly supervised.

e. The mother testified that Carson was learning to ride a bicycle. He used training wheels and wore a helmet. While on his bike he rode too quickly and didn’t see a slight rise in the sidewalk. He lost control and fell forward. He scraped his elbow quite badly, and got a bruise on his inner thigh from hitting the bike seat or bike handlebars.

f. She said she reported the incident to the father, but he contacted CAS because he wanted the matter investigated.

[301] The June 3, 2021 CAAP report included the following observations by pediatrician Dr. Burke Baird.

a. The four-year-old child was examined in relation to numerous bruises. The father felt the mother hadn’t provided an adequate explanation for the injuries.

b. The father expressed concern Carson is being physically abused at the mother’s home. He said Carson regularly complains of being struck and locked in his bedroom at the mother’s house.

c. The mother had advised Society worker Hayhurst that the injuries were attributable to multiple falls while Carson was learning to ride a bike. He was being supervised at the time.

d. Carson told Hayhurst that he has been struck by his mother and locked in his bedroom at her house.

e. Carson’s various bruises were nonspecific and could have been caused by falling from a bike. But it would likely have required several falls to cause all of the bruises.

f. It is not possible to confirm or rule out whether any of the bruises could have been caused by inflicted trauma.

g. The doctor was concerned about reports of physical abuse or maltreatment by other parties.

h. As with the earlier allegations against the father, the allegations against the mother could not be verified.

[302] The same month as the CAAP report, Carson suffered another injury while in the mother’s care.

a. The father characterized it as Carson’s head getting stuck in a car window.

b. The mother said the child was leaning his head on the window which was partially open. He accidentally pushed the window control button which caused the window to start closing. She said her son was leaning into the window, but he wasn’t “stuck”.

c. The father filed a photograph he took showing a bruise on the child’s cheek. He said the injury could have been much more serious. But his main complaint was that the mother hadn’t notified him of this serious injury.

d. The mother said she didn’t initially report anything to the father because she hadn’t noticed the bruise at the time.

[303] Hayhurst testified at length about the CAAP reports and more generally the allegations back and forth by the parents:

a. She said the CAAP reports confirm the Society’s experience: The mother and father have repeatedly made allegations against one another with respect to suspicious bruising, possibly inflicted injuries, and a lack of supervision.

b. Carson has made specific complaints at various times that he has been hit or treated roughly by the mother, the father, Clara and Larry. Hayhurst said there was no independent evidence that any of this had actually occurred, and Carson did not provide much context.

c. She testified that after all of these allegations back and forth were thoroughly investigated, she has no worries about the child being physically harmed by either parent, or anyone else. She said she felt the alleged mistreatment appeared to be in the context of behavioural management which was not excessive

d. Hayhurst said during home visits with each parent she has never observed anything that would suggest the child is experiencing any inappropriate parenting by either parent.

e. She said her main concern was what Carson is exposed to during exchanges when he is physically present for the significant conflict between them.

[304] Hayhurst wholeheartedly agreed with Dr. Baird’s conclusory comments in the June 3, 2021 report:

It would appear that there have been numerous allegations by different members of Carson's family of physical abuse and other forms of maltreatment by the other parties. Some of these statements have been made to an objective third-party by Carson himself.

While I do not take a position on how these statements should be interpreted, I would like to point out that it is always concerning when a child alleges being maltreated by a caregiver. Making a determination of whether allegations of physical abuse are true must not depend upon the presence of specific and suspicious injuries. Physical abuse often occurs without causing visible injury and when such injuries do occur, they are almost always self-limited. In other words, the actual and important harm from physical abuse does not manifest itself in the form of skin injury. Neither, of course, does the impact of emotional maltreatment.

The important and potentially long-lasting harm from such episodes arise from the psychological impact on the child of having a person who is entrusted with their well- being and with whom they should be able to feel physically and psychologically safe, instead, be a source of fear, intimidation and/or violence. Experienced repeatedly over time, this predictably results in emotional, behavioural and psychological difficulties for the child which, in turn, puts them at risk of further maltreatment.

“There appears to be a significant degree of animus between Carson's caregivers and that he has witnessed examples of this conflict. Carson must be shielded from such exposures. All of his caregivers and other family members must strive to ensure that he is both physically and psychologically safe in all homes where he spends time.”

[305] That’s a very powerful warning. And the mother’s closing submissions specifically relied on that passage as justification for her primary objective of reducing the father’s time with Carson to alternate weekends.

a. What?

b. Read it again.

c. These parents need to read it a dozen times.

d. Carson has, at different times, reported physical abuse or excessive discipline by both parents.

e. He has suffered injuries while in the care of each of the parents.

f. And the mother and father have contributed equally to the “animus”. Equally but in different ways.

g. The pediatrician and the CAAP team and all the CAS workers aren’t just talking to one of the parents.

h. They’re warning both of them.

i. But neither parent seems to get it.

[306] When the trial resumed on November 22, 2021 after a one-week break, the father began his testimony with more allegations about Larry mistreating Carson. The father said after a routine exchange into the father’s care, Carson mentioned that Larry was “not being nice to him.” After some follow up by the father, Carson made the following statements about Larry:

a. Larry said Carson is not allowed to wave at the father during exchanges.

b. Larry is still hitting Carson.

c. Larry is saying bad words to Carson.

d. “Larry tells me to shut the fuck up”

e. “Larry says I’m a pain in the ass.”

f. “Larry locks me in my room and hits me.” When asked where on his body, the child said “everywhere."

g. Larry and the mother “yell at each other and say bad things about the father. They say the father should “shut the fuck up.”

[307] Meg testified that she heard Carson make the same complaints, and he has said things like this before.

[308] The father said he contacted CAS about the disclosures. A worker went to interview the child at school, but the father was advised that Carson didn’t want to talk about anything bad.

[309] The father said he believes Carson’s statements are spontaneous and truthful, because they have an excellent relationship with one another, and the child feels comfortable opening up to him.

[310] He said he also believes Carson’s complaints about being hit because the mother and Larry belong to a church which encourages physical discipline of children. (The mother, Larry and Pastor Shaw denied this influence by the church.) He said he remembers how the mother treated his older son John, so she knows what she is capable of.

[311] The mother testified about these recent allegations by the father:

a. She spoke to a CAS worker who interviewed Carson at school.

b. The worker said Carson spoke about both households, saying “good things, very positive” about each home.

c. The mother reported the worker quoting Carson as saying Larry was mean to him because he wouldn’t let the child go into the laundry room. The mother confirmed that their laundry room is also a storage room containing cleaning substances, etc., and they don’t let the child in for his own safety.

d. The mother denied ever locking Carson in a room, or physically disciplining him.

e. She disputed the suggestion that Larry would say something to the child like “Shut the fuck up.” She said she and Larry don’t talk like that. Only the father curses like that.

f. The mother did not, however, deny the report by Carson that she and Larry were arguing.

[312] There were endless allegations back and forth like this. Imperfect parents, criticizing one another’s imperfections.

OTHER ALLEGATIONS

[313] I heard evidence about other issues which seemed to fuel the animosity, but didn’t assist me in the determination of Carson’s best interests.

[314] They disagreed about underwear:

a. The mother criticized the father for not always making Carson wear underwear. She said it undermines toilet training.

b. The father said sometimes on a hot day Carson prefers not to wear underwear. He said, for example, after a day of swimming the father might return Carson to the mother in pyjama bottoms, so he could go straight to bed. He said there’s no need for underwear with pyjama bottoms. He said if he’s dressing the child for an activity or to go to school, for example, Carson always wears underwear.

c. The mother said the child gets chafed with no underwear. The father said Carson sometimes get a rash because the mother doesn’t make sure he cleans himself properly after toileting.

d. Society worker Hayhurst said this was a good example of an issue where the child would be better off if the parents could communicate without mistrust and maintain consistency in the child’s life. But she said it’s not a protection concern.

[315] They disagree about video games.

a. The mother said the father allows Carson to play violent and explicit video games inappropriate for a four year old.

b. The father said he selects games (or settings within games) to ensure that Carson is not exposed to anything inappropriate.

c. The mother said some of these video games involve shooting characters.

d. The father said it’s no different than children who play with cap guns.

e. The mother said violent games are giving Carson nightmares.

f. The father said the games don’t upset Carson. Being struck by Larry upsets Carson.

g. The mother feels the father’s parenting style is not enlightened.

h. The father feels the mother has a sense of moral superiority.

[316] Again, this is more of a clash of parenting styles and values.

CHILD’S PHYSICAL HEALTH

[317] I heard a lot of evidence by both parties about Carson’s health. This became a battleground because a child’s health is obviously an important and emotional issue. But also because duelling parents often perceive that medical competence is one of those key indicators where you have to rack up a higher score, in order to “win” in family court.

[318] In relation to Carson’s physical health, they’re both pretty good parents. Whether they will ever admit it or not, they are both evenly matched.

a. To a very large extent, they have both managed Carson’s physical health issues entirely appropriately. Fortunately, although he has allergies and asthma, he’s generally a pretty healthy and well-cared for child.

b. To the extent that either of them have been less than perfect on medical issues, I would say that in isolated instances each of them has been equally less than perfect. But no major problems. They both get a solid “A minus”.

c. They have each alleged that after they picked up the child at an exchange, they discovered that Carson was more ill than they had been made aware. Their mutual reaction was to immediately blame the other parent for neglecting some issue. The evidence did not support those allegations. Young children can get sick very quickly and unexpectedly.

d. They each accused the other of not seeking out medical treatment in a timely way. I found no sign of this. There’s always a judgment call about what to do, when to call the doctor, and when to drive to the emergency department. But the evidence in this trial suggested that both of these parents fall into the over-protective category. I wish to emphasize that I saw no sign of medical neglect by either parent – even though that’s what they both insinuated.

e. They each accused the other of improperly administering prescribed medications. Unexpectedly, the mother stumbled slightly on this topic. There were a couple of instances in which she didn’t advise the father when a medication dosage was changed. As well, at one point during cross-examination she was adamant that she was correctly giving a medication once a day. She then quickly changed her story when it became clear that it was supposed to be twice a day. However, on the whole, both parties were conscientious about Carson’s medications.

f. The father tried to extrapolate isolated medication miscommunications into a general complaint that the mother refuses to keep him informed on medical issues. I reject that complaint. The mother provided clear evidence that – with perhaps a few notable exceptions – she has consistently provided detailed information about Carson’s health issues in a timely manner.

g. But the father wasn’t the only one to dwell on unhelpful complaints. Carson has a mild allergy to dogs and a more serious allergy to cat dander. The mother has no pets, and she went on at great length about how the father’s dog and cats have seriously aggravated and jeopardized their son’s health. She used this as one of her strongest arguments that Carson should spend much less time in the father’s household. But I found these allegations to be overblown and exploitive. The father used to have a dog and a cat. There were two cats in the house when he lived with Meg. There are no cats in his house now, and it’s unlikely Meg will be bringing any cats when she sells her house and moves in with the father. But much more to the point, the medical evidence was clear that the impact of such allergies can be mitigated. And the father has more than complied with every one of the medical recommendations, to successfully shield Carson from a serious adverse reaction. The mother is probably correct that in a perfect world a “no cat” policy would be best. But she is incorrect in suggesting this is a determinative issue, or that the father has been negligent in dealing with it.

h. Related to this, the mother expressed concern to doctors that Carson’s asthma was being aggravated by the father’s smoking. But as it turns out, the father doesn’t smoke. The mother said she was simply giving the doctor historical information that years ago the father smoked marijuana. The father complained that the mother presented the smoking complaint to the doctor as a “current” problem rather than historical behaviour. The bottom line: there’s no health issue related to anyone smoking. But it shows how desperate parents will pull out all the stops if they think it might tip the balance in a parenting dispute.

CHILD’S EMOTIONAL HEALTH

[319] In relation to Carson’s emotional health, both parents agree Carson is at times extremely unhappy. But they can’t agree on the cause or extent of the problem. Or what to do about it.

[320] The mother’s position:

a. She said Carson is stressed not only by the exchanges, but also by the time he spends with the father.

b. Sometimes it takes quite a while for him to settle down after he comes into her care. She said for a while he was vomiting and wetting his bed. (The father disputed this and said the mother never made such allegations at the time. Hayhurst also testified she hadn’t been made aware of the severity this complaint. In any event, the mother said more recently those behaviours have subsided.)

c. She discussed the child’s anxiety with his pediatrician, who in turn expressed concern to CAS about the risk of emotional harm to the child and the impact on his long term mental health if he continued to be exposed to so much adult conflict.

d. She said while waiting for Carson to be old enough to participate in counselling, she took many educational courses to acquire better parenting skills to equip her to deal with her son’s issues.

e. She said when she found out Carson was too young to speak to any counsellors, she met with a therapist herself to try to learn better parenting techniques to help the child.

f. She outlined the professional inquiries she made, and presented a series of certificates confirming her completion of a number of online educational courses. She said many of the courses built upon her own background with a bachelor’s degree in psychology.

g. The mother also listed other professional inquiries she had made to assist Carson with his emotional health and development.

h. She said she and Larry are doing what they can to address Carson’s mental health. They want to set up counselling for the child, but the father is resistant.

[321] The father’s position:

a. He said Carson is stressed primarily by the face-to-face exchanges, but also by the way the mother and Larry treat the child during their time.

b. He insisted that no matter how upset the child is during an exchange, the moment Carson is in his care, he cheers up and there are no more problems. He said when he’s returning Carson to the mother, she accuses him of making their son cry – but the real reason he’s crying is that he doesn’t want to return to the mother and (especially) Larry.

c. He said the solution is to eliminate face-to-face exchanges. He never wants to see the mother or Larry again for the rest his life. He’s sure that if they can just figure out a way to exchange the child without meeting, Carson’s emotional health will be just fine.

d. He was inconsistent about the need for counselling. At times he said he’d be willing to consider it, but it was clear he hasn’t given it much thought. At other times he said it’s the mother and Larry who need counselling, not Carson.

[322] Hayhurst testified about her interactions with the child.

a. She said when she first met Carson in March 2020 the child was younger and not very communicative with her.

b. With time as he got a bit older and more comfortable with her, he became more verbal and spoke more openly.

c. Hayhurst said at every stage Carson has expressed being emotionally distraught about the level of conflict between the parents during exchanges.

d. As he got older he went into more detail about how upsetting he found the ongoing conflict during exchanges.

e. She said Carson’s statements have been consistent. She had no reason to conclude he is being coached by either parent. She said it was possible he was overhearing adults speaking and that this might influence his statements to her.

[323] The Society has strongly advocated that counselling be arranged for Carson – and for the parents! But Hayhurst confirmed that mental health resources are limited for young children. She supported the mother’s plan of educating herself while she places Carson on multiple waiting lists, so the child can get help as soon as a spot becomes available.

[324] As it happens, a counselling opportunity came to be available during the middle of the trial. And it highlighted the parent’