Robert v. Louisseize, 2022 ONSC 1756

Court File and Parties

COURT FILE NO.: FC-13-1858-1 DATE: 2022/03/25 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Carl Justin Robert Applicant – and – Sophie Louisseize Respondent

Counsel: Allison Campbell, for the Applicant Respondent, Self-Represented

HEARD: September 27 to October 1, 2021

REASONS FOR DECISION

Somji J.

Overview

1The parties are both loving parents to their 12-year old child A.J.R. (“child”). The father and mother each have disabilities, but notwithstanding the challenges of these disabilities, they have worked very hard to ensure that the child’s physical, mental, and emotional needs are met. They are both committed parents focused on ensuring A.J.R.’s well-being above all else.

2In September 2013, the court ordered that on a temporary basis, the mother would have decision-making responsibility for the child, and on a final basis, that the child’s primary residence would be with the mother with parenting time for the father on alternate weekends. Following the Order, the parties faced some parenting and communication challenges. In addition, the child requested more parenting time with her father and consequently, the father brought a motion for change seeking decision-making responsibility and to have the child reside primarily with him with parenting time for the mother on alternate weekends. The father’s proposed parenting arrangement is consistent with the recommendations of Victoria Norgaard, Clinical Investigator, Office of the Children’s Lawyer (“OCL”).

3The mother opposes the father’s application on parenting time, but is agreeable to shared parenting with the child following a week on/week off schedule. The mother also wishes to maintain final decision-making responsibility on matters of health and education, but supports the father having final decision-making responsibility on other issues such as dental care and extracurricular activities. Both parents agree that they should be reasonably consulted on all issues, but to avoid holdups in decisions, they request the court to assign final decision-making responsibility to one or the other parent.

4The matter proceeded to trial over four days in the fall of 2021. The mother represented herself. Each parent testified. I heard testimony from Ms. Norgaard as well as Denise Desaulniers of the Ottawa Children’s Aid Society (“CAS”). I reserved my decision. However, because the mother was agreeable to shared parenting, I ordered that on consent of the parties there would be a temporary order that each party have 50 percent parenting time with the child: Endorsement Justice Somji, October 14, 2021. Both parents rely on subsidized housing. The temporary order for shared parenting allowed the father to apply for a two-bedroom residence.

5Both parents were remarkably respectful towards each other during their testimony. They were candid about various parenting issues, their personal shortcomings in co-parenting and communication, and the daily challenges they face because of their respective disabilities. I find the facts in this case are largely not in dispute because neither parent denied events when confronted and each parent took responsibility for their own conduct. I was impressed by their testimony and accept the evidence of both parents. Hence, this case does not turn on the credibility of the parents, but rather, the challenge of determining what parenting arrangement is in the best interests of this child as she enters her teenage years and given her express wish to spend more time with her father.

6The issues to be decided are:

1. Has there been a material change in circumstances to review parenting?
2. What parenting schedule is in the best interests of the child?
3. Which parent should have final decision-making responsibility and on what issues?

7Upon consideration of all the evidence, I find that it is in the best interests of the child that the parents have shared parenting time with A.J.R. on a week on/week off basis. The exchanges should take place on Fridays. With respect to decision making, I find that it is in the best interests of the child that the parents reasonably consult one another on all issues. However, the mother will have final decision making on medical and educational issues while the father will have final decision making on all other issues.

The involvement and recommendations of the OCL

8Before considering the legal issues to be decided, it is necessary to address the involvement and recommendation of the OCL as their intervention is relevant to understanding the changes in this family circumstances.

9The court must determine an appropriate parenting arrangement based on the best interests of the child. Part of that assessment includes understanding the child’s wishes which were conveyed to the court through the OCL. The OCL, however, also played an important role in informing the court of the child’s developmental needs to ensure a parenting arrangement is ordered that accords with the child’s best interests. For this reason, it is important to address the findings and recommendations of the OCL in this case.

10On June 28, 2019, the court ordered the involvement of the OCL. Ms. Norgaard was assigned in August 2019 to investigate the matter. She prepared an Interim Report dated December 24, 2019 (“Interim Report”) as well as a Final Report dated October 30, 2020 (“Final Report”). Ms. Norgaard interviewed the child three times in 2019 and twice again in August 2020. She observed the child in the home and presence of each parent in 2019 and 2020 and also interviewed the child’s school and health professionals. Ms. Norgaard reviewed some CAS documents in 2019 and had an opportunity to interview Denise Desaulniers in August 2020.

11The Interim Report identified that both parties had challenges that impacted their parenting. Concerns were raised about the father’s use of medication, sleep dysregulation, high engagement in online activity, and hesitancy in accepting the child needed to address certain developmental issues. Ms. Norgaard found that the mother would benefit from counselling and support services to deal with her anger issues and to recover from her own past negative experiences with service providers that were impacting her ability to deal with professionals from the child’s school. It was also recommended that both parents work on their communication skills to minimize the child’s exposure to adult conflict.

12Ms. Norgaard found that each parent had strengths that they have drawn upon to contribute meaningfully to the child’s care and upbringing. Consequently, it was her view that it was in the child’s best interests to have a parenting plan that capitalized on each parent’s strengths rather than empowering one parent and minimizing the other. For this reason, she recommended the parents try a shared parenting schedule for six months which they agreed to.

13In her Final Report, Ms. Norgaard reported that both parents readily implemented the recommendation for shared parenting but made little progress on following through with their own or the child’s counselling needs. Ms. Norgaard found that the father would benefit from a parenting course that would build his parenting skills, enable him to better understand the child’s special needs, and manage conflict with the mother. She also found he could benefit from some individualized support to deal with the issues identified in her Interim Report.

14Although Ms. Norgaard recognized that the father had outstanding parenting issues to address, she concluded that the father was better able to communicate with the child’s service providers than the mother, particularly school officers. She opined that the mother was a quiet and gentle person and that in order for the child to get the services she needed, someone had to be the “squeaky wheel”. She felt the father would be in a better position to access services for the child. For this reason, Ms. Norgaard recommended in her Final Report that decision-making authority be transferred to the father, that the child have primary residence with him, and that the mother have parenting time for five days in every two-week period.

15Both parents provided explanations to Ms. Norgaard and at trial for the delay in accessing services in the period between the two reports. The father told Ms. Norgaard he did not attend the father support group because of the cost and because he did not believe it would benefit him. However, during the investigation update, the father acknowledged his parenting skills might benefit from such a course. At the time of trial in September 2021, the father had nearly completed a 16-week course on parenting with confidence and was also scheduled to start another parenting course for dads that had been delayed due to COVID-19.

16The father addressed at trial that he had addressed many of the concerns identified by Ms. Norgaard and also the mother. He acknowledged he has attention deficit hyperactive disorder (ADHD), sleep dysregulation, obsessive compulsive disorder, and is also blind in one eye, but explained that these things no longer interfere with his parenting. He uses computer systems and timers to remind him of everything ranging from waking up, when he or the child should take medication, when to pick up and drop off the child, appointments, and even bedtime. Denise Desaulniers remarked at the father’s impressive system when she attended a home visit and testified she had no concerns about the impact of his disabilities on his parenting.

17The father acknowledged at trial that he overshares with his daughter, but he is very careful not to say negative things about the mother. He has a very close bond with the child and they are playful together. When asked how he intended to manage things going forward such as decision making and co-parenting, he replied that since the start of this court proceeding, his communication with the mother has improved significantly. They have managed decision making a lot better and have fewer disagreements.

18The mother is paralyzed from the waist down and has been in a wheelchair since birth. She graduated from high school and studied at Algonquin College but had difficulty working in her adult life. She testified about her experiences growing up with a disability as well as challenges in parenting when one is wheelchair bound. CAS became involved even before the child’s birth to ensure she had the supports she needed to raise an infant. She described the accommodations that had to be made to raise a child under her circumstances including special cribs, baths, and slings to carry the baby. She testified about the frustrations in not being able to do what others could do and the constant fear of not being able to protect the child. For example, if the child were to run away at the park or someone would grab her, she would be limited in her ability to catch her. I found her evidence to be genuine and insightful. It was not intended to elicit sympathy. I found her evidence provided context about the challenges of parenting with a disability and helped explain some of the reasons why she has struggled with depression, anxiety, and anger and how this has contributed to her inability in certain periods to effectively deal with service providers.

19The mother acknowledged in cross-examination that in 2016 she was having personal difficulties and that there had been a breakdown in her relationship with the school because she had stopped communicating with them following which they started to deal with the father. She explained that some of her own responses were possibly due to anxiety and depression but some were also rooted in long-term insecurities from her own experience dealing with service providers. In cross-examination, she acknowledged that she would get angry with the father and say unkind things when he expressed his opinions. She acknowledged she was often accusatory in their conversations. She distrusted the father and feared he was trying to take the child away from her.

20However, in March 2020, the mother started working closely with Ms. Desaulniers on parenting as well as her personal issues. Ms. Desaulniers assisted her in developing self-confidence and identifying resources in the community where she could get further help. By the summer of 2021, the mother was obtaining counselling services in the community and attending group meetings. She also contacted the Crossroads Children’s Centre and met with a counsellor to better understand her child, identify cues and signs of the child’s anxiety, and respond in appropriate ways. Later, another Crossroads counselor attended her home to assist her on how to respond to the child’s needs, communicate with the child, and get the child to engage in various activities. Finally, in the year preceding trial, the mother worked closely with her doctor to access resources that could help her with depression and anxiety and also started a new medication regime. Consequently, the mother testified that while things are not 100 percent, she is more self-aware, better able to manage her emotions, and that communication with the child, the school, and the father have all improved.

21The mother’s evidence was corroborated by Ms. Desaulniers. She confirmed she has been working with the mother on a variety of issues including the condition of her home, her relationship with her child, and personal issues. She testified that following the OCL’s interventions, the mother took steps to get help. She acknowledged that it took some time for the mother to access services, but by July/August 2021, the mother was addressing her anxiety, anger, and depression. The mother was also working with her own doctors to obtain medication for her depression. Ms. Desaulniers witnessed a remarkable change in the mother’s attitude. Previously the mother was insecure, scared to express her feelings, and fearful of losing the child. The mother is now better able to confront issues and responds to challenges by asking what is best for the child.

22Ms. Desaulniers testified that since the mother started on this healing path, she has made remarkable strides in developing her self-confidence and dealing with personal issues that were undermining her relationship with both the child and father. Ms. Desaulniers testified that there was a visible change in the mother over the months she worked with her. Previously if there was a problem at the school, the mother would be unable to act out of fear of being judged. As a result, the mother would often procrastinate. Ms. Desaulniers noticed that through counselling, the mother’s self-confidence has improved and she is better able to confront issues. When asked what the priority should be for the mother going forward, Ms. Desaulniers stated that the mother should continue with her personal work to increase her self-confidence and stop seeing herself as a victim because of her disability.

23Ms. Norgaard’s reports were thorough and immensely helpful in understanding the history and dynamics of this particular family. While I have considered both OCL reports and Ms. Norgaard’s testimony in assessing an appropriate parenting arrangement, I do not agree with her recommendation that decision-making responsibility and primary residence should be transferred entirely to the father. This is because between the time of the Final Report in October 2020 and the trial in September 2021, there were significant changes in the circumstances of both parents and the child that, through no fault of Ms. Norgaard, were not considered. For example, at the time of the Final Report, the plan had been for the child to transfer from a French to an English school. This would have allowed the father to have greater involvement in the child’s education since the father does not speak French. This was an important point because Ms. Norgaard’s recommendations were partly based on her observation that the father was more responsive to calls from the school and would be more effective in dealing with the school providers in the future. The assumption was the child would be an English school. However, that plan did not materialize and the child attends a French middle/high school. Ms. Norgaard acknowledged in cross-examination that she was not aware of this change in plan.

24In addition, Ms. Norgaard rightly identified that the child had special needs and would have to access specialized services. Since the mother had a breakdown with the school and the father had been more responsive in following up, Ms. Norgaard believed that transferring decision-making responsibility and primary residence to the father would better ensure the child received the services she needed in the future.

25I do not find, however, that the mother’s breakdown in communication with the school in 2016 and possibly other times in the past is determinative of her ability to meet the child’s needs in the future. As discussed further below, the mother has been actively involved in the child’s care since birth. For many of the early years, she was the primary caregiver. She has taken the child to all medical visits and followed up with professionals to assist the child with issues of anxiety. As a French speaker, she has been responsible for helping the child with her homework and schooling.

26Furthermore, the mother has been remarkably resourceful in eliciting help from community resources to get her through difficult times in parenting. For example, because it was difficult to teach the child to walk from her wheelchair, the mother would go to a community health centre once a week where they would work with the child. When the mother could not do all the things she wished with the child, she would send the child to a family that could and the child would play sports, hike, and go horseback riding. When the school indicated a possible ADHD diagnosis, the mother followed-up with health care providers to obtain treatment. The mother’s commitment to the child’s well-being has not wavered. In fact, it was the mother who contacted Crossroads to obtain services for the child following the recommendations of the Interim Report.

27Finally, since the Final Report, the mother has started to engage in her own treatment, and as observed by Ms. Desaulniers, is better able to deal with service providers involving her child whereas previously, her own fears and anxieties caused her to procrastinate or distrust those service providers. Consequently, I find that many of the concerns around the mother’s lack of engagement with service providers that formed the basis of the OCL recommendation have now been addressed. Notwithstanding that the mother has had many personal issues to contend with, I find that she has demonstrated that when parenting issues arise, she will listen, take responsibility for her own conduct, and engage in steps to address the issue in the best interests of her child. For these reasons, while I have considered the final OCL recommendation, I am not prepared to place much weight on it.

Issue 1: Has there been a material change in circumstances?

28Given the 2013 Order was a final order on parenting time, the court must be satisfied that there has been a material change in circumstances to revisit that Order: s. 29 Children’s Law Reform Act (“CLRA”), R.S.O. 1990, c. C.12. In this case, there is little dispute that there has been a material change in circumstances warranting a review of the parenting arrangement. The school raised parenting concerns requiring the involvement of the CAS. The OCL has determined the child has special needs and has recommended a different parenting arrangement to best serve the child’s special needs. The child is older and has expressed a wish to spend more time with her father beyond alternative weekends. Finally, having heard the child’s wishes, the mother supports consideration of a new shared parenting arrangement. For all these reasons, I find there is a material change in circumstances warranting a review of parenting. Upon finding a material change, the court must consider the matter afresh without defaulting to the existing parenting arrangement: B.R.M. v. M.A.E.M., 2021 ONSC 2791 at para 42.

Issue 2: What parenting schedule is in the best interests of the child?

29The sole criterion for determining parenting arrangements is the best interests of the child. Subsections 24(1), 24(2), and 24(3) CLRA set out the factors for consideration as follows:

Best interests of the child

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

Primary consideration

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

Factors

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

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

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

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

(d) the history of care of the child;

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

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

(g) any plans for the child’s care;

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

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

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

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

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

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

30The application of these factors is addressed below and, in some instances, collectively.

i. Section 24(3)(d) the history of care of the child;

31The parties met in 2007 and the mother gave birth to A.J.R. in 2009. They broke up when the child was one, but got back together several times thereafter. In September 2013, the Honourable Justice MacLeod issued a Temporary/Final Order that reserved judgment about decision making but imposed a final order with the child having primary residence with the mother and parenting time with the father on alternate weekends.

32The father testified that he felt he was poorly represented when the litigation first arose in 2013 and was not in a good place. He did not have stable housing at the time and lacked the confidence to assert his wishes. He also did not understand the 2013 Order and thought the mother had sole decision-making, and therefore he often gave in to the mother’s wishes on issues of health and education so as to minimize conflict. He acknowledged in cross-examination that he was not as committed to the child in her early years as he is now. Over the years, things have stabilized for him. He attempted to obtain more parenting time with the child, but was often met with resistance by the mother. In 2018, he brought a motion to change.

33While the child was young, the mother was worried that the father’s parenting skills were undermined by his sleep disorder and memory problems. She worried the child was not well fed because of the father’s lack of nutritional knowledge and his financial limitations. The child did not have her own bedroom. The mother also had concerns that the father was not giving the child her daily medication for her ADHD and there was a general lack of routine at the father’s home, particularly around bedtime, because the father spent so much time on his computer.

34The father denies that these issues have undermined his parenting capacity. When he learned of them through CAS, he worked hard to disprove them. As discussed earlier, the father is very technologically proficient and uses his computer to set up multiple alarms and reminders to meet his personal and parenting obligations.

35With respect to nutrition, the father explained to Ms. Norgaard that the biggest challenge in feeding the child was not knowledge about nutrition, but rather the side effects of her medication which he believed reduced the child’s appetite. The father acknowledges he has and continues to question the use of medication partly because he is diagnosed with ADHD and has concerns with the long-term effects of such medication. This issue has been a source of tension between the parents and is discussed further below.

36The father testified that he has not been able to obtain larger housing given the child was with him less than 40 percent of the time. However, the child has always had a separate bed and the father’s housing situation has not been an impediment in parenting or his relationship with the child. Ms. Desaulniers testified that she had no concerns with the state of the father’s home. His apartment is also walking distance to the child’s school. The father has now applied for a two-bedroom apartment. In short, I find that many of the mother’s concerns about the father during the initial years of parenting have been addressed.

37Furthermore, as the child has grown older, she has indicated a desire to spend more time with her father. The father explains that the child wants to spend more time with him because she finds it difficult to cope with the mother’s mood swings and anger and not because he has influenced her.

38In the fall of 2018, the mother agreed to the father having an additional Monday overnight during the weeks when the child was not scheduled to be with him. The mother reported to Ms. Norgaard that she did this “because I hear her”. The mother acknowledges that initially she believed the father was influencing the child to spend more time with him. However, having now undergone a significant amount of therapy with respect to her own insecurities, the mother has come to accept that her own issues have undermined her relationship with her daughter and the father. The mother is prepared to take responsibility for her conduct and also accepts the sincerity of her daughter’s wish to spend more time with the father.

39As already indicated, following the involvement of the OCL, an interim agreement was put in place in December 2019 for shared parenting on a week on/week off schedule. However, in the spring of 2020, all family routines were impacted by COVID-19 and many children had to attend online schooling. Ms. Norgaard identified some initial concerns about the child keeping late hours while at the father’s house and with challenges of online schooling. The child is now in grade seven and in-person school has resumed. The mother reported to Ms. Norgaard that she found the week on/week off schedule benefitted her by freeing up time for her to take better care of herself.

40While historically the child has resided primarily with the mother, this factor cannot justify continuation of the status quo. The personal circumstances of this family have changed. The child is now approaching her teen years, attending middle/high school, able to travel and transition between homes independently, and is in a position to express her views and preferences. Furthermore, it appears that many concerns about the father’s parenting in the early years which may have influenced the 2013 court order have now been addressed by the father. Therefore, I find the history of care with the mother is of limited weight in determining the parenting schedule and certainly not grounds to limit the father’s parenting time going forward.

41Finally, it is clear that the child has been able to transition easily to a week on/week off schedule. This arrangement also appears to benefit the mother. The real question is whether there should be a further transition to the schedule as proposed by the father.

ii. Section 24(3)(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;

42Ms. Norgaard conveyed the child’s views and preferences in her reports as well as her trial testimony. Ms. Norgaard described the child as bright and attentive but highly anxious. The child reported positive things about both parents and acknowledged she felt loved by both of them. Ms. Norgaard found that the child had well formulated relationships with both parents, and they were able to guide and support her development in consultation with service providers.

43The child was initially reluctant to say things that might hurt her parents’ feelings, but did over time discuss her preferences with Ms. Norgaard. In 2019, the child told Ms. Norgaard she would like to spend equal time with both parents and this was likely a factor in Ms. Norgaard’s recommendation in November 2019 to transition to a 50/50 parenting schedule. When the child was interviewed a year later in August 2020, she told Ms. Norgaard that she wanted to try living with her dad full time and her mother on alternate weekends. The child did not explain why but indicated she would not know if this was what she wanted until she tried it.

44It is significant that the child expressed to Ms. Norgaard concerns about her mother’s anger. When asked if she felt emotionally safe, she replied she did not know. She expressed frustration with the fact that her mother would get mad when she did not do certain things like feed the cat whereas her dad never got angry with her, and she had never seen him angry. When asked what would be the worst thing that her mother could do if mad, she replied that she would not talk to her. She also felt she could not make a decision without her mother’s approval.

45The child indicated that she did not like it when her parents fought and when her mother would say mean things if she became upset. She referenced one particular birthday incident where her mother became upset when she and her father wanted to leave. It was during the father’s parenting time. They had to keep resaying their goodbyes in a manner that the mother would accept, and each time she tried, it was not enough and the child was worried her father would be blamed. The father testified about this incident which he explained was a catalyst for bringing his court action in 2018. He corroborated the child’s version of events. It was an example of some of the tension the child and father would experience with the mother’s mood swings and anger.

46The mother does not deny she has had issues with her anger. In cross-examination she acknowledged she has shouted at her child but tries not to curse. The last time she could recall was about 3-4 months prior to trial, which would have been in the summer of 2021. Most often the cause is her frustration when the child will not go to bed on time. The mother explained that it would sometimes take two hours for the child to go to bed and the child would hide her tablet under her pillow making it difficult for the mother to get it. There were also challenges in getting the child to shower, but she testified that this issue has been resolved. She has learned to give the child 10 and 20 minute warnings and while the child resists, she usually comes through. The mother testified that changing the kitty litter is a point of contention, and eventually, the mother decided she would just do it herself. She was able to buy a scooper that allowed her to deal with the cat’s waste from her wheelchair. It is important to note that the mother acquired the cat on the request of the child who had been pleading for one for a long time.

47I find that other than concerns about the mother’s anger, which I am satisfied the mother has taken steps to address, the child has not expressed any compelling reason that would warrant a complete reversal of the parenting schedule. The child’s comments to Ms. Norgaard in the Final Report suggest that she prefers living at her father’s residence where there appears to be fewer chores and more relaxed rules around screen and bed time. The child did not like that her mother set limits on time with friends and on a screen or that her mother made her do chores such as cleaning up after the cat. I do not find these preferences should give sway to the current parenting regime of 50/50. The mother’s request that the child assist with household chores is not unreasonable. While the child’s curiosity in trying a different parenting arrangement might be given some weight, I do not find it should be of significant weight or determinative of the issues.

48Finally, it is important to note that the OCL’s final recommendation to transfer decision-making responsibility to the father and increase parenting time with the father beyond the present 50/50 schedule was not premised on the child’s wishes, but because Ms. Norgaard found that the father had been more effective at that time in responding to the child’s service providers.

49I do not find the child’s wishes to spend increased time with her father warrant the parenting arrangement proposed by the father.

iii. Section 24(3)(a) and 24(2) child’s needs, given the child’s age and stage of development, such as the child’s need for stability and the child’s physical, emotional and psychological safety, security and well-being.

Physical, emotional, and psychological safety

50In her reports, Ms. Norgaard did not identify any physical safety concerns on the part of the child when she was with either parent.

51Some issues were raised at trial with the cleanliness and suitability of the mother’s accommodations. The mother pointed out that because of her physical disability, she relies on personal support workers to help clean her and the apartment, including taking out garbage. This was acknowledged by Ms. Norgaard and Ms. Desaulniers. When the attendants do not attend, things can get out of control. The mother does not have the financial means to hire additional home care. In some instances, the mother calls upon her family to assist her. Ms. Desaulniers explained that while there were some concerns at the start around smells in the house, they were easily dealt with. She did not observe there to be an issue with the cleanliness of the mother’s apartment.

52Ms. Desaulniers also acknowledged the physical limitations of the mother’s home because of the wheelchair and need to have space for medical supplies. Ms. Desaulniers observed that this made the space tight for the child and that is why she tended to go to her room. However, Ms. Desaulniers testified that this was something that CAS could work on with the mother, i.e., to set up a more comfortable living arrangement. For example, because the mother never sits on a couch, it had not occurred to her until the intervention of the OCL that she should have some furniture in the living room to create a more inviting space for the child and her friends. Since that time, the mother has reached out to family and friends to obtain a comfortable chair or couch for the child.

53Ms. Norgaard did raise concerns about the mother’s anger and its impact on the child’s emotional safety. However, as already indicated, I find the mother has taken meaningful steps to address these issues. I do not find the concerns are sufficient to warrant a change in the parenting schedule in the father’s favour.

54Ms. Norgaard described the child as having unusual worries, behaviors, and sensitivities that require exploration by a qualified service provider. These issues could explain some of the child’s anxiety and withdrawing behavior. Recommendations were made for both parents to have the child obtain counselling services. Over time, things have improved but the OCL Final Report is very clear that the child continues to have developmental needs that need to be addressed.

55The mother reported to Ms. Norgaard that she tried to carry out all the recommendations in the Interim Report made for the child but had difficulty getting timely responses. The mother testified that some of this delay was due to the pandemic, and I accept her explanation. Ms. Desaulniers also testified that the mother had taken considerable steps to assist the child when concerns were identified. In addition to Crossroads, the mother asked for a reference at CHEO to address the child’s anxieties and contacted the child’s doctor to address the child’s medication.

56Ms. Desaulniers testified that since August 2020, the mother sends her emails to demonstrate the steps and progress she is making in obtaining assistance for the child. The mother testified that she worked with Crossroads to better understand ADHD, better understand her daughter’s feelings, and to recognize when her child is trying to communicate with her. Consequently, the mother reported that her communication and relationship with the child had greatly improved. I accept her evidence which was corroborated by Ms. Desaulniers. The father also testified that at the time of trial, his relationship with the mother has improved.

57I find the parents are both able to meet the child’s physical, emotional, and psychological needs and to ensure she accesses the help and services she needs.

Educational needs

58The mother was originally responsible for the child’s schooling. This was largely because school was in French. Furthermore, because the father thought the mother had decision-making responsibility, he did not engage initially as much with the school.

59In 2016, the school identified concerns with the child’s mental health, hygiene, lack of proper lunches, clothing, and behaviour. It was not always clear which home the child was coming from when these circumstances arose. The matter was investigated. The child was diagnosed with ADHD. She started to see a social worker. The mother had not been signing forms and was not responding to calls from the child’s teachers and principal. Consequently, the school called CAS and also reached out to the father. The father met with the child’s teacher and the principal to talk about their concerns.

60The child had intended to transfer to an English school, but for various reasons, ended up at a French middle/high school. The school is walking distance from the father’s residence. The school is four kilometers away from the mother’s residence, but the child receives a free OC Transpo card and is able to get to school by bus. Given that school continues to be in French, the mother remains largely responsible for assisting her with homework. The child also acknowledged to the OCL that the father also helps her with homework but it may take him longer.

61At the time of trial, the father had not yet attended the new school but was open to being more involved on a regular basis. Other than the language barrier, the father was comfortable with attending parent-teacher nights. The father reported that the child’s transition to the new school had gone well.

62The mother does not deny that she had issues communicating with the school providers over the years. As Ms. Desaulniers explained in her testimony, the mother’s own insecurities contributed to her inability to sometimes deal effectively with the child’s service providers because she feared being judged and criticized. However, the mother has through her own counseling and therapy made considerable progress. At the time of trial, Ms. Desaulniers observed that the child had just started her new school. If the mother had questions about schooling, she would email the resource teacher or the vice principal. Ms. Desaulniers observed from the mother’s emails that the mother was engaging with the school and was on a good footing with them. The mother testified that she has worked on moving forward from issues of the past. She uses the emails to the school as a record of her efforts to communicate with the school and be accountable for problems or school issues she has not dealt with. For example, if there is a note about the child’s tardiness, she will follow up on it immediately.

63I find both parents are able to meet the child’s educational needs, but the mother is perhaps at a slight advantage because of her ability to speak French.

Medical needs

64In February 2017, the child was diagnosed with ADHD. Her family doctor prescribed medication for it along with melatonin to help with sleep. The prescriptions were reviewed again in April 2019 and despite some concerns about the side effects on appetite, the child’s family doctor recommended the medication continue.

65The issue of whether the child should continue with ADHD medication has been a source of tension for the parents. The mother has concerns that the father is not always providing the child with medication. The father, having been medicated for ADHD all his life, has concerns about both the short- and long-term effects of the medication including loss of appetite. As a result, when school came online at home, the father stopped giving her the medication. The father testified that if upon return to in-person school it appeared that the child was having difficulties, then he was not opposed to having her return on the medication. He is also open to speaking to the pediatrician about it, but says in the past he has not participated in those meetings.

66The mother takes a different view. The school had identified concerns with the child’s behaviour and had suggested to her that she might have ADHD. She then consulted the family doctor. She asked the father to come with her but he declined. She made steps to find a pediatrician through CHEO. She obtains the medication for free because she is on ODSP. It became obvious to her that medication was not being administered by the father when the child returned home with a pill bottle that was still full. She was upset by this not only because she felt the child needed the medication, but because she felt betrayed by the father. She acknowledged that she is not pro-medication for everything, but she observed the child to be hyper and unable to sleep. When she also heard the concerns of the school, she agreed with the doctors that the medication was necessary. She also pointed out that it is difficult to assess whether ADHD medication is working and if adjustments are needed if it is not being given regularly. The mother is open, however, to speaking with the pediatrician and reassessing the child’s need for it. Unlike the father, she testified she has never made changes to the child’s medication regime without informing the father.

67The father’s unwillingness to administer the child’s medication of his own volition, without consultation with the family physician or discussion with the mother, is of concern. In the case of Janjic v. Janjic, 2015 ONSC 2880, the court found the father was in denial about his child’s condition and inconsistent in ensuring his child took the prescribed ADHD medication while in his care. The court found that ADHD was a serious condition and parents who are not willing to take positive, proactive steps to treat that condition when they have resources to do so should not have decision making responsibility: Janjic at para 150.

68While I understand the father’s concerns about the long-term effects of the medication, and in fact, any medication, the best interests of the child require that parents not decide these matters unilaterally, but work cooperatively with the child’s health providers to make informed decisions around the child’s medical needs and administer the treatment recommended. This is particularly important in this case because. As indicated by Ms. Norgaard, the child may have additional developmental and psychological needs. If in treating those needs there is a medical recommendation requiring additional medication, it is important that the mother have confidence that the father will adhere to the medical recommendations while the child is in the father’s care. While I do not find the issue determinative of the parenting schedule, should the father continue to fail to administer the treatments recommended by the child’s health professionals, it could constitute grounds for reducing the father’s parenting time.

Dental needs

69The OCL report identified that the child needed dental work which impacted her appearance and could undermine her confidence and relationship with her peers. The father testified he tried to speak with the mother about it but was met with hostility. He had difficulty getting the paperwork he needed and was worried that the child’s needs were not being met. However, the mother did eventually take steps. As Ms. Desaulniers explained, the mother requested support to obtain free dental care for the child from the Healthy Smiles program. The problem was eventually corrected. The mother agrees that going forward the father should take responsibility for dental care as he is better able to take the child to her appointments. Both parents have demonstrated they are able to meet the child’s dental needs and this factor favours shared parenting.

iv. 24(3)(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;

70There is no evidence to suggest that either parent would not respect the court order imposed in this case. There were no reports of the parents breaching the earlier 2013 court order. While the parenting schedule was not always strictly followed, changes to the schedule were made on consent of the parents.

71Furthermore, between the Interim Report and Final Report, both parents adhered to the change to the 50/50 parenting schedule. While there were some delays in accessing services for the child and for the parents in attending programs or counselling, both parents eventually came through on their responsibilities and have indicated they are committed to ensuring the child’s well-being above all else. As Ms. Desaulniers succinctly stated, whatever the decision the court takes in this matter, it was her view that the mother’s priority is the well-being of the child and her relationships. I find it is no less for the father and that both parents have demonstrated an ability and willingness to meet the needs of the child going forward. I find this factor also favors shared parenting.

v. 24(3)(b) the nature and strength of the child’s relationship with each parent and other family members;

72Ms. Norgaard described the child’s relationship with each parent positively. She indicated that the child is very comfortable interacting with her father. There is fluidity in their conversations, humour and warmth in their exchanges, and both of them initiated physical contact. The father described himself as a hermit and someone who largely stays in and spends time on his computer. Ms. Desaulniers indicated that most of his friends are virtual. The time the father and child spend is often indoors. Nonetheless, the father and the child appear to have a fun and jovial rapport. Ms. Norgaard’s takeaway is that the child is very comfortable in the presence of her father.

73Ms. Norgaard also found that the child had a familiar rapport with her mom. Their conversation was comfortable and they were often in close physical proximity, but it was not as touchy/feely as the child’s relationship with her father. Ms. Norgaard acknowledged that this could be because it is more difficult to access the mother because of the wheelchair. Still, she noted that the child was not self-conscious about her mother’s disability and she would hold her mom’s wheelchair while casually coasting along beside her. The mother purchased wheels for the child’s shoes and at one point a scooter to help her coast beside her. Despite being in a wheelchair, the mother is considerably more active than the father. She tries continuously to get the child to go to the park outside their house and do fun outdoor activities rather than spend time on a screen. She and the child also paint and draw, and the child has taught her mother games like Minecraft.

74The child appears to have contact and relations with both the paternal and maternal families. The child includes her grandparents, uncle, and some cousins as part of her family. The father testified about the child’s relationship with his own mother who would often take the child to their summer camp where she is able to do outdoor activities like swimming. The father wishes for the child to continue going to her grandmother’s camp in the summers.

75The mother described her extended family. She is close to both her father and stepmother, and they are both strong emotional supports for her. Her father will routinely step in to help with the child’s needs like purchasing school supplies and clothes. The child is close to a son of the mother’s cousin who is about four months apart in age. The mother relies on her older sister who has two daughters to help her navigate parenting issues as they arise. Since Covid, the mother only sees her family once every two weeks, but they interact regularly during holidays and birthdays. The parents have been able to share holidays without conflict.

76I find that the child has a strong bond with both parents and their families and this factor favours a shared parenting arrangement.

vi. 24(3)(c) and (i) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent; and to co-operate and communicate a with one another on matters affecting the child;

77The parents have had communication challenges in the past. During the course of the trial, it was clear that they had different opinions on issues of medication, alcohol experimentation, and screen time, etc. These are common issues for parents, particularly in the teenage years. The father has now taken parenting courses and the mother has engaged in her own counselling. As the mother indicates, things are not 100 percent but have certainly improved. Provided that both parents continue to use the tools they have learned in their course work and therapy, I find they will be able to co-operate and communicate on matters affecting the child. I find this factor favours shared parenting.

vii. 24(3)(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;

78The mother is French speaking and would like the child to continue in French speaking school. The father is also supportive of this, recognizing his own struggles with learning French. Both parents are committed to assisting the child in maintaining her French language skills provided that it does not adversely impact her schooling. There was some evidence that the child was struggling in French school in her earlier years and consideration was being given to moving her to an English speaking school. However, the parents let the child decide which school she wanted to go to following primary school and she chose to continue in a French school. Finally, the child reports that the father always comes through with homework assistance even though it may take him a little longer. I find the language issue does not weigh in favor one way or another in determining the parenting schedule.

viii. 24(3)(g) any plans for the child’s care;

79It is the father’s plan to obtain a two-bedroom residence for him and the child, particularly as she enters her teenage years. Even if the father is not able to immediately secure a larger home in the school area, I do not find that his current residence undermines his parenting ability. As Ms. Norgaard and Ms. Desaulniers both observed, the father has a small apartment but has arranged it so that he and the child have a bed opposite each other. This arrangement, while not ideal, appears to work. The father intends to continue with his parenting courses and addressing the parenting issues identified in the OCL reports.

80The mother intends to maintain her residence where she and the child each have a room. It is in a central part of town and opposite a park. The mother takes the child in the morning to the bus stop and she is able to get to school easily. The mother also testified about her personal plan of care which includes continuing with her medication, seeing a psychiatrist regularly, and attending counselling and support group meetings with a view to managing her emotions and better communicating with the child and the father.

81Both parents are committed to working with the school and health providers to access any services the child may need.

82I find this factor warrants shared parenting.

ix. 24(3)(j) family violence

83There is no evidence of any family violence that warrants consideration of this factor.

x. Conclusion on parenting time

84In conclusion, upon consideration of the above-noted factors, I find that it is in the best interests of the child to have shared parenting time. I find that both parents are actively involved in the child’s life, able to meet her needs, and are willing to continue to parent the child in accordance with her best interests. The child has a comfortable relationship with both parents and benefits from what each has to offer. I do not find there it is in the best interests of the child to grant the father more parenting time than the mother, and doing so would only serve to marginalize the mother and undermine the co-parenting relationship, which is not in the child’s best interests. Therefore, there will be an order that the parents will have shared parenting on a week on/week off schedule with the exchange taking place on Fridays or an alternate date mutually agreed upon by both parties.

Issue 3: Which parent should have final decision-making responsibility and on what issues?

85The father’s plan is to have decision-making responsibility on all issues given the concerns raised in the past about the mother not responding to the school in a timely manner.

86The mother wishes to maintain final decision-making responsibility on medical and educational issues but is content with the father to have decision-making responsibility on all other issues. The mother testified that the father is not always forthcoming with information about the child. For example, she was not aware that he had stopped administering the child’s medication. She worries that if the father has decision-making responsibility, she will be further marginalized from the child’s care.

87The best interest factors also govern the determination of decision-making responsibility. In coming to my decision, I have considered all the factors, but refer below to those which I find most relevant to this case.

i. Medical

88I find that it is in the best interests of the child for the mother to have final decision making on medical issues. This would include all matters of psychological, emotional, and physical health. The mother has been responsible for the child’s medical care since birth. She attended all the medical appointments. She managed the child’s vaccines. She followed up with CHEO when the school suggested she may have ADHD. The child’s family physician is also her physician. In the Interim Report, the physician indicates she has had regular contact with both the mother and child, but has only met with the father once. She reported a positive mother-child relationship.

89The family physician is aware of the history and dynamics of this family. She is aware the mother’s worries that the father and paternal grandmother have not been administering the child’s medication. She found the mother’s handling of the child’s ADHD was appropriate. She also noted that the mother was encouraged to access services for the child at Crossroads which the mother eventually did. I find that the mother has demonstrated that she is able to meet the child’s medical needs at various stages of the child’s development and is willing to continue to do so going forward: CLRA, ss. 24(3)(a) and 24(3)(c). I find that continuity and stability of care warrant the mother having decision-making responsibility on matters of health: CLRA, s. 24(3)(d).

90The mother has also demonstrated that, upon consultation with medical professionals, she is able to make medical decisions in the best interests of the child and will adhere to the medical treatment prescribed. The jurisprudence supports that decision-making responsibility be granted to the parent who will not only ensure their child obtains the medical treatment and specialized services they need, but will also ensure prescribed treatments are administered: Janjic at para 150; F.B. v. C.H., 2021 ONCJ 275, at para. 51 (f); and J.P.K. v. S.E., 2017 ONCJ 306, at para. 198 (n).

91I also find that the mother will continue to communicate and co-operate with the father on matters of health: CLRA, s. 24(3)(i). The evidence shows the mother has encouraged the father to attend for medical visits including around the child’s ADHD diagnosis and will continue to do so in the future.

92It is important to note that in granting the mother final decision-making responsibility on matters of health, I am not seeking to exclude the father from involvement in these matters. The father testified he misunderstood the 2013 Order and was not as involved in decision making because he did not think he had a voice in various matters. That is not the case going forward. The father is free to attend the child’s medical appointments, express his views to the doctor, and hear the doctor’s recommendations on issues of health and medication. If, however, after reasonable consultation with one another, they are not able to agree on what course of action is best for the child, the mother will have the final decision. Since the child’s ADHD medication is a continued source of tension between the parents, they are encouraged to revisit this issue together with the family physician to try and resolve the matter.

93Finally, as the child enters her teenage years, the parents can expect to discuss issues about alcohol and drug use as well as birth control with her. The OCL has also indicated that the parents will have to continue to work with the school to determine the child’s special needs and ensure that she accesses the services she needs. This requires consultations, meetings, and the co-operation of both parents and the work should not fall on one parent alone. The parents are encouraged to take a co-parenting course or parenting counselling to improve their communication with each other and the child as they deal with these sensitive issues going forward.

ii. Education

94I also find that it is in the best interests of the child that the mother have final decision making in matters of education. The child has always gone to a French school and continues to go to a French school. The mother is French speaking and able to assist the child with homework and also interact with the school in French.

95While I recognize that the mother has had several lapses in her communications with school providers over the years, it is clear that since the child started her new school, things have changed. The mother communicates with the school by email. She is making efforts to respond pro-actively to concerns raised by the school recognizing that in failing to do so, she is not meeting the needs of the child. She shares her emails with the school with Ms. Desaulniers, but she is also encouraged to share those emails with the father so that he can keep abreast of what is happening at the school, so that they can discuss issues around the child’s education, and so that he can also ensure the mother is following up on requests by the school. Both parents are encouraged to attend parent-teacher nights, performances, and field trips organized by the school and to volunteer when parental assistance is required by the school.

96I find that the mother’s willingness to remain actively engaged with the school as well as the fact that she is better able to communicate with the school in French warrants that she, after reasonable consultation with the father, have final decision-making responsibility for matters of education: CLRA, ss. 24(3)(h) and 24(3)(f).

iii. Dental and other issues

97The mother is not opposed to the father having final decision making on all other issues, including dental care. In fact, the mother testified the father is in a better position to facilitate the child’s participation in extracurricular activities and to take her to appointments to the dentist.

98I find it is in the best interests of the child for the father to have final decision making on the remaining issues. This does not mean, however, that the father is solely responsible for arranging the child’s participation in activities and taking her to them. The parents will have to consult with one another on, for example, what activities and camps to enroll the child in and how they will be able to ensure her participation given the parenting schedule, school and homework responsibilities, sleep routine, and the mother’s mobility challenges. If the parents are not able to come to an agreement, the final decision will rest with the father.

iv. Communication tools

99Both parents are of limited means. They earn comparable disability incomes and child support is not an issue in this case. They share the Child Tax Benefit. While I understand that both parties have little money to spare at the end of each month, I do agree with the father’s request to use the My Family Wizard application for communication. Subsidies should be available for both parties given their respective incomes. There will be an order to that effect.

Order

100There will be an order that:

i. The mother shall have final decision making on medical and educational issues. Medical issues include issues concerning the child’s psychological, emotional, and physical health.

ii. The father shall have final decision making on dental and all other issues.

iii. Each parent shall consult and discuss with the other parent any pending decision and shall not make a final decision until the parties have had an opportunity for reasonable consultation.

iv. Where a parent becomes aware of a decision needed to be made with regards to the child, the parent will notify the other parent in writing within 24 hours of the matter coming to their attention and provide the other parent with the necessary information to make the decision and the date by which the decision needs to be made.

v. The parents will have a minimum of two verbal discussions on any given issue.

vi. If the parties cannot come to an agreement following discussion and reasonable consultation or if the other parent fails to engage in reasonable consultation in a timely manner, the parent having authority to make a final decision will proceed to make a decision and inform the other parent in writing of the decision.

vii. Where appropriate, the parents shall canvass the views of health or other professionals before making any final decisions and shall share that information with the other parent.

viii. Both the mother and father shall be copied with all communication from the school including but not limited to email, correspondence, notices, report cards, etc., and in the event that the school leaves off one parent in error, the parent who receives the notice shall immediately forward same to the other parent.

ix. The mother and father shall have independent decision-making authority regarding urgent medical care of the child while the child is in their care.

x. Both parties shall be responsible for promptly advising each other should such a medical situation arise as soon as it is safe to do so. The input of the other parent should be duly considered at such times if possible.

xi. Both the mother and father shall be entitled to all information regarding the child held by service providers and shall make their own arrangements to obtain it. Each party shall keep the other apprised of all involved service providers (names, contact information) via electronic communication through the identified third party.

xii. Both parties will work with the child’s school and health professionals to assess the child’s special needs and take steps to access any specialized services recommended as per the recommendation of the OCL reports.

Parenting time

i. The parents will have shared parenting time following a week on/week off schedule with exchanges on Fridays or any other day mutually agreed upon by the parties.

ii. The parents may modify the parenting schedule to allow the child to attend special events. To exercise this variation, the parent seeking the variation will notify the other parent and request the change at least 14 days in advance. The parent seeking the variation will provide the other parent with information of the reason for the change and if the child will be out of town for the activity.

iii. If the child participates in a school overnight activity, the parent with whom the child is scheduled to be with will not insist on make up parenting time from the other parent.

iv. During the summer (commencing July 1st of every year and ending August 30th of every year) each parent will have two consecutive weeks of uninterrupted time with the child.

v. During even years the father shall select his two weeks first and during odd years the mother shall select her two weeks first.

vi. The parents will agree on their summer vacation selections by March 1st of any given year or another date if mutually agreed upon by both parties. In making their vacation selections, the parents will take into account the child’s wishes to attend particular camps or activities or to partake in summer jobs.

vii. This vacation time shall supersede the regular parenting schedule and the schedule shall resume immediately upon return from travel.

viii. The child shall be entitled to spend Mother’s Day and Father’s Day with the respective parent regardless of the regular parenting schedule. When doing so is not congruent with the regular parenting schedule, the schedule shall be varied so that the child enters the care of the celebrating parent at 7:00 p.m. the night before and remains in their care until Monday before school with the regular schedule resuming thereafter.

ix. The parties shall transfer the child at the Rideau Centre or another location mutually agreeable to both parties.

x. Statutory holidays except for Christmas will be spent with the parent who is scheduled to have parenting time that week unless the parties mutually agree to a variation.

xi. Each parent shall hold substantial celebrations of their own for the child’s birthday when she would routinely be in their care in accordance with the regular parenting schedule.

xii. Transitions times will be as follows:

a. When school is in session, at the end of the school day.

b. When school is not in session (i.e. during school breaks) and where arrangements for the child’s care in an alternate setting are in place (i.e. child care, day camp, etc.), the transition time shall align with the normal ending of that setting.

c. When school is not in session and where the child is in the care of a parent, the transfer location shall continue to be at the Rideau Centre or another location mutually agreed upon by the parties and a time mutually agreed upon by the parties.

xiii. Both parties shall continue to work voluntarily with CAS which currently has an open file.

xiv. Both parents shall complete the programming and counselling recommended by the OCL and CAS.

xv. Both parents shall attend a co-parenting or communication course that is available and affordable.

xvi. Both parties shall access services for the child and themselves at Crossroads Children’s Mental Health Centre, as available to the parties, and will work with the child’s school and health professionals to identify any other programming for the child and will facilitate her participation in said programming.

xvii. The parties shall utilize My Family Wizard or a comparable electronic app to exchange information about the child including appointments and scheduling information. This does not preclude the parents from communicating through other electronic means to share photos or other information about the child.

xviii. The parties shall notify each other immediately of any emergency involving the child.

xix. No change to the parenting schedule shall occur unless there is a clear agreement via electronic communication.

xx. The parties shall ensure that the child is not exposed to conflict, tension, disparaging remarks, or information or opinions about the other party, their home or their activities nor any information about unresolved matters between them or between themselves and others.

101Counsel for the father will draft a final Order consistent with this decision and, upon consent by the mother, will forward me the draft final Order for review and signature.

Costs

102The mother is the successful party at trial and presumptively entitled to costs. The mother represented herself in this matter, and therefore, any claim for costs would be minimal. The father is of limited financial means, and I must also consider his limited ability to pay a costs order. For these reasons, I am not inclined to order any costs payable. Should, however, either party wish to make a further submission on the issue of costs, they may file a short brief for my consideration.

Somji J.