COURT FILE NO.: FC-16-960

DATE: 20220426

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

W.A.C.

Applicant Father

– and –

C.V.F.

Respondent Mother

Marie G. Michaels, for the Applicant Father

Self-represented for part of the trial and then represented by David John Epkenyong as of December 2, 2021. The Respondent mother was not in attendance, although represented for part of the trial.

Deborah Stewart, Amicus Curiae, appointed on July 12 and 21, 2021, was also present.

HEARD: November 23, 24, 25, 26, 30, December 2, 3, 6, 7 and 10, 2021, and January 14, 2022

RELEASED: April 26, 2022

Justice Alex Finlayson

PART I: OVERVIEW

[1] The parties were in a six-year relationship. They started dating in 2008, started cohabiting in 2009, and separated in 2014. They have one child together named E., who just turned 12 days before this trial started.

[2] This trial proceeded over the course of eleven different days in November and December, 2021, and January, 2022. The principal issue for trial concerned the father’s parenting time with their son E., although the parents also had claims for a number of other parenting orders, child support, special and extraordinary expenses, damages, and costs before the Court.

[3] The father is the Applicant in this case. He launched this proceeding almost six years ago, in May of 2016. Back then, he was self-represented. He merely sought “access” (now referred to as “parenting time”) on alternating weekends, time with E. during certain holidays, and the ability to travel with E. for vacations.

[4] In her Answer dated June 15, 2016, the mother, then also self-represented, claimed “custody” (now “decision-making responsibility”), child support and special and extraordinary expenses pursuant to section 7 of the Child Support Guidelines (the “Guidelines”) commencing June 1, 2016. She sought an order that the father’s parenting time be supervised at her residence, at the child’s activities or at a “court appointed facility”, once or twice per week. She also sought orders respecting E.’s government documentation and travel.

[5] The parties settled certain of their issues, some on a final basis and others on a temporary without prejudice basis early on in this case. Pursuant to the Consent Order of Rowsell J. dated February 2, 2017, they agreed that the mother would have final decision-making responsibility respecting E. and on a temporary without prejudice basis, they agreed that the father would have supervised parenting time at the Durham Supervised Access Centre once per week “for the maximum time possible”. They also agreed that the father would pay temporary without prejudice child support in the amount of $176.00 per month commencing March 1, 2017, based on an imputed income of $22,000.00 per year.

[6] This case could have proceeded on a very different trajectory after that. Instead, the father’s pursuit of a relationship with E. has been the genesis of a continual, almost six-years long battle between the parents. In his written closing submissions, the father described this case as one that should have been a “simple and standard proceeding”, but which has “instead morphed into this lengthy multi-faceted nightmare”.

[7] After the Consent Order of February 2, 2017, the father had a handful of supervised visits, but the mother did not cooperate or facilitate those visits fully and she stopped allowing them to proceed by the end of the year. Nor did the mother cooperate with multiple orders of this Court subsequently made, appointing the Office of the Children’s Lawyer (the “OCL”). About two years into this proceeding, in the summer of 2018, the father launched a contempt motion.

[8] Over the course of several appearances in the latter half of 2018 and into the first quarter of 2019, Hughes J. presided over the contempt proceedings, oversaw the resumption of the father’s supervised parenting time and ensured that the second OCL investigation would get underway. The mother continued to engage in obstructionist behaviour. At the father’s very first supervised visit when it resumed in October 2018, the mother behaved badly towards staff at the access center such that the center refused to provide any further service for this family. On March 7, 2019, Hughes J. found the mother in contempt, and awarded the father unsupervised parenting time.

[9] As soon as the appearances on the contempt motion came to an end, the mother would not allow the father to have unsupervised parenting time. She instead launched what I understand was an appeal to the Divisional Court. The father did not bring the matter back to Court. He has never had the unsupervised parenting time that he was awarded on March 7, 2019, now over three years ago. While the mother did allow the father to have some visits after March 7, 2019, they have occurred on her terms and under her watch. Since November of 2020, the mother has not allowed the father to see E. at all.

[10] The father changed aspects of his position at least four times over the lifespan of this case. All of his positions have revolved around him just having parenting time. Notwithstanding his characterization of this case as one of “parental alienation”, he has never sought an order to change the child’s principal residence to be with him.

[11] The father first amended his Application on October 3, 2019, in advance of a trial then scheduled to proceed in November, 2019. [^1] Now with the assistance of counsel, the father claimed “joint custody”, various incidents of decision-making or parenting time, a determination of his child support obligations, police enforcement, “damages for parental alienation” in the amount of $10,000.00, and costs.

[12] On May 31, 2021, when I adjourned the trial for the fifth time,[^2] I directed the father to serve and file a document setting out the precise Orders he would be seeking at trial. The father did so (his second change in position), but then modified his position again on the first day of trial (his third change). At the outset of the trial, the father tendered a document titled “Orders sought by the Applicant – Amended”, which the Court marked as Exhibit 2.

[13] In Exhibit 2, the father now sought an order that the mother would continue to have sole decision-making responsibility respecting E., except for decisions about E.’s counselling. Although she would still have final decision-making over other major issues under this proposal, the father asked the Court to limit her decision-making power to require that she first provide him with information before “effecting any changes to the child’s general health, education, religion and extra-curricular activities”.

[14] The father separately asked the Court for decision-making authority to empower him to get counselling for E. He did not, either in this Exhibit 2 document, or at any time throughout the trial, provide the Court with much of a concrete plan about who would do the counselling, what the counselling would be for, who would pay for it, or how the child would actually get to and participate in the counselling.

[15] Finally, the father’s Exhibit 2 contains a proposal for his parenting time. As the father had always claimed before, it still involves only alternate weekends and certain holidays. In tandem with that, he asked the Court to make an order for ongoing police enforcement into the future, to impose fines on the mother, and to order damages of $10,000.00 “on account of her actions to alienate the child from him, and for her interference in and control of their relationship since the parties’ separation”.

[16] The father’s final change in position came in closing submissions. The new revisions are mostly directed at the enforcement clauses, although there are also some changes to the decision-making terms previously proposed. Once again, he is still not seeking a change to the child’s primary residence, but he said he may change mind in the future about this.

[17] In his written closing submissions, the father says:

(a) He has been shocked and appalled by the drastic measures that the mother has taken, many of which have included incidents of emotional and psychological harm perpetrated against the child;

(b) He understands that her actions would justify an order changing the child’s primary residence;

(c) Even though an order for that would be justified and he “personally wishes for same”, he feels it would be in the child’s best interests to be given the chance to “heal in relative peace from trauma, parentification, abuse and conflict” that he has experienced since the parties’ separation;

(d) He fears pursuing a change in residence would lead to even more litigation and would once again place the child “in the line of fire”; but

(e) He is “willing to do whatever is necessary to protect his son from further harm, and if seeking an order for a change in residence is necessary as a result of the mother’s continued actions, then he will have no hesitation in doing so in the future”.

[18] Instead, the father would now have the Court empower him to make decisions about the child’s health generally, not just about counselling. He also wants the Court to empower him to make decisions about education too, so that he may have the child return to school in-person as opposed to virtually.

[19] The father is no longer seeking police enforcement at this time. He is instead asking for leave to bring a contempt motion “on an emergency basis” if the mother does not comply. He asks that I be seized of such a motion. He is asking for an order directing that the mother be criminally charged under section 127 of the Criminal Code if in the future she does not comply and breaches an order of this Court. He continues to ask that fines be levied if the mother breaches in the future. He wants a lien placed on the mother’s home to allow for the payment of fines and costs, so that he can recover what is owed to him when the mother refinances or sells her house. And he continues to seek the $10,000.00 in damages, too.

[20] The Court understands that these unusual remedies have been proposed by the father with the troubling circumstances of this case in mind. The years since the parties’ separation have been fraught with chaos and havoc. The chaos and havoc have occurred before this Court and outside of it. For much of the seven years since the separation, the mother has not permitted the father to have a regular relationship with E. The mother has controlled, interfered with, or cancelled the father’s parenting time, while repeatedly engaging in tactics to delay this proceeding and to obstruct investigations and other processes happening outside of the Court.

[21] The mother has taken various positions, both formally in the litigation and by her conduct, that the father’s parenting time with E. must be supervised, or that his parenting time should occur in her home or in the community under her watch and on her terms, or that the father should not see or communicate with E. at all. Her ostensible reasons for these positions include two principal allegations that the father misuses alcohol, and that he committed acts of family violence towards her and E. Having heard the evidence at this trial, the Court is not making these findings.

[22] The mother did not participate in this trial or at a number of other events during the prior proceedings. The mother’s counsel only attended this trial beginning on the 6th day. In closing submissions, the mother’s counsel said that the father could now have generous, unsupervised parenting time if he would just submit to a hair follicle test, and if he would use a breathalyzer device as a condition of parenting time. The mother’s counsel’s written closing submissions list a number of terms for alcohol monitoring that the mother wants the Court to order.

[23] This trial was lengthy and proceeded in circumstances that were far from ideal. Meanwhile E. has been very much impacted over the past number of years. His relationship with his father is fractured, he has missed considerable amounts of school, he is struggling academically at school and his mental and physical health deteriorated.

[24] This Court has been put in a very difficult position. The father and son should be allowed to have a relationship with one another, but I have seriously considered the very real possibility that the mother will never allow E. to have a meaningful relationship with the father. In view of the father’s failure to pursue his parenting time between 2019 and the trial, his failure to seek a change to the child’s primary residence now and his unrealistic enforcement proposals, I seriously considered whether there was no option but to dismiss his application.

[25] To do so would deny E. his right to a healthy relationship with his father. The evidence that I do have is that the father and E. were bonded despite all the disruptions and problems that have been caused. I do not know (because no one called any opinion evidence about this) whether making no order for parenting time, which in the result would effectively terminate the father-son relationship, wouldn’t cause a different or more grave kind of damage to E., whether in the short term or in the longer term.

[26] For those and many other reasons that will follow, it is my finding that it is in E.’s best interests to make an Order that resembles and then builds on Hughes J.’s order of March 7, 2019, made at the conclusion of the contempt motion. However, the father will need to be more active if he expects the Court’s order to be implemented with success.

[27] I decline to order most of the incidental orders the father is seeking in the nature of enforcement. The Court is either without jurisdiction to order some of them, or there are serious questions about the Court’s jurisdiction to order others of them and counsel did not make submissions about jurisdiction, or some of the remedies being proposed have been tried already, and failed.

[28] The only remedial option that remains, in my view, is to make another referral to the Durham Children’s Aid Society (the “Society”). The Court and this family need its assistance.

[29] I am making this referral in part because of this Court’s concern about non-compliance by the mother. I do so because I am concerned that E. needs support as the process of reunification with his father gets underway. I do so because the father has no realistic plan to access professional support for E. and he needs help with that.

[30] But I do so also, importantly, because I am concerned that this child is at risk of harm of several kinds in his mother’s care, quite apart from the question of the father’s parenting time. The Society itself verified a risk arising out of the parental conflict, twice. But based on the evidence received at this multi-day trial, the Court’s concerns go beyond just parental conflict. I am concerned about the child’s education, this child’s mental and physical health, and this child’s isolation from the community. I am concerned about the mother’s physical and mental health and its impact on her parenting. I am concerned about serious evidence of family violence I heard, not perpetuated by the father towards the mother and the child, but rather from the mother directed at the father and other members of her household. I am concerned that the father may be suffering from trauma, and that is also not being addressed. I am frankly concerned about both parents’ mental health, their insight and its impact on their parenting abilities.

[31] Both the father’s counsel and amicus asked me to remain seized of this matter at the end of the trial. I am prepared to do so to a point, but I do not intend to seize myself indefinitely. This Court has devoted considerable judicial resources to this family. Nevertheless, I will not just release this decision, send it to the Society and leave the family to its own devices either. There needs to be some Court oversight here, at least initially. I will continue to provide that to this family for now, but shall reassess my continued involvement.

[32] In addition to the parenting issues, there were a number of financial issues raised during this trial. The mother’s child support claim revolved heavily around evidence and arguments that income well above what the father has ever earned should be imputed to him. Specifically, the mother’s counsel argued that income of $120,000.00 should be imputed to the father in each year going back to June 1, 2016, the date of the mother’s claim. Although I will express a number of criticisms about the manner in which the father approached the financial issues in this case, for the reasons that follow, I still would not find the amounts sought to be imputed to the father are appropriate. The amounts asked for are excessive on the facts of this case. They are not based on the applicable legal principles applied to the evidence. I do not intend to make a child support order that is not realistic and which the father does not have the capacity to pay, that will just cause more problems and more litigation in the future, may trigger more parental conflict and cause more harm to this child.

[33] Between the June 1, 2016 up to the end of 2020, I am determining the father’s income to be the same $22,000.00 of imputed income to which the parties agreed in the February 2, 2017 Consent Order. However, after scrutinizing the financial documentation in tandem with the oral evidence, I am determining the father’s income to be $45,000.00 in 2021. I am adjusting child support upwards as of that date. That $45,000.00 figure in 2021 includes income from employment, some imputed income and some gross-up for tax on the imputed amount. The father will also be ordered to pay child support based on an income of $45,000.00 continuing as of January 1, 2022, but in the case of 2022 and the future, my determination is based on his changed circumstances and what I view to be his ability to work and earn going forward.

[34] There will be a small retrospective adjustment because the Consent Order of February 2, 2017 had temporary without prejudice child support starting on March 1, 2017, whereas the mother’s child support claim actually dates back to June 1, 2016. Strictly speaking though, this is not retroactive support, because the time frame of the child support claim post-dates the commencement of this proceeding entirely.

[35] The mother’s claim for section 7 expenses was not supported by documentation or oral evidence. She has failed to follow the disclosure provisions in the Child Support Guidelines and the Family Law Rules. She did not comply with the directions set out in a previous Order of Rowsell J. dated February 4, 2019. The mother’s claims for section 7 expenses is dismissed.

[36] Lastly, there is the father’s claim for damages for parental alienation. That claim is also dismissed. Whether a tort based on parental alienation already exists, or should be created, is a matter for another case and another day. Based on the record and the submissions I heard in this case, the father has failed to prove such a claim.

[37] I am mindful of the recent comments of the Ontario Court of Appeal in K.K. v. M.M., 2022 ONCA 72 ¶ 21-23 and other recent decisions. This judgment is lengthy. That is a function of the numerous years of litigation, a number of troubling events that have occurred during those years, and an abundance of evidence about events that transpired over those number of years. I have chosen to provide some detail in this judgment for the benefit of the parents. The mother chose not to come to Court for this trial. She needs to understand the basis on which this decision has been made. Both parents need to understand the areas where they engaged in behaviour that this Court disapproves of, and consequently the Court’s view of how they have both adversely impacted their child.

[38] The request being made to the Society is also not one that is routine. For the Society’s benefit, I have striven to include the detail necessary to explain why the Court is compelled to ask it to become involved in certain ways. It is equally important for the Society to understand just exactly what has happened with this family, to inform its decision making about next steps.

PART II: BACKGROUND

A. Additional Information About The Parties

[39] The father was previously married and divorced before he entered into the relationship with the mother. The father has four adult children of that prior relationship, now ranging in age from 18 to 27.

[40] The mother has a son named R. from a previous relationship. He would be one of the persons with whom E. has a relationship, but the Court did not hear from him at this trial as the mother did not participate personally, or call any witnesses. As I understand it from the father and one of his witnesses, the mother’s relationship with R. has been volatile, and at times violent.

[41] E.’s maternal grandmother visits Canada during certain months of the year. I understand that when she does, she stays in the mother’s household for months at a time. She would also be one of the persons with whom E. has a relationship, but the Court did not hear from her at this trial either, for the same reasons. As I also understand it from the father and one of his witnesses, the mother’s relationship with her own mother has been volatile.

[42] The mother has not re-partnered since the separation as far as I am aware. The father has. He married his current partner L. in December 2018. They have lived together in L.’s home since that time, although the father also spent some time there prior to their marriage too, while they were dating.

[43] L. has two children from her previous marriage living in the home. In September, 2021, the father’s youngest child from his first marriage also moved into L.’s home.

B. The Father’s Financial Circumstances

[44] The father is in his late 40s. He is in a union. He works two jobs in the construction industry, only one of which is a unionized job. He has also done other kinds of work in the past.

[45] The determination of his income was a significant issue in this trial on which the mother’s counsel heavily focused. The father has received gifts of cash from members of his extended family. He also receives financial benefits from L. in his new marriage to which amicus pointed in her written closing submissions.

C. The Mother’s Financial And Other Circumstances

[46] The mother is in her early 40s. Because she did not personally participate in this trial, what I know about her comes from the father’s evidence, the limited information she told me about herself at previous Court appearances since May, 2021, mostly focused on her health, and what came through other witnesses and the documentary evidence.

[47] I have been given little to no information about the mother’s prior education, work history or her income. Clinician Naoimi Singh from the OCL (the second clinician who unsuccessfully tried to get involved in this case) wrote in her discontinued report dated July 23, 2019 (the “second discontinued report”) that the mother was injured in a motor vehicle accident in or around 2007, and that left her with a spinal cord injury. I know from other evidence that the mother was subsequently involved in two other car accidents.

[48] According to her financial statement sworn February 4, 2019 [^3], the mother received monthly income of $1,052.66 from “CPP and OAS” and child tax benefits of $564.83 per month, at that time. Her 2017 Notice of Assessment[^4] reveals that her Line 150 income was $16,446.00 that year.

[49] Over the course of this proceeding, the mother has refused to provide a complete picture of her true health circumstances, despite numerous directions from a number of judges to do so. To the Court, beginning in about 2018 the mother has repeatedly claimed that her health conditions were so severe that she could not participate in this case for months or years into the future. To workers and clinicians with the Society and the OCL, and to persons working at the Durham Supervised Access Program, the mother has likewise claimed an inability to participate in their processes. The mother has taken the position that any request for additional medical information is a violation of her disability rights.

D. The Child’s Circumstances

[50] E. is currently in elementary school. Since September 2020, he attends school virtually. Prior to the Covid-19 pandemic, he attended school in person.

[51] The father agrees that that E. loves and is bonded with his mother. But the father also characterizes E. as “parentified”.

[52] When the father was allowed to have visits with E. in the past, they were clearly affectionate and appropriate with each other. Their favorite activity was playing video games. The father also used to engage in outdoor activities with E., like playing soccer or running.

[53] The child has been late or absent from school and has struggled with language and math for years. The most current evidence about E.’s mental health comes from 2019. The mother has made inconsistent statements about how E. is doing, to different professionals. In one troubling instance in March 2019, she gave conflicting statements within a 24-hour period, saying both that he wanted to harm himself and that he was thriving.

[54] The father says he is very worried about E.’s emotional health. E. also made reports to his parents in 2019 that he wanted to harm himself.

E. The Society’s First File Opening In April 2013

[55] The Society’s first opening respecting this family occurred in April of 2013. At that time, the Society received a call from someone at E.’s day care raising concerns that the mother was driving the child to daycare under the influence of prescription narcotics. The caller also reported that the father had lost his license due to alcohol related charges. The caller reported that she was concerned about how the mother could be caring for the child while taking the medication. And the caller reported that the mother was “dramatic” about her injury, and “a little volatile”.

[56] The Society worker then involved attended at the child’s day care but did not interview the child. She also made an unannounced home visit. As I will explain, no professional, except for possibly a school principal in 2017, and briefly the second OCL clinician (but only during her observation visit of the father and E.), has ever interviewed E. without the mother present.

[57] The Society’s notes and records from this first opening reveal that the mother was “shocked, upset, but understanding and cooperative”. The mother then reported that E. needed to be in day care, as she could not care for him throughout the day. She said her pain could cripple her to the point that she could not walk or she could pass out. I observe that she was then describing severe pain to the Society, years before she had her second and third car accidents that this Court has been told about during the prior proceedings, in the context of an investigation into whether she was abusing her prescription medication, which she denied. The worker determined that the mother was not using her medication inappropriately apparently based on a conversation with the mother’s former family doctor who prescribed it. [^5]

[58] I also observe that the parties were not separated at the time of this first investigation. In contrast to the investigations that would follow, the mother reported to the Society worker that the father did most of the “hands on care” of E. She spoke highly of him as a father and partner. She also denied any substance abuse concerns on his part (namely alcohol misuse). Interestingly, her statements about the father’s drinking back then were much more proximate in time to two impaired driving convictions upon which the mother would later rely during this litigation to restrict his parenting time.

[59] In the result, the Society worker concluded that the child appeared to be well looked after and closed the file.

F. Parenting Following The Separation

[60] The father says that after they separated the mother insisted that he could only spend time with E. at her home, a position she continued to take throughout these proceedings. At first, the father agreed to this. He says he would try to go with E. into the bedroom to see him alone, but then the mother began intruding on their time. According to the father, the mother came into the room, yelled and denigrated him in the presence of E. The father says he did not engage with the mother and would leave. This often led the mother to “punish” him by cancelling visits.

G. The Society’s Second Opening In July 2016

[61] This case began in May of 2016. The Society became involved with this family once again in July 2016, a little over a month later. The Society received a call from Peel Children’s Aid Society, because the father telephoned the Peel Society expressing a concern that the mother was using physical force on E. When the matter was investigated, the mother claimed that the father was making “false allegations”. The mother told the worker at the time that the father’s visits were supervised by her, and in contrast to what she had said in April of 2013, she now said she would be concerned if the supervision were to be lifted, given the father’s alcohol misuse and “emotional abuse” towards her. She also suggested the father was struggling with his mental health.

[62] I note that the parents would later reverse their positions on these points in this litigation. Although the father told the Society in 2016 the mother was using physical force on E., at this trial, in response to questions about why the father has not done more to address the evidence of family violence, he said the mother had never been physical with E. He also testified that E. is the mother’s “golden child” and she would not hurt him.

[63] The mother has subsequently made claims in this proceeding that the father physically abused E. But in 2016, she told the Society that the father had not done so.

H. The Father’s Parenting Time After The Start Of This Proceeding

[64] The father says he launched this proceeding after two years without improvements to the “visitation schedule”. He says he felt he had no choice and he wanted to strengthen his close bond with E. with regular parenting time. He says that he has now spent over five years fighting to have a relationship with E., and fighting for E.’s right to have a relationship with his extended family.

[65] The father says his relationship with the mother deteriorated even further after he commenced this proceeding. Although the parties agreed early on in the proceeding that the mother would have final “custody” and the father would have temporary supervised parenting time to start, the father says the mother has refused to abide by court orders throughout this proceeding, she made baseless accusations against him and his lawyer, she refused to cooperate with procedural directions from the Court and the Family Law Rules, and she intentionally caused “enumerable delays”, all while refusing to allow him to see E. The father says this case “dragged on for years”, despite a “volume” of Orders have been made. The father says he felt forced to bring a contempt motion during these proceedings. He describes that as “fruitless”.

[66] The father says that since March 7, 2019, despite Hughes J.’s Order for unsupervised parenting time, he has only seen E. when it suited the mother, mostly under her watch. While he had some telephone contact, in part because Fryer J. made an order for that on September 24, 2019, the father says the mother interfered with that too. The father says he has not seen E. at all since his birthday in November, 2020.

PART III: PRIOR LEGAL PROCEEDINGS AND THE EVENTS DURING THE PROCEEDINGS

[67] The prior proceedings in this case are well documented in the prior written decisions of this Court (see W.A.C. v. C.V.F., 2021 ONSC 3942, released on May 31, 2021; W.A.C. v. C.A.F., 2021 ONSC 5140, released on July 21, 2021; W.A.C. v. C.V.F., 2021 ONSC 6894, released on October 15, 2021; and W.A.C. v. C.V.F., 2021 ONSC 7657, released on November 19, 2021). I will nevertheless recount the history of these proceedings in some detail once more in this judgment. I do so for the same reasons described earlier when highlighting the length of this judgment, but also to provide a timeline into which I will now situate the evidence I heard about this family and this child at particular points in time, and to aid me in making findings of fact and credibility.

A. The Part Final And Part Temporary Consent Order Of Rowsell J. Dated February 2, 2017

[68] The first substantive Order made is that of Rowsell J. dated February 2, 2017, discussed earlier. Again, that Order provides that the mother would have final decision-making respecting E., and the father would have temporary supervised parenting time and pay temporary child support.

[69] The OCL was appointed for the first time on this date. Rowsell J. made certain other procedural orders for the next steps in the case, including orders requiring the parties to file financial statements, and requiring the mother to provide details of all s. 7 expenses claimed with receipts and a chart setting out the father’s contributions to date.

B. The Settlement Conference Before Rowsell J. On May 10, 2017 And The Further Appearance On February 12, 2018

[70] The next event in Court was supposed to be a Settlement Conference on May 10, 2017, but it did not proceed. Rowsell J.’s Endorsement of May 10, 2017 indicates that the mother did not file a financial statement for that appearance, nor did she provide the information needed for her claims for section 7 expenses. Rowsell J. noted that the mother instead filed a Notice of Withdrawal of both her child support and claims for section 7 expenses. Rowsell J. did not accept the Notice. Instead, he suspended it for 90 days and gave some directions as to what should be done.

[71] Rowsell J. also appointed the OCL again, for a second time. At this point, the father’s supervised visits were on the cusp of just beginning.

[72] By the time of Rowsell J.’s next Endorsement of February 12, 2018, the father’s visits were no longer taking place at the supervised access center. Rowsell J. noted that the father had been seeing the child at the mother’s home. That was not satisfactory to the father, and he wanted unsupervised parenting time to start. Alternatively, he wanted to return to the access center.

[73] In this Endorsement, Rowsell J. wrote that, “[t]he main stumbling block appears to be the [mother’s] allegation that the [father] is under the influence of alcohol during visits”, which the father denied. The mother also told the Court that the child had been assaulted at school, and was showing some significant effects from that.

[74] Rowsell J. noted that the mother was still wanting to withdraw her claim for section 7 expenses. This time, he allowed her to do so.

[75] Rowsell J. otherwise adjourned the matter to a Settlement Conference/Trial Scheduling Conference on June 20, 2018. He ordered that Settlement Conference Briefs were required. He granted the father leave to bring a motion to enforce the order for parenting time, appointed the OCL for the third time, and ordered the parties to file their intake forms with the OCL within 14 days. He also reserved costs.

C. The Father’s Supervised Parenting Time With E. In 2017

[76] The evidence of the few supervised visits that the father was able to have with E. in 2017 after that first Order of February 2, 2017 is amongst the most important evidence of the child’s and the father’s relationship that the Court has in this case. It is also important evidence about parental conduct relevant to the parenting issues in this case. As such, I am repeating it in some detail here.

[77] Between the February 2, 2017 Consent Order and the appearance before Rowsell J. on February 12, 2018, the father was able to have seven supervised visits at the access center. His first visit occurred on May 28, 2017 and the last one occurred on November 12, 2017.

[78] Jody White is the current program director of the Durham Supervised Access Centre. When the father had supervised visits at the center in 2017, she was the program’s coordinator. She sometimes supervised the father’s visits. She also had a number of other interactions with both parents over the period of time that they used the program’s services. The father called Ms. White to testify.

[79] In general, Ms. White’s oral evidence and the supervised access observation notes revealed that the mother’s interactions with members of the access center’s staff and management were conflictual at times. During the time that this family used the service, the mother occasionally involved E. in inappropriate discussions and behaved badly in his presence. The mother also made reference to and relied on her health, when raising complaints.

[80] Ms. White testified that it seemed like the mother was always raising concerns about the center’s need to accommodate her. She testified that the mother said she would go to “lawyers, newspapers and the tribunal” with her grievances. Ms. White acknowledged she understood the need to follow human rights legislation, but she said it was never really clear what disability accommodation the mother actually needed. Nevertheless, Ms. White tried to accommodate the mother’s requests in a number of different ways.

[81] Ms. White testified that one or both parents sometimes came late to visits, or cancelled visits on short notice, or arranged visits outside the center. This was a concern, in view of the program’s limited resources. Ms. White said this family was taking up a spot in the program that could have gone to another family and questioned why the parties even needed supervised access. For example, the observation notes reveal that the mother brought E. late to one of the visits by more than 30 minutes, resulting in the father and E. having a shortened visit that day. Each parent cancelled two visits. The mother cancelled one additional visit, although that appears to have been based on the parents’ joint agreement. Meanwhile, despite the problems that Ms. White flagged, when the father was actually allowed to have visits with E., they went very well.

[82] The overall tenor of this evidence was that there were a number of problems at the center. But contrasted with this, the visits between father and son that did occur, were positive. This can be seen beginning with the very first visit on May 28, 2017.

[83] Ms. White testified that there was a wait list to use the program and that it was not always possible to give a family a preferred time start. From the outset, the mother complained the time slot offered was too early, said she needed a “disability accommodation” and announced that she would be sending a letter of complaint. The observation note from May 28, 2017 reveals that the mother complained that she was not being accommodated for her disability. She claimed that she could not be ready for the start time of 9:45 am. In response, the staff person offered to put the family on a wait list for a noon or 2:30 start time instead. The staff person asked the mother not to discuss the issue in E.’s presence, but the mother refused. And she said she would be writing a letter.

[84] Meanwhile, when E. entered the observation room for his first visit, he was initially apprehensive. Soon thereafter, he ran and greeted his father. The note reveals that the father and E. were affectionate with one another, they played games together and talked about recent events in E.’s life. The note also reveals that the father brought some food for E. during the visit.

[85] The mother complained again at the second visit on June 11, 2017. That day, she arrived a few minutes early and asked to speak to the site manager in advance of the visit. The mother stated, once more, that she needed a “disability accommodation”, and alleged the center was not accommodating her. The staff person reminded the mother that they had recently called her to inquire whether she could instead do the visit on Saturday at 9:45 am, and whether she could have someone else bring E., but the mother said she was unable to arrange the latter. The mother said that she was being “forced” to come to visits.

[86] Meanwhile at the outset of this second visit, E. had a “huge smile on his face”. Upon entering the observation room, his smile “widen[ed] as he ran towards [his father]. They hugged. Throughout the visit the father played games with E. and they talked. During the visit, E. hugged his father around the waist. Father and son kissed and hugged at the end of the visit. E. was “all smiles as he squeezed [his father] tightly”. E. also ran towards and hugged his mother at the end of the visit.

[87] The parents’ behaviour respecting lateness, absences and their arranging visits between the father and E. on their own, outside the center, began with the third visit. The note of the June 25, 2017 visit reveals that the father attended, but the mother did not. The father had a text message from the mother at 9:11 am, about 30 minutes before the visit was to start, saying that E. was not feeling well, and offering him to have a visit at the mother’s home. The father said he would go to the mother’s home. The note indicates that the mother did not call to advise that the visit would be cancelled. A staff person telephoned the mother and asked her to give advance notice of a cancellation, so that it could be documented properly.

[88] On July 6, 2017, the mother contacted the center to advise that the July 9, 2017 visit would be cancelled. The mother advised that due to her need for a “disability accommodation”, she would not continue to bring E. for the 9:45 am visits. She asked to be notified once a noon or 2:30 time slot opened up.

[89] Visits were rearranged to occur at noon after that. But on Sunday, August 6, 2017, the father contacted the center to advise that he would be unable to attend his visit that day at noon because he had been at the hospital all night. Apparently, the father advised the mother in advance.

[90] The next visit that did occur was on August 20, 2017. However, its length was curtailed. The father arrived 15 minutes early for his visit. He told staff that he had a text message from the mother saying that she thought the visit was at 12:30 pm. This visit started over 30 minutes late. It is also a visit where the mother sent someone else to do the transportation, something the mother had previously said could not be arranged. That happened at the end of the visit; it was the mother who brought the child late to the visit late at its outset. The mother explained her lateness by saying that she had been ill in the hospital and under emergency care. She said that she was told the visit was supposed to start at 12:30 pm.

[91] Even this shortened visit between E. and his father was positive. The father brought E. some food from McDonalds. They talked about E.’s recent trip to a “rib-fest” event. They played games indoors and went outside to play soccer. E. sat on his father’s lap while waiting to be picked up at the end of the visit.

[92] The father did not come to his visit on September 3, 2017. He later telephoned the center to advise that he thought the center was closed over the long weekend. He said he was “crushed” when he learned that E. was waiting for him, but that he went to the mother’s house to see E.

[93] On this occasion, the mother did attend the center. And this time, she raised another scheduling problem. She told the staff that E. would have to attend church on Sundays and so the Sunday noon visits would now no longer work. The mother said she would figure out how to reschedule the visits when the parties attend court next. When the mother tried to leave with E., E. went back into the playroom. He said, “I don’t want to leave”.

[94] Visits on Sundays at noon nevertheless continued after that, but only for a couple of months. At the outset of the visit on September 17, 2017, E. asked staff if his father was present, and when he learned the father was there, he smiled and said goodbye to his mother. He then ran to his father and jumped in his arms, smiling upon entering the observation room. Father and son immediately talked about events in E.’s life the past week. During the visit, they played video games, soccer and put a puzzle together.

[95] On September 29, 2017, the mother left a message, once again, to cancel the upcoming visit for October 1, 2017, saying that E. had asked his father to visit him at the condominium in which the father lived at the time, so that E. could swim, bowl and play tennis using the condominium’s amenities. The mother reported that the father had agreed to do the visit at the condominium. This time, a staff person contacted the father to express a concern about the cancellations and the apparent lack of a need for the program [my emphasis added].

[96] The next visits at the center occurred on October 15 and 29, 2017 and November 12, 2017. These notes reveal that the father and E. played different video games, had numerous discussions about things like video games, and played other games. They had appropriate discussions and were affectionate. These notes reveal that the father and E. shared a “big hug”, that E. had a “huge smile on his face”, and that father and son said “I love you to each other”.

D. The Suspension Of The Father’s Supervised Visits

[97] November 12, 2017 was the father’s and E.’s final supervised visit at the center for almost one year. Although the visits between the father and E. were going quite well, the mother would not go back to the center after November 12, 2017.

[98] Two notes in the file reveal that on November 25, 2017, the father called the center to advise that mother wanted to cancel the visit scheduled for November 26, 2017, because E. had been “bullied and sexually touched at school”. Staff called the mother to confirm. The mother reported that it would be in E.’s best interests to stay home, because what happened at school had been “very traumatic” for him. The father says he agreed to suspend visits at the center temporarily, but only because the mother promised it would only be for “a month or two”.

[99] The access center agreed to put this family’s file on hold for a while. The mother was asked to provide an update as to E.’s return to the program in the new year, something she then did not do until she was prompted four times, three times by phone and once in writing.

[100] In the new year, center staff tried to call the mother on January 15 and 18, 2018. They left messages asking the mother to confirm whether the next visit then scheduled to resume on January 21, 2021 would be going ahead, or whether she would be making further cancellations. The note reveals that the staff person contacted the father too, and he reported that E. was back at school, and so he hoped that E. would be “ok” for visits once again. By January 20, 2018, after the mother had not responded, the staff person tried reach her for a third time and the file was placed on hold once more. The father was advised that a visit spot could not be held for an “extended period” of time.

[101] Ms. White testified that following these efforts without a response from the mother, she wrote a letter to her on January 24, 2018. The letter was not introduced into evidence, but Ms. White testified that it contained the same information as that which was contained in the aforementioned case notes. The mother finally responded after receiving the letter.

[102] In the end, the parties did not resume using the access center after the break of “a month or two”, as the mother had initially requested. The center continued the hold until April 24, 2018.

[103] Although the mother would not allow E. to visit with his father at the access center after November 26, 2017, she did allow the father to have extra visits at her home or in the community, into 2018. The father tendered a chart listing the dates of those visits. It reveals that the mother allowed him to have one visit with E. in January, 2018, two in February, 2018, one in March, 2018, one in May, 2018 and six visits in June, 2018 [^6].

[104] But what also transpired after the mother suspended the father’s visits at the supervised access center in November of 2017, was an extensive investigation by E.’s school principal into the allegation that E. had been sexually assaulted at school by another student. The Society became involved with this family for the third time. There were several instances of police involvement with this family. The mother relied on the alleged sexual assault as a basis not to work with the OCL. She also embarked on a campaign of complaining against various professionals.

E. The Sexual Assault Investigation, And The Society’s Third Opening With This Family

[105] The evidence relating to the alleged sexual assault of E. at this trial primarily came from the testimony of E.’s former school principal, whom the father called to testify. Documentation from the Society’s files about its involvement in this incident was also introduced into evidence.

[106] E.’s former principal first became aware of the alleged assault when the mother came into her office to report that another student had grabbed E. in the “crotch area” outside in the school yard during a recess period. The principal recalled that the mother had already contacted the police by the time she brought the incident to her attention. The Society’s notes and records reveal that the mother contacted the Society right around this time period, too.

[107] The principal exhaustively investigated the alleged incident. She first spoke to E., initially with his mother present. She was also present when E. was later interviewed at the police station by the community liaison officer. She talked to E. again at the school the next day.

[108] The principal tried to obtain additional information from E. about the identity of the other student, but she said that E. did not know the name of the student, nor the class in which that other student was. She described E. as being able to give only a “very general description”.

[109] The principal asked E. to point out the other student at recess, but likewise he was also unable to do that. The principal involved the vice principal, E.’s classroom teacher, the teacher who was on duty that day in the school yard, and other friends of E. with whom E. was playing at the time the grabbing is said to have occurred, in her efforts to identify the other student.

[110] The principal testified that she conducted a “thorough investigation” and “went down every alley possible”. She testified that she interviewed many persons, including at least five other students. In the end, the issue remained unresolved as no identification of the other student was made.

[111] Although the other student was never identified, the principal testified that she reassured the mother that E. would be given support at recess. She also testified that she offered that a social work or youth counsellor could be made available to E.

[112] But the mother was not satisfied. She began to make a number of complaints.

[113] In addition to contacting the school and the police, the mother also contacted the Society about the incident, initially on November 21, 2017. The Society quickly determined that because the other student alleged to have committed the assault was not a caregiver or family member, it would not be taking on much of a further role.

[114] That said, the Society’s case closure note dated November 28, 2017 states that the school wanted E. to return to school, but the mother claimed that E. was afraid. The mother complained about the manner in which the police and the school handled the investigation. To the Society, the mother described the school as “very insensitive about the incident”.

[115] The Society’s worker thought that perhaps the family could benefit from further support in the community. The worker made a community link referral. But the mother did not avail herself of the Society’s referral. She told the worker that she would be providing the school with a list of “request/accommodations” to assist in reintegrating E. back into the school.” Ultimately, the Society’s file was closed because the mother was said to have been “acting proactively with E. and [was] seeking community services to support him”. This turned out not to be so.

[116] On December 4, 2021, the Society worker spoke to the mother again, apparently because the mother was upset that she received a “standard letter” from the Society. The mother also tried to call the worker’s supervisor about the file being closed, but the two did not connect.

[117] The Society’s file reveals when the supervisor called her back, the mother did not take her calls, and did not call back again. In the end, the Society did not revisit its decision to close its file, and it also closed its “community link” file too.

[118] On December 12, 2017, the mother called the Society again, this time to complain about the manner in which the police had handled E.’s interview. She said she had contacted her MPP for help. She accused the police officer of having “screwed up and lied in the report”. She claimed that the school apologized to her and a police officer admitted “they dropped the ball”. She claimed that the police officer “traumatized” E. by interviewing him. She also claimed that the school knew the identity of the offender child.

[119] On December 14, 2017, the mother complained again, this time by sending an email to numerous people working for the school board. In her email, she demanded that the school remove the child who assaulted E. from the school. Her two-page email claimed that E. was scared and the safety measures put in place at the school were inadequate. She wrote that she had “invested too much into moving to [the community] to restart [her] life with a disability and helping to build Durham into a better community for all to have to move [her] child when he did nothing wrong.”

[120] According to the collateral information gathered as part of the OCL’s attempts to work with this family (discussed below), during this time frame the mother contacted the police to express her dissatisfaction with the handling of the incident, too. The mother said she wanted E. to be interviewed by a child psychologist.

[121] The mother subsequently filed a complaint against the officer who initially interviewed E. and requested that that officer be removed from the investigation. The police closed the file concluding that safety concerns were addressed through the school.

[122] Six months later, on June 24, 2018, the mother revived her complaints. This time, she sent another email to several members of the school board and she copied the Society. The mother’s email advised its recipients that she had apparently filed a complaint with the police regarding E.’s assault and her dissatisfaction with the response by the school. She alleged the school minimized what happened to E. She also said she would like to “file a report on the principal’s conduct”. I note that this email, sent months after the previous complaint email, came four days after a June 20, 2018 court date in this proceeding, at the end of which Rowsell J. gave the father leave to bring a contempt motion relating to his parenting time.

[123] During examination-in-chief, the father’s counsel asked the father whether he believed this alleged sexual assault actually occurred. The father testified that he was suspicious, but ultimately he would not say that he disbelieved the incident, because he wanted to believe what his son had said.

[124] Whether or not this alleged sexual assault occurred is collateral to what I must decide. Assuming the assault occurred, it was not a basis to terminate the father’s supervised visits. The evidence I heard at this trial did not reveal that E. was traumatized, and certainly not from visits with his father at the access center. E.’s former school principal could not recall any further incidents involving E. after this alleged event. She recalled talking to his teacher and testified that “he seemed happy”.

[125] Nor did the evidence at this trial reveal that the mother actually did anything to address the trauma that she claimed E. was experiencing. The principal testified that documentation would be in E.’s Ontario Student Record (“OSR”) if there was any such follow up, such as for counselling through the school. There is no documentation in E.’s OSR to this effect. Nor was there any evidence that the mother followed through with any of the community referrals from the Society.

[126] There was also no evidence that the mother was “acting proactively with E. and [was] seeking community services to support him”, despite the Society’s finding in its files to this effect. The evidence reveals that what the mother was actually doing, was complaining about those involved in investigating the incident.

[127] I find the mother used the opportunity to cancel the father’s supervised parenting time access. She also relied on it as a basis to not work with the OCL. I turn to that next.

F. Overview Of The OCL’s Involvement With This Family

[128] As expressed earlier, during the lifespan of this lawsuit, the Court requested the involvement of the OCL some five times. Three different clinicians actually ended up being assigned to investigate and report to the Court pursuant to section 112 of the Courts of Justice Act, between 2018 and 2020. But in the end, the OCL was only ever able to undertake incomplete investigations and file incomplete reports. Having now heard the evidence at this trial, I find that the mother completely bears the responsibility for this. The father was cooperative with the OCL.

G. The OCL’s First Involvement With This Family In March Of 2018

[129] It was on March 16, 2018 when the OCL tried to get involved with this family for the first time as a result of Rowsell J.’s Order of February 12, 2018. Linda Bleau was the first clinician who was assigned to investigate and report to the Court but the mother blocked Ms. Bleau’s attempts to embark upon her investigation right from the get-go. No more than two weeks after this file was assigned to her, Ms. Bleau’s investigation was over. She filed a discontinued report with the Court dated March 29, 2018 (the “first discontinued report”).

[130] Ms. Bleau and the mother spoke for the first time on March 19, 2018. Ms. Bleau testified that the mother seemed to be surprised to hear from her. The mother had not submitted her intake form, despite being ordered to do so. Ms. Bleau formed the impression that the mother thought the investigation would therefore not proceed. Ms. Bleau told the mother that she was still going to proceed with the investigation nevertheless, but that she would give the mother an opportunity to convey to her orally the information that the mother ought to have included in her intake form.

[131] The mother declined to book a meeting with Ms. Bleau. The mother told Ms. Bleau that due to health issues, she was unlikely to proceed with the investigation. Ms. Bleau proceeded to call the father nevertheless, and booked a meeting with him.

[132] The mother changed her mind. The next day, the mother called Ms. Bleau back to book her appointment. Ms. Bleau offered the mother an appointment in early April 2018. When the mother found out that the father already had booked an appointment with her first to occur in late March, the mother became upset. Ms. Bleau wrote in the first discontinued report, and testified at this trial, that the mother accused her of bias, for having booked the meeting with the father first.

[133] Ms. Bleau had to get her supervisor involved after this second call with the mother. As set out in the first discontinued report, the mother claimed that due to her health and her desire not to expose E. to “further trauma”, she would not be participating in the investigation. A decision was made internally at the OCL not to proceed with the investigation. Ms. Bleau contacted the father and told him the investigation was cancelled.

[134] The OCL closed its file, two weeks after it was opened, without having any contact with the child, professionals or other collaterals, and without ever meeting with the parents. The OCL is now the subject of a complaint to the Human Rights Tribunal of Ontario launched by the mother.

H. The June 13, 2018 Kidnapping Allegation And The Involvement Of The Durham and York Regional Police

[135] One of the visits that the mother allowed the father to have outside of the access center in that first half of 2018 happened on June 13, 2018. It was an overnight visit. The evidence before this Court at this trial was that this was one of only two overnight visits that the father has ever been allowed to have with the child, during the entire period between the parties’ separation and this trial.

[136] The father says that on June 13, 2018, the mother telephoned him. He says she was angry and yelling, and told him to come and get E., because now E. was “mine” (meaning the father could take him). On the way over to her house, the father received a second telephone call from the mother, to advise that E. was waiting for him. E. also spoke to his father, telling him to bring a suitcase, because the mother said he could not use hers.

[137] The father made recordings of these calls, although he did not seek to introduce the recordings into evidence. The father did testify about the recordings he made. He says he made the recordings because approximately two years earlier, the mother had asked him to take E. for an overnight visit and later accused him of kidnapping E. After that earlier complaint, he found an application for his smart phone that would automatically record all of his phone conversations.

[138] The father says that when he arrived to pick up E. from the mother’s home, E. was happy to see him and did not appear sad. Later that evening, the father said he noticed E. pouting. He testified that E. said “I miss mommy”. The father “guaranteed” E. that he would be back with his mother the next day.

[139] In the midst of this incident, the father’s counsel sent a letter to the mother to document that the father had picked the child up, at the mother’s request. Counsel told the mother in that letter that the father would be taking E. to school the next morning. According to the collateral information gathered by the OCL during its second investigation (discussed below), the mother proceeded to contact the York Regional Police and falsely claimed that while she had received counsel’s letter, she had not called the father to pick up E.

[140] At around 11:30 pm, the father received a phone call from his parents. The father’s parents advised him (and his partner L.) that the mother had attended at their residence and demanded to have E. returned to her. Later on, the father received a telephone call from a police officer with the York Regional Police. The father says the officer informed him that the mother had called and accused him of abducting E. In response, the father played the recording he had earlier made, to show that the mother had told him to pick E. up.

[141] Next, officers from the Durham Regional Police attended at L.’s home. To those officers, the father repeated the story and played the recordings. The officers also went to check on E., who was sleeping. The officers then left.

[142] The next day the father took E. to school in accordance with his counsel’s letter. Although just the day before, the mother kicked E., then just nine years old, out of her house with a suitcase in hand, at the end of the day on June 14, 2018, the mother went and picked E. up from school. The mother then drove to L.’s home with E. in the car, knocked on the door and began yelling and swearing at L. L. says that when she opened the door, the mother almost immediately began to raise her voice at her. L. responded by shutting the door and locking it.

[143] The father, observing this event from the window of L.’s house, telephoned the police once again. This led to more police involvement, for the third time in a 24-hour period. Police Constable Brendan Peters came to investigate the father’s call. The father says that the officer asked if the father wanted to “press charges”, but he declined. He asked the officer to tell the mother not to come to L.’s house again.

I. The Aborted Appearance Before Rowsell J. On June 20, 2018

[144] Six days later, the parties were back in Court, although the mother first tried to adjourn this appearance by way of 14B Motion. Rowsell J. dismissed her request to adjourn.

[145] Rowsell J.’s Endorsement of June 20, 2018 indicates that for the appearance itself, the mother did not then file material. The Endorsement goes on to state that within minutes of the conference’s start, the mother was “in distress”. The matter did not proceed after Rowsell J. left the court room to complete the Endorsement in Chambers.

[146] Rowsell J.’s Endorsement of June 20, 2018 is the first endorsement that states that the mother was seeking “a lengthy adjournment due to her medical issues”. Rowsell J. also noted the Court’s concern, that the father’s parenting time was unresolved. He wrote that the mother had to provide detailed medical information from her treating physicians if she wanted further adjournments. Rowsell J. otherwise wrote that there was little chance of resolution, and the matter should likely proceed to trial on the November 2018 sittings.

[147] Rowsell J. endorsed that the mother did not proceed with the OCL because she believed it to be unhealthy for the child, and the OCL then declined to act. He put the matter over to October 24, 2018 for a Trial Scheduling Conference. He ordered that the parties were to file Trial Scheduling Endorsement Forms, draft Orders sought, draft Opening Trial Statements and Offers to Settle. He also granted the father leave to bring a motion to address non-compliance with the Order for parenting time and the OCL issue.

[148] It was four days later that the mother tried to revive her complaint about the police’s and the school’s handling of the alleged sexual assault investigation, by sending the June 24, 2018 email described above.

[149] Although the next event in this case was supposed to be a Trial Scheduling Conference, that is not what happened. Instead, what followed was more Society involvement with this family, followed by a series of attendances on the father’s contempt motion.

J. The Society’s Fourth Opening With This Family, Between June And September, 2018

[150] According to the Society’s notes and records, on June 25, 2018, an associate lawyer in Ms. Michaels’ office called the Society to report that the mother had falsely accused the father of kidnapping E. The lawyer played the recordings of the calls the father had made to the Society worker. The intake worker listened to the recordings and described in the notes that the mother was “yelling, berating, screaming, swearing and continuing to call him names”, such as “the devil”.

[151] Consistent with the father’s evidence on this point, the intake worker noted that in the first recording the mother said she was “tired of this” and if the father wanted E., “he’s got him”. The intake worker noted that in the second call, the mother said that E. was waiting for him, and told the father to come and pack up his things. She said “I’m done, I’m not going to let you or anyone kill me”.

[152] The Society initiated an investigation to determine whether E. was at risk of emotional harm due to parental conflict. This was the most comprehensive Society investigation into this family that had been undertaken, but in the end the investigation was incomplete, and like every other investigation in this case, resulted in the Society closing its file.

[153] The initial worker for this investigation was Mia Tsuji. Ms. Tsuji tried to arrange a home visit but the mother would not allow it to happen, due to her “severe health issues”. The mother told Ms. Tsuji that she should “be provided with accommodation because she could die”. She then refused to provide a letter from her doctor.

[154] The Society insisted on a meeting. The mother eventually relented and allowed a visit. The worker that attended was Michelle Johnston. The mother then refused to allow Ms. Johnston to meet E. privately. Ms. Johnston was only able to interview E. in his mother’s presence.

[155] According to the Society’s notes and records, E. told the worker that his mother is “kind and nice” and that he did not want to be taken away by the Society. E. reported that his parents “hate each other” and they used to fight and yell. E. talked about a time he went with his father “without his mother’s permission”, and so the mother telephoned the police on the father. He said he felt “upset and worried”. At the same time, E. reported that he liked to visit his father. He reported he felt safe and said if he had a wish to go back in time, he would tell his parents not to fight [my emphasis added].

[156] According to the Society’s notes and records, the mother told Ms. Johnston that the father had mental health and alcohol misuse issues. She indicated that she had “severe health issues”, but they did not impact her ability to care for E., or to do her community work. They did impact her ability to participate in the court proceedings, however, according to the mother.

[157] The mother informed Ms. Johnston that she had been supervising the father’s parenting time at her home, despite this Court’s Order for supervised parenting time to occur at the access center. The mother admitted that she refused to let E. be interviewed by the OCL, because she did not believe E. could handle speaking to the OCL. She said E. was traumatized by being “groped” on school property. She also claimed for the first time that Frank Kennedy, someone she identified as the “school social worker”, recommended that E. not be involved with the OCL at the time. No counselling had been put in place, but the mother said she could get support from Mr. Kennedy. [^7]

[158] The notes reveal that Ms. Johnson also interviewed the father. The father acknowledged he had two prior charges relating to driving under the influence of alcohol several years earlier. Ms. Johnson told the father that he could attend for a substance abuse assessment, or consider taking alcohol screens prior to having a visit. But the Society did not then ask him to do this, because his parenting time was supervised.

[159] Ms. Johnson advised the mother that she should follow court orders, both in relation to the OCL and in relation to the father’s supervised parenting time. Ms. Johnson told the mother that she was creating a risk to E. if she was allowing visits between father and son while claiming the father was under the influence of alcohol. Nevertheless, the mother continued to say she would allow parenting time at her home, despite the Society’s recommendation that she not allow this.

[160] It is noteworthy that during this investigation, the Society was unable to ascertain the true extent of the mother’s health issues. The Society’s notes reveal that the mother would not sign a consent for the worker to speak to her doctor. The Society was unable to verify or deny the information the mother provided about her medical condition, with respect to any limitations she may or may not have regarding her ability to participate in Society investigations, or the Court’s process. While she did eventually provide a letter from her doctor, the Society’s notes and records say the information it received was based on the mother’s own “self-reporting”. And it did not mention or support her claim that she was unable to participate in court or Society investigations. The mother also redacted the names of her medications in the letter she supplied.

[161] Ms. Tsuji followed up with the mother, again on August 13, 2018, in an attempt to get her consent to speak to the doctor. She also asked the mother to confirm that she had booked an appointment for the OCL to see E. In response, the mother sent a lengthy email, alleged she was being treated unfairly, and made a number of allegations against the father. In so doing, she once again referred to herself as a person with a disability.

[162] The conclusion of this investigation was that the Society verified that conflict between the parents regarding “custody and access matters is having a negative impact on E.” The parents were told to follow court orders and to cooperate with the OCL. The Society then closed its file on September 6, 2018.

K. The First Three Attendances On The Father’s Contempt Motion, Heard On August 2, 2018, August 31, 2018 And October 2, 2018

[163] By the time the Society closed this most recent investigation into this family, the father’s contempt motion was already underway. Hughes J. presided over all but one of the appearances on the contempt motion.

[164] On August 2, 2018, Hughes J. found that the mother failed to follow the directions of Rowsell J., by failing to cooperate with the OCL investigation, and by failing to bring the child to the supervised access center for scheduled visits. At that point, the father was seeking unsupervised parenting time, but the mother opposed saying “he is an alcoholic and states he has two DUI’s”.

[165] Hughes J. noted the father admitted to having two “DUI’s” in the past, but claimed these were no longer an issue. She also noted the mother agreed, in Court, to cooperate fully in an OCL investigation and to reinstate the father’s supervised parenting time at the supervised access center.

[166] Hughes J. gave the mother an opportunity to purge her contempt that day. She made another order, this time asking the OCL to investigate the addiction issues, and she ordered the parties to submit their intake forms within 10 days. Because the access center had closed its file, the parties would now have to re-do the intake process. Hughes J. ordered the mother to immediately re-register for the father’s supervised visits to resume at the access center, and to pay for all costs, subject to further reallocation by the Court, if appropriate.

[167] Hughes J. then adjourned the motion to August 31, 2018, to allow the mother to “purge her contempt by complying with” the OCL intake process and the new terms about resuming with the access center. She ordered the mother to pay a fine to the father in the amount of $2,000.00 if she did not comply. She also ordered the father to file an updated financial statement with Notices of Assessment for the last three years.

[168] Hughes J.’s next Endorsement of August 31, 2018 reveals that some steps had been taken towards compliance of the August 2, 2018 Order by the end of August, but full compliance had not yet been achieved. More particularly, the parties submitted intake forms, but the OCL had not yet communicated with either of them. The father re-registered for the supervised access center to resume. The mother told the Court that she had an upcoming appointment to do so, but she continued to object to paying for the fees. Meanwhile, the father filed a sworn financial statement as ordered, but he had not filed his 2016 Notice of Assessment. Hughes J. adjourned the contempt motion to October 2, 2018. This time, she admonished both parties for their respective acts of non-compliance. She reserved costs.

[169] By October 2, 2018, Hughes J. noted that mother now claimed to be supporting the child’s relationship with the father and was supervising his visits. Hughes J. found that the mother had purged her contempt by submitting the OCL intake forms and by paying the fees necessary to resume supervised access. However, because the next OCL investigation had not yet started, and because visits at the supervised access center had not yet started, Hughes J. adjourned the balance of the contempt motion, once more, to continue to monitor the mother’s compliance. This time, Hughes J. fixed costs of $4,000.00, but stayed enforcement of the costs order pending her monitoring the mother’s compliance.

[170] Although on October 2, 2018 the mother claimed to Justice Hughes that she was supportive of the father’s relationship with the child, twelve days later she caused a commotion at the access center, and the access center terminated its services for this family.

L. The Final Supervised Visit At the Access Center On October 14, 2018

[171] The parties re-attended the supervised access center on October 14, 2018, after almost a one-year hiatus. The access center’s observation note from that day reveals that the child was somewhat more reluctant to engage with the father at the outset of this visit, but the visit went well once it was underway.

[172] Although the father and E. had a nice visit together, most of the evidence I heard about the October 14, 2018 visit centered around the mother’s poor behaviour towards staff at the access center.

[173] The October 14, 2018 visit was supposed to end at 4:30 pm. The mother did not arrive on time. At around 4:40 pm, Ms. White called the mother to find out why she was late. The mother said she was tied up in a meeting. In the end, she did not arrive until 5:04 PM.

[174] The center charges a late fee after 10 minutes of lateness. Upon the mother’s arrival, Ms. White tried to tell the mother she would have to pay the late fee, but the mother cut her off abruptly and instructed her to go and get E. Ms. White testified that the mother rudely and aggressively said “I ain’t paying shit”.

[175] The mother told Ms. White and another staff person that she would not be returning to the center. She also tried to walk into the visit room to get E. As she left with E., the mother announced again that she was never coming back to the center.

[176] The mother then went out and sat in her car in the parking lot with E. for a while. The father could not leave the center, because the center’s policy is to stagger the parents’ arrivals and departures to avoid problems from occurring in the parking lot. At 5:27 PM, Ms. White and another staff person went out to the car and asked the mother to leave. The mother, while looking at her phone, responded that she was “finishing something up”, and she would leave when she was ready to leave [my emphasis added].

[177] During the visit, the father had given E. a gift of $20.00. At 5:31 PM and after having already been asked to leave the parking lot, the mother came back into the center and returned the $20.00 bill that the father had given to E. during the visit. She said it was inappropriate for the father to have given the child money, when the father does not pay child support. The father was in fact paying child support.

[178] On October 16, 2018, Marion Hunter, the program director at the time, reviewed the situation. Ms. Hunter wrote in a note that she was now concerned about the center’s ability to offer a child focused service for this family, within an environment that respects staff as well. She wrote that no further service would be scheduled.

[179] Ms. White testified that she, Ms. Hunter and Lynn Brennan, the general manager at the time, arranged a meeting with the mother after that. The meeting occurred on November 5, 2018. Ms. White testified that they offered to reimburse the mother the fee that she had paid for the service. Ms. Brennan then wrote a letter to the mother dated November 9, 2018. The letter concludes by giving the mother information about other supervised programs.

M. The Blackmailing Allegation In October 2018

[180] The mother involved the police once again, in October 2018. According to the collateral information gathered by the OCL, the mother called the Durham Regional Police to report that the father was “blackmailing her”. To the police, the father denied the allegation.

[181] This particular instance of police involvement was brief. The police advised the father to communicate with the mother only through her counsel, and closed the investigation.

N. The Events Between October 24, 2018 And February 4, 2019, Which Includes More Police Involvement

[182] This case next returned before Rowsell J. on October 24, 2018 for the Trial Scheduling Conference. Rowsell J.’s Endorsement says that the trial was not ready to begin. The Court made yet another request for the OCL, directed the parties to complete intake forms again, and gave the father leave to amend his pleadings. Rowsell J. endorsed that a May [2019] trial was then likely. He also said that the mother needed to deal with the access center to try to reinstate access, that the father should be having access, and that if the access center was not available, alternate supervision was to be proposed. The Trial Scheduling Conference was put over to February 4, 2019.

[183] On December 10, 2018, the parties were back before the Court on the contempt motion. This time the matter went before Woodley J., perhaps in error, rather than Hughes J. Woodley J. adjourned the contempt motion to a new date before Hughes J. She also ordered, as a term of the adjournment, that supervised access would occur outside the access center at the mother’s home for two hours per week on a Saturday or Sunday, since the access center had still not been re-instated. Woodley J. ordered the mother to ensure that a third party is present “for the protection of [the father] during access”.

[184] According to another police occurrence report that was tendered in evidence at this trial, on December 18, 2019, the mother attended at a Durham Regional Police Service police station and complained she had been a victim of the father’s lawyers, saying they were using tactics to “harass” her. The mother reported that “things that have happened to her in the past”, but the note says the mother was not “specific” nor did she relate those past events “to the tactics and harassment she was going through”. The mother then told Constable Wong that she had been served with documents from the father’s lawyers, contrary to how the Court required these documents to be served. The mother told Constable Wong she would be making a complaint to the Law Society of Ontario.

[185] Constable Wong proceeded to call the father’s counsel to investigate this complaint about service. The note documents a conversation between Constable Wong and Ms. Michaels. Constable Wong concluded that the matter was not criminal in nature, and should be dealt with in this Court.

[186] The parties were then back in Court once again on February 4, 2019 for the Trial Scheduling Conference that Rowsell J. had rescheduled. Rowsell J. endorsed that the parties should expect a May 2019 trial on custody, access, child support and s. 7 expenses. He noted that the mother withdrew her claim for section 7 expenses on February 12, 2018, but nevertheless, he gave her leave to reinstate these claims. He gave her a further 30 days to provide documentation regarding retroactive and ongoing s. 7 expenses. He adjourned the Trial Scheduling Conference to April 26, 2019.

O. The Conclusion Of The Contempt Motion On March 7, 2019

[187] The final appearance on the father’s contempt motion occurred on February 26, 2019. Hughes J. released her Endorsement a few days later, on March 7, 2019. [^8] In the result, Hughes J. allowed the father to have visits with E. in the community on Saturdays, from 9:30 am to 5:00 pm, including a provision that he take the child to his gymnastics. She lifted the requirement that the father have supervised access, in favour of supervised exchanges only. She ordered that mother was not to attend the access center or the child’s gymnastics, and she ordered the mother instead to send a third party to take the child to the access center.

[188] Hughes J. made an order restricting the father’s consumption of alcohol and drugs that would impair his capacity to parent for 12 hours prior to his visits, and during his visits. She requested that the OCL expedite its investigation. She fixed costs of $2,500.00 against the mother. She also dismissed a cross-motion brought by the mother because of the mother’s “ongoing unreasonable and contemptuous behaviour”.

[189] In her Endorsement, Hughes J. found:

(a) After months of delay, the Durham Supervised Access Centre finally resumed on October 14, 2018;

(b) At the conclusion of the very first visit, the administrator at the center cancelled further visits because of the mother’s conduct at the center;

(c) According to correspondence from the General Manager of the program dated November 9, 2018, staff spoke to the mother about being late, she used “inappropriate and disrespectful language” towards the staff and said that she had “no intention of returning to the program” and the center then closed their file as a result of the mother’s “non-compliance with program access rules and as a result of [her] behaviour being disrespectful towards staff”;

(d) To the Court, the mother denied that she behaved improperly but then gave a “litany of excuses for her conduct” and very quickly “shifted into what has been her historical narrative – that she is the only one competent enough to supervise her son’s access with his father” and that the father is able to “fool everyone else as to the state of his sobriety” including the entire staff at the center and the police;

(e) The account of events provided by the General Manager of the supervised access program was more credible than the version provided by the mother;

(f) The mother sabotaged the father’s regular and ongoing access with the child through the Durham Supervised Access Center;

(g) The mother’s “appalling behaviour” took place in the presence of the child; and

(h) Without regular access, it would not be possible for the OCL to observe the father with the child.

[190] The evidence I heard at this trial was consistent with Hughes J.’s findings.

P. The Society’s Fifth Opening In Early March, 2019

[191] In between that final appearance on the contempt motion on February 26, 2019, and the release of Hughes J.’s Endorsement on March 7, 2019, someone made an anonymous complaint to the Society about the father’s new partner. On March 1, 2019, an anonymous caller alleged that L. was allowing the father to have unsupervised contact with her children, whereas the father is not allowed to have unsupervised parenting time with E. The caller also alleged that the father was driving under the influence of alcohol.

[192] After meeting with the father and his partner, the Society closed its file.

Q. The OCL’s Second Investigation

[193] Naiomi Singh was the next OCL clinician who attempted to embark on an investigation and prepare a report. Ms. Singh was assigned to this file on March 11, 2019, pursuant Rowsell J.’s Order of February 4, 2019.

[194] But soon after this second investigation got underway, Ms. Singh had to put the matter on a hiatus because of another child protection investigation.

R. The Society’s Sixth Opening Between March And April, 2019

[195] In March 2019, the Society opened another investigation, this time to investigate another allegation that the father was “drinking and driving” with E.[^9] This investigation was undertaken by family services worker Soroush Fakhri, whom the father called to testify at this trial.

[196] During the course of the investigation, the father reported to Mr. Fakhri that E. said he “wanted to kill himself”. The mother denied this and said E. was “thriving”. She did allege the father was “severely abusing her son”.

[197] As elaborated below, on March 13, 2019 (and previously in 2018), the mother told the child’s pediatrician that E. had made statements about wanting to harm himself. As it happened, Mr. Fakri met with the mother at her home on March 14, 2019, the very next day after this most recent medical appointment at which the mother told this to the pediatrician. It was on this very next day, following the medical appointment, that the mother inconsistently told Mr. Fakhri that E. was “thriving” in her care.

[198] As had happened before during Ms. Tsuji’s and Ms. Johnston’s 2018 investigation, the mother did not allow Mr. Fakhri to interview E. in private. In his mother’s presence, E. told Mr. Fakhri that he felt sad, because his dad “hurted” his mom. Mr. Fakhri’s note states that E. was referring to abuse that had happened in the past, although the note does not elaborate. E. also told Mr. Fakhri that he could not remember the last time he saw his dad, and said that he would like to see his dad, as long as the visit was supervised. E. did not explain why he wanted the visit to be supervised.

[199] The mother embarked upon giving Mr. Fakhri a tour of her house that day. She showed him her home office, computers and paperwork relating to charity work she was doing, all of which Mr. Fakhri documented. She also introduced him to a number of volunteers, who were also in her home.

[200] During this home visit, the mother explained that E. was probably feeling sad in response to what he has “witnessed”. She claimed that E. was now connected to Kennedy Intervention Services (ie. Frank Kennedy). This was the second mention of Mr. Kennedy to the Society. While the mother had previously told the Society in 2018 that Frank Kennedy was the school social worker, now she mentioned him in an out of school context.

[201] Mr. Fakhri met with the father on March 25, 2019. During that meeting, the father told Mr. Fakhri that he loved E. and said he would do “anything to keep him safe and ensure his needs are met”. What exactly the father meant by this, was not explored by Mr. Fakhri.

[202] On March 29, 2019, Mr. Fakhri later spoke with someone he identified as “Andrew Kennedy” in his notes. During this trial, Mr. Fakri confirmed that he was mistaken, and that in fact he had spoken to “Frank Kennedy”.

[203] Mr. Kennedy apparently reported to Mr. Fakri that he was not worried about the parents being able to obtain support or services, if the child needed them. The information that Mr. Kennedy provided to Mr. Fakhri appears to have consisted of general statements about what E.’s needs were. Mr. Fakhri did not ask any probing questions of Mr. Kennedy to flesh this out, such as to learn the basis upon which Mr. Kennedy formed these opinions.

[204] In the end, Mr. Fakhri verified that E. is likely to be emotionally harmed, resulting from exposure to ongoing post-separation caregiver conflict. He rated the risk to this child as high [my emphasis added]. Nonetheless, Mr. Fakhri concluded that the mother appeared to be protective of E. and determined that she would respond appropriately if E. required any kind of support. He also noted that E. appeared to be healthy and safe and did not disclose any protection concerns about either of his parents. This conclusion is curious, since at a minimum, E. had actually disclosed alleged family violence, saying that his father “hurted” his mother.

[205] Mr. Fakhri wrote in his notes that the parents “love their son and will not hesitate to reach out to any supports to ensure the child’s needs are met”. He noted that E. was visible in the community through school and extra-curricular activities, and was connected to extended family. He also relied on the fact that there were ongoing proceedings in this Court, and expressed a hope that the family would “reach a final Order” in concluding that the investigation should be closed. He noted that the OCL was involved and was working on a report. He wrote that there is “no evidence to suggest or support that his parents would not respond appropriately should the child need services”.

[206] But quite opposite, there was evidence to the contrary already available, including by that point in the Society’s own files. I will have more to say about Mr. Fakhri’s investigation and his in-court testimony, during this trial.

S. The Seventh Complaint To The Society, On April 16, 2019

[207] On April 16, 2019, the mother called the Society again. The notes reveal that this time she called the Society to report that she was concerned that the father was suffering from a “brain aneurism”. She said the father might be suffering “on the inside” and struggling to carry out his day to day functioning. According to the notes, she was unable to provide any specific reasons as to why she said he might be suffering from a “brain aneurism”. The Society chose not to make any further inquiries respecting this.

T. The Resumption Of The OCL’s Second Investigation, Between April 28, 2019 And July 23, 2019

[208] After the Society closed its file in April, Ms. Singh was able to re-schedule an observation visit with the child and his mother for April 28, 2019, and with the father and the child on May 4, 2019. Had the mother’s observation visit proceeded, this time she would have been able to go first. But the mother cancelled her April 28, 2019 visit, stating that she and E. were both unwell. Then, on May 10, 2019, the mother told Ms. Singh that she had been in the second car accident.

[209] Following her second car accident, the mother initially agreed to reschedule the observation visit for June 5, 2019. But then she refused to confirm it. She told Ms. Singh that she did not want to be contacted. In the second discontinued report and during her in court testimony, Ms. Singh described the multiple attempts she made to reschedule the observation visit after that.

[210] Ms. Singh testified that on June 5, 2019, the mother told her that she intended to complain to Ms. Singh’s supervisor. Just like with Ms. Bleau, the mother accused Ms. Singh of bias and of “showing favouritism” to the father. The mother also told Ms. Singh that she was violating her disability rights.

[211] Ms. Singh testified that despite the mother’s complaints, her supervisor was not prepared to assign a new clinician. This was communicated to the mother in writing, by letter dated June 21, 2021. The June 21, 2021 letter from the supervisor also advised the mother that she would be given some additional time to schedule the observation visit. But there would be an end date of July 15, 2019.

[212] Ms. Singh next tried to follow up with the mother on June 24 and July 10, 2019. She sent another letter to the mother dated July 10, 2019, asking her to make contact and to schedule the visit. Ms. Singh did not hear back from the mother. Her last contact with the mother was on June 5, 2019 when the mother said she would be complaining.

[213] In the end, Ms. Singh was only able to file a discontinued report. It is dated July 23, 2019 (the “second discontinued report”). It is the most thorough of the three discontinued reports, in that Ms. Singh was able to embark on some aspects of her process. For example, Ms. Singh reviewed the parents’ intake forms, interviewed both parents, conducted an observation visit between the father and E., and gathered collateral information. But she was unable to have final meetings with the parents to elicit their responses to the concerns raised by each of them to her. Notably, she too was unable to interview the child, in private.

[214] Ms. Singh’s exploration of the collateral information was limited. And Ms. Singh only made one limited recommendation (which she characterized as a “suggestion”), that the child receive counselling. She repeated what Ms. Johnson said during the Society’s 2018 investigation, that the father could undergo alcohol testing or an assessment.

U. Ms. Singh’s Observation Of The Father And The Child On May 4, 2019

[215] Ms. Singh was able to observe the father and E. together, for one hour on May 4, 2019 at a library, before the second investigation was discontinued. Other than the supervised access notes, this is the only other observation evidence from a professional, and it too is important evidence about the father-son relationship.

[216] Ms. Singh testified that E. did not then express a lot of emotion at the outset of the visit. But the father brought E. a particular toy that the child wanted. Ms. Singh said that E. “kind of lit up” when he saw the toy, and then seemed happy to be at the visit. Father and son read books together and played games. They talked about E.’s activities, a movie that E. had recently seen, and their haircuts.

[217] Like during his supervised visits at the access center, Ms. Singh observed E. and his father to be affectionate with one another as the visit progressed. Although E. was initially reluctant, he allowed his father to hug him and kiss him on the top of his head. At one point, E. leaned against the father and the father put his arm around E. Later during the visit, E. laid against his father on a couch and put his head on the father’s chest.

[218] Ms. Singh did not have any concerns about the father’s interaction with E. during the visit. She described it as “very appropriate” and said the father tried to engage with E. as best he could.

[219] However, at times throughout the visit, the child made the following statements, mostly to Ms. Singh, in the following circumstances:

(a) “I can’t wait to go home. I love my home. I love my home” (while looking at the clinician);

(b) “I can’t wait to see my mom” (while looking at the clinician);

(c) The father told E. about a new movie that was coming out, and E. said “I want to see it with my mom” (while looking at the clinician);

(d) E. repeated “I love my mom” to the clinician (when the father went to get another book); and

(e) While reading a book, E. asked his father, “why don’t you sleep with me in my house?” The father responded by saying, “maybe one day”.

[220] Ms. Singh testified the child’s statements seemed “very random” to her.

[221] At the end of the visit, the mother asked E. what he had in his hand and he showed her the toy the father had given him. Like she did with the $20.00 at the end of the October 14, 2018 supervised visit, the mother took the toy from E. and told him to go in the car. She then told Ms. Singh that it was inappropriate for the father to give E. gifts and returned the toy.

[222] Overall Ms. Singh observed many moments of affection between the father and the child during her observation. She observed the father and E. to be “loving, relaxed and engaging”. She said that E.’s actions were not those of a child who is fearful of his father, or of a child who did not wish to see him.

V. Trials Did Not Then Proceed In Either May Or September, 2019

[223] The mother did not come to Court for the next Trial Scheduling Conference, then scheduled for April 26, 2019. In her absence, Gunsolus J. made an order that the matter was to remain on the May 2019 trial sittings, unless the OCL report was not available. If the trial was to be adjourned, Gunsolus J. ordered that would be peremptory to the mother.

[224] Gunsolus J. ordered the mother to comply with Hughes J.’s order for the father’s parenting time, but he changed the location of the supervised exchanges now to take place at a different company, because of the mother’s “behaviour towards staff” at the previous location. Gunsolus J. ordered the costs of having supervised exchanges at the new company were to be shared, but said the father would be able to put forth a claim for recovery of his costs, “on a without prejudice basis”. Gunsolus J. also granted the father leave to seek to enforce the Order of Hughes J., notwithstanding that the matter was on the spring 2019 trial list. He issued some additional directions about the conduct of the trial, and ordered the mother to pay costs thrown away of $660 to the father. Although the mother did not attend Court on April 26, 2019, Gunsolus J. noted that the mother had filed documentation, something that she did many times at the appearances that later proceeded before me.

[225] The trial did not proceed on the May 2019 trial sittings; the OCL report was not ready. The trial was put over to the fall. The father did not then take any steps to enforce Hughes J.’s Order either, despite being given leave to do so by Gunsolus J.

[226] The next Endorsement is that of Fryer J. dated September 24, 2019. It states that the matter was called in for trial that September, but neither party was prepared to proceed. Upon being called in, the mother asked Fryer J. for another lengthy adjournment to the spring of 2020 based on health grounds. Fryer J. declined to grant that long of an adjournment based on the inadequate medical evidence then before the Court. She adjourned the trial to November, 2019, instead.

[227] According to Fryer J.’s Endorsement, the basis for the mother’s adjournment request at that time, was that she had been involved in a car accident in May 2019 resulting in a brain injury. The Endorsement states that mother had given the Court only a “brief note”, saying she would “need six months off to deal with these medical issues”. Fryer J. noted that well over a year ago on June 20, 2018, the mother sought an adjournment due to medical issues, but Rowsell J. told her to provide detailed medical information if she required further adjournments. Fryer J. reviewed some of the other history of this case and wrote that the Court had to balance a number of factors, not just the mother’s health, but also that the child’s relationship with his father remained fractured.

[228] Fryer J. asked the mother to advise the Court what accommodations she thought would assist her. Fryer J. suggested to the mother that she consult with the Court’s Accessibility Coordinator. Fryer J. went on to ask the mother to outline her requests for accommodations in a 14B Motion, before the next Court date.

[229] Fryer J. made a second order authorizing the amendment of the father’s pleadings, now requiring the father to deliver his amended pleading by October 5, 2019, and imposing a timetable on the mother’s Amended Answer. And pending the new trial dates in November 2019, Fryer J. made another order for the father’s parenting time, on a temporary without prejudice basis. This included changing the location of the access center for exchanges once again, making an order for telephone calls between the father and the child on Tuesdays, Thursdays and Saturdays at 5 pm to occur privately, and permitting the father to attend the child’s activities and school events. Fryer J. ordered the mother to provide a complete list of all such activities in which the child was involved, and to update the father upon the child being registered in any new activities.

[230] By 14B Motion filed not too long thereafter, the mother asked Fryer J. to reconsider her ruling. Fryer J. rejected this request for a reconsideration on October 17, 2019.

W. The OCL’s Motion To Seal Portions Of Its Files Heard October 21, 2019

[231] By this point, two different clinicians from the OCL had attempted to embark on two different investigations and to prepare reports, without success. The next event in this case was an unusual motion, brought by the OCL, for an Order sealing those first two reports and certain other documents. The OCL did not want just to seal these parts of its files from the public record; it asked for an order that the material could not be used at the upcoming trial.

[232] Nicholson J. granted the OCL’s motion subject to the trial judge lifting the sealing order. According to his Endorsement subsequently released on October 23, 2019, Nicholson J. wrote that the OCL sought the order because it intended to complete a fresh investigation, and the previous two reports contained missing components. At ¶ 7, he wrote that the mother in submissions “committed to fully cooperating with the new s. 112 investigation. Her previous lack of cooperation was the reason at least one of the two prior reports was defective/incomplete.” [^10]

[233] Nicholson J. ordered the OCL to complete and file the fresh report by November 8, 2019. Once again, that then did not occur, entirely attributable to the conduct of the mother.

X. The Trial Scheduling Conference On October 22, 2019

[234] In between the argument of the OCL’s motion and the release of Nicholson J.’s Endorsement, there was another Trial Scheduling Conference on October 22, 2019, again before Gunsolus J. This Endorsement notes that no additional material had been filed. It appears that another adjournment was sought by the mother. In his Endorsement of October 22, 2019, Gunsolus J. declined to grant an adjournment, putting the issue back to Fryer J. or the trial judge to decide whether the trial would proceed. Gunsolus J. gave additional directions in the nature of case management that day.

Y. The Eighth Complaint To The Society On October 24, 2019

[235] On October 24, 2019, a few short days after the OCL’s motion to seal portions of its files, the mother called the Society to complain that she had been discriminated against by the Society. She complained that the Society’s records contained inaccurate information. Although the mother did not have access to the Society’s files yet, her call was based upon the summary contained in Ms. Singh’s second discontinued report that had been the subject of the OCL’s motion to seal parts of its files.

[236] During the call, the mother said that Michelle Johnston was not understanding, and had no empathy. She also said she had made a complaint against the OCL to the Human Rights Tribunal. She said that Mr. Fakri understood her disability, had a lot of empathy and was “really good”.

Z. Trials Did Not Proceed Either In November 2019 Or May 2020

[237] The trial then did not proceed in November 2019. On November 20, 2019, Gunsolus J. adjourned the matter to the May 2020 sittings. The latest OCL report that Nicholson J. had ordered was not yet ready. Gunsolus J. made the new trial date for May 2020 peremptory to the mother, again. He urged the mother to put forth the specific accommodations that she required to participate. He ordered the OCL to submit its report by May 13, 2020 regardless of whether it was complete or incomplete, and he also ordered the parties to comply with the access order of Hughes J. of March 7, 2019, once more.

AA. The OCL’s Third Involvement With This Family Between October, 2019 And May, 2020

[238] Karen Guthrie-Douse was the third clinician assigned to conduct an investigation and prepare a report for the Court following the motion before Nicholson J. Her discontinued report was filed with the Court on May 13, 2020 in accordance with Gunsolus J.’s Order of November 20, 2019 (the “third discontinued report”).

[239] Although at ¶ 7 of the Endorsement of October 23, 2019, Nicholson J. noted that the mother agreed to cooperate with the next investigation, Ms. Guthrie-Douse was unable to secure the mother’s cooperation. Her evidence is that the mother would not then participate in any interviews with her. Nor would she even allow any contact between herself and the OCL, at all.

[240] Ms. Guthrie-Douse’s supervisor asked Ms. Guthrie-Douse to undertake this investigation, while giving her a paucity of information. Perhaps this was an unintended consequence of the sealing Order that had just been made but in any event, Ms. Guthrie-Douse ought have been given better information about the mandate upon which she was about to embark. The fact that she was not set the stage for yet more problems. Ultimately though, what happened with Ms. Guthrie-Douse’s aborted investigation illustrates the lengths to which those involved with this mother have gone, whether the OCL or the Court (or others), to manage the chaos that had been caused, and the problems that the mother continued to cause.

[241] Ms. Guthrie-Douse was assigned this file on October 24, 2019, the day following Nicholson J.’s October 23, 2019 Order. She testified that her supervisor only gave her vague “parameters” at the outset, specifying what she could and could not do during the investigation. For example, she was told that she could only contact the mother by email, not by telephone. She was told she was only allowed to set up an interview with the mother between 11:00 AM and 1:00 PM. By contrast, she was permitted to contact the father by telephone. But she was told not to request documents from the parents and if they gave her documents, not to look at them.

[242] Ms. Guthrie-Douse was only given a heavily redacted copy of the entered Order of Nicholson J. dated October 23, 2019. She was unaware of who made the redactions, although she testified that her supervisor told her she would be receiving a redacted Order and that she would only be made aware of the clauses in it, relevant to her investigation. Ms. Guthrie-Douse knew there had been a previous investigation, but was told she would not be getting a copy of the report. Ms. Guthrie-Douse testified that this was a very unusual assignment in terms of how the investigation was to be carried out, but she trusted her supervisor and agreed to proceed on these bases.

[243] About a month after being assigned to conduct this investigation, Ms. Guthrie-Douse learned that unfortunately, she had sent emails to the mother at the wrong email address in error (she mistyped the email address). As such, although she emailed the mother on October 24 and October 28, 2019 in an attempt to arrange a meeting with her, the mother had not responded. Meanwhile, Ms. Guthrie-Douse did have an in-person meeting with the father on October 30, 2019. She testified that she had hoped to set up an observation visit between the father and E. after that interview.

[244] On October 31, 2019, Ms. Guthrie-Douse received an email from the mother, addressed to herself and to her supervisor. Ms. Guthrie-Douse testified that the mother’s email accused her of violating the mother’s human rights by attempting to contact her, and that she should not be contacting her. Around the same time, the supervisor sent an email to Ms. Guthrie-Douse instructing her not to respond to the mother’s October 31, 2019 email.

[245] The mother’s six-page email of October 31, 2019 says, among other things, that she was requesting six months to deal with her “disability related needs and care under the AODA and The Human Rights Code”. Because the supervisor had denied her request, the mother alleged that the OCL was “currently violating [her] legal rights to accommodation under the AODA and The Human Rights Code”. She threatened to add Ms. Guthrie-Douse and the supervisor to her complaint.

[246] Although Nicholson J. clearly wrote in his Endorsement of October 23, 2019 that the mother had promised in Court to cooperate with the OCL’s third investigation, the mother’s email goes on to claim that she only told Nicholson J. she would participate to the best of her “ABILITY” (written in capital letters). She said she was shocked that “the judge” did not ask her if she could comply with his order and her “disability needs” were “disregarded” by him. She referred to Nicholson J.’s and the OCL’s treatment of her as “inhumane”.

[247] In the next several paragraphs, the mother went on to write about the various medical conditions that she said she was experiencing. She claimed a complaint to the Judicial Council would be filed. She accused the OCL of bringing the motion to seal its file and to undertake a new report, while disregarding her disability and discriminating against her. She wrote that what the OCL has done, isn’t what is in the best interests of E.

[248] After receiving this email and her supervisor’s instruction not to respond to it on October 31, 2021, Ms. Guthrie-Douse then waited for further instructions. On or around November 19, 2021, Ms. Guthrie-Douse and the supervisor spoke. It was at that point that Ms. Guthrie-Douse realized she had mistyped the mother’s email address in the earlier two emails of October 24 and 28, 2019. In any event, during that November 19, 2019 consultation, Ms. Guthrie-Douse was told to put any attempts to interact with the mother on hold for the period of six months, as demanded by the mother. Therefore, she diarized a date in March, 2020 after which she would attempt to re-engage.

[249] Meanwhile, on February 19, 2020 and February 21, 2020, Ms. Guthrie-Douse spoke with the father for a second time. She also interviewed his spouse, L. She made requests for additional collateral information, like case notes from the Society, records from the supervised access center, and additional records from the child’s pediatrician. She did not obtain any additional information from the pediatrician beyond that which had been previously provided to Ms. Singh (because he had not seen the child - discussed more later below). She was also unable to obtain records from the supervised access center.

[250] Ms. Guthrie-Douse testified that she spoke to her supervisor again in the new year. Once again, the mother was requesting another extension of time. The reason for the requested extension was not communicated to Ms. Guthrie-Douse. Ms. Guthrie-Douse was instructed to prepare her report, since it was due soon (in accordance with Gunsolus J.’s Order of November 20, 2019), and so that is what she did.

[251] In the end, Ms. Guthrie-Douse was not able to speak with or meet the mother, observe the child with each of his parents, and interview the child privately. As a result, Ms. Guthrie-Douse was unable to make any recommendations for the parents’ and the Court’s consideration.

BB. The Father’s Contact With E. After The Release Of Hughes J.’s Endorsement On The Contempt Motion of March 7, 2019

[252] The evidence at this trial was that the father has not had unsupervised visits with E. since Hughes J.’s Order of March 7, 2019. The father testified that the mother refused to register with an access center for the supervised exchanges that Hughes J. ordered. He said the mother told him she would not be following Hughes J.’s March 7, 2019 Order, and instead would be abiding by the Order of Rowsell J. dated February 2, 2017. He testified that the mother told him she was appealing Hughes J.’s Order. She referred to Hughes J.’s March 7, 2019 Order as “null and void”.

[253] In his trial affidavit and during his oral testimony, the father said that the mother still allowed him to have some contact with E., following Hughes J.’s Endorsement of March 7, 2019. In addition to Ms. Singh’s observation of him and E. on May 4, 2019, the father had the following contact with E:

(a) Following Fryer J.’s September 24, 2019 order for telephone calls, the father had some telephone contact. He says the calls initially went very well, but after about one month, he noticed that E.’s behaviour during the calls changed. That father says that E. began questioning him about whether or not he loved him and wanted to be part of his life. The father says he reassured E. during these calls;

(b) In November 2019, the mother telephoned the father to advise that she had taken the child to the hospital and they were in the emergency room. She invited the father to join them, and so he went. The father says that during the visit to the hospital, E. took his hand and joined it with the mother’s hand, and said “we are family”;

(c) The next day, the father telephoned E. to see how he was feeling. E. asked his father if he was going to come over to visit him. Based on some legal advice he obtained in September 2019, the father says he was no longer willing to have visits at the mother’s house, given the mother’s past allegations, but he did not wish to tell this to the child. So the father responded to E. and said he was not sure. In the end, he did not go. When the father next telephoned E., the mother first answered the phone, then put the child on the line, and the child said, “I don’t’ want to talk to you” twice, and hung up;

(d) The father says he eventually stopped telephoning E. because he could hear the mother whispering things to the child in the background and he worried it was causing stress for E. He did try to call the child on his birthday in November 2019, but gave up after several of his calls went unanswered;

(e) The father says that on December 17, 2019, after about one month of not having any contact with the mother or the child, the mother sent him a text message, saying that her psychotherapist told her that he [the father] is a psychopath. The text message also states that the father was using E. and the court to [get] her attention[^11];

(f) Between December 2019 and April 2020, the father says he had some contact with E. sporadically, always on the mother’s terms. The father says this occurred when he accidentally saw the mother and E. together out shopping in the community, or sometimes the mother actually invited him to see E. while she shopped. And one time, despite the legal advice he received, he went to the mother’s home to help her carry groceries. He stayed at the home for 15 minutes and spent some time with E.;

(g) On April 27, 2020, the father telephoned the mother and asked if E. could speak to his father. E.’s paternal grandfather had been diagnosed with cancer. The mother allowed the phone call;

(h) In late May, 2020, the mother telephoned the father to give her condolences after the paternal grandfather died. The mother allowed the father to have a visit with E. to “cheer him up”;

(i) In June or July, 2020, the mother contacted the father to advise she was admitted to the hospital and that E. was there with her. She invited him to visit E. at the hospital and so he attended there;

(j) Following the hospital visit, the mother invited the father to have a visit with the child about four times each month, but randomly and not according to a specific schedule, up until October, 2020. The father says that in about August, 2020, she started bringing up these proceedings during the visits and said that if he dropped the case, she would continue to allow him to have time with E. He says he did not respond to these statements; and

(k) The father says the mother allowed him to see E. on E.’s birthday in November, 2020. E. had previously said that he wanted a laptop for his birthday. The father spoke to the mother about it, and then gave E. $250.00 towards the purchase of the laptop.

[254] The father has not seen E. since November 20, 2020. He says he tried to bring a gift to E. for Christmas, but the mother would not open the door. The father says he still has E.’s Christmas gifts from 2020, including those from members of his extended family.

CC. The Father’s Sister’s Contact With E. In November 2020

[255] The father called his sister to testify at this trial. She testified that the mother allowed her and E.’s paternal grandmother to see E. in the mother’s back yard, on or around E.’s birthday in November 2020. She and E.’s paternal grandmother happened to be in the area, and so they telephoned her spontaneously to ask whether they could stop by with a gift for E. This was one of only two interactions she had had with E. in the four-year period prior to that.

[256] The father’s sister testified that she and the paternal grandmother spent about 10 or 15 minutes with E. that day. The father’s sister testified that E. was excited to see them and didn’t appear to be uncomfortable, even though he hadn’t seen them in a long time. E., his grandmother and his aunt hugged one another.

[257] The father’s sister testified that for Christmas in 2020, the paternal grandmother telephoned the mother because she wanted to drop off a gift for E., but the mother did not answer her calls. The father told his sister that the mother would not let them see E., so his sister gave E.’s gift to the father, to give to E. later. These are amongst the gifts that the father still has to give to E.

DD. The Father’s Adult Daughter A.’s Most Recent Telephone Contact With E. In November, 2020

[258] One of the father’s children from his previous marriage is A. A. is now an adult. She testified during this trial.

[259] After the parties’ separated, A. moved in with the Respondent mother for various reasons that are not relevant to this trial. This was in 2016. A. lived there for about 6 months. A. was 17 years old at the time.

[260] A. provided valuable and insightful evidence into the goings on in the mother’s home that no other witness was able to obtain and provide for the Court. I discuss this evidence in much greater detail below, when analyzing the evidence of family violence.

[261] During the period of time that A. lived in the mother’s home, she was sometimes put into a de facto parenting role for her younger brother. After A.’s six month stay there in 2016, she did not then see E. for four years. They next had contact around the time of E.’s birthday in 2020.

[262] The father was able to organize a three-way phone call between the father, E., and some of E.’s siblings, around the birthday in 2020. A. testified that E. seemed “very happy” to talk, and she said that the call went well.

[263] A. testified that it was a shock to her to hear E. speak, as he had aged so much since she last saw him, four years earlier. She recalled that they talked about video games, and about going to McDonalds.

EE. The May, 2021 Trial Management Conferences, The May, 2021 Trial That Did Not Proceed And The Father’s Efforts To See E. Between May, 2021 And This Trial

[264] The trial did not proceed in May, 2020, as ordered by Gunsolus J., due to the Covid-19 pandemic. This matter was brought back on before me for the first time on May 17, 2021 and again on May 19, 2021. I was assigned to be the trial judge for a trial that ought to have proceeded during the spring, 2021 sittings. But the trial did not proceed on the spring 2021 sittings, because the mother sought yet another adjournment, and because the father was not prepared.

[265] After that, the purpose of the appearances in this Court between May 2021 and the commencement of this trial in November heavily revolved around ensuring this case would proceed to trial. I heard motions to lift the sealing Order that Nicholson J. had granted, to appoint amicus curiae, respecting whether the mother was a special party, and for the production of the mother’s health records. I also heard requests for adjournments from the mother and I issued a number of directions in the nature of trial management.

[266] During the six months between May 17, 2021 and the start of this trial, there were some nine appearances before me. I released four lengthy written decisions and many other Endorsements. Both during the time that this matter has been before me, and in the years that preceded that, this Court gave the mother chance after chance to participate. And the Court invited the mother time after time to provide the information necessary to ensure any accommodations that she required, short of an adjournment, could be put in place. Those details of what transpired in those attendances are fully documented in my previous written decisions, cited earlier.

[267] I turn now to the father’s efforts to attend at an access center to see E. after the May, 2021 trial was adjourned. When the mother’s motion for an adjournment of the May, 2021 trial was argued on May 25, 2021, I was told that because of the Covid-19 pandemic, the parties could not access a center to do the supervised exchanges, previously ordered. Therefore, on May 31, 2021 when I adjourned the trial to the fall of 2021, I also made an order that the parties were to use the parking lot of a certain access center for their exchanges, and that they were to take all steps required to begin using that access center for supervised exchanges, upon its reopening.

[268] The mother refused to cooperate with this Order, too. Following my May 31, 2021 Order, the father drove to the parking lot for a few weeks and on those occasions he waited for the mother and the child to attend. The mother failed to attend and bring E. to see his father.

[269] The father says he stopped driving to that parking lot after June 26, 2021, when it became obvious that the mother was, “again, doing whatever she wanted”.

FF.The Father’s Recent Pre-Trial Meeting With The Mother In A Park

[270] The father testified that between August 23, 2021, when he swore his trial affidavit, and the start of the trial, the father had additional contact with the mother. He said the mother asked him to meet him at a park, and although he was suspicious, he agreed to go meet her.

[271] The father testified that during their meeting at the park, the mother asked him whether he realized what he was doing to E., and the damage he was causing to her heart. The father said the mother told him to walk away from E. When she said this, he left.

[272] The father said that as he was leaving the park, the mother started “cursing and swearing” at him.

PART IV: THE CONDUCT OF THIS TRIAL

[273] Even though the mother did not participate in this trial herself, this was not an uncontested trial, strictly speaking. The father had never moved to strike the mother’s Answer from the record. The Court had the assistance of amicus during the trial as a result of its orders of July 12 and 21, 2021. The mother then sent counsel to Court on the sixth day of the trial, even though she continued not to come to Court, by zoom, herself. [^12]

[274] In the overview of this judgment, I indicated that this trial was not ideal. Not every trial can be a perfect trial and the parties are not entitled to have a perfect trial. But it must be remembered that this is first and foremost a parenting case. The Court needs proper evidence to determine where E.’s best interests lie. That is important context to explain the lengths to which this Court went throughout this proceeding to enable the father to have the parenting time it ordered, to request OCL investigations, and then to organize and finally hold this trial. It did so to ensure that, in the process, the Court would receive the evidence it needed, and to ensure fairness to both sides, despite both parents’ behaviour inside and outside the Court, and the obstacles that were erected. This proceeding and the ultimate trial was impacted by both parties’ conduct leading up to it, and during it.

A. The Mother’s Behaviour

(1) The Mother’s Adjournment Requests

[275] The last time the mother appeared before this Court was on August 24, 2021. Prior to that, she sometimes attended Court, but on many occasions she did not. Her primary objective, during the appearances that proceeded before me after May of 2021 was always to seek more adjournments, something she had done with other judges before May of 2021.

[276] Before the start of this trial, I twice dealt with her adjournment requests in detail, in my written decisions released May 31, 2021 and November 19, 2021. Rowsell J., Fryer J. and Gunsolus J. had ruled on adjournments previously in their Endorsements before that. In my most recent written decision of November 19, 2021, I denied the mother’s latest of many pre-trial adjournment requests. This most recent request had been made by way of a 14B Motion dated November 15, 2021. Despite that, the mother continued to ask for adjournments, improperly by email, as the trial unfolded. On December 2, 2021, the sixth day of trial, the mother sent lawyer Mr. Ekpenyong to appear on her behalf, to request yet another adjournment. The December 2, 2021 request was the fourth one since the November 19, 2021 decision.

[277] More particularly, in the four-hour period between the release of the November 19, 2021 written decision, and the 2 PM Trial Management Conference I scheduled for that day, the mother sent an email to various persons including to a court email address, to re-argue the adjournment. Amicus read the email into the record at the 2 PM Trial Management Conference. Among other things, the mother continued to claim she was at risk of heart attack, something she claimed in her 14B Motion dated November 15, 2021. She said that the Court was “attacking her”, and that she required an adjournment under the “Ontario Human Rights Code and the AODA”. She did not file any new material information, notwithstanding the very clear directions I gave in the November 19, 2021 decision. As I had just denied the same adjournment request four hours earlier, I proceeded with the Trial Management Conference.

[278] At 10:02 AM on November 23, 2021, the first day of trial, mother sent a two-page email to amicus, to father’s counsel, and to various others. This email was marked as Exhibit 1 at the trial. The email chain includes the mother’s previous email of November 19, 2021, referred to above, which amicus had previously read into the record.

[279] The mother’s email of November 23, 2021 states that her heart went into “medical distress” on November 19, 2021, while she was in the emergency room. It states that her cardiologist was investigating the heart damage that “you all caused”. It states that she was at risk of heart attack. It states that a lawyer told her that she was unable to participate in the proceeding. It states that she was looking for an appeal lawyer. It states that E.’s rights were being violated and that a lawyer should be put in place for E. It states that she had arranged for a lawyer to speak to E., but not until later that week. [^13]

[280] The email also accuses amicus of violating her rights. It states that the Attorney General, the Queen, amicus, clinicians from the OCL, and “the system” (meaning the Court) would be held responsible for damages, for violating her rights, and for not providing her with the disability accommodation that she required. For brief oral reasons delivered, I treated this email as another adjournment request and denied it.

[281] Two days later, at 4:06 PM on November 25, 2021, the mother sent a third email, but it was not brought to my attention until November 26, 2021, the fourth day of this trial. This time the mother said she had found a lawyer (although still not named) with the assistance of the “Law Society Crisis line”. She said the lawyer was in the process of accepting her legal aid certificate and “getting her files”. She said the lawyer was both a “human rights lawyer and a family law lawyer”. She said that she was “connected to a heart monitor requested by the Emergency Room doctor” after [amicus] had triggered her heart into distress. I declined to adjourn the trial once again.

[282] It was December 2, 2021, the sixth day of trial, when Mr. Ekpenyong appeared on the mother’s behalf for the first time. I learned from those in attendance that day that before so doing, he accepted the mother’s Legal Aid Certificate and served and filed a Notice of Change in Representation, placing himself on the record as the mother’s lawyer. Mr. Epkenyong told the Court that he had just been retained the day before. He said that he required a six-month adjournment to prepare, and suggested that that the trial should just start over at that time. He told the Court he had little to no knowledge about this case. He told the Court that he had not even been made aware that there was a trial in progress until after he accepted the Legal Aid Certificate. He said he did not have instructions from the mother to proceed, nor did he have documentary material he needed. He said that if the case were adjourned, he could arrange to have E. brought to his office and the Court could question the child. He also said the mother was in the hospital. He did not have any medical documentation to confirm this. I gave brief oral reasons and dismissed this adjournment request too. I reserved the right to release written reasons about this request later, and I do so now in this judgment.

[283] After that December 2, 2021 request made through Mr. Epkenyong, the adjournment requests stopped. To his credit, Mr. Epkenyong participated in the rest of the trial for the mother as he was now on the record. Still, the mother did not appear.

[284] The well documented history of this case reveals that the mother has steadfastly refused to participate in numerous aspects of this proceeding. Her refusals persisted despite the countless opportunities to participate that she has been afforded by this Court.

[285] The mother’s repeated requests for adjournments have always centered around two main arguments. One is her health. The mother’s health-based reasons for the adjournment requests have varied over time. She has claimed an inability to participate based on a pulmonary embolism diagnosis, a brain injury or injuries, other physical disabilities, most recently cardiac issues, and sometimes a combination of some of these. Regardless of the specific health-based issue(s) relied on, the mother has always claimed that her health is so severe that she has been unable to participate in this proceeding for lengthy periods of time, into the future.

[286] The mother has several times asked for six-month or year-long adjournments to different judges, myself included. But she has never proven she has health conditions so severe that she could not participate in this Court’s or other related processes, essentially in perpetuity. Nor has the mother ever spelled out what would change during the periods of the adjournments she sought, to enable her later participation.

[287] Judges of this Court have, multiple times, told the mother to provide better medical evidence, given her suggestions and directions about the kind of medical evidence that she should file, and urged and even begged her to tell the Court what accommodations she would need for the trial to proceed with her full participation. The mother has been referred to the Court’s Accessibility Coordinator. This Court even appointed amicus to help her, beginning in July 2021. She would not engage.

[288] The medical evidence that was tendered during this trial revealed that in at least two respects, the mother has misrepresented aspects of her conditions, or omitted important information. This will be discussed later in this judgment respecting the mother’s credibility and physical and mental health. This medical evidence was obtained not because the mother provided it, but rather as a result of this Court’s disclosure Order of September 24, 2021 and a subsequent summons to witness the father served upon to the mother’s family doctor.

[289] The second argument the mother has sometimes advanced to ask for an adjournment is that she has either been on the cusp of retaining a lawyer, or she had in fact retained someone, but that person was not available for some reason until later, after an upcoming court date. For example, once I was told that an unnamed lawyer was dealing with a family emergency out of the country and had all of the mother’s files. I have been told about upcoming consultations, to occur after pending court dates. I have been told that disability lawyers have said this Court is violating the mother’s rights. Yet with only one exception, during the nine appearances before me between May 17, 2021 and the start of this trial in November, 2021, none of the lawyers with whom the mother claimed to be consulting, have ever been identified by name, written letters for her, communicated with opposing counsel or amicus, or come to Court.[^14] To this I would add that until Mr. Epkenyong arrived on December 2, 2021, amicus had periodically checked with Legal Aid Ontario about the status of the mother’s legal aid certificate. The mother had a valid legal aid certificate as of August 20, 2021 but it remained unacknowledged by a lawyer, right up into the November, 2021 trial.

[290] When Mr Epkenyong asked for an adjournment on December 2, 2021, he told the Court that the mother was in the hospital (something that she asserted in the past too, like on May 17, 2021 and again on November 19, 2021). This statement on its own was woefully inadequate, given the history of this case, and the Court’s prior decisions about the health-based requests and the kind of evidence she would need to justify further adjournments.

[291] This final request for a six-month adjournment, now with the mother having retained a lawyer mid-trial, came far too late. She had ample time and resources available to her to be prepared. And even on December 2, 2021 now with Mr. Epkenyong’s assistance, the mother continued to offer no real plan as to what would be different in six months. Nor was there a promise or a plan to cooperate, to assist to remedy any gaps in the evidence, caused by her own behaviour, or to cooperate with court orders. Under these circumstances, the child’s interests had to take priority and those interests were best served by the trial proceeding.

(2) The Mother Has Complained About Professionals, Abused This Court’s Process And Caused or Contributed to Gaps in the Evidence

[292] Over the past five years, the mother breached Orders of this Court many times. She has obstructed investigations. She has used the child, and other agencies like the child’s school, the Society and the police as a weapon in her battle with the father. She has also launched complaints about many professionals who tried to become involved with this family. Based on the foregoing history, the mother’s failure to follow the Court’s directions and orders in relation to adjournments, and her questionable statements that she had unnamed counsel at the ready but just not now, I conclude the mother has abused the Court’s process.

[293] Later in this judgment, I list everyone who has either been subjected to or threatened with a complaint by the mother. I discuss the chilling effect that this has caused in this case. I also discuss the chilling effect that such behaviour may cause in future cases, if this behaviour is condoned.

[294] Amicus, whom the Court appointed to assist it in part by assisting the mother to present her case, was bullied and threatened by the mother. The mother’s attacks on amicus included angry emails, complaints about amicus to the Law Society of Ontario, and a proceeding against amicus in the Human Rights Tribunal Ontario. The mother has also made negative comments about judges of this Court. She has served a document or request to add the Court, and amicus, and others as parties to this proceeding that she has launched before the Human Rights Tribunal of Ontario.

[295] When the mother received rulings from the Court that she did not like, she ignored them. For example, she told the father that she did not recognize Hughes J.’s Order of March 7, 2019. She has ignored procedural orders from this Court directed at the conduct of this case and trial readiness.

[296] On November 19, 2021, after the mother disrupted the proceedings before this Court and processes outside of it for years, after the Court appointed amicus, and then after the Court heard but ultimately dismissed a motion initiated by amicus to determine whether the mother was perhaps a special party, I ordered that this trial would proceed. But in so doing, I still made provision, again, for the mother to participate. I invited her to attend, I invited her once more to advise of any accommodations she needed, and I invited her to bring her doctor to Court to provide proper medical evidence on the question of her ability to participate, including any necessary accommodations.

[297] She chose not to do so. Instead, she ignored the November 19, 2021 ruling and sent the additional emails referred to earlier, seeking adjournments again, based on the very same arguments she previously advanced. She then sent counsel to do the same.

[298] The mother’s obstructionism has been the cause of the most significant evidentiary gaps in this case, which the Court has tried hard to cure through pre-trial and mid-trial directions. Still, there are gaps in the evidence, not because of a lack of effort, but because the evidence does not exist. The Court did not receive a comprehensive OCL report precisely because of this obstructive conduct. The most recent observation evidence of the father with the child comes from the notes of a handful of supervised visits in 2017 and 2018, and the one observation visit between the father and the child that the second OCL clinician was able to have in 2019. There is no evidence from the father about any of his visits with the child in the last year, since the father has not seen this child. There is almost no evidence of any overnight visits between the father and son, since the father has only had the child overnight twice since the separation, the last time being in 2018. Society workers have not been allowed to interview the child alone. The child last saw his pediatrician in 2019. And the child’s teacher this school year was unable to offer much by way of any updated observations, for reasons that I will explain.

[299] In reality, while obstructing this proceeding and investigations being undertaken relating to the child’s best interests, the mother has isolated the child from the community, or at least from those who have tried to get involved. Even if the Court had any reason to believe that the mother would actually behave and cooperate during the period of another adjournment (which it did not), an adjournment could not have cured the evidentiary gaps that the mother has created or contributed to, because the additional evidence does not exist. The only other evidence that might have been tendered would have come from the mother herself, or perhaps from other members of her household. But she has refused to participate and did not call any of this evidence.

(3) The Mother’s Failure To File Financial Documentation Needed For Her Financial Claims

[300] Although the mother has asked the Court to order child support back to 2016, section 7 expenses and more child support going forward, she has neither updated her financial statement for trial, nor provided any updated income information about herself at all. The mother was given ample opportunity by Rowsell J. to prove her claims for section 7 expenses. She has chosen not to comply with his directions.

[301] Still, at my direction, the father included the mother’s most recent financial statement and tax documents, previously served upon him, in his Supplemental Financial Brief so that there would at least be some evidence as to her financial circumstances. The financial statement is now over three years old. It is dated February 4, 2019. It contains only her Notices of Assessment for 2015 to 2017. Despite all this, the Court directed that the financial claims would be heard.

B. The Father’s Behaviour And Its Impact On The Conduct Of This Trial

[302] The father is not without responsibility for the state of this case coming into this trial. The father’s past behaviour and trial positions also contributed to some of the problems the Court must now confront. His trial conduct lengthened the amount of trial time needed to complete this trial, too.

(1) The Father’s Choices In The Litigation

[303] The father professes a great concern about the mother’s mental health and instability, and that E. is suffering in her care. Yet he has not taken any meaningful steps to enforce his parenting time since the contempt proceedings that came to an end over three years ago. At the crux of it, he is not seeking anything more than parenting time on alternating weekends. He did not put himself into the position prior to trial to pursue anything other than relatively minimal parenting time. In part due to his own inaction, he came into this trial, having not seen the child in over a year, and having had only two overnights with him outside of the mother’s home, post-separation.

[304] Certainly the mother bears responsibility for the state of affairs; but so does he. The father must take some responsibility for the choices he made during the prior proceedings, and at this trial.

(2) The Father’s Lack Of Preparedness For Trial

[305] There were perpetual challenges in this case during the prior proceedings arising out of what I have just described. It is true that when this case first came before me, the mother was still self-represented, she was refusing to participate, and a great amount of delay had been occasioned. Yet in spite of the passage of time, the father was also unprepared for trial in May of 2021, and that was the case at the time of previous adjournments. [^15] On May 31, 2021, when I adjourned the trial to November, I issued some directions geared at assisting the father to organize his case, well in advance of the rescheduled trial dates. That May 31, 2021 order included a term, made on consent of the father, that he and some of his witnesses would give some of their evidence-in-chief by way of affidavit. I intended that order would not only have the benefit of curing some of the father’s trial readiness issues, but it was also another way to perhaps enable the mother to participate, and to give her a lot of time to prepare and to respond, given the disabilities she was reporting. [^16]

[306] Upon the Court’s later review of the father’s Trial Records, affidavit material and Exhibit Books just prior to the start of this trial, I flagged organization issues and missing documents from the Trial Record that are required by the rules, and I became concerned that there were going to be gaps in the evidence about this child’s best interests. I raised these preparedness and organization issues with the father once again at the Trial Management Conference held on the afternoon of November 19, 2021. Amicus participated in those discussions; the mother did not, since she chose not to come to Court.

[307] In a parenting case, the Court is required to take into account only the child’s best interests. The Court is required to consider all factors related to the child’s circumstances, and in so doing it shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being. There are a myriad of factors to be considered in such an analysis including, among others, family violence, sometimes past conduct, and the impact of these on the child. To do this, the Court needs evidence against which the statutory factors are applied and considered.

[308] Important documents that could have been obtained long ago, like the child’s school records and missing CAS records (there were others), were neglected by the father. Many important documents were only produced by school personnel and other witnesses mid-trial, pursuant to summons from the father after the Trial Management Conference on November 19, 2021.

(3) The Father’s Cavalier Approach To The Financial Issues In This Case

[309] The father was very disorganized when it came to responding to the mother’s child support claims. A financial statement is a basic, lynchpin document in a family law case required by the Family Law Rules for most cases involving support claims. Although both parents have financial claims before the Court, there was almost no information in the father’s trial affidavit sworn August 23, 2021 about his current or past work history, and no information whatsoever about his income. Each of the three Trial Records the father created in 2021 omitted an updated sworn financial statement from him. The Exhibit Books also lacked any financial documentation about the father’s financial circumstances.

[310] The Trial Records and Exhibit Books omitted financial documents for the mother, too. The mother’s now three-year old financial statement ended up only getting filed by the father mid-trial, after the father was directed to file it by the Court.

[311] After this Court’s interventions, the father served three different, conflicting financial statements, only two of which he filed (amicus introduced the third one), different versions of charts to back up the numbers on the statement, bank records, and reems of other pieces of paper. The father’s case had to be split twice, to ensure that all of the financial evidence he wanted to put before the Court was called.

C. The Role That Amicus Played During This Trial

[312] On July 12 and 21, 2021, I made orders appointing Deborah Stewart as amicus curiae. I appointed amicus primarily, although not exclusively, to assist the mother to prepare and participate in this trial. [^17] The mother then refused to work with amicus leading up to and during this trial.

[313] Prior to the trial, amicus advised the Court that she felt she had been put in the position of being unable to assist the mother any further. At one point, amicus signalled to the Court that she might ask the Court to discharge her. Ms. Stewart ultimately agreed to stay on for the trial, as she had been appointed to do.

[314] Based on the submissions I heard about this during the afternoon of November 19, 2021, I released an Endorsement modifying amicus’ role somewhat such that it would now be to ask questions of any witnesses that she felt necessary to ensure the Court has fulsome evidence about the child’s best interests.[^18] I asked amicus to explore and flesh out evidence going to the mother’s concerns that she identified about the father in the documentary material, as best she could without actually being able to work with the mother. Amicus agreed to assist with evidentiary issues during the trial.[^19] She agreed to make submissions to the Court about remedies.[^20] I later asked amicus to assist with the financial issues, as the problems highlighted above started to unfold.

PART V: ISSUES AND ANALYSIS RESPECTING THE CHILD’S BEST INTERESTS

A. Which Version Of The Children’s Law Reform Act Applies

[315] On March 1, 2021, the amendments to the Children’s Law Reform Act contained in the Moving Family Law Forward Act, 2020 came into force. Among other things, the amendments modernize some of the language in the Children’s Law Reform Act, change terminology such as replacing “custody” and “access” with “decision-making responsibility” and “parenting time”, re-order portions of the legislation, expand definitions, enact new definitions, and enact new provisions about relocation.

[316] This case began well before these amendments came into force, but the trial began and concluded afterwards. The parties confirmed during submissions that this Court should apply the amendments to the Children’s Law Reform Act, and not the law that was in force prior to March 1, 2021. This is consistent with the approach taken in cases decided after March, 2021, including appellate authority on this point from the Ontario Court of Appeal. See for example L.B. v. P.E., 2021 ONCJ 114; McLellan v. Birbilis, 2021 ONSC 7084; O’Brien v. Chuluunbaatar, 2021, ONCA 555; V.M.W. v. J.Mc-M., 2021 ONCJ 441; and Wiafe v. Aboakwa-Yeboah, 2021 ONCJ 201.

B. Analysis Regarding The Parenting Claims And E.’s Best Interests

[317] Aspects of both parties’ claims are still part of the initial claims before the Court. Others now being pursued would require the Court to order terms different from those contained in the Consent Order of Rowsell J. dated February 2, 2017, since the parties settled decision-making at that time on a final basis.

[318] A straight best interests’ analysis applies to the claims for parenting time and any other parenting orders not yet resolved on a final basis. The Court is only to take into account E.’s best interests respecting those claims. It must consider all factors related to his circumstances and give primary consideration to his physical, emotional and psychological safety, security and well-being. See again sections 24(1) and (2) of the Children’s Law Reform Act. New section 24(3) sets out ten non-exhaustive factors related to a child’s circumstances that the Court may consider if applicable. No one legislative factor in section 24(3) has greater weight than the other, although there may be more evidence about one factor versus another. See Libbus v. Libbus, (2008), 2008 CanLII 53970 (ON SC), 62 R.F.L. (6th) 416 (Ont. S.C.J.) ¶88; see also Van de Perre v. Edwards, 2001 SCC 60 ¶ 10.

[319] The father’s requests for certain orders about decision-making require a different, material change analysis, pursuant to section 29 of the Children’s Law Reform Act. If there have been no material changes in circumstances, the inquiry ends.

[320] I intend generally to analyze first the father’s claims for parenting time and related terms, which have not yet been resolved on a final basis in the Final Consent Order of February 2, 2017. I will address the father’s claims that require a material change analysis later in this judgment, particularly when discussing the remedial options available. I do so there because, while some of those claims for decision-making are stand-alone claims, they are also being pursued in aid of enforcing his parenting time.

[321] In considering both types of these claims, the Court is not bound by the parties’ positions in this case. Nor is it restricted to ordering just the terms proposed by one party or another in fashioning a remedy. The Court has latitude to craft a different outcome if it considers that to be in the child’s best interests. See A.M. v. C.H., 2019 ONCA 764 ¶ 29 and Richardson v. Richardson, 2019 ONCA 983 ¶ 25-31.

[322] I am not only undertaking this analysis in relation to the father’s claims and positions. I have also tried to consider what I understand the mother’s claims and position to be. As she did not come to Court or call evidence, I have no other option but to address her concerns in light of the evidence that was called by the father.

C. The Child’s Needs

[323] Pursuant to section 24(3)(a) of the Children’s Law Reform Act, the child’s needs, given his age and stage of development, such as the need for stability, are a relevant consideration in the best interests’ determination. The parents’ abilities and willingness to meet those needs are also a relevant consideration pursuant to section 24(3)(h). So are the parents’ willingness to support the development and maintenance of the child’s relationship with the other parent. See section 24(3)(c).

[324] To apply these particular criteria properly, the Court must first identify what E.’s needs actually are. No evidence was called during the trial to suggest that E.’s basic needs for housing, clothing and food have gone unmet. And although much of the father’s focus at this trial was on E.’s need for a relationship with him, that focus is too narrow. E.’s needs are broader.

(1) E.’s Education

[325] I find that for several years E. did not attend school regularly or on time. He has struggled academically.

[326] E. began school in 2013. It was his mother who enrolled him. Like other children in Ontario, E. attended school in person for most of his life, until the onset of the Covid-19 pandemic. Beginning with the 2020-2021 school year and continuing this year, E. now goes to virtual school.

[327] The father was not focused on E.’s education at all, coming into this trial. He was almost entirely uninvolved in it since the separation for that matter. He blames the mother for this; the mother is not solely to blame.

[328] Although he had a right to this information and could have obtained it directly from the school, the father did not even have the child’s report cards. The father only obtained E.’s OSR and certain other documents pursuant to a summons to bring those documents to the trial after the November 19, 2021 Trial Management Conference. Exhibits 26 to 29, obtained pursuant to the father’s summons, consist of E.’s OSR, an undated progress report for this school year, sent out to parents on November 8, 2021, and two separate emails, not in the OSR, but which relate to E.’s continued registration in virtual school this year, and to an issue raised about the name E. is using at school.

(i) E.’s Lateness And Absenteeism

[329] E.’s school report cards reveal that beginning in the 2015-2016 school year, when E. was just in grade one and while in his mother’s sole care, school attendance started to become a chronic problem. This has endured throughout the entire time E. has been enrolled in school, until perhaps since the onset of the Covid-19 pandemic.

[330] The following chart summarizes the data in the school records and reveals the extent of the problem.

School Year/ School	Grade	# of Times E. Was Late	# of Times E. Was Absent
2015-2016 – In Person School	Grade 1	43	31.5
2016-2017 – In Person School	Grade 2	43	30
2017-2018 – In Person School	Grade 3	61	40.5
2018-2019 – In Person School	Grade 4	22	26.5
2019-2020 – In Person School	Grade 5	23	25
2020-2021 – Virtual School	Grade 6	8	6
2021-2022 – Virtual School (as of the early year progress report)	Grade 7	2	2

[331] In the middle of grades 3 and 5 respectively, the school principal and vice-principal sent letters to E.’s parents dated April 24, 2018 and January 22, 2020. Those letters raised concerns about E.’s school attendance, offered the parents “any assistance or support” needed to ensure E.’s regular attendance, and cautioned them that if the attendance remained problematic, a formal attendance referral to the school social worker would be initiated.

[332] The pattern did not change after receipt of those letters. According to E.’s interim report card dated February 3, 2020, prepared 21 days after the January 22, 2020 letter, E. had already been late 22 times and absent 15 times that year. While he was only late one more time during the balance of the school year, his absences still increased by another 10 days, making the year-end total of 25, notwithstanding the January 22, 2020 letter.

[333] The child’s lateness and absences only decreased noticeably, when E. started attending school virtually. But based on the evidence I heard from E.’s teacher this year, E. may not be participating fully in virtual school.

(ii) E.’s Academic Performance

[334] The mother has misrepresented or overstated the child’s academic performance to the father and others in the past. For example, she did so in her text message to the father on March 22, 2021. There, she said that E. “used to be a A+ student”, but then started to struggle, which she blamed on the father. In her text message of November 20, 2021, the mother referred to E. as the “straight A student” who wants to be a doctor to “cure” her, before going on to accuse the father of various bad behaviour.

[335] The father called the child’s former pediatrician to testify. When discussing the child’s health, the pediatrician testified that problems with a child’s academic performance could be indicator that something is wrong. But the pediatrician was not concerned about E. in this way, because he understood E. was an “A or B student”.

[336] It is the mother who had taken E. to all pediatric appointments since the separation. The mother was the source of the information provided to the pediatrician. And the pediatrician was clearly misinformed about the child’s academic performance. E. has never been an “A+” or a “straight A” student, or even an “A or B student”. His report cards, beginning in grade one, reveal the following:

(a) E. earned no A.’s in grade one at all. His year-end grades are that he received some B’s and B-‘s, several grades in the C range, and one D+;

(b) In grade 2, his year-end grades were mostly in the B range. But there are six grades in the C range;

(c) E. received a number of grades in the B range, but also several grades in the C and D ranges according to his grade 3 year-end report card. This report card reveals that E. was already struggling by grade 3, particularly in language and math. This is the year in which the first letter about the child’s lateness and absenteeism was sent;

(d) E. did achieve one A. grade in grade 4, in geometry. The balance of E.’s grades on the report card are mostly in the B and C ranges. He scored one B, one C, one C-. He also scored a D + in one area within the mathematics section of the report card;

(e) With the exception of one B grade, E.’s year-end grades were consistently in the C and D ranges in grade 5. This was the 2019-2020 school year, towards the end of which the Covid-19 pandemic broke out. It is also the year in which the second letter about the child’s lateness and absenteeism was sent, but prior to the pandemic;

(f) E.’s 2019-2020 report card is replete with several “I” grades, meaning “insufficient evidence to assign a letter grade”. Of the grades that E. did receive at year-end, they are almost entirely in the C and D ranges. His one math grade a was D-; and

(g) In grade 6, (the 2020-2021 school year), E. earned a combination of grades in the A, B and C ranges, and one D-. This was his first full year of virtual school. Although his attendance improved, his lower grades continued to be with respect to his language and math skills.

[337] The father only called E.’s current teacher to testify. She could not offer much by way of additional evidence about E.’s academic performance. At the time of her testimony, no report card containing any grades so far during the 2021-2022 school year existed. All that was available was the short progress report that had been recently sent out on November 8, 2021. The teacher explained that this particular document is a document used by the Ministry of Education to report on the progress of a student early in the school year. She said it provides a “brief outlook” for parents to know if the student is progressing well, very well, or with some difficulty.

[338] In contrast to the several years of E.’s academic history summarized above, this early progress report indicates that E. is progressing well in some areas, and very well in other areas. The teacher then admitted that she did not review E.’s prior report cards prior to completing this progress report.

[339] A child’s lateness or absence from school is one indicator of whether a child is meaningfully participating in the learning opportunities at school. Although E.’s lateness and absences decreased once he switched to virtual school following Covid-19, a review of different indicators of what meaningful participation is may be appropriate in a virtual environment. It is not clear to the Court that the historical lateness and absenteeism problems have actually been addressed, despite the decrease in the number of lates and absences.

[340] E.’s current teacher testified that she encourages her students to turn on both their camera and microphones during the school day in the virtual environment. But she does not insist on students doing this, for equity reasons. She testified that 90% of the students will have their cameras turned on, on a daily basis. Notably, E. almost never turns on his camera. The teacher testified that she has only seen E. a few times at the beginning of the term, in September. As of the date she testified, being November 26, 2021, she had not seen him in “a few weeks”.

[341] The teacher testified that E. has never asked to speak to the teacher privately in a “breakout room”. She did say that E. will ask questions about his projects and math using the audio function and that he works hard to problem solve. She also said that E. needs encouragement to “find his voice and his leadership and to speak more in class”, even if by using the audio function only.

[342] The Court heard no evidence that E. has ever been assessed or received any accommodations or support with school, like tutoring. On Schedule “C” to her financial statement sworn February 4, 2019, the mother did mention an expense for tutoring; I heard no evidence at this trial that this has ever been put in place for E.

(2) E.’s Mental and Physical Health

[343] The father proposes that E. receive counselling without really having explored it, or having a sense of how it would actually occur.

[344] When the mother first enrolled E. in school in 2013, she completed a kindergarten questionnaire and that is contained in his OSR. On the section of the questionnaire about E.’s “Social/Emotional/Self Reliance”, the mother reported that E. enjoyed playing and learning, that he made friends easily, that he interacted easily with adults, that he was not afraid of anything, and that he usually had a happy disposition, among other positive attributes. The father’s evidence during this trial, and the mother’s own reports to others like E.’s pediatrician in 2018 and 2019, reveal that E.’s emotional health and happy disposition has very much deteriorated.

[345] The pediatrician who testified was E.’s pediatrician from the time of his birth until November, 2019. In his earlier years, he saw E. a handful of times per year, but the visits tapered off as E. aged. According to his chart, the pediatrician had seen E. six times since the parents’ separation. November 9, 2019 was the date of E.’s last appointment with the pediatrician. At that point, he was just about to turn 10. The pediatrician did not know why the mother stopped bringing E. to see him and asked questions during the trial as to whether something catastrophic had happened to E.

[346] During the OCL’s second attempt at an investigation, Ms. Singh sent a letter to the pediatrician dated April 29, 2019, asking a number of general questions about E.’s health. The pediatrician did not actually speak to Ms. Singh; he faxed back Ms. Singh’s letter to her, with some brief answers to her questions, handwritten onto the letter itself. Among other things, the pediatrician reported that he had seen E. since early infancy, that “usually [the] mother” brought E. for his appointments, and that he has had good interactions with the mother and E.

[347] The pediatrician’s notes contain his own observations, as well as the recordings of a nurse who would collect information about E. immediately prior the appointment. The pediatrician testified that he never met with the child alone, without his mother present.

[348] Some of the appointments occurred because the child was experiencing headaches. These were discussed at the first two post-separation appointments, and again at an appointment on March 13, 2019. The pediatrician examined the child for headaches, and said he did not find any abnormalities.

[349] It was at the check up on August 17, 2017 that the pediatrician recorded that E. was in grade three and was an A or B student. In reality, E. was late for school 61 times that year, absent 40.5 days, and had already started to struggle with language and math.

[350] At the September 28, 2018 appointment, about two months before E.’s 9th birthday, the pediatrician’s nurse recorded that E. had been depressed for the last three weeks, due to the parents’ separation. The note indicates that there was a court case pending and the child “blame[d] himself”. I infer from the manner in which the note is written, and the fact that E. was then only 8 years old at the time, that it was the mother who reported these things to the nurse. The pediatrician recommended that the mother seek out both individual and family counselling.

[351] The next notation dated March 13, 2019, when E. was 9 years and 4 months old, states that the father was absent, that the child was bedwetting at night-time, and that the child had threatened self-harm at home. According to the mother’s text messages to the father discussed later on in this judgment, the bedwetting was also happening three years earlier, in 2016. This March 13, 2019 note in the pediatrician’s chart was made one day before the mother met with Mr. Fakhri of the Society, at which time she neither disclosed the threats of self-harm or the bedwetting, and instead said the child was “thriving” [my emphasis added].

[352] E.’s last visit to see the pediatrician happened on November 9, 2019 because of a particular ailment the child was experiencing. That last visit to the pediatrician is not material to anything that I must decide.

[353] It was not just the mother who reported to others that E. was struggling with his mental health and threatened to hurt himself. According to the OCL’s second discontinued report, the father told Ms. Singh that E. had threatened to hurt himself over the past few years. He told Ms. Singh that E. had said to his mother, that if he had to go to his father, he would hurt himself. The father also complained to Ms. Singh that the mother was speaking to E. about adult issues such as the court proceedings. The father separately told Mr. Fakhri that E. had made statements about wanting to self-harm too, during the Society’s March/April 2019 investigation. The father also told this to this Court, during his testimony.

[354] According to the pediatrician’s notes and his growth chart, between the time of that visit on September 28, 2018 when the mother first reported depression, and the final visit on November 9, 2019, E.’s weight increased by over 20 pounds[^21], while he grew only three inches in height. According to the growth chart, E.’s weight went from being between the 25th and 50th percentiles for boys of his age, to the 95th percentile, while his height remained constant, in between the 25th and 50th percentiles.

[355] The pediatrician did not treat the child’s mental health. In regards to the September 28, 2018 notation about depression in the pediatrician’s chart, the pediatrician did not recall whether he even spoke to E. and his mother about what was happening in E.’s life at the time. It does not appear that the pediatrician explored what the nurse recorded on March 13, 2019, that the child was bed wetting and had threatened self-harm either. The pediatrician could not recall a discussion about this, but went on to opine what he might have said to the child. He did recall that he examined him and observed no signs of physical harm.

[356] In his brief handwritten response to Ms. Singh’s letter of April 29, 2019, the pediatrician told Ms. Singh that E. was meeting his developmental milestones, but suffered from migraine headaches. He also said the child had “mild” depression, secondary to the parents’ marital discord, and that he had recommended counselling for this. There is no mention of E.’s weight gain to Ms. Singh.

[357] Regarding the weight gain, the pediatrician testified that E.’s weight gain was “not unusual” and that most “Canadian boys” are on the “heavy side”. Despite that E.’s weight went up “quite a bit”, the pediatrician testified that it was still within the “normal range”. He explained that his practice as a pediatrician was to educate the parents, in this case the mother, and the child about healthy eating, to get enough sleep and to exercise. He also said the bedwetting was “not uncommon”, because 5% of boys have this problem.

(3) E.’s Need For A Relationship With Both Parents, And With Member’s of E.’s Extended Family

[358] E.’s other needs identified at this trial pertained to his familial relationships, particularly with his father’s side of the family.

[359] E. used to have an affectionate relationship with his father, but that relationship is now fractured. He also had a positive relationship with his sibling A., during the period in 2016 that she lived with the mother and E., but they had no contact for years after she moved out, until that single phone call in November of 2020.

[360] The father is in a new relationship. If the father could have parenting time with E. in his own home, E. might be exposed to and recognized as a part of the father’s blended family. E.’s relationships with other members of his paternal extended family are not developed, because the father has not had an opportunity to develop them. The father wishes to introduce E. to his family and give him an opportunity to have a relationship with them.

D. The Parents’ Abilities And Willingness To Meet E.’s Needs

[361] The evidence about this factor consists of the testimony and documentary evidence about the father’s alcohol consumption, past acts of family violence, the parties’ behaviour inside and outside of this Court, and the parties’ respective health circumstances.

E. The Father’s Alcohol Consumption

[362] Alcohol use may impair a parent’s ability to meet a child’s needs. Alcohol use may be a relevant consideration under section 24(3) of the Children’s Law Reform Act. And past alcohol misuse may also engage the past conduct section 24(5), depending on the current circumstances of a case.

[363] The mother has raised the father’s alcohol use throughout these proceedings as a basis to restrict his parenting time, both in Court and to others involved with this family. For example, at a conference on February 12, 2018, Rowsell J. identified that the mother’s allegation of father being “under the influence of alcohol during visits” was then “[t]he main stumbling block”. Hughes J. mentioned it again, in her Endorsement of March 7, 2019 on the father’s contempt motion. The mother has made this allegation to the Society and to Ms. Singh with the OCL. Through her counsel at this trial, the mother maintains that alcohol is an ongoing problem. In closing submissions, Mr. Epkenyong sought to attach various conditions to any parenting time to monitor the alcohol use.

[364] The father admits that he was charged and convicted twice in 2007 and 2012 in relation to impaired driving. He lost his license for three years after the 2012 conviction. He also received a 30-day custodial sentence, to be served intermittently on weekends.

[365] When the father regained his license, he was required to have an alcohol detection unit attached to his car for a year, into which he would have to blow before the car would start. The father recalled that he had the unit attached to his car in around 2016. He testified that there was never an instance, while he had the unit attached to the car, that the car would not start due to drinking. The father also testified that he took an education program called “Back on Track” after the 2012 conviction. He described this course as an eight-week education program.

[366] The father testified that he no longer has a problem with alcohol. He said the 2012 conviction was a “wake-up call” for him. He explained to the Court that he learned his lesson, particularly as a consequence of being incarcerated. He referred to going to jail as an “eye opener”. He described the last decade as a “hard 10 or 11 years”. He said it was not a place to which he wanted to return. He also said he understands he needs to be an example to his children.

[367] The father does not currently abstain from alcohol consumption. He testified that he now drinks in moderation. The father’s account of this history and of his current consumption was mostly corroborated by the other witnesses from whom he obtained affidavits and called to testify, although there were some inconsistencies in the oral and documentary evidence on this topic that the Court will address.

[368] The father’s wife L. said that early on in their relationship, the father disclosed his past impaired driving convictions. He told her that he exercised poor judgment, but that he wanted to be upfront with her about this previous issue. While she was apprehensive, she proceeded cautiously with the relationship.

[369] L. said that in the several years since they started the relationship, she has never observed him to abuse alcohol, and she has never seen him drink and drive. She does not even recall seeing him inebriated, nor has she been made aware of any other incidents involving the father relating to alcohol.

[370] In her trial affidavit, L. described the father’s use of alcohol as “sporadic and infrequent” since he moved into her home in December 2018. She said he will drink a beer while watching sports or he might have a glass of wine if they are making something special for dinner. When he does drink, he limits his intake to one or two drinks. During her oral testimony, she said that he drinks wine “once or twice per week” and beer from “time to time”.

[371] The father’s sloppiness respecting the preparation of his financial documents for this trial has spilled over into this important issue about alcohol. The father’s financial statements do tell a bit of a changing story about his alcohol purchases. On the financial statement sworn November 28, 2021, he deposed that he only spent $30.00 per month on alcohol. On his financial statement sworn December 1, 2021, he said he spent $60.00 per month on alcohol. By December 6, 2021, he deposed that he spent $194.61 per month on alcohol. His own charts of his spending contain a break down and reveal spending of $2,335.30 on alcohol at the LCBO or the Beer Store between December, 2020 and November, 2021, thus the $194.61 monthly amount.[^22]

[372] The father initially explained this spending during the mother’s counsel’s cross-examination. Sometimes he responded reflexively or reactively, saying “that is not me. That’s having friends and family over”. In the end, the examination-in-chief of the father about his alcohol use, and the cross-examination, left some questions unanswered. The changing disclosures about the father’s alcohol purchases in his various financial productions and some of his answers caused the Court to examine closely the father’s and L.’s affidavit and oral evidence.

[373] The Court asked its own questions of the father as a result. The father testified the following about his consumption and his spending on alcohol in response to the Court’s questions:

(a) He consumes a glass of wine or two with dinner, four or five four times per week;

(b) He cooks with wine;

(c) He drinks three or four cans of beer in a week; and

(d) He also buys alcohol for social occasions to serve to friends and family who visit the house.

[374] I find that L.’s evidence about the frequency of the father’s alcohol consumption was inaccurate. L.’s use of the words “sporadic and infrequent” in her trial affidavit, and her further description of his wine drinking being limited to “once or twice per week”, are understatements.

[375] However, L.’s explanation of the amount the father drinks on each occasion that he will drink was consistent with the father’s evidence, other witness’ evidence and the documentary evidence. Under cross-examination, L. maintained that the father is not an alcoholic. She testified that she interacts with the father every day and she would know if he is “a drunk”. She described the father as a “clear thinking person” and said she would not be with him, if he was “a drunk”. She has no concerns with the father driving with her own children in the car, and said she would never allow her children to get in the car with the father if he was abusing alcohol. She also said she is not a drinker herself.

[376] I consider her evidence on these points in the context of and alongside the other witnesses’ testimony. The father’s adult daughter A. also testified that she has never seen her father drunk. She said she has seen him drink occasionally, like when he will have a glass of wine with dinner. The father’s sister K. testified that she has not seen her brother drunk either. She too has seen him have a glass of wine, but has not seen him drink to excess. And, the father was candid with L. at the outset of his relationship, and with others, like Society workers and the OCL clinicians, about his past charges.

[377] Finally, I consider the evidence about alcohol consumption in context of what I understand to be the mother’s changing allegations. The father said that the mother has in the past alleged smelling alcohol on him at some visits. He said that is not true. For that matter, the father also said the mother falsely accused him of stealing her prescription medication and abusing it.

[378] Ms. Singh wrote that during her interview with the mother during the OCL’s second investigation, the mother reported that the father is an alcoholic who drinks excessively, such as a 6 pack of beer at a time, or daily drinking. She told Ms. Singh that during the relationship, the father would hide alcohol in the home. She told Ms. Singh about the previous charges pertaining to his drinking and driving, alleged he drinks and drives, and said that he drove while his license was suspended.

[379] Yet when the Society contacted her in April 2013, prior to the separation but after his most recent conviction, to investigate an allegation that she was abusing her own prescription medication, the mother specifically denied any substance abuse concerns on the part of the father and called him a ‘hands-on’ parent. This statement from the mother, documented in the Society’s notes and records, was made much closer in time to the father’s last impaired conviction than her subsequent statements. The mother’s first allegation to the Society about the father’s alcohol misuse did not come until July 2016, after the commencement of these proceedings.

[380] Many times since the separation and throughout these proceedings, the mother insisted that the father have parenting time with E. outside the supervised access center and in her home instead. I repeat that during the Society’s 2018 investigation of the kidnapping incident, Ms. Johnson told the mother that she was creating a risk to E. if she was allowing visits between father and son while claiming the father was under the influence of alcohol. Yet the mother continued to say she would allow parenting time at her home, despite the Society’s recommendation that she not do this. It defies logic that the mother would do this if the father was actually acting violently (as she has also maintained during this proceeding), or if he was showing up smelling of alcohol, drunk, otherwise abusing alcohol, or drinking and driving.

[381] I note that Hughes J. heard similar arguments from the mother about the father’s alleged alcohol misuse during the contempt motion, when the mother was then attempting to justify her non-compliance and continue the restrictions on the father’s parenting time. In the Endorsement of March 7, 2019, Hughes J. rejected the mother’s argument that the father is able to “fool everyone else as to the state of his sobriety” as the mother claimed. While this finding is not binding on me as the trial judge and I must make a decision based on the evidence I heard; having now heard this trial, I agree with Hughes J.’s finding.

[382] The father went to several supervised visits in 2017 and 2018, was separately observed interacting with E. by Ms. Singh in 2019, and had numerous interactions with the three OCL clinicians, multiple CAS workers, and police officers over the years. The notes and records from the supervised access program detail not only how the father’s visits went, but also interactions with the parents. Ms. White testified that she did not recall any occasion where a staff person detected alcohol on the father’s breath or clothing. She testified if that had happened, it would have been recorded in the observation notes. There is no such observation note.

[383] In the discussion section of her discontinued report, Ms. Singh wrote that the mother’s concerns about the father’s drinking were “valid”. Her conclusion in this regard was based on the fact of the father’s charges, the most recent of which was then 7 years old. Inconsistently, she also acknowledged that charges were dated, that there had been no concerns raised by anyone other than the mother, and that alcohol misuse had not been verified by the Society.

[384] In finding some validity to the mother’s concerns, Ms. Singh relied on Ms. Johnston’s suggestion, made during the Society’s 2018 investigation following the alleged kidnapping incident, that the father could attend for “a substance abuse assessment” or “voluntarily attend for alcohol screens” to provide evidence that he is not attending visits under the influence. Ms. Johnston’s statement to this effect was not based on an assessment of the evidence at the time, but rather was a proposed solution to resolve a conflict in the facts as they then presented. Ms. Singh then agreed that would be a good idea because of the “highly conflictual nature of this situation”. During her testimony at this trial, she said she too made this suggestion at the time to aid the parties to resolve the factual dispute over their conflicting accounts about alcohol.

[385] While testing may be appropriate in some cases (provided there is evidence about its reliability, it is then properly done and the parameters for its use are properly defined), testing should not be used as substitute for a social worker looking at the facts. The Court does not intend to pick up on the suggestions from the Society worker or the second OCL clinician and order alcohol monitoring in a case of this nature. Quite apart from the fact that no one called any evidence about the kind of monitoring that should be put into place, the reliability of any such testing, or how the results of any monitoring should then be used, there is a lack of an evidentiary basis that would justify ordering alcohol monitoring here in the first place.

[386] This is a high conflict case. The father admits that he does not abstain. I can only imagine that alcohol testing will therefore detect alcohol. So that begs the following questions: What is the Court testing for? Any alcohol at all or some threshold level? If the latter, what level is an appropriate level?

[387] I have no doubt that attaching testing terms to a parenting order in a case like this will fuel the parental conflict and enable more allegations to be made, rather than accomplishing what such terms should be intended for, in appropriate cases, namely to ensure a child’s safety.

[388] The Court’s job is to consider, based on evidence, whether alcohol consumption impacts a child. Quite apart from the fact that the evidence is that the father engages in responsible drinking, this child is now 12. He is not a young child. He will be able to tell if something is wrong. And on this record, the father should be given the opportunity to continue to be responsible respecting his alcohol consumption.

[389] Finally, the mother has exaggerated and misrepresented the truth about the extent of the alcohol use. I highlight a number of examples of her credibility in this judgment, and not just about the alcohol allegation. If the mother seriously believed the father has a drinking problem that placed E. at risk, then it was incumbent upon her to participate in this trial and testify. Whatever allegations she wanted to make would have then been put to the father. He would have had an opportunity to explain them and be cross-examined on them. The mother would also have been cross-examined.

[390] But none of that happened. Instead, she insulated herself and her allegations from any scrutiny. This Court was left to comb through the documentary evidence in an attempt to discover what the mother has said about alcohol to others in the past, to assess the veracity of those complaints in light of all the evidence.

F. Family Violence

[391] Family violence has always been relevant in the assessment of a child’s best interests: see for example Freitas v. Christopher, 2021 ONSC 2340 ¶ 43 and 44. See also ¶ 30 of McLellan v. Birbilis. Since March 1, 2021, family violence is defined in section 18(1) of the Children’s Law Reform Act. It means any conduct by a family member towards another family member that is violent or threatening, that constitutes a pattern of coercive and controlling behaviour, or that causes the other family member to fear for their own safety or for that of another person, and, in the case of a child, includes direct or indirect exposure to such conduct. At ¶ 237 of Wiafe v. Afoakwa-Yeboah, 2021 ONCJ 201, Sherr J. wrote that, “…family violence has been defined and given heightened importance as a best interests factor in the recent amendments to the Act. It is an issue that this court takes very seriously when assessing a child’s best interests”.

[392] Section 18(2) makes it clear that the conduct need not constitute a criminal offence to be family violence. The section includes a non-exhaustive list of nine kinds of behaviour that constitute family violence. Physical abuse, psychological abuse, threats and harassment, all of which are in issue in this case, are amongst that list in section 18(2). As Tellier J. found, the Court is not precluded from finding that other conduct fits within its meaning, too: see ¶ 27 of McLellan v. Birbilis.

[393] Section 24(3)(j) of the Children’s Law Reform Act provides that family violence and its impact on, among other things, the ability and willingness of any person who engaged in the violence to care for and meet the needs of the child, and the appropriateness of making an order that would require persons to cooperate on issues affecting the child, are factors related to the child’s circumstances in the best interests analysis. If a finding of family violence is made, section 24(4) directs the Court, when considering the impact of family violence under section 24(3)(j), to consider a further list of factors. Those include the nature, seriousness and frequency of the violence and when it occurred, patterns of behaviour, whether the violence was directed towards the child or whether the child was exposed, safety concerns, any preventative steps taken and “any other relevant factor”.

G. The Mother’s Allegations That The Father Committed Acts Of Family Violence

[394] The mother says that the father abused both her and the child. Like with her allegations about alcohol misuse, the Court has been left to piece together the various statements the mother has made to others in order to understand what exactly her allegations of family violence are. For example, in the OCL’s second discontinued report, Ms. Singh wrote that the mother told her the father is “aggressive”. To Ms. Singh, she claimed said he would swear and grab E. when angry. She also said he chocked her, physically hit her, yelled at her and then recorded her reaction. She said he called her fat and ugly, and said that no one wants “a cripple”, referring to her disability. The mother claims that he told her that he wished she would die. There is also the child’s vague statement, made to Mr. Fakhri during the March 14, 2019 visit to the mother’s home without elaboration, that the father “hurted” his mother, followed by the mother’s vague statements that the child was sad because of what he had “witnessed”.

[395] The father denies that he was abusive toward either of the mother or the child. The father also denied abuse to Ms. Singh during her interview of him during the OCL’s second investigation.

[396] Family violence can be difficult to prove. It is often not reported at the time it occurs resulting in an absence of contemporaneous medical records, police records, or Society records to corroborate the allegations. Violence often occurs behind closed doors where there will be no witnesses. Victims may minimize or rationalize the abuse, or be afraid to report it.

[397] Family violence was a significant issue at this trial. Credibility was a significant issue too. The mother lacks credibility respecting her allegations about family violence. She has not been consistent in her reporting to others. For example, when the Society investigated the complaint about her driving in April 2013, the mother spoke highly of the father as a father and partner. Even when the Society became reinvolved in July 2016, the mother said the father was emotionally abusive, not physically abusive, and that he had not used physical force on E. The allegations changed and worsened by the time of the OCL’s second investigation.

[398] Neither parent disclosed any family violence in his and her Form 35.1 Affidavits sworn May 26, 2016 and July 15, 2016. In the mother’s case, she specifically wrote “N/A” in large letters in the section pertaining to violence or abuse. The father left that section on his blank, although he later updated it on May 19, 2021 with the assistance of counsel to summarize some of the family violence to which he had been subjected.

[399] The father’s sister K. and daughter A. did not observe the father mistreat the mother during the times they had the opportunity to observe the two together. K. described the mother as the aggressor. The father’s wife L., along with K. and A., separately described the father’s nature and personality. None of the witnesses described any abuse by the father inflicted on others. L. by contrast described the mother as enraged when she came to her home after the June 2018 kidnapping incident and police involvement.

[400] And finally, I consider the mother’s credibility in the context of the evidence the father called, including the mother’s own text messages, which revealed that the mother engaged in a number of acts of family violence towards him and others in her household.

[401] It was incumbent upon the mother to participate in this trial to address the allegations of family violence directly. But once again by not participating, she deprived the father of an opportunity to address head on whatever specific allegations she has, and she insulated herself from cross-examination.

H. The Mother’s Acts Of Family Violence

[402] There was an abundance of evidence that the mother committed acts of family violence towards the father and other family members. She has committed acts of psychological abuse towards the father and the child too. This evidence came from both the oral testimony of the father’s witnesses and from objective documentary evidence, like the mother’s own text messages.

[403] In his trial affidavit, the father said when the mother would get angry or frustrated, he observed her raise her voice, resort to name calling, use foul language and kick or slap things or people. He said he had seen and heard her do this in front of E.

[404] The father’s adult daughter, A. observed the mother hit her eldest son R. in anger, and kick, punch, spit and throw things at her father in anger during the six-month period that she lived with the mother in 2016. She testified that she did not see her father respond in kind.

[405] A. was a particularly compelling witness respecting the family violence. She painted a disturbing picture of what was going on in the mother’s household in 2016. She testified that she initially enjoyed living with the mother upon moving in. She described that the mother acted like her “best friend”. But as her time in the mother’s home progressed, the situation changed.

[406] A. described the mother’s behaviour as irrational and unpredictable. The smallest things, such as the mother not getting her way, would trigger a “screaming match”, during which the mother would pace around the house, call people names and “speak violently”.

[407] A. observed the mother to engage in significant conflict with E.’s maternal grandmother when she was staying there. A. estimated that the maternal grandmother was between 65 and 70 years old in 2016. She described the two women as “constantly fighting” and “screaming at each other constantly”. She said that meant on a weekly basis. A. said she would go to her room in the basement of the mother’s house when these arguments would happen.

[408] A. described the arguments between the mother and the grandmother as “fairly intense”. She explained that E. would be in his room playing video games or in the basement, and she would try to distract him by playing with him in the basement. She did not know if he acknowledged the yelling.

[409] A. also observed the mother mistreat her older son R. A. said they fought on a weekly basis. She described this conflict as “more heated”. She said the mother would become physical with R. She described that the mother would go close to his face and push R. Once again, A. would take E. down to the basement when this was happening.

[410] A. described conflict between the mother and her neighbours. Although it would not qualify as “family violence” under section 18(1) of the Children’s Law Reform Act since the neighbours are not “family members”, the conflict with the neighbours is more evidence of the mother’s difficult personality and behaviour, that this Court has seen permeate into the prior proceedings and the parenting issues in this case. A. said that conflict with the neighbours was always about something “silly”, like about problems with the grass, or about comment that a neighbour might have said to the mother. A. testified that she never indulged in discussions with the mother or inquired of her about these arguments, but she knew there were arguments.

[411] And A. also observed conflict between her own father, and the mother. Although the parties were already separated when A. moved in, her father would come by to see E. She described the interactions between the two as “a lot of yelling”. When it got heated, A. said the father would try to remove himself from the situation by going outside. If the father tried to remove himself by going up to E.’s room with E., the mother would sometimes follow him up there and try to continue to engage.

[412] A. said that she heard the mother threaten the father multiple times. She also heard the mother tell the father that she would kill him. She heard her say said she wished he was dead.

[413] A. observed the mother push the father and spit on him. She did not observe her father to respond in kind physically. A. surmised that E. would have heard these arguments between his parents, although he may not have necessarily observed all of them.

[414] A. testified that she heard the mother directly tell E., after a particular fight with the father over the phone, that the father did not want to see him. She observed E. to cry.

[415] A. testified that E. did ask her from time to time “where is daddy”. She explained she was in a tough position. On the one hand, she was living under the mother’s roof. On the other hand, A. said “he is my dad”. She did not know how to respond to E. in these instances.

[416] A. testified that the mother at times instructed her not to take her father’s calls. She said this was done to prevent the father from talking to E. on the telephone. A. said that the mother did not explain the reasoning behind those instructions.

[417] A. herself was not spared from the mother’s vitriol while living in that house, although the focus of A.’s testimony was more about the mother’s treatment of others. Still, A. recalled the mother calling her a “slut” at one point, for example.

[418] During amicus’ examination of him, the father agreed that he had experienced behaviour while living with the mother, similar to that which A. described. He testified that the conflict became worse and worse as time went by. He agreed with amicus’ characterization of the evidence, that the conflict between the mother and her son R. was intense, physical and verbal fighting that became worse over time as R. grew older.

[419] The father also testified that he continued to observe the mother and R. fight post-separation, during the times when he was in the mother’s house to see E. He testified that R. would get angry to the point that he punched holes in the wall. The father testified that he saw the mother punch R. One time, she kicked him in the mid-section.

[420] The father testified that he sometimes tried to run interference during these arguments between the mother and R. to get the mother to calm down. Once, when R. left the house during an argument with his mother, the father followed R. out of the house, to try to talk to R. and to reassure him.

[421] The father testified that he tried to intervene when the mother mistreated her own mother, too. He said he told the mother not to speak to her mother like that, as he was not used to speaking to his own mother in that manner. He also spoke to the mother about her treatment of R. telling her that she could not act like that, but she kept doing it.

[422] The father testified that during his relationship with the mother, she made disparaging comments about R.’s father, such as he was “addicted to drugs”, much like the mother is now doing to him. The father recalled that when R. was in his early teens, he went to see his father around a certain Christmas. R. came back with a photograph of his father, his father’s girlfriend, and his father’s other children. According to the father, the mother “freaked out” when she saw the photograph, told R. never to take a “fucking picture” with his father and the girlfriend again, and tore up the photograph.

I. The Mother’s Text Messages To The Father

[423] The mother’s own text messages to the father provide some equally troubling insight into the mother’s instability and the manner in which the mother has treated the father and E. The text messages are corroborative of several aspects of the father’s and A.’s testimony about the family violence.

[424] Many of the text messages that the father introduced into evidence are from 2015 and 2016. They are attached as an exhibit to his trial affidavit sworn August 23, 2021. The father introduced other text messages during his testimony at the trial. At no point did Mr. Epkenyong object to these text messages going into evidence. He then suggested to the father during cross-examination that the father failed to introduce other text messages, such as his responding text messages to the mother.

[425] It is true that in most instances the father introduced the text messages he received from the mother, and not his responses or his own text messages. The father did testify that often he did not respond to the mother. Nevertheless, other text messages likely exist, and perhaps they reflect poorly on the father. But ultimately I do not know that one way or the other because they were not put before me, and yet again here, the mother could have, and should have participated in this trial, but she chose not to. And even in the absence of the mother attending this trial herself, it was also open to Mr. Epkenyong to obtain from the mother any text messages he felt were missing and put them to the father. Regardless of what else might exist, on a stand-alone basis what the mother sent to the father are foul, vulgar, offensive, abusive and appalling. They even include death threats and statements to the father coaxing him to kill himself.

[426] The mother’s text messages to the father reveal:

(a) On November 26, 2015, the mother wrote, “I promise you I’m gonna kill you. The only way I can free myself from the disgusting life you want to live is to kill you. The only way I can save E. from you hurting him and destroying him is to get rid of you. You have no idea what love is. Your sick. I will not allow you to destroy E.”;

(a) On March 22, 2016, the mother sent the father several text messages saying, among other things, that the father used to love E. but now didn’t care about him, that E. used to be an A+ student but was struggling since the father abandoned him, and that the father was committed to his other children;

(b) On March 27, 2016, the mother wrote, “You need to move back in with E. It’s you causing the bed wetting. He is severely attached to you.;

(c) On March 31, 2016, the mother wrote, “Your fucking up E. and you don’t care”; “You always saving K’s[^23] kids when your actions are fucking E. up”; and “I need the plastic for E.’s bed tonight. He cannot sleep with me anymore. I’m tired of this bullshit”;

(d) On April 1, 2016, the mother told the father that she hoped he would die “after what [he] did to us.” She went on to say, “I hope you die a horrible death. Better yet. Please kill yourself.”;

(e) Also on April 1, 2016, the mother wrote a string of text messages, namely “It’s in E.’s best interest to not see you anymore. Keep focus on K’s kids. Your all good for each. Your too consume with K. and her kids to be a father to E.”; “You can’t watch E. at school or do anything because you can’t miss work yet your always taking time off for C., A. and your other favourite kids”; “K. and her kids ruined your life and E. is paying for their fuck up. All E. ever did was love you”; “Your running trying save K’s kids while you destroy E. Let’s be real. You only see E. when you feel guilty”; and “You make a duty whore destroy using her kids. I wish you were dead that way E. would be at piece. Haha you sell outs like to marry your black women. See what happen”;

(f) On April 2, 2016, the mother wrote, “You used me and destroy my life with my kids. You even cause my benefits to cut off leaving my no way of taking care of my kids. It’s time for you to leave E. alone. You’ve hurt him enough. Your life is at your parents taking care of K’s kids while you abandoned E. You are not going to hurt E. anymore. I wish you the best. Goodbye W. E’s father is dead. He doesn’t have a dad. I can’t allow you to play with E.’s feelings. That’s why he pee the bed. Leave him alone.”;

(g) On April 18, 2016, the mother wrote, “I will the you and K’s kids forever. Your all users”, and then “I hate you beyond hate”, and then “E. was a A student. Your destroying him. You want to blame others. I’m the one who is taking care of him. You show up for an hour and act like you’re their for him. Only kids you care about is K’s kids. I won’t allow you to destroy E.”;

(h) On April 19, 2016, the mother told the father, “Don’t put E. into the system this will follow him and destroy him. I’m begging him. You can sleep with E. Right we need to save our son and I’m begging you.” There is another text two minutes later that says the father can go to bed with E. at 9 PM and both can be up on time. It then says, “my disability is an issue because I can’t handle what you left me to do physically and you knew this.”:

(i) On April 25, 2016, the mother told the father, “Don’t fucking contact E. school. They expect you dumb ass [offensive word omitted] to abandon your kids and cause them issues to label them. I fucking hate you beyond the for destroying E. He was happy and worse you had to fuck him over more. You could just let him pretend you live here you dumb ass had to put shit in his head and take that little happiness he had let’s be real. Your too busy taking care of A. and C. You can’t leave them to help E. I swear to Got if you step foot on my property I’m calling the police and have you arrested. I wish you would die. I’m telling E. your gone to work out of province and won’t be back for a long time. Your deleted. Fuck you asshole.” [^24];

(j) On May 8, 2016, the mother wrote, “It’s so funny how you abandoned E. for your lesbian daughter. Hope your proud of your [offensive words omitted] daughter. It’s all good. You will not see E. again. Stay away. If you come by this house I will have you arrested.”;

(k) She also wrote on May 8, 2016, “I want my fucking money you piece of trash”;

(l) On May 10, 2016, the mother wrote, “I told him you have a new baby that’s why you don’t’ want to see him”, and “This is so easy. I actually love hurting you.” And later, “I get to hold and kiss E every night… can you say the same?”; and

(m) Also on May 10, 2016, the mother sent the father a photo of the child and wrote, “Look at that face. To bad he’s fatherless. But he’s got mommy. Thank you.”

[427] Additionally, in a chain of text messages exchanged in November 2020, beginning on November 5, 2020, the father told the mother that he was meeting with a grief counsellor. [^25] The mother asked him to pick up food for her. On November 6, 2020, the mother wrote to the father saying that E. was calling him, but claimed that the father was “ignoring” E. On November 9, 2020, the mother sent the father another text message saying she hoped he was “ok and feeling better”, and asked if the father would come by to exercise with E.

[428] The father testified that after receiving that last text message, he did attend at the mother’s house and tried to take E. out for a jog. By this point, E. had gained a considerable amount of weight. The father testified that after he arrived at the mother’s house, as E. was putting his shoes on to go out for a run with his father, the mother came down and said to the father, “where the fuck do you think you are going with my child” and insisted that they exercise in the back yard. The father responded and said let me do it my way, and the mother told him to get the “fuck out” of her house, in E.’s presence. The father left.

[429] On November 19, 2021, the mother sent the father a text message at 1:47 pm saying that she was in the hospital emergency room for her heart. This text was sent during her various efforts to seek adjournments of this trial. In the text message, she wrote that she was at risk of a heart attack and E. would never forgive him.

[430] On November 20, 2021, three days before the start of this trial, and on E.’s 12th birthday, the mother sent the father a lengthy text message saying the following:

My straight A. student. He want to be a doctor to cure me. I would die for him. I wanted him. Remember you begged, cried and asked me to have an abortion. I chose to have him even though I faces challenges because of my disability. I kept him. He’s mine. How dare you use him to get money from me and hurt me. He will never forgive you for hurting me. You exposed me to racism and damaged my heart. You could have stopped this by withdrawing the case and try to have a relationship with E. After trial there is no turning back. E. cried watching me in the hospital yesterday. If you were smart, you would drop your case and try to fix your relationship with E. No judge can force E. to want to be with you. Everytime you hurt me, you push him further away. Tell your people to stop with the black magic, I’m not going to die. I changed my will. E won’t see a dime until age 21. 3 strangers told me that your woman and her mother are trying to cause me harm and they are into black magic. Only you would get mixed up with trash. Something happened to me 2 days while E. was in the Car. Enough. God is watching over me. I’m going to pray for you. I’m appealing this case to Ottawa and I have 10 people in a major Human Rights claim. This is a massive human rights case and your going to come out as the black man who expose the black woman to racism.

J. The Mother’s Physical And Mental Health

[431] A parent’s physical or mental health may also be very relevant to assessing his or her ability and willingness to care for and meet the needs of a child pursuant to section 24(3)(h) of the Children’s Law Reform Act. The importance of health evidence for this purpose in cases concerning children has been recognized by courts many, many times over years. For a recent example, see ¶ 78 of McLellan v. Birbilis.

[432] Attempts to get a proper understanding of the mother’s health, including her mental health, have consumed an inordinate amount of judicial and other resources in this case. Until now, the focus of those inquiries, squarely put in issue by the mother herself, has largely been on trying to understand whether and how her physical health issues have impacted her ability to participate in this proceeding. But her physical health, and her instability and irrationality, are relevant to parenting.

[433] The mother has told this Court and others about a number of her health conditions at different times during these proceedings, when seeking adjournments and/or seeking to avoid participating in investigations related to these proceedings. The conditions she reported included a pulmonary embolism from which she suffered in 2018, a brain injury or injuries arising out of car accidents, chronic pain and respiratory problems, and since August 24, 2021, cardiac issues.

[434] As I understand it from the Endorsements, the reference to the brain injury may have been first raised with Fryer J. at the time the mother sought an adjournment of the September, 2019 trial. At her motion to adjourn the May, 2021 trial, argued before me on May 25, 2021, I was told of the pulmonary embolism (blod clot), multiple car accidents and a brain injury. At that time, the mother filed one letter from her physiatrist, and a second letter co-authored by a chiropractor and a physical therapist. This Court referred to those letters in its written decisions of May 31, 2021 and October 15, 2021. The letters are important background and context to consider properly the medical evidence I then heard at trial.

[435] As I indicated in the written decision of May 31, 2021, the physiatrist’s letter stated that the mother was hospitalized in June of 2018 regarding the blood