Court File and Parties

COURT FILE NO.: FC-19-1222 DATE: 2022/11/28

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Jennifer DeGiorgio Applicant

– and –

Nicola DeGiorgio Respondent

COUNSEL: Sarah Giamberardino for the Applicant Alexei Durgali for the Respondent

HEARD: May 9-20, 2022

Reasons for Decision

Justice Engelking

1This is a sad case about decision-making authority and parenting time regarding two children, O. who is eight years old, and her sister E. who is six years old.

2Their mother, Jennifer, and their father Nicola, began a relationship in 2007, married in 2011 and separated in April of 2019.

3The girls have remained in the primary care of Jennifer since separation, and currently have parenting time with Nicola alternating Wednesdays from after school to Thursday morning, and every second weekend from Friday after school to Sunday evening.

4O. has been diagnosed with a seizure disorder, for which she takes medication, some learning disabilities, some ocular challenges, and ADHD, for which she also takes medication.

5Jennifer is seeking an order of sole decision-making authority over the girls, primary residence of them with her, and parenting time with Nicola consistent with the existing status quo.

6Nicola is seeking an order of parallel decision-making authority, with him having authority over medical and mental health decisions and Jennifer having authority over educational and dental care decision. He is also seeking a shared parenting schedule on a 2/2/5/5 schedule.

7For the reasons that follow, I order that Nicola have decision-making authority over the girls mental and physical health decisions and that Jennifer have it over decisions about education and dental care. I also order that Nicola have parenting time as recommended by Dr. Horvath in her November 10, 2020, report.

Background Facts

8As indicated, the parties began a relationship in 2007. They met in Thunder Bay, Ontario, from which they both emanate, but shortly after beginning their relationship, Nicola was offered a job in Ottawa, which he accepted, and Jennifer joined him. They, thus, moved in together within a few months of dating.

9They both seemed to enjoy the early years of the relationship, and they married in 2011. Things, however, became increasingly strained as the children came along. Nicola felt a great deal of stress over the fact that the couple could never seem to get ahead financially, notwithstanding that he was making a very good salary as a graphic designer/art director in the field of marketing. O. was born in 2013 and E. was born in 2015. Jennifer started out as a stay-at-home mom, but by 2017, she returned to work, first working at a bank and then at an insurance company. According to her evidence, Jennifer was almost entirely responsible for the care of the children and family pets (3 dogs and 2 cats) and for the upkeep of the family home. Although Nicola did participate with the care of the girls at times, this evidence was not really disputed, as when the relationship started to sour, Nicola sought refuge in his work, and was spending up to as much as 90 hours a week working, which left little time for anything else.

10Both parties agreed that the worst year of their shared lives was 2016. Nicola had advised Jennifer in late 2015 that he wished to separate. By March of 2016, he had moved to the basement of the home, and he was of the view that he and Jennifer were living separate and apart. During this period, Nicola admitted to having what began as an “emotional affair” with a co-worker, which later became physical. Things were extremely tense in the home, and Nicola became increasingly depressed. In July of 2016, the parties began negotiating a separation agreement, however, it was not signed. On August 2, 2016, Nicola mixed alcohol with some medication he had been prescribed, and he went into a seizure-like state in the basement of the home, with the child, O., being the first to find him on the morning of August 3, 2016. Jennifer called 911 and Nicola was taken by ambulance to the hospital.

11Jennifer was, and remains, convinced that this was a suicide attempt on the part of Nicola, because he had previously threatened to her that he would commit suicide, and it would be her fault. Nicola denies that he attempted suicide; rather, he states that he very unwisely mixed alcohol with some of the medication he was prescribed as a “band aid solution” to what he was feeling at the time. He also denied ever telling Jennifer that he would commit suicide. Nicola did, however, make statements to the emergency physician, which he does not at all recall, which suggested suicide was his intention. Whether it was an intentional suicide attempt or not, this incident appears to be the impetus for the true unravelling of the relationship. At this point, whatever trust Jennifer and Nicola may have still had in each other disappeared. For Jennifer, it was Nicola’s “affair” and the act of attempted suicide, which Nicola had threatened would be her fault, which cemented her inability to trust him. For Nicola, it was Jennifer treating what for him was not a suicide attempt as one, and telling his family and employer so, which cemented his inability to trust her. Jennifer had also told Nicola in the hospital that the CAS had stated that it was up to her to decide whether he would be permitted back in the home with the children, which frightened him and left him feeling very vulnerable. Nicola was discharged from the hospital as non-suicidal and did return to the family home.

12For Nicola, from that point forward he was on a trajectory of leaving the relationship. However, he was wary of Jennifer invoking the power of the CAS to minimize his relationship with the children. He also did not have the financial means to split the family into two households, and so he stayed. The family did better in 2017 (though there was an aborted attempt of Nicola to move out then) and 2018, but Nicola continued to work long hours as an escape from his relationship woes. At times, the couple actively tried to make the relationship work, and engaged counsellors for that purpose, but eventually all roads were leading to a separation. In early 2019, Jennifer noted Nicola to be becoming more stressed and less patient. She worried for herself and for O., feeling that Nicola was harsher with her than he should have been. On Saturday, March 23, 2019, there was an incident during which Nicola admittedly blew his cool. He yelled, swore, and berated Jennifer and called her names in the presence of the children. Jennifer took the girls out of the house and when she returned Nicola had calmed down, and he remained calm the next day. Nicola believed that he had gotten months of stress and tension off his chest and that things were going to be okay. However, on Monday, March 25, 2019, when he returned home from work, Jennifer and the girls were gone. Jennifer had taken O. and E. to a family shelter without advising Nicola they would be leaving.

13Nicola retained counsel and prepared for an emergency motion to try and obtain some contact with the children, and in response to being served with that motion, Jennifer returned to the family home on April 3, 2019. In her absence, Nicola’s mother, Enza DeGiorgio, had come to Ottawa to stay with Nicola, and she was also present. Enza stayed for a couple of months, and the situation in the house was very tense. On April 28, 2019, when Nicola was attempting to engage in a discussion with Jennifer about money having been taken from their joint line of credit, Jennifer, indicating that she was feeling very threatened, called the police. They attended the home, to the detriment of O., who was quite impacted by their presence, according to Nicola and Enza. During this period, Nicola also, very inappropriately, placed a listening device in a family vehicle used by Jennifer. He was charged for this action, and it was resolved by a Section 810 peace bond.

14Jennifer had also involved the CAS of Ottawa on March 25, 2019, and it commenced an investigation and transferred the file for on-going services after verifying a concern of exposure of the children to parental conflict. The parties entered into a Voluntary Services Agreement with the CAS which was to see them living separately by July 31, 2019.

15The parties continued to live separate and apart in the family home until July 27, 2019, when Jennifer abruptly left the house with the children, again without notice to Nicola. She rented accommodations and they have continued to live apart since that date. Jennifer limited the time that Nicola could spend with the children, and he had to gradually increase his time with them, which was initially by way of daytime visits only, through a series of motions and court orders.

16Commencing in February of 2020 through to July of 2020, the CAS of Ottawa and the Ottawa Police Services variously investigated allegations of sexual abuse made to Jennifer by the children, by E. in particular, against Nicola. The allegations were not verified, and no criminal charges were laid.

Dr. Horvath Report

17The parties engaged Dr. Catherine Horvath to conduct a s. 30 custody and access assessment. Dr. Horvath was qualified by the court for this purpose. Her report was completed on November 10, 2020.¹

18As part of her assessment, in addition to meeting several times with Jennifer and Nicola, interviewing the children, observing the children in each parent’s home, reviewing documents provided by the parties and by collaterals and interviewing collaterals, both professional and personal, Dr. Horvath conducted psychological testing on the parents. Her findings with respect to their respective profiles are instructive in relation to their abilities (or not) to coparent the children.

Jennifer’s Psychological Profile

19Dr. Horvath completed the Minnesota Multiphasic Personality Inventory (MMPI-2) with Jennifer, which she concluded could be considered as having provided an “accurate portrayal of her personality and current concerns.”² Dr. Horvath found that Jennifer:

…is feeling very resentful and that blame is intense. She is having adjustment problems. Anger and resentment are high. Mrs. DeGiorgio has lost her sense of trust; this is not the first time she has felt let down. Sensitivity to rejection and disappointment coupled with low frustration tolerance have increased the risk of marital problems in her case. Further, Mrs. DeGiorgio’s profile points to taking a passive and submissive stance in relationships, being overly compliant, and not self-reliant or achievement oriented.

Mrs. DeGiorgio would seem to have trouble being affectionate and is likely argumentative. This could impact on her ability to get along with others. She can be suspicious and could be having difficulty making decisions. Her relationships are likely affected by her internal conflict between desiring to be dependent on someone and taken care of versus deep-seated fears of being emotionally vulnerable. This can contribute to an inability to form attachments to others, something that likely saddens her.

As well, she tends to frequently seek reassurance and yet rarely finds it effective at calming her due to underlying mistrust of others. Individuals with similar profiles often experience periods of anxiety that create a building internal tension that eventually leads to impulsive attempts at tension reduction.

Mrs. DeGiorgio is burdened by current life events but does not want to accept any responsibility for the outcome.³

20Dr. Horvath also administered the Parenting Stress Index, Fourth Edition (PSI-4), through which Jennifer indicated that “she feels herself to be a competent parent with a sufficient support network who readily accepts the daily demands of parenthood and feels close and attached to both her children.”⁴

Nicola’s Psychological Profile

21Dr. Horvath also completed the MMPI-2 and PSI-4 with Nicola. The results of the MMPI-2, which she considered an accurate portrait of his personality, reveal that Nicola’s “capacity to cope and function is likely compromised currently and he is struggling emotionally”, he may present as moody and defensive, and his self-esteem and confidence are low.⁵ Further:

The impression is of a depressed, angry, blaming, self-critical, introverted man whose body is registering the severe stress that he is under. This suggests a pattern of withdrawal, very low confidence, indecisiveness as well as feelings of inadequacy and guilt. He would seem from the profile to be very defeatist and have low expectations for happiness. Such individuals tend to be irritated by bids for intimacy and the accompanying invasion of their persona space by others.

Mr. DeGiorgio is psychologically depleted. Low energy and social awkwardness are highlighted. He is socially avoidant and lacking in resiliency. The general impressions is of someone who is facing unrelenting stress and who feels that it is beyond with what he can cope. It is a profile reflecting helplessness and exasperation.

Mr. DeGiorgio reports every possible aspect of depression including sadness, psychomotor slowing, physiological malfunctioning, cognitive dullness and brooding. He is personally uncomfortable and very apprehensive. He is concerned with his own functioning and feels hesitant and distractable. He would seem to be the type of person who copes by withdrawal and disinvestment, maintaining a cautious and inhibiting approach.

22As with Jennifer, the results of the PSI-4 for Nicola reveal that he feels himself to be a competent parent who readily accepts the daily demands and restrictions of parenthood and feels close and attached to both of his children.

23Dr. Horvath found that the family histories of both parents contributed to their current inabilities to function in a healthy manner, or to successfully navigate their relationship and communicate positively with one another.

24These profiles collided in something which Jennifer has clearly come to experience as abusive. Her perception of this experience has been reinforced by those whom Dr. Horvath has identified as “highly aligned therapists”.⁶Dr. Horvath has gone so far as to state: “These parents, and their children, do not benefit from having advocates masking as therapists who reinforce their persecutory anxieties.”⁷ While Nicola has been able to recognize certain actions of his which may be perceived as abusive, including his outburst of May 19, 2019, Jennifer appears incapable of recognizing that he has also felt abused within their relationship. She asserts that Nicola’s suggestions that he felt unsupported or unappreciated by her were only efforts on his part to “gaslight” her or make her feel bad or responsible. In keeping with her profile, Jennifer remains a passive recipient of Nicola’s antagonism (from her perspective) or protaganism (from his perspective) and takes no responsibility for any contribution she may have had to the demise of the relationship. Regardless, the dynamic was not good, and at times was, indeed, likely emotionally abusive, on the part of one parent or another, though more obviously on the part of Nicola. The tragic result of the overarching dynamic of the relationship is that it has in the past, and continues to, negatively impact the children.

25With respect to the allegations of sexual abuse of the children by Nicola, after outlining their particulars, Dr. Horvath indicated:

When all of the above is taken together, there is not conclusive evidence that any of the allegations have occurred. Further, it is concerning how many times the children have been questioned by multiple people, as we know that children can be influenced when questioned multiple times using suggestive techniques. Abuse has special significance in this family context, it has been deeply internalized by both parents and spilled over into the children. It is so powerful in the parental psyche that all roads seem to lead to it. As long as the issue is framed about proving or disproving sexual abuse allegations, the psychological impact of having two very emotionally scarred and vulnerable parents is masked.⁸

Dr. Horvath’s Recommendations

26Commencing at page 109 of her report, Dr. Horvath made the following recommendations:

Decision-making & Parenting Time

1. Mrs. and Mr. DeGiorgio should have parallel legal decision-making for their children, [O.] and [E.], such that:

a. Mr. DeGiorgio – physical and mental health

b. Mrs. DeGiorgio – dental health and education

2. Both parents should have decision-making for extra-curriculars during their respective parenting time.

3. The parenting time schedule should follow a stepped plan as follows:

a. Immediately: every Wednesday overnight (after school pick-up & Thursday morning school drop-off) and every second Saturday at 3pm to Monday morning school drop-off

b. After six months: ever Wednesday overnight (after school pick-up & Thursday morning school drop-off) and every Friday after school pick-up to Monday morning school drop-off

c. At one year mark: every Wednesday overnight (after school pick-up & Thursday morning school drop-off) and every second week Wednesday after school pick-up to Monday morning school drop-off

4. The resident parent will make day-to-day decisions. The resident parent will advise the other of the diagnosis and treatment plan when a child is ill.

5. If a child is ill in the morning and cannot attend school, the resident parent will inform the other parent as soon as possible. Unless mutually agreed to otherwise, the ill child should remain in the care of the parent who had care of the child in the morning. If it is a transition day, the ill child will be taken to an agreed upon exchange location of the other parent by the resident parent at the time that school normally ends.

6. If the school calls and asks that a child be picked up early, unless mutually agreed to otherwise, the party who is scheduled to get the children from the school that day will pick up the children from school and assume care as per the regular or holiday schedule.

7. HOLIDAY SCHEDULE: the following is recommended for holidays:

a. Christmas and New Year – In even-numbered years the children will reside with Mr. Degiorgio from December 24 (pick up at 11:00 a.m.) to December 25 at 11:00 a.m. The children will reside with Mrs. DeGiorgio from December 25 at 11:00 a.m. to December 26 at 11:00 a.m. The balance of the Christmas School Break will follow the regular parenting schedule.

b. March Break – Commencing in March 2021, in even-numbered years the children will reside with Mr. DeGiorgio commencing with the Monday (am) and ending on the Friday (pm) of the school break and will attach to his/her regular weekend. In odd-numbered years the children will reside with Mrs. DeGiorgio.

c. Summer Break – Summer commences on the Friday after the last day of school and ends on the Sunday before the return to school. Each party will have to one-week periods of uninterrupted time with the children during July and August, preferably attached to his/her regular weekend. Mrs. De.Giorgio will have her first choice of weeks in odd-numbered years, and Mr. DeGiorgio in even-numbered years. The party with the first choice will advise the other in writing by January 15 annually. The party with the second choice will advise the other in writing by January 22 annually. The balance of the summer school break will follow the regular schedule.

d. Statutory Holidays/Long Weekends/PA Days – The resident parent will have the additional 24 hours added to his/her regular weekend. This statutory holiday provision will not apply during the summer if the children are with either parent for his/her uninterrupted summer vacation time.

8. For legal purposes, Mrs. DeGiorgio’s home should be deemed the primary residence for the children. She should be entrusted to hold passports and other legal documents pertaining to the children. Mr. DeGiorgio should have the health cards in accordance with his medical decision-making.

9. Both parents should have photocopies of all legal documents pertaining to the children including passport and OHIP card.

10. The Final Agreement should name the children’s physician and dentist. Mrs. and Mr. DeGiorgio should restrict care to the medical/dental professional names in their agreement unless there is an emergency. Should additional professionals providing health care to the children (e.g. psychologists, social workers, occupational therapists, etc.) become involved, the parent who arranged for the service must share with the other parent their names, addresses, and phone number in OFW.

11. Additionally:

a. Both parents should be able to register the children for extra-curricular activities that fall within their respective parenting time schedule and keep the other parent informed of these.

b. Neither parent should register the children for extra-curricular activities that fall within the other parents’ parenting time.

c. Both parents should support any extracurricular activities in which the children are participating. The parent providing care should take the child(ren) to their activity. Both parents should inform the other about the extra-curricular activities in which they enroll the children and any related events and final performances so they may plan to attend.

d. Both parents should be able to volunteer at extracurricular activities and at the school although not at the same times.

e. The parent scheduled to provide care should celebrate the children’s birthday with them. However, the other parent should be provided some access even if this access is only for 30 minutes. Further this parent should be responsible for arranging the children’s birthdays parties with peers.

f. Mother’s Day and Father’s Day should be spent with the respective parent no matter who is providing care on that weekend. If access is required, it should be from Sunday at 10am until 4pm.

g. Telephone access between the children and the non-resident parent should be unrestricted though limited to one call per day. Calls should only be made by the non-residential parent between a pre-agreed upon time and should not last more than ten minutes. The children should be allowed privacy and be able to speak without prompting or involvement of the residential parent.

h. Both parents should ensure that the other parent has advance notice of all non-urgent appointments for the children and is provided with an update on the results within an agreed upon timeframe.

i. Both parents should be allowed to travel with the children.

j. When a parent travels without the children, that parent will provide a reliable telephone number to the resident parent in case of a child-related emergency or if the children want to contact the traveling parent.

k. With notice in writing, the parents may travel with the children during regular or holiday scheduled time with them.

l. The parents agree to sign a travel consent letter for the authorities and the parents will each have a notarized copy of this letter. In addition, the parents will provide full itinerary information (i.e., dates of departure and return, location, accommodation name and address, flight or train number) to the other parent at least 30 days before the departure.

m. The travelling parent will arrange for travel health insurance for the Children when travelling outside of Canada.

Therapy

12. It is recommended that Mr. DeGiorgio continue individual therapy focused on addressing his depression, past traumas and understanding how these have formed him and his parenting, and risk to negatively impact his parenting and children.

13. Mrs. DeGiorgio would benefit from continuing to work in individual therapy on addressing past traumas and understanding how these continue to affect her and her parenting today.

14. It is recommended that both Mrs. and Mr. DeGiorgio (though not together) register for and attend Kathryn D’Artois’ course, “Coparenting Effectively Post-Separation.” If this is not available, the “Coparenting Conflict Playbook,” developed by Bill Eddy is recommended.

15. It is recommended that a copy of this report be shared with Ms. Sally Bleecker (or other therapist that may be engaged to work with the children) who has been engaged to provide therapy to [O.] and [E.]. Ms. Bleecker should have the opportunity to consult with myself about this assessment and its findings. It is also recommended that the court put in place conditions to protect Ms. Bleecker and her work with the children, including that neither parent can unilaterally withdraw consent or stop facilitating the children attending therapy and that Ms. Bleecker has recourse to communicate with the court in regard to the parents’ compliance with the children’s therapy.

Communication

16. It is recommended that the parties continue to communicate regarding the children via their respective lawyers.

27In the end, it was Dr. Horvath’s opinion that although Jennifer and Nicola each carried significant childhood trauma and disfunction, both could provide adequate care to the girls. Her further opinion was that shared decision-making authority between these parents did not work, not only post-separation but during their marriage, and that both children expressed a desire to spend more time with Nicola.

Analysis

Decision-Making Authority

28This is an area that has been fraught with difficulties. Jennifer’s position is that Nicola has been obstructionist, and that he refuses to agree with certain services for the children out of a need to be oppositional to her or to maintain power and control. Jennifer’s experience of the marriage is one in which she saw Nicola in control and making all the decisions, and her trying desperately to please him. She has carried this experience into their post-separation relationship and seems not to be able to see that when Nicola is not agreeing with a certain decision, or when he withdraws his consent for a particular service, he may have legitimate reasons for doing so. This is particularly apparent with his withdrawal of the children from the services of Micheline Boivin in 2019.

29Nicola testified that he also experienced a period prior to 2021 during which Jennifer did not inform him about doctors being seen or appointments being made for the children. On cross-examination, when certain appointments were put to her, Jennifer admitted to not informing Nicola of them. These were troubling to Nicola as, in his view, it was imperative that any professional dealing with O. and E. receive both parents’ perspectives. This was only rectified, Nicola submits, after it was referenced in a court endorsement late in 2020.

30While Jennifer is diligent in seeking services for the children, she can sometimes be over invested or over involved in them, to the degree that she seeks to control how they are delivered. An example of this is with Ms. Nasim Mahin, a registered psychotherapist the parents agreed would provide counselling to the children in 2020. When Ms. Mahin determined it would be best not to see both children, but to refer one to another psychotherapist in her office, Jennifer did not agree with this decision and withdrew her consent. Jennifer reconsidered; however, Ms. Mahin ultimately withdrew from providing services to the children on the basis that she felt Jennifer would not respect her boundaries and would attempt to dictate the methodology and subject matter of her counselling. Another example of Jennifer’s tendency to dictate how services should be provided can be seen in her insistence that CAS workers (and Dr. Horvath) question her children in a certain way, despite their training in the forensic interviewing of children.

31Nicola has never been opposed to obtaining services for the children. However, he desires them to be necessary, warranted, and affordable. He agreed to certain services, including a psychological assessment by Ioana Lazarovici⁹ and a Visual Skills Assessment by Dr. Jon Wareham¹⁰ for O. After Ms. Lazaovici’s assessment, O. was diagnosed with ADHD and has been followed and managed by Dr. Christianah Owoeye. Both parents are compliant with O.’s treatment for her ADHD, though Nicola (after consultation with Dr. Oweye) will sometimes not give her medication on weekends, and for her epilepsy, of which she was diagnosed in May of 2019. Nicola was also agreeable to the children receiving counselling after Ms. Boivin, but the parties were not able to agree on who would be engaged for same, notwithstanding a process to select one having been outlined by Justice Kershman in his endorsement of November 22, 2019. As indicated above, Ms. Mahin was ultimately identified but declined to continue in September of 2020. At the time of Dr. Horvath’s assessment, the parties were contemplating having Sally Bleeker provide therapy, but that did not happen. More recently, Nicola has been open to the children receiving counselling, indeed he has been requesting it since early 2022, however, Jennifer is of the view that other services, such as a psychoeducational assessment for E. and occupational therapy for O., are more pressing.

32As indicated, Nicola withdrew his consent for the children to receive therapy from Ms. Boivin. This was after Jennifer refused to sign a letter that it would be safe-haven counselling for the children and not used for litigation purposes. He also filed a successful complaint with the professional college of Dr. Meier¹¹, Ms. Boivin’s husband, with whom she worked and who was originally engaged to do marital counselling with Nicola and Jennifer. Nicola has additionally been hesitant about or not agreed to other services, most notably vision therapy for O., on the basis that it may not be necessary and/or effectual and is expensive. Nevertheless, he has not stopped it from happening and continues to pay for it. Nicola’s preference at this point would be for the children to receive counselling regarding the social stresses to which they are subjected, and to receive tutoring as necessary. Additionally, although he recognizes and accepts that O. has ADHD, Nicola has also not agreed with Jennifer’s insistence that she be assessed for autism.

33Notably, Nicola has not seen or experienced some of the difficulties Jennifer has, or at least not to the degree that she has, in parenting O. Jennifer finds O. very challenging and rated her higher in terms of behavioural issues than both Nicola and her teacher in a questionnaire provided by Dr. Horvath. Jennifer’s position is that Nicola either does not know or downplays O.’s challenges. Indeed, she presented as being the only person who truly knows O. or what she needs. Nicola’s position is that Jennifer exaggerates some of the children’s issues and that they are consequently impacted by their mother’s anxiety.

34Jennifer has also suggested that Nicola’s motivation generally is to either make her believe or to demonstrate that she “is crazy”. She frequently accused Nicola of “gaslighting” her. Jennifer is not crazy; however, she does spend a great deal energy attempting to convince people that her version of events is the correct one. This is problematic in terms of identifying appropriate services for the children or making decisions for them. As Dr. Horvath noted in her assessment report¹²: “There is no doubt that she has been frightened for her children’s wellbeing, but this has also led to her having difficulty keeping perspective and not jumping to conclusions. Conclusions, that can easily become self-reinforcing in the interaction with anxious children caught in a divorce war.”

35Jennifer is also of the view that Nicola is outwardly charming and can present in such a way as to fool professionals, including Dr. Horvath, CAS workers and the police. She was additionally of the view that Ms. Mahin was “colluding” with Nicola or his counsel. Jennifer has little faith, moreover, that Nicola having passed a polygraph test in relation to the allegations of the use of sexual language by him with the children (with a view to grooming), was reliable. She continues to believe that Nicola presented or presents some risk of sexual harm to the children, notwithstanding the findings of Justice Mackinnon, more about which I will speak later, and that the evidence does not support that to be the case.

36While Nicola has struggled in relation to his relationship with Jennifer, and his role in the family, both pre and post separation, he does appear to have realistic expectations of O. and E., and he has worked diligently with his counsellor of several years, Mitra Rahimpour, to develop appropriate strategies to manage his own emotions and the care of the girls. Nicola is thoughtful about what services would be required to meet the needs of the children and which would also fall within the family’s budget. He is open to receiving suggestions or input from Jennifer, but he would like to be in the position to make decisions about O. and E.’s mental and physical health to ensure that the services obtained are necessary ones and that they are for the purpose of supporting the children rather than furthering Jennifer’s agenda or meeting her needs.

37In relation to her recommendation regarding parallel decision making, Dr. Horvath indicated at page 107 of her report:

On the other hand, neither parent can easily take the lead. Mr. DeGiorgio would seem emotionally depressed and burdened and his long-term resiliency can be in question. Mrs. DeGiorgio is too angry, blaming and vengeful and this has impacted her judgment and perspective.

38I agree that Jennifer’s judgment and perspective is impacted by her view and experience of Nicola. I am mindful that Section 16(4) of the Divorce Act requires me to consider the impact of any family violence on the ability of the person who engaged in it to care for and meet the needs of the children and the appropriateness of making an order which would require the parties to cooperate. The dynamics of the relationship in this case are troubling and complex; both Jennifer and Nicola have been significantly impacted by their childhood and familial histories. Dr. Horvath noted at page 107 of her report: “However, it is clear there was significant volatility and conflict during the marriage and that for her part, Mrs. DeGiorgio felt intimidated.” She noted, nevertheless, that her recommendations were made “in line with best practices in situations where family violence may be present.”

39Jennifer sought to have audio recordings of interactions between her and Nicola in August of 2016 (Tab 415 of Caselines) and March 23, 2019, (Tab 414 of Caselines) admitted as exhibits in the trial to demonstrate the alleged abusiveness of Nicola. Nicola objected to the admission of these two recordings on the basis that he does not dispute that the altercations took place and also admits that he lost his cool in the 2019 incident. He submits, however, that two audio recordings surreptitiously taken over two and a half years apart are not indicative of the parties’ interactions throughout the relationship, and are, therefore, not particularly relevant. He submits further that their probative value does not outweigh their prejudicial effects. Another recording was referenced by the parties, being of an undated interaction between Nicola and Jennifer’s mother, Debbie Macki (Tab 424 of Caselines). I declined to admit this recording on the basis that it was with a non-party who was not being called as a witness. I indicated to the parties that I would determine the admissibility of the other recordings as part of the trial decision.

40With respect to the issue of audio recordings, I adopt fully the reasoning of Justice Sherr in Hameed v. Hameed, 2006 ONCJ 274, wherein he indicated at paragraph 11: “Surreptitious recording of telephone calls by litigants in family law matters should be strongly discouraged. There is already enough conflict and mistrust in family law cases, without the parties worrying about whether the other is secretly taping them. In a constructive family law case, the professionals and the courts work with the family to rebuild trust so that the parties can learn to act together in the best interests of the child. Condoning the secret taping of the other would be destructive to this process.”

41In paragraph 56 of A.F. v. J.W., 2013 ONSC 4272, although agreeing with Justice Sherr in Hameed, Justice Harper stated: “However, in far too many cases, like the matter before me, the goal of building trust became masked by one party saying one thing in public and doing something very different when she thought the [sic] she was safe from scrutiny. The behaviour demonstrated in the recordings reveals that the mother’s outward compliance with my June 27, 2011, order was merely a façade”. In other words, Justice Harper had a compelling reason to admit the recordings in his case.

42In this case, I see no compelling reason to admit the recordings. There is no doubt from the evidence of the parties and the interviews of Dr. Horvath that the relationship was fraught with conflict. There is also no doubt that Jennifer felt intimidated by Nicola, and that she represented to certain professionals with whom she was involved (or they represented to her) that she was in an abusive relationship. Nicola, for his part, admitted to “losing it” on March 23, 2019, and indicated that his behaviour was inappropriate. The recordings in question do not, therefore, add anything to that narrative, nor do they assist the court in deciding what parenting regime is in the best interests of the children in 2022. The probative value of the recordings does not, moreover, outweigh the need for the strong discouragement against surreptitious recording referred to by Justice Sherr above. Indeed, Dr. Horvath railed against the practice and its excessively negative impact on children, stating at page 106 of her report:

I am very concerned about how much both parents have audio and video recorded their children with seeming unawareness of the messaging this sends and impact on the children. Although it is often justified as done out of self-defence in high conflict divorces, recording is deeply intrusive, violating private spaces, and its destructiveness is rarely acknowledged. Though both parents assert that they do not share with the children how they feel about the situation or other parent, children generally are perceptive and highly attuned to the emotional states and actions of their parents.

43With Dr. Horvath, I agree entirely. The recordings of the August 2016 and March 2019 exchanges are, therefore, not admitted.

44While Jennifer has been vigilant in advocating for and obtaining services for both children, I find that she has sometimes done so with a view to furthering her own cause. Examples of this are: 1) interfering with Ms. Mahin’s vision/plan for the children’s therapy; 2) involving Dr. Meier in making recommendations regarding custody and access without him having properly assessed the family; and 3) revisiting the sexual abuse allegations with Dr. Sadana after the CAS and police investigations were completed and files closed in July of 2020, resulting in yet more questioning of the children and Dr. Sadana’s referral to the Child Protection Team at the Children’s Hospital of Eastern Ontario, at which they were subject to intrusive physical examinations.

45I am swayed by Dr. Horvath’s opinion that this is a case in which an order of parallel decision-making authority is appropriate. Jennifer argues that it would not be appropriate due to decisions about O.’s mental health, specifically her learning disabilities and ADHD, potentially spilling into decisions about education. I disagree. Jennifer will certainly be capable of making the most appropriate decision about the children’s education based on the information available to her from O. and E.’s service providers, as ultimately determined by Nicola after receiving her input.

46There will, therefore, be an order as per recommendations 1 and 2 of Dr. Horvath’s report.

Parenting Time

47This is a case that has been characterized as “high conflict”. It has had the benefit of tremendous court resources. There are 29 endorsements of various judicial officers and one draft order of Justice Mackinnon contained in the trial record. The matter commenced in 2019 and was, unfortunately, disrupted by the pandemic, as were all court matters over this period. Nevertheless, sometime in 2020, Justice Mackinnon began to case manage it, and the parties have had countless appearances before her.

48In November of 2020, Justice Mackinnon heard a motion for the expansion of Nicola’s parenting time with the children, which was originally scheduled to be heard a year earlier. Before Nicola’s original motion could be heard, Jennifer brought an urgent motion seeking to reduce his parenting time. On April 8, 2020, Justice Mackinnon released an endorsement (J.D. v. N.D., 2020 ONSC 2448) in which she dealt very thoroughly with the allegations of sexual impropriety made by E. towards Nicola at that time. I do not intend to repeat the evidence herein; the statements which were rendered in the trial were the same as at the time of the motion. Mackinnon J. did not find E.’s statements “sufficiently reliable to establish her father as the person who has exposed her to inappropriate information about sexual matters that is well beyond her years and stage of development”. She dismissed Jennifer’s motion to eliminate overnight visits with Nicola. In her decision, Justice Mackinnon also referenced the assessment which was scheduled to commence in June as hopefully being helpful in the “extremely challenging case”.¹³

49When Nicola’s motion was finally before her in November of 2020, Justice Mackinnon had before her Dr. Horvath’s very recently received report. Indeed, the motion had been adjourned to a date by which it was anticipated the report would be available. In her endorsement (J.D. v. N.D., 2020 ONSC 7965), Justice Mackinnon again thoroughly addresses the allegations of sexual abuse, including those made subsequent to her April 2020 endorsement, this time with the addition of Dr. Horvath’s November 10, 2020, report. Justice Mackinnon indicated at paragraph 24: “Dr. Horvath’s clinical inquiries did not lead her to conclude that any of the allegations of sexual impropriety had occurred.” This was very much in keeping with Dr. Horvath’s testimony at trial. Justice Mackinnon went on in paragraphs 24 and 25 to state:

[24] …She considered the three primary ways that reports of child sexual abuse are investigated: medical examinations, forensic child interviews, and observations of children’s sexual behaviours. The medical examinations were normal. There were no reports form any of the multiple sources she had of either child displaying sexual behaviours incongruent with their age. The forensic interviews of the children were inconclusive.

[25] The children have been interviewed about these allegations by two different CAS workers at least three times. Both followed proper forensic interviewing procedures. The allegations were investigated by a detective in the Sexual Assault and Child Abuse unit of the Ottawa Police, experienced in investigations relating to child sexual abuse. A pediatrician, Dr. Sadana, also interviewed the children. They were seen for a medical assessment at the Division of Child and Youth Protection at the Children’s Hospital of Eastern Ontario (CHEO). Dr. Horvath also interviewed the children employing forensic child interviewing.

50Notwithstanding the flurry of allegations between February and July of 2020, none of which were ultimately substantiated, no further sexual abuse allegations have since come forward. In her endorsement of November 17, 2020, Justice Mackinnon found: “After CAS and police investigations, and at the conclusion of an in depth assessment by the clinical psychologist jointly retained by the parents, the allegations of sexual abuse have not been proven on a balance of probabilities.” Having now heard the evidence of Jennifer, her aunt, Valerie Mackett, Nicola, the CAS child protection workers, Denyse Umutoni and Gavin Fletcher, and Detective Riopel of the Ottawa Police Service, as well as that of Dr. Horvath, I too find that the allegations of the use of sexual language, sexual touching or sexual interference by Nicola towards the children have not been proven on a balance of probabilities.

51At paragraph 45 of her endorsement of November 17, 2020, Justice Mackinnon stated: “But for the allegations of sexual impropriety with the children, the father’s parenting time would have been increased by now.” This remains true today. Dr. Horvath recommended a graduated increase of the children’s parenting time with Nicola to ultimately get to every Wednesday overnight to Thursday morning, and every second week Wednesday from after school to Monday morning at school. Nicola seeks a 2/2/5/5 schedule, reasoning that in such the children will not be too long out of either parent’s care. Jennifer seeks to maintain the status quo, though her application seeks only daytime parenting time for Nicola.

52Section 16 of the Divorce Act dictates that the court take into consideration only the best interests of the children when making a parenting order. O. and E. have been in the primary care of Jennifer, not by Nicola’s choice, since separation, with limited, albeit gradually expanding, parenting time with him. The evidence of both parties was that Nicola worked very long hours during the marriage; indeed, it was his method of both contributing to the marriage by being a reliable breadwinner and of coping with the dysfunction of the relationship. Jennifer has consequently more consistently provided care to the children.

53Since Justice Mackinnon’s endorsement of November 17, 2020, the children have had Wednesday overnight and weekend time with Nicola, originally from Saturday to Monday, and then extending to Friday to Monday. This is their norm, and they are accustomed to a schedule anchored around Wednesdays.

54Additionally, exchanges have at times been difficult. The level of animosity in this case dictates that the fewer the exchanges and the less face to face contact these parents have, the better.

55Finally, a schedule is required which allows one or other of the parents to have the children in extra-curricular activities during their parenting time, if desired.

56For these reasons, I find the recommendation of Dr. Horvath to be a sound one. First, it simply expands upon the already existing Wednesday exchange, which occurs at school for the most part. Adding a Wednesday to Monday morning every second week makes great sense in terms of the needs and best interests of the children. It will increase Nicolas’s parenting time with O. and E. without unduly disrupting their routine. Second, in contrast to Nicola’s proposal, it minimizes exchanges. Third, it permits for the children to engage in activities with one parent on a consistent basis. Given the expressed wishes of these children to see their father more, as well as his improved ability to provide care to them, as witnessed by CAS workers and Dr. Horvath, Jennifer’s proposal is neither realistic nor in keeping with their best interests.

57There shall, therefore, be an order commencing immediately expanding Nicola’s parenting time as per paragraph 3. c. of Dr. Horvath’s recommendations on page 109 of her report. 23.

58The parties had previously consented to many of the other recommendations of Dr. Horvath, and a temporary order was made on consent in relation to them on November 17, 2020. They are contained in paragraph 65, items a. through n. of Justice Mackinnon’s endorsement and with the exception of item n., they shall also be incorporated into this final order. I do not agree with the recommendation of Dr. Horvath that the parties continue to communicate through their counsel. This is expensive and unrealistic in the context of a final order. Although they struggle at times, the evidence demonstrates that the parties have been able to communicate through Our Family Wizard, and they shall continue to do so, but for emergencies, when they shall be permitted to communicate by telephone or text.

59Additionally, the parties generally agree about the sharing of holiday time, though the wording provided by them in their draft orders, which both have provided to the court, differs. As per my above findings, the below is an amalgamation of the contents of those draft orders, the consent provisions of Justice Mackinnon’s order dated November 17, 2020, and the recommendations of Dr. Horvath.

ORDER

60For the above reasons, there shall be a final order pursuant to the Divorce Act as follows:

Decision-Making Responsibility

1. The Applicant and the Respondent shall have parallel legal decision-making for their children, O. V. F. D., born September **, 2013 and E. J. D., born October **, 2015 such that:

(a) The Respondent shall make final decisions regarding the children’s physical and mental health;

(b) The Applicant shall make final decisions regarding the children’s dental health and education.

2. Both parties shall have decision-making for extra-curricular activities during their respective parenting time.

Parenting Time

3. Commencing November 28, 2022, the Respondent shall have parenting time every Wednesday overnight from after school pick-up to Thursday morning at school drop-off, and every second week from Wednesday after school pick-up to Monday morning school drop-off. If the Respondent’s regular weekend with the girls occurred from November 25 to 28, 2022, his first Wednesday to Monday parenting time will commence on December 7, 2022. If his regular weekend with the girls occurred November 18 to 20, 2022, his first Wednesday to Monday parenting time will commence on November 30, 2022.

4. The party exercising parenting time at the relevant time shall make the day-to-day decisions affecting the children’s welfare. In medical emergencies concerning the children, the party exercising parenting time shall notify the other party of the emergency as soon as it is possible via a phone call or text message.

5. If the child is not in school, the exchanges shall take place at 4:00 p.m. and 9:00 a.m. at a mutually agreed-upon location.

6. If a child is ill in the morning and cannot attend school, the resident parent shall inform the other parent as soon as possible. Unless mutually agreed to otherwise, the ill child shall remain in the care of the parent who had care of the child in the morning. If it is an exchange day, the ill child shall be taken to an agreed upon exchange location of the other parent by the resident parent at 4:00 p.m..

7. If the school calls and asks that a child be picked up early, unless mutually agreed to otherwise, the party who is scheduled to get the children from the school that day shall pick up the children from school and assume care as per the regular or holiday schedule.

8. The parties shall have the following holiday schedule, which shall supersede the regular schedule if there is a conflict:

(a) Christmas and New Year: In even-numbered years the children shall reside with the Respondent from December 24 at 11:00 a.m. or such other time as is agreed upon by the parties in writing to December 25 at 11:00 a.m. or such other time as is agreed upon by the parties in writing. The children shall reside with the Applicant from December 25 at 11:00 a.m. or such other time as is agreed upon by the parties in writing to December 26 at 11:00 a.m. or such other time as is agreed upon by the parties in writing. The balance of the Christmas School Break shall follow the regular parenting schedule.

(b) March Break: Commencing in March 2022, in even-numbered years the children shall reside with the Respondent commencing with the Monday at 9:00 a.m. and ending on the Friday at 4:00 p.m. of the school break and shall attach to his/her regular weekend. In odd-numbered years the children shall reside with the Applicant.

(c) Summer Break: Summer commences on the Friday after the last day of school and ends on the Sunday before the return to school. Each party shall have two one-week periods of uninterrupted time with the children during July and August, preferably attached to his/her regular weekend. The Applicant shall have her first choice of weeks in odd- numbered years, and the Respondent in even-numbered years. The party with the first choice shall advise the other in writing by January 15 annually. The party with the second choice shall advise the other in writing by January 22 annually. The balance of the summer school break shall follow the regular schedule.

(d) Statutory Holidays / Long Weekends / PA Days: The resident parent shall have the additional 24 hours added to his/her regular weekend. This statutory holiday provision shall not apply during the summer if the children are with either parent for his/her uninterrupted summer vacation time.

(e) Children’s Birthdays: The parent scheduled to provide care shall celebrate the children’s birthdays with them. However, access shall be provided to the other parent, which shall be a minimum of 30 minutes. The resident parent shall be responsible for arranging the children’s birthdays parties with peers.

(f) Mother’s Day and Father’s Day: Mother’s Day and Father’s Day shall be spent with the respective parent no matter who is providing care on that weekend. If parenting time is required, it shall be from Sunday at 10am until 4pm.

9. Telephone access between the children and the non-resident parent shall be unrestricted though limited to one call per day. Calls shall only be made by the non-residential parent between a pre-agreed upon time and shall not last more than ten minutes. The children shall be allowed privacy and be able to speak without prompting or involvement of the residential parent.

Legal Documents

10. For legal purposes, the Applicant’s home shall be deemed the primary residence for the children. The Applicant shall be entrusted to hold passports and other legal documents pertaining to the children.

11. The Respondent shall have the health cards in accordance with his medical decision-making.

12. Both parents should have photocopies of all legal documents pertaining to the children including passport and OHIP card.

13. The parent who has an original document shall be responsible for its renewal and shall prepare its renewal application. The other parent shall promptly sign any documents associated with the renewal application.

Children’s Appointments

14. The children’s professionals shall not be changed unless the parties agree or court orders otherwise.

15. Should additional professionals providing health care to the children (e.g., psychologists, social workers, occupational therapists, etc.) become involved, the parent who arranged for the service must share with the other parent their names, addresses, and phone numbers in Our Family Wizard.

16. Both parents shall ensure that the other parent has advance notice of all non-urgent appointments for the children and is provided with an update on the results within an agreed upon timeframe.

Extracurricular Activities

17. Regarding the extracurricular activities for the children:

(a) Both parents shall be able to register the children for extra-curricular activities that fall within their respective parenting time schedule and keep the other parent informed of these.

(b) Neither parent shall register the children for extra-curricular activities that fall within the other parents’ parenting time.

(c) Both parents shall support any extracurricular activities in which the children are participating. The parent providing care shall take the child(ren) to their activity. Both parents shall inform the other about the extra-curricular activities in which they enroll the children and any related events and final performances so they may plan to attend.

(d) Both parents shall be able to volunteer at extracurricular activities and at the school although not at the same times.

Travel

18. Both parents shall be allowed to travel with the children.

19. When a parent travels without the children, that parent shall provide a reliable telephone number to the resident parent in case of a child-related emergency or if the children want to contact the traveling parent.

20. With notice in writing, the parents may travel with the children during their regular or holiday scheduled time with them.

21. In the event of an international trip, the non-traveling parent shall sign a travel consent letter for the authorities in accordance with the Passport Canada specifications. The parents shall each have a notarized copy of this letter. In addition, the parents will provide full itinerary information (i.e., dates of departure and return, location, accommodation name and address, flight or train number) to the other parent at least 30 days before the departure.

22. The travelling parent shall arrange for travel health insurance for the children when travelling outside of Canada.

Therapy

23. The Respondent shall continue individual therapy focused on addressing his depression, past traumas and understanding how these have formed him and his parenting, and risk to negatively impact his parenting and children.

24. The Applicant shall continue individual therapy on addressing past traumas and understanding how these continue to affect her and her parenting today.

25. A copy of the report of Dr. Horvath and Olivia’s Psycho-Educational Assessment Report shall be shared with any therapist that may be engaged to work with the children.

26. Neither parent may unilaterally withdraw consent or stop facilitating the children attending therapy. If this matter is in court, a therapist may have recourse to communicate with the court in regard to the parents’ compliance with the children’s therapy.

Communication

27. The parties shall continue communicating through Our Family Wizard. In emergencies or when there are time-sensitive issues, the parties may communicate by text or telephone.

Costs

61If the parties are unable to agree on the liability and quantum of costs for the trial, I will accept written submissions not exceeding three (3) pages (double spaced, 12-point font), in addition to Bill of Costs and Offers to Settle, in accordance with the following timelines:

• The Applicant/Mother to serve and file her submissions by December 16, 2022;

• The Respondent/Father to serve and file his submissions by December 30, 2022;

• The Applicant/Mother to serve and file her reply, if any, by January 13, 2023.

Engelking J.

Footnotes

1. 1Trial Exhibit #122, Custody & Access Report of Dr. Catherine Horvath dated November 10, 2020
2. 2Ibid., p.61
3. 3Ibid., pp. 61-62
4. 4Ibid., p. 62
5. 5Ibid., p.53
6. 6Ibid., p.105
7. 7Ibid.
8. 8Ibid., p.105
9. 9Trial Exhibit #1, Psychological Assessment Report of Ioana Lazarovici dated July 13, 2021
10. 10Trial Exhibit #3, Report of Dr. Jon Wareham dated April 23, 2021
11. 11On November 25, 2021, the College of Psychologists of Ontario found Dr. Meier to have engaged in professional misconduct. Trial Exhibit #106, Findings of Practice Committee from November 25, 2021, hearing
12. 12Ibid., p.106 - 107
13. 13J.D. v. N.D., 2020 ONSC 2448, paragraph 74