COURT FILE NO.: FS-18-03302

DATE: 20221216

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

BF

Applicant

– and –

AN

Respondent

– and –

IF

Added Respondent

– and –

BOF

Added Respondent

– and –

Office of the Children’s Lawyer

Absent

In Person

In Person

Anthony Macri, for the added Respondent

Jane Long, for the Office of the Children’s Lawyer

HEARD: September 27^th, 29^th, October 3^rd, 4^th, 6^th, 7^th, 11^th, 12^th, 13^th, 14^th, 17^th, 18^th, 19^th, 21^st, 24^th, 25^th, 26^th, 27^th, 28^th, and November 24^th, 2022

REASONS FOR DECISION

M. Kraft, J.

Overview

[1] E. is an innocent five year old girl who sufffered a catostrophic injury at the hands of her mother, BF. BF was sentenced to life in prison for the attempted murder of E. and her own mother, IF, on September 7, 2022 (the “insulin overdose”). As a result of BF’s attack, E. is now permanently disabled.

[2] E. is in the primary care of her father, AN. AN and E. live with the paternal grandparents in Hamilton.[^1]

[3] There has been an overwhelming amount of conflict between the maternal grandparents, IF and BOF, and AN and his parents, which has caused significant anxiety, stress, commotion and grief.

[4] This trial is not about whether BF injected E. with insulin and it is not about whether AN should have decision-making responsibility or primary care of E. The issues at the trial are narrow:

(1) Is it in E's best interests to have contact with IF and/or BOF?

(2) Is it in E.’s best interests for IF and/or BOF to have access to medical information about her?

(3) Should a permanent order restraining IF and BOF from having direct or indirect contact with AN be granted?

[5] In her closing submissions, IF took the position that this court must assess the merits of the person who seeks to be granted primary care of E. and determine who is the better candidate to carry out that duty. IF is entirely incorrect about the issues before this court. IF and BOF abandoned their claims for decision-making and primary care of E. prior to the trial thereby conceding that AN has sole decision-making responsibility for E. and primary care of her.

[6] The litigation history in this matter is lengthy and complicated.[^2] AN issued an application in the Ontario Court of Justice for parenting time with E. which was stayed when BF issued this application. At one point, the Children’s Aid Society of Toronto (“CAST”) became involved and protection proceedings were commenced. When the protection hearing took place in the OCJ, the SCJ proceeding was stayed. IF and BOF sought to be added to the proceedings brought by the CAST and were joined as parties to the disposition only as to E.’s temporary care. IF and BOF then commenced separate Superior Court of Justice applications seeking decision-making responsibility and primary residence of E. pursuant to the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”). When the matter came before Stevenson, J. on October 27, 2019, she ordered the maternal grandparents’ claims to be joined with BF’s divorce proceeding. BF did not participate in this trial since she was convicted in June 2022 and is incarcerated. BF’s counsel brought a motion to get off the record at the beginning of the trial and confirmed that BF did not want to participate in the trial. Just prior to the trial, IF and BOF abandoned their claim for decision-making responsibility and primary residence of E.

[7] IF was self-represented at trial. BOF was represented by Anthony Macri. AN was self-represented at trial. The Office of the Children’s Lawyer (“OCL”), appointed Jane Long to be E.’s lawyer. BOF asked to be treated separately by this court from IF, even though they are married.

[8] As a self-represented litigant in an emotionally charged case, IF faced significant challenges. I afforded her significant latitude and tried to help her focus on the type of information I need to determine whether it is in E.'s best interest to have contact with IF or to allow IF to have access to E's medical records. IF instead focussed on who is to blame for the past adult conflicts. It is clear IF does not believe that AN is a changed person, or that it is in E.’s best interests to be in AN’s primary care and/or that AN is not doing enough to focus on E.’s special needs. However, those issues were not before me to determine.

[9] At trial, IF took the position that it is in E.’s best interests that she have contact with her and have access to her medical records because she was integrally involved as one of her caregivers until the insulin overdose; she is professionally trained to look after children with special needs; E. responds well to her; and she will be able to preserve E.’s Serbian culture, religion, and language. IF seeks information about E.’s medical needs, current medical prognosis and ongoing proposed treatment. IF testified that if she had access to E.’s medical records she would engage the services of other health professionals to improve E.’s condition and care since she is not happy with the medical care E. receives from the doctors and health-professionals arranged by AN.

[10] BOF takes the position that it is in E.’s best interests to have contact with him because he and E. have an existing bond arising from the fact that he was integrally involved with her care until the insulin overdose. He believes E. has benefitted from his contact with her since the overdose and that she is particularly responsive to him. BOF seeks contact with E. on alternate weekends, for one hour. He proposes that AN choose the location of the contact; AN transport E. to the visit; and the contact be supervised, at his sole cost. BOF is prepared to agree to conditions to his contact, including that he will not ask for any device to be removed from E.; he will not discuss BF with E.; it can be at AN’s discretion whether he wishes to share medical information with him; and AN can unilaterally suspend his contact with E. if he believes that she has been harmed, without having to return to court.

[11] AN seeks a non-contact order for both IF and BOF with E. and that neither of them have access to E.’s medical records because it is not in E.’s best interests. AN also seeks a restraining order against both IF and BOF. AN argues that IF and BOF, both separately and together, since the insulin overdose have engaged in inappropriate conduct criticizing, accusing and attacking him, his parents, the medical team looking after E. at McMaster Children’s Hospital and the Personal Support Workers (“PSWs”) who assist in E.’s care in his home. AN argues that IF and BOF have undermined the care he, the caregivers and health professionals provide to E. and in doing so, have been responsible for E. being exposed to significant family conflict, which is detrimental to her. AN asks this court to consider the violence to which E. has been exposed at the hands of her mother and potentially her grandmother, IF, and protect E. Further, AN testified that his parents will no longer consent to IF and/or BOF visiting E. in their home because of the many allegations the maternal grandparents have made against him and them, particularly his mother, AA. AN submits he is doing his best to look after a severely disabled child, and he does not have the capacity to deal with the conflict and havoc IF and BOF continue to wreak. If the court is inclined to grant BOF contact with E., AN asks that the visits be limited to 1 hour each month, at a supervised access centre.

[12] The level of conflict between the parties is so overwhelming that the OCL and the CAST do not support an order that grants either IF or BOF any contact with E. or access to her medical reports. Both the OCL and the CAST believe that such contact and access to information is not in E.’s best interests and will inevitably result in E., AN and his family unit experiencing more upset, commotion and grief, which will be harmful to E.

Background

[13] BF and AN met in 2015. They secretly became married in September 2016. Neither of their parents knew they were married.

[14] They moved in together in March 2017, once BF had become pregnant with E.

[15] BF and AN’s relationship was tumultuous and dysfunctional. AN described it as “dark.” Between 2016 and 2018, AN sent BF many texts threatening to harm her, calling her derogatory names and threatening to kill himself. He sent her disturbing pictures of dead people and people with dismembered body parts. AN made many racist comments to BF in these texts and BF responded in kind. All of them were made exhibits in this trial.[^3]

[16] E. was born on [...], 2017. She was a healthy baby who met all of her milestones.

[17] BF and AN separated on January 14, 2018, when E. was three months old. BF and E. moved to the maternal grandparents’ home in Etobicoke. AN moved into his parents’ home in Hamilton.

[18] BOF and IF looked after E. when BF was at work full-time. They were integrally involved in all aspects of E.’s care from 3 months of age until the insulin overdose, when she was 18 months old.

[19] AN was permitted to see E. on one occasion in February 2018. After that, BF refused to allow him parenting time because of the threatening and disturbing threats he had made. As a result, AN started an application in the OCJ for parenting time.[^4] Instead of answering the OCJ application, BF started an application in the SCJ on June 20, 2018.

[20] The CAST became involved with the family in February[^5] and May[^6] of 2018, as a result of AN’s threats to BF. They closed their investigation because E. was safe in the care of BF and the maternal grandparents and AN was not having any parenting time with E.

[21] AN was charged with assault, uttering death threats, threatening bodily harm and criminal harassment of BF on May 14, 2018. He pled guilty to uttering death threats on November 1, 2018, and served an intermittent sentence over 27 days.

[22] AN testified that he changed his ways once he was charged. He recognized he needed therapeutic assistance and engaged in therapy; self-learning; and began to take parenting courses so he could be an active parent to E.[^7]

[23] On May 2, 2019, AN brought a motion in this court for parenting time with E.[^8] On June 3, 2019, Gilmore, J. released her decision granting AN supervised parenting time with E. (the “Gilmore Order”).[^9] BF was ordered to pay AN $10,000 costs in the Gilmore Order. These costs were not paid and remain outstanding.

[24] BF was extremely upset by Justice Gilmore’s order. She feared for E.’s safety and was convinced that AN would follow through on a threat he had made to abduct E. to Dubai.

[25] BF appealed the Gilmore Order and brought a motion to stay the order pending the appeal. Her motion was returnable on June 14, 2019.

[26] Over an 8-day period, between June 3, 2019 (when the Gilmore Order was released) and June 11, 2022, BF wrote to various people in positions of authority in Canada, including the Prime Minister; the head of the RCMP; the Toronto Police Service; the Minister of Justice; the Ontario Attorney General; the Minister of Immigration; The Blue Heart Campaign against Human Trafficking; the United Nations Office against Human Trafficking in Vienna; and the Canadian Judicial Council. In these e-mails, BF complained about mistakes Justice Gilmore had made in her decision and, in particular, the fact that AN had been granted access to E. under the Gilmore Order. BF begged for assistance in these letters to protect E. from being abducted to Dubai by AN and/or from undergoing female genital mutilation at AN’s direction.

[27] I find that these letters establish that BF was desperate to ensure that E. not have the supervised parenting time with AN as set out in the Gilmore Order.

[28] After the Gilmore Order was released, BF’s lawyer, Marlene Kazman, reported protection concerns about AN to the CAST. The CAST opened a file that required them to investigate the matter within seven days.[^10]

[29] BF served AN on June 11, 2019, with her Notice of Appeal and motion to stay the Gilmore Order pending the appeal.

[30] On June 11, 2019, BOF flew to Sarajevo to visit his ill father. When he landed on June 12, 2022, he tried to call the house to speak with IF and/or BF. He was not able to contact either of them. He contacted a family friend, Vojislav (“Joseph”) Kasolovich, and asked him to go to the apartment and check on IF, BF and E. Mr. Kasolovich entered the apartment and found IF, BF and E. unconscious and unresponsive in the principal bedroom. He called 911. This was 3 days before AN was scheduled to have his first supervised parenting visit with E. and 2 days before BF’s motion to stay the Gilmore order was to be heard.

[31] E. had been injected nine times with high levels of insulin, which led to her suffering significant long-term brain damage. E. has an acquired brain injury secondary to hypoglycemia, which has led to her being diagnosed with Cerebral Palsy, having spastic quadriplegia, cortical blindness, epilepsy and severe global disabilities.[^11] E. cannot speak or see. She can only be fed by way of a G-tube. She cannot sit or stand on her own. She has no head or neck control. She has frequent seizures. She suffers from muscle atrophy and will soon require a hip replacement. She has hypertonia which causes a high level of muscle stiffness. She has required and will continue to require intensive medical support on a 24-hour, 7-day-a-week basis for the remainder of her life.

[32] IF and BF had also been injected with insulin. IF was in and out of consciousness for several days.

[33] E. was taken to Sick Kids Hospital. IF and BF were taken to Trillium Health Partners in Mississauga.

[34] The Toronto Police and CAST conducted a joint investigation. On June 12, 2019, the CAST contacted AN to advise him of the unfortunate news about E. and he was asked to come to Sick Kids Hospital. At that time, BF and IF were in the hospital at Trillium Health Partners and BOF was out of the country. AN was the only adult available for E. The CAST treated AN like the custodial parent, even though he had not seen E. in sixteen months at the time of the insulin overdose (from February 3, 2018 to June 12, 2019) and had only been granted supervised parenting time under the Gilmore Order.

[35] On June 14, 2019, BF was charged with the attempted murder of E. and her mother, IF, along with aggravated assault to both E. and IF. From the time she was released from the hospital, BF has been held at the Vanier Detention Centre since her arrest.

[36] On June 15, 2019, IF’s chart at Trillium indicated that Dr. Anant Murthy noted that she told him she had injected herself and E. on BF’s instructions, as a murder suicide. IF denies that she made this comment to Dr. Murthy and insists it was not possible because she was not conscious on June 15, 2019. IF was placed on a Form 1 on June 15, 2019 for possible suicidal and homicidal ideation. On June 19, 2019, IF was released from the hospital.

[37] On June 29, 2022, BF was found guilty by a jury for attempting to murder E. and IF and of aggravated assault of E. On September 7, 2022, she was sentenced to life in prison. The evidence at the criminal trial was that BF planned a murder-suicide of herself, her mother and E. to prevent AN from having supervised parenting time with E. in accordance with the Gilmore Order. BF was a surgical nurse employed by Trillium Health Partners at the time. The insulin pens used to inject E. came from Trillium. A suicide note was found, addressed to “Dear Canada”, expressing unhappiness with the family legal system. Had a family friend not been asked by BOF to check on them, all three of them would have died. BF was found not guilty of the aggravated assault of IF because the jury was not convinced that IF did not either inject herself or allow BF to inject her with insulin with the intention of causing her death.

[38] Throughout the trial before me, IF was clear that she does not believe BF is responsible for the insulin overdose suffered by E. Instead, she submits that she, BF and E. were victims of a crime that was perpetrated by a third party directed by AN.

[39] As a result of the insulin overdose, E. was in the hospital for 6 months; two months at Sick Kids Hospital and then four months in the inpatient Brain Injury Rehab program at Holland Bloorview Rehabilitation Centre (“Holland Bloorview”). AN spent day and night at Sick Kids. BOF visited E. daily at Sick Kids. Once IF was released from Trillium Hospital, she and BOF visited E. daily from 9:00 a.m. to 1:30 p.m. The paternal grandparents visited frequently as well. When E. was transferred to Holland Bloorview, AN organized a schedule for E.’s care. IF and BOF looked after E. on Mondays and Wednesdays from 3:00 p.m. until she went to sleep. On Fridays, IF would sleep over at Holland Bloorview until noon on Saturdays. AN’s mother would look after E. on Tuesdays and on Saturday from noon to Sunday. At all other times, AN looked after E. and stayed at the hospital with her.

[40] The CAST closed its file in August 2019 because it was satisfied about the care AN was providing for E.

[41] In October 2019, AN brought a motion in the SCJ to amend the Gilmore Order seeking temporary custody of E. IF and BOF each commenced separate applications in the SCJ seeking custody of E. Given the abusive nature of AN and BF’s relationship, IF and BOF did not think it was in E.’s best interests to be in AN’s primary care.

[42] In October 2019, Stevenson, J. ordered that the maternal grandparents’ two SCJ actions be joined with BF’s action;[^12] that a full-day long motion relating to the temporary custody and access of E. be heard on November 25, 2019; the involvement of the OCL be requested; and the CAST attend AN’s motion to give evidence as to their involvement post the insulin overdose.

[43] In October 2019, the CAST reopened its file because of conflict that had arisen between AN and the maternal grandparents and the imminent release of E. from Holland Bloorview. The CAST commenced its protection application on November 4, 2019 and on a without prejudice temporary basis, Paulseth, J. placed E. in AN’s temporary care, with access to any other person at the discretion of the CAST. The OCL was also appointed on behalf of E.

[44] In December 2019, E. was released from Holland Bloorview into the care of her father. AN was living with the paternal grandparents in Hamilton.

[45] The OCJ scheduled a temporary care and custody hearing in December 2019. The maternal grandparents sought party status at that appearance. It was agreed that IF and BOF would be made parties for the purpose of the temporary care and custody motion only and the request to be added as parties would be argued at a later date. The SCJ proceeding was stayed while the protection proceedings were being dealt with in the OCJ.

[46] Sherr, J. heard the temporary care and custody hearing in the OCJ on February 3, 2020. He commented that the CAST should have brought its application much earlier than it did because AN, who at the time of the insulin overdose, had only been granted supervised access to E. ended up being treated by the hospital as the custodial parent of E. while the maternal grandparents were excluded from decisions being made about E. when she had been in their care up until the insulin overdose. This is relevant because Sherr, J. found that the court would not prioritize AN’s claims over the maternal grandparents claims under s.94(2) of the Child and Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1, and instead, the court would assess what temporary order is in E.’s best interests.

[47] On February 6, 2020, Sherr, J. made an order placing E. in the temporary care and custody of AN. IF and BOF were granted supervised access to E. at AN’s parents’ home, subject to the discretion of the CAST, and access to medical information about E. to be provided to them through the CAST. The maternal grandparents’ contact with E. was generally supervised by Kelly Rose-Hurst of the CAST and by an access supervision centre.[^13]

[48] In July 2020, AN brought a motion in the SCJ to obtain a mirror order of the Sherr, J. order regarding E. and to lift the stay of the proceedings, granted in November 2019, when the CAST re-initiated its protection application. On August 12, 2010, Shore, J. granted the mirroring order in the SCJ.

[49] With the onset of the COVID-19 pandemic, IF and BOF’s in-person contact with E. was suspended for a period of time and, when the second wave of COVID-19 occurred, their visits with E. were limited to outside time, physically distanced, given E.’s vulnerabilities.

[50] From the time E. was placed in AN’s primary care, IF and BOF have expressed concern about E.’s medical condition and care. They argued that AN was a threat to E.; that he was a drug user; and that he could harm E. IF, in particular, made unfounded allegations that AN is neglectful in his care of E.; the doctors looking after E. from McMaster Children’s Hospital want to poison E. and/or harvest E.’s organs for sale; and AN and his parents are part of a larger conspiracy to keep E. away from BF. IF has reported many of the doctors involved in E.’s care to the authorities. In fact, in her closing submissions, IF confirmed that she has been actively trying to prove that AN is neglecting E. and not properly caring for her which is why she began in 2020 to take pictures of E. during her supervised visits.

[51] Problems began to arise during IF and BOF’ visits with E. at AN’s home. The CAST became involved and set conditions for the visits to continue, namely,

i. IF and BOF were not to ask the PSWs to remove E.’s braces;

ii. IF and BOF were not to massage E.;

iii. IF and BOF were not to ask for E. to be moved during the visit; and/or

iv. IF was asked to leave the room if she was crying.

[52] Confrontations ensued between IF and the PSWs looking after E. IF accused them of not attending to E.’s needs; not helping E. when she was in pain; and torturing E. IF and BOF were given direction by the PSWs of ways to engage with E. that may be more productive, and about E.’s non-verbal cues to look for, so IF and BOF could be more attuned with her needs and temperament. IF and BOF were not receptive to any of these suggestions.

[53] The CAST tried to encourage IF and BOF to have direct communications with AN to demonstrate that their relationship could improve. Despite being told several times that they were permitted to have this direct contact through e-mail and to copy Ms. Rose-Hurst, the maternal grandparents continued to insist they were not permitted to do so and refused to engage in e-mail communication with AN.

[54] In April 2022, IF distributed pictures of E. to various authorities and agencies in complaints she was making about the doctors caring for E. and complaints about AN. These photographs were taken by IF during her visits with E. The CAST then told the maternal grandparents that photographs of E. could not be taken during their visits. IF did not follow this direction.

[55] Ultimately, the CAST suspended IF and BOF’s contact with E. on April 28, 2022, which was later made part of an order of Horkins, J., dated June 9, 2022.

The Legal Framework

[56] IF and BOF have sought access to E. and access to medical information about her under the CLRA. When the Divorce Act amendments came into force on March 1, 2021, the term “contact order” was defined as an application by a person other than a spouse, could make an order between that person and a child of the marriage: Divorce Act, R.S.C. 1985, c. 3 (2^nd Supp), s. 16.5(1).

[57] Since the court joined the maternal grandparents’ applications with BF’s divorce application, in which she sought corollary relief under the Divorce Act, it makes sense that the relief being sought by IF and BOF, if granted, be made pursuant to the Divorce Act.

[58] When making any parenting decision, the only consideration is the best interests of the child, not the interests or wishes of the parents: Divorce Act, s. 16(1).

[59] IF and BOF rely on the line of grandparent access cases decided under the CLRA to support them in obtaining contact with E. even though AN does not support this contact: Chapman v. Chapman, 201 D.L.R. (4th) 443, 2001 24015 (Ont. C.A.), at para. 19.

[60] While these cases were not decided under the Divorce Act, they are helpful as they establish the two-part test which has evolved in the case law as to when grandparent access should be ordered in the face of parental opposition. Given that the Divorce Act amendments now mirror the best interest factors that have been enumerated in the CLRA, I find that grandparent access decisions under the CLRA are applicable in cases where contact is being sought by grandparents under the Divorce Act.

Should BOF be Treated Differently than IF?

[61] BOF has specifically chosen to separate himself from his wife in this trial. He testified that he cannot control IF’s reactions. He appears to recognize that IF’s approach and reaction to this tragedy has not been helpful to their relationship with E. BOF has asked the court to treat him separately from IF in determining whether it is in E.’s best interests to have contact with him and/or whether he ought to be granted access to medical information about her. In asking the court to treat him separately from IF, BOF acknowledged that some of IF’s behaviour has been inappropriate, such as some of the letters she wrote to the Health Minister and the RCMP accusing AN and the doctors of trying to harm E. He argued that her conduct should be seen as “lashing out”, given that she and BOF were caring for E. for 18 months, AN had threatened and assaulted their daughter and was then given primary care of E.

[62] AN and the OCL submit that BOF and IF are inextricably linked and that they should not be treated separately by the court. AN, in particular, submits that BOF and IF should be treated the same because:

i. they have each played a big role in widening the rift between the maternal grandparents and the paternal family;

ii. BOF has supported his wife throughout these proceedings and has not shown that he is willing to work with AN or his family in a child-focussed manner for E;

iii. if BOF is granted contact with E. and/or access to medical information about E., he will be a vessel of information to IF, and she has clearly demonstrated an inability to place E.’s best interests ahead of her own;

iv. although the people who have been present at the maternal grandparents’ visits with E. agree that IF is seen as being the more difficult and dysregulated spouse,[^14] BOF participated in IF’s combative approach to their visits with E.;

v. BOF’s name was signed on all correspondence IF sent to the CAST and OCL; and

vi. BOF never tried to stop his wife from engaging in the conduct she did.

[63] BOF’s argument is that he is caught between a rock and a hard place. On the one hand, he and IF have had to live through the tragedy of their daughter being convicted of an unthinkable crime and sentenced to life imprisonment. At the same time, he and IF have been restricted in the time they have been allowed to spend with their disabled granddaughter, the child he and IF raised with BF from the time she was 3 months until the insulin overdose. On the other hand, BOF is married to IF and has supported her during this tragedy they are living through. BOF has testified that IF has lashed out and he argues that this behaviour comes from her distrust of AN and the system in general, in granting AN primary care of E. BOF lives with his wife but wants to be considered separate from her because he has the insight to understand that IF’s thought processes are not rational.

[64] I accept the evidence of IF and BOF that they have always been loving caregivers to E.; he and she both adore her; they both want E. to receive the best care; they both want to ensure that E. remains connected to her Serbian heritage, including having exposure to the Serbian language; and E. was strongly bonded to both IF and BOF given that she was raised in their home from age 3 months until the insulin overdose.

[65] I do not think that BOF is without fault for the conflict that has been created between them and the paternal family and continues to exist post the insulin overdose. There is no suggestion that BOF played any role in the insulin overdose given that he was out of the country visiting his ill father in Bosnia when that occurred. Other than the one incident at Holland Bloorview when BOF was outwardly upset that E. was being released into AN’s care, BOF has not been the initiator of any direct conflict between the maternal grandparents and AN, his family or E.’s caregivers. In these circumstances, I am prepared to consider BOF’s claim for contact with E. separate and apart from IF’s claim for contact with E.

[66] The starting presumption is that deference should be given to a parent’s decision whether to award a grandparent access to a child: Chapman v. Chapman, 2001 24015 (ON CA), at para. 21. In Giansante v. DiChiara, 2005 26446 (Ont. Sup. Ct.) at para. 18, Justice Nelson reviewed the Ontario Court of Appeal’s decision in Chapman, and held that deference should generally be given to a custodial parent’s decision regarding access unless the following three questions are answered in the affirmative:

(1) Does a positive grandparent-grandchild relationship already exist?

(2) Has the parent’s decision imperilled the positive grandparent-grandchild relationship? and

(3) Has the parent acted arbitrarily?

[67] In Torabi v. Patterson, 2016 ONCJ 210 at para. 61, the court re-formulated the Giansante test for grandparent access into a two-part test as follows:

First, the determination of whether the court should defer to the decision of the parent(s). That decision involves the consideration of the three-part test articulated by Nelson J. in Giansante, following Chapman. Less deference may be owed when one of the parents had died, meaning that the child may lose a relationship with the other side of the family.

Second, and only if the court refuses to defer to the parent(s), whether in the view of the court, access is in the best interests of the child. In that case, reference must be made to the criteria found in CLRA section 24(2).

See also Capone v. Pirri, 2018 ONSC 6541 para. 12 in which the court endorses and applies the same two-part formulation; Botelho v. De Medeiros, 2017 ONCJ 463 at paras. 21 – 29.

[68] In a recent decision of Madsen, J., Ninkovic v. Utjesinovic, 2019 ONSC 558, 23 R.F.L. (8th) 172, the law related to grandparent access was reviewed. I find paragraphs 72-74, inclusive, very instructive and applicable to this case, at the second stage of the Torabi test:

[72] In considering, at the second stage, whether access to the grandparent is in the best interests of the child, an important consideration is the extent to which this would cause anxiety and stress for the parent, which in turn could have a deleterious impact on the child. For example in Barber v. Mangal, 2009 ONCJ 631, Justice Brownstone found that the intensity of the conflict between the parents and the grandmother seeking access was such that any access would be extremely stressful for the parents and “given their personalities, there is a very real and substantial risk that such stress would be visited upon the child.” See para. 17. At the same time, animosity does not necessarily preclude an access order. See para. 18.

[73] See also MacDonald v. MacDonald, 15444 in which Justice Pazaratz found that the “level of conflict between the applicant and the respondent is so overwhelming that any future contact will invariably result in the children and their family experiencing more upset, commotion, and grief,” and dismissed the grandmother’s request for access to her daughter’s children.

[74] A further consideration is whether an access order would destabilize the family unit. See Blackburn v. Fortin, 2006 CarswellOnt 3458. In that case, Justice Smith declined to grant access to a grandmother where significant tension existed between the grandmother and mother, the grandmother often imposed unsolicited views on proper child-rearing, and the grandmother had made a heavy-handed attempt to change the parents’ decision regarding schooling. The court found that access could destabilize the family unit. [Emphasis Added]

[69] Therefore, even if I determine that the first part of the Torabi test is met, I have to consider the level of conflict between AN and the maternal grandparents and whether granting IF and/or BOF contact with E. will invariably result in E., AN and the paternal grandparents, with whom AN and E. live, more upset and stress thereby destabilizing the family unit.

[70] Given that I am prepared to deal with BOF separately from IF, I must first consider the three-part test in Giansante, applied in step one of the Torabi test, and answer the following three questions for each of IF and BOF:

i. Does a positive grandparent-grandchild relationship already exist between IF and/or BOF and E.?

ii. Has AN’s decision imperilled the positive grandparent-grandchild relationship? and

iii. Has AN acted arbitrarily?

[71] I find that on the evidence, there was a positive grandparent-grandchild relationship between E. and BOF and between E. and IF in the first 18 months of her life. Further, I find that each of IF and BOF remained committed to see and spend time with E. in whatever capacity they were able to do so since the insulin overdose, and that IF and BOF’s current relationships with E. are positive as well.

[72] It was not AN’s decision that limited IF’s or BOF’s contact with E. Rather, Sherr, J. granted BOF and IF supervised time with E., subject to the discretion of the CAST and the CAST then placed further conditions on that time, based generally on IF’s inappropriate conduct. Sherr J.’s order was then mirrored in this court by Shore, J. Accordingly, it was not AN who imperilled the positive relationship between BOF and E. If anything, it was the conduct of IF and BOF that imperilled their relationship with E.

[73] Finally, this is not a circumstance where AN can be said to have acted arbitrarily. From the time AN became involved after the insulin overdose, AN stated that he believed it was in E.’s best interests that the maternal grandparents be part of E.’s life. This is evidenced by how care was arranged by him for E. when she was at Sick Kids and at Holland Bloorview. It is only after IF and BOF continued a) criticizing his care of E.; b) criticizing his parents’ involvement with E.; c) criticizing the care the medical team gives E. which AN has put in place to look after E; d) accusing AN and the doctors of trying to poison E.; e) accusing AN of neglecting E.; and f) accusing AN’s family of being part of a human trafficking cartel, that AN is now of the view that the maternal grandparents should not be granted access to E.

[74] Now that I have determined that I will not necessarily defer to AN’s decision that IF or BOF should have no contact with E., I must determine whether contact between BOF and E. and/or IF and E. is in E.’s best interests, with reference to the criteria set out in s.16(3) of the Divorce Act. The factors most relevant here are as follows:

i. The needs of E., given her age and stage of development, particularly given her special needs;

ii. The nature and strength of E.’s relationship with her maternal grandparents;

iii. The history of E.’s care both before and after the insulin overdose;

iv. The willingness and ability of IF and/or BOF to care for and meet E.’s needs;

v. The nature and strength of E.’s relationships with IF and BOF;

vi. IF and/or BOF’s willingness and ability to foster E.’s relationship with AN;

vii. IF and/or BOF’s willingness and ability to communicate and co-operate with AN on matters affecting E.;

viii. E.’s culture, linguistic, religious and spiritual upbringing and heritage; and

ix. Any criminal proceeding, condition or measure that is relevant to E.’s safety, security and well-being.

[75] The court is permitted to provide for contact between the applicant(s) and the child in the form of visits or any means of communication; make an order for a definite or indefinite period of time and may impose any terms, conditions or restrictions it considers appropriate: Divorce Act, s.16.5(5)-(6). Further, the court may require that the contact or the transfer of the child from one person to another be supervised: Divorce Act s.16.5(7).

[76] I must also decide whether E. having contact with IF and/or BOF will interfere with her physical, emotional and psychological well-being: Divorce Act, s. 16(2).

[77] To avoid repetition, I will address each factor for both IF and BOF in turn and indicate within each factor whether I find it in E.’s best interests for the contact to occur with either IF or BOF.

The nature and strength to E.’s relationship with the maternal grandparents and the history of E.’s care

[78] I accept IF’s and BOF’s evidence that they were each, on their own, and together integrally involved in E.’s care prior to the insulin overdose. I also accept that they spoke with E. in the Serbian language and that they were imparting their language, heritage and culture to E. in a developmentally appropriate manner. It is clear that E. was closely bonded to both maternal grandparents, a fact that Justice Gilmore found as well. I also accept IF’s and BOF’s evidence that they love E. very much and will do anything they can to assist her.

[79] In addition to caring for E. from the time that she and BF moved into their home in January 2018 until the insulin overdose on June 11, 2019, when she was 18 months old, IF and BOF also demonstrated their love and devotion to caring for E. while she was at Sick Kids and Holland Bloorview.

[80] The strength of E.’s relationship with IF and BOF, and the important role they have played in her life, is one of the strongest factors that weighs in favour of each or one of them being granted contact with E.

[81] BOF testified that the 18 months during which E. and BF lived with him, and IF were the happiest months of his life. A summary of the testimony BOF gave about the role he played in E.’s life during the time she lived with him, includes the following,

i. He bought a crib for E;

ii. He bought a small swing and a bassinet for E.;

iii. He had a car seat in his car to be able to transport E.;

iv. He looked after E. with IF when BF worked. BF’s work schedule was two days on, followed by two days off;

v. He played with E., he soothed her, he sang to her; and

vi. He transported and took E. to various appointments with IF.

[82] AN’s mother will not consent to BOF or IF having contact with E. in her home, where AN and E. live. BOF suggested that his contact with E. could take place at a supervision centre, which AN could arrange at his convenience. BOF testified that he would be happy to pay for the cost of the supervision; he will not interfere or question any of the medical treatment E. receives and he will not ask for E.’s braces to be removed during his contact with her.

[83] IF filed an affidavit sworn on September 7, 2022 as her evidence in chief.[^15] She also gave oral testimony. A summary of IF’s testimony as to why it is in E.’s best interests that she be granted regular contact with her, is as follows:

i. From January 14, 2018, until June 12, 2019, E. lived with her, BOF and BF at their apartment. As a result, E. is very bonded to her and BOF;

ii. She provided all the necessities for E. and met her needs and is able to do so if granted contact with her;

iii. She regularly took E. to her paediatrician, Dr. Ebrahimi, and ensured that E. progressed normally from a developmental perspective;

iv. She and BOF looked after E. when BF worked at Trillium Health Partners in Mississauga on a full-time basis;

v. She is fully qualified to care for E. as a child with disabilities. She has a university degree in Psychology, Child Development and Child Behaviour Science from the University of Serbia; she was employed as a Professor of Medical Science and Education in Serbia; and in Canada, she completed an Early Childhood Education (ECE) degree at Seneca College and specialized in behavioural care of children with disabilities;

vi. Given her expertise, she assisted the various health professionals at Holland Bloorview when E. was in that hospital, particularly Dr. Fraser Stevenson, the physiotherapist. She will continue to be able to assist E. with her exercises;

vii. Her presence at Holland Bloorview supported E. to stand on her own, sit on her own; move her arms and legs on her own; walk with the support of 2 people; and walk the distance of 8 metres. She believes that she will be able to assist E. with all of these tasks, better than AN has been able to;

viii. She speaks to E. in the Serbian language and that is the only language that E. understands and was spoken to until the insulin incident;

ix. Once E. was transferred into the care and control of AN, her condition worsened;

x. She has observed a steady decline and deterioration of E.’s care and treatment in AN’s care. Particularly, E. can no longer stand on her own; sit on her own; move her arms and legs like she could before; she cannot walk with the support or two persons; and she cannot swallow food on her own;

xi. E. is relaxed and peaceful in her care. E. stops crying in her presence. E. responds to her and BOF when they speak to her in the Serbian language, examples of which include her opening her hands, lifting her arms and legs;

xii. E. listens with attention when she and BOF sing Serbian folksongs to her. E. smiles in her presence. E. responds to her voice, suggestions and presence;

xiii. E. does not cross or scissor her legs when she is with her, and E. sits normally on her lap and holds IF’s hand; and

xiv. She was responsible for ensuring that E. was baptized in a Serbian Orthodox Church. She is the only person, along with BOF, that can keep E. connected to her Serbian language and heritage.

[84] The issue is whether the history of E.’s care and the nature of her close relationship with BOF and/or IF from birth to 18 months remains a factor that weighs in favour of either or both of them being granted contact with E. given what has transpired since the insulin overdose. This is where their collective and individual past conduct is relevant. The intensity and hostility of the conflict between IF and BOF with AN and his parents, with whom he and E. reside, cannot be ignored. It is undisputed that the conflict caused by IF’s and BOF’s conduct has caused AN and his parents extreme stress and anxiety, along with the stress experienced by the PSWs who work for AN and care for E. Given this, there is a real and substantial risk that such stress could be visited upon E.

[85] AN and his parents have already had to deal with tremendous stress and litigation since the insulin overdose. AN was robbed of his opportunity to spend time with E. when she was an able bodied child. He was never able to enjoy seeing E. crawl, sit up, walk, laugh or talk because BF would not allow him to have parenting time with her. AN and his parents have dealt with protection proceedings brought by the CAST in the OCJ; ongoing SCJ proceedings when IF and BOF sought decision-making and parenting time with E.; and lived through the criminal court proceeding which ultimately ended with BF being charged and sentenced to life imprisonment. I find based on the record before me that AN is doing an excellent job of caring for E., attending to her highly specialized needs; and doing his best to improve her quality of life. The evidence from the OCL and Drs. Lim and Mesterman certainly satisfies me on this point.

[86] I must carefully balance the benefit to E. from occassional visits with her grandparents against the risk that she will be exposed to IF's animosity towards her caregivers and to her father's family. I must decide whether the benefit of maintaining a relationship with her maternal grandparents is worth the stress and anxiety those visits would produce: citation: Barber v. Mangal and Hurst, 2009 ONCJ 631, at para. 18. I find that the benefit of E. having contact with IF is not outweighed by the chaos, stress and conflict these visits would produce. IF has demonstrated that her anger at AN overshadows her ability to be child-focused in a way that E. needs.

E.’s needs, given her age and stage of development, particularly given her special needs

[87] Given E’s highly specialized needs and her stage of development and need for stability in her caregiving, I find that IF does not understand E.’s medical needs. She refuses to listen to the doctors who provide care to E. IF has indicated through her actions that she has no respect for their treatment suggestions. Instead, IF believes that she, alone, understands E.’s medical condition and needs. I find that IF has demonstrated that she has no ability to self-regulate if she is upset about an issue with respect to E.’s medical treatment. She has had ample opportunity to demonstrate that she wants to work with AN and/or the health care professionals who provide care to E. Instead, IF takes the position that every person who cares for E. is neglectful, incompetent, and worse, wants to cause E. pain. I am not persuaded that BOF does not understand E.’s medical needs. Unlike IF, BOF has been courteous to the PSWs who care for E. and has been more receptive to their suggestions to identify E.’s non-verbal cues to improve the quality of his time with E.

E.’s Needs

[88] Anyone who has contact with E. must understand her unique circumstances and medical needs. E. has extensive special needs and is under the care of the Complex Care Clinic (“CCC”) at McMaster Children’s Hospital in Hamilton. The paediatrician in charge of E.’s care at the CCC is Dr. Lim.

[89] It is critical that anyone who has contact with E. have an understanding that E. requires a number of medical specialists for her care, including doctors, nurses, therapists, social workers and PSWs. It means comprehending that E. may have seizures; she could aspirate; she has high muscle tone and spasticity, and neuro-irritability. The only way to fully understand E.’s needs is to listen to the doctors, health care professionals and caregivers working with E. and to take guidance from them as to how best one can be attuned to and respond to E.’s needs.

[90] E.’s current condition and medical needs were explained by Dr. Lim during her testimony and can be summarized as follows:

i. E. has an acquired brain injury and has been diagnosed with cerebral palsy, multiple system organ issues; spasticity and seizures;

ii. E. requires 24-hour a day, 7-day-a-week care for the rest of her life. She cannot care for herself;

iii. E. continues to have seizures, although with less frequency and less intensity, that are controlled with medication;

iv. E. has spasticity, which is a challenging medical concern, because of her increased muscle tone in her arms, legs and her back. This results in E. stiffening her arms and legs and arching her back and being unable to bend. E.’s muscle spasticity makes it extremely difficult for her caregivers to care for her.

v. E. has cortical visual impairment, the extent of which is difficult to diagnose as a result of her inability to communicate verbally;

vi. E. has respiratory issues arising from her excess secretions and inability to swallow. E.’s excessive secretions are controlled by medication, but she remains at risk for aspiration.

vii. E. has gastrointestinal issues and severe reflux. Her nutrition is solely dependent on a G-tube. E. does receive oral stimulation by AN and his mother with the assistance of an occupational therapist.

viii. E. has to be monitored continually for muscle skeletal issues, such as scoliosis and hip and bone health because she cannot weight bear. As a result, she is at high risk for osteoporosis. Currently, E.’s hips are dislocated, and she is on a waiting list for surgery to fix this;

ix. E. can use her voice to communicate. She will never be able to speak.

x. E. suffers from neuro-irritability, which means that after ruling out any physiological causes of pain, she is very difficult to soothe; and

xi. E.’s primary medical condition, namely, her brain injury will not improve. However, the hope is that E.’s other functions will improve, such as her abilities to sit and feed without reflux.

[91] Dr. Lim described CCC team as a multi-disciplinary team of doctors and nurses that help to provide and co-ordinate the care for children like E. who have complex medical needs, while also supporting their families. The team that works with E. and AN includes a nurse practitioner who is available to AN whenever needed, a dietician, a respiratory therapist, a social worker, a physiotherapist, and an occupational therapist. E. also has a neurologist. E also has a Quality of Life and advanced care team, “QOLA”, that assists with pain, irritability, and her quality of life.

[92] Dr. Lim testified that E’s acquired brain injury cannot be reversed. The goal of the CCC is to improve E.’s functions, keep E. comfortable, control her risk factors that could impact her life, support the family and optimize E.’s quality of life.

[93] Dr. Ronit Mesterman is a paediatric neurologist and an expert in developmental disabilities. Dr. Mesterman works with Dr. Lim on the CCC at McMaster Children’s Hospital. Dr. Mesterman testified that her main role in E.’s care is to address her neuromotor problems, specifically those relating to E’s spasticity and muscle tone. Dr. Mesterman also reviews the various medications E. takes and her equipment needs.

[94] A summary of Dr. Mesterman’s testimony as it relates to E.’s neuromotor needs is as follows:

i. E.’s clinical presentation is the same as a child who is born with a brain injury. She is also diagnosed with cerebral palsy, as an umbrella diagnosis, and she has a neuromotor disability;

ii. E. has the most severe form of gross motor function disability, meaning that she has no ability to walk on her own and requires support to sit, including needing head control assistance. E. has no ability to ever move independently;

iii. E. suffers from spastic CP, a classification of cerebral palsy, identifying extensive impairment as a result of her increased muscle tone. This means that her muscles are overactive and she often hyper-extends her arms, head and trunk. E. suffers from both dystonia and spasticity;

iv. E. is able to lie on her back (in the supine position). She is also able to sit on her own for up to 3 seconds. E. keeps her hands fisted but she is able to open her hands;

v. E. can sit in a tomato chair[^16] and can stand in a stander;

vi. E. scissors her legs, back and forth, meaning they cross over each other, which needs to be avoided to avoid further hip dislocation;

vii. E. has dislocated hips because she cannot weight bear and the hip bone dislocates. This is a slow process but there is a plan to operate on her hip and, as a result, E. is currently on the waitlist for a hip replacement. E. wears a hip brace daily for a minimum of 5 hours; and

viii. E. needs to wear orthotics, known as ankle foot orthotics (“AFOs”) to help position her legs and feet since her feet are twisted, inverted and pint downward. The AFOs cover her ankle and femur to properly position the foot so it is not pointed downward. E. is to wear her AFOs for at least 12 hours a day.

[95] In terms of E.’s current medical needs and prognosis, AN testified as follows:

i. E. is able to see, however the extent of her vision is not clearly diagnosable without her ability to communicate;

ii. E. is able to hear;[^17]

iii. In terms of oral communication, E. can only communicate using her voice;

iv. E. drools a significant amount, which is controlled by medication. Her inability to swallow leads to her being at risk for aspirating;

v. E. is able to suck but she is dependent on being fed by G-tube. She does receive small amounts of food for oral stimulation;

vi. E.’s head has very low muscle tone, even with support and wobbles. At most, she can keep her head straight for a few seconds without support. E. has not made any gains with neck co-ordination;

vii. E.’s body has high muscle tone. It is very difficult to bend her legs or her arms or move her when she arches her back. This makes it very difficult to carry her, change her diaper, dress her in clothing or change her position;

viii. E.’s hands are fisted but she is able to open them on her own on command;

ix. E. loves to stand on the stander. Her ankles point downward and her feet are inverted. However, when she wears her foot ankle orthotics (“AFOs”) and special shoes, she can stand. The doctors are now discussing putting her legs in a cast;

x. E. is shy and does not like to be looked at. She also does not always like to be touched;

xi. E. loves to be around other children;

xii. E. loves music and has music therapy once a week;

xiii. E. loves to be in nature and outdoors;

xiv. She loves to be in water. She uses a hot tub at AN’s house and the warm water is very good for her because her muscle tone loosens. E. was in aqua therapy last year and enjoyed it; and

xv. E. loves going on outings with AN and one of her favourite places to visit is the Ripley’s Aquarium.

[96] E. has had two PSWs to assist her with her daily needs at AN’s parents’ home when he and his mother are at work. From December 2019, when E. was released from Holland Bloorview, until October 2021, Khadija Al Harazi (“Khadija”) from the Victoria Order of Nurses (“VON”) worked as E.’s PSW. From October 2021 until the present day, Christina Okonji, from the VON works with E. during the week, Monday to Friday, for about 28 hours when AN and/or his mother are at work.

[97] Christina describes E. as having an interesting personality; she knows what she wants and has her ways of communicating if she doesn’t want to do something with her voice; she likes to be outdoors but she does not like the sun; she does not like people dotting on her and giving her attention all the time; she likes to be left alone sometimes, no carrying or holding which they call her “don’t touch me mood”; she wants to be part of a conversation when she feels left out; she can pay attention when she is in the mood; and she likes to watch cartoons when she is not tired.

[98] AN testified that E. goes to school, in Hamilton, three times a week. A nurse comes to the house at 7:30 a.m. and helps transports E. to school by wheelchair on the bus. E. goes to school from 9:00 a.m. to 1:00-1:30 p.m. On the two days that E. does not attend school, she attends private physical therapy and occupational therapy at the Smile Therapy for Kids. She also attends music therapy once a week at Music In You. E. used to attend aqua therapy through Ron Joyce Rehabilitation Centre which is publicly funded. AN is with E. on the weekends and often takes her on outings.

[99] AN testified that E. requires a significant amount of equipment to assist her with her daily needs. Specifically, E. uses Thera Togs to stimulate her muscles;[^18] a Hybervibe plate which is a plate that medically vibrates and helps E. to strengthen her bones and muscles; splints because her hands are twisted and these help her position her hands and open her fists; a Kiddy Up Chair, which separates E.’s hips; AFOs which are government funded and allow E. to place her feet and ankle flat so she can stand in the stander; special shoes for which E. is fitted for the AFOs; a HOGGI wheelchair to be transported; a stander in which she stands for 45 minutes to 1 hour a day while wearing her AFOs and hip braces; a bathing chair so she can be positioned safety in the bath; a tomato chair in which she sits at home; and a SymmetriSleep Positioning System, which includes brackets and pillows to improve E.’s posture when her muscle tone is reduced during sleep.

[100] Christina’s evidence about E.’s routines and treatment can be summarized as follows:

i. Starting this past September 2022, E. began to attend school three times a week. She attends school on Mondays, Wednesdays and Thursdays;

ii. On Tuesdays and Fridays, E. attends physiotherapy and occupational therapy;

iii. As recommended by her doctors, E. is to wear her orthotics at least 12 hours a day;

iv. E. is to use her stander each day for at least an hour while wearing her hip braces, to help with her hip dislocation;

v. On days where E. does not have therapy, she has to complete exercises with her equipment at home to keep her active and prevent musculoskeletal atrophy;

vi. In addition to her physical activities, E. has to take her medications regularly to keep spasticity, pain and seizures at bay; and

vii. E. is fed via G-tube and takes her supplements via G-tube.

[101] AN and his parents have gone to tremendous lengths to ensure that E. is being properly cared for. The evidence is also clear that E. is in the care of an excellent team under Dr. Lim at the CCC at McMaster Children’s Hospital Clinic. I am persuaded that AN has a detailed and thorough understanding of E.’s medical and emotional needs, is attuned to her discomfort, irritability and fussiness, and has thoughtfully arranged for support in the home with PSWs to ensure that E.’s needs are fully being met when he and his mother are at work. Further, AN has arranged for E. to be engaged in additional therapies such as occupational therapy twice a week and music therapy, which he pays for. AN testified that he may also restart aqua therapy for E. soon. Finally, AN has taken all the steps necessary to ensure that E. has the opportunity to socialize with other children and learn in a stimulating academic environment, by ensuring E. attends school three half-days a week.

IF’s Position

[102] IF believes that she is in the best position to meet E.’s medical, emotional, social, communication and physical needs. She testified that she has specific expertise and training in dealing with children with special needs and that she was particularly integral in E.’s physical therapy treatment at Holland Bloorview. IF created a Plan of Care for E. that she submits was never looked at by the Court. However, during this trial, IF admitted that she did not submit the Plan of Care as part of her evidence before Justice Sherr, because it was submitted by her on February 6, 2020, the same day Sherr, J. released his decision which was three days after the hearing.[^19] IF testified that she is qualified to look after E.’s needs, to engage the services of other medical professionals and health professionals to treat E. and to improve her condition.

IF’s Delusional Beliefs

[103] Despite the efforts of AN and his family, IF believes that E.’s health has declined since she has been in AN’s care because he is not committed to looking after E. as she would. Particularly, she testified that she believes the doctors at McMaster Children’s Hospital in the CCC have not been caring for E. properly and have attempted to poison her by giving her Botulinum Toxin injections (“Botox”) injections. Further, IF has indicated an unwillingness to comply with the medical treatment for E. by insisting on many occasions during her supervised visits with E. that E.’s medical equipment be removed because it is hurting her. Specifically, IF has asked that E.’s AFOs and hip braces be removed because she is convinced that the PSW’s are trying to torture her.

[104] Much time was taken at the trial by IF testifying that Botox injections is a poison meant to paralyze people. IF submits that Dr. Mesterman injected E. with Botox as part of an experiment being undertaken by the McMaster Hospital on children. She also believes that AN wanted E. to receive Botox injections to make E. immobile which would make his life easier, rather than for E.’s benefit, so he did not have to worry about watching her if she moves. This position, in and of itself, is demonstrative that IF does not understand E.’s medical needs. E. is not able to move on her own, other than rolling from supine to front.

[105] Dr. Mesterman testified that there is no risk of life-threatening issues arising from E. having received Botox injections. Dr. Mesterman recommended Botox injections for E. to reduce her muscle tone, which would make it easier to change her diaper, clothe her and bathe her. She testified that Botox is often used with children who have high muscle tone to reduce tone and stiffness. For example, Dr. Mesterman explained if a child is fisting and muscle tone is reduced, the child may then be able to grasp. Dr. Mesterman testified that E.’s stiffness is so bad, that it is extremely difficult for her caregivers to dress her, wash her and to care for her.

[106] Dr. Lim also testified that she recommended Botox injections for E. to reduce her excessive salivary problems. E. received Botox injections in April 2021 and on September 15, 2021, targeting her triceps muscles to allow them to be bent.[^20] She was also injected in her legs near her adductor muscles to see if she could bend her knees to assist with diapering. The injections were also made in an attempt to assist with E.’s scissoring, which is the crossing of her legs back and forth.

[107] Both Dr. Mesterman and AN testified that there was a three-week period where E. appeared to be much happier and more alert after she received her first Botox injections. This was confirmed by the video which was made Exhibit #64, when E.’s tone was better at the SMILE clinic, where E. receives physiotherapy. Although E.’s increased alertness and happiness cannot necessarily directly be explained by the Botox injections, Dr. Mesterman testified it was decided to give E. another round of injections in April 2021.

[108] I find that the Botox injections that E. received under the direction of Dr. Mesterman were not poisonous to E., nor were they intended to paralyze her. I am persuaded that the Botox injections were intended to reduce E.’s spasticity, which would in turn make it easier for E. to move, make it easier for her caregivers to look after her and improve E.’s quality of life.

[109] IF refuses to accept that the care being administered to E. by the CCC at McMaster Hospital is sufficient. IF questions the qualifications and expertise of the doctors and specialists and believes that E. was doing better when she was involved in her care when E. was at Holland Bloorview. Despite being given an explanation that it is common after a child experiences a brain injury to show better function in the first year but to slowly regress and get worse, IF is not prepared to accept that explanation and maintains her position that AN, Dr. Mesterman and Dr. Lim have a goal of treating E. for AN’s benefit and not E.’s benefit.

[110] IF has delusional beliefs and theories about the ways in which E. is being cared for by AN and/or the medical professionals that are not grounded in reality. Some prominent examples include the following:

i. IF has accused Dr. Kishta, the orthopedic surgeon at McMaster Hospital, of having recommended that E. receive hip replacement surgery because he wants to harvest E.’s organs. There is no evidence on the record to support IF’s outrageous allegation in this regard. Dr. Mesterman testified that there is no plan to remove E.’s hips but, rather, to address her hip dislocation. It is clear, based on IF’s position, that she does not understand E.’s medical needs as it relates to hip dislocation or her need to wear hip braces.

ii. IF testified that AN has systemically robbed E. of her physical ability on the pretext of targeting the care of her and convincing the doctors at McMaster Children’s Hospital to inject E. with disabling medication which deadened the nerves in her arms, legs and torso. She also testified that AN wants to further immobilize E.’s body by having the doctors inject her with Botox and Phenyl ethanol Toxin injections causing the end of her life. However, Dr. Mesterman and Dr. Lim both testified that they recommended that E. receive Botox injections to assist with the hyper tone in her muscle and her spasticity to enable her to bend and move easier and to assist with caregiving. It was not AN who decided that Botox injections were an appropriate treatment for E. Further, Dr. Mesterman and Dr. Lim testified that the amount of Botox injection E. receives is safe and often used therapeutically for children who suffer from spasticity;

iii. IF testified that the insulin overdose was a form of human trafficking of E. She has continued to take the position that AN and his parents are part of a human trafficking cartel that donates significant sums of money to Trillium Hospital. IF testified that AN’s mother, in particular, is connected to a foster children’s agency, known as the My Ummah adoption agency, and threatened BF that she intended to take E. from BF and place her in an Islamic foster home. IF testified that AA is connected to the My Ummah adoption/foster care agency and that one of the CAST workers who was present with E. was taken to Sick Kids after the insulin overdose also works for this adoption agency;

iv. IF testified that E. is an orthodox Christian child who has now been taken and placed with a Muslim family: which she confirms in her closing submissions, is tantamount to religious genocide which is prohibited by the International Criminal Court. The family with whom E. is currently residing is her father. E. is a child of two parents with different religious backgrounds. To describe E. as being a victim of religious genocide when she is living with one of her parents is, in my view, wholly nonsensical. The term religious genocide infers an intention to destroy a person’s religion. There is absolutely no evidence on the record that AN, his parents, or the CAST have had any intention to obliterate E.’s Serbian heritage or Christian religion. Whenever IF or BOF asked the CAST if they can read or speak to E. in Serbian during their visits, they were always told they were free to do so.

v. IF testified that E. was eating food on her own; sitting upright on her own; and walking with assistance for up to 8 meters on her own while she was at Holland Bloorview. IF’s rendition of E.’s condition at Holland Bloorview is simply not accurate. During cross-examination, IF admitted that E. had been eating some food while at Holland Bloorview until she aspirated and was taken to Sick Kids due to respiratory distress on December 8, 2019, diagnosed as bronchiolitis secondary to pneumonia. IF further admitted on cross-examination that when E. left Holland Bloorview, she was not eating on her own but through a G-Tube. The Occupational Discharge report from Holland Bloorview confirms that E. was fed by G-tube and was just beginning to roll from supine to left side but required assistance for weight shift. Otherwise, E. required hands on facilitation for all other gross motor skills and transitional movements. The Physical Therapy Discharge Summary report from Holland Bloorview, states that E. was able to tolerate tall kneeling for one minute with external support. E. continued to work on standing with one to two people providing support.[^21]

vi. IF testified that E. can only understand the Serbian language. IF believes that E. appears to AN, his family and her PSWs as stubborn or frustrated because she is being spoken to in a language she does not understand. During cross-examination, IF admitted that the staff and therapists at Sick Kids Hospital and Holland Bloorview only spoke to E. in English; E. attends school where she is only spoken to in English; her PSWs speak to her English and AN speaks to her in English. E. responds to being spoken to in English. I find that IF’s testimony about E. only understanding the Serbian language cannot be true, given that E. has been spoken to in English by all of her care providers since the insulin overdose. While it is impossible to know exactly how much E. understands since her acquired brain injury, I reject IF’s evidence that the only language E. understands is Serbian.

vii. IF testified that E.’s condition should be able to improve, despite the evidence of Drs. Lim and Mesterman who testified that E.’s primary medical condition will never improve. In cross-examination, IF confirmed that she does not agree with Dr. Lim that E.’s primary medical condition will not improve. She testified that having watched E.’s progress at Holland Bloorview, she believes E. could have improved with intensive therapies. I find IF’s testimony in this regard delusional.

viii. IF testified that she believes E. is being starved by her current medical team and AN because she should be receiving 160 ml of formula as she was receiving when she was at Holland Bloorview. The evidence from AN is that E. is now receiving a different formula, which is why the quantity she receives is different. AN is following the nutrition advice from the specialists on the CCC team treating E. I find IF’s testimony in this regard incorrect.

IF’s Threatening Behaviour Toward Doctors

[111] Between March 30, 2022 and April 16, 2022, IF wrote to the Honourable Jean-Yves Duclose, the Federal Minister of Health; Christine Elliot, the Provincial Minister of Health; the Attorney General of Ontario; the College of Physicians and Surgeons; the RCMP and the Department of Justice, on several occasions complaining that Drs. Lim, Singh, Ihsan, Mesterman, Callen and O’Toole, were proposing to inject E. with Botulinum Toxin injections and Phenoethanol Toxin injections on April 25, 2019. IF states in this letter that E.’s physical care has been deliberately deteriorating since AN was given temporary care of E.; that when E. was in Holland Bloorview in November 2019, she was able to stand on her own, sit on her own, move arms and legs on her own, and walk on her own and that E.’s deterioration of movement coincides with her being injected with Botox. IF demands that the future proposed injections of E. be stopped and declares that if E. is further injected on April 25, 2022, a criminal act will be committed which will endanger the life and safety of E. and that if E. were to die as a result of these injections, the doctors will be criminally responsible for her death.

[112] On April 13, 2022, IF wrote to Dr. Mesterman, Dr. Lim, the federal health Minister, the Minister of Justice and the RCMP, stating that a human trafficking cartel has made sizeable contributions to Public Hospitals where it has inserted its medical, administrative and financial agents to process the human trafficking without detection in Ontario. She states that it is Dr. Mesterman’s intention to completely paralyze the arms, spine, hips and legs of E. with Botox toxins, upon the request and authorization of AN; and that these injections have the probability to cause the death of E. She goes on to accuse Dr. Mesterman of trying to place E. in a deep sleep for Dr. Kistha to operate on E.’s hips and to remove her hips after her death and use them for organ transplant. IF asks for an investigation of McMaster University Medical Centre which is committing criminal and inhuman acts against E. and that this is a crime against humanity.

[113] IF also wrote to Dr. Lim directly on March 30, April 7, 12, and 21, 2022. In these e-mails, IF states that based on her research, two of the drugs that E. takes are causing her physical condition to deliberately deteriorate. She advised Dr. Lim that she demands that the “TOXIN INJECTIONS be STOPPED” and threatens that if they continue, the doctors are “committing a criminal act” and if the child “dies…you will be criminally responsible”. Further, IF accused Dr. Lim of supporting “an organization of individuals whose sole purpose is the seizure of young children for the purpose of human trafficking and extracting organs for profit in the Province of Ontario.”

[114] I find that IF has no insight into how her criticisms of E.’s medical team impact the people who care for E. Drs. Lim and Mesterman both testified they each felt threatened personally and professionally by IF’s letters. However, IF testified in reply that she did not understand either doctor’s reaction or that perhaps these doctors were lonely in their profession.

[115] I find that IF’s steadfast belief that she knows what is best for E. and that any treatment being administered at McMaster and/or approved of by AN is to E.’s detriment, is a complete departure from reality. I agree with the following findings of Horkins, J. in her Order, dated June 22, 2022:

[70] The evidence clearly shows that the maternal grandparents are not acting in the child’s best interests. They have demonstrated no appreciation for the chaos they are causing those responsible for the child’s care.

[72] The maternal grandparents have no respect for the father and the professional team of caregivers who devote their expertise and time to ensuring that the child has the best possible care for her complex injuries. Instead of supporting the child’s caregivers, the maternal grandparents seek to undermine the child’s care with their abusive conduct.

[75]…They [the maternal grandparents] have show that they are uncontrollable. There is a real risk that their concerning behaviour will continue to escalate. The child is entitled to better…”

Problematic Behaviour During Contact with E.

[116] Prior to E. being released from Holland Bloorview, Kimberley Bush, the social work clinician who assisted Jane Long of the OCL on this matter, testified that she personally witnessed BOF being confrontational with a doctor at Holland Bloorview when E. was getting prepared to have weekend parenting time with AN while she was still at the hospital. Ms. Bush also testified that the staff at Holland Bloorview reported concerns to the OCL about conflict between BOF and AN. It was on this basis that the CAST asked IF and BOF not to be present when E. was discharged from Holland Bloorview to ensure that E. was not exposed to adult conflict.

[117] After E. was released from Holland Bloorview in December 2019, IF and BOF had contact with E., supervised by the CAST and a third-party supervision service, first Brayden Supervision Services and then Renew Supervision, as follows:

i. From December 2019 to March 2020, the visits took place approximately two - three hours each visit, twice weekly, supervised by Kelly Rose-Hurst.

ii. In or about mid-March 2020 to May 27, 2020, the maternal grandparents’ visits with E. were suspended due to the Covid-19 pandemic. Ms. Rose-Hurst offered the maternal grandparents virtual time with E., which whey declined.

iii. Beginning on May 27, 2020 to December 14, 2020, the visits took place twice monthly, at AN’s parents’ home;

iv. The maternal grandparents’ visits with E. were placed on hold from December 14, 2020 to June 17, 2021, because of the rise in Covid-19 cases and the risk to E.;

v. Beginning on June 17, 2021, the maternal grandparents had in-person, socially distanced visits with E. outside at AN’s parents’ home on July 15^th, 22^nd, 30^th, August 26^th, September 2^nd, 9^th, 2021, supervised by Kelly Rose-Hurst. The maternal grandparents could not touch E. during these visits.

vi. The maternal grandparents’ time with E. resumed in-person at AN’s parents’ home on October 7^th, 21^st, November 4^th, 18^th, December 2^nd, 16^th, 2021, supervised by Kelly Rose-Hurst.

vii. In 2022, the maternal grandparents’ time with E. took place at AN’s parents’ home from January 13, 2022 to April 28, 2022, supervised by Kelly Rose-Hurst and Renew Supervision.

[118] The evidence from the PSWs who work with E. and who were present when IF and BOF had contact with E. is that IF and BOF criticize the care that is being given to E. and the medical treatment she receives and have little regard for the PSWs looking after E.’s daily needs.

[119] Khadija swore an affidavit, dated September 20, 2022, as her evidence in chief.[^22] She also testified orally and was cross-examined. Khadija worked with E. generally 4 days a week, from 9:00 a.m. to 4:00 p.m. Her daily routine with E. was to change her, brush her teeth, put on her hip braces and orthotics, place her in the stander, or take her out for a walk. She also fed E. through the G-tube and administered all of her medications and water flushes.

[120] Khadija explained in mid-2021, E. was experiencing frequent episodes of vomiting which required frequent clothing changes. She explained that given E.’s high muscle tone, it was very difficult to put a shirt on E. or change her position from sitting to supine. She also testified that it was very difficult to comb E.’s hair due to her spasticity. Khadija deposed that one of E.’s main concerns was her spasticity which means E. would extend her head back along with arms, making it impossible to carry her. As a result, AN and his parents decided to move to a bungalow where they would not have to carry E. up and down stairs, to keep her safe.

[121] In addition to assisting with E.’s personal care, Khadija would participate in E.’s medical appointments, physiotherapy, speech therapy, music therapy, occupational therapy, aqua therapy and massage therapy. Some of the therapies were conducted in-person and others were conducted virtually. Khadija would accompany AN’s parents to these appointments with E.

[122] Khadija testified that she was present during the maternal grandparents’ visits with E., many of which were socially distanced outdoors. She testified that AN’s mother, AA, always made an effort if she was home to greet IF and BOF and leave water out for them. Khadija testified that IF and BOF were rude to AN’s mother; never asked her any questions; never complimented E. on her clothing or how nice her hair looked; or never brought the paternal grandparents any gifts. I place no weight on Khadija’s testimony as to her personal views of whether IF and/or BOF engaged in social niceties on these visits. IF and BOF were doing their best to manage during the very limited access they had been granted to E. From their perspective, AN and his parents should not have had E. in their primary care, and it is understandable why given the horror they were living through, including their daughter being in jail, engaging in social niceties was not at the forefront of their minds. Ms. Long confirmed that the only expectation on the maternal grandparents was that they behave in a civil manner toward AN’s parents.

[123] Khadija testified that IF on more than one visit asked for E.’s hip braces and orthotics to be removed because she felt it was causing E. pain and when Khadija tried to explain that E. needed to wear the equipment, IF became upset and told her that she had worked with special needs and knows what E. needs. This is consistent with Ms. Rose-Hurst’s evidence of IF’s conduct during the visits.

[124] Khadija testified that the maternal grandparents’ visits made her anxious because even though IF and BOF were mostly polite to her, she felt uneasy because of their “seemingly argumentative nature.” I place no weight on these comments. Khadija also testified that in her view, it was clear that IF and BOF did not understand or know how to interact with a child with her level of disability. This comment was based on the fact that IF and BOF would touch E. excessively in repetitive movements rather than engaging with E. with her toys and books. I give no weight to this testimony because IF and BOF testified that when they had limited time with E., they wanted to bond with her. The ways in which the maternal grandparents’ bond with E. may not look typical to Khadija but there is no evidence to demonstrate that touch and massage were not good for E. In fact, there are some access notes which indicate that the massage relaxed E. and put her to rest.

[125] Christina, E.’s current PSW, took over after Khadija. Christina swore an affidavit on September 20, 2022, as her evidence in-chief.[^23] She also testified orally and was cross-examined.

[126] Christina began working with E. in October 2021. She works with E. between 22-30 hours a week. She does not work on the weekends. She testified that she takes care of E.’s medications, completes her exercises with E. and makes sure she is safe and doing the recommended activities. In particular, Christina assists E. with her physical therapy and occupational therapy, including sitting exercises, kneeling exercises and stretches.

[127] Christina testified that she was present for each of IF’s and BOF’s visits with E. and they had many complaints including complaints about E. having to wear braces and the fact that she has to wear them for so many hours. They have asked her to remove E.’s braces and they have asked for her to be removed from her tomato chair. Christina swore that when E. has become irritable or fussy during the visits, she has brought out E.’s toys during visits and suggested that IF and BOF play with E. or read to her, but they would say no, they wanted to bond with E.; IF massages E.’s face, hair and legs and is not aware when E. gets uncomfortable with this; IF is not able to pick up on E.’s cues when she is getting cranky or fussy; IF hovers over E.’s face and clings on to E.; and IF cries in front of E. and her voice is shaky.

[128] As between IF and BOF, Christina testified that BOF was more receptive to her suggestions. Christina testified that while it is generally IF who does not follow guidance or instructions, BOF always tries to give an excuse for IF’s behaviours.

[129] On April 28, 2022, the supervision notes set out that when Christina, told IF that E. could not sit in her lap as IF requested just after she was fed, IF protested, “She is in pain. Are you telling me she is crying because I am here? I am just trying to help!”, when Christina responded that “my hands are tied, IF” and E. continued to cry, Christina explained that E. is to sit for 15 minutes to avoid vomiting due to just eating and that IF cannot move her right away, IF asked the PSW to “help, E. please…This is not bonding here she is crying and in pain:…This is torture for the child.”

[130] I am persuaded by Christina’s testimony that IF and BOF demonstrated an inability to pick up on E.’s non-verbal cues which are meant to express such things as not wanting to be touched. That is understandable since Christina spends four days a week with E. and has become attuned to E.’s cues, moods and needs, whereas IF and BOF have generally only had two to three visits a month to learn these signs from E. I also accept Christina’s evidence that when she attempted to provide IF and BOF with some tools and tips to improve the quality of their time with E., IF in particular was not open to receiving this information.

[131] IF has demonstrated that she does not accept the advice from E.’s daily caregivers as to E.’s needs and that she believes E. is in pain wearing her medical equipment. IF continues to insist that she knows what E.’s needs are, even though E. resided with IF when she was healthy and 18 months old and had no specialized medical needs as she does now.

[132] Kelly Rose-Hurst, a senior child protection worker with the CAST who supervised the majority of IF’s and BOF’s visits, swore an affidavit on September 19, 2022, as her evidence in chief. She also testified at the trial. Ms. Rose- Hurst took this matter over from Kym Tvrdon on December 5, 2019. At that time, E. was in Holland Bloorview. She testified that other than the maternal grandparents’ access with E., she offered to meet with them in-person, virtually and/or over the telephone on several occasions to try and resolve questions they had and suggestions the CAST had for their contact with E. but neither IF nor BOF contacted her to do so.

[133] The essence of Ms. Rose-Hurst’s evidence is that the maternal grandparents undermine E.’s care during their visits. They make derogatory and accusatory claims about the health care professionals working with E., including the PSWs who are employed by AN and spend their days with E., caring for her and are most attuned to E.’s daily needs, behaviours and moods. Ms. Rose-Hurst testified that IF was not willing to accept suggestions by the CAST that clearly would have resulted in improving her and BOF’s relationship with AN and/or would have improved the quality of her access time with E., the most pertinent of which examples are as follows:

i. When she first met with AN on December 5, 2019, he told her he felt IF and BOF should be a part of E.’s life;

ii. AN told her that he wants the maternal grandparents to see E. but he is aware that they have made allegations about his care of E. after she visited his home on weekends (when she was at Holland Bloorview), saying that her lips were dry and that she had G-tube problems;

iii. IF was demanding and confrontational with her. She demanded information about E.; asserted that she had the right to the records and information; and accused E. of not being fed sufficiently and not growing;

iv. She told IF and BOF consistently to communicate with AN by e-mail, copied to her, to arrange their visits with E. at a time which would be best with E., taking into account her availability given her school attendance and other medical/therapeutic appointments. She explained to the maternal grandparents that it was important that they develop an ability to communicate directly with AN without needing CAST for their future relationships. IF and BOF insisted that they were not permitted to communicate with AN. She, along with counsel for the CAST, Nicole Horowitz, explained to the maternal grandparents that that was not the case. They continued to refuse to communicate with AN by e-mail.

v. She communicated to IF and BOF that they should not be asking for E.’s braces to be removed during visits; they should not ask for E. to be moved during visits; IF should not massage E. during visits when it is clear that E. is fussy; they should not contact E.’s treatment providers seeking information about E.; and if IF is crying during a visit, she should leave the room to recover before coming back in.[^24] She further explained that these instructions were given to the maternal grandparents because she had observed that IF was not reading E.’s cues during the visits and AN had received information from one of E.’s doctors that IF had tried to get information from him about E.’s treatment.

vi. She learned that IF has sent out e-mails with attachments of photographs and videos of E. taken by her between December 2019 and March 2022 to various politicians and government agencies, including the Prime Minister and RCMP, making serious allegations about the doctors treating E. As a result, she told IF that she is no longer permitted to photograph and/or record E. during the visits.

vii. She told IF on May 3, 2022, that CAST had been notified by Christina that IF accused her of torturing E. because she insisted that E. remain upright for 15 minutes after being fed and then she tried to take pictures of E. She explained that the VON advised the CAST that Ms. Okonji is no longer prepared to be present during the maternal grandparents’ visits without a CAST worker present and that Renew Supervision is not sufficient.

viii. She found IF to be combative and dismissive when she tried to explain E.’s needs to her. Further, when she tried to give IF suggestions as to how she may be able to meet E.’s needs during her access time, IF insisted that she knows how to meet E.’s needs better than anyone else, even though E. has not been in her care since she developed her extensive medical needs arising from the insulin overdose.

[134] Some examples of the dismissive language IF used with Kelly Rose-Hurst during the maternal grandparents’ visits were E. in response to suggestions or advice from her were:

a. in response to the suggestion from Ms. Rose-Hurst during a visit that when E. appears fussy, she and BOF might try and engage her with books or toys, IF stated that this suggestion is “absurd”. IF goes on to explain that E. is not fussy but, rather, she is in pain and that the only thing that can stop her pain is to remove her metal brace and the straps on her leg; and

b. in response to Ms. Horowitz stating that E. has met milestones that are remarkable considering her condition due to AN’s commitment, IF states that “unfortunately, the facts concerning the condition of E. do not support that fantasy” and that from her perspective E.’s condition has deteriorated under AN’s care.

Conclusion on IF’s ability and willingness to meet E.’s Needs

[135] I find that the manner in which IF and BOF question the treatment proposed by E.’s medical team and the manner in which they respond to E.’s PSWs demonstrate that IF has no willingness or ability to care for and meet E.’s needs for the following reasons:

i. I am persuaded that IF would find her own interpretation of what E. needs and meet those needs, without giving consideration to the team of health professionals who are engaged with and working with E.

ii. IF has demonstrated a complete unwillingness to even understand E.’s needs on her false belief that she knows E. better than anyone else, even though the basis of her knowledge of E. was when she was a healthy 18-month-old.

iii. IF has demonstrated an inability and unwillingness to listen and comprehend the information given to her by AN and/or E.’s daily caregivers as to her needs, temperament, nonverbal cues; tendency to communicate her needs and moods and her overall circumstances.

iv. IF dismisses most of the information given to her about E. because she believes that she knows better than anyone else what E. needs and how best to respond to E.’s needs.

v. IF has demonstrated a complete lack of confidence in E.’s caregivers, including AN, his parents and the PSWs who work with E. daily, along with the entire medical team that looks after E.’s complex medical needs.

vi. IF has been critical, combative and aggressive with E.’s caregivers and doctors and has taken active steps to make serious allegations against AN and many of E.’s doctors by reporting them to officials of trying to poison E.; harm E.; consider AN’s needs instead of E.’s needs; harvest E.’s organs for profit; and/or engaging in criminal activity. While parents and caregivers are free to question medical advice and/or proposed treatment of a child, IF has taken active steps to alienate the entire team of people looking after E. in their attempt to co-ordinate E.’s care with her complex medical needs, while also supporting AN and his parents who have the responsibility of looking after E.

[136] I am not persuaded that BOF approaches E.’s needs in the same manner as his wife. Other than the one incident when Ms. Bush found BOF to be confrontational at Holland Bloorview, BOF appears to not have created any conflict with E. with the medical professionals assisting E. BOF has been receptive to some of the suggestions made by the PSWs and the access notes seem to indicate that BOF was receptive to E.’s non-verbal cues, understanding the need to distract E. when she is fussy and irritable. I believe that without IF present, BOF will be in a far better position to listen to the advice, tips and strategies of the PSWs and health professionals involved with E. because he has never directly told any of these people that he knows better than they do about E.’s needs. Those comments have come from IF.

IF’s and BOF’s ability and willingness to communicate and co-operate, in particular, with AN, on matters affecting E.

[137] IF and BOF continue to have extremely negative views of AN. IF went to great lengths during this trial to highlight AN’s negative character. She described AN’s abusive behaviour towards BF. Much time was taken during this trial by IF going through the disturbing texts AN sent to BF including death threats, suicide threats and threatening pictures, even though the fact that AN sent these texts was conceded by him and he apologized to both IF and BOF for having sent them. IF testified that she does not believe AN has changed.

[138] BF testified about the 32 death threats AN sent to BF between May 15, 2016 and January 22, 2018, some of which included threats such as, I will stick a knife in your eyes and I will crack your skull open.[^25]

[139] In addition to the death threats, AN sent disturbing photographs to BF in an effort to scare her, including a picture of a severed finger; an image of a leg being severed with a saw; a picture of a man with a crushed skull and an open stomach.[^26]

[140] In terms of suicide threats, IF entered into exhibits a number of upsetting threats made by AN to kill himself from 2016 to 2018, examples of which are: “I[t] will be nice to die together on May 15, 2018” and “I want to fall in a ditch and die on June 25, 2016.”[^27]

[141] AN admitted that he sent death threats to BF along with threats that he would commit suicide. He also acknowledged that his texts contained derogatory comments to BF and racist remarks. He testified that he sent many of these texts to get BF’s attention; he was taking drugs at the time many of these texts were sent; they sent these “dark” texts to each other and it was part of their toxic dynamic; he was wrong to have sent these texts and he was ashamed that he had sent them. The evidence is clear that AN has been in therapy and self-study to work on himself.

[142] I accept that AN sent texts and messages to BF in which he threatened to harm her and E.; in which he threatened to kill himself and in which he threatened to kill BF. I also accept that in many of the texts/messages, AN called BF terrible names and that he sent her vile pictures of dead people and dismembered body parts in an effort to anger her, get her attention, threaten her, scare her and make her want to make up with him and/or get back together and/or allow him to see E.

[143] It is understandable in these circumstances why IF and BOF do not think AN was a good husband to BF and/or a good parent to E. prior to the insulin overdose. He threatened their daughter and granddaughter; they remain convinced that he physically harmed BF both before and while she was pregnant; and he was not kind or welcoming to them.

[144] However, I find that AN has changed. AN pled guilty to uttering death threats to BF. He served an intermittent jail sentence. He went to therapy to address his issues. He testified that he has stopped using drugs. Prior to the insulin overdose, AN took a number of parenting courses to educate himself and demonstrate to BF that he was worthy of having parenting time with E. He sat by E.’s bedside at the hospital from the moment he was called by the CAST and taken every possible step to look after E.’s emotional and physical needs since the insulin overdose. AN has continued to educate himself since E. acquired her brain injury and the testimony of both PSWs who have cared for E. and Drs. Lim and Mesterman confirm that AN should be commended for his commitment to E. and in his effort to ensure that she receives the best treatment possible from him, his parents, and the entire team of health professionals involved in E.’s care. He apologized to both IF and BOF during this trial for how he treated BF and for having sent these texts and messages to BF. I find that AN has done his best to accept responsibility for his actions and to improve himself.

[145] While the texts, messages and images AN sent to BF are disturbing and inappropriate, they are not relevant to the issues I need to determine.

[146] IF stated in her closing submissions that the first issue I must determine is whether AN is a suitable caregiver to E. IF is incorrect. I am not deciding that matter in this trial. AN has decision-making responsibility for E. and E. lives with him primarily. IF and BOF withdrew their claims with respect to decision-making rights and primary residence of E. Instead, they seek contact with E. and access to her medical records. Although, I need not go through the exercise to determine whether or not AN has, in fact, changed, I do find that AN has demonstrated that he is committed to caring for E. with as much care and thought as possible, with the guidance and advice of the medical team looking after E.

[147] Notwithstanding AN’s tremendous efforts to be the best parent he can be for E., IF and BOF continue to question his motives and those of his parents. The maternal grandparents remain convinced that he is not looking out for E.’s best interests. They have accused him of:

i. trying to paralyze E. with Botox to make his life easier.

ii. not ensuring that E. receives sufficient physical and occupational therapies;

iii. having his grandmother come to Toronto for the purpose of performing genital mutilation on her;

iv. being connected to a human trafficking cartel who has attempted to take E. away from BF;

v. being part of a conspiracy with the CAST and the OCL of taking E. away from BF and them;

vi. being connected through his mother to an adoption agency in the Middle East, where E. would have been taken if kidnapped and adopted by another family; and

vii. being part of a plan to commit religious genocide and erase E.’s Christian heritage and place her in a family exposing her only to Muslim heritage.

[148] IF and BOF have also shown that they are mistrustful of and unable to communicate effectively with AN's family. In fact, they have advanced several unsubstantiated theories about them as well, the most extreme examples of which are:

(a) IF testified that AN’s mother, AA, threatened BF that the CAST, My Ummah Foster Care and Mercy Mission Foster care would take E. away from her. According to IF’s testimony, these two foster care agencies work to provide foster care for Muslim children. IF testified that a human trafficking organization, who donates money to Trillium Health partners was attempted to abduct E. from BF and to place her in foster care to be raised Muslim. IF testified that AA was connected somehow to Yasmine Abaza, who works with the CAST and that Yasmine Abaza was behind AA’s plan to remove E. from BF. There is no evidence to support any of these theories. Both AN and Azeh deny having any connection to either foster care agency.

(b) IF testified that AN and Azeh brought the paternal great-grandmother to Toronto to meet E. when she was a baby for the purpose of having her conduct female genital mutilation (“FGM”) on E. Both AN and Azeh confirmed that there is no practice of FGM where they are from, Syria, and the only reason the paternal grandmother came from the United States where she lives to visit Toronto was to meet her great granddaughter, E.

[149] Based on IF’s past conduct, I find that she has no ability or willingness to communicate or co-operate with AN or E.’s caregivers on matters affecting E.

[150] I do find, however, that BOF has the ability and willingness to communicate and co-operate with AN and the caregivers assisting with E.

E.’s cultural, linguistic, religious and spiritual upbringing and heritage, including her Serbian heritage

[151] E. is a child of two parents who have different cultural, linguistic, religious and heritages. BF and her family are Serbian and Orthodox Catholic. Given that E. was residing primarily with BF and her maternal grandparents for 18 months, E. was exposed to this heritage and culture. E. was spoken to in Serbian. She was told Serbian folk stories, children’s stories and sung Serbian songs. IF’s evidence is that the only language E. knew was Serbian until the insulin overdose and IF believes that Serbian remains the only language E. understands.

[152] It is impossible for me to determine or conclude what languages E. understands because of her brain injury. Dr. Lim confirmed during her testimony that it is very difficult to know what E. can see or understand because she cannot communicate verbally. I accept that E. was spoken to in both English and Serbian for the first 18-19 months of her life by BF and the maternal grandparents. I also accept that E. understood Serbian and that E. was exposed to the English language, since IF testified that E. knew her letters and her numbers in both languages. I do find, however, that E. was spoken to in English when she was at Sick Kids and Holland Bloorview during the first 6 months of her recovery. I also find that she is spoken to in English by AN; the two PSWs who care for her; by all of the medical professionals who work with E.; and the teachers at her school. E. is sometimes spoken to in Arabic by her paternal grandmother but there is no evidence to confirm that E. understands or responds to the Arabic language.

[153] The evidence from everyone at the trial is that E. does respond to the people around her. Sometimes she turns her head. Other times her eyes track people with her. Other times she has responded with her voice or a smile. AN testified that E. could respond to a command to open her hands when they are fisted. This suggests she may understand English.

[154] While E. continues to live primarily with AN and his parents, E. will continue to be exposed to their Muslim culture, heritage and spiritual upbringing, including exposure to the Arabic language. Given that BF is incarcerated, both IF and BOF testified that if E. is denied contact with either or both of them, she will lose her exposure to her Bosnian and Catholic culture, heritage, language and religion. I agree.

[155] It is in E.’s best interests to be exposed to both of her parents’ cultures, something the Gilmore Order also highlighted. The issue is whether E.’s exposure to her Bosnian culture and heritage is to occur at the expense of her other interests in not being exposed to conflict between her maternal and paternal families; or being exposed to caregivers who dispute the medical treatment E. is needs.

[156] While I find that it is important for E. to be exposed to her Bosnian heritage. I also find that contact with IF will jeopardize E.’s emotional and medical stability, which must be given priority given E.’s fragile and vulnerable medical needs and state.

[157] If E. has limited exposure to BOF, I believe that he will be able to continue to expose E. to her Bosnian heritage by talking to her and singing to her in the Serbian language and exposing E. to the maternal family’s traditions and religious practices.

Any criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of E.

[158] The transcripts from Dunphy, J.’s Reasons for Sentence, indicate that BF made it clear in her pre-sentence report that she intends to resume her legal battle with AN and his family over E. as soon as she is able to. As a result, Dunphy, J. found that E. needs to be protected from BF and BF was given a life sentence. A non-communication order was put in place prohibiting BF from having any contact with E., AN, AN’s parents, or any person known to be a member of AN’s family.

[159] IF testified that BF is appealing her criminal conviction and she will do whatever possible to seek custody of E., if she is successful on her appeal. Given this information, I find that it is in E.’s best interests that this non-communication order remain in place even if BF appeals her criminal conviction and/or sentence.

My Ultimate Findings

Conclusion about IF or BOF having contact with E.

[160] I find that it is not in E.’s best interests to have any contact with IF. It is truly a shame that both sets of E.’s grandparents could not see their way to work together for the benefit of E. If anyone deserves their combined love and attention, it is E. Regrettably, however, IF has not been able to put her anger and bitterness aside. IF continues to blame AN for BF’s circumstances and continues to insist that AN or some third party he engaged is responsible for the insulin overdose. As long as IF takes this position, she will not be able to consider E.’s needs or be able to meet her needs in a meaningful fashion. Instead, IF places her own needs ahead of E.’s needs.

[161] Although this trial has nothing to do with the events of June 12, 2019, the insulin overdose, it is necessary to understand IF’s submissions as to what she believes happened because having been found guilty by a jury, BF is incarcerated and may never have contact with E. again. If IF believes her daughter is innocent, it is possible that she may try and have conversations with E. or tell her stories about her mother which could be determinantal and harmful to E.

[162] BF and IF deny that they had anything at all to do with the insulin overdose. They believe a third party was responsible for the insulin overdose. IF testified that in May 2019, someone had purposefully put chemicals on the door of her apartment that made her, BOF and BF sick. She produced photographs of black vomit and mucous secretions from her and BF along with lung X-rays to prove these harmful chemicals were in her apartment that made them ill, as evidence that some third party was trying to harm them.[^28] None of the evidence IF produced proved that any chemicals were found in her apartment or were the cause of the illness.

[163] The fact that IF remains steadfast in her believe that BF did not attempt to murder E. means that IF will do everything in her power to assist her daughter, including assisting her to try and regain access to E., if possible and/or talking to E. about her mother in a positive light. IF’s inability to accept that BF planned this insulin overdose means that she is not able to truly consider what is in E.’s best interests. This is not necessarily the determining factor disentitling IF to have contact with E. but it is an important consideration in my decision-making.

[164] At a time when IF could have been an asset to E., she instead was insistent that she knew better as to what E. needs. This combative nature on IF’s part prevented her from learning about E.’s condition once she was released in AN’s care. IF relies only on her knowledge of E. as a healthy toddler and her knowledge of E. in rehab at Holland Bloorview and was missing the information from the time E. was released from Holland Bloorview in December 2019 until September 2022. If IF had been open to learning from the people who were caring for E. on a regular basis, she could have experienced better quality time with her granddaughter; she could have learned how to become more attuned to E.’s needs and non-verbal gestures; she could have developed a way to communicate productively with AN about E. and the two families, could have collectively worked together toward the same goal of improving the quality of E.’s life. Instead, IF was focussed on the past entrenched in her anger and bitterness toward AN and the legal system. She remains convinced that AN is a bad person and unfit to care for E. She remains convinced that the CAST, the OCL and the legal system are in a conspiracy against her and BF and these unfounded beliefs simply make it impossible for IF to consider E.’s best interests because of her focus on these issues.

[165] Although AN seeks, and the OCL and the CAST recommend, an order that both IF and BOF have no contact with E., I have determined that it is not in E.’s best interests to defer to AN’s decision regarding E.’s contact with her maternal grandfather, BOF, for the following reasons:

a. BOF was not in Canada when the insulin overdose took place. There has been no suggestion that he played a role in that incident in any way.

b. While it is unclear based on the medical experts who have testified in this trial what E. can understand or remember about her life prior to the insulin overdose, or since the overdose, E. should not be deprived of the benefits of continuing her relationship with her paternal grandfather based solely on the conflict that has been caused in the visits since the insulin overdose.

c. While there is evidence to suggest that BOF is aligned with IF and supports her views about E. not receiving proper care by AN, there is also evidence that BOF has been respectful and kind toward the PSWs looking after E. and that he has taken advice and direction from them during his supervised time with E.

d. The access notes from Renew Supervision along with Ms. Rose-Hursts’ notes indicate that E. responds to BOF’s voice; his singing to her; and his attempts to distract her when E. is irritable. In this manner, alone, it would be constructive for E. to have another adult in her life who loves her, who is available to provide some care and nurturing to her.

e. BOF has demonstrated an unwavering commitment to see and spend as much time with E. as he has been permitted given Covid-19 and the court orders since the insulin overdose.

f. BOF has submitted that he is prepared to see E. at a location chosen by AN, supervised by whomever AN wants, and that he is prepared for AN to unilaterally stop the visits if AN believes that BOF has behaved inappropriately. Further, BOF has agreed to pay the cost of the supervision. In this manner, BOF has demonstrated an appreciation for AN’s stated concerns about E. having access with her maternal grandparents and BOF is prepared to fully allay those concerns.

g. Finally, E.’s mother is incarcerated. It is impossible for anyone to know if E. has any memory of the insulin overdose incident that occurred on June 11-12, 2019. Given the terms of BF’s sentence, one can liken it to E. having lost a parent. BOF applying to have contact to E. can be likened to a relative of a lost parent seeking contact.

[166] I find that it is in E.’s best interests to have limited contact with BOF. I am persuaded that he will be able to follow the conditions I have imposed on his contact with E. and that he has demonstrated a willingness to meet E.’s needs and to communicate with AN, which will be enhanced with IF present during this contact.

[167] While BOF seeks to have contact with E. on alternate weeks, I find that if he has contact with E. once a month, that strikes the necessary balance of considering the impact of that access on E. and AN and the paternal family, and that any more time could destabilize the family unit who have the responsibility to look after E. 24 hours a day, 7 days a week.

Conclusion about IF and/or BOF having Access to Medical information about E.

[168] I find that BOF was passive and wilfully blind to IF’s conduct during their visits with E. and in the ways in which she lashed out. I also find that he has no ability to control IF. During IF’s testimony, I observed BOF often nodding his head in encouragement to IF’s story and her version of events while she testified. I believe that BOF supports his wife emotionally but that he does not necessarily share her delusional theories. While BOF was not in the country when the insulin overdose took place and while it is agreed that BOF did not e-mail any of the politicians or authorities complaining about E.’s care or the Gilmore Order, it is also clear that he was not able to impart to IF that the conduct in which she insisted on engaging, including being highly critical of those assisting with E.’s care could be detrimental to E.

[169] With respect to medical information about E., I find that it is not in E.’s best interests for either IF and/or BOF to have access to E.’s medical records. It is clear that IF has taken steps to report the doctors responsible for providing care to E. to the point where each of the doctors reported feeling threatened and worried by the letters written by her about them. Further, despite being provided with clear answers as to why certain treatments have been recommended for E., IF continues to insist that Dr. Mesterman injected E. with Botox at AN’s insistence for the purpose of paralyzing her. In addition, IF continues to insist that if E. receive a hip replacement it is for the sole purpose of Dr. Kishta harvesting E.’s organs, despite Dr. Mesterman explaining that E.’s hips are dislocated and there is no plan to remove E.’s hips. IF appears to have no insight into how these baseless allegations alienate the doctors and caregiving team that AN has put in place to look after E. Although BOF has not made these delusional accusations, I am persuaded that if BOF were given access to E.’s medical records there is a high probability that IF will gain access to this medical information through him. If IF has these medical records or medical information about E., she has demonstrated that she will continue to question, criticize and undermine the care that AN and the health providers are giving to E. This would be harmful to E. as it is not in her best interests that any of her health care providers are placed in a position of criticism when their only interests is improving E.’s quality of life and functionality, if possible.

[170] I find that if given access to E.’s medical records or reports, IF will simply continue to try and work for her own reasons to create her own narrative of what she believes is in E.’s best interests. If BOF or IF have medical information about E., there is a probable risk that IF could continue to complain to government officials and authorities about the medical care that AN has in place for E. which then requires AN and the doctors or health professionals about whom IF complained to respond to these complaints and address these baseless allegations. Looking after E. is a 24-hour-a-day responsibility. It takes considerable effort, patience, skill, love and care to be attuned to E.’s needs, moods and temperament to ensure that E. is as comfortable and happy as E. can be, given her circumstances. AN and his parents have put up with significantly high levels of conflict and animosity caused by IF’s insistence that E. is not being properly cared for. They need not continue to be faced with this level of chaos and grief going forward.

Restraining Order

[171] AN seeks a restraining order against IF and BOF, based on his fear that they will continue to engage in spiteful, accusatory and abusive behaviour against him. The authority on which AN relies on for the court to make a restraining order is set out in s. 46(1) and (2) of the Family Law Act, R.S.O. 1990, c. F.3., which provides as follows:

46 (1) On application, the court may make an interim or final restraining order against a person described in subsection (2) if the applicant has reasonable grounds to fear for his or her own safety or for the safety of any child in his or her lawful custody.

(2) A restraining order under subsection (1) may be made against,

(a) a spouse or former spouse of the applicant; or

(b) a person other than a spouse or former spouse of the applicant, if the person is cohabiting with the applicant or has cohabited with the applicant for any period of time.

[172] I find that s.46 of the Family Law Act only permits the court to make a restraining order against a spouse, or a former spouse of someone who has cohabited with AN for a period of time. Since AN is seeking a restraining order against IF and BOF, the maternal grandparents, the authority for the restraining order he seeks is s. 35 of the Children's Law Reform Act, R.S.O. 1990, c. C.12, which allows AN to ask for a restraining order against any person. Section 35 provides as follows:

35(1) On application, the court may make an interim or final restraining order against any person if the applicant has reasonable grounds to fear for his or her own safety or for the safety of any child in his or her lawful custody.

[173] For me to grant AN the restraining order he seeks against both IF and BOF, I must be satisfied that AN has reasonable grounds to fear for his safety or the safety of E.: s. 35(1).

[174] In Gauthier v. Lewis, 2021 ONSC 7554 (Ont. S.C.J.), the Court held that the onus of proof is on the person asking for a restraining order and that the standard of proof is on a balance of probabilities: at para. 36.

[175] A person’s fear sufficient to justify a restraining order may be entirely subjective, so long as it is reasonable and legitimate.

[176] In R.K.K. v. J.L.M., 2007 ONCJ 223, Dunn, J. held at paras. 33-34:

When a court grants a restraining order in an applicant’s favour, the respondent is restrained from molesting, harassing or annoying the applicant. It is not necessary for a respondent to have actually committed an act, gesture or words of harassment, to justify a restraining order. It is enough if an applicant has a legitimate fear of such acts being committed. An applicant does not have to have an overwhelming fear that could be understood by almost everyone; the standard for granting an order is not that elevated. However, an applicant’s fear of harassment must not be entirely subjective, comprehended only by the applicant. A restraining order cannot be issued to forestall every perceived fear of insult or possible harm, without compelling facts. There can be fears of a personal or subjective nature, but they must be related to a respondent’s actions or words. A court must be able to connect or associate a respondent’s actions or words with an applicant’s fears.

If a respondent has committed past acts or words of harassment, they must have some current relationship with an applicant’s present fears. It may not be enough if a respondent was violent to an applicant in the past and the applicant and respondent then had an ongoing subsequent relationship that was, if not harmonious, at least not conflicted. If such an applicant then links the past aggression with possible future aggression, a court will look closely at the intervening period between a respondent’s past harassment, and what an applicant perceives to be his or her present concern.

[177] In McCall v. Res, 2013 ONCJ 254 (Ont. C.J.), Spence J. reviewed the relevant cases and, at para. 31, summarized the attributes of a person’s fear sufficient to support a restraining order:

What I take from these cases is:

• The fear must be reasonable;

• The fear may be entirely subjective so long as it is legitimate; and

• The fear may be equally for psychological safety, as well as for physical safety.

[178] The above analysis from McCall, supra, was adopted by Kiteley J. in Lawrence v. Bassett, 2015 ONSC 3707 (Ont. S.C.J.). Kiteley J. underscored the point that the fear may be equally for psychological safety as well as physical safety.

[179] In Bedzow-Weisleder v. Weisleder, 2018 ONSC 1969, one of the issues at trial was whether a permanent restraining order ought to be issued. The evidence in support of the restraining order centered around communications from Ms. Bedzow consisting of e-mails, texts and Instagram posts. These were found to be “harassing, abusive, vulgar, and hateful”: at para. 13. Akbarali J. also found that a legitimate fear for one’s psychological safety and not just physical safety is sufficient to conclude that the grounds for a permanent restraining order were made out since Ms. Bedzow’s communications engendered a legitimate fear in Dr. Weisleder for his psychological safety, were emotionally abusive and that Dr. Weisleder should not be subject to them: at paras. 34-35.

[180] There was a great deal of evidence outlining IF’s spiteful and abusive letters she sent to various third parties complaining about AN and what she perceived to be his insufficient care for E. IF made outlandish, hateful and aggressive allegations about AN. I have outlined in paragraph 110 above all of the accusations IF has made against AN. I conclude that these accusations engender a legitimate fear in AN for his psychological safety. In evidence, AN confirmed the highly upsetting nature of IF’s accusations, criticisms, and outlandish theories about his care of E. The communications about AN to third parties are aggressive, hateful and insensitive and AN should not be subject to them, particularly when he requires all of his energy to look after a severely disabled child who requires 24-hour-7-days-a-week care. I thus conclude that the grounds for a permanent restraining order with respect to IF’s communications to AN under s. 35 of the CLRA have been made out.

[181] I am not persuaded, however, that BOF has engaged in conduct that would create a subjective fear to AN. BOF has not sent AN any abusive e-mails; sent out any threats toward AN, nor has he made spiteful or abusive allegations about AN. I do not find that BOF has engaged in behaviour that requires a restraining order against him.

Order

[182] Based on all of the above, I make the following order:

a. Pursuant to s.16.1 of the Divorce Act, AN shall have sole decision-making responsibility over all decisions relating to E.

b. Pursuant to s.16.1 of the Divorce Act, E. shall reside with AN at all times.

c. Pursuant to s.16.5 of the Divorce Act, IF shall have no direct or indirect contact with E., AN, or any members of AN’s family, whatsoever;

d. Pursuant to s.16.5(5) and s.16.5(7) of the Divorce Act, BOF shall have supervised contact with E., not more than once a month for up to 1 hour, subject to AN’s assessment as to whether E. can manage a 1-hour visit;

e. Pursuant to s.16.5(6) of the Divorce Act, the contact between BOF and E. shall be subject to the following conditions:

i. The contact shall occur at a date and location chosen by AN and shall be supervised by a supervised access centre, at BOF’ sole cost.

ii. AN shall provide BOF with at least 48 hours notice of the intended contact between E. and BOF.

iii. AN or his designate shall transport E. to the visit;

iv. The visits shall be supervised by staff of a private nursing agency, the cost of which is to be paid for solely by BOF.

v. BOF and AN shall immediately take steps to subscribe to the application Our Family Wizard so that all contact between BOF and AN takes place on this platform. BOF shall ensure that IF does not have access to his Our Family Wizard account and/or his communications with AN.

vi. If BOF takes a photograph of E., he shall not send it to anyone else, including IF or BF. He shall not disseminate any pictures of E. to anyone.

vii. If E. is admitted to a hospital, BOF’s visits with E. may take place in this setting at AN’s sole discretion. If BOF’s visits take place in this setting, BOF shall not make any complaints to hospital staff regarding E.’s care.

viii. During BOF’s contact with E.:

1. BOF shall not ask for E.’s braces to be removed or for E.’s position to be moved.

2. BOF shall utilize and rely on the advice of the PSW present at the contact, in terms of strategies to ensure that E. is comfortable and distracted when and if she appears fussy.

3. BOF shall not criticize or denigrate the PSW in any way.

4. E. shall always have a PSW or nurse present at BOF’s contact, in addition to the access supervisor;

5. BOF shall be courteous and civil to AN and/or his designate at access exchanges;

6. BOF shall not interfere with any of E.’s medical devices or equipment.

7. BOF shall be free to speak with E. in Serbian

8. BOF shall not discuss BF with E. or speak of BF in E.’s presence;

9. At AN’s discretion, he may advise BOF of medical information about E. If he does, BOF shall not share this information with anyone, including IF or BF.

10. If either AN, the PSW or the nurse observing the visits between BOF and E. observe any behaviours by BOF which would be a risk to E., they shall immediately bring this to AN’s attention and to the attention of the local child protection authority; and

11. If at any time, AN believes that E. is harmed during a visit with BOF, AN may unilaterally suspend BOF’s access and bring an urgent motion before this court to suspend the contact.

ix. Pursuant to s.16.5(5) of the Divorce Act, the supervisor who supervises BOF’s contact with E. shall provide his/her notes to AN and BOF by e-mail to the Our Family Wizard application.

x. Pursuant to s.16.5(6) of the Divorce Act,

1. Neither IF nor BOF shall have access to any medical reports, information or records in relation to E.

2. Neither IF nor BOF shall contact any of the medical or health professionals working with E.

xi. Pursuant to s. 35 of the Children’s Law Reform Act, IF shall be permanently restrained from any direct or indirect contact or communicating with AN or E. and from coming within 100 metres of AN’s home, E.’s school, any of the centres where E. receives treatment, including the McMaster Children’s Hospital, The Smile Clinic, and The Ron Joyce Centre.

xii. The parties shall try and reach an agreement as to costs. If they are unable to do so, AN shall serve and file written costs submissions of no more than 5 pages, double-spaced, not including any Offers to Settle or a Bill of Costs, within 20 days of the release of this Endorsement. Within ten days of being served with AN’s costs submissions, IF and BOF shall serve and file written responding costs submissions of no more than 5 pages, double-spaced, not including any Offers to Settle or a Bill of Costs. Within three days of being served with IF’s written responding costs submissions, AN shall serve and file reply costs submissions of no more than 2 pages, double-spaced, if any.

xiii. Within ten days of the release of this Endorsement, BF or a representative on her behalf shall pay AN’s costs of $10,000 as ordered by Justice Gilmore, in her order, dated June 3, 2019.

M. Kraft, J.

Released: December 16, 2022

COURT FILE NO.: FS-18-03302

DATE: 20221216

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

BF

Applicant

– and –

AN

Respondent

– and –

IF

Added Respondent

– and –

BOF

Added Respondent

– and –

Office of the Children’s Lawyer

REASONS FOR JUDGMENT

Kraft, J

Released: December 16, 2022

[^1]: The paternal grandmother’s name is A.A. [^2]: Attached to this judgment as Schedule “A” is a detailed chart outlining the procedural history of this matter. [^3]: Exhibit #2: Death threats made by AN to BF; Exhibit #3: Disturbing photographs AN sent to BF; Exhibit #7: Threats of harm by AN to BF, regarding E.; and Exhibit #10: Threats of suicide made by AN to BF. [^4]: AN commenced his OCJ application on May 9, 2018. He sought parenting time with E. on alternate weekends and one mid-week dinner; shared holiday time; permission to travel with E to any Hague signatory country; and an order that the parties communicate by email regarding E. [^5]: On February 6, 2018, BF reported AN’s threats to harm her and himself to the police. IF testified that the police called AN, cautioned him against contacting BF and told him that he could not see or spent time with E. While the police did caution AN not to send BF any further threatening texts or to contact her, unless through a lawyer, they did not tell him he could not see E. [^6]: On May 7, 2018, Jacqueline Vanbetlehem, a social worker with whom BF’s lawyer had consulted, contacted the CAST about her concern of family violence between BF and AN. On May 8, 2018, BF went to the police and reported the texts AN had sent her in which he threatened to kill her; to commit suicide; he sent her disturbing photographs of dead people and people with dismembered body parts. [^7]: In this trial, AN testified that he completed 9 self-help courses, one of which was the 12-session PAR program and the remaining 8 were parenting courses, some specifically to learn how to care for a child with a brain injury: see Exhibits #47, #48; #49; #52; #53; and #54; [^8]: AN was granted leave to bring a motion for supervised access to E. by Hood, J. on August 22, 2018. [^9]: Filipovic v. Najjar, 2019 ONSC 3315. The Gilmore Order required AN to have his first four visits with E. supervised at a supervised access centre, thereafter, his visits were to be supervised by his mother, the paternal grandmother, with access to be revisited in three months: paras.87-89. [^10]: The CAST had also received a call from Paul Valenti, Court Services MAG, because of his obligations under the Child and Youth Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1. [^11]: Letter from Dr. Callen to Dr. Lim, dated July 5, 2020. [^12]: Court files # FS-19-013158 and #FS-19-013159 to be joined to Court file #FS-18-003302. [^13]: Initially by Brayden Supervision and then by Renew Supervision. [^14]: The people who were present during the maternal grandparents’ access to E. were Kelly Rose-Hurst of the CAST, Christina Okonji, a PSW; and Khadija Al Haraji, a PSW. [^15]: Exhibit #2 at trial. [^16]: A Tomato Chair is a Soft-Touch Sitter, an adaptive seating system that provides support covered in soft, cushioned waterproof material. [^17]: The Audiology report, dated April 13, 2021, confirms that E.’s hearing is Normal. [^18]: Thera Togs are orthotic undergarments and strapping products to give individuals with sensorimotor impairments a way to improve postural alignment, stability, movement skills, joint stability, etc. [^19]: Exhibit #12: Exhibits 50-65 of IF’s affidavit, sworn July 15, 2022, Exhibit #60 is IF’s Plan of Care for E. [^20]: Exhibit #17, Dr. Mesterman report, dated February 18, 2022. [^21]: Exhibit #12: Physical Therapy Discharge Summary for E., Holland Bloorview, dated December 11, 2019, prepared by Fraser Stephenson PT. [^22]: Exhibit #42 at trial. [^23]: Exhibit #39 at trial. [^24]: Note that IF denied crying during any visits and testified that she has an eye condition making it impossible for her to shed tears. [^25]: Exhibit #2 at trial: Text messages from AN to BF. [^26]: Exhibit #3 at trial: All the disturbing photographs AN Najjar sent to BOF Filipovic. [^27]: Exhibit #10 at trial: Suicidal threats from AN to BF. [^28]: Exhibit #27: 47 Photographs submitted by IF to demonstrate sickness from chemicals;