CITATION: M.A.B. v. M.G.C., 2022 ONSC 7207

COURT FILE NO.: FC 1728/17

DATE: December 22, 2022

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

M.A.B.

Applicant

– and –

M.G.C.

Respondent

Ben Fortino, for the Applicant

The Respondent, self-represented

REASONS FOR JUDGMENT

The Honourable Madam Justice Deborah L. Chappel

PART 1: INTRODUCTION

[1] The Applicant M.A.B. and the Respondent M.G.C. had a short-lived relationship during the summer of 2016. They never cohabited, but they have one child from their union, a son J.M.C., who was born in May 2017. The Applicant is J.M.C.’s father, and the Respondent is his mother. For ease of reference, I will refer to the Applicant as “the father” and the Respondent as “the mother” in these Reasons for Judgment. J.M.C. has remained in the primary care of the mother since his birth.

[2] The father commenced an application in this court on December 18, 2017, seeking joint custody (now “decision-making responsibility”) and specified unsupervised parenting time with J.M.C. On May 30, 2019, Lafrenière J. made a final order in the application on the eve of trial, pursuant to comprehensive Minutes of Settlement executed by the parties. The order granted the mother sole decision-making responsibility and primary care of J.M.C. and awarded the father unsupervised alternate weekend parenting time according to a gradually increasing schedule. The parties were to review the father’s parenting time on or before May 31, 2020, with a view to expanding his time to full alternate weekends. The order also required the father to pay the mother child support for J.M.C. in the amount of $467.00 per month, based on his 2017 income of $50,677.91.

[3] As I will discuss in these Reasons, the father did not enjoy regular and consistent parenting time with J.M.C. in accordance with the May 30, 2019 order, primarily due to cancellations by the mother. In late December 2019, approximately four weeks before the father’s overnight parenting time was to begin, the mother unilaterally suspended all of his parenting time, citing numerous alleged concerns regarding the child’s safety and wellbeing while in his father’s care in support of her decision. The mother commenced the current Motion to Change Final Order on February 14, 2020. She requested that the father’s parenting time be in her sole discretion, and that it be supervised at a professional supervised parenting centre. In his Response to Motion to Change Final Order dated March 4, 2020, the father requested a dismissal of the mother’s request for supervision of his parenting time with J.M.C., an order for sole decision-making responsibility respecting J.M.C. in his favour, and an order granting him parenting time that would maximize his time with the child in accordance with the child’s best interests. He also requested that his child support obligation in relation to J.M.C. be retroactively reduced effective July 1, 2019.

[4] On March 20, 2020, the father also filed a motion for an order, among other things, finding the mother in contempt of the parenting time terms of the May 30, 2019 order, directing the mother to immediately comply with those terms and seeking makeup parenting time for all visits that he had missed. Brown J. decided on April 1, 2020 that the father’s motion for a finding of contempt, for makeup parenting time and for supervised parenting time exchanges should be adjourned sine die. She heard the father’s claim for an immediate reinstatement of the parenting time terms of the May 30, 2019 order on April 3, 2020. On that date, Brown J. made a temporary temporary without prejudice order granting the father parenting time with J.M.C. on alternate weekends, from 10:00 a.m. until 8:00 p.m. on Saturday and from 2:00 p.m. until 8:00 p.m. on Sunday. This temporary temporary without prejudice order has not been varied during these proceedings.

[5] The father did not have consistent parenting time in accordance with the terms of the temporary temporary order dated April 3, 2020 order, and he has chosen not to exercise his time with J.M.C. since March 27, 2021. As I will discuss in these Reasons, there have been several recurring dynamics since the child’s birth that have impeded the father’s efforts to maintain a strong, consistent and loving relationship with J.M.C. These include significant conflict between the parties and their extended family members; the mother’s repeated unsubstantiated allegations of inadequate supervision, neglect and maltreatment of J.M.C. during the father’s parenting time; regular medical examinations of the child and photographing of his body by the mother due to her concerns respecting his safety and wellbeing during visits; and several child protection and police interventions due to the mother’s allegations against the father and his family.

[6] The hearing of the parties’ claims proceeded before me as a trial with viva voce evidence. By the time of trial, the relief requested by the parties had shifted. With respect to parenting issues, the mother requests an order granting the father supervised parenting time on alternate Saturdays for two hours at a professional supervision centre to begin with, but advancing gradually over time in her sole discretion to unsupervised visits on alternate Saturdays from 11:00 a.m. until 4:00 p.m. if she feels that such a progression is in J.M.C.’s best interests. She seeks numerous other variations to the parenting terms of the May 30, 2019 order. The father has abandoned his claims for makeup parenting time for all missed visits and for sole decision-making responsibility respecting J.M.C., but he requests an order requiring the mother to adhere to the recommendations of third party professionals involved with the child and to notify him of any major decisions that she makes. He seeks an order granting him regular parenting time beginning with every weekend on Saturday and Sunday from 10:00 a.m. until 6:00 p.m. for four weeks, following which his regular parenting time would progress to full alternate weekends from Friday until Monday morning. In addition, he requests an order for specified parenting time during holidays and on special occasions, and numerous additional parenting terms which I discuss in further detail below which are aimed at addressing many of the concerns that have developed around parenting issues.

[7] In regard to the contempt motion, although counsel for the father advanced arguments in support of the contempt claim, he indicated that the father would accept as an alternative a declaration that the mother has violated the parenting time terms of the May 30, 2019 order. This was a reasonable position to take, as the Ontario Court of Appeal held in Fiorito v. Wiggins, 2015 ONCA 729 (C.A.) that an order for contempt can only be granted if the order in question remains live and operative as of the date of the contempt hearing. While the May 30, 2019 order remained live and operative when the Applicant commenced his contempt motion, this was no longer the case as of the commencement of the hearing of the motion before me. The relevant parenting time terms of the May 30, 2019 order had been superseded by the temporary temporary without prejudice order of Brown J. dated April 3, 2020. Moreover, the May 30, 2019 order was no longer “operative,” as of the time of trial. As I have indicated, the Applicant father has chosen not to exercise his parenting time with J.M.C. since March 27, 2021 for reasons that I will discuss at length.

[8] With respect to child support, the father requests that the Table amount of support payable to the mother pursuant to the Child Support Guidelines (Ontario), O. Reg., 391/97 (the “Guidelines”) be retroactively reduced commencing July 1, 2019, to the Table amount based on his 2018 income, and that it also be reduced for the period up until June 30, 2022. 2019 and 2020. He also requests that the May 30, 2019 order be varied to specify that the parties must contribute to J.M.C.’s section 7 expenses on a proportionate to income basis rather than equally.

[9] In reviewing the evidence in chambers during the period of Closing Submissions, I concluded that the nature of the numerous allegations raised by both parties, and the extensive intervention of child protection and police authorities, raised questions as to whether a mental health assessment of either or both parties may be warranted. Accordingly, on May 18, 2022, I released an endorsement ordering that either party could bring a motion for an order requiring the other to undergo a mental health assessment pursuant to either section 30 of the Children’s Law Reform Act, R.S.O., 1990, c. C-12, amended, (the “CLRA”) or section 105 of the Courts of Justice Act, R.S.O. 1990, c. C- 43, as amended, to acquire more information that may assist the court in addressing the problems that have persisted in this case relating to parenting matters. Pursuant to this order, the father brought a motion returnable on June 29, 2022, requesting an order requiring the mother to arrange for and undergo a psychiatric assessment.

[10] Finally, during Closing Submissions, I raised the question of whether the names of the parties, the child and all non-professional witnesses should be initialized in these Reasons for Judgment. In addition, the father requested an order sealing all trial exhibits that include photographs that the mother took of the child’s body to document alleged abuse and neglect while in the father’s care. Both parties agreed that these measures would be appropriate.

[11] Based on the above, the specific questions to be determined are as follows:

1. Are there grounds to restrict the operation of the open courts principle by initializing the names of the parties, the child and all non-professional witnesses, and by sealing exhibits that include photographs that the mother took of the child’s body to document alleged abuse and neglect?

2. Have there been any material changes in circumstances since May 30, 2019 that affect or are likely to affect the best interests of J.M.C., so as to satisfy the threshold test for varying the parenting terms of that order?

3. If the answer to question #2 is yes, what parenting terms are currently in J.M.C.’s best interests?

4. Should the mother be ordered to undergo a psychiatric assessment pursuant to either section 30 of the CLRA, section 105 of the Courts of Justice Act, or both Acts?

5. Should a declaration issue finding that the mother breached the parenting time terms of the May 30, 2019 order?

6. Have there been any material changes in circumstances relevant to child support since May 30, 2019 which satisfy the threshold test for varying the child support terms of that order?

7. If the answer to question #6 is yes, has the father satisfied the test for retroactively reducing the Table amount payable to the mother effective July 1, 2019?

8. If the answer to question #7 is yes, what is the appropriate amount of child support that the father should pay from July 1, 2019 onward?

9. Finally, has the father made out a case for varying the share of his contribution to section 7 expenses respecting J.M.C.?

[12] For the reasons set out below, by way of general overview, I have concluded as follows:

1. The names of the parties, the child and all non-professional witnesses should be initialized, and the exhibits containing photographs that the mother took of J.M.C.’s body to document alleged abuse and neglect should be sealed so as to protect the privacy interests of the parties and the child.

2. There have been material changes in circumstances since the May 30, 2019 order that have affected and are likely to affect J.M.C.’s best interests. Accordingly, the threshold test for varying the parenting terms of that order has been satisfied.

3. The mother should retain sole decision-making responsibility and primary residence of J.M.C.

4. The numerous concerns that the mother has raised respecting the safety and wellbeing of J.M.C. while in the care of the father and his family members have either not been substantiated on the evidence or do not warrant supervision or any significant limitations on the father’s parenting time.

5. It is in J.M.C.’s best interests to resume parenting time with his father right away. Given that he has not seen the father for 21 months, and the potential that he may have anxiety around visits with his father due to the problems relating to visits in the past, the father’s regular parenting time will be reinstated gradually through a 5 stage process. It will commence with visits every Saturday for four hours, in the presence of a supervised parenting professional or a social worker of his choice, for four consecutive weeks, and it will eventually expand at stage 5 to alternate weekends from Friday after school until Monday morning with drop-off at school.

6. It is in J.M.C.’s best interests to have meaningful holiday time with both of his parents. I am therefore ordering an equal sharing of holiday periods which provides for parenting time exchanges to occur at school as much as possible, so that face-to-face contact between the parties will be kept to a minimum.

7. It is also in J.M.C.’s best interests to have detailed terms in the parenting order addressing the need for the mother to advise the father of important decisions and events involving the child; travel with the child; communication between the parties; makeup parenting time; conditions on the mother if she cancels parenting time for reasons relating to the child’s health; and prohibiting the mother from photographing the child’s body to document alleged concerns regarding the child’s safety while in the father’s care.

8. There are significant concerns about the mother’s regular, unsubstantiated allegations of neglect, inadequate supervision and maltreatment of J.M.C. while in the father’s care, and her inability to accept professional conclusions and guidance in response to these concerns. This persistent pattern of unsubstantiated allegations gives rise to a reasonable concern that there may be clinical reasons for the mother’s behaviour in relation to the father and her inability to support his relationship with J.M.C. In order to address these concerns, I am ordering that the mother arrange for and undergo a psychiatric assessment as soon as possible, and that she produce the psychiatric assessment report to the father and the court to assist in determining whether any additional terms should be included in the parenting order.

9. I am also ordering that the mother retain and engage the services of a counsellor and parenting coach for an 8 month period, subject to extension, to assist and guide her in managing parenting issues with the father. Furthermore, I am requiring that she consult with this parenting coach before reporting parenting-related concerns about the father or his family members to child protection authorities or the police, except in urgent circumstances where she has reasonable grounds to believe that an immediate report is required for the safety and wellbeing of the child.

10. I am sending a copy of these Reasons for Judgment to the Catholic Children’s Aid Society of Hamilton (“the CCAS”) based on my concerns that J.M.C. is in need of protection in relation to the mother, and that he will be at increased risk of suffering further emotional harm once the father’s parenting time resumes. This will constitute a formal report to the CCAS of my concern that J.M.C. is in need of protection. I am also sending a copy of these Reasons for Judgment to Dr. Anne Niec of the Child Advocacy Assessment Program (“CAAP”), with a request that the CAAP team advise whether it would be willing to undertake an Impact of Child Maltreatment assessment respecting J.M.C., or any other type of assessment to more clearly identify J.M.C.’s needs and provide recommendations for services for this family. I am requesting that both the CCAS and CAAP advise the court if they have any recommendations for services to address J.M.C.’s needs and the parenting-related concerns that I have identified in these Reasons for Judgment.

11. I am declaring that the mother breached the parenting time provisions of the May 30, 2019 on several occasions without justification.

12. With respect to child support, I am satisfied that there have been material changes in circumstances respecting the father’s income since May 30, 2019. However, I have concluded that he did not give effective notice of his request to reduce child support until June 4, 2021 at the earliest, and that this would be the appropriate commencement date for his claim. Since his 2021 income was higher than the sum of $50,677.91 upon which the existing court ordered Table amount is based, I am dismissing his claim for a retroactive reduction of child support. I have also ordered adjustments to the Table amount of child support payable to the mother effective commencing July 1, 2021.

13. Finally, I am dismissing the father’s claim to vary the share that he must contribute to section 7 expenses respecting J.M.C. effective July 1, 2019. However, I am ordering that the parties contribute to these expenses on a proportionate-to-income basis commencing January 1, 2023.

PART 2: INITIALIZATION AND SEALING OF EXHIBITS

I. THE LAW

A. The Open Courts Principle

[13] The requests to initialize the names of the parties and to seal some of the exhibits are claims to restrict the operation of the open courts principle, which is a foundational tenet underlying our constitutional democracy. This principle mandates that unless otherwise permitted or ordered, all court proceedings, including all material and information forming part of a court’s records, must presumptively remain open and available to the public, including the free press (Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41 (S.C.C.); A.B. (Litigation Guardian of) v. Bragg Communication, 2012 SCC 46 (S.C.C.) (“Bragg”), at para. 11; Canadian Broadcasting Corporation v. Manitoba, 2021 SCC 33 (S.C.C.), at para. 83). Any judicial action that limits access to a court proceeding or information in a court file is a restriction on the presumptive operation of the open courts principle. This includes any type of publication ban, sealing orders, directions and orders to limit access to a court file, limiting public access to court proceedings, orders redacting information from decisions or court files and decisions to initialize the names of parties, children and other individuals in court endorsements, Reasons for Judgment and orders (Sherman Estate v. Donovan, 2021 SCC 25 (S.C.C.), at para. 3; re initialization specifically, see Bragg; A.A. v. B.B., 2021 ONCA 147 (C.A.), at para. 52; J.T. v. E.J., 2022 ONSC 4956 (S.C.J), at para. 4; A.J.K. v. J.P.B., 2022 MBQB 43 (Q.B.), at para. 34).

[14] The open courts principle is deeply embedded in the common law, and it has become one of the hallmarks of a free and democratic society (Re Vancouver Sun, 2004 SCC 43, [2004] 2 S.C.R. 332 (S.C.C.), at para. 23; Sherman Estate, at paras. 1, 30; Canadian Broadcasting Corp., at para. 78; G.S. and K.S. v. Metroland Media Group et al., 2020 ONSC 5227 (S.C.J.), at para. 26). This is because the courts play an important role in any democratic society, and hence they must be open to public scrutiny and criticism of their operations (Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326 (S.C.C), at para. 16; Canadian Broadcasting Corp. v. New Brunswick (Attorney General) (“New Brunswick”), [1996] 3 S.C.R. 480 (S.C.C.), at paras. 20 and 22; G.S. and K.S., at para. 27).

[15] The open courts principle is also an important constitutional tenet that forms part of the right of freedom of expression guaranteed by section 2(b) of the Canadian Charter of Rights and Freedoms, s 7, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 (“the Charter”). Court openness and freedom of expression are inextricably linked, since openness is essential to the public’s ability to obtain information and to discuss and advance opinions and criticisms of court practices, proceedings and decisions (Edmonton Journal, at para. 24; New Brunswick, at para. 23; Sherman Estate, at para. 1). Section 2(b) of the Charter protects not only the freedom to express ideas and opinions about the operation of the courts, but also the right of the free press and members of the public generally to obtain information about the courts in the first place (Edmonton Journal; New Brunswick, at para. 23; Sherman Estate, at para. 30). The Supreme Court of Canada has emphasized “the equally important aspect of freedom of expression that protects listeners as well as speakers and ensures that this right to information about the courts is real and not illusory” (Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 71254 (S.C.C.), at p. 767; New Brunswick, at para. 23; Edmonton Journal, at para. 85). The open courts principle, sustained by freedom of expression, is one of the foundations of a free press, given that access to courts is fundamental to news gathering (Sherman Estate, at para. 39). Measures that restrict the ability of the press to access court hearings and information in court files, and to obtain information about the courts generally, impinge on the guarantee of freedom of expression, since they undermine the freedom of listeners to obtain information that fosters public criticism of or confidence in the courts (New Brunswick, at para. 26; G.S. and. K.S., at paras. 28-29).

[16] In Edmonton Journal, Wilson J. succinctly summarized that the open courts principle is rooted in the following important needs and objectives:

1. To ensure a judiciary and juries that behave fairly and are sensitive to the values espoused by society;

2. To promote a shared sense that our courts operate with integrity and dispense justice; and

3. To provide an ongoing opportunity for the community to learn how the justice system operates and how the law being applied daily in the courts affects them (at para. 22).

[17] For all of these reasons, the open courts principle is considered to be “the very soul of justice,” because it helps to guarantee that justice is administered in a fair, accountable, independent, impartial and non-arbitrary manner (Sierra; New Brunswick, at para. 22; Sherman Estate, at paras. 29, 30, 37). The presumptive operation of the principle dictates that the burden of justifying any restrictions on court openness rests on the person or entity seeking to do so (Vancouver Sun, at para. 25). Furthermore, as I recently emphasized in J.T. v. E.J., at para. 9, given the fundamental importance of the principle, the court must give reasons when it takes any measures that deviate from the presumption in favour of court openness, even if the parties all consent to the measures in question. Permitting the courts to deviate from the open court principle without giving reasons for doing so runs a serious risk that the principle will be eroded over time, with a corresponding risk to our democracy and the constitutional right to freedom of expression.

B. The Test for Restricting Court Openness: Relevant Legislative Provisions and General Constitutional Principles

[18] Notwithstanding the importance of the open courts principle, courts have the discretion to place restrictions on its operation in exceptional circumstances where important competing interests justify doing so (Sierra; Sherman Estate). As a starting point, before taking any action that restricts the open court principle, the court must determine whether there are any legislative enactments permitting or requiring it to do so. If there are, the court must comply with the requirements of the relevant provisions and the caselaw that has developed around them (Toronto Star Newspapers Ltd. v. Ontario, 2005 SCC 41 (S.C.C.), at paras. 7, 22; Sherman Estate, at para. 38).

[19] Section 137 of the Courts of Justice Act is relevant to the request in this case for a sealing order. It provides as follows:

Documents public

137 (1) On payment of the prescribed fee, a person is entitled to see any document filed in a civil proceeding in a court, unless an Act or an order of the court provides otherwise.

Sealing documents

(2) A court may order that any document filed in a civil proceeding before it be treated as confidential, sealed and not form part of the public record.

[20] The courts have relied on section 137(2) to seal court documents and initialize the names of parties in the Family Law context in order to protect the privacy interests of the litigants and children (see P.(B.C.). v. P.(A.R.), 2016 ONSC 4518 (S.C.J.).

[21] In parenting proceedings governed by the CLRA, such as this one, the court may also rely on section 70 of the CLRA to place limits on public access to the court file, or on the publication of information that has the effect of identifying any person referred to in any document in the court file. That section provides as follows:

Confidentiality

70 (1) Where a proceeding includes an application under this Part, the court shall consider whether it is appropriate to order,

(a) that access to all or part of the court file be limited to,

(i) the court and authorized court employees,

(ii) the parties and their counsel,

(iii) counsel, if any, representing the child who is the subject of the application, and

(iv) any other person that the court may specify; or

(b) that no person shall publish or make public information that has the effect of identifying any person referred to in any document relating to the application that appears in the court file. 2009, c. 11, s. 18.

Considerations

(2) In determining whether to make an order under subsection (1), the court shall consider,

(a) the nature and sensitivity of the information contained in the documents relating to the application under this Part that appear in the court file; and

(b) whether not making the order could cause physical, mental or emotional harm to any person referred to in those documents. 2009, c. 11, s. 18.

Order on application

(3) Any interested person may make an application for an order under subsection (1). 2009, c. 11, s. 18.

Varying or discharging order

(4) The court may vary or discharge an order made under subsection (1). 2009, c. 11, s. 18.

[22] The caselaw establishes that section 70(1)(b) of the CLRA provides the court with the authority to initialize the names of parties, children and other individuals in Reasons for Judgment (S.M. v. C.T., 2020 ONSC 4819 (S.C.J.); M.D. v. T.K., 2021 ONSC 8514 (S.C.J.)).

[23] Apart from any legislative authority to restrict court openness, the Supreme Court of Canada has developed a number of general constitutional principles for determining requests to limit court openness. The courts must also consider these principles in applying statutory provisions that authorize discretionary restrictions on the open courts principle, such as section 137(1) of the Courts of Justice Act and section 70 of the CLRA (Foulidis v. Foulidis, 2016 ONSC 6732 (S.C.J.); M.M. v. N.M., 2018 ONSC 6939 (S.C.J.); Danso v. Bartley, 2018 ONSC 4929 (S.C.J.); S.M. v. C.T; S.E.L. v. O.V.P., 2022 ONSC 1390 (S.C.J.); J.T. v. E.J.). The overriding guiding constitutional principle is that exceptions to court openness are recognized sparingly, “and with an eye to preserving the strong presumption that justice should proceed in public view” (Sherman Estate, at para. 30; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835 (S.C.C.), at para. 878; Sierra, at para. 56). Additionally, the Supreme Court of Canada has developed three core constitutional prerequisites for any discretionary order or other judicial action that limits court openness in Sierra and Sherman Estate (hereinafter referred to as the “Sierra/Sherman Estate test”). These three preconditions as set out in Sherman Estate are as follows:

1. First, the court must be satisfied that court openness poses a serious risk to an important public interest;

2. Second, the court must determine that the order or measure requested is necessary to prevent this serious risk to the identified interest because alternative measures less constraining on court openness will not prevent this risk; and

3. Third, as a matter of proportionality, the court must find that the benefits of the order or measure outweigh its negative effects.

(Sierra; Sherman Estate, at para. 38)

[24] All three parts of this test must be satisfied for the court to approve measures that limit court openness. This three-stage test applies to all discretionary limits on court openness and in all lines of work of the courts, including Family Law (Sherman Estate, at para. 38; R.F. v. J.W., 2021 ONCA 528 (C.A.), footnotes; S.E.L. v. O.V.P.). The Sierra/Sherman Estate test is stringent, so as to ensure that discretionary orders or measures are not subject to a lower standard than a legislative enactment limiting court openness would be (Sherman Estate, at para. 40).

[25] The courts have articulated additional principles with respect to each stage of the Sierra/Sherman Estate test for justifying constraints on court openness, as follows:

Stage One:

[26] Focussing on the first stage, this part of the analysis in fact involves two sub-inquiries, specifically:

1. First, the court must be satisfied that there is an important competing public interest at play in the case before it; and

2. Second, the court must be satisfied that the open courts principle actually presents a serious risk to that interest on the totality of the circumstances in the case at hand.

[27] There is not a closed list of important public interests for the purposes of the first part of the Sierra/Sherman Estate test. However, the court must be “cautious and alive to the fundamental importance of the open courts rule even at the earliest stage when they are identifying important public interests” (Sherman Estate, at para. 42; Sierra, at para. 56). Determining what constitutes an important public interest at stage 1 of the test may be carried out “in the abstract at the level of general principles that extend beyond the parties to the particular dispute” (Sherman Estate, at para. 42; Sierra, at para. 55).

[28] The question of whether there is a “serious risk” to the important public interest in question due to the open courts principle is a fact-based finding that must be made in context. In other words, notwithstanding the identification of an important public interest at play, the court needs to determine whether that interest is in fact at risk due to court openness on the particular facts of the case under consideration (Sherman Estate, at para. 42). While clear evidence of a direct harmful consequence to the important public interest at stake is relevant at this stage of the analysis, it is not necessary; courts may also conclude that there is objectively discernable harm on the basis of logical inferences (Bragg, at paras. 15-16; S.E.L. v. O.V.P., at para. 35; Sherman Estate, at para. 97). Abella J. held in Bragg that in the absence of scientific or empirical evidence in support of the risk, “the court can find harm by applying reason and logic” (at para. 16; see also R.J.R.-Macdonald Inc. v. Canada (Attorney General), [1955] 3 S.C.R. 199 (S.C.C.), at para. 72; Thomson Newspapers Co. v. Canada (Attorney General), [1988] 1 S.C.R. 877 (S.C.C.), at para. 91). However, the court emphasized in Sherman Estate that his process of inferential reasoning is not “a licence to engage in impermissible speculation.” It highlighted as follows, at para. 97:

An inference must be grounded in objective circumstantial facts that reasonably allow the finding to be made inferentially. Where the inference cannot reasonably be drawn from the circumstances, it amounts to speculation (R. v. Chanmany, 2016 ONCA 576, 352 O.A.C. 121, at para. 45).

Stage 2:

[29] The second stage of the Sierra/Sherman Estate test requires the court to consider whether alternative measures that are less constraining on court openness would likely be sufficient to prevent the risk to the important public interest at stake. If there are other measures that impinge less on openness and can just as effectively protect the interest engaged, the proposed restriction is unjustified (Sherman Estate; Bragg, at para. 11). Where the court concludes that the order requested is the only one that can reasonably mitigate the risk, it must also specifically tailor that order in such a way as to restrict court openness as little as possible (Sierra, at para. 57; Sherman Estate, at para. 104; Vancouver Sun, at para. 30).

Stage 3:

[30] At the final stage of the test, the court must be satisfied that the benefits of the order or other proposed measure that would limit court openness outweigh the harmful effects of the order, including the negative impact on the open courts principle (Sierra, at para. 53; Sherman Estate, at para. 106). In carrying out this balancing inquiry, the court must consider whether the information that the order or other measure seeks to protect from public view is peripheral or central to the judicial process. If the information is central to the case, the interest in ensuring that important and legally relevant information be aired may prevail. However, the outcome of the balancing process at stage 3 will ultimately depend on the unique facts of each case (Sherman Estate, at para. 106).

C. The Application of the Test For Restricting Openness When Privacy Interests Are at Stake

[31] Family Law cases by their very nature often involve highly intimate, sensitive and potentially embarrassing information about the parties and other individuals. Concerns about children’s privacy rights also arise on a regular basis in Family Law cases. The privacy interests of children must be of particular concern for the courts, because children have not voluntarily chosen to risk having their personal information publicly aired through the court process, they are not typically before the court to protect their personal information from scrutiny, and they are particularly vulnerable (Bragg; Sherman Estate). The unique features of Family Law cases often give rise to conflicting concerns regarding the preservation of privacy for the parties, the children and other affected individuals on the one hand, and the open courts principle on the other.

[32] The Supreme Court of Canada has held that protecting the privacy interests of parties and others impacted by the operation of the open courts principle may be an important public interest for the purposes of the first part of the Sierra/Sherman Estate test in certain circumstances. The rationale for this approach rests with the court’s recognition over many years and across various areas of jurisprudence that the protection of privacy is necessary to the preservation of a free and democratic society, and that it is worthy of constitutional protection (R. v. Dyment, [1988] 2 S.C.R. 417 (S.C.C.) at pp. 427-428; R. v. Osolin, [1993] 4 S.C.R. 595 (S.C.C.), per L’Heureux-Dubé, dissenting but not on this point; Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130 (S.C.C.), at para. 124; Sherman Estate, at para. 50; Canadian Broadcasting Corp., at para. 78). The Supreme Court of Canada has held that providing individuals with some control over their information is “intimately connected to individual autonomy, dignity and privacy, self-evidently significant social values” (Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401, 2013 SCC 62 (S.C.C.), at para. 24; Sherman Estate, at para. 50). In Sherman Estate, the court held that privacy is so fundamentally important to democracy that it has acquired “quasi-constitutional status” (at para. 51).

[33] Against the backdrop of these important principles respecting privacy, the Supreme Court of Canada held in Sherman Estate that in order to preserve the presumption in favour of open courts, some degree of privacy loss for the parties and other individuals affected by litigation is inevitable. However, there are some circumstances where court openness may pose a serious risk to an aspect of privacy that evinces an important public interest (see also Canadian Broadcasting Corp., at para. 78). The court held the protection of a person’s private information will rise to the level of an important public interest for the purposes of Part 1 of the test for restricting court openness where the threatened loss of control over the personal information goes beyond a mere source of discomfort and may result in an affront to the person’s dignity (Sherman Estate, at paras. 33, 84). The court explained that “[d]ignity in this sense is a related but narrower concern than privacy generally; it transcends the interests of the individual and, like other important public interests, is a matter that concerns the society at large” (at para. 33). The court held that a person’s individual dignity will prima facie be considered to be at serious risk for the purposes of the second branch of the Sierra/Sherman Estate test where the information that would be disseminated by the operation of the open court principle is sufficiently sensitive that it strikes at the “biographical core” of the affected individual (at para. 91). To satisfy this threshold, the information in question must involve highly personal, intimate and sensitive details about the person’s basic identity, their lifestyle or their experiences (at paras. 33, 34, 73-77). The court stressed that limits to court openness cannot be permitted based solely on the fact that dissemination of the information could cause inconvenience, discomfort, disadvantage or embarrassment (at paras. 7, 33, 56, 63). It emphasized that “[d]ignity transcends personal inconvenience by reason of the highly sensitive nature of the information that may be revealed” (at para. 75). The court declined to provide an exhaustive catalogue of the types of sensitive personal information that, if exposed, could give rise to a serious risk of dignity being undermined, stating that the question in every case is “whether the information reveals something intimate and personal about the individual, their lifestyle or their experiences” (at para. 77). However, it provided some examples that may justify constraints on court openness, including information about stigmatized medical conditions, sexual orientation, or subjection to sexual assault or harassment (at para. 77).

[34] The court held in Sherman Estate that if the hearing judge accepts that the information in question is sufficiently intimate and sensitive that it strikes at the affected person’s biographical core, it must then also determine whether court openness actually poses a serious risk to the person’s dignity interest in light of the totality of the circumstances in the particular case under consideration (Sherman Estate, at para. 79; see also Canadian Broadcasting Corp., at para. 79). In Canadian Broadcasting Corp., the court reiterated the important principle established in Bragg that “[a] serious risk need not be supported by direct evidence but may be reasonably inferred on the basis of available circumstantial facts (Canadian Broadcasting Corp., at para. 79). One factor to consider at the “serious risk” stage of the analysis is the extent to which the information would be disseminated without a restriction on the open court principle. In addressing this issue, the court should be sensitive to the modern information technology context, which has increased the ease with which information can be communicated and cross-referenced (Sherman Estate, at para. 80). The court should also at this stage of the inquiry consider the extent to which the information in question is already in the public domain. As the court stated in Sherman Estate, “[i]f court openness will simply make available what is already broadly and easily accessible, it will be difficult to show that revealing the information in open court will actually result in a meaningful loss of that aspect of privacy relating to the dignity interest” (at para. 81). However, the fact that the information is already available to some extent in the public sphere is not determinative, since court openness may allow for even broader dissemination of and easier access to the information (at para. 81).

D. Special Considerations Where the Privacy Interests of Children are at Stake

[35] In Sherman Estate, the court specifically addressed whether special considerations come into play in applying the test for restricting court openness where the individuals potentially affected by the public airing of the information in question are minors. It concluded that while the law recognizes that minors are especially vulnerable to intrusions upon their privacy, “the mere fact that information concerns minors does not displace the generally applicable analysis” (at para. 92; see also Bragg, at para.11). However, it held that the court should take into account the increased vulnerability of minors in determining whether the threatened loss of control over the personal information in question would result in an affront to their sense of dignity and integrity (at para. 92). In Bragg, Abella J. emphasized that both Canadian and international law have long recognized the inherent vulnerability of children, and that this has prompted the protection of young people’s privacy across all areas of the law based on age, not the sensitivity of the particular child in question. Accordingly, the law attributes heightened vulnerability to children based on their age, without the need to prove the child’s particular vulnerability on the facts of the case.

[36] The Supreme Court of Canada has recognized that Canadian law affords children greater privacy rights than similarly situated adults in a number of contexts, and that this reflects a general societal consensus about the value of protecting children’s privacy interests (R. v. Jarvis, 2019 SCC 10 (S.C.C.). Furthermore, the Ontario Court of Appeal emphasized in Ontario (Children’s Lawyer) v. Ontario (Information and Privacy Commissioner), 2018 ONCA 559 (C.A.), at para 58, leave to appeal to the S.C.C. refused 2019 CarswellOnt 4698 (S.C.C.)) that “[w]henever a child is affected by a court or government process, the primary consideration must be the child’s best interests.” It noted that this principle is enshrined in Article 3.1 of the United Nations Convention on the Rights of the Child 1989, Can. T.S. 1992 No. 3 (“the Convention”). It also highlighted that in addressing the privacy rights of children, the courts are required by Article 40(2)(b)(vii) of the Convention to fully respect the privacy rights of children at all stages of court proceedings (at para. 75).

[37] The law’s special protection of children’s privacy rights, and the obligation of the courts to safeguard the best interests of children, should form part of the analysis of any requests to restrict the operation of the open courts principle for the sake of children involved (S.E.L. v. O.V.P.).

E. Initialization of Names

[38] As discussed above, section 137 of the Courts of Justice Act and section 70(1)(b) of the CLRA provide the court with the authority to initialize the names of parties, children and other individuals in Reasons for Judgment. In the civil law context, the Supreme Court of Canada has noted that initializing a case represents a very minimal intrusion upon the open courts principle, since it does not prevent the media from being present for hearings and does not restrict the reporting about hearings and the facts of the case (Bragg, at para. 28). The Ontario Court of Appeal has supported the initialization of the names of parties, children and other individuals referred to in Family Court decisions in circumstances where the information in question is highly sensitive, personal and intimate in nature, and its dissemination would lead to an affront to the dignity of the affected individuals (R.F. v. J.W., at footnote 1). Many other courts have also concluded in the Family Law context that initializing names is a justified limitation on the open courts principle based on the highly sensitive nature of the information involved, the minimal impairment that initializing entails for court openness, and the fact that initialization would not impair or adversely affect public comment or debate on the issues arising in the case (W.(W.) v. X.(X.), 2013 ONSC 929 (S.C.J.); R.(M.R.) v. M.(J.), 2017 ONSC 2655 (S.C.J.), per Fryer J.; A.P. v. L.K., 2019 ONSC 4010 per Akbarali J.; P.D. v. D.C., 2021 ONSC 2146 (S.C.J.) per Lemon J.; S.M. v. C.T.; M.D. v. T.K..; M.(O.) v. K.(S.), 2021 ONSC 569 (S.C.J.), per MacLeod J.; J.L. v. D.L., 2022 ONSC 1004 (S.C.J.), per Engelking J.; J.T. v. E.J.).

[39] In cases where the privacy interests at stake relate to children, the courts have also permitted the names of the parties and other individuals to be initialized where there is concern that publishing their names will in turn reveal the identity of the children and result in the publication of information that could lead to an affront to the children’s dignity (A.P. v. L.K., at paras. 55-59; M.(O.) v. K.(S.); J.T. v. E.J.).

F. Practice Considerations In Dealing with Proposed Restrictions to the Open Courts Principle

[40] As I recently highlighted in J.T. v. E.J., there are a number of practice and procedural considerations that come into play when a request is made to deviate from the open courts principle. First, given the critical importance of openness and the role of the media in informing the public about the courts’ activities, the court should always consider whether notice should be given to the parties, the media and other directly affected individuals before implementing any measure that would limit court openness, so that they may be given an opportunity to make submissions on the issue (Canadian Broadcasting Corp. at para. 51; Jane Doe v. Manitoba, 2005 MBCA 57 (C.A.), at para. 24; M.(A). v. Toronto Police Service, 2015 ONSC 5684 (Div. Ct.), at para. 6). While it may generally be appropriate to give prior notice, the hearing judge ultimately has the discretion to decide whether or not such notice is required, and if it is, when the notice should be given (Canadian Broadcasting Corp., at para. 51; Dagenais, at p. 869; M.(A.) v. Toronto Police Service, at para. 51). The circumstances in which orders limiting court openness are made vary, and the courts have the necessary discretionary authority with respect to notice issues to ensure that justice is served in each individual case (Canadian Broadcasting Corp. at para. 51; Dagenais, at p. 869; M.(A.) v. Toronto Police Service, at para. 51).

[41] In regard to notice to the parties, the court should not assume that all parties or other affected individuals in a case will want restrictions placed on court openness, including the initialization of endorsements, orders and Reasons for Judgment, on the basis of privacy or other important public interests. In Edmonton Journal, Wilson J. specifically noted that when privacy interests come up against the open court principle in the Family Law context, the court cannot simply jump to the conclusion that all parties will want to shield the information in question from public view. In fact, it may be the case that one or more parties or other affected individuals may have a strong interest in receiving public vindication and community support (at para. 23).

[42] As I emphasized in J.T. v. E.J., Part VI, section F of the Consolidated Provincial Practice Direction of the Superior Court of Justice (“the Practice Direction”) addresses issues relating to notice to the press when discretionary orders limiting the open courts principle are requested or being considered by the court. The pertinent aspects of the Practice Direction are as follows:

1. It applies to all applications or motions for “discretionary publication bans” other than those that either operate automatically by virtue of statute or that a statute provides are mandatory on request. An order directing that the names of parties, children and other affected individuals be initialized in orders, endorsements and Reasons for Judgment is a discretionary ban on the publication of some of the information respecting the file, and this section therefore applies to such orders.

2. Section 109 stipulates that unless otherwise directed by the court, any person seeking a discretionary order restricting publication of any Superior Court proceeding must serve and file a notice of motion or application and any supporting materials.

3. Section 110 provides that unless otherwise directed by the court, the requesting party must provide notice to the media of the motion/application, using the procedure set out in Part B, section F.

4. Specifically, the requesting party must complete and submit a Notice of Request for Publication Ban form on the Superior Court of Justice website. The Notice will then be sent electronically to members of the media who have subscribed to receive notice of all publication ban applications/motions in the court.

5. A formal notice of motion or application and formal notice to the press are not mandatory; the court may direct that they are not required. However, if it decides that notice to the press is not necessary, it should give reasons.

[43] Part VI, section F of the Practice Direction reflects the Supreme Court of Canada caselaw that establishes that the court retains discretion to determine whether notice to the press is required, and if so, the timing of such notice. For Family Law cases in which the court dispensed with notice to the press, see J.T. v. E.J.; P.(B.C.) v. P.(A.R.), 2016 ONSC 4518 (S.C.J.), per Kiteley J., R.(M.R.) v. M.(J.) and S.E.L. v. O.V.P. If the court makes an order that restricts court openness without advance notice to the media, it can review, vacate or vary the order at a later date on motion by authorized representatives of the press, and does not lose jurisdiction to do so on the basis of the doctrine of functus officio (Canadian Broadcasting Corp.). The court may also determine that advance notice to the media is not required, but that notice should be given after the fact. In that case, it should give directions regarding notice, indicate that the order or measure taken is subject to rescission or variation after hearing submissions, and set a deadline for requesting a hearing to make submissions on the issue, subject to issues respecting standing to do so (J.T. v. E.J., at para. 37).

II. ANALYSIS

[44] I have carefully considered the principles outlined above, and I conclude that it is appropriate in this case to initialize the names of the parties, the child and all witnesses other than third party professionals, and to order that all exhibits containing photographs of the child’s body taken by the mother to document abuse or neglect shall be sealed.

[45] My decision on these issues is based on the following:

1. As I will discuss in further detail, the facts of this case include highly sensitive information about the child, the parties and their extended family members. Both parties have made claims of physical assault against each other, which resulted in police intervention and charges being laid against the mother that were eventually withdrawn. There has also been extensive police involvement with the parties and some of their family members due to conflicts during parenting time periods and exchanges. In addition, ever since the father began exercising parenting time with J.M.C., the mother has consistently reported concerns to child protection and other community professionals that J.M.C. has been abused or neglected while in the father’s care. These allegations have included claims that the child has been physically and sexually abused. They have resulted in numerous medical, child protection and police investigations, with none of the concerns being verified.

2. The mother has a history of taking photographs of the child to document her concerns regarding alleged abuse and neglect while in the father’s care, and she adduced many such photographs as evidence in this proceeding. Many of the photographs depict private areas of the child’s body, including his buttocks, his genitals, and close-ups of his face and his back.

3. I am satisfied that the public airing of the information and Exhibits referred to above could cause significant mental or emotional harm to the child, the mother, the father and members of the father’s family.

4. The information in question involves highly private, personal, intimate and sensitive details about the child’s experiences and those of the parties and their family members, and I conclude that its exposure to the public would constitute a serious affront to their dignity and their reputation in the community. As such, I find that the protection of their privacy interests is an important public interest for the purposes of the first part of the Sierra/Sherman test. I also conclude that publicly identifying the child and the parties, and permitting public access to the photographs in question, would actually present a serious risk to this interest.

5. The child’s young age renders him particularly vulnerable and susceptible to harm from the public disclosure of his information, and it can be logically inferred that this concern will become increasingly pronounced as the child moves into adolescence and becomes more attuned to his privacy interests. The protection of his privacy is therefore particularly pressing, and his best interests require that the court safeguard him against the emotional distress that could result from the publication of his private information.

6. Initializing the names of all witnesses other than professionals is in my view necessary, since failing to do so would in all likelihood result in the identification of the child J.M.C. as well.

7. There are in my view no less constraining measures on court openness that would be sufficient to prevent the risk to the privacy interests at stake. Initialization is a minimal intrusion upon the open courts principle, and the sealing order that I am making is limited to a specific category of photographs of the child.

8. The restrictions that I am imposing on court openness will not limit the ability of the press or members of the public generally to report and comment on the case, understand the important issues and gain insight into the operations of the court. Accordingly, I find that the benefits of the measures that I am taking to restrict court openness far outweigh the potential negative effects.

[46] I provided both parties with an opportunity to make submissions respecting the restrictions that I am ordering on court openness, and as I have stated, they both supported the measures. I did not consider it necessary or advisable on the facts of this case to give notice to the media before making the orders in question. Providing notice in accordance with the Practice Direction would in and of itself result in the identification of the parties and J.M.C. and the disclosure of some very private and sensitive information about them. The orders represent limited restrictions on openness, and as I have stated, they will not in my view impede in any material way upon public comment or debate on the issues. There has been no general public interest in this case over the course of its 2.5 year trajectory through the court. Furthermore, my orders are subject to rescission or variation on motion by any member of the public or representatives of the media, and this court would allow a full and fair hearing on the issues in the event that such a motion were brought.

PART 3: IMPRESSIONS OF THE PARTIES, AND CREDIBILITY AND RELIABILITY ASSESSMENT

[47] This was an exceedingly long, complex and difficult trial, due in large part to particular characteristics of each of the parties and the major discrepancies in their evidence on most important issues. In addition, both parties called several family members as witnesses, and the evidence of the maternal family members generally conflicted significantly with that of the paternal family members. I discuss my impressions of the parties and their witnesses, and their credibility and reliability, in much more detail in these Reasons for Judgment. However, I will summarize some of my general impressions at this point.

[48] I turn first to the law respecting the assessment of credibility and reliability, which I reviewed in detail in Kinsella v. Mills, 2020 ONSC 4786 (S.C.J.), at para. 69, McBennett v. Danis, 2021 ONSC 3610 (S.C.J), at para. 39 and A.E. v. A.E., 2021 ONSC 8189 (S.C.J.), at paras. 6 and 7. The caselaw has established that this process is not an exact science; rather, it is a challenging and holistic undertaking, the outcome of which is often difficult to explain in precise terms. As the Supreme Court of Canada stated in R. v. Gagnon, 2006 SCC 17 (S.C.C.), at para. 20, it is not always possible “to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events” (see also R. v. M.(R.E.), 2008 SCC 51 (S.C.C.), at para. 49; Hurst v. Gill, 2011 NSCA 100 (C.A.), at paras. 18-19). The complexity of the task is heightened by the fact that the judge is not required by law to believe or disbelieve a witness' testimony in its entirety. On the contrary, they may accept none, part or all of a witness' evidence, and may also attach different weight to different parts of a witness’ evidence (see R. v. D.R., [1996] 2 S.C.R. 291 (S.C.C.), at para. 93; R. v. Howe, 2005 CarswellOnt 44 (C.A.), at paras. 51-56; R. v. Boutros, 2018 ONCA 275 (C.A.); McIntyre v. Veinot, 2016 NSSC 8 (S.C.), at para. 22).

[49] Despite the challenges inherent in the task of assessing reliability and credibility, the caselaw has identified numerous factors that the courts may consider in weighing and assessing the credibility and reliability of witnesses. Drawing from the decisions in Faryna v. Chorny, 1951 CarswellBC 133 (B.C.C.A.), at para 9; R. v. Norman, 16 O.R. (3d) 295 (C.A.); R. v. G.(M.), 93 C.C.C. (3d) 347 (C.A.), at para. 23; R. v. Mah, 2002 NSCA 99 (C.A.), at paras. 70-75; R. v. Jeng, 2004 BCCA 464 (C.A.); Bradshaw v. Stenner, 2010 BCSC 1398 (S.C.), at para. 186, aff'd 2012 BCCA 296 (C.A.); Brar v. Brar, 2017 ABQB 792 (Q.B.), at paras. 9-16; R. v. D.A., 2018 ONCA 612 (C.A.), at paras. 11-21 and B.G.M.S. v. J.E.B., 2018 CarswellBC 2538 (S.C.), at paras. 34-40, these considerations include the following:

1. Were there inconsistencies in the witness’ evidence at trial, or between what the witness stated at trial and what they said on other occasions, whether under oath or not? Inconsistencies on minor matters of detail are normal and generally do not affect the credibility of the witness, but where the inconsistency involves a material matter about which an honest witness is unlikely to be mistaken, the inconsistency can demonstrate carelessness with the truth (R. v. G.(M.); R. v. D.A.).

2. Was there a logical flow to the evidence?

3. Were there inconsistencies between the witness' testimony and the documentary evidence?

4. Were there inconsistencies between the witness’ evidence and that of other credible witnesses?

5. Is there other independent evidence that confirms or contradicts the witness' testimony?

6. Did the witness have an interest in the outcome, or were they personally connected to either party?

7. Did the witness have a motive to deceive?

8. Did the witness have the opportunity and ability to observe the factual matters about which they testified?

9. Did they have a sufficient power of recollection to provide the court with an accurate account?

10. Were there any external suggestions made at any time that may have altered the witness’ memory?

11. Did the evidence appear to be inherently improbable and implausible? In this regard, the question to consider is whether the testimony is in harmony with “the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions” (Faryna, at para. 10).

12. Was the evidence provided in a candid and straightforward manner, or was the witness evasive, strategic, hesitant, or biased?

13. Where appropriate, was the witness capable of making concessions not favourable to their position, or were they generally self-serving?

14. Consideration may also be given to the demeanor of the witness, including their sincerity and use of language. However, this should be done with caution. As the Ontario Court of Appeal emphasized in R. v. Norman, at para. 55, an assessment of credibility based on demeanour alone is insufficient where there are many significant inconsistencies in a witness’ evidence (see also R. v. Mah at paras. 70-75). The courts have also cautioned against preferring the testimony of the better actor in court, and conversely, misinterpreting an honest witness' poor presentation as deceptive (R. v. Jeng, at paras. 53-54).

[50] Addressing first my general impressions of the mother, on the positive side, although she was self-represented, she was extremely organized and knowledgeable about court processes and the law during the trial. She is clearly an extremely intelligent and hard-working person who has the ability to learn and navigate through new processes, including the challenges of conducting a hybrid trial. I did, however, have some concerns regarding her conduct during the trial. Specifically, I found that if things were not going her way, either with respect to rulings from the court or during evidence given by witnesses, she often became easily and quickly heightened, as well as aggressive in her presentation. I observed these dynamics not only in her cross examination of the father and his witnesses, but also in her examination in chief of several of her own witnesses, including her mother M.B. On many occasions, her questioning of her own professional witnesses, including CCAS worker Ms. Christine Nguyen and Dr. Anne Niec of the CAAP team verged on cross examination when the evidence did not support her narrative and case. She had to be cautioned by the court against cross examining her witnesses unless she had them declared as hostile witnesses. The intensity of her aggression on cross examination of the father and his witnesses was even higher. Her questioning often bordered on harassment and had to be curtailed on this basis by the court. While tenacity and some degree of aggression in cross examination are appropriate and acceptable, her style in cross examining the father and his witnesses was often sarcastic, flippant and at times nasty, despite efforts by the court to manage these dynamics. She also persisted in using several inappropriate tactics on cross examination despite constant redirection by the court, such as presenting her view of events to witnesses on cross examination as proven facts when they were clearly live and contested issues. She frequently mis-stated the evidence on key issues to witnesses who she was cross examining in an attempt to advance her narrative, despite frequent warnings to refrain from doing so. She also regularly editorialized upon the evidence of witnesses when it did not support her case, making comments aimed at undermining their evidence and advancing her narrative. Again, this occurred repeatedly despite cautions and redirection by the court. Another inappropriate tactic that she used despite the court’s attempts to redirect her was to put clearly unhelpful and highly inflammatory propositions to witnesses and ask them to agree to them, in what appeared to be a deliberate attempt to simply agitate them for no meaningful purpose. Finally, she was often repetitive and unrelentless in her cross examination, which required regular redirection, and she often dove excessively deep into the minutiae of situations in a manner that prolonged the trial of this matter unnecessarily. The father stated several times in response to questions that the mother put to him on cross examination that she was a “difficult person.” This description succinctly summarizes my own overall impressions of her.

[51] Turning to the mother’s credibility and reliability, I had very serious concerns on those fronts. My general impression was that she clung tenaciously to her version and perspective of events, and that she did not have an open mind about how situations could reasonably be understood and perceived differently. This was particularly the case in regard to any issues involving the father and his relationship with J.M.C. For reasons that I will discuss in further detail, I have grave concerns regarding her ability to process and perceive events involving the father and his family members accurately. She appears to have extreme anxiety about J.M.C.’s interactions with the father and members of his family which has impacted her ability to accurately interpret events and react appropriately. As I have stated, this is an issue that needs to be assessed as part of the psychiatric assessment of the mother that I am ordering. I was able to sense this anxiety from her presentation at trial. When she began to talk about incidents of alleged abuse or neglect, or when a witness gave evidence that did not support her allegations, she would begin to speak quickly, in an agitated manner and became generally dysregulated. Since 2018, she has made repeated allegations of abuse, lack of supervision and neglect of J.M.C. while he has been in the father’s care. Most of these allegations were investigated by various child protection authorities and some by the police. None have been verified, and the evidence indicates the mother did not accept any of the outcomes of the investigations that were undertaken. Upon carefully considering the testimony of all witnesses and the extensive documentary evidence adduced at trial, I have concluded that the concerns that she has raised since the May 30, 2019 are not credible. She has steadfastly maintained that the father and his family members are abusive and neglectful of J.M.C. despite extensive input and education from numerous child protection workers who have worked with her to address her concerns. She embarked upon a clear and steadfast mission during this trial to prove that she was right about the father and members of his family, and she used various inappropriate tactics at trial to advance this goal.

[52] As I will discuss in further detail in these Reasons, I also had significant concerns about inconsistencies between the mother’s evidence at trial regarding many allegations and the documentary evidence about what she stated at the time of the events. I found as well that she was generally unable to concede issues or concerns that did not support her perspective and position in situations where she should have. Some of her evidence was clearly implausible. As one of many examples, at trial, she denied having consented to several terms in the Minutes of Settlement that were filed in support of the May 30, 2019 order, which was made on consent. However, she was represented by experienced legal counsel at the time and she signed those Minutes of Settlement. She had never raised this issue prior to her cross examination by Mr. Fortino at trial. In addition, as I will discuss in detail below, one of the concerns in this case is that the mother regularly took photographs of J.M.C.’s body to document her alleged concerns respecting the father and his family members. One of the allegations that she has consistently raised since 2018 is that the father and his family members cut J.M.C.’s hair in random ways during visits, in a deliberate attempt to cause him emotional distress. She claimed on cross examination that she had photographs to prove this. However, she did not adduce any such photographs, despite adducing many other photographs of J.M.C. into evidence.

[53] Turning to the father, I found him generally to be a credible and reliable witness at trial. He was responsive to questions, did not attempt to digress to unrelated issues when difficult questions were put to him, conceded to points that were not necessarily supportive of his case, and demonstrated an ability to see both sides of the situations that were discussed by various witnesses at trial. I did not have concerns about him exaggerating issues or inappropriately minimizing the mother’s concerns. He had difficulty at times recalling some of the details regarding the numerous allegations that the mother has made against him and his family members over the years, such as the specific timing and chronology of the allegations. However, I conclude that this is entirely understandable, having regard for the high number of allegations that he has had to confront and respond to over the years. I also found that his evidence at trial was overall highly consistent with documentary evidence respecting the incidents that he spoke about.

[54] I have some concerns about the father making misleading statements to the mother in the past. For example, he wrote in the parties’ communication book on December 28, 2019 that he had seen the mother pulling J.M.C. by the hood at a grocery store, when this was not in fact true. There were occasions when he made such untruthful comments to the mother out of anger and frustration, in what appears to have been an attempt to intimidate her. However, during his evidence, he was honest in admitting to these untruths, and expressed genuine remorse for that behaviour. His evidence at trial was overall very believable.

[55] The mother suggested that the father and his partner S.C.-B.’s evidence at trial about S.C.-B.’s participation in the visits with J.M.C. was inconsistent with what they told the CCAS during its involvement. I have carefully reviewed their evidence and that of the CCAS workers who testified at trial, as well as the CCAS records made at the time of the events. I did not find any such inconsistencies.

[56] The mother cross examined the father at trial, and this was exceedingly challenging to manage due to her clear dislike for him and the numerous inappropriate tactics that she used, as discussed above. I find that the father made genuine attempts to remain calm, respectful and appropriate in response to the mother’s questions and frequent inappropriate litigation conduct. However, he did on occasion become frustrated, annoyed and agitated by the mother’s repetitive and inflammatory questioning. While I do not condone his manner of responding, it must be considered in the context of the mother’s history of making constant unsubstantiated allegations of abuse and neglect by him and his family members, and the mother’s inappropriate litigation conduct and tactics during cross examination.

[57] Based on my overall impressions as set out above, I found the father to be a much more reliable and credible witness than the mother. Accordingly, where there were discrepancies between their evidence, I have generally favoured the father’s evidence over that of the mother, unless otherwise specified in these Reasons.

[58] It is necessary to make some general comments at this point about the evidence of the paternal and family members who testified at trial. The mother’s witnesses included her mother M.B., her brother J.C. and her sister P.C. They all essentially reiterated and corroborated the mother’s concerns. My conclusions regarding the mother’s lack of credibility in regard to her concerns apply to their evidence on these issues as well. Having carefully considered all of the evidence, my impression is that their perspectives on situations was very much coloured by the mother’s anxiety and her unreliable characterization of events. Like the mother, they presented as unable to see both sides of situations that unfolded and to appreciate that the mother’s reading of situations may have been inaccurate. For example, they all raised concerns about J.M.C.’s behaviours around visits, and simply concurred with the mother’s conclusion that they were due to abuse and neglect by the father and his family numbers, without considering the many other family dynamics that could have contributed to them.

[59] My concerns respecting the mother’s excessive anxiety about J.M.C. being with the father apply equally to the maternal grandmother M.B. I did not find her to be a credible witness. Her descriptions of many alleged marks to the child were highly exaggerated, and some of her evidence relating to particular events was at odds with the mother’s evidence. She was often dysregulated when discussing allegations against the father and his family, and as I will discuss in further detail below, portions of her evidence were implausible.

[60] By contrast, I found the father’s family members who testified at trial to be very credible and reliable. He called his sister V.B., his mother L.B., and his partner S.C.-B. as witnesses. I was impressed by all of them. They were calm, responsive and balanced in their testimony, and they had a sound recollection of the events that they discussed. The mother subjected them to aggressive and often highly inappropriate questioning on cross examination, and they all withstood it exceedingly well. The mother was particularly aggressive and at times sarcastic during her cross examination of S.C.-B. She put many statements to her in questioning as if they had been proven, when they had not. I found that S.C.-B. handled the mother’s aggressive and difficult questioning respectfully, calmly and with grace. All of the father’s family members appeared able to appreciate the numerous challenging dynamics at play within this family, the possible effects of those dynamics on the child, and the fact that many factors could have contributed to the difficulties that J.M.C. experienced. Where their evidence conflicted with that of the maternal family members, I have accepted their evidence unless otherwise specified in these Reasons.

[61] I had no concerns regarding the credibility and reliability of the numerous professional witnesses who testified at trial. Their evidence was organized, consistent and had a logical flow, and they withstood cross examination calmly and without difficulty.

PART 4: BACKGROUND AND HISTORY OF COURT PROCEEDINGS

I. PERSONAL BACKGROUNDS AND CURRENT CIRCUMSTANCES OF THE PARTIES

A. The Applicant

[62] The father was born in April, 1990 and is therefore 32 years of age. The father was living with his mother, L.B., and his sister, V.B., at his mother’s home until November 2021, and he has remained very closely connected with both of them, his brother in law, his sister’s two children and other members of his family. In terms of his education and employment history, he finished high school in approximately 2008, took a year off school, and then completed a two year Law and Security diploma at Mohawk College in approximately 2012. However, he chose to work in the field of construction and became an iron worker. As I will discuss in further detail below in addressing the child support issues, he worked for the Ironworkers union Local 736 until approximately 2018, when he decided to leave the union and search out other sources of income in the construction field due to the inconsistency of his work and income with the union. He eventually assumed a position with Flynn Canada in early 2019. Unfortunately, he suffered a significant injury to his right ankle as a result of a work-related accident on June 21, 2019. Flynn Canada put him on modified work duties to accommodate him following the accident, but he was subsequently laid off when the Workers’ Safety Insurance Board (“WSIB”) accepted his claim. He began to receive WSIB benefits in 2019, and these benefits continued until February 2021. He assumed a full-time position as a Project Coordinator for construction projects with Stala Homes and Design in March 2021, and he has continued in this position to date. This work provides him with a reasonable and steady source of income.

[63] As I have indicated, the parties had a brief and casual relationship during the summer of 2016 which resulted in J.M.C.’s conception. They have never cohabited. The father met his current partner, S.C.-B., in August 2018, and they became engaged in August of 2021. They have not yet married. They have a daughter, G.S.B., who was born in late April 2020. The father continued to live with his mother and S.C.-B. lived with her parents during the initial part of their relationship, but they spent extensive time together. The father and S.C.-B.’s mother purchased a residence in Jarvis, Ontario in November 2021, and the father and S.C.-B. began to reside there with G.S.B. at that time. I find based on the evidence of the father, S.C.-B., and the paternal grandmother L.B. that the father and S.C.-B. have a strong, committed, supportive and loving relationship.

[64] S.C.-B. completed the Police Foundations course at Mohawk College in 2008 and then obtained a Social Work diploma from that college. She worked as a support worker for a men’s shelter in Hamilton until April 2022, when she secured a full-time position as a Women’s Advocate Support Worker for a transitional support program with an agency in Hamilton. Her work hours as of the time of her testimony at trial were 10:00 a.m. until 6:00 p.m., with only Tuesdays and Wednesdays off work. Her hope was that her hours of work would change soon so that she would work Monday to Friday, with weekends off. The father and S.C.-B. have been equally involved in the care and upbringing of G.S.B. and have carried out their parenting roles cooperatively, without any intervention by child protection agencies or the police.

B. The Respondent

[65] The mother was born in September 1983 and is 39 years of age. Both she and J.M.C. speak Spanish. She has received extensive support in raising J.M.C. from her mother M.B., her father, who unfortunately passed away during this trial, her brother J.C. and her sister, P.C. She also has close ties with many other relatives.

[66] The mother has not been involved in any intimate relationships since J.M.C.’s birth, and she explained that she has chosen to remain single so that she can focus entirely on the child’s needs. She has resided in the same home since the parties met, which she owns. She has been employed by McMaster University on a full-time basis since 2013. Since the completion of her maternity leave with J.M.C., she has been an Administrative Project Coordinator for the university. She enjoys her job and has a reasonable and stable income that allows her to meet her needs and those of the child.

II. OVERVIEW OF PARENTING HISTORY AND COURT PROCEEDINGS

A. General Comments Regarding the Relevance of Evidence Predating a Final Parenting Final Order in Motion To Change Proceedings

[67] I note that although this is a Motion to Change Final Order, the mother went to great lengths during the trial to adduce evidence respecting information and events that predated the May 30, 2019 final order, including evidence and records respecting the involvement of the Children’s Aid Society of Hamilton (“the Society”) and the CCAS. Counsel for the Applicant raised numerous objections during the trial to the admissibility of evidence that the mother sought to adduce relating to events that predated the May 30, 2019 order, arguing that allowing such evidence was tantamount to retrying the previous proceeding. On the other hand, he sought to rely on evidence respecting some historical events in support of the father’s case. I allowed some of this historical evidence and disallowed other portions of it.

[68] As I discuss in more detail in my review of the law below, the court must be satisfied in variation proceedings involving parenting issues that there has been a material change in circumstances relevant to the child’s best interests since the existing final order was made. A general understanding of the historical circumstances that informed the granting of the final order is therefore necessary in order to determine if there has been a material change in circumstances. In addition, the best interests analysis that is required in proceedings to vary parenting orders requires the court to consider all evidence relating to the child’s needs and interests, including the evidence that supported the original order and whether concerns since the date of the final order are part of a pattern of problems that predated the order. The Supreme Court of Canada recently emphasized in Barendregt v. Grebliunas, 2022 SCC 22 (S.C.C.) that historical evidence respecting parenting is always relevant in carrying out the best interests assessment required in variation proceedings.

[69] The trial judge’s task of determining the admissibility of evidence respecting events predating the final order in Motion to Change proceedings involves walking an “evidentiary tightrope,” particularly in cases where the order was made on consent without a trial and without the benefit of comprehensive findings of fact by the court. The judge must discern whether the information provides useful insight into the situation that existed when the order was made and highlights important patterns of behaviour and events that are critical to the court’s assessment of the child’s current best interests, or whether it will simply bog down the trial process unnecessarily and result in excessive time, expense and dedication of court resources. This case exemplifies the importance of navigating the challenging evidentiary tightrope respecting events predating a final parenting order in a variation proceeding, rather than simply rejecting evidence of historical events outright. As I will discuss, the history in this case reveals important information about the parenting roles that the parties played since the child’s birth. It also highlights several persistent and very disturbing themes and patterns of conduct and concerns that are vital to determining J.M.C.’s current needs and best interests. This explains the very detailed review that follows regarding the background leading up to the May 30, 2019 order.

B. Early Parenting History and the Commencement of the Original Application

[70] Unfortunately, there has been significant conflict between the parties and with extended family members from the time that the mother announced her pregnancy. The father acknowledged at trial that he was initially unhappy about the pregnancy, but he apologized at trial for his initial reaction, stating that he loves J.M.C. very much.

[71] The parties had difficulty navigating their situation when the mother became pregnant, since they were never in a serious and committed relationship. However, the father’s mother, L.B., and his sister, V.B., planned a baby shower for the mother, which was attended by paternal family members and friends. I restricted the admissibility of evidence relating to this event, given its dated nature, but the mother persisted in questioning the father about it on cross examination. Suffice it to say that the events at the shower foretold a pattern of conflict that included members of the parties’ extended families. A dispute arose when the mother attempted to take the greeting cards containing money that the father’s family members had given to the parties. The mother claimed that the father and his sister V.B. became enraged when the mother took the cards, accusing her of trying to steal the money and gifts and humiliating her in front of the shower guests. The father denied this version of events and testified that he simply wanted to keep the cards and money until he could identify the source of the gifts, send appropriate thank you cards, and then discuss with the mother how the money should be used for the child. The situation escalated quickly, and the event ended with a great deal of anger and resentment between the parties and their family members who attended. The relevant point is that the overall family dynamics between the parties and their family members were highly dysfunctional from the start of their interactions with each other, and this dynamic has remained a theme that has negatively impacted J.M.C.’s well-being throughout the history of this case.

[72] The communication between the parties became strained near the end of the mother’s pregnancy, in part due to the events at the baby shower. The mother did not advise the father when she went into labour, and the father was therefore not present for J.M.C.’s birth. The mother advised the father of J.M.C.’s birth approximately one week later, and the father, his mother L.B. and his sister V.B. had a visit with the child a few days after learning about the birth at the mother’s residence. The father saw the child a couple of more times after this initial visit, but then did not see J.M.C. again for several months because he questioned J.M.C.’s paternity and found it uncomfortable visiting him in the mother’s home with her present. He asked that paternity testing be carried out soon after the child’s birth in May 2017, but the mother did not agree to this for several months. She eventually consented to the testing, and the test results dated October 13, 2017 confirmed that the father was 99.99% likely to be the child’s biological father. The father had another visit with J.M.C. at the mother’s home after receiving the test results and then commenced court proceedings to address parenting issues.

[73] The father commenced the original application in this court on December 15, 2017. He sought an order for joint decision-making responsibility and specified, unsupervised parenting time with J.M.C., as he wished to have parenting time without supervision by the mother at her residence. A case conference occurred before Madsen J. on February 15, 2018, and Madsen J. made a temporary order that day granting the father parenting time according to the following terms and conditions:

1. Commencing the week of February 18, 2018, on alternate Sundays from 3:00 p.m. until 5:00 p.m. at the mother’s residence, in the presence of the mother or the maternal grandmother M.B. only.

2. Every Tuesday and Thursday from 6:00 p.m. until 8:00 p.m., at the mother’s residence and in the presence of either the mother or her sister P.C.

3. The paternal grandmother L.B. was permitted to be present and spend time with J.M.C. during one of the father’s parenting periods each week.

4. The father was not to consume alcohol, marijuana or any other non-prescription drugs on his days when he had parenting time.

[74] The case was adjourned to a settlement conference on May 8, 2018 “to address expansion of time sharing and other issues.”

C. Events Leading up to the May 8, 2018 Settlement Conference: Two Child Protection Interventions and Police Involvement

[75] There were numerous difficulties implementing the father’s parenting time as ordered on February 15, 2018 due to the mother’s concerns about the father’s parenting and conflict between the parties and with extended family members. The police and the Society became involved as a result of these problems. I heard evidence about the visits during this period from the parties, the maternal grandmother M.B., the maternal aunt P.C., the mother’s brother J.C., the paternal grandmother L.B. and the paternal aunt V.B. In addition, the parties adduced numerous Society and Hamilton Police Service records into evidence as business records, and those documents provided additional information about the events during the period leading up to the May 8, 2018 settlement conference.

[76] One of the general themes of this case in early 2018 was the high level of conflict between the parties and extended family members who were present during visits. The father expressed frustration about the timing of the Tuesday and Thursday visits, since J.M.C. typically presented as tired. The maternal aunt P.C. described the father as having outbursts and making derogatory comments about the mother during the visits, whereas the father claimed that the maternal grandmother M.B. was negative towards him and his family members. The father felt that the mother, P.C. and M.B. did not give him space to bond one-on-one with J.M.C. The mother and her sister alleged that the father attended some of the visits smelling of marijuana. The father acknowledged in his evidence that he occasionally smokes marijuana in social settings, but was adamant that he has never done so prior to visits or while in a caregiving role to J.M.C.

[77] The mother also testified that the father refused to change the child’s diaper during his two hour visits during this period, and that this resulted in J.M.C. developing serious diaper rashes. The Applicant father claimed that the mother insisted on changing the diapers and executing other child-care tasks herself. I did not find the mother’s evidence credible on these issues. The visits during this period were all supervised by her, her mother or her sister, and I do not accept that they would have allowed the child to remain in a dirty diaper throughout the visits. Moreover, assuming that the child had a clean diaper at the start of the visits, it is not credible that a severe diaper rash of the type that the mother described would have developed over a two hour period.

[78] The visit on Tuesday February 20, 2018 was particularly volatile. I heard evidence from the father, the maternal grandmother M.B., the paternal aunt V.B. and the maternal uncle J.C. about the events of that day. The maternal grandmother M.B. was present in the mother’s home on that occasion to supervise, and the father attended along with his sister V.B. The February 15, 2018 order stipulated that the paternal grandmother could attend some visits, but did not specifically allow for V.B. to attend. However, the maternal grandmother allowed the father and V.B. into the home for the visit. An argument developed between the father and M.B. at some point, and M.B. became uncomfortable about the situation and called the maternal uncle J.C. to come to the home to support her. He arrived on the scene shortly thereafter. The paternal aunt V.B. called the police due to concerns regarding the melee that unfolded in the home. At some point, J.C. called the mother to tell her what was happening in the home, and the mother returned to the home. The evidence respecting the cause of the argument and how the situation deteriorated is conflicting. However, the police report of Police Constable Tait relating to the incident indicates that the conflict erupted because the father raised concerns about the child’s feeding schedule, the fact that his visits were occurring at J.M.C.’s nap times and the overbearing nature of M.B.’s supervision. The maternal uncle J.C. and maternal grandmother M.B. both alleged that the father failed to properly supervise the child during the visit, resulting in the child almost falling off the couch. The mother made much of this issue during the trial. However, I conclude that ultimately, all of the adults present on this date were equally at fault for exposing J.M.C. to immature and unnecessary adult conflict and allowing that conflict to detract from their obligation to ensure his safety and well-being.

[79] The police reported the family to the Society on February 20, 2018 due to concerns regarding J.M.C.’s exposure to high family conflict. Society worker Ms. Julia Meilach-Gould was assigned to investigate the concerns during this first Society intervention. She met with the mother on February 27, 2018. At that time, the mother provided her with a recording of the dispute that had erupted in her home on February 20, 2018. Ms. Meilach-Gould met with the father on March 6, 2018, and he also played a video recording that he had made of the events on February 20, 2018, which confirmed that the maternal grandmother M.B., the maternal uncle J.C. and the father were all yelling and hostile with each other that day in the presence of J.M.C.

[80] The mother testified about concerns regarding the father’s treatment of J.M.C. during the following two hour visit in her home on Thursday February 22, 2018, which she supervised. She testified that she was present during the visit in her home, but that she went into another room at times to allow the father to have private time with J.M.C. She alleged that she returned to the room where the father and child were located at one point because the child was crying, and she observed the father pressing the child’s back down hard on the couch rather than nurturing him. The mother suggested at trial that the father purposefully pushed the child down to hurt him during this visit. The father denied having done this to J.M.C. The mother took a photograph of J.M.C.’s back following the visit, which was marked as Exhibit 13 at trial. Significantly, the mother’s description on the photograph of what she allegedly observed was inconsistent with what she relayed at trial. She indicated in the notation that during the visit, J.M.C. was “crying unbearably and I found [the father] hurting my son and squeezing a 10 month baby and this was the result.” There was no mention of the father pushing J.M.C. down on a couch. In any event, there was no medical evidence relating to the possible cause of the marks, and they appear to be possibly consistent with rash marks at the child’s diaper line across his back.

[81] The Society investigated the mother’s concern about the mark on J.M.C.’s back following the February 22, 2018 visit during its first intervention with the family. Notably, the information that the mother relayed to Ms. Meilach-Gould about this concern was completely inconsistent with the evidence that she gave at trial. She stated to the Society worker that only her sister was supervising that day, and that she felt that the mark on the child’s back was “either from the diaper, or the way he grabbed my son was aggressively, it could have been from that.” She did not claim at that point that she had seen the father firmly pressing J.M.C. against the couch. As noted below, the Society did not verify any protection concerns respecting the father in relation to this mark on the child’s back. I am not satisfied that this mark was caused by any maltreatment or inadequate supervision of the child by the father.

[82] The mother also relayed concerns to Ms. Meilach-Gould during the Society’s first investigation that the father was a marijuana addict, that he refused to change the child’s diaper, that he could not meet the child’s basic needs, and that he was hostile and aggressive towards her and her family members during visits. The father advised Ms. Meilach-Gould during his contacts with her that he only used marijuana occasionally and never before visits or while in a caregiving role. He also indicated that the mother would not allow him to carry out child-care tasks during visits in her home, including giving J.M.C. a bath. The Society’s first intervention with the family ended on March 8, 2018. In its closing letter to the parties dated March 8, 2018, Ms. Meilach-Gould and Society Intake Supervisor confirmed that the Society had verified that J.M.C. was at risk of harm due to adult conflict, flowing from the events that had occurred at the mother’s residence on February 20, 2018. The Society did not verify any of the other concerns that the mother had reported respecting the father’s alleged inadequate care and maltreatment of J.M.T. during visits. I conclude that those concerns are not substantiated on the evidence.

[83] The mother testified that she had additional concerns about the father’s supervision and possible maltreatment of J.M.C. during the two hour visit that occurred at her home on Thursday March 15, 2018. She claimed that the child sustained a “huge scratch to his face” during this visit, and she adduced as evidence a photograph of the child’s face that she had taken immediately following the visit, which was marked as Exhibit 14. She stated at trial that both she and her sister were present in the home during this visit, but that the father was alone with J.M.C. for a period of time in the living room. She alleged that she noticed the large scratch at the end of the visit, and that the father could not explain how it had occurred. The father testified that the mother never left him alone with the child during visits, and that on this particular day, they both observed J.M.C. slip and fall on a toy. He noted that the child was absolutely fine after this incident. I accept the father’s evidence over the mother’s regarding this incident. Her description of the mark as a “huge scratch” was an exaggeration, as the photograph reveals only a faint red mark. Moreover, if in fact the mark was “huge” as the mother suggested, it is not credible that she would not have heard the child crying from the injury when it happened during the visit, and that she would have only observed it at the end of the visit. In addition, when the mother questioned her sister about whether she had observed any injuries on J.M.C. following visits that she had supervised, she made a vague reference to having noticed “some scratches” on his face, but no mention of one particularly “huge scratch” as alleged by the mother. I am not satisfied that J.M.C. sustained the mark as a result of negligence or maltreatment by the father. Rather, I find that it occurred from J.M.C. unexpectedly falling onto a toy, which happened in the presence of both parties.

[84] The Hamilton Police Service and Society records indicate that there was another incident of family conflict at the mother’s residence at the outset of the two hour visit on Sunday March 18, 2018. The father attended the mother’s residence that day with the paternal grandmother L.B., and the mother began to confront him about not having changed the child’s diaper during the March 15, 2018 visit. The father denied responsibility for the child’s diaper rash, claiming that it had occurred while J.M.C. was in the mother’s care, and an argument ensued. The mother contacted the police, alleging that the father was being hostile towards her. The father alleged that the mother repeatedly called the paternal grandmother L.B. a bitch during this encounter. The police records reflect that when the police arrived, the father and L.B. were calmly sitting on the front porch and were cooperative. The police noted that when they questioned the mother about why she had reported the father being hostile, she was unable to provide a clear answer except to state that he had raised his voice. The police determined that no assaults or threats had been made, and that there were no grounds for any charges. I find that the mother’s reaction to the events of that day was exaggerated and that her description of the father’s conduct to the police was misleading.

[85] The police advised the Society of their attendance at the mother’s home on March 18, 2018, and this resulted in the second Society investigation respecting the family. Society workers Ms. Julia Meilach-Gould and Ms. Cindy Dowhaniuk were involved during this opening. In a meeting with Ms. Dowhaniuk on March 19, 2018, the mother once again voiced her concerns about the mark on J.M.C.’s back following the February 22, 2018 visit, which Ms. Meilach-Gould had previously investigated during the Society’s first intervention. However, during this meeting, she suggested for the first time that the mark had possibly been caused by the father pressing J.M.C. down against the couch when the child was refusing to nap. In addition, she alleged that during the February 22, 2018 visit, the father had handled the child aggressively twice. Ms. Meilach-Gould and her supervisor, Ms. Michelle St. Pierre, reviewed these allegations and the picture of the mark on the child’s back once again on April 11, 2018, and noted that the latter concern had been previously investigated with no concerns being verified. Upon reviewing the photograph for the second time, they both concluded that the mark may have been caused by a diaper band, and that there was nothing to indicate that the child had been harmed by the father either intentionally or due to inadequate handling or supervision.

[86] During its second investigation, the Society also addressed the mother’s concern about J.M.C.’s alleged diaper rash and the scratch mark on his face after the March 15, 2018 visit. The mother provided Ms. Meilach-Gould a photograph that she had taken of the child’s buttocks to substantiate her concerns. With respect to this rash, the father emphasized to Ms. Meilach-Gould that the mother would not allow him or his family members to carry out any child-care tasks during the visits, and that this was therefore not attributable to any wrongdoing on his part. In regard to the mark on the child’s face, Ms. Dowhaniuk saw a small area of redness but no other marks on the child’s cheek when she met with the mother and child on March 19, 2018, despite the mother’s insistence that a visible scratch mark remained and that the worker look more closely to see it. The father advised Ms. Dowhaniuk that the child fell onto a toy during the March 15, 2018 visit, and that the mother was present when that occurred. The Society completed its second investigation in mid April 2018. It advised the parties in correspondence dated April 19, 2018 that there was no evidence to suggest that the father had harmed the child, or that the child was at risk of harm while in the father’s care due to inadequate caregiving skills. The Society did not take any position respecting the parenting issues, with the exception of directing that the parties should not have any direct contact when carrying out parenting exchanges. The outcome of this investigation further supports my findings respecting the alleged scratch on J.M.C.’s face following the March 15, 2018 visit.

D. The Father’s Motion for Expanded Parenting Time, Third Society Intervention and Ongoing Police Involvement

[87] The father decided to temporarily stop attending visits following the second Society investigation in March 2018, due to the conflict while at the mother’s home, the numerous unsubstantiated allegations that the mother had made against him, the Society’s direction to avoid direct contact with the mother, and his desire to shield J.M.C. from further conflict and investigations. In addition, the Society’s records indicate that the police had recommended to him that he not attend the mother’s residence for his own protection after the March 18, 2018 incident at the mother’s home. The father felt that it was in J.M.C.’s best interests to vary the temporary order to permit unsupervised visits away from the mother’s home before resuming his parenting time, so that J.M.C. would not be exposed to any further adult clashes.

[88] The parties attended the settlement conference before Mazza J. on May 8, 2018, but they were unable to reach agreement regarding an expansion of the father’s parenting time in a setting away from the mother’s home. The father therefore brought a motion in May 2018 seeking an order for expanded and unsupervised parenting time at a location other than the mother’s residence. Brown J. heard this motion on June 1, 2018. As of that time, the father had only had approximately six visits with J.M.C. On June 6, 2018, Brown J. made a temporary order granting the father parenting time upon the following terms and conditions:

1. For fifteen more visits, the father’s parenting time was to continue as set out in the February 15, 2018 order, being every Tuesday and Thursday from 6:00 p.m. until 8:00 p.m. and on alternate Sundays from 3:00 p.m. until 5:00 p.m., but these visits were not to occur at the mother’s home and were to be supervised by the paternal grandmother L.B. or another third party agreed upon between the parties.

2. After these fifteen visits, the father was to have unsupervised parenting time on a gradually increasing basis, with exchanges to occur at a neutral location, as follows:

a) For three weeks, on Sundays from 2:00 p.m. until 4:00 p.m., and on Tuesdays and Thursdays from 6:00 p.m. until 8:00 p.m.

b) For the next three weeks, on Sundays from 2:00 p.m. until 6:00 p.m., and on Tuesdays and Thursdays from 6:00 p.m. until 8:00 p.m.

c) For the next four weeks, on Sundays from 2:00 p.m. until 7:00 p.m., and on Tuesdays and Thursdays from 6:00 p.m. until 8:00 p.m.

d) Finally, parenting time would progress to every Sunday from 2:00 p.m. until 8:00 p.m., and every Tuesday and Thursday from 6:00 p.m. until 8:00 p.m.

[89] The June 6, 2018 order did not include any terms or restrictions as to who could carry out or be present at the parenting time exchanges.

[90] The father’s visits with J.M.C. were to resume in accordance with Brown J.’s June 6, 2018 order on Tuesday June 12, 2018. The father and the paternal grandmother L.B. attended at the mother’s home that day to pick J.M.C. up for the first two hour visit without the mother present, but unfortunately, another volatile situation erupted and the visit did not proceed. I heard evidence from both parties regarding the events of that day, and I have also considered the Society and police records relevant to those events. I find that the father parked down the street from the mother’s home at approximately 5:50 p.m. that evening to avoid face-to-face contact with the mother, and that the mother handed J.M.C. to the paternal grandmother outside of her home. The mother then waved to the father to drive to the front of her residence, because she wanted to check the car seat in the father’s vehicle and make sure that J.M.C. was properly secured. The father drove to the front of the mother’s house, and the mother then approached the back seat where J.M.C. was sitting while the father and L.B. were attempting to secure J.M.C into the car seat. The mother then attempted to intervene and push her way through the father and L.B., and the father attempted to stop her from removing J.M.C. from the car seat. The mother testified that the father pushed her at that point, and that she sustained a large bruise to her left thigh as a result of this alleged assault. She adduced a photograph of her left leg with a significant black and blue bruise as evidence at trial (Exhibit 33), which she stated she took after this incident. She did not explain at trial how the alleged push had resulted in such major bruising. I note that the mother’s notation on the photograph of her leg is inconsistent with her testimony in that it refers to the Applicant father having hit her rather than having pushed her. Later in her testimony, she stated that she had called the police that day to report that the father had hit her, which was inconsistent with her initial description about having been pushed. The father recalled that the mother accused him during this incident of having pushed her. He testified that she shoved her way through him and the paternal grandmother in an attempt to get to J.M.C. The Society records indicate that the father described around the time of the events that the mother had bounced off him as she pushed through in her haste to see the child in the back seat of the car. I find that the mother eventually removed J.M.C. from the car seat and that the father did not stop her, as he did not want the situation to escalate further.

[91] The mother called the police on June 12, 2018, and while everyone was waiting for the police to arrive, the paternal aunt V.B. and her husband D.F., who is a police officer for another police service, came to support the father and paternal grandmother. The mother attempted to establish at trial that the presence of D.F. on the scene influenced the Hamilton Police Service officers who investigated this situation and resulted in a biased outcome in favour of the father. There was absolutely no evidence to support this very serious complaint and allegation of bias and unprofessional conduct against the Hamilton police officers. The police dispatch records relating to this incident indicate that the mother initially reported to the dispatch officer that the father was trying to take the child when it was not his visit day, which was clearly untrue, and that the father had hit her. Constable Alafranji attended the scene on the evening of June 12, 2018 and spoke with both parties and the paternal grandmother L.B. He noted that the mother’s only issue when he first arrived was that she did not approve of L.B. supervising the father’s visits, despite the fact that the court order had specifically designated her as a supervisor. It was only after P.C. Alafranji suggested options for addressing these concerns that the mother then mentioned that the father had pushed her. He observed a small area of redness approximately 5 cm in size on the mother’s left thigh. He noted that the mother could not explain what she had been pushed against, whether she hit anything or any details as to how she had been injured. P.C. Alafranji concluded that there were no grounds to lay charges.

[92] The mother attended the police station later on June 12, 2018 at 11:15 p.m. to complain about how the police had handled the situation. She spoke with Staff Sergeant Thibodeau, who noted that the version of events that she provided to him differed in many significant ways from what she had told P.C. Alafranji. Following consultation with P.C. Alafranji, he concurred that no charges were warranted since there was “a significant doubt in the allegation of an assault.” He had concerns about the mother’s credibility based on the numerous inconsistencies in the mother’s explanations; the major inconsistency between the minor 5 cm area of redness that P.C. Alafranji had observed on the scene at 8:40 p.m. and the major bruise that she presented with at 11:15 p.m. that night at the police station; the mother’s inability to provide a reasonable explanation for how she had sustained her injury; and the fact that the significance of her bruising as of 11:15 p.m. was incompatible with her claim of having been pushed. The police reported the events of June 12, 2018 to the Society, which became involved again soon thereafter. During a meeting with Society worker Ms. Darlene Milko on June 19, 2018, the mother gave another version of the events of June 12, 2018 that conflicted significantly with what she had relayed to the police and her evidence at trial. Significantly, during that interview, she claimed for the first time that she was holding J.M.C. when the father allegedly pushed her, and that she sustained the injury as a result of hitting the door of the car after being pushed. Having carefully considered and weighed all of the evidence relating this incident, I find that the mother was not credible at all regarding this incident. I accept the father’s version of events, and I am not satisfied that he pushed or assaulted the mother on June 12, 2018.

[93] Unfortunately, there was