COURT FILE NO.: FC-19-1492
DATE: 20230829
ONTARIO SUPERIOR COURT OF JUSTICE
JUSTICE ALEX FINLAYSON
TABLE OF CONTENTS
PART I: OVERVIEW
A. Background
B. The Parties’ Positions
C. Summary of the Outcome of the Trial in this Judgment
PART II: CREDIBILITY
PART III: FINDINGS OF FACT
A. The Parties’ Employment and Income
B. The Nature of the Parties’ Relationship During the Prior Proceedings Against S.K.
(1) The Parties’ Initial Friendship
(2) The Mother’s Relationship with S.K.
(3) The Prior Proceedings With S.K. and the Father’s Involvement In It
(4) The Father Assisted the Mother to Conceal Her Address from S.K.
(5) Both Parties Participated in Tracking S.K.’s Movements, and the Mother Accused
the Father of Offering to Plant Drugs on S.K. to Get Him Arrested
(6) The Father Had Another Police Officer Friend Stop S.K. While Driving
(7) The Father Gave the Mother Contact Information For A Private Investigator
(8) The Father Encouraged the Mother to Complain to S.K.’s Employer
(9) The Father Inserted Himself Into S.K.’s Parenting Time, At the Mother’s Request
C. The Parties’ Involvement in Obtaining the Falsified DNA Test
D. Findings and Conclusions Respecting the DNA Test, Credibility, and the Impact on
T.’s Best Interests
E. The Progression of the Relationship from A Friendship to a Romantic Relationship
F. The Parties’ Engagement and the Dispute About the Engagement Ring
G. The Mother’s Claim that She was Basically a “Single Mother” Due to the Father’s
Work Schedule
H. The Mother’s Pregnancy with B.
I. The Proposed Adoption of T. by the Father
J. The Parties’ First Separation
K. The Father’s Choice of A Lawyer Following the First Separation
L. The Parenting Arrangements After the First Separation
M. The Conflict Surrounding B.’s Birth
N. The Parties’ Reconciliation
O. The Final Separation on July 12, 2019
P. The Parenting Arrangements Following the Final Separation
Q. The Strength of the Parents’ Relationships with the Children
PART IV: THE PRIOR PROCEEDINGS
PART V: THE CONDUCT OF THIS TRIAL
PART VI: ISSUES AND ANALYSIS
A. The Applicability of the Divorce Act versus the Children’s Law Reform Act
B. The Applicable Statutory Provisions Respecting Decision-Making Responsibility
C. Applicable Legal Principles and Analysis Concerning Joint Decision-Making
Responsibility
D. Applicable Legal Principles and Analysis Respecting the Parents’ Biological Ties to
T.
E. Findings and Conclusions Respecting Decision-Making About Education
(1) T.’s First Day of School
(2) T.’s School Registration
(3) The Mother’s Efforts to Exclude the Father from the School After Enrolling T.
(4) B’s. School Enrollment for the 2021-2022 School Year
(5) The Conflict Surrounding the Children’s Hairstyles and Haircuts that Spilled
Over Into the School
(6) The Christmas Ornament Incident in December 2020
(7) The Distribution of School Work
(8) The Class Helper Incident during the 2021-2022 School Year
(9) B.’s Birthday Celebration at School During the 2021-2022 School Year
(10) The Exchange of School Uniforms Between Households
(11) Whether the Children May Be Included in Routine Photographs Taken At the
School, and in the Year Book
(12) Whether the Father’s Conduct at the School Was Part of A Pattern of Coercive
and Controlling Behaviour
(13) Conclusions Respecting Decision-Making Over Education
F. Findings and Conclusions Respecting Decision-Making About Health
(1) The History of T.’s Bowel Issues and the Dispute About the Use of Laxatives to Treat
Her
(2) The Status Quo Regarding Decision-Making Over Health
(3) T.’s Trip to An Emergency Room in Peterborough In May of 2022
(4) The Events Following T.’s Trip to the Emergency Room
(5) The Return of this Matter to Court and Subsequent Events Thereafter
(6) Other Medical Issues and the Withholding of Information About Them
(7) Conclusions Respecting Decision-Making Over Health
G. Findings and Conclusions Regarding Decision-Making About Religion
H. Findings and Conclusions Respecting Decision-Making About Significant Extra-
Curricular Activities
I. The OCL Report dated January 26, 2022 and Ms. Bernatt’s Recommendations
J. Family Violence
(1) The Parties’ Written Communications
(2) Whether the Father Incited Anxiety, Fear and Dread in the Mother Through His
Use of this Legal Proceeding
(i) The Father’s Choice of Counsel and the Request for a Paternity Test for B.
(ii) The Use of the Police and the Society
I- The Father’s Missing Police Notebooks or Computer
II- The Repairs to the Matrimonial Home
III- The Joint Police and Society’s Investigation in March of 2022
IV- Conclusions Respecting the Joint Police and Society’s
Investigation in March of 2022
(iii) The Father’s Other Litigation Conduct
(3) Conclusions About Whether the Father Incited Anxiety, Fear and Dread in the
Mother Through His Use of this Legal Proceeding
(4) The Father’s Video Recordings
(i) Legal Principles Respecting Admissibility of Videos
(ii) Exhibit 168: The Bath Time Video
(iii) Exhibit 169: The Video of T. Being Put Out on the Back Deck
(iv) Exhibits 170 and 171: The Videos Taken by the Father from the Basement
Bedroom
(v) Exhibit 172: The Surveillance Footage of the Parenting Exchange on
Mother’s Day Weekend in 2022
(5) Whether the Father Spread Misinformation to Third Parties to Influence their
Opinions
(i) Whether the Father Spread Misinformation to Teachers and Administrators
at the Children’s School
I - A.D.’s Opinion of the Mother
II - R.P.’s Opinion of the Mother
III - P.O.’s Opinion of the Mother
IV - D.P.’s Opinion of the Mother
V - The Incident At School Where T. Said that “S.” [the father] was going to
“Kill Me” And the Relevance of the School’s Response
VI - Disclosure of School Records and Whether the Father Had Preferred
Access to Those At the School
(ii) Conclusions About Whether the Father Spread Misinformation to Teachers
and Administrators at the Children’s School
(iii) Whether the Father Spread Misinformation to Draw In Members of the
Mother’s Family
(iv) Whether the Father Interfered in the Mother’s Therapeutic Relationship with
Dr. Fountain
(6) Whether The Father Asserted Financial Control During the Relationship
(7) The Other Allegations of Physical Violence
(8) The Mother’s Verbal Abuse
(9) The Parties’ Allegations About Church Attendance
(10) Summary and Conclusions Respecting Family Violence
K. The Spouses’ Willingness to Support the Development and Maintenance of the
Children’s Relationships with the Other Spouse
L. B.’s Birth Registration, and Both Children’s Names and Identities
(1) The Father’s Request for a Declaration of Parentage Respecting B.
(2) The Father’s Request to Change the Children’s Names
(3) Application of these Principles
(i) The Role that the Parents Played in The Selection of T.’s Surname
(ii) The Selection of B.’s Forename and Surname
(iii) The Children Are Already Confused About Their Identity; The Name
Change Will Aid to Resolve that Confusion, Not Exacerbate It
(iv) The Children’s Views About Their Names
(v) The Importance of the Children’s Relationships With The Father
(vi) Administrative Issues with Third Parties
(vii) The Concern About Multiple Name Changes
M. Parenting Time
N. Parenting Time Exchanges
O. The Holiday Schedule
P. Notice of this Judgment Shall Be Sent to S.K. Within 60 Days
Q. Confidentiality Respecting this Proceeding
R. The Confidentiality of the Children’s Therapy
S. Divorce
T. Costs and the Financial Accounting
PART VII: ORDER
PART I: OVERVIEW
A. Background
[1] This is an extremely high conflict case. It concerns two children, a girl named T., now age 8; and a boy named B., now age 6.
[2] T. is the mother’s child of a former relationship. B. is the parties’ biological child of this relationship. The mother has sole custody of T. pursuant to the Final Consent Order of Corkery J. dated April 13, 2016. That Order was obtained in prior proceedings between the mother and a man named S.K. It was obtained by fraud.
[3] Contrary to what the Court was told in the prior proceedings, the mother now tells this Court that she has no doubt that S.K. is T.’s biological father. Yet the prior proceedings came to an end after the mother obtained and submitted a false DNA test, misleading S.K., the Court, and most importantly T., about T.’s parentage. Pursuant to Corkery J.’s Consent Order, S.K. did not get any parenting time with T.; nor did he have to pay any child support.
[4] The two parties before the Court in this proceeding had met years earlier and had occasional contact with one another from time to time. They became close friends starting in the fall of 2015 while the mother was in the midst of the prior proceedings. They bonded over a shared opposition against S.K. in those prior proceedings. The mother involved the father in her case, mostly behind the scenes, and the father willingly participated in it. While the extent to which the father knew about and participated in the mother obtaining the false DNA test is a contested fact, the extent to which he otherwise participated in the mother’s case is less controversial.
[5] The parties’ friendship turned into an amorous relationship over time, as they dealt with that prior case. The parties began living together in a house that was purchased in early 2016. They would later marry on October 1, 2016.
[6] The parties’ relationship turned sour, not too long after that, and after the case against S.K. came to an end. By February of 2017, the parties separated for the first time. The mother was pregnant with B. at the time.
[7] The parties reconciled in the middle part of 2017, after B. was born, with the assistance of a marriage counsellor. Their reconciliation came with strings attached. It did not last. On July 12, 2019, less than two years after the reconciliation, the parties separated for the final time. Two months later, this proceeding commenced.
[8] There have been several conferences and motions before different judges. The parties were allocated multiple days of trial time, based on the estimates they included in the Trial Scheduling Endorsement Form. This Court heard a long trial in this matter over sixteen different days during the fall 2022 trial sittings. The trial spilled over into the first part of 2023.
[9] The trial only concerned parenting issues respecting both T. and B. because at its outset, counsel advised the Court that the financial issues had settled. The financial settlement ended up being controversial, and the mother brought a post-trial motion to enforce the terms of the settlement. For the reasons set out in my ruling (see S.C.H. v. R.S., 2023 ONSC 1549), there will be a financial accounting between the parties when this Court rules on costs after this trial.
[10] This Judgment is lengthy. Each party had two lawyers present throughout this trial. The parties spent several days in the witness box, going over the minute details of the various conflicts that they had with one another during the relationship and in the years that followed its end. In addition to their oral testimony and the testimony of a number of other witnesses, the parties cumulatively tendered some 167 Exhibits, comprising hundreds, if not thousands of pages of
documentary evidence. Although they were not all tendered into evidence, their written communications, compiled in multi-volume Exhibit Books, easily exceeded 4000 pages in length.[^1]
[11] Cumulatively, the parties’ written closing submissions were 172 pages in length, exclusive of the schedules attached to the mother’s. These were supplemented by oral submissions heard over the course of an extended sitting day on February 27, 2023.
[12] The parties made numerous arguments at the end of the trial. These include the mother’s argument, that the father engaged in a pattern of coercive and controlling behaviour; in particular her allegation that large swaths of the documentary record were manufactured or manipulated by him, in an attempt to paint a false narrative about her. I do not characterize the parties’ relationship in the same fashion that the mother, or the father either for that matter, would have the Court characterize it.
[13] The Court has now considered further written submissions about three matters, prior to the release of this Judgment.
B. The Parties’ Positions
[14] The parties each tendered lengthy and detailed multi-directional parenting Orders in draft, that they asked the Court to grant. The Court’s Order is much closer in the result to the father’s proposal, although not in every respect. I also do not necessarily adopt each item exactly as proposed by one party or the other, or even necessarily those to which the parties agreed. The Court has discretion to override positions and consent provisions, where those terms are not in the children’s best interests: see A.M. v. C.H., 2019 ONCA 764 ¶ 29; see also Richardson v. Richardson, 2019 ONCA 983 ¶ 25-31.
[15] In broad strokes, the father seeks sole decision-making responsibility for both children. In the alternative he seeks joint decision making, but he also testified that the believes he mother will continue try to alienate him, if the Court orders this alternative.
[16] In regards to the parenting schedule, the father asks the Court to continue the equal ‘2-2-5- 5’ parenting schedule that Leef J. ordered on a temporary basis on September 3, 2020. Alternatively, he asks the Court to order a week about schedule.
[17] The father further proposes a detailed holiday schedule, travel terms, terms about documentation, and other terms in an attempt to manage the conflict between the parties and the impact of it on the children.
[18] The mother is proposing decision-making terms that she characterizes as more “nuanced” and subtly different for each child. In my view, the mother has basically asked for final decision- making for both children.
[19] For example, the mother seeks to have sole decision-making for T. The mother claims she is willing to canvass the father’s views first. But once she decides an issue, the father should follow her “decisions” and “plans” when T. is in his care.
[20] Said to be in contrast, the mother seeks joint decision-making for B., although after first encouraging “input from [the child] where appropriate”. B. is 6 years old; he was 5 when the mother proposed this. While the mother said she is “committed” to try to consult with the father, if the parties cannot agree, then once again, she will have final say.
[21] The mother proposes two different versions of a regular parenting schedule. Her preferred schedule is the one that contains a reduction of the father’s parenting time. Although an alternate schedule is included in her draft Order, she is not really asking the Court to order the other schedule. The mother asserts her preferred schedule for a reduction of time is rooted in the needs of the children. In my view, she overemphasizes the import of biology in advancing this plan. In fact, the concept of biology has permeated into a number of areas of parental conflict.
C. Summary of the Outcome of the Trial in this Judgment
[22] While ordering joint decision-making to maintain one parent’s or the other’s role in the children’s lives remains an option, it is hard to conceive of anything that these parties will be able to agree about going forward. Joint decision-making is not tenable from the children’s perspectives because such an order will undoubtedly perpetuate the high degree of conflict between the parties, and expose the children to harm arising from that conflict.
[23] The Court must craft an Order that is solely focused on these children’s best interests, despite the parties’ desire to have the Court admonish one of them and vindicate the other. Part of the Court’s task is to attempt to shield these children from any ongoing conflict. I find that in this case, this Court must choose a final arbiter between one of these parents to achieve these goals.
[24] After applying the best interests’ considerations in the Divorce Act to the evidence before the Court, I find that the father should have final decision-making respecting health and education. I have little confidence in the mother’s ability to consult with the father, or to take into account his views. The mother has gone to some lengths to marginalize not just this father, but also S.K. ironically with the father’s active help.
[25] Yet the Court has concerns about the father’s ability to remained focused on the children’s best interests based on his past conduct also. Therefore, his decision-making responsibility in these areas will not be unlimited. The Court will impose some terms to constrain the exercise of his decision-making responsibility, to a point, but not at the expense of too much hamstringing his ability to act, and creating an opportunity for these parents to engage in more conflict.
[26] The Court does not need to address decision-making over religion. The parents share the same religion. Their dispute about religion revolved around which parent could go to which church. It was more about them then it had anything to do with the children.
[27] The parental dispute about church attendance also resolved on consent after submissions. Religion is otherwise adequately dealt with through the choice of school too, since the children attend a particular religious school in this region.
[28] The final Order is not empowering either parent to make sole decisions about significant extra- curricular activities either. The parents can enroll the children in whatever activities they want on their own time. The Court will impose restrictions on the parents’ attendance at those activities, which are directed at limiting the parents’ opportunities to create tension and conflict in the presence of their children.
[29] Regarding parenting time, the Court finds that the shared parenting schedule that Leef J. has already put into place should continue. There is no reason rooted in the children’s best interests to reduce the father’s time, as the mother has asked.
[30] There are other related parenting issues that the Court must decide. The mother filled out B.’s Statement of Live Birth without identifying the father as B.’s father. The father seeks a declaration of parentage that will cause him to be added to the birth registration. Although no steps were taken to fix this prior to trial or during it, the mother is now not opposed to the request for a declaration of parentage respecting B.
[31] The parties disagree about the children’s names. The father seeks to have both children’s surnames changed, to be hyphenated as “H.-R.”. While he had asked in his initial Application for the surnames to be changed, to be in the reverse order with his surname as the ultimate name (ie. “R-H.”), he has changed his position to use an alphabetical ordering based on section 10(3) of the Vital Statistics Act. He also asks the Court to prohibit the mother from requiring the children to address him by his first name, or “Mr. H” when in her care, or to cause them to fear that they will be in trouble if they refer to him as their father.
[32] While some of this particular conflict manifested itself as a more narrow dispute about the children’s names, the issue is much larger between the parents, and at its core, it is tied to biology. Although T. thought the father was her father essentially for her entire life, during these proceedings, around when Leef J. ordered an increase to the father’s parenting time on an interim basis, the mother saw fit to tell T., who was then just age 5, that the father was not in fact her father.
[33] Notably, although telling the truth to T. is claimed as the motivating factor, the mother did not tell T. that she thinks S.K. is her biological father. There is no credible evidence that she had a broader conversation with T., about different concepts of what is a parent, beyond mere biology, either.
[34] The Order sought by the father respecting the children’s names will be the final Order. But his request pertaining to T.’s name must be delayed as a result of the problem these parties created vis à vis S.K.
[35] In this Judgment, I intend to address that problem, created as a result the fraud in the prior proceedings. This was one of the subject matters of the supplementary submissions the Court received. To remedy it, I find that this Judgment must be brought to S.K.’s attention, but on the terms set out below.
[36] At no time during the 16 days of trial time did either party tender any evidence about a realistic therapy plan for T. or for B. either, for that matter. Rather, they each sought to address the matter by seeking orders for decision-making authority. A joint proposal was only submitted after the Court requested submissions about therapy for the children, at the end of the trial.
[37] While the father will have decision-making responsibility over health, neither party has demonstrated the capacity to deal with decision-making over this aspect of the children’s mental health on their own, as further revealed by that consent dated April 13, 2023, and now the supplementary written submissions, subsequently provided. The Consent dated April 13, 2023 provides for the children to attend therapy with S.P. on certain terms, including that the therapy will be completely closed.
[38] The Court has not yet approved the parties’ Consent. The Court has concerns about the confidentiality provisions that the parties have inserted into their consent. It may very well be that this family, or S.K., will be back before the Court over issues pertaining to T.’s identity. The evidence of a professional involved with the children to address mental health, but specifically the question of T.’s identity, may very well be essential if that occurs.
[39] Moreover S.K. was not a party to this proceeding, and the proposed confidentiality terms, were they to be ordered, may affect him in future proceedings.
[40] Finally, the Court also has concerns about the parties’ ongoing behaviour. The supplementary written submissions reveal that the parties are now arguing about the payment therapy, even though this was already agreed to on February 27, 2023. The children have not received any therapy in the several months since the end of the trial, due to this unnecessary dispute.
PART II: CREDIBILITY
[41] Credibility is a significant issue in this case. The father’s counsel began her cross- examination of the mother on the issue of credibility. The mother admitted that she lied, or at least that she omitted to properly identify T.’s father on T.’s Statement of Live Birth, that she obtained the false DNA test respecting T., and that she failed to identify B.’s father on his birth certificate. Other problems respecting the mother’s credibility were exposed as the father’s counsel’s cross- examination of the mother continued, and during other portions of this trial.
[42] In his written closing submissions, the father points out a number of areas where he says the mother lacks credibility. Citing the factors in ¶ 4-6 of Joshi v. Joshi, 2017 BCSC 207, the father argues that the mother changed her answers multiple times, that her evidence was often not consistent with the parties’ written communications, and that the mother misled the Court in the prior proceedings with S.K. He argues that the mother violated the rule in Browne v. Dunn a number of times (which she did in fact do), and that this too adversely impacts her credibility. By contrast, the father argues that his evidence is well supported by other witnesses and evidence and urged the Court to prefer his evidence, where the parties’ accounts of events are in conflict with each other.
[43] Unquestionably, both the mother’s relationship with S.K., and what went on during the prior proceedings with him, are central to her credibility. The mother committed a significant act
of dishonesty, which I consider alongside many of the other instances of her poor credibility throughout these reasons.
[44] But just because the mother behaved badly does not necessarily make the father more credible. Indeed, one of the specific factual issues relevant to the father’s credibility (among many) that I have been asked to decide, is the extent to which the father was a party to the past act of fraud.
[45] I do not accept the father’s denial of his knowledge of what the mother did with the DNA test at the time she did it, and consequently any participation in it. On a balance of probabilities, I find that the father was aware of, and indeed he participated in the mother’s procuring of the false DNA test, that was then used to mislead S.K., the Court and T. This, along with some of his other, admitted and problematic behaviour is a significant stain on his own credibility.
[46] So that it is clear, this case is not about the fraud per se. The parties told the Court about the DNA test, and the prior proceedings with S.K., as part of the historic factual narrative and because it is relevant to credibility. It also directly impacts T.’s well-being and the need for certain orders about her. That does not mean the Court should just ignore what it heard and the impact on
S.K. And quite apart from what happened with the DNA test, numerous other aspects of both parties’ behaviour were highly inappropriate.
[47] Therefore, I am not prepared to make a sweeping pronouncement of credibility in favour of one party or the other. I will deal with credibility on an issue-by-issue basis, where I have found it necessary to do so.
PART III: FINDINGS OF FACT
A. The Parties’ Employment and Income
[48] The father is a police officer with over 20 years’ experience. For the first 8 years of his career, the father had uniform, primary and community response duties. The father then worked in an undercover capacity on a drug squad for 7 years. He spent about half of that 7-year period
working on a street enforcement team, and the other half working in a plain clothes capacity, in a major project division, as a surveillance officer and a search warrant affiant.
[49] In cross-examination, the father acknowledged that he had experience testifying in criminal courts. He talked about his experience writing affidavits in that former role. This proved to be helpful, when it came to assisting the mother with her litigation against S.K.
[50] One of the parties’ agreements in counselling after the first separation in 2017, that led to the reconciliation, was that the father would change jobs to be more available at home. Further to this agreement of the parties, the father went back to work as a uniformed officer for a while. He said he picked the “slowest division” to minimize his work commitments, and to be able to have long stretches of time off. In April of 2018, the father began working in an administrative role.
[51] The mother is self-employed doing interior design work. After high school, the mother first had other jobs until she decided to go to college to study this. The mother now operates her business through an incorporated entity that is named after her. As I will explain later when discussing the dispute about the children’s names, during the marriage the mother changed the name of her business to be based on the father’s last name, but she no longer operates using that name.
[52] According to the Final Order dated December 9, 2022 that settled the financial issues, the father 2022 income is deemed to be $120,615.00. The mother’s 2022 income is deemed to be
$50,000.00.
B. The Nature of the Parties’ Relationship During the Prior Proceedings Against S.K.
(1) The Parties’ Initial Friendship
[53] The parties met each other for the first time on the father’s birthday, in early 2008, when they were in other relationships. They kept in touch with each other from time to time after that, but only on an occasional basis. In the spring of 2015, the mother and T. moved in with the
maternal grandmother after her separation from S.K. The father lived in the same neighborhood as the maternal grandmother.
[54] The parties started “hanging out on a regular basis” after that move. The father was then still on the major projection section of the drug squad. The father testified that he visited the mother at the maternal grandmother’s home on a daily basis, and sometimes twice per day, before and after work. The mother testified that she considered the father to be her “best friend”.
[55] The maternal grandmother observed the father’s interaction with T. in those early days. She trusted him to come and go freely from her house. The father was a frequent presence in the maternal grandmother’s home throughout much of 2015, until the parties moved in together in 2016.
[56] While the maternal grandmother testified that the parents spent time together in the evenings, after the mother put T. to bed, the father would come over for breakfast as well. The maternal grandmother gave an example of the father cutting T.’s food for her during breakfast for her. During this time frame, the father’s relationship and bond with T. grew.
(2) The Mother’s Relationship with S.K.
[57] To address credibility, and to consider best interests, it is necessary for this Court to discuss the mother’s relationship with S.K. in some detail. This evidence was squarely put before the Court by both parties, at length. I observe at the outset, that many of the mother’s allegations against S.K. were not proven, since he was not a participant in this proceeding, and because of the self-help in the prior proceedings. Hence, important findings about S.K. have not been made.
[58] The mother testified that she met S.K. in 2010, and she began dating him soon after that. The mother described her relationship with S.K. as an ‘on again, off again’ one. The mother said she moved in with S.K. in early 2012. The mother left the relationship twice, once for a five- month period after she was pregnant, and again in the first part of 2015, after T.’s birth, when T. was only a few months old. Contrary to what I was told at one point during the Opening Trial Statements, the evidence from the mother established that the nature of her relationship with S.K.
was a “conjugal relationship outside marriage” within the meaning of sections 1 and 7(2)(1.) of the Children’s Law Reform Act.
[59] The mother testified that “for a long time, [she] didn’t know what was going on”. She testified that S.K. was not faithful and that people had made comments to her about him partying and doing drugs. Although S.K. allegedly told the mother that drug use was a thing of the past, the mother said it took a while for her to realize that was not true, and that it was continuing.
[60] The mother testified that S.K. kicked her out of the house during her pregnancy with T. She testified that S.K. was not happy about the pregnancy and that he wanted her to have an abortion. The mother called her brother and the police on this occasion to help her leave. She said she left, with some items in garbage bags, to stay with her mother for about 5 months. She then went back to the relationship.
[61] The mother testified that S.K.’s drug use got out of control after T. was born. She described the situation as “pretty awful”. She testified that there was sexual violence. She also said that
S.K. made a sexually inappropriate comment about T. The mother testified that S.K. was doing drugs in the hospital bathroom at the time of T.’s birth. She testified that a hospital social worker helped her put in place a plan for after the birth.
[62] The mother explained how her final separation from S.K. occurred. She testified that she had spoken to a child protection worker and to a women’s shelter. She enlisted the assistance of members of her church at the time (later referred to as “Church 1”) to leave for the final time. The mother returned to live with her mother once again following her final separation from S.K.
[63] The mother testified that she initially confided in the father, only as to some of the problems she was having with S.K., but she later shared “everything” with him. The father generally agreed that the mother shared certain matters with him initially, and then more after she separated from S.K.
[64] After the separation, the father learned from the mother that S.K. had been “extremely verbally, emotionally and sexually abusive” towards her. The mother also told the father that S.K. was a cocaine addict and an alcoholic, and that she was afraid of him.
(3) The Prior Proceedings With S.K. and the Father’s Involvement In It
[65] The mother and S.K. (and later the father when this case began) retained a series of different lawyers.[^2] I mention this here, because both in 2017 and 2019, after the parties now before the Court had separated for their first and final times, the father retained the ultimate lawyer whom
S.K. had used in the prior proceedings, leading to a dispute about whether this was a conflict of interest.
[66] By several accounts, when she was going through the prior litigation with S.K., the mother enlisted the father’s assistance, and he willingly offered his help. The maternal grandmother observed the parties to spend time in the basement of her home, with the mother’s legal papers spread out all over the floor. The father himself admitted that the mother would often confide in him as to what was transpiring, and she asked him how to articulate certain things. The father said that “as an affiant he [had] an ability to articulate the evidence” so he helped her compose her narrative.
[67] The mother experienced S.K.’s ultimate lawyer to be “really aggressive”. The mother said that when letters came in from the lawyer, she would “spiral”. She stopped reading them and gave them to the father to read. The mother and the father also spoke about this lawyer in a far more pejorative way.
[68] In cross-examination, the mother maintained that she either sent the father her correspondence, or she told him about it in the evenings when they got together. During his cross-
examination, the father said that he reviewed only “sporadic pieces of communication” between the lawyers, painting the picture of minimal involvement. But the overall tenor of the evidence revealed the father’s considerable involvement in the mother’s litigation, and that included the review of correspondence, among other things.
[69] One example of this happened on September 11, 2015. On that day, while she was in a restaurant, a letter from opposing counsel came in. The mother sent the father a text message that
S.K. was “fucking up” her life and wrote that she “literally just walked out of the restaurant without eating” upon receiving the letter. The father asked the mother to send him a copy of the letter so that he could read it, which the mother did. The father told the mother not to “stress”, that they would get through this together, and encouraged the mother to “play hard ball” saying it was, “[t]ime to sue him for half the house, alimony, back pay etc.”.
[70] The parties’ continued to exchange several text messages on this occasion. At one point, the father even went so far as to suggest that the mother consider moving to BC. He offered to attend at a lawyer’s meeting with the mother.
[71] The mother asked the father whether he understood that he had signed up for an “ugly costly custody battle” with her? The father responded, “Lol of course I knew what I signed up for. Kind of the benefit of us being close friends for so long prior ;) This may come as a shocker to you, but regardless of what happens, I’m in for the long haul.”
[72] The father reviewed the responses to S.K.’s lawyer’s letters that the mother planned to send back to her own lawyer, before she sent them. The mother testified that the father even composed some of her responses for her, either over email or by using her laptop.
[73] For example, on December 23, 2015, the mother received another letter from S.K.’s lawyer. The father wrote out a partial response to the correspondence that had come in, leaving the balance for the mother to complete saying, “expand on this, you know better than I do”. The mother testified that this kind of exchange happened very often.
[74] Yet another example showing the father’s shadow involvement was still occurring in early 2016 occurred on January 25, 2016, when the mother sent another piece of correspondence from S.K.’s counsel to the father for his review. This letter pertained to drug testing. I gather from their communications that a drug test came back clean. The father responded as follows: “Fuck. OK. But a urine test doesn’t prove anything. Drugs only last up to a week in urine. So all he did was get clean for a week.”
[75] And in 2016, the father likewise reviewed a draft letter in the nature of a will-say statement from a potential witness that the mother obtained for use in her case. The father gave his opinion about the contents of the will-say. While he wrote that it needed to be re-written for “spelling and grammar”, he also proposed four corrections to the substance of the letter.
(4) The Father Assisted the Mother to Conceal Her Address from S.K.
[76] The mother testified that she did not want S.K. to know where she was living. Although she was then living with the maternal grandmother, the father let the mother use his cottage as her mailing address. In that same text message exchange of September 11, 2015, the father told the mother to go even further and to change her driver’s license to his cottage address. In fact, he wrote that her “best bet” was to switch everything over. It was to his cottage address that the DNA test used to obtain the Final Order of Corkery J. would later be sent.
(5) Both Parties Participated in Tracking S.K.’s Movements, and the Mother Accused the Father of Offering to Plant Drugs on S.K. to Get Him Arrested
[77] In violation of the rule in Browne v. Dunn, the mother accused the father of having offered to plant drugs on S.K. There was both an objection to this testimony, and then the father was able to testify about it in Reply. The father said that he was “very confident” that this never happened and that he would never do such a thing, pointing out that he had been a police officer for over 20 years and that he doesn’t go around “planting drugs”. While that may be, the father showed very little hesitation when it came to ordering a tracking device off the internet and installing it on S.K.’s car while the prior proceedings were pending. The father attempted to justify this particular
action in the mother’s interests, to protect her, because she said she was terrified of S.K. The father also said that it was the mother who had sourced this GPS tracker online, and that it was her idea. In a similar vein, while he said he purchased the device using his credit card, he added that the mother paid him back for it “in cash”.
[78] The mother testified that it was the father’s idea to do this. She portrayed herself as an innocent person in this GPS stunt, saying she did not have knowledge of tracking devices, whereas the father used these for work. She claimed not to know how to install the device, and said she would not have done so on her own due to her fear of S.K.
[79] In any event, the father testified that after he planted the device on S.K.’s car, both he and the mother logged onto a website and monitored S.K. When asked if she had access to the information from the tracking device, the mother said she didn’t “think so” and that she didn’t know what she “would have done with that”. But according to the father, he and the mother monitored S.K. to ensure that the mother and S.K. would not end up in the same location. The mother also agreed that the device was used for that purpose. She added that they used the device to try to catch S.K. doing drugs or buying drugs, or to show that he was working on the side, and not just at his principal job.
[80] The father did not just surveil S.K. over the internet. He also did so in person. In cross- examination the father said he could not recall the frequency of this kind of in-person surveillance, but admitted he did it from time to time. For example, he admitted to following and monitoring
S.K. after an access visit, when S.K. went to a car wash. On that occasion, he sat in his car and watched S.K. wash his truck for a period of time.
[81] It is not clear to me how long this electronic and in-person monitoring carried on for. The father testified that he removed the tracking device after about six weeks, when the battery died. The mother testified that the father replaced the battery, suggesting a longer period of surveillance. In cross-examination, the mother also said that there was a monthly fee that had to be paid, although she couldn’t remember how long the fee was paid for.
[82] The mother testified that the parties agreed not to tell anyone that they had installed the GPS device, because the father mentioned that he “could get into a lot of trouble” for that. The mother went on to explain that the father told her to download a particular app called “telegram” used by the father and his police colleagues to send encrypted messages that would disappear after reading. The mother said that the father told her that he and his police officer colleagues used this app to communicate when they didn’t want their communications later produced. The parties had a code to use with one another when sending these secret messages. They would tell each other to “check Facebook”, which the mother said really meant to go and read these secret encrypted messages.
[83] I do not find either parents’ attempt to label the other as the directing mind behind this tracking operation to be credible. I find they were both in on it. They were both very willing participants.
(6) The Father Had Another Police Officer Friend Stop S.K. While Driving
[84] The father admitted to having a police officer friend stop S.K. while driving his car.
(7) The Father Gave the Mother Contact Information For A Private Investigator
[85] The father gave the mother contact information for a former police officer, now a private investigator.
(8) The Father Encouraged the Mother to Complain to S.K.’s Employer
[86] The father encouraged the mother to complain about S.K. to his employer as well, after the mother disclosed she received advice to do so from another person.
(9) The Father Inserted Himself Into S.K.’s Parenting Time, At the Mother’s Request
[87] The mother supervised some visits between S.K. and T. before Corkery J.’s Final Order for no parenting time was made. While the mother said that the visits were not pleasant, and she
was not comfortable both being around S.K. and being the supervisor, she did not want to leave T. at an access center either.
[88] The mother recalled that it was the lawyers who coordinated visits in a public place. To address her discomfort, the mother asked that they coordinate visits when the father was not working, so he could be present.
[89] The father agreed that the mother asked him to be present “on occasion”. He testified that “when he was available”, he would drive to the location of visits and sit in his car, “in case something happened”.
[90] The mother described one such visit at a Tim Hortons. She said that S.K. and his mother were holding T. and walking her around the restaurant saying to other patrons “this is my grand- daughter” and “this mom won’t let us see her”. The mother sent a “SOS” text message to the father, who was nearby in the car. He rushed in to intervene. The mother did not recall what S.K. had said as a result, but the visit was over. S.K. and his mother left.
C. The Parties’ Involvement in Obtaining the Falsified DNA Test
[91] During the prior proceedings, S.K. asked that a paternity test be done. The mother said she expected that S.K. would be the father, but she was concerned about S.K. “being in her life”.
[92] A scheme was devised to falsify the DNA test. The test came back that S.K. was not T.’s father. Very soon after that, the mother’s court case with S.K. came to an end.
[93] The factual dispute is whether the mother was solely responsible for the false DNA test, or whether the father was a participant in that aspect of the mother’s case, too. The father’s submission mentioned earlier, that he should be found to be more credible than the mother in the event of a conflict in the evidence, rests, at least in part, on a finding that he was not involved with the DNA test.
[94] The mother said that the father was involved in this scheme. She said that she talked to the father about a number of ways for S.K. not to be in T.’s life. She said they had a conversation
about how it wasn’t going to be possible to take T. to a facility to have the test done, so they talked about other options. The mother said she ordered a DNA test and it was delivered to the father’s cottage, now her mailing address. This delivery is not in dispute.
[95] The mother said the parties had conversations about “how to do it” in a way that wasn’t obvious. She said if she took the sample at home, no one would “buy that”. The mother said she had a conversation with the father about going to a girlfriend’s house and swabbing one of her children who was around the same age. But this was a male child. The mother said the father told her that she was naïve, and that the DNA test would identify the gender of the child who had been swabbed. At the father’s recommendation, the mother needed to take a sample from a girl. Consequently, a plan was hatched to swab the mother’s sister’s child, her niece.
[96] The mother made an appointment at a doctor’s office to have the test done. Before attending at the doctor’s office, she went to her sister’s house to take the swab using one of two of the swabs from the home-based kit she had ordered, without her sister’s knowledge. At the doctor’s appointment, the doctor took a swab of T. using the other swab. While the doctor turned his back to fill out some paperwork, the mother quickly switched the samples.
[97] The mother sent the father a text message on March 31, 2016, to advise him that the test results were ready. Thirteen days later, the case against S.K. was over.
[98] The mother testified, that she shouldn’t have done this, but that she was desperate. The mother testified that “[the father] would have known everything; I would have told him”.
[99] The mother’s lawyer asked her whether she was speculating about whether she told him, to which she responded that he knew about it, although she didn’t know exactly what was said. She could not recall whether she told him in person or over “telegram”. But later in her testimony, the mother said she told the father about what she had done, when she came home from the doctor’s appointment. She claimed that the father was impressed, that she had just “pulled this off”. She could not otherwise remember any specifics of what the father said to her.
[100] The mother recalled worrying about what people would ask her about T.s’ parentage after that. She testified that the father told her to pick a story, and to stick to it. The mother said that she would later deflect such questions, and say things like she did not want to talk about it, when asked by others.
[101] The mother claimed that she was “really ashamed” of what she had done. She said that she was “trying to pursue freedom”, and she ended up being “enslaved to what she had done”.
[102] In contrast, the father testified that he had been made aware from the mother, that there was a request for a DNA test to be done. He said that the mother had ordered a home kit, and that he “believed” she had it mailed to his cottage address. He also said he was aware that she went to her doctor’s office to have the test performed.
[103] The father testified that he was not present when the test was performed. He said he didn’t recall if he was even aware of the day of the doctor’s appointment. Despite that, there were text messages between the parties concerning the mother taking T. to have the DNA test done.
[104] According to the father, the mother at one point jokingly asked him how to falsify the test. The maternal grandmother testified that the mother had also asked her how to switch out a DNA test in a joking fashion.
[105] The father claimed to have responded to this statement, saying that was more the domain of a “forensic cop” but he was the “farthest thing from a forensics cop” and he had “no idea but [he didn’t] think this day and age with DNA and technology that you can even falsify something like that”. He claimed to have told the mother to trust that “God will protect T.”, and that if she got caught it would be worse. He claimed that was the end of their conversation.
[106] The father said that after the litigation stopped, the mother said that S.K. was more interested in money and agreed to walk away from T. The paternal grandmother also testified that the mother had shared this version of events with her. The father testified that it was only later on, after they married, that the mother disclosed that the DNA test had showed that S.K. wasn’t the father, but that she would not disclose who was. In contrast to this, in cross-examination, the
mother claimed that the father knew the truth, and they would make callous jokes about who the father was, knowing full well that it was S.K.
[107] The father said that in the fall of 2016, when they started to have discussions about the father adopting T. (discussed later in this Judgment), the mother wanted to pursue an adoption to create another hurdle to block S.K. should he ever bring further proceedings concerning T. The father said he didn’t understand that comment, because he understood that S.K. was not the biological father and, moreover he had not spent any significant time with T. He also said that he did not necessarily believe the mother had swapped the samples, while simultaneously asking this Court to make a credibility finding based on the fact that she had done so.
D. Findings and Conclusions Respecting the DNA Test, Credibility, and the Impact on T.’s Best Interests
[108] Regardless of my finding about the extent to which one or both of these parents were involved in this scheme, the Court finds the evidence about their conduct during the prior proceedings against S.K. to be very underhanded and highly troubling. The Court is troubled by the fact that these two formed an alliance of this nature, to engage in the prior litigation in the deceptive, manipulative way that they did.
[109] In regards to the father’s involvement with DNA test in particular, there are two conflicting accounts. I find the father’s version of events stretches credulity. I do not accept that the father was so involved in all of the above other acts (most of which he admits), but that he was unaware of and uninvolved in the planning of the DNA test. In a number of ways, the father acted as an “invisible litigant” in the mother’s case with S.K. Alongside the mother, he “reinforce[d] a win- at-all-costs litigation mentality…”, and was “willing to break both the spirit and letter of the family law legislation to achieve [the] desired result…”: see Leitch v. Novac, 2020 ONCA 257 ¶ 45. The Court could draw an adverse inference against the father about the DNA test based on his participation in the other events, alone. But there are other circumstances from which the Court may draw this conclusion, in addition.
[110] First, neither the father nor the mother disclosed the DNA test in their pleadings in this proceeding, although obviously relevant to their various claims, and to credibility. For example, the father claimed relief in connection with T., including various parenting Orders and a declaration of parentage. The mother was resisting that. In her Answer the mother responded and told the Court that T. was not the father’s biological child and that she already had a custody Order, without going into any further detail. In his Reply dated November 12, 2019, also discussed in more detail below, the father led the Court to believe that the DNA test was legitimate, that S.K. was in fact not the father, and that T.’s father was not known. These are all things he either knew at this point were not true, or he at least had good reason to doubt the accuracy of these statements.
[111] Second, the father was questioned on October 17, 2022, and certain excerpts from the transcript of his questioning were “read in” under rules 20(25), 23(1)(7.) and 23(13). At his questioning, the father denied knowing that the test was falsified at the time of the parties’ first separation in February 2017, and again at the time of their final separation in July 2019. He claimed that the only time he knew about it, was when the mother admitted it in her affidavit for the September 3, 2020 motion, discussed in more detail below.
[112] But already by the time of his Reply, let alone by the time of the mother’s affidavit for the September 3, 2020 motion, the father at a minimum knew that there were questions about the DNA test. For example, there were the adoption discussions. Those discussions preceded the filing of this Reply and the mother’s affidavit. Moreover, the parties had already had other written communications about the DNA test, too.
[113] For example, at around the time of the DNA test, the mother informed the father by text message that the lawyers were communicating with each other after her trip to the doctor’s office. The father wrote back to her and said that the other side probably just wanted “to confirm that your doctor did everything by the book”. The mother responded, “I guess so and he did so that should be ok”, before going on to accuse S.K.’s lawyer of trying to “bully the receptionist at [her doctor’s office]”. Query why these parties were discussing the issue of whether a DNA test was properly
administered “by the book”, if the father was otherwise unaware that this was anything other than a routine test?
[114] Another example is that the parties later celebrated over champagne, after the DNA test came back showing that S.K. was not the father. The mother wrote a text message to the father saying, “Bring me home a good bottle of champagne! Mama’s drinkin’ ” While the father claimed that this was a reference to a celebration because the mother obtained the Final Order for custody, the DNA test and the end of the litigation happened very close in time, and the two events were heavily intertwined.
[115] A third example came on March 24, 2017, after the first separation. Around that time, the father, then represented by the same lawyer who S.K. had used, asked for a DNA test respecting
B. Following receipt of that request, the mother asked the father via text message dated March 24, 2017 why he felt that a paternity test was necessary. The father responded saying that it was the lawyer who had raised the issue and he wasn’t about to say to her: “No don’t bother, the previous test was a fraud”.
[116] Now Mr. Frodis did not follow the proper procedure to impeach the father using the Reply and the transcript from the questioning. But this not fatal to the Court making the finding sought by the mother, and then assessing credibility accordingly. I do not need to rely on this transcript (or the Reply document), given these other written communications between the parties, on their own.
[117] In regards to the mother’s account of the DNA test and her credibility, the mother claimed to have told her lawyer the truth for the first time in 2019. She said she shared this information, because the father was threatening her. Yet she gave no examples of any threatening behaviour, other than the request for a DNA test for B., which she characterized as an “indirect” threat.
[118] I have difficulty accepting that the mother actually told her lawyer about what had happened at the time. For example, again, the mother said nothing about it in her Answer. Another reason is that on August 29, 2019, after the father resumed his retainer of S.K.’s former lawyer
following the final separation, the mother instructed her former lawyer to raise a conflict of interest. According to the letter from the mother’s lawyer at the time, the conflict was based on the fact that the father’s former lawyer had represented S.K. in the past. The DNA test was not raised as grounding a conflict of interest for another year, until after the mother changed counsel. The father’s (and S.K.’s) former lawyer took the position that there was no conflict after that initial letter raising the conflict. She continued to act for the father until the middle of 2020, until when the mother finally disclosed the DNA issue to the Court in her affidavit of August 27, 2020.
[119] The mother’s explanation for her disclosure at that time, was that she had been “very reluctant” to reveal the DNA issue, but she had been “wracked with guilt” since the Final Order was made, and that falsifying a paternity test goes against her “core” and “strong” “Christian beliefs”. Yet the timing of this disclosure is highly suspect. The DNA issue was disclosed to the Court in this affidavit days before the September 3, 2020 motion at which the father was seeking an increase in parenting time.
[120] In her affidavit of August 27, 2020, the mother also said, in a very coy fashion, that the father’s (and S.K.’s) former lawyer could probably no longer act for the father, now that she was being made aware. As I just indicated, following the disclosure in this affidavit, the father’s former lawyer ceased acting for him.
[121] Importantly, the mother also deposed in her August 27, 2020 affidavit, that T. did not then know the truth about her parentage. The mother said she intended (written in the future tense) to seek professional guidance about how to discuss the matter with her. I come back to this aspect of her affidavit later, because it is inconsistent with other testimony that she gave during this trial about the timing of her disclosure and the professional assistance that she claimed to have already obtained by this point, prior to telling T. the “truth” about her parentage.
[122] In conclusion, I find that both of these parties both knew full well what had been done at the time that it was done. Although the mother herself committed the act on the day in question, they were both involved in the planning. Both parties then continued to conceal the issue from the
Court in this proceeding. The issue only came out when the mother thought it was tactically wise to drop a bombshell into the litigation.
[123] I further reject the mother’s claim that her disclosure of this information had much to do with her guilt, her religious values, or her desire to finally tell the truth. Nor did it have anything to do with a desire to tell T. the truth in an emotionally healthy way, in the child’s best interests. Quite to the contrary, she embarked upon telling the child that the father is not her father, and she has caused the child emotional harm in the process. I find she did this to derail the pending motion and to damage the father’s relationship with the child.
[124] Even if I am wrong in my finding that the father was involved, the evidence leads to the conclusion that he learned about it soon after it was done. And there is no evidence that either of these parties have taken any steps to rectify this deceit. They chose to leave the matter alone, until this evidence came flooding out as this trial got underway, causing procedural issues as of the very first day of trial, and placing the Court in the conundrum that it now faces.
E. The Progression of the Relationship from A Friendship to a Romantic Relationship
[125] Once the prior proceedings involving S.K. came to an end, the parents quickly got into a relationship. The parties agree that the relationship became romantic in around September of 2015. By early 2016, the parties bought a house together. According to the father, the mother told him that she could not afford to contribute to the matrimonial home because she had spent close to $30,000.00 in legal fees during her separation from S.K. The father said he made a small down payment himself and sold his cottage to purchase what would become the matrimonial home.
[126] The father testified that although he alone made the down payment and sold his cottage, he later discovered that the cost of the prior litigation was nowhere near the $30,000.00. He also said that he would later discover that the mother was a spendthrift, that she racked up debt on credit cards, that she had previously claimed a bankruptcy, and that she would get into a lawsuit with a client, incurring a judgment debt of $25,000.00. Some of these debts were dealt with through the refinancing of the matrimonial home, in 2017 and 2018, discussed later.
[127] The parties started living together in the new house around April of 2016. T. was just a little more than 1 years old at the time. The father testified that his role with T. evolved from him being a male role model to T. recognizing him as a father. The reality of T.’s relationship with the father is something that the mother dodged acknowledging throughout this trial.
F. The Parties’ Engagement and the Dispute About the Engagement Ring
[128] In June of 2016, the parties went on a trip to Paris, taking the maternal grandmother and T., then about 1 ½ years old, along. The father planned to propose on this trip.
[129] The Court heard unnecessary detail about this trip to Paris, the manner in which the father proposed, the location of the proposal, and the engagement ring. Apparently, the point of this evidence according to the father, was to establish that the mother said yes to the marriage proposal and accepted the engagement ring, only to come back to Canada and upgrade the diamond on the ring in a deceitful and financially irresponsible fashion. Apparently she spent $20,000.00 on the upgrade. The father then told others about this, including the OCL clinician and this Court, in what the mother sees as an attempt to impugn her credibility and character. The mother’s position, was that the father was aware of and participated in the expensive ring upgrade, but he then made up a story to the contrary to paint her in a bad light and to fabricate the record. In addition to the parties’ testimony about this, the Court was shown various documentary evidence on the subject, as the parties attempted to prove their positions and disprove the other’s.
[130] This evidence wasted trial time. It has marginal to no relevance to the parenting issues that I must decide.
G. The Mother’s Claim that She was Basically a “Single Mother” Due to the Father’s Work Schedule
[131] The parties married on October 1, 2016. According to the father, the marriage was over within a week.
[132] The Court heard evidence about the extent to which the father was at home to help with parenting after the wedding. The parties disagreed about how much the father worked during this period.
[133] For example, in one text message dated January 4, 2017, the mother wrote “OMG this is getting ridiculous. Single mum life after 9 am.” The father responded that if he had to work full shifts every day, he wouldn’t get home before T.’s bedtime ever, and so his glass was “half full”.
[134] The mother orally said that the father did not do much in terms of caring for T. In contrast, the father tendered a number of text messages with some photographs, that show that he was involved in bathing, cooking and otherwise caring for T. during this phase of the relationship.
[135] While I am generally satisfied that the status quo back then was one whereby the mother was T.’s primary parent, the evidence is dated. The status quo from those early days does not have a material impact on the issues that I must now decide.
H. The Mother’s Pregnancy with B.
[136] The parties’ next argument was about the mother’s pregnancy with B. They both told the Court about when and how the father was told by the mother that she was pregnant, how they felt about the mother’s pregnancy with B., how they felt about how the timing and manner in which the father was told about the pregnancy, how the father reacted to what he was told, and how they felt about his reaction. As with most of the evidence in this case, the parties had very different perspectives. The mother’s was that the father was disinterested and angry. The father’s was that he was disappointed that he had not been told earlier about the pregnancy, but he was otherwise ecstatic over it.
[137] What happened respecting the timing and manner surrounding the mother’s disclosure that she was pregnant with B., and how each party felt about, also has very little to do with any issue that I must decide.
I. The Proposed Adoption of T. by the Father
[138] The next significant dispute between the parties concerned whether the father was going to adopt T. The mother was already pregnant with B. when the adoption issue arose.
[139] The father said he wanted to adopt T., because it felt like this was a “natural progression” after the marriage. The mother said that the father was at best ambivalent about adopting T.; part of a broader narrative that he was not committed to T. For example, when asked how receptive the father was to the idea of adopting T., the mother responded, “I don’t recall it being a jumping up and down moment”, but she said he ultimately came with her to meet a lawyer for the purposes of the adoption.
[140] The parties met a lawyer to proceed with the adoption. Both parties agreed that they had to fill out some paperwork. The mother said the father just had to fill out “two pieces of paper” about T.; one about his relationship with T., and one about why he wanted to adopt her, but he never did it.
[141] The mother selectively included some of the adoption documents in an Exhibit Book at this trial that she had completed, I gather to demonstrate her commitment to proceeding with the adoption. While she provided a copy of the consent form that she had to fill out as part of the independent legal advice process, I note that she omitted from the Exhibit Book, the affidavit of parentage that would have accompanied the adoption paperwork. An affidavit of parentage is a sworn document in which one makes statements about T.’s parentage.
[142] It is not controversial that the father’s forms sat idle for perhaps as much as two months, and that the adoption did not proceed. The mother testified that she found a letter from the adoption lawyer confirming that the father had left a message saying that the adoption would not be proceeding. This letter came two months after the parties’ first separation.
[143] According to the father, the adoption did not proceed because the mother insisted that if their marriage did not work out, he would have to “walk away” from T., regardless of the adoption. The father testified about this, suggesting that there was some document for him to sign to this
effect, although in cross-examination he admitted that no such document ever existed or got created. Regardless, the father said he was not prepared to agree to this kind of condition because he “loved [T.] and cared for her as a father since she was an infant”, he “read vows to her”[^3] at his wedding to the mother, and he would “never walk away from her as being [his] child”.
[144] While the mother denied both that any such “walk-away” document existed, or that she even asked the father to sign such a thing (suggesting that the father completely manufactured this story too), during cross-examination, the father’s counsel put the following documentation dated January 4, 2017 to the mother;
Father: Listen, I love T. with all my heart and I’d love more than anything to adopt her. But you’ve literally been telling me for the past couple of months that you can’t stand me, that you regret marrying me, that if we break up you want me to have nothing to do with T. and J.[^4] and that you’re going to take me to the cleaners and take all my money. Needless to say it hasn’t motivated me to fill out those forms. But that doesn’t take away from my love for T.
Mother: Whatever. If it was important to you it would already be done. You could’ve asked your lawyer for the forms again or asked me where they were instead of making excuses. You’ve had months. I went right away and did my part and regardless of our situation you’ve done fuck all. Typing shit up doesn’t cost a dime it’s just time. I’m done talking about it.
Mother: I expected to see more initiative with something that’s so important to me. The fact that I’d even consider allowing it to happen is insane [S] and you don’t even value
that privilege. Clearly you don’t understand how heavy a decision like this is. I’ve told you before I will keep [my last name] as long as T. has it and if J. needs [my last name] too so that myself and my children match, so be it. Don’t write me back I’m going to bed.
Father: Stop manipulating the crap out of this. You told me in October that the only reason you want me to adopt T. is so that S.K. has another hurdle to get over if he ever shows back up. Like I said this morning, you’ve treated me like absolute garbage for the past few months. You literally made me feel worse than Meatball’s dog shit in the yard. So I’m not sure why I would pursue adopting T. when you’re telling me over and over you don’t want to be with me???
[145] In further text messages between the parties on April 25, 2017, the father repeated that the parties cancelled the adoption because of the mother’s statement about what would happen if they broke up. He repeated that the mother said that the only reason for the adoption was to further block S.K. from ever resurfacing. And he reminded the mother that she said unless he paid for the adoption, she would not change her or T.’s name, and that B. would have her last name. The mother responded by saying that she wanted the adoption so that T. would feel the same as B. She wrote, “I may have said things in an argument, and I apologize but underneath it was not coming from a place of the reasons you’ve listed and they are incorrect.”
[146] While the reasons for wanting to pursue an adoption may have been varied, I accept that the mother wanted this adoption, at least in part, in a further attempt to further remove S.K. as a future problem. The father said this to the mother twice in writing. Neither time did the mother expressly deny it.
[147] The mother herself made a previous comment to the father by text message, that an adoption would aid in resolving the situation respecting S.K. Exhibit 41 is a text message exchange between the parties dated September 11, 2015, where the mother wrote, “[b]etter hurry those adoption papers before I’m forced to add [S.K.] and then she can’t be adopted”. To the mother’s September 11, 2015 text message, the father responded, “[j]ust tell me where to sign.”
[148] And because it has been raised in relation to credibility and in relation to the arguments about family violence, I also find that the mother did make statements to the father about not having a role in T.’s life, should their relationship end, regardless of the existence of a document to sign, or not. From a timing perspective, it is noteworthy that the relationship was already in trouble at the time the parties were pursuing the adoption. It is also noteworthy that the father twice wrote to the mother iterating what she had said to him. And it is noteworthy that in her April 25, 2017 written communication, she admitted that she “may” have said these things.
[149] In the end, I find that the primary motivating factor for the adoption’s failure was the state of the parties’ relationship. This relationship was in trouble almost from the outset. While the father was clearly having second thoughts about the wisdom of pursuing an adoption, like some of their other evidence about their various conflicts, this does not impact the analysis. The father has since demonstrated a strong commitment to T. Therefore, I do not draw any long-lasting conclusions from his ambivalence about the adoption.
J. The Parties’ First Separation
[150] On February 26, 2017, the parties separated for the first time. It was the father who initiated the separation. The father admitted to having searched the mother’s phone. He believed that she was having an affair.
[151] The father left the house for the night of February 26. He returned the next day, and cleared out his clothing.
K. The Father’s Choice of A Lawyer Following the First Separation
[152] As I have already said, following the first separation, the father retained the same lawyer that S.K. had used. He would hire that lawyer again after the final separation (below). That lawyer acted for the father until the circumstances surrounding the DNA test were revealed in the mother’s August 27, 2020 affidavit. The mother claims that the father’s hiring of this lawyer is an act of family violence. The father disagrees. My conclusion about this (also below) is more nuanced.
L. The Parenting Arrangements After the First Separation
[153] It is common ground that the father saw T. infrequently for a time after the first separation. The reason for that is not agreed to. It is also common ground that the parties continued to argue over text messages. The genesis of the conflict was that the mother wanted to discuss their issues orally, whereas the father insisted on communicating only in writing, because he did not trust her. This contributed to the father seeing T. infrequently.
[154] For example, the father testified that after he initially left in 2017, the mother restricted his contact with T. The father said that at first, he was not allowed to have visits with T. at all, without the mother present. The father said that the mother did allow him to have Facetime calls with T., but those were not without incident either. The father said that sometimes, if he didn’t have his phone with him when calls came in, the mother would then take a screen shot of T. crying, and send it to him. He said this was hurtful, but it was also done to “lure” him back into a reconciliation.
[155] The mother accused the father of a lack of interest after the separation. The mother said that she tried to arrange visits between the father and T., but the father did not show up. The mother claimed both that she wanted the father involved with T., but that he would have to be consistent. What she said she did not want, was for T. to be confused, to see someone coming and going. At pages 18 to 20 of her written closing submissions, the mother listed a number of examples of the father’s disinterest, actions she says were contrary to his stated desire to have a co-parenting relationship with her after the first separation.
[156] Meanwhile, there were also written requests from the father for visits during this time frame, to which the mother responded by insisting on speaking in person first.
[157] As with some of the other evidence already discussed, this evidence of the father having infrequent contact with T. after the first separation is also dated. It is less important to the issues that I must now decide.
M. The Conflict Surrounding B.’s Birth
[158] The mother gave birth to B. by way of cesarian section about four months after the first separation. There was a litany of written communication and conflict between the parties over whether the father would be attending the birth.
[159] The mother had been in counselling with Dr. Angela Fountain for a number of years by the time of her pregnancy. The parties agreed to meet with Dr. Fountain together. This happened twice. The parties also went to marriage counselling with a different therapist.
[160] The father testified that through Dr. Fountain, he learned that the mother was claiming that he did not want to be involved. He said that was “heartbreaking” to hear. He also said he told Dr. Fountain that that was not true, and the mother was not giving him the date for the C-section. The father testified that the parties agreed, that going forward, the mother would give him the dates of medical appointments, and he would attend. The father said that once they left Dr. Fountain’s office, the mother reneged on her promise to do so.
[161] The father said that the mother only then gave him the date of a single medical appointment despite her promise to do so, and she did that just before it was time for them to see Dr. Fountain again, for the second time. The father said that after getting that information, he went to this medical appointment, at which he learned that the mother was in fact healthy, and that there were no concerns with the pregnancy. This was contrary to what he said the mother had been telling him, in text messages.
[162] The mother said she didn’t “believe” that she excluded the father from medical appointments. She testified that that if he had expressed an interest in coming, he would have been welcome to come. She also said that he was told about the dates and times of the appointments. But during the mother’s cross-examination, I was referred to numerous messages from the father asking about doctor’s appointments, to which the mother did not give details in response.
[163] The mother also accused the father of attending the one doctor’s appointment with her, to ask a series of questions about her health, rather than out of any concern for their unborn baby.
The father admitted to having recorded this appointment during cross-examination. He did not produce the recording, claiming not to have a copy any longer.
[164] The father testified that at the second and final joint session with Dr. Fountain, he called the mother out on misstating that she was having a high-risk pregnancy. The father testified that he was never invited to another medical appointment again.
[165] The father attended the hospital for B.’s birth only after much unnecessary back and forth about the issue. Once again here, the mother claimed to have told the father about the date and time of the C-section, and alleged that the father made up a story about information being withheld to paint her in a bad light. The father claimed that the mother had not been transparent, and he only learned about the appointment after repeatedly following up.
[166] Following B.’s birth, the maternal grandmother and the father agreed that he would stay at the matrimonial home for part of the day. The mother said that the father then went out during the day, and at night-time; he would sleep in the basement.
[167] The tenor of the mother’s evidence is that father did not help out despite his presence in the home. She said the father did not help her at night either. The mother testified that the arrangement was that she would call the father’s cell phone during the night-time if she needed assistance. She said there were many times that he did not answer. The mother claimed that the father made sarcastic comments the following morning, saying that she must have slept, since his phone did not ring. Yet, while the mother tendered phone records to show the timing of the father’s first call to his former lawyer after the first separation, and to show that he went on a trip to Costa Rica after the first separation rather than showing an interest in T., notably, she did not tender any phone records that revealed short, night time calls that went unanswered during this time period.
N. The Parties’ Reconciliation
[168] According to the father, the parties went through a “progression” to reconciliation. He said he started to be able to see the children on a daily basis.
[169] The father said he moved back into the matrimonial home “officially” by November 2017. He said that he was also allowed to attend medical appointments, after they reconciled.
[170] The father testified that he reconciled with the mother, because he felt it was the only way he would ever be allowed to have meaningful time with the children. He also noticed that following B.’s birth, the “verbal abuse and manipulation of truth and the yelling and screaming seemed to subside”. The father felt that perhaps the mother had “pregnancy hormones”.
[171] The father’s return did not change the division of labour though according to the mother. She said she continued to be responsible for the child care.
[172] The father testified that his relationship with T. picked up right where it left off. He said that T. was always a “daddy’s girl”. The father tendered a number of photographs of him interacting and parenting the children during the period of time after the reconciliation.
O. The Final Separation on July 12, 2019
[173] The parties separated for the final time on July 12, 2019. Between Easter 2019 and July 12, 2019, the father occasionally slept in the basement following arguments. By July 12, 2019, this arrangement became permanent. According to the father, around Easter in 2019, the mother resumed berating him on a regular basis. The father also said that he was concerned that the mother was associating with criminals through her work.
[174] According to the mother, the father accused her of having an affair, again. She said that a few days later, she discovered that the father had “emptied” their bank accounts. Although this has now been accounted for in the parties’ financial settlement of December 9, 2022, the father did in fact move over $19,000.00 into an account to which the mother did not have access. During his Reply evidence, the father admitted to having spent this money on legal fees.
[175] The parties remained living under the same roof until they reached an agreement at an early case conference that the father would move out of the home on November 13, 2019. The mother claimed that the parties’ living conditions while they remained separate and apart under the same
roof were “awful”. She also said multiple times that she was scared she would get in trouble if the father came home and she and the children were not there, or if she did not do what she was told to do by the father.
P. The Parenting Arrangements Following the Final Separation
[176] The mother testified that she was trying to maintain a usual routine for the children, whereas the father started to accuse her of parental alienation. According to the father, the mother started “sneaking” the children out of the house early in the morning, sometimes before 7 AM, when he left for work. He said the mother would do things like turn on the powder room fan to create white noise, or disable the door chime, to conceal her leaving in the mornings. The father said the mother brought the children back home at night at bed time, so that they couldn’t spend time with him.
[177] Throughout this trial, the parties each accused the other of not supporting the other’s relationship with the children. For example, the father accused the mother of interfering with Facetime calls. The mother denied this. The mother accused the father of obstructing her parenting time after the Order of Leef J. dated September 3, 2020, was put into place. She said that the father wouldn’t allow her to speak to T. on her birthday in early 2021, a day that happened to fall during his parenting time. She tendered a message exchange from Our Family Wizard to this effect, wherein the father wrote that he asked the children “3 separate times” to speak to their mother, and “they’ve declined” in response to her request to speak to them. He went on to write that he would ask them one more time about a call when getting them ready for bed. The children were 6 and
3.5 years old at the time. The mother also pointed out that the following year (2022), T.’s birthday fell on the day of a parenting exchange, so she was able to see T. and there was no issue. In contrast to his handling of the issue in 2021, when the shoe was on the other foot, the father went and unilaterally took T. out of school early to see her, before she returned to her mother.
Q. The Strength of the Parents’ Relationships with the Children
[178] Both parents would have the Court find that their relationships with the children are stronger than the other parent’s relationships with the children. For example, one of the three teachers that one parent or the other called to testify during this trial was S.P. S.P. was T.’s grade one teacher during the 2021-2022 school year. Through S.P., the mother tendered a number of drawings that T. had made in school. She did so to show her close relationship with T., one that the mother characterizes as closer than that with the father.
[179] From A.D., who had been both children’s junior kindergarten teacher, the father elicited evidence that B. made an inappropriate Mother’s Day card for his mother when at school, which included profanities. (This evidence was also introduced to support the allegation that the mother uses foul language in the presence of the children). In contrast, the father elicited evidence about a Father’s Day card that B. had made for him, that was positive, and did not contain similar profanities.
[180] The father sent a video collage to Dr. Fountain to show the nature of the relationships after the September 3, 2020 motion. The mother accused the father of having done that to interfere in her therapeutic relationship with Dr. Fountain, another example of his coercive and controlling behaviour. The father said he did this after Dr. Fountain wrote a report for the mother for use during the interim stages of this proceeding, that the father was upset about. He felt that Dr. Fountain had a “very false and distorted view” of what his relationship with T. was and is.
[181] Despite these attempts by the parents to prove their points, the overwhelming evidence is that the children have good relationships with both of their parents. For example, both parties tendered a number of photographs and videos of their interactions with the children, that demonstrate their warm and loving relationships with the children. This was also Allison Bernatt’s impression. Ms. Bernatt is the clinician from the Office of the Children’s Lawyer (the “OCL”) who undertook and investigation and prepared a report under section 112 of the Courts of Justice Act in this case.
PART IV: THE PRIOR PROCEEDINGS
[182] This trial was the culmination of a case that began on September 23, 2019, about two months after the parties’ final separation. By the time this trial started, there had been some 23 Endorsements, although not all substantive in nature. There are also two Divisional Court Endorsements in the Trial Record relating to the mother’s unsuccessful motion for leave to appeal the temporary Order of Leef J. dated September 3, 2020, as well.
[183] This case started out by way of the father’s request in a 14B Motion for an early court date. Fryer J. scheduled a case conference for November 12, 2019. According to the mother, the parties did not actually then appear before Fryer J. that day. The parties instead entered into a temporary without prejudice consent Order. In it, they agreed to attend mediation with Christine Kim. They agreed the father was to have parenting time with the children on Mondays, Wednesdays and Fridays from 4:00 pm until 7:00 pm in week one, on Tuesdays and Thursdays from 4:00 pm until 7:00 pm in week two, and every Saturday from 10:00 am until 7:00 pm. They also agreed to a Christmas holiday schedule in 2019.
[184] The parties further agreed that the father would move out of the matrimonial home by November 13, 2019. He was to maintain the expenses for the matrimonial home after his move and in exchange, the parties agreed that there would be no child or spousal support payable until the closing of the sale of the matrimonial home. At the conclusion of the first conference, Fryer J. adjourned the matter for a further case conference on January 14, 2020.
[185] The mother testified that the initial schedule in Fryer J.’s Consent Order was hard on the children. For example, and despite that she had consented to the Order, she said that visits ended at 7:00 PM, but the children’s bed-times were then at 6:00 PM. The mother described the children as clingy, because she said they weren’t used to being separated from her. She described the longer visits on Saturdays as difficult, too. But she also testified that the children adjusted.
[186] The father testified that after this schedule was put in place, the children started telling him things that the mother had told them. Apparently, the mother said that he was the devil, that he
worshiped Satan, that he did not love her, and that he had been mean to her. B. also made a similar statement to the mother’s sister, discussed later.
[187] Nicholson J. heard the next case conference on January 14, 2020. He put the matter over to a Settlement Conference on May 12, 2020. The Covid-19 pandemic was underway at this point. The May 12, 2020 Settlement Conference did not proceed.
[188] The father filed a 14B Motion on May 19, 2020, asking for a motion date, or another case conference. Around this time the parties were embroiled in a dispute over repairs that had to be undertaken to the matrimonial home. On May 23, 2020, Nicholson J. scheduled a case conference, but he also directed the parties to continue to attempt to resolve “the home insurance and repairs issue”. He noted that that the parties appeared to consent to an order for counselling for T. with Dr. Fountain. He recommended that they start the intake process with Dr. Fountain and that they follow her recommendations.
[189] A case conference proceeded on June 5, 2020. Nicholson J. granted leave to the parties to bring a motion in writing, if the parties could not resolve the various issues listed in his Endorsement. The parties later submitted an interim consent respecting certain repairs to the matrimonial home, which Rowsell J. approved on July 27, 2020.
[190] The next events in this case were a motion and cross-motion, which Leef J. heard on September 3, 2020. This was a very significant step in this case. The father sought a significant expansion to his parenting time and related terms. The mother sought a different, but much more limited schedule, a custody and access assessment, and child support. This was the motion, before which the mother revealed to the Court that the DNA test and the Final Order of Corkery J. dated April 13, 2016 had been obtained by fraud.
[191] Leef J. made a number of temporary orders on September 3, 2020. She ordered the schedule sought by the father, which gradually increased to the 2-2-5-5 schedule commencing December 21, 2020. Since December 21, 2020, the father has had the children in his care on
Mondays at 4:00 pm until Wednesdays at 4:00 pm, and on alternate weekends from Fridays at 4:00 pm until Mondays at 4:00 pm.
[192] Leef J. also ordered the party having the children in his or her care to drive the children to the residence of the other parent. She ordered certain holiday time at Thanksgiving and Christmas. She made an order requiring the mother to cooperate respecting the repairs of the matrimonial home. She ordered the parents to communicate by Our Family Wizard and to respond to messages about the children or the matrimonial home that are timely in nature, within 12 hours. Other issues could be responded to within 48 hours. Finally, she ordered the parties to refrain from involving the children in any discussion of adult issues, to refrain from having such discussions within earshot of the children, and only to speak positively about the other parent to the children, or within their earshot.
[193] The mother sought leave to appeal Leef J.’s temporary Order to the Divisional Court. The Divisional Court dismissed her motion for leave to appeal on November 24, 2020, and fixed costs of $3,500.00. On January 19, 2021, Leef J. ordered the mother to pay the father costs of the September 3, 2020 motion in the amount of $17,500.00.
[194] The matter was next before Nicholson J. on April 14, 2021 for a “lengthy settlement conference… on all issues including parenting, spousal support, child support and numerous property and disclosure issues”. Nicholson J. appointed the OCL. Nicholson J. also noted that the father had booked a motion for May 10, 2021. He made a scheduling Order for the exchange of materials. He made an Order for additional disclosure, and on consent, he ordered that the sale proceeds from the matrimonial home were to be held in trust.
[195] Nicholson J. declined to schedule a further conference. He endorsed that if the parties could not resolve matters on a final basis, then they could file a 14B Motion to his attention, to request a Trial Management Conference date.
[196] The motion referred to in Nicholson J.’s Endorsement of April 14, 2021, was the father’s motion for temporary sole decision making of both children, for the release of T.’s school file from
the religious school that she attends, and for various orders respecting the children’s attendance at that school, including that B. would be enrolled there, too. The mother sought an adjournment of this motion. Once again, this motion came on before Leef J.
[197] On May 10, 2021, Leef J. adjourned the motion to July 26, 2021, but ordered a number of terms of the adjournment, that largely granted the father the relief he was seeking. In particular, Leef J. ordered that neither party was to make any major decisions respecting either child and that all major decisions required both parties’ prior written consent. She ordered that B. was to be enrolled in the same school as T., but the question of whether that would be on a part-time or on a full-time basis remained an issue. She ordered that the school file for T., and the school file for B. once he began school in September 2021, would be released to both parties. She ordered that both parties were entitled to equal and unfettered access to all information from professionals involved with both children, including doctors, dentists, daycare and schools. And she made other procedural orders respecting the conduct of this motion for its return.
[198] According to the Endorsement of July 26, 2021, Leef J. advised the parties that she was not prepared to make a temporary Order for decision-making, as the OCL’s investigation had just begun. She was prepared to make an order respecting the children’s schooling. The parties then had settlement discussions and resolved most of the motion on consent.
[199] The motion basically resolved along the same lines as the terms of the adjournment, except that B. would be going to school full-time in the fall. If there were further disagreements on major issues relating to the children, such that either wished to bring a motion for sole decision making, they were to file a 14B Motion to Leef J.’s attention to seek an early motion date before her on the issue. Leef J. placed the matter on the May 2022 trial sittings, and requested that the Trial Coordinator schedule a Trial Scheduling Conference before Nicholson J. beforehand. On November 30, 2021, Leef J. ordered the mother to pay costs of $14,500.00 to the father.
[200] The OCL clinician Ms. Bernatt held a disclosure meeting with the parties in December of 2021. She released her report on January 26, 2022.
[201] Although the mother testified that the father did not pay any child support until December 1, 2022 as a result of the final settlement of the financial issues, there was in fact an earlier motion, this time brought by the mother for child and spousal support. That motion came before me.
[202] On January 20, 2022, I ordered the father to pay to the mother a lump sum of $12,075.00 out of the net proceeds of sale of the matrimonial home, without prejudice to the trial judge to allocate it as child or spousal support, or to make other adjustments depending on the outcome of the financial claims. The Order was intended to take the parties to a May trial. I also ordered the father to pay costs of $4,000.00 to the mother from the sale proceeds.
[203] Nicholson J. heard a combined Settlement Conference and Trial Scheduling Conference on February 10, 2022. He endorsed that the parties were not ready for a May trial. He adjourned the Trial Scheduling Conference to October 11, 2022, with a view to a November 2022 trial.
[204] On March 10, 2022, Hughes J. granted a 14B Motion on consent, varying the pick-up and drop off terms in Leef J.’s September 3, 2020 Order. According to this new Order, exchanges would now take place at the children’s school. On days when there was no school, the parent having the children in his or her care was to drop them off at the other parent’s home, and if there was one child in school and one absent from school, the parent with the absent child was to pick up the other child at school and take both children to the other’s home.
[205] On May 18, 2022, the father filed a 14B Motion asking for a motion date before Leef J. to argue once again for temporary sole-decision making pending trial. This motion was brought arising out of a dispute over the management of T.’s health earlier in May 2022, elaborated below.
[206] In cross-examination during his Reply evidence, the mother’s counsel accused the father of having manufactured the circumstances underlying this motion to give him the grounds to have brought it. Counsel suggested that the father threatened to find a doctor to give him a medical opinion so that he could bring a motion. The father denied this. I am not finding this. Rather, there were significant issues surrounding the child’s health that were exacerbated by the mother’s failure to share information with the father.
[207] On May 30, 2022, Leef J. declined to schedule a motion, because the parties were scheduled for trial on the November 2022 sittings. She instead asked the trial coordinator to give this matter priority on the November 2022 sittings. She also ordered that pending trial, neither party was to take either child to any medical appointments unless both parties were present, either in person or virtually, or unless a party elected in writing not to attend. She ordered both parties to strictly comply with all medical directions and prescriptions provided by doctors, regardless of whether they personally agree with the medical advice provided. Finally, she cautioned the parties about the financial and emotional pitfalls of proceeding to trial.
[208] The parties appeared before Nicholson J. for the Trial Scheduling Conference in October. The Endorsement reveals that the mother wanted some of the funds being held in trust released but there was no agreement about that. Nicholson J. scheduled a motion for October 27, 2022. I am not aware that any such motion being brought.
[209] This trial started in November of 2022.
[210] On November 17, 2022, just five days before the start of the trial, the husband presented two Offers to Settle the financial issues. The wife accepted one of those Offers to Settle on November 18, 2022. The day before the start of the trial, the Court was advised, by way of a Confirmation Form, that the financial issues had settled.
[211] The parties did not then tender a draft Order for the Court’s signature in a timely fashion. Periodically throughout the trial, I inquired about the status of the draft Order. I expressed a concern, that it would be very problematic, if in fact it turned out that there was a problem with the settlement. I was assured that that was not the case.
[212] The parties eventually tendered the draft Order on December 9, 2022, which I signed. I also made a consent Order for the Christmas schedule in 2022, only, but noted that there was an agreement respecting the division of the holiday in 2023 that should form part of this Judgment.
[213] December 9, 2022 was the last day of the fall, 2022 sittings. It was supposed to be the last day of this trial. But there was still one witness left to testify, subject to any Reply evidence. I put
the matter over to two days in February of 2023, to hear the remaining evidence and closing submissions. Like Leef J. had done before me, I encouraged the parties to take control of the resolution of this case and to attend before Scott J. for a mid-trial Settlement Conference. The parties met with Scott J. on January 18, 2023. They did not settle.
[214] On the penultimate day of the trial in February of 2023, I was told that there was now a dispute about the implementation of the settlement. This culminated in a post-trial motion that I heard on March 3, 2023 over the implementation of the parties’ financial settlement. My ruling can be found at S.C.H. v. S.R., 2023 ONSC 1549. In the result, there remains net proceeds of sale held in trust, and there remains an accounting of the financial settlement and of any costs orders made after this trial, to be done. Costs of the March 3, 2023 motion are also outstanding.
[215] The parties had not in their closing submissions made any specific proposals respecting counselling for these children. Rather, each of them basically asked the Court for control over this domain, including about how to handle the related questions about T.’s identity. During closing submissions on February 27, 2023, in response to questions from the Court, the parties agreed that the children would be enrolled in therapy, that there should be a new therapist without any prior involvement with the children, and that the cost of therapy would be shared as a section 7 expense. The parties had not then agreed on the identity of the therapist, or the goals of therapy, in full.
[216] With the consent of counsel, I made an order setting out the parameters of how these outstanding issues about therapy would be settled, or adjudicated by me. I also invited additional written submissions respecting the orders sought by the father, and opposed by the mother, seeking to limit church attendance. During this trial, the Court had heard much evidence about the parties’ conflict at various churches in the Durham region, but the parties had not adequately addressed this Court’s jurisdiction to impose restrictions on a parent’s religious practices in their submissions, either.
[217] On March 15, 2023, the mother filed a 14B Motion advising the Court that the issue about church attendance settled. I granted an Order based on their consent on March 15, 2023. It provides that if the father elects to go to church on Sunday, he will not attend at any of a particular
church’s locations. If the mother elects to attend a Sunday church service, she will not attend at a different church, thereby leaving one church for each parent to attend without the other present.
[218] The parties chose not to make further submissions about therapy. On April 14, 2023, the parties submitted a consent and a draft Order that the children would attend “closed therapy” with
S.P. The purpose is to give the children access to a mental health professional to talk about their concerns in a “safe and neutral setting, free from perceived and/or actual pressures of talking about either party with the other parent and to address the issue of one of the children’s identity”.
[219] There are a number of terms in the Consent that say that the sessions are private and confidential and disclosure of the sessions is not to be obtained or discussed by the parties during or after therapy. There are other confidentiality terms. The Court had some concerns about these confidentiality provisions and it has not yet granted an Order based on the parties’ consent.
PART V: THE CONDUCT OF THIS TRIAL
[220] Prior to the start of the trial, this Court reviewed the pleadings and the Orders and Endorsements in the Trial Record. I was not alerted to the fact that there had been a fraud based on a review of those documents. Although it was evident that there had been a prior custody Order made, that Order was not part of the Trial Record. It was buried within the thousands of pages of documentation in the multi-volume Exhibit Books.
[221] As already indicated, in his initial Application dated September 23, 2019, the father did not advise the Court of what he knew about the DNA test. He omitted any detail about that, while initially seeking a declaration of parentage for both children. By the time of his Amended Application dated September 30, 2022, the father abandoned the request for a declaration concerning T., and persisted just respecting B.
[222] In the “Important Facts” section of both his initial and Amended Applications, the father stated that T. was the mother’s child from a prior relationship, but he stood in the place of a parent for her pursuant to section 2(2) of the Divorce Act. He said nothing more.
[223] The mother made similar omissions about the DNA test in her Answer dated November 4, 2019. There, the mother merely stated that she “brought a daughter into this relationship named [T.]” and that the Applicant is “not the biological father of the child”. She referred to the existence of a prior custody Order in response to the father’s request for a declaration of parentage for T., writing that she “already has an Order for sole custody of that child from a separate court proceeding”. She did not identify the date of the Order, the name of the judge who granted it, or the Court File Number, let alone any facts of her prior relationship and what had transpired that led to the making of this Order.
[224] In his Reply dated November 19, 2019, the father provided additional information about this. It was deliberately misleading. The father wrote a statement that essentially implied, if not outright said as much, that there was no possibility that S.K. could be T.’s biological father. He wrote:
In response to paragraph 17 of the Answer, the Final Order that [the mother] is referring to is the Final Order dated April 13, 2016 made by Corkery, J. in a matter between [the mother] as the Respondent and [S.K.] as the Applicant, available as public record with the Superior Court of Justice, [File No.]. The child, [T.] was held out by the mother as having been fathered by [S.K.] who resided with [the mother] between January 13, 2012 and May 22, 2015. [S.K.] paid child support believing himself to be the biological father to this child and at [the mother’s] insistence. Ultimately, [S.K.] completed a DNA test that negated any chance of him being the father [my emphasis added]. On that basis, the parties reached a consent agreement, issues as the aforementioned Final Order within which [S.K.] was determined not to be [T.’s] biological father, [the mother] “returned” the child support paid and [the mother] was granted sole custody. I do not believe that [T.’s] actual biological father is aware of nor ever had the chance to seek a declaration of parentage.
[225] While the parties both filed written Opening Trial Statements, they were not brought to my attention until the first day of the trial was underway. As information started to be revealed during the father’s counsel’s oral presentation of the father’s Written Opening Trial Statement, the Court
interrupted early on to inquire whether service upon T.’s biological father had been addressed. At some point over the course of the morning, the Court took a break to review Corkery J.’s Order, after being informed as to its whereabouts in the documentation.
[226] The Court asked a number of questions of the parties, both before and after the break. In response to one of those questions, the father’s counsel said that she anticipated the father would give evidence that he felt torn on the issue of informing S.K., that until the midst of this case T. was not aware that he was not her biological father, and that the child still did not know who the biological father was. Counsel also said that the father contemplated notifying S.K., but that the litigation was chaotic and he continued to question whether it was the right time to deal with this issue, having regard to the best interests of the child.
[227] In response to further questions from the Court about the prior proceedings, the Court was informed by the father’s counsel that the mother’s evidence would be that she falsified the DNA test. I was told that this was based on what she had said in her questioning, but the father would also go on to give other evidence about that.
[228] The Court inquired whether the issue of notice to S.K. had been raised during case management. Although the Court had been informed about the matter just before the September 3, 2020 motion via the mother’s affidavit sworn August 27, 2020, the issue was not addressed in any of the Court’s subsequent pre-trial Endorsements. Counsel for the father also said that the lawyers had not discussed it.
[229] At one point during the Opening Trial Statements, the mother’s lawyer said that she and
S.K. had only lived together briefly and split up shortly after the child was born. Counsel also characterized the relationship between the mother and S.K. as a “dating” relationship. In a similar vein, the mother’s counsel said that S.K. possibly is the biological father, but he may not be.
[230] None of this was yet in evidence; nor is this what the evidence later called revealed. For example, it would be revealed during the trial that at her questioning held on October 19, 2022, the mother said that she had no doubt that S.K. was the child’s father. The mother testified to this
effect during the trial also. And the evidence later showed that the mother was not just dating S.K., they had lived together for a considerable period. Apart from the 5 month separation referred to earlier, their period of cohabitation included cohabitation at the time of T.’s birth.
[231] Counsel for the father said that the father didn’t actually know for certain whether the DNA had even been swapped by the mother, or whether she just made that up. Yet at the same time, the father intended to ask the Court to find that the mother had swapped the DNA test for the purposes of credibility. For example, at ¶ 27 of his Written Opening Statement, the father alerted the Court to the evidence he anticipated calling, about the mother’s lack of co-parenting with him, and her efforts to exclude him. At ¶ 27(iv), he included in his list of examples, that the mother “admitted that she had falsified a DNA test and court documents to get T.’s biological father out of her life.”
[232] I recognize that the current counsel came on to this matter later in the proceeding and neither acted in the first case when the DNA issue occurred, or in 2020 when the DNA test was initially revealed. I also appreciate that the current lawyers were placed in difficult positions by their clients. This mother and father should not have left this issue alone until the first day of trial. In my view, when the issue was finally revealed to the Court in 2020, it ought to have been dealt with in case management, well before the start of this trial.
[233] In I. v. P., 2011 ONCJ 584, Zisman J. had before her a similar situation, in that there was an 11 year-old child who was unaware of her parentage. The child was born as a result of an affair during a marriage. But unlike this case before me, the biological father in the case before Zisman
J. was aware that the child was his biological child, and he participated in the case as a party. By the time of the trial before Zisman J., the Court had three parties before it, and expert evidence about how to handle the situation. The process that the parties embarked upon in the case before Zisman J. would have been a far better template to handle these issues, rather than the chaotic manner in which the facts of this case were ultimately disclosed to the Court.
[234] From the Court’s perspective, the parties’ past conduct and approach to this litigation placed the Court in an untenable position. On the one hand, this Court was told, on the very first day of trial, to expect to hear evidence of a fraud on S.K., on the Court, and ultimately on the child
herself. On the other hand, it was also told that perhaps S.K. was not necessarily the biological father, and that the relationship between S.K. and the mother was not even necessarily one of cohabitation (which I gather would not trigger the presumptions in the Children’s Law Reform Act and perhaps party status). The Court was told that the mother fled her prior relationship due to significant family violence, that the child had no awareness of S.K., and that she had not seen him since soon after her birth.
[235] As a result of asking a relatively straightforward question about the proper parties to this case on the first day of this trial, this Court was thrust into the position, with no motion or even a request for relief before the Court at trial, of having to determine whether additional steps should now be taken. This Court had to decide whether to delay this case, on its own motion, for any such steps to occur. The parties’ revelations were dumped on this Court in Opening Trial Statements, largely for the purposes of the credibility arguments to come (as opposed to for the purpose of addressing the problems created), leaving this Court to worry about the impact on the children, should additional steps be taken on the Court’s own motion.
[236] For example, there was enough information from the Opening Trial Statements, that S.K. had apparently been violent towards the mother. The Court was left wondering what harm might befall the children, were the Court to adjourn this high conflict matter that had now been before the Court for three years, to notify a person, that the Court was warned was violent, who T. did not even know to be her father, and who might not even qualify as a parent under the legislation (at least until some evidence was called).
[237] It was under these circumstances that the Court allowed this trial to proceed. In directing that this matter proceed, the Court expressed its concern about the impact of delay and the high conflict nature of this case on these children. But the Court also instructed counsel that as the evidence unfolded, the landscape may change. The Court invited the parties to research the issue further and to make submissions as the evidence unfolded.
[238] The parties made no further submissions on the issue of notice to S.K. The Court once again raised the issue again during the closing submissions on February 27, 2023. It received no assistance.
[239] Although the parties were given ample opportunities to address this prior to and throughout the trial, this Court gave the parties yet another opportunity to make submissions on the issue prior to the release of this Judgment. On July 17, 2023, I released an Endorsement requiring submissions on the question of notice to S.K. In the same Endorsement, I also required submissions about the confidentiality provisions in their Consent dated April 13, 2023 respecting the children’s counselling, and I asked questions about the other confidentiality order sought by the mother related to this case more broadly. I have considered the additional submissions that the parties have filed.
[240] The parties filed these supplementary written submissions according to the timetable set out in the July 17, 2023 Endorsement; the last set of submissions came in on August 21, 2023. The Court has now been made aware that these children have not yet started to receive counselling because of a dispute over payment of the therapist’s fees. Moreover, in her submissions filed August 14, 2023, contrary to the position she took during the trial, the mother now says she intends to notify S.K. of the DNA test herself, prior to the release of this Judgment. On August 18, 2023, I had a judicial assistant email the parties and counsel to direct that no unilateral steps were to be taken prior to the release of this Judgment, until the Court had an opportunity to consider all of the submissions, including the father’s Reply submissions to be received on August 21, 2023.
PART VI: ISSUES AND ANALYSIS
A. The Applicability of the [Divorce Act](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-3-2nd-supp/latest/rsc-1985-c-3-2nd-supp.html) versus the Children’s Law Reform Act
[241] The parents are married. They are spouses under the Divorce Act. While the parties have made claims under both the Divorce Act, including for a divorce, and the Children’s Law Reform Act in the alternative, both T. and B. are children of the marriage: see the definition of “child of the marriage” in sections 2(1) and 2(2)(b) of the Divorce Act. The mother referred to the Divorce
Act in her written closing submissions, whereas the father referred to the Children’s Law Reform Act. I will apply the Divorce Act to decide the claims for decision-making and parenting time.
B. The Applicable Statutory Provisions Respecting Decision-Making Responsibility
[242] A parenting order is defined in section 2(1) of the Divorce Act as an order made under section 16.1(1). Pursuant to section 16.1(1)(a), the Court may make an order providing for the exercise of parenting time or decision-making responsibility in respect of any child of the marriage, on application by either or both spouses. Decision-making responsibility is defined in section 2(1) of the Divorce Act as the responsibility for making significant decisions about a child’s wellbeing, including in respect of health, education, culture, language, religion and spirituality, and significant extra-curricular activities.
[243] Pursuant to section 16.1(4), the Court may allocate parenting time or decision-making responsibility in accordance with sections 16.2 and 16.3, it may order terms respecting communication, and it may provide for any other matter that the Court considers appropriate. The Court may also make an order for a definite or indefinite period of time or until a specified event occurs, and it may impose terms and conditions, in accordance with section 16.1(5).
[244] When there is an application for a parenting Order, the Court’s only focus must be the best interests of the child or children in question: see section 16(1). This Court is to consider all factors related to the circumstances of the child when determining best interests. Section 16(2) requires that when considering the factors in section 16(3), the Court is to give primary consideration to the child’s physical, emotional and psychological safety, security and well-being. Section 16(3) requires the Court to consider all factors related to the child. There is a non-exhaustive list of eleven criteria in the section.
[245] Pursuant to section 16(5), the Court is not to take into consideration the past conduct of any person unless the conduct is relevant to the exercise of parenting time or decision-making responsibility. There have been a multitude of allegations about past parental behaviour in this case, some positive but much negative. I have addressed the parties’ past conduct respecting the
DNA test and some of their other behaviour already in this Judgment. The DNA issue is not only relevant to credibility; I find that it is also relevant to the children’s best interests and the Orders the Court will now make. Where I do refer to this and other past conduct, I state why it is relevant to the exercise of parenting time or decision-making.
C. Applicable Legal Principles and Analysis Concerning Joint Decision-Making Responsibility
[246] Although both parents have essentially sought sole decision-making responsibility, each has included some form of joint-decision making or at least consultation as part of his or her principal and alternative positions. The legal principles applicable to joint decision-making are well known: see Kaplanis v. Kaplanis, 2005 CanLII 1625 (Ont. C.A.): see also Roloson v. Clyde, 2017 ONSC 3642 ¶ 59 in which Justice Chappel provides a helpful list of factors to consider.
[247] In particular, it is well-known that joint decision-making is generally only appropriate in cases where there is evidence of historical and appropriate communication between the parents. Just because one parent professes an inability to communicate does not preclude an order joint decision-making. Nor is the standard of perfection required. But where there is poor communication, joint decision-making should not be ordered in the hopes that two parents’ communication will approve. There must be some evidence before the Court that, despite their differences, the parents are able to communicate effectively with one another.
[248] Courts are sometimes willing to order some form of joint decision-making, even in the face of parental conflict, where such an order is considered necessary to preserve the balance of power between the parents. This is particularly in cases where both parties are caring and competent parents, but one party has been primarily responsible for the conflict between the parties. Those are not the facts of this case.
[249] Joint decision-making will not work in this case. These parents’ ability to communicate is non-existent. There has been problematic behaviour on the part of both parents in this case,
although it is my view that it has been the mother who has been more active in trying to marginalize the father from the children’s lives, rather than the other way around. The Court is concerned that any form of joint decision-making or parallel parenting is more likely to inflame the parents’ conflict and expose the children to it. That very much militates against such an Order: see S.S. v. S.K., 2013 ONCJ 432 ¶ 43.
D. Applicable Legal Principles and Analysis Respecting the Parents’ Biological Ties to T.
[250] As the issue has been squarely put before the Court in a myriad of ways, the Court will address the weight to attach to the mother’s biological ties with T., and the father’s lack of those biological ties. The Court formed the impression, both during this trial and as a result of the Orders she is seeking, that the mother would have this Court order the differential treatment of T. based, at least in part, on biology. One need look no further than her position respecting Father’s Day (below) as an example.
[251] Recently in B.J.T. v. J.D., 2022 SCC 24, the Supreme Court had occasion to discuss the importance of biology in parenting cases. At ¶ 87, the Court wrote “…that a parent’s mere biological tie is simply one factor among many that may be relevant in some cases to a child’s best interests, which is and must be the paramount consideration. Judges are not obliged to treat biology as a tie-breaker when two prospective custodial parents are otherwise equal”. At ¶ 88-109, the Supreme Court discussed the history and the progression of the case law respecting biology. The Court held that governing statutory factors provide the starting point for assessing the relevance of biological ties.
[252] B.J.T. v. J.D. was decided under the different provincial statutory framework of Prince Edward Island. Nonetheless, applying the Supreme Court’s comments about the statutory provisions, I note that section 2(2)(a) of the Divorce Act includes a child as a child of the marriage, in situations where one of the spouses is a parent, and the other stood in the place of a parent. As already indicated, under section 16.1, the Court may allocate parenting time or decision-making responsibility between the spouses. There is no priority based on biology in section 16.1.
Although some of the best interests’ criteria, like section 16(3)(b) and (h), “may implicate biology”, none of the enumerated factors specifically require the consideration of a parent’s biological ties. According to these sections of the Divorce Act, the father and T. are not treated differently than the mother with biological ties.
[253] Moreover, prior to the 2021 Divorce Act amendments, there were no best interests’ factors in the Divorce Act at all, but courts often referred to the list in the Children’s Law Reform Act as a guide when deciding cases under the Divorce Act. While the Children’s Law Reform Act did at some point in the past include biology as a factor, it no longer expressly does. For example, in the version in force as of 2015, section 24(2)(h) of the Children’s Law Reform Act still directed the Court to consider “the relationship by blood or through an adoption order between the child and each parent who is a party to the application.” By 2016, that was amended to refer to any “familial relationship”. This confirms the evolution in the case law away from biology as an important factor.
[254] At ¶ 108 and 109 of B.J.T. v. J.D., the Supreme Court wrote that, “[c]omparing the closeness or degree of biological connection is a tricky, reductionist and unreliable predictor of who may best care for a child”. The Court also wrote, “[w]hile biological ties may be relevant in a given case, they will generally carry minimal weight in the assessment of a child’s best interests”. And even if biology does have some import to the Court’s analysis about the parenting orders in this case, as between these parents, I refer again to the Supreme Court’s comments at paragraph ¶87. Biology is not even a “tie-breaker” situation in this case before me. The facts before me are not those of two otherwise equal prospective “custodial parents”.
[255] This Court intends to place very little weight on biology when assessing T.’s best interests. I refer to the Applicant as the “father” of both children throughout this Judgment. This Court has no intention of referring to him differently as the mother does, depending on which child is in issue. While there has been much conflict over the nomenclature used to describe the father’s relationships with the children, the fact of the matter is that the Applicant has been the only father that T. has ever known, regardless of the improper circumstances surrounding how that came to
be. From the children’s perspectives, the Applicant is both T.’s and B.’s father. He is both children’s psychological parent, as well as B.’s biological parent. Until the mother inappropriately told the children that the father was not T.’s father, the children’s biological heritage was completely unknown to them.
[256] In the limited instances in this Judgment where I have placed some reliance on biology to decide an issue (apart from credibility), I do so because the statute authorizes it, such as regarding the request for a declaration of parentage for B., or otherwise in a limited fashion, such as regarding a term that I will order relating to T.’s name change. In those instances, I will explain specifically why I have done so.
E. Findings and Conclusions Respecting Decision-Making About Education
[257] The children attend a private, religious school in the Durham region. The children’s school has been a major battle zone for the parents. The parents have literally argued and fought about virtually everything relating to this school, including both children’s enrolment in the school, the parents’ access to the school, the exchange of school uniforms, the distribution of schoolwork, which parent is supplying treats on special school days, the children’s haircuts (which spilled over into conflict at the school), whether the children would be included in school photographs and in the school’s yearbooks, and the disclosure of school records to the parents, including most recently whether the father has now acquired some preferred access to records over the mother.
[258] In addition to the parents’ own testimony and the various documents they introduced into evidence, the parties collectively called five different witnesses from the school. This included three different teachers, a former principal, and the current principal, who was formerly responsible for student enrolment when he first came into contact with this family. The father is also a member of a church prayer group that this current principal leads.
[259] On the broader question of educational decision-making, I find that the father should have it going forward. To be clear, this includes the ability to make decisions respecting the children’s participation in classroom and school events, and particularly in photographs. This includes
deciding whether the children may participate in routine class photographs that can then be shared with the parents on an application called “see-saw”, other school photographs taken at assemblies, and whether their school photographs may be included in the school’s yearbooks. It does not include the power to permit the children’s photographs to be in the school’s promotional material, which the mother did not agree to, and which the Court understands.
[260] To decide this issue, I have applied sections 16(3)(a), (b), (c), (d), (h), (i) and the family violence provisions of the Divorce Act to the evidence before the Court. I find the prohibition against considering past conduct in section 16(5) of the Divorce Act does not apply.
[261] The father’s decision-making power over education will not be unlimited. The very first instance of parental conflict surrounding the school began when it was time to enroll T. into school in the first place. There was a repeat of the conflict, albeit in different circumstances, when it came time to enroll B. There has been so much conflict, litigation and lawyers involved respecting the choice of school, to get the father involved in the school, and so that information between the school and both parents could be free flowing. The school’s staff is now aware of the family dynamics, having lived through the events alongside this family as events unfolded.
[262] In regards to sections 16(3)(a) and (g) of the Divorce Act, I heard no evidence about any desire or a plan by either parent to change the school. I also heard no evidence about any learning issues or special needs on the part of either child relating to education, so there is no issue that this school is not meeting their educational needs. Pursuant to section 16(1)(e), there was also no evidence about the children’s views and preferences relevant to the school, such as a desire by a child to go somewhere else. And in their financial settlement, the parties have agreed that the cost of the religious school is a section 7 expense, although that is stated to be so only for the 2022- 2023 school year.
[263] Therefore, regardless of the time limited nature of the latter, and while there may be other education decisions that will have to be made along the way, which the father is now empowered to decide, the Court intends to restrict the father’s ability to change this school until high school. This should give the children some peace for a few years. Before then, the school may only be
changed based on the parties’ consent, or court order obtained as a result of a material change in circumstances.
[264] Furthermore, I am directing both parties’ counsel to review section 16.2(2) of the Divorce Act with their clients so that they understand the difference between a “significant decision” and a day to day one, not only as it pertains to the school but also more generally. Counsel should also review the terms of this Judgment and the law respecting the right to information with their clients.
[265] I am ordering this because there was a huge debate as to whether the father had “custodial time” after Leef J.’s Order of September 3, 2020 and what that entitled him to at the school. In the result of this case, although the father will have decision-making responsibility, the mother will have the children in her care half of the time. Both parents could benefit from some legal education about the difference between significant decisions, and day-to-day ones, and how the Court is modifying those concepts in the statute, by this Judgment.
[266] Relatedly, because there was also much confusion at the school about it early on, and the former principal did not know what to do, I am specifically ordering that both parents have the right to full information, including directly from the school pursuant to section 16.4. Neither parent is to communicate in any way with the school in any attempt to direct the school not to share, or to limit the information flow from the school to the parent, as happened already in this case.
[267] I make these Orders based on the following evidence and findings of fact.
(1) T.’s First Day of School
[268] According to the father, in 2018 and continuing into the spring of 2019 during the parties’ reconciliation, the parties discussed various options for T.’s school. The parties decided that they could not afford to send T. to a private school. They selected a public school that T. could go to near their home. The father testified that this also made sense, since B. would be going to pre- school there on a full-time basis.
[269] On T.’s first day of school, now at a time when the parties were living separately under the same roof, the father had to go to work. He was not present to take T. to school on her first day. He decided he would leave work early at the end of the day, although apparently he did not share this with the mother. He showed up at the public school where T. was supposed to be attending, with a bouquet of flowers, looking like a “weird creep” (to use his words). He felt like a “weird creep” because T. was not there.
[270] The father asked the mother questions about why T. was not at the public school. The mother would not answer him. The father says he learned several days later that the children were going to the religious school. While the father claimed that it was perhaps the mother’s brother who told him this, I find that it was actually because he searched the mother’s car. This happened on the second day of school.
[271] On the second day of school, when the father was driving home from work, he saw the mother and the children at a nearby playground.[^5] The father stopped at the park. When it was time to leave the children wanted to drive home with the father. The mother insisted on going in his car too.
[272] When the family got home, the father claimed to have realized that the mother had left her car window open, so he said he went back to the park to “secure” her car. I do not accept his characterization of what happened. Rather, the father took the car keys from her purse and left the house, and he went back to the park for the purposes of searching the mother’s car trunk. He found the school uniforms and that is how he learned about the religious school.
[273] The father claimed to have done this because the mother had removed the children’s documents and financial records from the house, and so he thought it “didn’t seem unreasonable”
that relevant information about the school might be located in her car. In cross-examination, he claimed to have seen items “in plain sight” when he went into the trunk.
[274] In their written communications of that day, the mother accused the father of stealing her car keys. The father responded with his explanation that he had to go and protect the car, and he told the mother “… you’re welcome”. The mother accused the father of lying.
[275] When she testified during examination in chief, the mother pretended not to know that the father actually went to the public school with flowers on T.’s first day. She said that she “thought” that the father “said” that he did this. But the text message exchange above was clear; the father specifically asked her where T. was, he told her about the flowers and he asked her why T. wasn’t at the public school on the first day. As well, A.D., who was T.’s junior kindergarten teacher at the time, testified that the mother had told her what had happened respecting the first day of school. That included the mother’s account that the father had gone to the public school with flowers.
[276] The mother went on during her testimony to excuse the withholding of this information, saying that the father never told her that he was going to participate in T.’s first day of school, or attend with flowers. The mother also claimed that T. told her, that the father bought T. flowers for her birthday. Yet the child’s birthday was several months earlier.
[277] In regards to the father’s attendance at the park, the mother agreed that she got into the father’s car for the drive home, leaving her car behind at the park. After she realized that the father took her car keys and returned to the park, the mother left the house with the children to go back to the park, too. She said that her car had been rummaged through, and the children’s backpacks had been opened up. The mother said that she was “not excited about it”. The mother tendered a photograph of the car trunk into evidence. The picture reveals that the trunk was neat and organized, but a box had been opened.
[278] The father presented his trip to the park in an altruistic light, being to “secure” or protect the car. What he truly intended to do, is to go through the mother’s car trunk. While I am not
condoning his search of the car, in its full context, this is not an example of family violence or coercive and controlling behaviour. It was more reactive to the perceived deceit.
[279] The more problematic issue in my view, is that the mother secretly enrolled T. in school against an agreement of the parties that T. would go to public school. As I explain next, she implemented this plan over a number of months, behind the father’s back. She then denied in Court that there was any agreement for public school, which I find was untruthful. The mother further testified in Court as though she had no idea that the father wanted to be involved, which I find was also been untruthful, especially when compared to the written record.
(2) T.’s School Registration
[280] The mother admitted that she went on a tour of the religious school for the first time in May of 2019. She brought both T. and B. to her tour. In the process of explaining this, she attempted to justify why the local public school was not satisfactory.
[281] D.P. is now the principal of the religious school but at this time, he was the school’s Director of Development. He confirmed that he had given the mother, and T., the tour.
[282] The mother testified that she “did not know” whether the father knew about this tour or not. She claimed that “she may have told him about that”. The mother did not recall whether there had been any discussions about the school by this point either. At another point during her testimony she claimed to have told the paternal grandparents about it, and she alleged that the father “didn’t say anything at the time”. The mother also claimed that the father was not interested in the issue, consistent with her narrative that the father was disinterested in T. I do not accept this evidence; rather she did not tell the father in the face of his requests to participate.
[283] In cross-examination, the mother initially said she “thought” that the first time the father raised the school registration issue, was after they separated. But in further cross-examination, the mother began to recall further conversations about pre-schools as facts were put to her. She admitted that there were times that the father suggested that she put the children in “day care”. She then admitted that the father sent her a link for a pre-school. On August 1, 2018, the father
sent the mother a text message proposing to put T. in pre-school for five days during the week. The mother responded and asked the father to inquire about the “apple tree one”.
[284] Counsel then put to the mother a number of other messages between the parties about financial issues relating to work and school, about touring a Montessori school and about the public school to which the father showed up at on the first day of school. The mother suddenly remembered going for a tour at the public school, when confronted with these text messages. The mother was then able to remember these conversations, but she said that her “memory can be funny like that sometimes”. For example, she explained that she can sometimes remember what she had for dinner one night, but not always the specific details of more important conversations, like these ones.
[285] As the cross-examination continued, the mother gave additional evidence about various other conversations that occurred, and maintained that the father didn’t agree with paying fees for a private school. The mother said the understanding was that she could choose the school if she paid for it. This narrative differed from her earlier testimony.
[286] The dispute in the evidence is not only over whether the mother told the father, but also when she actually enrolled T. in the first place and consequently the period of time she withheld information from the father. D.P. could not remember whether the mother filled out the paper work right away, but testified that it would have been submitted at some point during the application process. The mother testified that it could have happened at any point after the initial tour, in May of 2019. I find that the mother actually completed the registration on August 12, 2019, failing to inform the father for over another half a month, leading up to the first day of school. This was several weeks after the initial tour and other written communications with D.P.
[287] When the mother filled out the school enrollment application herself, she did not write a date next to her signature on the form, or on the accompanying Immunization Request Form. She also indicated that she did not want T.’s picture in a yearbook, web page or promotional advertising in the community, something that later became the subject of a dispute between the parties.
[288] The father tendered a number of emails between the mother and D.P., in which D.P followed up about the incomplete registration. This happened between May 2019 and July 2019. It is clear from the correspondence, that no decision had been made by the mother as of July 17, 2019, but there had been interest.
[289] There is Statement of Affirmation in the documentation, that I was told the school requires to accompany every application. To enroll a child at this religious school, a parent must acknowledge by this document that students will be taught all aspects of the school curriculum, and agree that the school would teach students its “Core Family Values”. This is an important document for this school, so much so that it has to be renewed yearly. The registration cannot be completed until this document is signed and submitted.
[290] The mother did date her signature on this Statement of Affirmation document. The date was August 12, 2019.[^6] There is a notation on T.’s application form by someone at the school made on August 13, 2019, the very next day after the mother signed the Statement of Affirmation, which I understand completed the registration process.
[291] On August 23, 2019, a mere 10 days later, the father sent the mother a text message asking for a time to discuss before and after school care for T., and B.’s registration at pre-school. The mother responded that she said she would let him know. The father further responded and said that he would like to do this sooner rather than later, and asked if the mother wanted a mutual third party to be present for the discussion. He also proposed coming up with a temporary parenting schedule. The mother did not respond. The mother had already unilaterally enrolled T.
[292] During this trial, the mother justified her conduct saying that “perhaps” she thought about telling the father that she had signed T. up at the religious school, but at that time their conversation was “little to none”. She continued to say that she could not remember registering the children at the public school already either. Meanwhile, the mother started this process well before the parties had even separated for the final time.
[293] The mother’s evidence about the school registration is not credible. I find that the mother started the process to enroll T. in the religious school in May of 2019. She acted unilaterally. The mother completed the registration process on August 12, 2019. She pretended that this was not done and dodged a conversation in late August with the father about it. Over time, she excluded the father from decisions surrounding the choice of this school. This created much conflict between the parents. Through her actions surrounding the choice of T.’s school, the mother illustrated that she viewed the father as less important in T.’s life. The mother also demonstrated a lack of insight into T.’s own needs, such as that T. would benefit from having both of her parents fully involved in her school life.
[294] This was not the end of her exclusionary behaviour. The mother took further steps to exclude the father from the school, once T. started attending there.
(3) The Mother’s Efforts to Exclude the Father from the School After Enrolling T.
[295] The mother did not identify the father as T.’s father in the school registration documents. While the mother may very well have done this based on biology, I note that she did not mention him as having any kind of role, at all. She wrote that she was the child’s only legal parent.
[296] To explain this, the mother said she gave the school “whatever [documents] they needed” to complete the enrollment. For example, she said she gave the school T.’s birth certificate, and because the father never adopted T., there was nothing on it showing that he was her parent. But she also gave the school the fraudulently obtained Order of Corkery J. dated April 13, 2016. These actions would set the stage for what happened next.
[297] The mother went into the school, talked to the former principal P.O., and portrayed the father as a dangerous person, to be afraid of. This put the school on alert.
[298] P.O. testified that he had had a number of discussions with the mother after T.’s enrollment. While he could not remember all of the conversations, P.O. testified that the first one occurred when the mother came to his office to explain that a “man named “S.” might come by looking for
T. P.O. said that the mother gave him a picture of the father, and said that he was not allowed to have any interactions with T. It was at this point that the mother showed P.O. a copy of Corkery J.’s custody order, confusing the situation (since that Order excluded another person from having a role in T.’s life, not this father). She told P.O. that the father was a police officer, and she asked him to show the photograph of the father to school staff covering all shifts during the day. The principal told the mother that the school would “watch out for him” and “be on the alert”. The principal then instructed staff accordingly.
[299] In cross-examination, the mother remembered giving P.O. the Court Order. She claimed that it was in fact P.O.’s daughter who had asked for a photograph of the father. This was put to
P.O. in cross-examination, a proposition that he did not debate. Whether the mother offered up the photograph or was asked for it does not matter to this narrative.
[300] The mother did not “recall” instructing the school that information about T. was not to be shared with the father, although she did remember that there was “some issue” over what he should and should not be given. This was a surprising statement, since the release of documentation to the father was a major issue between the parties.
[301] At some point after this case was under way, after he learned that T. was going to the religious school, the father went in to meet with P.O. himself. He said he requested to be involved and added as a parent at the school. According to the father, P.O. told him that the mother said she had sole custody and instructed that he was not to be given any information about T.
[302] By this point, the parties had had their first Court date. The father showed P.O. a copy of Fryer J.’s Endorsement of November 12, 2019, but because it was set to “expire” in January 2020,
the father had to wait until there was a further order. P.O. agreed that father showed him a court document, but he explained that he was not a lawyer. He did not understand what to do. He also remembered that the document had a “sunset date” in it. P.O. told the father that he would talk to him further about this, once the document was sorted out. [^7]
[303] After his meeting with the father, P.O. took a copy of this document, and sent it to the mother. He reported to her that the father had been in to see him. The mother then came in for another meeting herself, and showed P.O. different documents.
[304] The father testified that after Leef J. later ordered an increase in parenting time on September 3, 2020, he understood this to mean that he had “joint custody” with “equal and unfettered access”. That is not what Leef J. ordered, but she didn’t even need to, for the father to have access to information from the school, by operation of law. Nevertheless, the father emailed Leef J.’s Endorsement to P.O.
[305] The father said there was back and forth after this, but that P.O. was now willing to welcome him as a parent for T. But the father said that P.O. then received further direction not to share information with him, and so for a time he was only allowed to pick T. up and drop her off.
[306] P.O. did not recall whether he had been given further documentation. He did recall that the mother said that the father had the right to visit with T. and he was no longer banned from school property. But the mother did not want the father to have access to records.
[307] I was shown various emails between the father and P.O. wherein the father asked for access to an app called “see-saw” that the school uses for communication with the parents, the sharing of school photographs, and other mailings. The principal initially took the position that the father
was not entitled to this information, because he only had “visitation”. The principal wrote that he either required clarification from the parties, or from the Court. He also wrote that the school should not have to “pay for this legal ruling” and so he left it to the parents to “enlighten” him.
[308] P.O. testified that at some point the school started to send the father “classroom information”. P.O.’s impression was that the mother did not like that. P.O. recalled getting a note from the mother about what the father was allowed to have and not have. He said it was very “lawyerish” in its reading.
[309] Indeed, lawyers did get involved in this dispute. On December 14, 2020, the mother signed an irrevocable direction for the release of any “academic-related information” respecting T., that would also permit the school to communicate with the father respecting the education and wellbeing of T. But the father said that even then, this authorization did not fully work. When the mother learned that the father was getting access to the see-saw app, she got upset.
[310] On or around December 18, 2020, the mother wrote an email to P.O. trying to limit the authorization she had signed just four days earlier. She instructed P.O. that the father was only allowed to have T.’s report card, access to a teacher interview, and that he could make verbal inquiries of staff when picking T. up. The mother forwarded P.O. an excerpt of an email between herself and her lawyer at the time.
[311] On December 21, 2020, the father wrote an email to P.O. about a school project wherein
T. made two Christmas ornaments. In the same email, he also raised concerns about his interaction with the mother and his access to information. The father told P.O. of the “custodial schedule” that was to be in place as of December 21, 2020 under Leef J.’s Order. He also decided to try to react in kind, similarly to the way the mother had behaved.
[312] The father requested that the mother not be permitted on school property except for emergencies during his parenting time. He further requested that communication about T.’s academics and wellbeing be addressed directly to him, that all school staff allow and encourage T. to refer to him as the father, that he be provided with any and all communications respecting T.’s
academics and/or wellbeing, that he be provided with all report cards, and that he be included in school newsletters.
[313] P.O. responded to this and said that the mother came in to the school because she heard that the father was on the “see-saw” app. The mother wanted the father removed from that since the app does more than just provide “academic communication”. He explained that the mother sent an amendment to the “permission letter” and that she also had presented a letter from her lawyer about the privacy of communications from the school to her. He reported that the mother had instructed that she would need to read P.O.’s communications with the father. The mother also had instructed that the school staff calling the father “dad” was “non-negotiable and must not be done”.
[314] P.O. refused both sets of demands from both parents. He said he would follow directions if he got direction from his lawyer as to what the “custodial rights” allowed. P.O.’s email concluded with a warning that the parties were putting him in the middle of this dispute, and he admonished them that this had to stop.
[315] On January 13, 2021, in a highly unusual turn of events, the mother’s former lawyer had to write to P.O., to intervene to rectify the confusion that the mother created on December 18, 2020. He wrote that the mother had told him that P.O. had found the original authorization of December 14, 2020 to be unclear. If that was so, it was because of the mother’s actions. In any event, the lawyer explained what section 20 of the Children’s Law Reform Act provided in terms of the release of information. He explained that notices could go to the father, that the father could have direct contact with the school just as the mother does, that copies of report cards and other progress documents could go to the father, and that both parents could be invited to meet with T.’s teacher, although perhaps at different times.
[316] In this very unusual set of circumstances, the mother’s own lawyer also indicated that the mother’s letter of December 18, 2020 to P.O. was not written with his input, and was “not an accurate interpretation of the law nor the authorization” that had previously been prepared by counsel. The lawyer asked that P.O. disregard his own client’s communication and not rely on it.
The lawyer also asked P.O. not to share information that relates to the mother’s account with the school, with the father. The lawyer ended his communication by asking that if there were any further ambiguities, P.O. should contact the lawyer in writing, and copy the father’s lawyer.
[317] Based on this evidence, I find the mother acted more than once to block the father’s access to information and to participation at the school. She did so from the very beginning and she continued to do so in the child’s second year. This whole issue ought to have been sorted out by counsel much earlier. Even once there was a resolution to the issue via the first authorization in December of 2020, the mother created more confusion. There was no reason for her to have done this.
[318] While I find that the father attempted to escalate the situation by acting in kind, this has to be viewed in context. His request by email in late 2020, to exclude the mother from the school during his parenting time was more the reaction, albeit a still inappropriate one, of a frustrated parent.
(4) B’s. School Enrollment for the 2021-2022 School Year
[319] The conflict surrounding school enrollment was repeated again in a different fashion when it came time for B.’s first year of school. B started junior kindergarten during the 2021-2022 school year.
[320] By this point, this litigation was already well underway. The dispute made its way before the Court on the father’s motion. I note that this was the second motion he had to bring, the first one being before Leef J. on September 3, 2020, where she ordered the equal parenting schedule.
[321] The father testified that he tried to discuss this issue with the mother first, beginning in about February of 2021, but the mother wouldn’t engage with him yet again. The parties’ messages on Our Family Wizard between February 23, 2021 and March 13, 2021 reveal this.
[322] Indeed, the father twice asked about B. attending the religious school for the upcoming September. During those messages, he asked one time about T. being re-enrolled as well. The
mother’s responses, over a 2 ½ week period, were that she “had to give this some more thought” and she had to have a conversation with her (former) lawyer.
[323] The mother explained that her finances were tight, and so she wasn’t sure how to afford putting two children in school there. Yet on March 1, 2021, the mother signed another Statement of Affirmation, that was witnessed by D.P.
[324] The father’s motion was for sole decision-making responsibility, in part directed at empowering him to enroll B. in the same school. The motion was originally returnable on May 10, 2021. On April 23, 2021, the father served an Offer to Settle the school enrollment issue. I was not shown the Offer itself, but I was shown an email from the mother’s counsel dated April 26, 2021 saying that the Offer as worded was not acceptable. In the same email though, counsel for the mother said the mother would take steps to enroll B. in the religious school. The application that the mother completed for B. is dated on April 26, 2021. The mother also produced an email dated April 30, 2021, asking the school to confirm that B. was registered. That did not resolve the issue, as there was then an argument about whether B. would attend on a part-time or on a full- time basis.
[325] Leef J. adjourned the May 10, 2021 motion and ordered terms of the adjournment, including that B. was to be enrolled in the same school as T. The question of whether B. would attend on a part-time or on a full-time basis remained in issue.
[326] When the matter came back on before Leef J. on July 26, 2021, the parties resolved most of the motion on consent, including now that B. would attend full-time. While the mother criticizes the father for having brought this motion saying it was not necessary, on November 30, 2021, Leef
J. ordered the mother to pay costs of $14,500.00 to the father.
[327] And notably, in B.’s school application, the mother once again indicated that she did not want B. in pictures. Nor did the mother complete the information about the father. There is no signature of the father on the documents either. She said it was not her responsibility, to complete his portion of the document.
(5) The Conflict Surrounding the Children’s Hairstyles and Haircuts that Spilled Over Into the School
[328] The children’s school has a “picture day”. The Court heard evidence regarding what happened regarding T.’s hairstyle in advance of a particular picture day.
[329] D.P. recalled that T. had been dropped off, dressed in her uniform and ready to be photographed. D.P. was under the impression that the father had dropped T. off, although he did not see this directly.
[330] About twenty minutes later, the mother came to the school, took T. to the washroom, changed her and re-did her hair. While the mother’s counsel tried to suggest that it was the junior kindergarten teacher A.D. who had done T.’s hair in the first place, other evidence was not called to establish this.
[331] In regards to B., the father said that after the Covid lockdowns ended, he took B. to an expensive barber shop in the Oshawa mall to get “matching haircuts”. The father said that B. was “ecstatic”, but that the mother then told him that he looked “gross”.
[332] The father also said that there had been another occasion where B. had seen a lightning bolt shaved into another child’s hair. According to the father, B. said that he wanted this. The father took B. to get this lightning bolt shaved in. B. was excited about it.
[333] According to the father, when B. transitioned back into the mother’s care, the lightning bolt got shaved out. The father said that B. had “tears in his eyes that mommy made him get it out”. He also said that she then took B. to some “high end salon which is the only acceptable place apparently where our children can have haircuts”.
[334] The mother denied that she said B.’s hair was “gross” but claimed to have said to the child something to the effect of “oh you got your hair cut”. She also started laughing during this part of her testimony, and said that maybe B. had brought a bug, which prompted her to use the word “gross”. Regarding the lightning bolt, the mother said that B. cried about having the lightning bolt
in his hair. She claimed that B. thought it was going to wash out and didn’t understand that it was more permanent (until his hair grew out I suppose). The mother said she had to explain to him that it would not wash out. The mother said she booked an appointment to get B.’s hair re-done. She also said that picture day was coming up soon, suggesting that the lightning bolt should not have been put into the child’s hair to be memorialized longer term in the picture.
[335] I do not need to rely on either parent’s account of what the child allegedly said to him or her about these haircuts, or whether the child was happy or sad about having the lightning bolt. I find the father’s version of events is the more probable one without relying on any child statements through the parents. There is corroboration from A.D. about the lightning bolt incident. There is also the evidence of OCL clinician Ms. Bernatt.
[336] A.D. testified that B. came to school one day with the lightning bolt in his hair. She said he loved it, was so excited and couldn’t wait to tell her about it. A.D. testified that the next day, after B. went to his mother’s, the lightning bolt was gone. She also said that B. cried that he could not have the design in his hair any longer.
[337] B. talked to the OCL clinician Ms. Bernatt about the haircut incident. He reported that his mother did not like it and that made him feel sad. He also said that he did not like it at first, but then he did.
[338] What this shows is that B. is aware of the conflict between the parents over his hair. These hairstyle incidents are examples of the subtle, inappropriate messaging in which the mother engaged vis à vis these children.
(6) The Christmas Ornament Incident in December 2020
[339] Another example of the mother’s inappropriate messaging surrounded a school project where T. made two Christmas ornaments for her parents. During the trial, the mother minimized the significance of what she had done and mocked the whole thing calling it “the most expensive Christmas ornament ever”.
[340] The Christmas ornament incident occurred in the lead up to the Christmas holiday in 2020. Notably, this was the first Christmas holiday season after Leef J. ordered the shared parenting schedule. The mother was admittedly upset about Leef J.’s Order. She had already unsuccessfully tried to seek leave to appeal Leef J.’s Order by the time of this school project. What the mother did regarding the ornament followed on the heels of the mother telling T. that the father was not her father.
[341] The father testified about this incident, with reference to the email he had written to P.O. on December 21, 2020. In both that email, and during his in-court testimony, the father complained that on December 18, 2020, T. came home upset because she had made two Christmas ornaments at school, “one for mommy and one for daddy”. According to the father, T. apparently said that she was only allowed to write “Love T.” on his ornament, as opposed to “To Daddy”, whereas she had written “To Mommy” on the ornament for the mother. The father went on to say that T. was crying over the fact that the mother had been given both ornaments, and that the mother was refusing to let T. bring the one that she had made for him to his house. The father wrote to the school to ask why the mother was given both gifts, and why T. was not allowed to write “To Daddy”.
[342] In the responding email, P.O. responded that the mother had promised to give him the ornament, after first getting upset that the school had even allowed the ornament to be made in the first place. He wrote that when undertaking this class project, T.’s teacher had asked T. what she called the father at home, and that T. said “daddy”. He wrote that the mother wanted that removed from the gift. P.O. also reported, that the mother had said that T. had cried, because of the pressure that the father placed on her.
[343] According to the mother, T. only came home with one, blue ornament. The mother said that B. took it, and hung it on the Christmas tree, because he was “obsessed with the colour blue”. Apparently, T. then told the mother that she had another ornament that was red, and T. said that she would bring it home for the mother. The mother claimed that this happened on two different
occasions. The mother claimed that the blue ornament was addressed to the mother. She said that the red ornament just said “love T.”
[344] According to the mother, the father sent her a message on Our Family Wizard asking for a “gift”. She said that she didn’t know what he was talking about. She said that she offered to give him the ornament, but he said no. The mother pretended to be confused about the incident. She also said she thought the school was confused. According to the father, the mother made up a story on Our Family Wizard that she had no idea that the ornament was supposed to be for him, and that she thought it was supposed to be for B.
[345] The written communications between the parties reveal that on December 18, 2020, the father sent the mother a message asking the mother for the gift that T. had made for him. The mother responded, “Thank you for the information. I will inquire about this.” The father wrote again, asking what there was to inquire about, and who had the gift. The mother then responded further, and said T. came home with a “blue ornament” that she gave to her brother and a “red one” that she gave to the mother. The mother offered the father the red ornament. But as I set out above, the mother testified in Court that the blue ornament was addressed to her.
[346] Once again, I am not relying on either parents’ account of what the child said, or the reason why she may have been crying. I do not need to rely on any child’s statements. I also do not accept the mother’s evidence about this. The mother fabricated a different version of events. There is adequate other evidence to satisfy me that the mother interfered with the Christmas ornament in an inappropriate way.
[347] I rely on R.P.’s evidence. R.P. (T.’s senior kindergarten teacher at the time) testified that she undertook this project with the students in her class each year. R.P. testified that in situations where a child has separated parents, she will have that the child make two ornaments, one for each parent. R.P. said that T. did in fact make two ornaments.
[348] R.P. said she wanted to make sure that the father actually got the ornament, but she could not give it directly to him, because the project occurred on the last day of school before the
Christmas holiday and it was the mother who was to pick the children up that day. R.P. was concerned that if she gave the ornament to the father via the mother, the father would not receive it. R.P. decided to put the father’s ornament in T.’s cousin’s school bag. She explained that she did this because of the “daddy name” issue. As I have already explained and I will explain in more detail later in this Judgment, the mother had instructed persons at the school that they were not to refer to the father as T.’s father.
[349] R.P. said that the father’s ornament had T.’s name and the year written on it. The gift wrap tag said “To Daddy” along with a poem. The father’s ornament was blue.
[350] R.P. later learned from T., when she asked the children in her class after the holidays whether their parents liked the gift (something she said she always does), that her father did not receive the ornament. In cross-examination, R.P. also said that the principal took the ornament out of the cousins’ backpack. She said she assumed that he gave it to the mother.
[351] The mother’s counsel tried to suggest to the teacher that B. took the ornament in error because the ornament was blue, and B. likes the colour blue. In response to that suggestion, R.P. said that the ornament was wrapped, so the colour ought not to have been readily apparent to B., unless it was opened.
[352] The mother herself relies on this incident as an example of the father’s coercive and controlling behaviour because he did not tell the school in his email that the mother had offered him the red ornament. I place no weight on this argument. This is an attempt to obfuscate what she herself had done. I find that the mother was upset that T. had made a gift for her father. The mother confiscated the father’s ornament and then manufactured a story about B. having taken it. I find that she knew full well that the blue ornament was intended for the father. This is another example of her inappropriate messaging to the children and of her undermining the father’s relationship with the children.
(7) The Distribution of School Work
[353] The distribution of school work is yet another example both of parental conflict, and the mother’s subtle messaging. It is also an example of the mother’s inability to follow the rules set out by the school, which in turn posed difficulties for the school staff in their dealings with this family.
[354] R.P. testified that the duplication of school work became an issue when T. was in her class, namely the 2020-2021 school year.
[355] This is an issue that was enabled by the Covid-19 pandemic. R.P. testified that because of the pandemic, the children were doing virtual learning at home. Every two weeks while virtual learning was underway, R.P. created a binder of school work for the children in her class to work on during the next two weeks, and so on. R.P. testified that the first time the father had T. in his care during the week, he asked for a copy of the school work, because T. did not have a copy of the items that she was assigning in class.
[356] R.P. testified that T.’s school work got completed when T. was in her father’s care. But the mother would then send in the same work, completed again. R.P. sent an email to the parents asking that T. not have to duplicate the work assigned. The mother claimed that during this trial that she wasn’t aware this was an issue. She said she didn’t know what work the father was doing with T. She also said that T. was mostly just doing colouring, which she enjoyed. Yet by May of 2021, the parents were still arguing over Our Family Wizard about whether the mother was still duplicating the school work.
[357] The distribution of schoolwork was not only an issue respecting B. after he started school. A.D. testified that when B. was in her junior kindergarten class during the 2021-2022 school year, she sent out a folder on Fridays with work done by the student that week, school notices, permission forms and the like. A.D. asked the father if he was interested in having the folder too. A.D. testified that she tried to split the contents of the folders evenly between the parents.
[358] A.D. also testified that she works with her students on an “alphabet book” from the outset of the school year. Each week, she asks the parents to cut out three pictures of items that correspond to the letter of the week. The child then puts the items into the book on the following Monday.
[359] A.D. testified that she asked whichever parent had B. on the weekend to bring in the photographs for inclusion in the book on the following Monday morning. She said that the father did this regularly after his weekend, and she said that B. always recognized the photographs that the father sent. She interpreted this to mean that the father involved B. in completing this homework. While she explained that the mother also did this exercise when it was her weekend with the children, the mother additionally sent in extra photographs after the father’s weekends, too.
[360] At the end of the year, B. asked if he could give the alphabet book to his father, and whether a different class project could go to the mother. A.D. then wrote to the parents to explain how she intended to distribute the projects, equally between them. A.D. testified that the mother then wanted a photocopy of the alphabet book, but it could not be easily copied. A.D. had to defer this issue to the principal to handle.
[361] R.P. testified that the following year when B. was in her class for senior kindergarten (2022-2023), the principal put a stop to the confusion over the distribution of multiple school folders. Now, the school will only release one folder and the parents must decide who gets what work.
(8) The Class Helper Incident during the 2021-2022 School Year
[362] A.D. testified that each week she has one of the young children in her class act as the class helper for the week. She testified that she notifies the parents at the end of the week before when their child will be the class helper. A.D. testified that during the class helper week, the class helper gets to do “show and tell”. The expectation is that the child will present an item that corresponds to the letter of the week that she is teaching.
[363] Once again, the father happened to have B. in his care on the show and tell day, during the week that B. was the class helper. A.D. testified that the letter about which B. was supposed to present was the letter “J”. Although A.D. asked the father to organize show and tell with B., the mother came to the school with a bag of jellybeans.
(9) B.’s Birthday Celebration at School During the 2021-2022 School Year
[364] A.D. testified that she asks parents at the start of each school year not to make birthday celebrations too much of an event when their child’s birthday rolls around. She testified that she allows parents to bring in a small treat if their child wants to celebrate at school, but she limits this to “one bite cupcakes” that the child can then share with the class.
[365] The father had B. in his care for B.’s birthday in 2021-2022. As such, the teacher asked the father to bring in the cupcakes, which he did. The mother then came to the office with a box of decorated cookies. The mother’s counsel tried to suggest to A.D. that the mother had brought in these cookies, individually wrapped, for the other children to take home. A.D. denied that the mother told her this, or that the cookies were individually wrapped.
(10) The Exchange of School Uniforms Between Households
[366] While some of these examples are perhaps more subtle in nature, how the mother behaved respecting the children’s school uniforms was not, and she directly implicated the children in this inappropriate conduct. The father testified that after Leef J. increased his parenting time, he reached out to the mother about school uniforms. The father said that he had to eventually get his own uniforms. That is because the mother refused to allow the children to wear clothing back and forth between houses. The father said that the mother changed the children out of his clothes in the car after they came back from a visit with him.
[367] The mother told the Court some explanation about the father’s uniforms not being pressed around the time of picture day. She also said that the children get changed in the car regularly, such as “after going to the beach”. She said it was the father who was making an issue about not having the clothing returned.
[368] I accept the father’s version of events that the mother changes the children out of the school uniforms that they wear when coming from his house. This is also problematic messaging to the children. The mother minimized her conduct by talking about going to the beach. This reveals either a lack of credibility, or a lack of insight, or both.
(11) Whether the Children May Be Included in Routine Photographs Taken At the School, and in the Year Book
[369] In both children’s school applications, which the father did not participate in completing, the mother directed that she did not want photographs of the children taken at the school. Above, I indicated that the father’s decision-making about education would include the authority to decide this issue going forward, except for any promotional material. To be clear, there are two aspects to this issue, namely whether the children should be excluded from being photographed as part of routine school life, and whether they should be excluded from the school’s yearbooks.
[370] For example, R.P. testified that at the end of each year she makes a slide show of the children to give to the parents. She testified that she also plays the slide show at a graduation ceremony at the end of the year as well, but she was clear that this is not posted online.
[371] When T. was in her senior kindergarten class, R.P. was told that T. was not allowed to be in the slide show. Later when she taught B., she was told that he is not allowed to have photographs taken. R.P. testified that she did not have any other children in her class who were subjected to these restrictions. The result is that these children did not get to participate in the slideshow when in R.P.’s class.
[372] A.D. testified that she sometimes shares pictures and videos of the children with the parents via the “see-saw” app. She testified that she tried to respect the mother’s request not to take pictures of B. when he was in junior kindergarten. She said she tried to take photographs discretely so as to not make B. feel excluded, but B. ended up in some photographs.
[373] A.D. asked the father if he wanted some pictures of B., because she did not know whether the request not to photograph B. was a mutual one. The father indicated that he would like the
photographs. A.D. testified that when she later told the mother about this during a parent-teacher interview, the mother did not react well. In cross-examination, A.D. did say that the mother said that if she was going to send the pictures, she would like to be included.
[374] Neither child is in the school’s yearbooks as a result of the mother’s directions to the school. There is a factual dispute about whether the father deliberately ordered the yearbook in a particular year, knowing that the mother had already instructed the school to exclude T., for the purposes of then showing T., to undermine the mother.
[375] The larger issue before the Court is what these instructions reveal. The mother’s explanation for her instructions is that she is a private person and the children are young. She also claimed that the children did not consent to be photographed. She went on to raise concerns about the father’s line of work being dangerous, even though he has been in an administrative role for the entire time that these children have been at the school. In addition to refuting these arguments, the father also pointed out that the mother used to be on social media, and that there were pictures of the children on the mother’s sister’s Instagram account.
[376] There is no evidence that the children are at risk, if they are included in classroom photographs that get sent to a parent, an end of the year slide show, or a school yearbook. In my view, these instructions are more about limiting the father’s ability to participate in the children’s lives, and to have memorabilia later on. When they are older, the children themselves may enjoy having old yearbooks of themselves when they were children. I am empowering the father to decide this issue going forward, as part of his decision-making responsibility about education.
(12) Whether the Father’s Conduct at the School Was Part of A Pattern of Coercive and Controlling Behaviour
[377] I have already determined that the father behaved poorly once when he searched the mother’s car trunk, and once in December of 2020, when he sought to exclude the mother from the school. His actions had to be contextualized to understand why he behaved in this fashion. A separate and larger argument raised by the mother, is that the father provided misinformation to
persons at the school and otherwise turned them against her. Later in this Judgment, I address this when discussing the competing arguments about family violence more fully. Here, I will just express my conclusion, that if the mother perceives she has a tense relationship with school personnel, that is a consequence of her own actions.
(13) Conclusions Respecting Decision-Making Over Education
[378] In conclusion, I find it is in the children’s best interests that their father have decision- making responsibility over education, albeit with some limits, for the following twelve reasons:
(1) When it came time to enroll T. in school for the first time, the mother refused to communicate with the father and then excluded him to the point that he thought that T. was going to a different, public school;
(2) The father only found out otherwise after T. was not there on the first day and when he later went into the mother’s car trunk on the second day of school. While this is problematic behaviour on his part, there was context to why he did that, which I take into account;
(3) The mother’s interactions with and directives to staff at the school, often misleading, created a significant amount of conflict between the parents;
(4) The mother caused considerable chaos at the school. Various school staff members were drawn into the parental dispute to manage the issues as they arose. This took time away time from their busy days and teaching duties. P.O. testified that he had never experienced anything of this ilk. These parents have caused the school to modify the manner in which school work will be sent home not only for them, but for other families in the future;
(5) Although the father issued one inappropriate instruction (that the mother was to be excluded from the school during his parenting time), again there was context to why he acted in this manner;
(6) The mother continued to demonstrate an unwillingness to discuss significant educational issues with the father over time. This continued when it came time to enroll
B. in school;
(7) The mother involved the children in her chaos at the school and surrounding school issues;
(8) In so doing, the mother has sent inappropriate undermining messages to the children through her actions, some subtle, and others less so;
(9) Once the father was actually allowed to participate at the school, he developed a good working relationship with teachers and the school administration;
(10) The father has demonstrated an ability to consistently follow the directions of the children’s teachers in relation to the children’s school work and other classroom events and activities. Even though these issues on their own may be seen as minor in nature, the mother has not been able to follow directions, and in the process has demonstrated how she views the father’s role in the children’s lives;
(11) The father is the parent more likely to work cooperatively with those at the school going forward. This will reduce any further administrative hassles that the school experiences involving this family; and
(12) Finally, for the reasons elaborated below, I find that the father did not turn the school staff against the mother as she alleges.
F. Findings and Conclusions Respecting Decision-Making About Health
[379] The parties have also had an inordinate amount of conflict about the children’s health care, particularly in relation to T., but also at times in relation to B. Throughout their testimony, each of the parties talked about various children’s health issues that have arisen from time to time, which parent dealt or didn’t deal with those issues, the reason for that, a lack of communication about health, why a certain status quo may have been in place, and who did or didn’t act to cause this
conflict. The Court received and reviewed a number of medical records, messages between the parties on Our Family Wizard, correspondence between counsel, and Endorsements of this Court emanating in part over the parties’ litigation over health issues at the interim stages.
[380] While the medical records before the Court are some evidence of the children’s health needs, it is notable to this Court that over the 16 days of trial time that they expended to submit vast amounts of evidence, neither party called a single health care professional to testify, so that the Court could actually hear first-hand what is actually being recommended for T. in particular. This is notable not only in relation to the lack of parental communication about health and the consequences for the children as a result, but also because the parties also have a fundamental difference of opinion as to how T.’s health issues should be treated. The reasonableness of the parties’ positions on this point must be measured against what the health care professionals actually recommended.
[381] Like with education, the Court concludes the father is best suited to meet the children’s health needs. Except in emergencies, the father shall take responsibility for booking and taking the children to their health appointments. The father is to give the mother sufficient advance notice of these appointments and the mother may attend. There is to be no parental conflict at any appointments. In the event of a dispute about a health care decision, the father may decide.
[382] I make these Orders based on the following evidence and findings of fact.
(1) The History of T.’s Bowel Issues and the Dispute About the Use of Laxatives to Treat Her
[383] Both parties agree that T. has suffered from a medical condition with her bowels since she was an infant. The father testified that she has a “distended bowel diagnosis”. The father said that
T. sometimes goes several days without being able to go to the washroom, and that she has painful experiences around that. He said that she has been on a regime of a laxative called PEG, and she is under the care of a pediatrician.
[384] The father testified that T. had to have a tube inserted and fluids pumped in early 2016 when she was around 1 years old. He said that she was given an enema in or around 2017 or 2018, which was distressing for her.
[385] The mother said that T.’s bowel issues started when she was “really small”. The mother agreed that the child had been hospitalized in January 2016, because of constipation. She testified that health care professionals have given her a tube, administered PEG and enemas, and that ultrasounds and X-rays have also been done.
[386] The mother said there was a period of time that T. took a laxative. But for years, the mother has been concerned that T. would become dependent on laxatives. The mother decided long ago that laxatives were not a long-term solution. She remembered having consultations “with a bunch of people” to see if there was something that she could do differently. For example, the mother said that when T. was younger, she introduced solid foods slowly, to see if that was going to create an issue for T. T. was also seeing a chiropractor.
[387] The mother’s preferred course of treatment is to treat the issue naturally. The mother said she has given the child a probiotic for years, as well as supplements and vitamins, and a high fiber diet with plenty of fluids. Although she said that the child had in fact become dependent on PEG and that she was able to find these other ways of treating T. “in consultation with [unnamed] medical professionals to manage any potential issue without needing to resort to that”, the mother did not call medical evidence to this effect. The Court did not hear any evidence from any health care providers, the specific advice she received from these people, or even what literature she relied upon to formulate these opinions. Notably, the documentary health evidence before the Court, is almost entirely consistent, that the use of PEG does not create a dependency.
[388] The mother claimed that when T. got older, she began to have these bowel issues less often. At the same time, the mother also testified that it was easier to manage the situation when it was “just me”, linking more recent manifestations of the child’s bowel issues to the parenting schedule that was put into place, post-separation. Still, the mother said she would get stressed out when T. did not go to the washroom, given her hospitalization as a baby that she did not want to see
repeated. She said that there had not been any other occasions where T. required hospitalization like that when T. was younger, until the father took T. to an emergency room in May of 2022.
[389] According to the father, there has been a lot of disagreement between them over whether to administer PEG, because it caused T. to have diarrhea. The father said that the mother shut him out of doctor’s appointments after he tried to get her to listen to the doctors, and not to override their advice about the administration of PEG.
[390] The disagreement over the use of PEG began even before the first separation. The father pointed to text messages between the parties from November of 2016, that reveal the mother’s attitude back then about this issue. The following exchange occurred:
Mother: It is 6om yet.(sic) One more diarrhea diaper and I’m leaving her in it. No joke. Way to much peg I’ve been giving her half a teaspoon wtf have you given her?
Father: You told me to give her 1 tsp Mother: Wtf no way. Half.
And even that I think is too much. I know the doctors are saying she needs more but fuck that I’m the mum I’ll do what I was doing.
Father: Ok I can change to half. Didn’t the doctor say to do 4 tsp? Mother: Something like that but there’s no fucking way.
I know she was full on the X-ray but she goes twice a day and that’s perfect. I ‘m not getting caught up in their shit. Literally.
Father: Ok. But didn’t the doctor say she needs to literally have diarrhea for the next year so her bowls (sic.) shrink? Or else she’ll end up with problms later in life?
Mother: I think that’s a little extreme. I’m not okay with all this.
Father: Ya I hear you, but we definitely gotta be careful. Don’t want to cause problems for her down the road.
Mother: [S.] I’m not an idiot.
Don’t give her a full teaspoon its way too much. I’ve got this managed I’ve been dealing with it her whole life.[^8]
Father: I wasn’t implying you’re an idiot. I was just trying to discuss the care and well being of our daughter together as a team. But all good, I know my place.
Mother: Simple request it doesn’t need a discussion just please lower her dose it’s too much.
Father: Yes dear.
(2) The Status Quo Regarding Decision-Making Over Health
[391] It is clear that it was the mother who managed the children’s health before and after the separation. The father conceded during his questioning on October 17, 2022, that he had not taken
T. to a medical appointment on his own, prior to May of 2022. He blamed that on the mother’s controlling nature, as opposed to any disinterest or abdication of parental responsibility.
[392] The father said that he started requesting information from the mother after the equal parenting schedule that Leef J. ordered on September 3, 2020 kicked in, but the mother refused to give him the relevant information he needed. The father testified that in January 2021, the mother sent the children on a visit with a Ziploc bag containing pills and vitamins for each of the children.
The father said he tried to get information from the mother about what these were for, but it took over a month for her to provide the details of only six of the eight items in the bag.
[393] Another example is that on January 8, 2021, the father asked the mother what T.’s “family doctor and/or specialist” recommended to relieve the bowel discomfort. The mother said that T.’s bowel management had been finessed over the past six years, and that she was not currently under the supervision of her doctor. She said the doctor concluded the mother had the matter under control. The mother told the father to consult with her, so that she could guide him.
[394] The father sent another message asking for a detailed explanation and treatment options that she uses on a case-by-case basis and all medications and natural remedies. He said he would confirm with the doctor. The mother then said “asked and answered”.
[395] What the mother told the father was not true and incomplete. There were in fact a number of health appointments about which the father had not been informed. During this time frame, the father said that T. continued to experience discomfort. The father said that as time went on, T. would show up severely constipated, she would say that she had not had any bowel movements while at the mother’s home, and that the mother had given her things like suppositories. The father said he went to the pharmacy, and an [unnamed] pharmacist recommended PEG.
[396] Meanwhile, the mother did not actually provide the father with any information, after having just told him to consult with her in the first place so she could guide him. And as the father’s counsel pointed out during cross-examination with reference to T.’s medical chart, the mother had just the very day before, taken the child to see the family doctor, Dr. W., regarding T.’s bowels. To Dr. W., the mother said the cause of the constipation was the fact that the child had just been with the father and so she had been out of her routine. The mother said that she was concerned about supplements and dietary changes.
[397] When this fact was put to her in cross-examination, the mother retorted that the father had only asked her if T. was seeing a specialist. Not only was that not true (in his message the father asked about the “family doctor and/or specialist”), but this was splitting hairs.
[398] There were more appointments in February and March 2021 about which the father had not been informed. Although she said to the father that the child did not need a laxative, the mother reported to the doctor that she had administered a laxative at the February appointment.
[399] In April of 2021, there was an appointment with Dr. K., the child’s pediatrician. The father was not made aware of this appointment either. As the mother attended alone with the child, it was either the mother or the child herself who supplied the information upon which Dr. K. relied. Dr. K. wrote a note to his chart in which he said that T.’s bowels were generally controlled by diet. He said that there was no encopresis and stools most days. He wrote “sometimes hard”. But he also wrote that the mother was concerned that PEG had a habit-forming potential. He wrote that he informed her that “generally, very little evidence for that.”
[400] The mother gave different excuses for her non-communicative behaviour towards the father. She said multiple times during this trial that she had a “really steep” or a “huge” learning curve in the beginning. The mother claimed she didn’t know what the expectation was in the beginning, because the father was not involved before but things changed after the Court case was underway. She said that she had to hire someone to help her clarify that. She also said there were probably messages on Our Family Wizard that will show she made a mistake.
[401] Yet her non-communication continued to be an issue over time, even after she spent tens of thousands of dollars on a parenting coordinator to get coaching to overcome the “learning curve”. At other times in her evidence, she said she couldn’t remember everything that she informed the father about.
(3) T.’s Trip to An Emergency Room in Peterborough In May of 2022
[402] This set the stage for an escalation that resulted in T. being taken to an emergency room in a Peterborough hospital on Saturday, May 7, 2022. Leading up to this weekend, the father said that starting in or around March or April of 2022, T. was sporadically vomiting after eating. He said that she continued to be severely constipated while with him. The father said that the mother claimed not to know what the father was talking about when he raised the issue with her, and that
T. was having “severe bowel movements” at her house. Indeed, there were numerous Our Family Wizard messages about this. The father’s counsel pointed out through her cross-examination of the mother, that T. had been sick, the father had been trying to find out what was wrong, and the mother had not been transparent.
[403] In regards to the father taking the child to the emergency room on Saturday May 7, 2022, the mother testified that the child had not required medical attention for her bowels in this fashion for a long time, and argued that the father manufactured this whole incident, so that he could create grounds to bring a motion to seek sole decision-making responsibility. She also criticized him for taking the child to the hospital in Peterborough, where T. had never been before. The father took the child to the hospital in Peterborough because he was camping with the children in the area.
[404] The father said that once at the hospital, it was determined that T. was severely constipated and that had caused the vomiting. T. was given an X-ray. The X-ray report reveals the following:
The bowel gas pattern is nonobstructive. There is moderate to large volume of stool throughout the colon. There is a large rectal stool ball for which disimpaction may be necessary. No obvious free air. The osseous structures are unremarkable.
[405] While the child denied being in pain and said she was feeling well at the time of discharge, the hospital discharge report also states that the father had reported, that T. had several episodes of vomiting over the past month. He reported that she had long had issues with constipation, and that she was on Restoralax, but more recently in the last few years she had been able to manage with diet. The father reported that T. had not had any bowel movements in several days, and he said that conflicted with the mother’s reports of daily bowel movements. The father also reported that the child’s appetite decreased over the last several months.
[406] The father testified that the emergency room doctor prescribed a hefty regime of PEG to “clear her out”, to be followed by a maintenance regime of PEG. Indeed, the discharge report said that the “CHEO handout” was given. The report also states that the doctor explained that if constipation is bad enough it can cause nausea and vomiting. The report states that the doctor
reviewed the handout with the father and recommended consistent use of Restoralax to eliminate the issue. The doctor recommended a return to the emergency if there was increased pain, persisting vomiting, fever, abdominal pain, or the absence of bowel movement
(4) The Events Following T.’s Trip to the Emergency Room
[407] This hospital trip triggered a chain of events that saw the parties running in and out of doctor’s offices over the next few days, as each tried to get reports and clarification reports about the use of a laxative, and while this matter spiralled out of control and headed back towards this Court.
[408] To begin, the father did not tell the mother that he was taking the child to the hospital before he took her there, but in cross-examination, the father said that he told the mother about the emergency room visit immediately after it happened. There is an Our Family Wizard message to this effect on May 7, 2022. Although he admitted that he did not tell her beforehand, he did say that he “reached out the night before” to discuss urgent symptoms.
[409] Next, over Our Family Wizard on May 7, 2022, now after the hospital visit, the father wrote to the mother and accused her of lying about T.’s health. He said he would withhold T. on Sunday, May 8, 2022 (Mother’s Day), unless the mother agreed to follow the doctor’s advice. The mother wrote, “I confirm I will be following the Doctor’s orders. I will be expecting the children at 2 pm tomorrow. I have asked three times today to have a call with T. What time can I expect to hear from her today?” The father responded that he was not comfortable with a phone call, and that he would drop the child off. He then confirmed in writing, that he gave the mother the instructions for the PEG, and he asked her to confirm that she would send the child to school on Monday, with the required dose.
[410] The mother instead responded by contacting the emergency room at the Peterborough hospital to complain about the father. During that call, the mother ended up having a discussion about T.’s condition with a doctor. According to that note, the mother reported that the father was not T.’s father. The doctor wrote that he was not aware of any conflict/family issues on initial
presentation. Nevertheless, he wrote that his interpretation of the X-ray was still that there was a large amount of stool in the colon, which may require disimpaction. When the mother raised recent issues with diarrhea, the doctor explained that there can be a phenomenon known as “overlflow diarrhea” when a child is constipated. Although the mother was clearly upset about the whole situation, the doctor repeated that it would be prudent to use the CHEO protocol. The doctor also wrote that since the child was apparently being followed by a pediatric gastroenterologist, perhaps that would be an appropriate place to follow up, with a return visit to a local emergency room for “sedation and disimpaction” if there were issues with the protocol or ongoing constipation. He told the mother about how to contact the hospital to “formally clarify and flag T. if there are further issues regarding consent to treatment/care.”
[411] Some of this particular dispute between the parents centered around the manner in which the emergency room doctor or someone at the hospital had completed the CHEO form itself. The form recommends the administration of a laxative in two steps. In step one, called “initial bowel clean-out”, whoever completed it checked off the box indicating a dose for a child of more than 50 kgs was to be administered for three days. Step 2 on the form is called the “retrain the bowels and prevent constipation” stage. Whoever completed the form checked off the box indicating a dose for a child of more than 17 kgs was to be administered. There are also recommendations about diet, physical activity and bathroom routine on the form.
[412] In cross-examination, the father admitted that T. weighed about only 50 pounds (about 22 kgs) at the time, far less than the 50kgs box checked off for step one on the form. The mother’s counsel suggested to the father that the emergency room doctor had made an error respecting the first dose. The mother later testified too, that she was concerned that the prescription contained a mistake, and that the dosage was too high. This is not something that this Court can conclude without actually hearing from the doctor himself, who neither side saw fit to call. Perhaps the doctor thought that a higher dose was required, notwithstanding the child’s weight, or perhaps it was an error. If it was an error, then there was also no evidence about the medical consequences, if any, from this child taking too great a dose. In any event, all this is somewhat besides the point, since the mother is opposed to laxatives, whatever the dose.
[413] The mother did not give the child PEG when T. went to her home on Sunday, May 8, 2022. The mother claimed that T. was having “extreme diarrhea and accidents” as the reason for this and so she took her to see a doctor right away. But in cross-examination, the mother admitted that she went out to a restaurant with T. for dinner that evening, despite the “extreme diarrhea”. When confronted with this, she said they had to leave the restaurant early. She also denied having taken
T. “hiking” as the father’s counsel suggested, and characterized this particular outing as a mere “walk”.
[414] On Monday, May 9, 2022 the mother took the child to the doctor’s office. Although in cross-examination the mother’s counsel was critical of the father for having taken T. to see a doctor in Peterborough who was not familiar with the child, that is exactly what the mother did on May 9, 2022. The mother took T. to see a walk-in doctor named Dr. V., not the child’s usual doctor, named Dr. W. As a result of this visit, Dr. V. advised that T. was no longer to receive PEG.
[415] The mother had Dr. V. write a note that day, which said the following: To whom it may concern,
Per the information provided on today’s exam, the patient can stop PEG treatment for constipation. She can continue with high fiber diet and good hydration.
Thank you kindly, Sincerely,
Dr. V.
[416] Without hearing from Dr. V., the Court does not know what information was provided that led to the creation of this note. In any event, the father responded to this act, by going into the doctor’s office himself after he learned about it. He testified that Dr. V. had not been made aware that there was an X-ray, and that as a result of his conversation with the doctor, there was new advice. This too got recorded in a note, that T. could continue with the PEG treatment, and Dr. V. confirmed that PEG does not cause a dependency.
[417] Dr. V. wrote the following in a further note dated May 10, 2022: To whom it may concern,
Per patient’s father, the patient was in ER on Saturday with vomiting and was diagnosed with severe constipation based on X-ray findings. I do not have X-ray findings. Per information provided on today’s exam, the patient can continue PEG treatment on maintenance dose of 2/3 to 1 scoop a day and adjusted by1/3 to ½ school every 2-3 days until patient has 2 soft bowel movements a day and continued for 2-3 mo. PEG does not cause dependence for bowel movement. She can still continue with high fiber diet and good hydration.
Thank you kindly Dr. V.
[418] As Dr. V. was not called, the Court does not know exactly what the father said to her leading to the creation of this second note, although Dr. V. did indicate that the father told her about the X-ray, and the Court has the Peterborough hospital documents relating to this incident.
[419] The child spent the latter part of Mother’s Day weekend in the mother’s care as agreed. The evidence was that T. vomited again on the Monday at the end of this weekend, as she was returning to her father’s care after being with the mother.
[420] In the end, the father said he was going to bring a motion. It was not immediately brought. Counsel instead agreed to defuse the situation through an agreement that the parents would go to see Dr. W. together, to get a common set of medical advice. The agreement through counsel that was struck, memorialized in correspondence dated May 11 and 12, 2022, was that this was to happen on May 12, 2022 at 10 AM.
[421] Regrettably, it seems that Dr. W. was not available on the morning of May 12, 2022 at 10 AM. The father arrived first. At 9:38 AM, the father wrote to the mother to advise her that Dr.
W. was not there, due to illness. He let the mother know not to come in, and then he left.
[422] The father said that later that day, he received a message from the mother, that Dr. W. would be in fact be in, and that she was taking T. to see her. Specifically, at 1:57 PM, the mother wrote “Dr. W. is in the walk-in clinic this afternoon. I will pickup T. from school and head over to see her Doctor. You are welcome to attend.”
[423] The father said he left and drove to the doctor’s office, only to learn that by the time he got there, the mother had attended an appointment on her own.
[424] After this appointment, the mother’s lawyer then sent a confirming email to the father’s lawyer on May 12, 2022 at 3:13 PM, saying “it seems that T. was taken in very quickly by Dr. W. who examined her and spoke with her in some detail. Regrettably, Dr. W. took T. in before your client arrived at the clinic.” Mother’s counsel provided a letter with Dr. W. “recommended treatment plan”, and said that the father was welcome to speak to Dr. W. directly.
[425] Dr. W. wrote the following on May 12, 2022, after the mother’s solo visit: To Whom It May Concern:
After speaking to T. today in the clinic and finding out she had soiled her pants while at home with her mother due to PEG treatment while at school and at dad’s house. I am recommending as T.’s family physician since 2018 that she be given PEG 1 capful once a day only at her dad’s house not at school as T. is afraid of having an incident of diarrhea while at school. The goal should be to have one bowel movement a day since she has history of chronic constipation, if she starts to have more frequent loose stools then I recommend giving PEG every other day or every two days. The mother may continue treating constipation with probiotics and increased fiber diet as long as T. continues to have one bowel movement once a day in her household. The best plan is to increase fiber naturally so they are not dependent on using laxatives.
I have spoken to T. today and I believe all parties need to understand that she is afraid of not just constipation but also more embarrassingly having uncontrolled diarrhea secondary to too much PEG or stool softeners.
[426] During this trial, the father accused the mother of not telling him about Dr. W.’s return to the office, until after she had already removed the child from school, and when she was about to go into the appointment. I do not know this from any document, as Dr. W.’s note from that appointment is not time stamped. But the mother’s examination-in-chief on this point was evasive. She said “maybe S. went there first and found out that she was not there”, and “I don’t have the messages in front of me”. Without explaining how, she said that she found out that Dr. W. would be in later on in the day, and she said that she sent the father a message to let him know. She admitted that the father was not there during the appointment, but said, “well I told him about it”. She said by the time the doctor saw them, S. had not yet arrived “I’m assuming”. She claimed to have told the father immediately upon learning that Dr. W. was going to be in the office. She did not know how long after that she brought T. to the doctor’s office, but reported that “the school is not far from the doctor’s office.”
[427] In response to a very direct question from the Court about whether she asked Dr. W. if she would agree to wait for the father, the mother said she “couldn’t remember”, and she “couldn’