G.R.G. v. S.G., 2023 ONSC 6162

OSHAWA COURT FILE NO.: FC-19-1710

DATE: 20231031

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

G.R.G.

Applicant Father

– and –

S.G.

Respondent Mother

Dale Turner, for the Applicant Father

S. Lawrence Liquornik, for the Respondent Mother, but on a limited scope retainer

HEARD: September 28, 2023

REASONS FOR DECISION

PART I: NATURE OF THIS MOTION

[1] This case concerns a 4 year-old boy named A. He has resided with his mother solely since the parties’ separation. The separation occurred shortly after A.’s birth.

[2] The father has had minimal parenting time with A. since the separation. The parenting time that the father has been able to have, has been interrupted, and obstructed. There is a long history in this case, of this Court making orders for the father’s parenting time, of the mother refusing to follow them, and of this Court attempting to monitor and manage the mother’s compliance, without much success. I have counted approximately twenty Orders or Endorsements, that have been made over the lifespan of this case to date, by five judges other than myself, prior this ruling.

[3] The father first had some supervised visits pursuant to two early consent Orders of this Court, although not without much difficulty getting those visits established. After this Court lifted the supervision on April 1, 2022, the father’s unsupervised visits have been followed by repeated complaints from the mother of physical and sexual abuse, including even a complaint that the father “drugged” the child. The various complaints led to investigations by the Durham Regional Police Service (“the police”) and the Durham Children’s Aid Society (the “Society”). Health care professionals have also been involved by the mother, and occasionally by the police or the Society, to examine the child. Consequently this young boy has been subjected to three different examinations of his anus or his genitals over the course of the investigations.

[4] The situation has now deteriorated to the point that the father has not seen A. at all since December of 2022. In the father’s view, no orders short of a reversal of the child’s primary care will ensure that he is able to have a relationship with this child.

[5] The mother “emphatically refute[s]” the father’s allegations that she purposely breached this Court’s orders, that she contrived allegations, that she is a “parental alienator” or that she is ungovernable. The mother’s reasons for not allowing parenting time have changed over time. She has relied on the Covid-19 pandemic, the suitability of four different supervised access centers or private supervision companies, and after this Court lifted the requirement for supervision, the abuse allegations. The mother also began to rely on the fact that the child has special needs as a basis to restrict the father’s parenting at that time.

[6] The mother believes that the abuse occurred, despite the various investigations and medical interventions. She also refers to it as both “inconclusive” but still “possible abuse” in her affidavit and during submissions. She says that because the abuse cannot be conclusively ruled out, the Court should exercise caution, without offering a realistic proposal as to what would happen next in this case.

[7] In regards to the child’s special needs, at the motion on April 1, 2022 that resulted in the requirement for supervision being lifted, Lack J. characterized the mother’s evidence about these needs, then before the Court, as “vague and undocumented”. It is true that since then, there is now an assessment from a developmental pediatrician from the Grandview Children’s Centre dated June 15, 2023 (the “Grandview Assessment”), and a further Pediatric Review Report dated September 20, 2023 that the mother obtained before swearing a reply affidavit. The child has ADHD; he does not have autism spectrum disorder. The mother says that the child’s special needs are not yet fully explored and will be further fleshed out over time. In any event, the mother also accuses the father of minimizing the child’s special needs, and consequently says the child is at risk in his care for this reason too. The father has been excluded from the assessment processes that resulted in these reports.

[8] The maternal grandparents, who live in the same apartment building as the mother, are involved in the conflict and the making of allegations. For example, the grandmother has accused the father of physical assaults on her and on the child. Both grandparents have accused the father of sexual abuse. The grandfather has accused the father of a different, but equally disturbing form of sexual abuse from the mother’s earlier allegations, and of drugging the child. The grandmother has called the father vile names. So did an anonymous caller on behalf of the mother during a report to the Society. The grandmother has launched a “go fund me” internet page, looking for funding to fuel this litigation, for the purpose of “saving” the child.

[9] In this context, the Court heard a long motion brought by the father, and cross-motion by the mother, for a new temporary parenting arrangement. In his motion, the father seeks orders that he have sole care of A., that he be permitted to enroll the child in a particular school near where he resides, and that the mother have supervised parenting time, twice per week for four hours for the next 90 days. After 90 days, he would have the Court order unsupervised parenting time on alternate weekends. He also asks that the mother be required to submit to a psychological evaluation.

[10] The mother submits that there should ideally be a custody and access assessment pursuant to section 30 of the Children’s Law Reform Act. But the mother is not actually asking the Court to order this. She did not propose anyone to do the assessment, provide his or her consent or curriculum vitae, or provide any suggestions as to the scope of the assessment. That is because the mother said she cannot afford an assessment, even though she says there should be one.

[11] She then told the Court it should appoint the Office of the Children’s Lawyer (the “OCL”) as an alternative, although the OCL is less ideal. When pressed by the Court, the argument then changed, and mother’s counsel suggested that the Court should recommend a section 30 assessment in this ruling, and he would encourage her to find the funding for it.

[12] The mother’s Notice of Motion otherwise seeks an order that the father’s contact with the child revert back to supervision, this time twice per week for three-hour intervals. Through counsel, the mother promises to cooperate this time if the Court orders this. Counsel also suggested the Court could place the mother on a “short leash” and bring the case back on to monitor her compliance. The Court observes this already occurred in the past, multiple times, and that did not work.

[13] The Court agrees that it should exercise caution when it is asked to change a status quo or to vary a temporary parenting order on a temporary basis, prior to trial, particularly in a case like this one, where the father’s parenting time with the child has been limited, but where the father is asking for a significant change and primary care. Still, for the reasons that follow, the Court intends to Order most of the father’s requests for relief. I find this to be a case, where there are both compelling circumstances, and where it is in the child’s best interests, for the Court to act. Based on the record put before me, I find the risks of the child remaining in the mother’s care outweigh the unknowns associated with the father’s requests for relief.

PART II: BACKGROUND INFORMATION ABOUT THE PARENTS

[14] The parents were married on March 17, 2018. They were married for a little over one year before they separated in August of 2019. A. was 8 months old at the time. The father says he endured physical, emotional and verbal abuse during the marriage. The mother says it was the father who was abusive. The father launched this proceeding later in 2019. He says he had to do so, as the mother threatened him that he would never see the child if he left the relationship.

[15] The father works in a hospital as a technician. His hours of work are Mondays to Fridays, from 8:00 pm until 4:00 pm. He says that his employer is understanding and accommodating. He says that he is able both to take time off and to rearrange his work schedule, to manage any parenting responsibilities that flow from an Order of this Court on this motion.

[16] The father lives with his parents, who can assist him respecting any parenting responsibilities that this Court may impose. The child’s paternal grandfather is retired; the paternal grandmother used to work in the health care field for many years, but left during the Covid-19 pandemic. She now works part-time in a retail store.

[17] The mother lives alone with A., although the maternal grandparents live in the same apartment building. The mother used to work in the same hospital as the father. She left that job when she went on maternity leave, in September of 2018. Although she is now assigned to work in a different role within the hospital, the mother is on leave. She says she was unable to go back to work because of A.’s “special needs and problematic behaviour”. The records before the Court do reveal that the mother had returned to work for a time though; for example the mother was at work when one of the allegations about the child being drugged was levelled by the grandparents.

[18] The Court inquired during submissions when the mother plans to return to work. There is a discussion in the Grandview Assessment and the Pediatric Review Report about the child going to day care, and otherwise there is evidence before the Court about different options for this child’s education and socialization. The mother advised that there is no clear date for her to return to work. The mother also failed to provide the Court with concrete details about the child’s place on wait lists for day care.

PART III: THE PRIOR PROCEEDINGS AND THE EVENTS THAT HAVE TRANSPIRED DURING THE PROCEEDINGS

A. The Case Conference Before Rowsell J. on February 21, 2020

[19] This matter first came before the Court, for a case conference before Rowsell J., on February 21, 2020. Rowsell J.’s Endorsement states that parenting and support were reviewed.

[20] The parties entered into their first, Consent Order that day, that the father would have supervised parenting time with the child at “Side by Side” weekly on Fridays, for two hours. In his affidavit sworn July 26, 2023, the father says that he was agreeable to have supervised parenting time at any time during the week, repeating his employer’s ability and willingness to accommodate him. The father says he agreed to pay for all of the costs of supervision too, and he continued to pay the full amount of the mother’s rent, as she was on maternity leave. The father also completed a co-parenting course through the John Howard Society at around this time.

[21] The father had a single supervised visit with this child in March of 2020, after the Consent Order. The father says that the mother cancelled some visits after that due to the child’s illness,[^1] and then the Covid-19 pandemic struck. According to the father, Side by Side was closed between April of 2020 until August of 2020 due to the pandemic.

B. The Settlement Conference Before Rowsell J. on September 10, 2020

[22] The next event in this case was a Settlement Conference before Rowsell J. on September 10, 2020. According to the father this conference occurred around the time that supervised access centers had re-opened, but the mother would not agree to return to Side by Side. He says she “took a revised position of no parenting time”.[^2] Rowsell J. granted the father leave to bring a motion on October 26, 2020, to compel compliance with the existing order for supervised visits.

[23] The father instructed his counsel to send a proposal to the mother to resume visits at Side by Side after this conference, in the hopes of avoiding the motion. The father says he proactively offered to abide by Covid-19 safety protocols, as the mother was then expressing her opposition to visits based on the state of the pandemic. According to an email dated September 30, 2020 sent from someone at Side by Side to the father’s lawyer, Side by Side then withdrew its services to this family “based on the ongoing emails we have received from the child’s mother”.

C. The Second Consent Order of October 26, 2020

[24] The October 26, 2020 motion was not argued; the disagreement surrounding the resumption of supervised parenting time settled. On October 26, 2020, Fryer J. made a temporary without prejudice Order, also on consent, that the father would now have supervised access at the YMCA supervised access center, once per week for two hours. The parties were ordered to complete intake forms within 48 hours of receipt of those forms. The parties agreed that parenting time would be reviewed at the next court attendance.

[25] The father completed his intake with the YMCA on October 21, 2020, a few days before the settlement was incorporated in Fryer J.’s Order. The father says that the mother did not then complete her intake for almost one year, despite the clause in the consent, that they were both to do so forthwith.

D. The Second Settlement Conference Before Rowsell J. on November 20, 2020

[26] The next event was a further Settlement Conference before Rowsell J. on November 20, 2020. Rowsell J.’s Endorsement states that an alternate suggestion was made for a location for supervised access, and that the lawyers agreed to investigate the facility and its Covid-19 protocols. Rowsell J. also wrote, once again, that the father could obtain an urgent motion date from the trial coordinator given that he had not “seen his young son since March of this year”. Further, he indicated that a motion could be brought for an expansion of parenting time after three months of supervised visits. Lastly, he wrote that the next date should be a trial scheduling conference, when court operations permitted,[^3] but the parties could also have a further settlement conference before him, if they wanted it, and if counsel thought that would be helpful.

E. The Mother’s Refusal to Comply With the Second Consent Order for Supervision

[27] Although Rowsell J.’s Endorsement of November 20, 2023 does not so specify, the father says that the alternative supervision service referred to in it was for private supervision with a person named Shelly Bent, offered through her supervision company. The father says that within 12 days of that appearance before Rowsell J., he spoke to Ms. Bent and completed her intake process in order to start supervised access right away. Ms. Bent did not then hear from the mother or her counsel. The father’s lawyer followed up with the mother’s former counsel on December 2, 2020, and again on February 10, 2021. By this point, almost three months had passed.

[28] On March 10, 2021, the father’s lawyer received an email from Ms. Bent advising that she could not move forward with supervised parenting time. Her email states that, “[t]he other party has some concerns that we unable (sic.) to adapt to and thus we believe this case will not be a good fit for us.”

[29] Based on my review of the emails attached at Exhibit “M2” to the father’s affidavit of July 26, 2023, that the mother’s objections were still about Covid-19. Questions were also being raised about whether the facility was privately owned, whether it was a non-profit or for-profit organization, whether there was a reporting requirement to the government, and if so how often the relevant ministry checked in on the facility. With Ms. Bent’s service now no longer an option, the father continued to try to resolve the issue through correspondence between counsel, and then he brought a motion.

[30] October 7, 2021 is the first date that the father says he could secure from the trial coordinator. Regrettably, this left the father and this child not seeing each other for several months. On October 5, 2021, a mere two days before the motion, the mother’s former counsel finally sent an email stating that the mother now had an intake appointment booked at the supervised access center at the YMCA, that Fryer J. had ordered almost a year earlier, on consent, to resolve the first dispute about the first consent Order for supervision.

F. The Two Motions that Lack J. Heard On October 7 and 15, 2021, and on April 1, 2022

[31] Despite the mother’s late in the day agreement to return to the YMCA, the father’s motion was nevertheless argued. Lack J. heard the majority of the submissions on October 7, 2021, but adjourned the motion for a week, to obtain some information about a private supervisor, to “assist [her] in drafting an order.” In his affidavit of July 26, 2023, the father explains that Lack J. wanted information about Brayden Supervision.

[32] In her Endorsement of October 15, 2021, Lack J. found that the mother had, and remained resistant to the father having parenting time. She provided a brief summary of the other problems, that the father has more particularly described in his affidavit of July 26, 2023, and which I have referred to above.

[33] Lack J. made an Order that the existing Order for supervised access for two hours per week at the YMCA was to continue until further Order of the Court. But because the YMCA could only accommodate a visit every other week, Lack J. ordered that the father could have an additional three hour visit in the intervening week, supervised by Brayden Supervision.

[34] Lack J. ordered the father to pay for the cost of supervision in the first instance, subject to a later review and possible re-apportionment. She then adjourned the matter, to monitor the father’s parenting time.

[35] According to the father, the mother still resisted. For example, there were squabbles over the times that the private supervision through Brayden Supervision would occur. The father says that the mother either cancelled visits unilaterally, or she would not agree respecting scheduling issues, on December 1 and 15, 2021. He also says she would not agree to make up time. Around this time the mother’s first lawyer then representing her sent correspondence that he was not “engaged” for the purpose of scheduling visits.

[36] The father says that in mid-January 2022, both Brayden Supervision and the YMCA supervised access center closed temporarily, again due to the Covid-19 pandemic. The father instructed his lawyer to write to the mother’s former lawyer on January 13, 2022, to ask for unsupervised visits. The father was of the view that the visits had gone well. The father says that there was no agreement. Visits therefore stopped altogether, yet again.

[37] The matter returned before Lack J. on February 28, 2022 for the monitoring appearance, as had been previously ordered. The father also brought a further motion at this time for expanded parenting time.

[38] The matter did not proceed on February 28, 2022 because the supervised access notes were not available. Lack J. adjourned the motion to April 1, 2022, made a production order respecting the notes, and made a scheduling order for the filing of further material for the new motion.

G. The Order of Lack J. dated April 1, 2022

[39] On April 1, 2022, Lack J. ordered unsupervised parenting time on a graduated schedule. It culminated with the father seeing the child on Wednesdays, from 3:30 PM until 6:30 PM, and every weekend from Saturday at 4:30 PM until Sundays at 6:00 PM. The overnights were to begin on June 25, 2022. Lack J. also ordered certain holiday time and specified that exchanges were to occur in the lobby of the mother’s apartment building.

[40] Lack J. made a number of ancillary orders about communication and the exchange of information, and about the child’s documentation. The terms respecting communication and the exchange of information required the parties to communicate about the child by email except in emergencies, and they provided that the father was entitled to the release of information under section 20(5) of the Children’s Law Reform Act. The mother was to provide the father with full particulars of the child’s referral to Grandview, and that the father was allowed to involve himself at Grandview.

[41] Lastly, Lack J. ordered that if the father’s parenting time did not occur, then the matter may be brought back on before the Court on 10 days’ notice, and otherwise in accordance with the Court’s schedule. She then adjourned the matter for a continued settlement conference before Rowsell J. on November 29, 2022.

[42] In making these various Orders, Lack J. found:

(1) Supervision had originally been put in place due to a long period of no contact between the father and the child;

(2) Once the initial Order was made, these proceedings were significantly delayed because of Covid-19 restrictions;

(3) The mother had been “opposed and resistant throughout” to the father’s requests for parenting time. She did not co-operate as she ought to have, and she obstructed access;

(4) The father had been patient and had done everything he could do, in the circumstances, to make the Order work so that he could see A.;

(5) The father’s supervised access has gone well; the child is comfortable with him;

(6) The mother raised new allegations about the child’s behavioural and developmental challenges, for the first time. Lack J. found these allegations were “vague and undocumented”;

(7) There was no reason for further supervised visits, although the mother remained resistant; and

(8) It was in the child’s best interests that the father’s parenting time now be unsupervised, and that it expand.

[43] Despite this Order, the father has not had the parenting time that the Court afforded to him. In particular, the father says he did not have overnights in July and November, 2022. He has not had any contact with this child at all, since December of 2022.

[44] In regards to the clauses about the release of information, it is not clear to me when exactly the mother made contact with Grandview. For example at ¶ of her affidavit of August 11, 2023, the mother says that the child was already on a long wait list to be assessed when the case came before Lack J., and she had previously had the child assessed for speech therapy. But in the same paragraph, the mother says that when the child developed “an anal skin tag” (that would form the subject matter of one of the first sexual abuse allegations that has been made in this case, discussed next), she had Dr. Shizas (who was her and the child’s family doctor) make a referral to Dr. Montgomery, a pediatrician. However, the document that is referred to in this paragraph as part of the mother’s narrative about timing and which is attached as Exhibit “A1”, appears to be Dr. Shizas’ referral to Grandview “for assessment by Developmental Pediatrician”, not a referral about the skin tag. The referral document is dated April 25, 2022. That is dated twenty five days after Lack J.’s finding that the allegations about the child’s behaviour were “vague and undocumented”.

[45] The mother did not in her affidavit material say whether she advised the father of any of the referrals or about the child’s prior involvement at Grandview at the time, or provide details about how she complied with Lack J.’s Order for the sharing of information. The evidence before me, described again later below, is that the father was excluded from three appointments at Grandview in the spring of 2023, out of which the Grandview Assessment was generated. The father was only given the Grandview Assessment on July 27, 2023, in response to a written request of his counsel, after this motion was brought. In this context, the Court observes that the mother’s complaint, that the father is minimizing the child’s special needs, depends heavily on her references to what he said in his affidavits, but the father did not have the benefit of participating in the assessment appointments.

[46] Mr. Turner also advised the Court during submissions, that Dr. Shizas previously had a note on the child’s medical file, that restricted the release of health information about the child to the father. Not only was this contrary to the rights to information in sections 20(5) of the Children’s Law Reform Act and 16.4 of the Divorce Act, but if this was put into place after April 1, 2022, then it was contrary to the aforementioned term in Lack J.’s April 1, 2022 Order. In any event the situation got rectified when Mr. Turner intervened with a lawyer’s letter to the doctor. Counsel advises that the father has since been able to meet with Dr. Shizas and a pediatrician, but not yet with Grandview.

H. The Mother’s 14B Motion dated May 9, 2022 Respecting the Alleged Error in Lack J.’s April 1, 2022 Endorsement

[47] Soon after the release of Lack J.’s ruling, the mother next asserted that Lack J. had made a mistake. On May 9, 2022, the mother filed a 14B Motion asking for a copy of the transcript and for an order to amend Lack J.’s Order, to provide that the father’s weekend parenting time was only supposed to be on alternating weekends. Rowsell J. made an order for the transcript, but dismissed the other request to amend Lack J.’s Order, without prejudice.

I. The First Set of Sexual Abuse Allegations

[48] According to the mother, on May 31, 2023, less than one month before the visits were to progress to overnights, the mother reported to the police that she saw “observable red and raw marks” on the child’s anus. The mother says that the child complained that the father had inserted a “pink pig” as well as a finger “in his bum”. In her affidavit of August 11, 2023 she writes “I am summarizing only”. She also writes that “access stopped during the investigation”.

[49] The records now before the Court actually reveal that the mother began to raise sexual abuse the very next day after Lack J. rendered the April 1, 2022 Order, although she did not initially report these to the police or to the Society. The mother also began to make allegations about the father’s anger, and about physical abuse. It appears those were reported first.

[50] For example, according to the notes and records from the Society, on May 2, 2022, the mother called the police, not to report sexual abuse, but to report the father’s anger. She reported that she had a video of an exchange, where the father was supposedly “filled with rage”. The Society’s records reveal that a police officer reviewed the video, and the exchange appeared normal. The mother then reported other abuse to the Society on or around May 4 or 5, 2022. Her complaint of May 5, 2022, included that the father had locked the child in a bathroom.

[51] According to the police records, Detective Rabishaw from the Special Victims Unit of the police interviewed the mother on June 2, 2023. At that time, sexual abuse allegations had been made. To Detective Rabishaw, the mother reported that the child had reported that his “bum hurt” after the very first unsupervised visit that Lack J. had ordered, without providing any other context. Because the child kept making these utterances (according to the mother), the mother said she had made an appointment for the child to see a pediatrician.

[52] The first attempt to see the pediatrician apparently did not proceed. The mother told Detective Rabishaw that the child was so upset that day, she had to leave before any examination could take place. There would nevertheless be an examination by Dr. Montgomery later on, on July 4, 2022.

[53] The mother went on to tell Detective Rabishaw, that after the child’s third visit with the father on April 30, 2023, she noticed a skin tag on the child’s anus. The mother told Detective Rabishaw that she sent pictures to the child’s doctor. The mother admitted to Detective Rabishaw, that the doctor advised her that it was a skin tag, but he would nevertheless make a referral to have the skin tag biopsied. The mother believed that the skin tag on the child was an HPV wart, caused by the father. She has told persons at Grandview during the child’s assessment, and others, that the father has HPV.

[54] Detective Rabishaw declined to interview the child. Detective Rabishaw was unable to understand basic information from the child, or to establish any cognitive awareness on his part. Detective Rabishaw is not the only person who concluded this. Different police officers, workers with the Society and various medical professionals have universally said that the child’s speech was impaired to the point that it was impossible to understand him. When Detective Rabishaw made this decision, the family was so displeased with her, that she had to ask “the family to leave the police station” due to their “inability to listen to reason”, and to diffuse the situation.

[55] Despite that, Detective Rabishaw continued to engage with the family. In the days that followed, Detective Rabishaw made a number of efforts to follow up with the mother, and the maternal grandmother. The mother provided a number of photographs to Detective Rabishaw. The mother also reached out to the Chief of Police for some reason. The grandmother refused to cooperate, saying she would not provide any information to the police.

[56] Detective Rabishaw met with the mother and the child again on June 23, 2022, to re-attempt an interview. Once again, Detective Rabishaw could not understand the child. Detective Rabishaw nevertheless sent a copy of her interview with the child to the SCAN unit at Sickkids Hospital. Meredith Kirkland-Burke of the SCAN unit reviewed the video and decided she would not interview the child again. She too did not feel that the child had the cognitive ability to understand core concepts, like who what when where why and how, that are key to understanding and forming the grounds of an allegation.

[57] In her affidavit of August 11, 2023, the mother alleges that although “the police felt it was difficult to understand him given his age and speech challenges”, she has a video, she disagrees that it was difficult to understand what the child was saying, and she says the child did make disclosures. Notably, this video, that is in the mother’s possession, was not filed with the Court for this motion, to allow me to make my own assessment.

[58] Notwithstanding the interview, the child was still seen by a physician with the SCAN Unit at Sickkids on July 5, 2022, but the mother also took the child to see Dr. Montgomery the day before, on July 4, 2022. It appears from Dr. Montgomery’s Report, that the mother did not inform him of the SCAN appointment, until the end of the appointment, after his examination of the child. The child ended up being examined twice in two days.

[59] Dr. Montgomery’s report states that the mother first became concerned on April 2, 2023, after the father’s first unsupervised visit. The mother inspected the child’s anal area and found it to be red, but there was no broken skin, bruising or bleeding. The mother reported that the area had not changed in appearance since then, but she noted an anal skin tag and showed the doctor two photos that were said to have been taken with her phone and the grandmother’s phone on May 25, 2022 and June 27, 2022. To Dr. Montgomery, the mother reported other observations, such as the child complaining about pain in his bum, the child putting his fingers in his rectum when complaining, and the child’s sleep habits having changed since April 2, 2022.

[60] In her affidavit of August 11, 2023, the mother highlights one aspect of Dr. Montgomery’s report, where he writes that “history and examination neither refute nor confirm physical/sexual abuse”. She did not cite in her affidavit, his next statement, that the history could also be compatible with constipation. While the report goes on to state that the caregivers denied to Dr. Montgomery that constipation was a problem, it also states that the mother first described the child’s stools in a certain way using a chart in the doctor’s office, but then “changed her mind”.

[61] The mother also did not, in her affidavit, refer the Court to what Dr. Montgomery wrote at the end of his Report about the SCAN appointment. The grandmother disclosed “at the end of the appointment”... “that [A.] will be assessed by SCAN at HSC upon the request of the local police”.

[62] The next physical/medical examination (the second one) of this child happened the very next day, on July 5, 2022. The SCAN report was not included with the father’s affidavit material for this motion. Detective Rabishaw’s summary of what she received from SCAN was. The mother has since filed the Report.

[63] In the police report, Dr. Rabishaw accurately quoted an excerpt from the report, that “the perianal skin tag is considered to be a normal variant and the findings are unrelated to the report of possible sexual abuse.”

[64] The mother says that the physician at the SCAN unit found the examination was inclusive but “did not categorically rule out an assault”. The mother would have the Court rely on a different passage from the SCAN Report, that “the anal findings in this case neither confirm nor rule out (exclude) the possibility of sexual abuse.” Context for that statement is provided in the report, based on recent literature and other health based reasons.

[65] There are other aspects of the SCAN Report that the mother did not highlight. They include:

(1) The mother said that it was on April 2, 2022 that the child told her that the father “hurt bum”, “finger in bum”, “thumb in bum” and “pink pig in bum”, previously differently reported;

(2) The mother reported there had been more disclosures;

(3) The mother repeated her concerns about HPV more than once;

(4) The report equally noted that child has speech difficulties and a lot of what he says is unintelligible to strangers; and

(5) The mother had actually taken some 11 photographs of this child’s anus and perianal area, reportedly been taken by the mother on April 10 and 16, and May 25 and 27, 2023.

[66] Nor did the mother repeat the full “case discussion – anal findings” in the Report, which reads:

[A.] was documented to have a perianal skin tag, both on the photographs provided to SCAN and on SCAN assessment July 5, 2022. Perianal skin tags are considered to be a normal variant. This finding is unrelated to the report of possible sexual abuse.

Perianal redness is nonspecific finding, meaning medical assessment alone cannot determine the exact cause. Perianal redness is represents irritation or inflammation to the perianal tissue. This irritation can be the result of various causes including with urine or stool (especially in child who wear diapers) and the use of some soaps or wipes.

J. The First of Several Appearances on a Motion Before Nicholson J. Beginning on August 8, 2022

[67] On July 4, 2022, the day before the appointment at SCAN, two new 14B Motions came before Nicholson J. The father sought leave to bring an urgent motion, and for production of notes and records in the possession of the police and the Society. The other motion was for an order to remove the mother’s lawyer from the record. Nicholson J. ordered that an urgent motion was to be scheduled by the trial coordinator, he indicated that notice to third parties would be required respecting the disclosure order sought, and he removed the mother’s former counsel as her solicitor of record. The trial coordinator then booked the motion for August 8, 2022, also before Nicholson J.

[68] The mother’s explanation, in her affidavit of August 11, 2023, about what happened at this motion, is brief. She says that she was self-representing at the time. She says that she pleaded to have supervised access re-instated, but was unsuccessful.

[69] Nicholson J. endorsed the following on August 8, 2022:

(1) A few visits had occurred in April, but no visits occurred in May;

(2) The mother alleged that the child was too sick for parenting time with the father during the month of May, and she made allegations that the child had disclosed sexual abuse;

(3) The police and the Society investigated, and closed their files;

(4) The mother then filed a medical report that confirmed the child had croup, but made no reference to the sexual abuse allegations; and

(5) Still, the mother maintained that she had reports from a family doctor and a pediatrician, but did not file them for the motion.

[70] Nicholson J. ordered the mother to comply with the provisions of Lack J.’s Order of April 1, 2022. He set a further date of September 20, 2022 to monitor the mother’s compliance, and cautioned her that significant cost consequences might be imposed on her if there was further non-compliance.

[71] The mother says that unsupervised visits resumed on August 10, 2022, and overnights began on August 20, 2022. She says the child continued to make disclosures about being abused.

K. The First Allegation that the Father Had Drugged this Child

[72] A series of new events then occurred, beginning soon after the appearance on August 8, 2023. The first one is said to have happened on August 31, 2022.

[73] According to the mother, the maternal grandmother went down to the father’s car to transition the child back to her after a visit. The mother was not present because she was at work. The grandmother would later report to the mother, that the child was lethargic and appeared to be drugged. The grandmother apparently told the mother, that after his return from his father’s, A. lay on the couch, started at the ceiling with his eyes open, and did not say anything for an extended period of time.

[74] The mother says that in the ensuing days, the child now disclosed to her, that the father had forced him to “swallow” a pink substance, that made it difficult for him to move, and made him feel like he was “frozen”. The mother says that given the child’s “escalating and challenging behaviours”, coupled with the disclosures about sexual abuse, she now became concerned that the father had drugged him intentionally. According to the mother, the child next began to disclosure that the father had given him needles when he had overnight visits.

[75] The father denies that he drugged this child. The father says that the only medication he has ever given this child, was some children’s Tylenol in December of 2022, when the child had a fever. He also denies that he ever administered needles to the child.

[76] In any event, the mother made a further report to the police about this in September of 2022, who referred the matter to the Society. The mother is critical of the Society for having taken “no action”, and concluding that these were not new disclosures.

L. The Allegation that the Father Assaulted the Grandmother During an Exchange

[77] The father says that next, on September 17, 2022, the maternal grandmother and the mother accused him of an assault during a parenting exchange. This alleged assault is said to have occurred when the father returned the child at the end of one of the few unsupervised visits that he had.

[78] According to the father, the police reviewed some dashboard camera footage that he had of the exchange, and the police observed that it was the maternal grandmother who was yelling at him and acting aggressively. He remained calm throughout the entire exchange.

[79] I have reviewed a police report pertaining to this particular exchange. It corroborates the father’s account. When Police Constable Thompson called the grandmother to advise her of his findings, the grandmother became upset that the father was “getting away with this” and called the father a vile name.

M. The Second Appearance Before Nicholson J. on September 20, 2022

[80] The parties appeared before Nicholson J. for the second time on September 20, 2022, as he had previously ordered them to do on August 8, 2022. This time, Nicholson J. endorsed that the mother had substantially complied, but there was now still the aforementioned dispute over whether Lack J. had made an error in her Endorsement of April 1, 2022. As the mother now had the transcript that Rowsell J. had permitted in his Order dated May 9, 2022, Nicholson J. wrote that the mother could bring a 14B Motion to seek an attendance before Lack J. to address the issue.

[81] Nicholson J. otherwise ordered the mother to continue to comply with the Order of Lack J. dated April 1, 2022. He changed the location of the exchanges to be supervised exchanges, with exchanges to continue in the same manner as they had to date until the supervised exchanges got set up. He also ordered the parties to retain a child psychologist to support the child in dealing with the difficulties caused by the breakdown of the family, and to file a 14B Motion to his attention in the event of a dispute. Finally, Nicholson J. ordered a new timetable for costs submissions arising out of the motions before Lack J., and set another date of December 6, 2022, to continue to monitor the mother’s compliance with the existing parenting order.

N. The 14B Motion Before Lack J. Alleging Mistake

[82] The mother filed her 14B Motion to Lack J.’s attention. On October 19, 2022 Lack J. declined to change the terms of the April 1, 2022 Order.

O. The Next Allegation that the Father Physically Assaulted the Child

[83] The mother says that on October 19, 2022 (the same day that Lack J. ruled on the 14B, and just about one month after the second appearance before Nicholson J. on September 20, 2022), the child came back from a Wednesday visit with the father, and was complaining about his back. By the Friday, the child could not move his head or his neck, according to the mother.

[84] The mother says that on Saturday, the child reported that the father had hit and shaken him. The mother says that she took the child to the hospital, but the nurse recorded the disclosure as “unclear”. I have reviewed the triage note. It appears to mostly record what the mother reported when she took the child to the hospital, not the child’s statements.

[85] The mother did not file any other hospital records pertaining to this hospital visit. The father filed an additional report of this hospital attendance as an Exhibit to his further affidavit sworn September 15, 2023. The report states that the child, “…denied any pain and his physical, skin , musculoskeletal and neurological exam was normal. He was energetic, with a normal neurological exam and no gait abnormalities noted.”

[86] In the section of the document entitled diagnosis, the doctor wrote “Query concussion, mechanism and degree of head injury unclear; child denies complaints reported by mother.”

[87] In the section of the document entitled plan, the doctor wrote that he would notify the Society and “explain the situation and repeat mom’s history”, but the child examined well, denied complaints and there were no physical findings. The doctor also gave the mother some advice if she noticed any symptoms of a concussion, after the discharge.

[88] Despite this, the mother stopped the father’s parenting time. She says she did this on the advice of the police. I have reviewed an excerpt of a note from the police, that the mother filed, wherein the police did give her advice and not to send the child on the next Wednesday visit as “the safety plan”. The officer did not counsel her to cancel all the visits.

[89] According to a police report dated October 23, 2022, Police Constable Robertson attended the mother’s home. This was two days after the mother said the child could not move his head or his neck, and one day after the mother claimed the child reported that the father had hit and shaken him. During Police Constable Robertson’s interview with the mother, the mother reported that until mid-day Saturday, the child could not move and was “screaming and crying in pain”. The mother also told the police officer that the child had a head injury and had vomited. Meanwhile Police Constable Robertson observed the child to be riding a tricycle around the apartment, and the child appeared to be “happy and active”.

[90] Two days later on October 25, 2022, the mother sent an email to the Chief of Police, writing that the child’s neck was still hurting. Now, she told the Chief of Police that the child was saying his arms and legs were hurting. Yet this part of the report again notes that the police had been in the house, that the child was observed to be running around and playing, and that had been observed 17 hours after the mother had returned from the hospital, at which the child was reported to have been violently ill. The police report also states that the officer had observed the child to be “parroting” the words of his mother.

[91] After yet more investigations, which proceeded over the month that followed, and which included contact between the police and the Society, both parents, a review of a 911 call, and a discussion with Ms. Kirkland-Burke of SCAN, both the police and the Society closed their files, once again. In its closing letter, the Society wrote that it did not verify the report of physical abuse, but it did verify that the mother has put the child at risk of emotional harm due to post-separation caregiver conflict and by undermining the child’s time with the father. The letter states that there had been a thorough investigation, that involved the police, Lakeridge Health, Grandview Kids and the child’s pediatrician. None of these service providers were able to confirm either a disclosure from the child, or verified any medical trauma as alleged by the mother.

[92] The father in his factum has referred the Court to further Society records from later in 2022, questioning the mother’s caregiving capacity, raising concerns about the mother subjecting the child to medical examinations, and raising concerns about the mother’s unfounded allegations that are putting the child’s emotional well being at risk.

[93] At ¶ 121-125 of her affidavit of August 11, 2023, the mother is very critical of child protection worker Nicole Constantin, asserting:

(1) It is unclear whether Ms. Contantin had access to, or reviewed all of the information set out in her affidavit, including the police and paramedic notes and records;

(2) Ms. Constantin is not a “registered social worker” but rather a “family services worker”. The mother does not know what her qualifications “if any” are;

(3) Ms. Constantin only met with the mother once, for one hour on October 28, 2022, and only met with the child once; and

(4) Ms. Constantin spoke directly to the father’s counsel.[^4]

P. The Third Settlement Conference Before Rowsell J. on November 29, 2022

[94] On November 29, 2022, the parties were before Rowsell J. for another Settlement Conference. Rowsell J. endorsed that progress had not been made, as the father was not having parenting time despite prior orders. As there was another return date before Nicholson J. on December 6, 2022, Rowsell J. adjourned the matter to a combined settlement conference and trial scheduling conference before him, on April 5, 2023.

Q. The Third Appearance Before Nicholson J. on December 6, 2022

[95] On December 6, 2022, Nicholson J. found that the mother had continued to resist the father having contact with the child. He wrote that the father had not been allowed to have an overnight since September 22, 2022, and the last three-hour Wednesday visit occurred on October 19, 2022, which, as set out above, is when the mother claimed that the child came back from a visit and was assaulted by the father.

[96] Nicholson J. continued the Order of Lack J. dated April 1, 2022. He made an order for production of the notes and records of the police and of the Society. He also granted the father leave to bring a contempt motion.

R. The Second Allegation that the Father Drugged the Child, Coupled With Another Sexual Abuse Allegation, This Time Levelled by the Maternal Grandfather

[97] According to the mother, the next event that occurred was on December 14, 2022. This was a mere 8 days after the latest appearance before Nicholson J.

[98] The mother says that the child came back after a visit and was completely lethargic. She reported to the Society that when the father dropped the child off, he was “lethargic”, “walking strange” and saying he couldn’t walk or move his legs. The maternal grandfather inquired as to whether the father had given the child medication to have caused this. The mother called the paramedics.

[99] Although no injuries were observed on the child, and the paramedic note concludes that the paramedics “did not witness and (sic.) physical abuse on the patient”, he was transported to the hospital.

[100] The mother filed the paramedic’s note. The paramedics asked the child some questions. I have no real sense of the actual questions or the manner in which these questions were put to this child by these paramedics, but the mother has highlighted the child’s responses. To the paramedics, the child said “no” when asked if he felt safe going to his father’s home. When asked if his father had hurt him, the child said that his father had hit him on the head. These statements were made in some overall context of what the mother had reported to the paramedics.

[101] The grandfather then reported that the child said that the father had put “his penis in his bum and mouth” after a visit this past weekend, without explaining why this was not reported previously. The mother reported that the child did not have a bowel movement for a couple of days after the last weekend, too.

[102] The mother says that when she was at the hospital, the attending physician told her that he would not be asking the child any questions about the reason for the visit, as he had been updated by the paramedics. The mother says that a “non-invasive sexual assault kit” was performed on the child. This was the third medical examination on this child about sexual abuse.

[103] Notably, once again the mother did not initially file any health records from Lakeridge Health that document what happened at the hospital. The mother relied on the paramedic note during submissions. In a later affidavit, the father filed some of the hospital records. The Emergency Room physician’s note states that the mother showed the doctor a video purporting to show the child unable to walk, but the doctor observed that in the video, the child was crawling on the floor, was moving his legs normally, and he looked playful. He also did not appear to be “overly lethargic”.

[104] The child also denied being in pain. The balance of the examination was normal, with no evidence of any trauma. The emergency room doctor did not see any role for further investigations, but indicated that the child would be assessed by the “DV nurse”.

[105] Also according to the police reports of Detective Rogers and Charbonneau, and according to Police Constable Wilson, also referred to in these reports, the child was observed to be running around at the hospital. The police themselves reviewed the aforementioned video that the mother took, in which the child’s legs were moving and he did not appear to be in distress. Despite this, additional referrals were made, including to the Society, in view of the sexual abuse allegation.

[106] In her affidavit of August 11, 2023, the mother says that she later found reference in the police disclosure to the results of the “swab” taken from the child’s genitals. The results of the testing of this swab are another piece of evidence that the mother says should cause the Court to act with caution.

S. Nicholson J.’s Costs Order of January 12, 2023

[107] On January 12, 2023, Nicholson J. ordered the mother pay costs to the father of $5,000.00 forthwith. He found that the mother’s conduct was teetering on the edge of bad faith, and warned her that if she continued to behave that way, a finding of bad faith would almost certainly be made.

T. The Third, Repeat Allegation, that the Child Was Drugged

[108] According to the Society’s notes and records, at some point in the first part of 2023, an unnamed person called the Society on “behalf of her friend [the mother]” and reported that the child had disclosed the father was putting a pink liquid in his feet and hands through a syringe, and that he could then not move for up to 20 minutes. The caller also reported that the child had said the father put crayons in his rectum, that the child had said that the father had threatened to kill the mother with a gun, and that the child had said the father would harm the family dog. The caller reported that the child had not seen the father since December 15, 2022, and while the mother had been trying to send the child for visits, the child did not want to go.

[109] During submissions, the father’s counsel pointed to a passage in this record, saying that mother could not return to the SCAN unit at Sickkids, unless directed by the police or the Society, and that the Lakeridge Health Hospital was considering putting the same protocol into place. I accept the submission from the mother’s counsel that the source of this information is not identified and there is no document in writing to this effect from either hospital before the Court. I do not accept the suggestion, that counsel seemed to have made, that someone may have called the Society pretending to do so on the mother’s behalf, but really at the behest of the father. The aforementioned allegation about the syringe and the pink liquid is similar if not identical to what had been previously reported. There are also new, and expanded allegations of different kinds of risk, such as the allegation about the gun and the family dog.

[110] And if in fact the father was behind this call (a suggestion that I do not accept), it only served to subject him to yet another meeting with a Society worker. To the worker, he advised that he neither had a gun or a gun license and he denied the allegations about the pink liquid/the syringe. Sadly, he told the worker, that he still had the child’s Christmas presents waiting for him, because he did not get to see the child at Christmas (or subsequently), as he ought to have.

[111] The Society’s note of this particular investigation ends saying that there are no concerns with the father, the family, or the home, but the worker’s plan was to liase with the police. There is yet another conclusion about sexual abuse in this note. It that states that “sexual abuse cannot be verified, as there is no evidence”.

U. The Contempt Motion Before Fryer J. on March 20, 2023

[112] The father next brought a contempt motion. The motion came on before Fryer J. on March 20, 2023. Fryer J. did not hear it. She adjourned the motion to March 30, 2023, due to defects in the father’s Notice of Contempt Motion, because the mother had just retained new counsel, and because there was yet another police investigation. In adjourning the motion, Fryer J. also noted that this matter needed to be prioritized, as the father has had “yet another long period of not seeing his son despite numerous court interventions”.

[113] The contempt motion never proceeded. On March 28, 2023, on a 14B Motion, Leef J. adjourned the motion to be rescheduled through the trial coordinator’s office. Counsel for the father advised me during argument of this motion, that the parties had not yet received production from the police or the Society of the relevant notes and records, that were clearly needed for the motion.

[114] The combined settlement conference and trial management conference that Rowsell J. had previously scheduled, did not proceed either on April 5, 2023.

V. The Involvement of the Police In The Late Winter and Early Spring of 2023

[115] It seems that the swab of the child’s genitals was sent to the Center for Forensic Science (“CFS”). The CFS Report was not filed with the Court, but as the mother alluded to, there is a reference to it, and a description of it, in a police report of Detective Hancock dated March 23 and 24, 2023. The police report reveals that the author of the CFS Report found some DNA on the child’s “external genitalia”. However, the author of the CFS Report explained to Detective Hancock that the DNA found was of such a small trace, that a profile was not developed. It was not possible for him to even determine whether the DNA was male or female. It was also reported, that given the very small trace and the age of the child, the transfer of DNA could be the result of the normal care of a child. The conclusion drawn by the author of the CFS Report from the small trace,[^5] was that it “was so minimal”, that it was not suitable for comparison.

[116] Despite this, on April 20, 2023, Detective Hancock sent the mother an email suggesting that the child be interviewed at Sickkids. Detective Hancock said that the professionals at Sickkids wanted information from Grandview about the child though, to aid them. The context behind this email is missing. The mother believes that as late as April of 2023, the police were “still investigating and concerned and wanted an expert at Sickkids to interview [A.]”. The mother believes there is some kind of debate or disagreement within the police about whether this child has been sexually abused.

[117] The mother chose not to “traumatize [A.] further by having him interviewed at a hospital some 4 months after the December 2022 incident”. While she cites this as an example where she “preferred [A.’s] best interests over [the father’s] alleged false assertion that [she has] been angling to have him charged based on contrived sexual or physical abuse allegations”, she also argues that the police never finished this particular investigation. This is another reason why she says the Court should proceed cautiously.

W. Procedural Issues Relating to this Motion

[118] The motions now before the Court are not for contempt. The father’s re-constituted motion was supposed to be argued on August 28, 2023. Before it was argued, the father filed a 14B Motion and sought leave to file additional material, beyond the page limits, which I granted on certain terms. The mother then tried to respond and bring a cross-motion, but she encountered difficulties filing her material. In fact, there were a morass of procedural problems that got caused after the parties did not proceed in accordance with the schedule that Fryer J. set out.

[119] I addressed the various procedural issues that both sides had raised in their 14B Motions, in the Endorsement of August 28, 2023, to ensure that the Court could hear fully from both sides. I rescheduled the motions to proceed as a long motion on September 28, 2023.

PART IV: ISSUES AND ANALYSIS

A. Applicable Legal principles

[120] The applicable legal principles that apply on this motion are mostly settled, except in one instance.

[121] 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.

[122] 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. Parenting time is also defined in section 2(1). It means the time that a child of the marriage spends in the care of a person referred to in subsection 16.1(1), whether or not the child is physically with that person during that entire time.

[123] Pursuant to section 16.1(4) of the Divorce Act, 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). The Court is empowered to make an interim parenting order too, under section 16.1(2) of the Divorce Act.

[124] There are two aspects to the motions before the Court. First, both parties claim different orders for parenting time but there is already an interim order in place for parenting time, that of Lack J. dated April 1, 2022, subsequently enforced by Nicholson J. several times. As such, these aspects of the motions are not claims for an initial, temporary parenting order. They are not Motions to Change a final parenting Order governed by section 17 of the Divorce Act and Rule 15 of the Family Law Rules, either. These claims amount to a motion to vary a temporary order on a temporary basis prior to trial. Although counsel did not raise the Court’s jurisdiction to entertain these aspects of the parties’ motion, this Court does have the jurisdiction to order such relief: see D.G. v. H.F., 2006 NBCA 36 ¶ 16, 17; see also Dorval v. Dorval, 2006 SKCA 21.

[125] Second, although a different aspect of his Notice of Motion is framed as a request for “sole care” of the child, with a specific request for the authority to enroll the child in a certain school, in a case of this nature, these issues are all very interrelated with the child’s health and development. The father’s motion calls upon the Court to consider not just parenting time, but also decision-making more broadly. While this probably could have been more clearly stated in his Notice of Motion, the father did refer to the legal principles that apply respecting decision-making in his factum, and the mother provided arguments in hers, about the choice of a child’s school, a significant decision that falls under the rubric of decision-making.

[126] The legal principles that apply when the Court is asked to allocate decision-making, and particularly whether some form of joint decision-making as an alternative might be workable, are well known: see for example Kaplanis v. Kaplanis, 2005 1625 (Ont. C.A.); see also Roloson v. Clyde, 2017 OSC 3642 ¶ 59. I do not intend to repeat the well- known principles stated in these cases here, but will apply them below. I also observe that there is no temporary order in place for decision-making, but the post-separation status quo rests with the mother. If the Court orders temporary decision-making to the father, that represents a pre-trial change to the status quo.

[127] Just because the Court can vary a temporary order on a temporary basis prior to trial, or just because the Court can make an initial order for temporary decision-making that would disturb a status quo, does not necessarily mean that it should do so. Temporary orders are by their nature imperfect solutions, based on limited evidence, typically in affidavit form. They are meant to provide a “reasonably acceptable solution to a difficult problem until trial”: see Chaitas v. Christopoulos, 2004 66352 (Ont. S.C.J.) ¶ 17. The maintenance of the status quo is a heavy factor on a motion of this kind. That principle applies equally respecting motions to vary temporary orders on a temporary basis pending trial, and first time temporary orders that would result in a change to the status quo. The preferable approach is usually to get the matter on for trial.

[128] At ¶ 49 of K.A.C. v. P.P., 2007 ONCJ 217, Murray J. wrote about that the reasons why courts place emphasis on the status quo at the interim stage of a cases, saying they “…flow from two concerns: a concern for fairness to the parties and a concern for the child’s best interests. Generally it is not in a child’s best interests to be subjected to a change in her residential arrangements if the possibility of yet another change is right around the corner because of an impending trial.”

[129] Nevertheless, the Court is not powerless to act, where a child is in danger, or where there is some other compelling reasons to do so in a child’s best interests: see Grant v. Turgeon, 2000 22565 (Ont. S.C.J.) ¶ 15; see also Kimpton v. Kimpton, 2002 2793 (Ont. S.C.J.) ¶ 1, 2; see also K.A.C. v. P.P. And if the Court is inclined to consider a change on this more stringent test, a best interests’ analysis is still undertaken: see F.K. v. A.K., 2020 ONSC 3726. section 16(1) of the Divorce Act makes a child’s best interests the only consideration. According to section 16(2), the child’s physical, emotional and psychological safety, security and well-being are the primary consideration when considering the statutory factors in section 16(3).

[130] Finally, additional considerations when deciding to intervene or not, are about the calibre of the evidence before the Court, and how quickly the case is likely to go to trial: see K.A.C. v. P.P. ¶ 51.

[131] With the above all being set out, I nevertheless note that in J.D. v. N.D., 2020 ONSC 7965, MacKinnon J. recently wrote about the applicability of the compelling circumstances test. At ¶ 17-18, MacKinnon J. set out some alternative factors that might apply rather than a compelling circumstances test. She wrote that these might include a consideration of the magnitude of the change sought, compared to the status quo, and the assessment of other evidence that might support (or not) the change sought. While some of the considerations at ¶ 17-18 are unique to motions requesting the implementation of assessment reports prior to trial, which issue is not directly before me in this case, MacKinnon J. nevertheless identified a possible shift in the jurisprudence respecting the proper approach at the interim stages of a parenting case more broadly.

[132] In particular, MacKinnon J. called for a reconsideration of a more stringent analysis in appropriate cases. Writing about the facts of the case before her, she found at ¶ 12, 13, 14, 16, 17 and 22:

(1) Judicial notice may be taken that over the past twenty years the knowledge of the risks for children exposed to parental conflict and family violence has expanded. Evidence of actual harm, ongoing risks and long term consequences is also before the Court;

(2) On at least three occasions, the Children’s Aid Society of Ottawa verified protection concerns relating to the children’s exposure to adult conflict, as did an assessor (in that case before MacKinnon J.);

(3) Family court decisions are replete with examples of negative outcomes for children mired in high conflict parenting disputes, aggravated by the delay that it can take to get a case to trial;

(4) The legal landscape since Grant v. Turgeon has changed. While the traditional test (compelling circumstances) is still applied in some cases, other cases say the jurisprudence has evolved. For example, at ¶ 23 and 27 of Bos v. Bos, 2012 ONSC 3425, Mitrow J. said that the test was not so “rigid and inflexible” as to preclude a court from considering prior to trial, probative evidence, such as that in an assessment report; and

(5) Delaying a change in residential arrangements until trial is not always appropriate. Making a change sooner is sometimes the better option.

[133] Concluding at ¶ 23, MacKinnon J. wrote:

In my view the law has evolved to the point where the approach of deferring parenting changes to trial in highly conflicted cases characterized by family violence and/or child parent contact issues should be re-examined, along with the related approach of routinely deferring implementation of family assessments to trial. A reconsidered process of active judicial case management and timely single judge decision making may provide children more hope for better outcomes and at the same time provide procedural fairness to their parents.

B. Analysis

[134] I find many of MacKinnon J.’s comments to be instructive. Regardless, because of the magnitude of the change, I will take a cautious approach and apply the more stringent test. But even in doing that, I find both that there are compelling circumstances, and that it is in the child’s best interests for the Court should grant the majority of the father’s motion. I make these findings for the following six reasons:

(1) One of the child’s needs is the need to have a healthy and meaningful relationship with both of his parents. The mother is not supporting the child’s relationship with his father. Balancing all of the evidence before me, the greater risk to this child, still rests with the child remaining in his mother’s care;

(2) The Court’s previous findings of non-compliance, in tandem with its largely unsuccessful efforts to manage the mother, now necessitate the Court’s intervention in a different way than what has occurred in the past, even after considering any additional evidence that the mother has now put before the Court;

(3) The child has special needs. On the one hand, the mother to date has been the parent responsible for managing those needs. On the other hand, the father has been denied an opportunity to parent. This has placed the Court in a difficult position when considering the arguments on this motion, but the father has a plan;

(4) Joint decision-making is not a viable option in this case;

(5) The record before the Court consists of more than just conflicting affidavits; and

(6) This case is not trial ready.

Reasons # 1 and # 2: The Mother Is Not Supporting the Child’s Relationship with His Father; The Only Solution Calls for a Different Approach

[135] One of a child’s needs is the need to have a healthy and meaningful relationship with both of his parents. I consider this pursuant to the factor in section 16(3)(a) of the Divorce Act, being the consideration of “the child’s needs, given the child’s age and stage of development, such as the need for stability”.

[136] At ¶ 131 to 135 of Baredgret v. Grebliunas, 2022 SCC 22, the Supreme Court clarified the proper interpretation of what was formerly known as the “maximum contact principle”, now better referred to as the “parenting time factor”. When reiterating that this principle is only significant to the extent that it is in the child’s best interests and it must not be used to detract from a best interests’ inquiry, Karakatsanis J. also referred to the corollary “friendly parent rule”. The “friendly parent rule” instructs courts to consider the willingness of a parent to foster and support the child’s relationship with the other parent in the best interests’ analysis.

[137] The “friendly parent rule” is a proper consideration under section 16(3)(c) of the Divorce Act, namely the consideration of “each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse”. Section 16(3)(h), “the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child”, is also related and engaged here.

[138] Both Lack J. and Nicholson J. have already made adverse findings about the mother’s lack of cooperation and willingness to support the child’s relationship with the father, based on the state of this case as it then presented before both of these judges. Other than making very general statements, that she disagrees with the findings of my predecessors, the mother did not, in any detailed fashion, refute the father’s account of the prior proceedings in this case.

[139] Nevertheless, I am prepared to accept, as the mother’s new counsel argued, that the Court should act cautiously when there are concerns about the risk of harm to a child. I would also observe, as set out earlier, that the application of the stringent test to change a status quo, or for the variation of a temporary order on an interim basis prior to trial, calls for caution, too. But in this case there has already been a cautious approach taken many times. There are a number of examples of this.

[140] First, what is very patent, is the extent to which this Court has already considered the evidence and allegations as they then presented, and the extent to which this Court has tried to govern the mother. According to the numerous Endorsements and Orders in this case, and the other evidence now before me, there have already been:

(1) one case conference and three settlement conferences before Rowsell J.;

(2) at least three motions, all over the same issue, being those before Lack J. beginning in October of 2021, before Nicholson J. beginning in August of 2022, and now before me, beginning in August of 2023 [^6]; and

(3) several 14B Motions in the midst of all this.

[141] Second, the mother has attempted to justify her past conduct in party by saying that she was self-represented at times. As the father’s counsel pointed out, the mother actually had two lawyers before her current counsel. Although he is acting as her agent only for this motion, Mr. Liquornik is now the third lawyer. While there were periods of self-representation interspersed throughout the prior proceedings, I do not accept that her self-represented status as a valid justification for either not complying with past Orders of this court, or for not having put some of this evidence before the Court previously.

[142] Nevertheless, in the mother’s pre-motion 14B for directions, the mother said that she needed to file a “crucial report on [A.’s] special needs”, the SCAN report that was not previously filed when this matter came before the Court on the numerous previous occasions, and 17 pages of text message communications in which the mother says the father also failed to comply with Lack J.’s April 1, 2022 Order and pick the child up as court ordered. One of the several reasons that I adjourned this motion from August 28 to September 29, 2023, was to allow the mother to file a cross-motion and to file whatever new or previously existing evidence that she asserted had not been before the previous judges who made orders and findings against her. Without in any way suggesting that there was a process that was unfair to her in the past, the mother has now been given yet another opportunity to ensure that the record before the Court was complete, from her perspective.

[143] One of the (perhaps) new arguments that the mother now makes pertains to an allegation that the father did not in the past cooperate with the police. I find the mother’s argument:

(1) that the police wished to interview the father;

(2) that he could submit to a polygraph test too;

(3) that he chose to do neither; and

(4) this is another reason for the Court to proceed cautiously;

to be little more than an additional argument of a similar ilk to others being advanced now.

[144] It is true that these things were offered to the father, and that the father ultimately decided not to participate in a police interview in the summer of 2022, or to take a polygraph test. The father’s explanation is that he did the former on the advice of his counsel. He says that a polygraph test was not required by the police. He says he was otherwise cooperated with the police and Society investigations.

[145] I do observe, which neither side highlighted, that Detective Rabishaw’s police report also reveals, that on June 14, 2022, the father was “very willing” to speak to the police. It seems that this was before he obtained the legal advice.

[146] In any event, the force of this argument must be looked at in context of the other evidence before the Court, and the impact of his failure to be interviewed or take a polygraph. The allegations that the father has sexually and physically abused this child, that he has drugged the child, and that he physically assaulted the grandmother, have been looked at more than once over multiple months by the police, the Society and health care professionals. There is voluminous evidence, that includes third party records, now before the Court. In this context, I am troubled by the mother’s argument, that the Court should draw some kind of inference against the father for having acted on the advice of his counsel and exercising a constitutional right.

[147] It bears repeating that courts make decisions based the application of an evidentiary standard to the evidence before them. That the allegations have not yet been conclusively disproven, or have not yet been ruled out (as the mother argues - something which may never happen to the mother’s satisfaction) is not the evidentiary standard. On a balance of probabilities, the only finding that the Court could make, based on the record that both sides have been given ample and fair opportunities to present, is that the father did not abuse this child.

[148] A second (perhaps) new argument that the mother makes is that she is not the only one who did not comply.

[149] In her affidavit of August 11, 2023, the mother points to the fact that the father did not have parenting time on a number of Wednesdays that Lack J. ordered on April 1, 2022. At ¶ 98 of the August 11, 2023 affidavit, the mother says that she even tried to accommodate the father by transitioning the child at the police station, but the father did not show up. The mother says she documented this with text messages. She attached the ones she sent between January and August 2023. She also points to certain text messages wherein the father insisted on the mother doing the exchange (as opposed to a grandparent), but the mother says she was fearful.

[150] The father’s version is that he wanted to change to the matter to a supervised access center or to the police station, particularly after two instances of conflict with the grandparents during exchanges on September 17, 2022 and December 14, 2022. The father says that he attended the police station every Wednesday and Saturday, and he has text messages of his own.

[151] This particular conflict is very unfortunate, especially because there was already a court ordered solution in place, such that it could have been avoided. Although on April 1, 2022, Lack J. ordered exchanges at the mother’s apartment building, by September 20, 2022, after the September 17, 2022 incident wherein the grandmother acted aggressively, Nicholson J. changed the location of the exchanges to be supervised exchanges, with exchanges to continue as had been the case before until the supervised exchanges got set up.

[152] I am not certain what exactly transpired respecting changing to supervised exchanges, or why that did not happen. That said in his text messages of earlier this year, the father wrote to the mother that he disagreed with the mother’s reluctance “to utilize a mutual party to facilitate the exchanges” and he proposed changing the location of the exchange to the police station. According to this text, it is not a stretch to infer that the mother may not have cooperated to change over to supervised exchanges after Nicholson J. ordered that, either.

[153] The mother says that for a time starting in June of 2023, the maternal grandmother would attend the police station, whereas the grandfather would wait in the lobby with the child. The father attended neither location. The grandmother would video tape the parking lot to show that the father did not attend there in particular.

[154] The Court queries how exactly this exchange would have happened, had the father actually attended at the police station, if the child was in the lobby with the grandfather. If the father wanted the exchange to happen at the police station, then this is not good evidence from the mother, of the mother trying to make it work. In my view, this is more evidence of the grandparents’ inappropriate involvement in the conflict. It is behaviour in the nature of evidence gathering. It also did not address the father’s concerns, about the inappropriate interactions with the grandparents at the exchanges of September 17, 2022 and December 14, 2022, that apparently caused him to ask that the mother, and not the grandparents, do the exchanges.

[155] Third and relatedly, the mother’s characterization of how caution should be exercised deflects from the fact that this child has been subjected to three different medical examinations and at least one interview under her watch. It largely ignores that the only verified risk to this child is “emotional harm due to post-separation caregiver conflict and by the mother undermining the child’s time with the father”. To this I would add, that there are also risks of the kind identified by MacKinnon J. in J.D. v. N.D. (about negative outcomes associated with a child’s ongoing exposure to conflict and child parent contact issues) . The mother’s approach would leave the child in her care while the abuse allegations are investigated further.

[156] In conclusion, the findings, about the mother’s non-compliance, of the other judges two who previously heard motions in this case continue to be supported based on the evidence before the Court. I further agree with the father’s arguments, that the mother has taken a multi-faceted approach to the father-son relationship, which has included non-compliance, the making of repeated allegations, criticizing some of those tasked with investigating the allegations, and criticizing the Court. I agree with the father’s argument that she breached the duty to protect the child from conflict set out in section 7.2 of the Divorce Act. To this I would add that the grandparents have participated in the breach of that duty. Yet another example of this, is that the maternal grandmother has created a “Go fund me page” looking for funding for “a lot of money to hire the best [lawyer] so that he can save [her] grandson”. I also add that the mother has further breached the duty to comply with orders, until no longer in effect, in section 7.3.

[157] There are really only two explanations for this behaviour. Either the mother has deliberately breached this Court’s Orders, manufactured allegations and is ungovernable, in an attempt to engage in alienation, as the father argues. Or, at best she is refusing to accept the findings of the Society, the police and health care professionals, and she is supported by her parents in so doing.

[158] In my view, the most cautious approach actually requires the Court to act, not defer the matter for more inquiries. For these various reasons, I find there to be compelling circumstances that warrant this Court’s intervention.

Reason # 3: The Child’s Special Needs

(1) The Mother’s Description of the Child’s Behaviour

[159] In her affidavit of August 11, 2023, the mother describes A.’s behaviour in fairly severe terms. She says he is “prone to extreme anger outbursts”. She describes him as “oppositional frequently”, a “constant flight risk”, “impulsive”, “incredibly impulsive”, “hyperactive” and “aggressive”.

[160] The mother says that the child can be “violent whereby he throws items at [her] or [her parents].” She says he can go from “zero to 100 in the blink of an eye”, first being “extremely sweet and affectionate and then suddenly become aggressive and angry”.

[161] The mother says the child has “difficulty being soothed”, “difficulty with transitions” and he is “prone to tantrums”, which can last for more than 30 minutes at a time. She finds getting the child to sleep at night to be “exhausting and laborious each and every day”. She says that the child is “prone to running onto streets with traffic present”. She says he must be monitored at all times.

(2) The Grandview Assessment dated June 15, 2023

[162] The Grandview Assessment was conducted over three days in April and May of 2023. It was the mother and the maternal grandmother who took the child for the Grandview Assessment. As the father did not participate in the Grandview Assessment appointments, the source of some of the information upon which this assessment is based came from the mother and the grandmother only. That said, the Grandview Assessment is also in part based on the observations and some testing undertaken by the developmental pediatrician performing the assessment.

[163] While there may very well be good reason to question the credibility and reliability of what the mother and the grandmother reported about the child’s behaviour at Grandview, I do not intend to discount it for the purposes of this motion. It is still useful to set out what the developmental pediatrician separately observed and reported.

[164] For example, the developmental pediatrician performed the Autism Diagnostic Observation Schedule (ADOS). The Grandview Assessment describes this assessment tool as a semi-structured, play-based assessment to evaluate a child’s social communication skills, play skills and behaviour. Module 2 is used for children with phrase speech. The Grandview Assessment states that A.’s ADOS Module 2 score was below the threshold for a diagnosis of Autism Spectrum Disorder. Nevertheless, at ¶ 118 of her affidavit of August 11, 2023, the mother is not convinced. She believes that the child may be moving in that direction, and she is reading about autism (as well as ADHD and ODD).

[165] The Grandview Assessment does note that A. did have “significant speech production difficulties that impacted his intelligibility”, which has also been said by both parents and in other source documents before the Court. The developmental pediatrician further observed A. to be an active child, who fidgeted, moved about the room and required redirection. Yet there was no aggressive or disruptive behaviour, or signs of anxiety. The report notes that overall there was a comfortable interaction with the child.

[166] The developmental pediatrician reviewed notes from A.’s recent speech therapy and recreation therapy sessions to get a sense of the child’s behaviour and interaction in those environments. That portion of the Grandview Assessment states that the child was able to transition well in and out of the building for these sessions, and also made other observable gains in therapy.

[167] According to the SNAP rating scale, which is used to evaluate symptoms of ADHD (and which was completed by the mother), the child has mild to moderate symptoms in the inattentive domain, and moderate to severe symptoms in the hyperactive-impulsive domain. The report states that mild to moderate oppositional defiant behaviours were endorsed in the home.

[168] The Grandview Assessment concludes that A. is friendly, interested in others, shares attention and engages in a variety of play activities. He has significant speech production difficulties, but has been making progress in the area with his speech pathologist. He meets the criteria for a diagnosis of early ADHD, having more challenges with hyperactivity and impulsivity and milder challenges with inattention. The Grandview Assessment also says that A. has many strengths, including his social motivation, gross mother skills, an interest in a variety of toys, creativity, early literacy and numeracy skills, no-verbal communication skills, and affectionate rapport with family.

(3) The Pediatric Review Report dated September 20, 2023

[169] The mother has now obtained a further Pediatric Review Report dated September 20, 2023. The father was also excluded from this consultation it seems. The source of much of the information in this Pediatric Review Report again comes from the mother and the grandmother. The report was obtained two days before the mother filed her reply affidavit.

[170] According to the Pediatric Review Report, the mother and the grandmother reported that the child’s behaviour had escalated, and he was now having “more extreme “explosive” meltdowns consisting of screaming, hitting and throwing objectes and becoming aggressive towards others” on “a daily basis, often several times per day, and may last up to one hour”. The mother apparently gave the developmental pediatrician two videos depicting this behaviour, although they were not filed with the Court. The mother has additionally filed with her affidavit of September 22, 2023, a supervised access note from back when the father had visits through Brayden Supervision, along with some other medical documentation, to demonstrate that others have observed the child’s hyperactivity and defiance.

[171] Taken at face value, what these additional reports from the mother and the grandmother to Grandview, and these additional documents that form part of the mother’s September 22, 2023 reply affidavit reveal, is that the mother has also had difficulty managing this child’s behaviour. If the behaviour is now escalating, that is happening under the mother’s watch. The father has not had contact with this child in months.

(4) Analysis Respecting the Parents’ Abilities and Willingness to Care For and Meet The Child’s Special Needs

[172] The father says that he has been ready to have parenting time since September 2020. To prepare for this, he initially obtained an age-appropriate car seat for the child, he installed baby gates in his home, and he purchased a baby monitor.

[173] The father used to have a baby crib in his home, but he has changed that out for a toddler bed that is close to the ground, as the child has aged. He says that the child has slept in this bed a total of only four times, as a result of the mother’s refusal to permit parenting time.

[174] The father says he purchased books and toys, which are in the child’s room in his home, but which have remained unused. The father points out that there are two parks near his home.

[175] In addition to the plethora of other allegations above, the father says that the mother has also unreasonably alleged that he lives in a high traffic area, and that this exposes the child to harm too, given his propensity to dart out into traffic, or because he is a “flight risk”. The father points out that both parties live on the same street, albeit in different cities/towns (the same street runs through both). He says that there are sidewalks outside, but in any event, when outside he will ensure the child’s safety by carrying him or holding on to him tightly. He also has a fully fenced in backyard with a latched gate.

[176] From the mother’s perspective, these behavioural issues are another reason that the mother says the Court should exercise caution. At ¶ 119 of her affidavit of August 11, 2023, the mother says she is “very concerned” about the father’s ability to manage the child given the challenges that she faces. I would have thought that this argument would be made in the context of his request for unsupervised parenting time, let alone primary care, after having limited parenting time and due to her concern that he is minimizing the child’s behaviour. But I then noted that at ¶ 3 of her affidavit of September 22, 2023, she now says that her concern about the father’s inability to cope is tied to her concern that the father has “drugged the child”. By making statements of this nature, that are not rooted in any reality, the mother undermines the force of the different argument.

[177] If I were to give the mother the benefit of the doubt, and reframe the argument to give it its most reasonable presentation, the mother says the father is minimizing the child’s behaviours in his affidavits. He also lacks the experience to parent this child. I find some merit to the latter argument, and less to the former.

[178] It is true that the father does not see the child’s behaviour in the same way as the mother does. But in my view, there are several possible reasons for this. One explanation is that the mother has exaggerated the reported behaviours. Another is that the father in denial or he is minimizing as the mother says. An equally plausible explanation is that the father’s time with the child has been restricted, so he has not had the same experience and opportunity to parent and observe all that is entailed in raising this child.

[179] As alluded to earlier, the Court could easily conclude that the mother is not reliable and discount what she has said about the child’s behaviour. I will not do so. Taking the mother’s descriptions of the child’s behaviour at their face value, the Court expects that with more involvement, the father will develop a different appreciation of the issues and parenting skills to deal with the child.

[180] Nevertheless, the Court still remains concerned about the second argument, which arises out of the extent to which this father has not parented the child (although not his fault). This is the most important fact, that causes the Court some pause, when considering the father’s request for relief. Relatedly, the Court also pauses for concern, given the comment in the Grandview Assessment about the child’s “affectionate rapport with family”, which I take to mean the child’s bond with the mother and the maternal grandmother.

[181] At ¶ 77 – 79 of Catholic Children’s Aid Society of Toronto v. R.M., 2017 ONCJ 784, Sherr J. wrote about the problems that arise when a parent does not have meaningful parenting time, or increased parenting time, prior to trial (or in this case, prior to this motion). Although his comments were made in the context of a child protection case where there had been a removal and one of the goals of the child protection legislation is to promote family reunification, much of what Sherr J. wrote is analogous to the situation that now confronts this Court.

[182] Despite my concerns, I find I must balance the absence of evidence of the father’s parenting, against the very concerning risks of the child remaining in the mother’s sole care under the circumstances. I also take into account that despite the interruption in his contact with the child, the father is nevertheless aware of the identity of the child’s health care professionals and speech pathologist. He has undertaken to diligently schedule and attend all medical health appointments. He has now reviewed the Grandview Assessment. He has undertaken to work on any exercises and homework from Grandview, and to schedule and attend speech therapy with the child. He lives with his parents and has their support.

[183] The father is aware of the recommendation in the Grandview Assessment about socialization. He is proposing to enroll the child in junior kindergarten in his catchment area. He says the school will accommodate the child’s needs and he will follow up to ensure the child is positioned for success.

Reason # 4: Joint Decision-Making Is Not a Viable Option

[184] Had I been inclined to leave aspects of the status quo in tact, I might have considered ordering joint decision-making to preserve the balance of power between the parents. But I am entirely satisfied that joint decision-making will not ever work in this case. I am concerned that any form of joint decision-making is more likely to inflame the parents’ conflict and expose the child to it, which very much militates against such an Order: see S.S. v. S.K., 2013 ONCJ 432 ¶ 43. The fact that the father has been excluded by the mother from the child’s health care also militates against such an order.

[185] The Court finds that it must select a parent to be an arbiter when it comes to making significant decisions about this child. The Court selects the father. I address below the evidence and arguments about the particular school issue before the Court.

Reason # 5: The Record Consists of More than Conflicting Affidavits

[186] One of the reasons for caution in a motion of this nature is that the calibre of evidence before the Court at the interim stage of a case is often imperfect, untested by cross-examination, and not fully fleshed out. While the affidavit evidence in this case has not yet been tested under cross-examination, the record before the Court also consists of multiple, third-party records, generated as a result of the police’s and the Society’s multiple investigations, and the health care interventions.

[187] As I have just indicated, I have also considered the evidence about the child’s special needs, including the observation and testing evidence contained in the Grandview Assessment. Although not a custody or access assessment report of the kind referred to by MacKinnon J. in J.D. v. N.D., and by Mitrow in Bos v. Bos, the test is not so “rigid and inflexible” as to preclude a court from considering this kind of evidence, prior to trial, either.

Reason #6: This Case is Not Trial Ready

[188] This consideration has both a procedural, and at least two substantive components to it.

[189] Procedurally, the trial coordinator advised me that the next event in this case was to be another settlement conference before Rowsell J. on November 1, 2023. There would then need to be a Trial Scheduling Conference. The November 1, 2023 conference is not proceeding due to this motion and the timing of the release of this decision. The case will not be ready for the November sittings. Perhaps they will be ready for May, 2024, if the parties focus, but I do not know.

[190] More substantively though, as an alternative to an outright reversal of this child’s primary care, I also considered whether to significantly increase the father’s parenting time in tandem with making orders for decision-making. But I have no confidence either, in view of what has gone on during the prior proceedings, that just increasing the father’s parenting time will actually enable the father and child to have meaningful time. I equally have no confidence that this child and this father for that matter, will not continue to be exposed to more allegations, were I to make such an Order. I further recognize that significant resources have already been devoted to this family by the police, a child welfare agency and from health care professionals, and by the Court, to investigate and manage these allegations, and the father’s parenting time. This has to stop.

[191] Consequently, I do not only change the child’s residence and make orders about decision-making, but for the same reasons I find that there needs to be supervised access between the mother and the child. That said, I do not understand the logic behind the proposal in the father’s Notice of Motion, that this occur for 90 days only and then there be unsupervised, alternating weekend parenting time. There is no actual proposal from either side about what would happen in the next 90 days, for the mother to change her attitude, beliefs and behaviour.

[192] At this point, it is not up to the father, to craft this for her. The mother needs to consult with her counsel, engage in some serious reflection, in light of this decision, and come up with a proposal of her own about how to move forward. There should also be a serious discussion with the grandparents about their conduct in fueling the conflict and exposing this child to harm.

[193] Second, there are gaps in the evidence about the father’s care of the child because of the interrupted relationship, that need to be considered once that evidence exists.

[194] In conclusion, while I recognize that there have been multiple conferences and motions, this case is not trial ready. Under the circumstances, this militates in favour of the Court’s intervention now.

C. The School (and Day Care) Issue

[195] In awarding the father temporary decision-making responsibility, I have considered his proposal for the child’s school enrollment, in the context of the overall plans before the Court and the evidence of the child’s special needs.

[196] Practically speaking, some of reasoning behind the plan to enroll the child in school, is because the father works. While the father’s employer is said to be flexible and accommodating, at some point the father will have to go to work (although I appreciate that he lives with his retired and semi-retired parents, and he has their support in this new parenting role).

[197] But the evidence before the Court is not just about practicalities. I also do not see the evidence about the child’s special needs as being counter-indicative to school enrollment at this time. The evidence is the following.

[198] The Grandview Assessment reveals that the mother had actually herself enrolled the child in school for the fall of 2023. At the time of the assessment appointments in the spring of 2023, the mother reported to Grandview that she had not yet spoken to the school, but was concerned about “school readiness” and “flight risk behaviour”.

[199] There is very little evidence from either side about whether either spoke to a school about how the child’s behaviour would be managed in a school setting subsequently. Instead, as of her August 11, 2023 affidavit, the mother now says she intends intended to enroll the child in a “kindergarten readiness program” at a community center, rather than in school. The mother otherwise says that she takes A. to a drop-in preschool program three days a week, for two-hour blocks of time. She also says that she takes the child to the “Early On program”, two days per week. The father argues that the mother’s new plan for the readiness program at a community center is a reaction to his motion asking for decision-making authority to enroll the child in school.

[200] Notably, the Grandview Assessment does not make recommendations one way or the other about the child attending junior kindergarten, or not. But with reference to the Pediatric Review Report of September 20, 2023, this motion was argued as if there is in fact a recommendation for the kindergarten readiness program over junior kindergarten. On a close read of the Pediatric Review Report, that is not actually what the pediatrician said in that subsequent report, either.

[201] The Pediatic Review Report states that the child is “eligible for junior kindergarten this year, but his family decided not to enroll him in junioir kindergarten as they are concerned about his school readiness skills”. It says he will instead be going to “EarlyON programs, a drop-in preschool program and will be starting a school readiness program later this month.” There are then two new recommendations, for one-on-one support at the school readiness program [as that is where the mother said the child would be attending] due to the “unpredictable behaviour”, and a “functional behavioural assessment” to clarify the underlying causes of the behaviour. The Report does not opine on the suitability of the community center program over school.

[202] Meanwhile, the father has said that the school that he proposes has a “certified teacher”, an “Early Childhood Educator”, and the school is “open to accommodating any special needs of any student enrolled at its school”. He says he will “diligently pursue meetings and follow ups” with the school.

[203] Day care might also assist with the child’s socialization, assist the father as he takes on a greater parenting role, and assist him respecting his employment obligations, if he needs it (although the father says he may not need day care if the child attends junior kindergarten). The Pediatric Review Report likewise makes recommendations about day care, if it is put in place. It says that “once [A.] is enrolled in a licensed child care program, the childcare is encouraged to contact Grandview’s Preschool Outreach Program or Children’s Developmental and Behavioural Services for additional support”.

[204] Notably, the Grandview Assessment also says that the mother had the child on a wait list for day care. Unhelpfully, there is no evidence before the Court as to A.’s place on the wait list and consequently when it is expected that A. will be able to start in day care.

[205] The Court nevertheless inquired about this during oral argument, but did not receive a helpful answer from the mother. She vaguely told the Court that she has placed the child on several waiting lists, but there had been no movement. She said she did not know the length of the wait lists, and only that she would be contacted when a spot opens up.

[206] The father can take the Grandview Assessment and the Pediatric Review Report to the school, to seek the necessary accommodations. I also intend to make a disclosure Order respecting day care, to open up the options for the father as he begins to parent this child.

D. The Other Recommendations in the Grandview Assessment and Pediatric Review Report

[207] There are a number of other recommendations in the Grandview Assessment and the Pediatric Review Report that these parents should be implementing.

[208] The Grandview Assessment recommends the parents educate themselves about ADHD, and employ behavioural strategies and medication management. Although medication is available for children 6 years of age and over, it appears it was still offered and the family (being the mother and grandmother) were not interested in pursuing this at this time.[^7]

[209] The Grandview Assessment further recommends that the child should be encouraged to participate in community recreational activities and play dates to help him continue to develop social interaction skills. He continues to be eligible for speech therapy and recreation therapy programs through Grandview.

[210] Finally, in the Pediatric Review Report, the developmental pediatrician again discussed medication, but the family remained disinterested in that. She nevertheless “strongly encouraged the family to pursue the recommendations and resources from the initial consultation related to parenting a child with ADHD, including connecting with Kinark Child and Family Services and participating in the Triple P Positive Parenting Program”.

[211] The father now has a good template or recommendations to use, to start implementing services for this child as he undertook to do.

E. The Submissions About A Custody and Access Assessment, Or the OCL As An Alternative

[212] The Court found it incredibly unhelpful, for the mother to argue that there should be a section 30 assessment, only to then not propose one for various reasons, and to then suggest that the Court should recommend one in this ruling and she would then consider it, and try to find the resources to fund it.

[213] If the mother was serious about pursuing a custody and access assessment, then she ought to have done so properly.

[214] What the mother did, when she advanced these arguments, in tandem with saying the father needs to have supervised access, was to try to bolster her position, that the Court should take a cautious approach, without actually putting forward a meaningful and realistic solution as to what would happen next, during the next period of caution. It appears from the bench, that her approach to this issue was thinly disguised attempt to delay further the father’s relationship with the child.

[215] In regards to the alternative argument, initially set out in the August 11, 2023 affidavit that the OCL is the “next best thing”, this is advanced by the mother for two principal reasons. The first relates to the mother’s argument that more investigation is required to address the allegations of abuse. The second appears to relate to a submission that the child’s special needs can be further explored and considered. There is no merit to the former. Whether the child’s special needs will be further assessed seems to me to be more the domain of the health care professionals rather than the OCL.

[216] But having considered the matter further in light of this Court’s ruling on the other matters, there is a different reason to appoint the OCL, in my view. If this case does not settle, the Court would benefit from updated evidence about the father’s parenting of this child, now that he will be put in a position to parent, the father’s implementation of the recommendations, and about how the child does under the new parenting regime. The Court would benefit from some evidence about any insight the mother gains following this decision. The Court would also benefit from recommendations about what the final parenting plan should be, after the passage of some time, once this new parenting arrangement has been in place and unfolds.

F. A Copy of this Decision Shall Be Sent to the Durham Children’s Aid Society

[217] Finally, I intend to direct that a copy of this decision be sent to Nicole Constantin at the Society for the following reasons:

(1) With the police, the Society has been extensively involved with this family;

(2) The Society has opened and closed files;

(3) Although the Society verified a risk of harm to this child, it closed the file at a time that in my view, this family needed ongoing support and services;

(4) A number of aspects of this case have approached if not crossed the line into matters of child protection, yet the parents were left to litigate these issues in private parenting litigation. A father-child relationship has been significantly disrupted in the process;

(5) The Society should be made aware of this Court’s ruling;

(6) The Society has duties to provide services to families in an out of court scenario. The Court is of the view that the Society has an ongoing role to play, now in supporting the father as he begins to parent this child. The Society should be supporting and assisting him to ensure that he gets the various services in place for this child, to address the child’s special needs, and to ensure the Court’s temporary order succeeds; and

(7) The Society should also be supporting and servicing the mother, to help her address her problematic behaviour, and to ensure she gains some insight into its impact on the child.

PART V: ORDER

[218] I make the following temporary Orders:

(1) The child’s primary residence shall be with the father;

(2) The father shall have sole decision-making responsibility, which includes health and education, and includes the authority to enroll the child in school and/or day care if he so chooses;

(3) The mother shall immediately provide the father with the child’s documentation, including any birth certificates, health card and passport (if one exists);

(4) The mother shall immediately provide the father with all information about the day care that she has explored for this child and his status on any wait lists;

(5) The father shall ensure that the child continues to attend speech therapy and the therapeutic recreation programs that he receives through Grandview. In addition, the father shall ensure that the child participates in Occupational Therapy when the child’s spot on that wait list opens;

(6) The father shall arrange a consultation with the child’s health care providers, especially with the developmental pediatrician at Grandview if possible, to review the recommendations in the Grandview Assessment and the Pediatric Review Report, especially the behavioural strategies that were already reviewed with the mother and the grandmother, and the discussion about medication;

(7) The Court is aware from the Pediatric Review Report that the developmental pediatrician has not scheduled any follow up with A., as he has been discharged from medical services at Grandview. The Court nevertheless requests that the developmental pediatrician meet with the father for the purpose set out above. If the developmental pediatrician is unable or unwilling to do so, the Pediatric Review Report indicates that a referral has been initiated for a community pediatrician for ongoing developmental monitoring and ADHD management. The father can have his consultation there;

(8) The Court recommends that the father also have a discussion with Grandview or another suitable health care professional about his plan to enroll the child in school, and to discuss with that person what would further assist the child in that regard;

(9) In any event, if the father enrolls the child in school or day care, the father shall ensure that he brings the recommendations in the Grandview Assessment and the Pediatric Review Report to the attention of any school or day care in which he decides to enroll the child, for the purposes of obtaining the necessary accommodations for the child. This includes the recommendation in the Pediatric Review Report, to encourage the day care to contact Grandview’s Preschool Outreach Program or Children’s Developmental and Behavioural Services for additional support as needed;

(10) The father shall keep the mother informed of any significant decisions he makes under the ambit of his decision-making responsibility;

(11) The mother shall have the right to information in accordance with section 16.4 of the Divorce Act. There shall be an order in accordance with that section;

(12) In accordance with the Grandview Assessment and the Pediatric Review Report, both parents shall:

(a) seek out information and education from the Centre for ADHD Awareness Canada;

(b) consult with Kinark Child and Family Services respecting appropriate programming for each of them; and

(c) enroll in and take the Triple P Parenting Course, when possible.

(13) The mother shall have weekly supervised parenting time at the YMCA - Durham Supervised Access Program, for such period of time that the center can accommodate. In the event that there is a wait list to access this service or if the program is still only able to accommodate bi-weekly visits, then the mother may have supervised access through Brayden Supervision or such other alternative program for 3 hours per week until the supervised access program starts (or in the alternative week if the Durham Supervised Access Program only accommodates bi-weekly visits). The mother shall be responsible for the cost of supervision;

(14) The parties are to complete any necessary intakes forthwith and they are to fully cooperate to get supervision started as soon as possible. If there are any logistic or scheduling issues arising out of this Court’s Order for supervision, then I am to be immediately contacted;

(15) The Office of the Children’s Lawyer is appointed. The Court requests that the Office of the Children’s Lawyer investigate and prepare a report pursuant to section 112 of the Courts of Justice Act. A copy of these Reasons for Decision shall be sent to the Office of the Children’s Lawyer with the standard form Order appointing it. The parents are to submit their intake forms to the Office of the Children’s Lawyer in the usual course. They are to do so on time and not to miss any deadlines for the submission of intake forms;

(16) A copy of these reasons for decision shall be sent to Nicole Constantin at the Durham Children’s Aid Society;

(17) This matter is to return before me on November 27, 2023 at 9 AM by zoom, TBST. I am scheduling this appearance during the trial upcoming sittings before the start of whatever will be normally scheduled that day. If counsel are not available, please contact the trial coordinator to find another 9 AM time slot during the sittings;

(18) The Court requests that someone from the Durham Children’s Aid Society be in attendance;

(19) The purpose of the attendance shall be to hear whether the Office of the Children’s Lawyer accepted the Court’s referral, and to monitor and to receive an update about the father’s implementation of the above terms, about how the child is tolerating the new regime, and about how the Society intends to support this family going forward. Written updates about these matters are required;

(20) The purpose of the next attendance shall also be to deal with costs;

(21) At the conclusion of the appearance on November 27, 2023, I shall set next steps; and

(22) The father was the successful party and is presumptively entitled to costs. I encourage the parties to settle costs. If they cannot, then at least 7 days before the return date, the parties are to exchange Bills of Costs and any Offers to Settle. I will hear costs arguments orally on the return date.

Justice Alex Finlayson

Released: October 31, 2023

OSHAWA COURT FILE NO.: FC-19-1710

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

G.R.G.

Applicant Father

– and –

S.G.

Respondent Mother

REASONS FOR DECISION

Justice Alex Finlayson

Released: October 31, 2023

[^1] The father did not specify the number of missed visits due to illness.

[^2] Rowsell J.’s Endorsement of September 10, 2020 also notes that the mother did not agree to return to Side by Side, although it does not specify her reason.

[^3] This was still in the midst of the Court’s reduced operations due to the Covid-19 pandemic.

[^4] The father denies this: see ¶ 102 of his affidavit sworn September 15, 2023. The source of this information for this denial is the father’s counsel. I accept the word of the father’s counsel, as an officer of the court.

[^5] The words “small trace” are repeated and emphasized three times in the police occurrence report, and the word minimal is used once.

[^6] I say “at least three” because there was also the prospect of a motion before Fryer J. in October of 2020 but it settled, the father’s contempt motion that went before Fryer J. in March of 2023 did not proceed, and both of the motions before Lack J. and Nicholson J. involved multiple appearances (a total of 6) to monitor and manage the mother’s compliance.

[^7] A Pediatric Review Report dated September 11, 2023 that the mother subsequently obtained (discussed below) more clearly suggests that a trial of ADHD medication was offered, but declined by the family given the child’s age.