COURT FILE NO.: FC-20-584-00
DATE: 20240521
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
S.S. Applicant Mother
– and –
R.A. Respondent Father
Counsel: Michael J. Stangarone and Julia McArthur, for the Applicant Mother On his own behalf
HEARD: May 19, 23, 24, 25, 26, 29, 30, 31, June 1, September 18, 19, 20, 21, 22, and November 21, 22, 23, 24, 27 2023
JUSTICE ALEX FINLAYSON
PART I: OVERVIEW
[1] This case primarily concerns a young boy named D. D. recently turned 8 years old. D. has an anxiety disorder, which is exacerbated by his separation from his parents, and a mild form of Tourette syndrome, also aggravated by his anxiety. By the time that this 19-day trial began, D.’s parents had been embroiled in high conflict litigation for close to three years. D. sometimes exhibited anger and aggression towards both of his parents, and his peers at school.
[2] This case also concerns financial issues, specifically child and spousal support, and equalization of net family property. The father is a senior manager with a major consulting firm. In the year before this trial, his employment income was $223,000.00. As the trial approached, the father changed his work arrangements to work less, and consequently that significantly decreased his income. The father came into this trial in non-compliance of an order for the uncharacterized payments of monthly funds to the mother, and in default of a costs order.
[3] The mother is a creative person. She started to work as a photographer before the marriage. While she occasionally engaged in artistic projects during the marriage, she otherwise did not work. She was financially dependent on the father. That remains so to this day.
[4] The parties were married for a short five years only, between April 10, 2015 and June 1, 2020. Their marriage was very traditional. Both parents are of the Muslim faith. They agree that their marriage was arranged in accordance with certain cultural norms and traditions.
[5] Upon the marriage, the mother moved into the basement of father’s house in Ajax that he owned for several years before the marriage. The paternal grandparents and the father’s sisters also live there. The other paternal family members occupy other areas of the home.
[6] The mother became pregnant with D. soon after the marriage. She was the child’s primary parent during the marriage.
[7] The parties had some mental health difficulties during the marriage. The parties moved out of the Ajax property twice during the marriage. These moves away from the father’s Ajax home did not last long. Soon after the first move out, the parties returned to live with the father’s extended family, after the mother got ill. After their second move out, the parties separated.
[8] The parties’ separation was dramatic. The father discovered that the mother had an affair.[^1] The father alleges that the mother was going to harm him with a box cutter. The mother ended up in the hospital again, experiencing a mental health episode. The father did not allow the mother to return to the home. When she tried to return home, the father intimated to her that he had changed the locks, and that he would telephone the police.
[9] I found the father to be very angry towards the mother. That anger continues to this day. It has manifested itself in his parenting, in his dealings with service providers involved with the family, in his litigation conduct, and in the positions he has taken at trial. Immediately after the separation, the father seized control of the situation respecting D.’s parenting. He altered the status quo. He would later use this trial process to expand upon prior allegations about the mother’s character. The father disparaged and humiliated her throughout this trial.
[10] With nowhere else to go, the mother ended up living with her brother in Stouffville from around mid-June 2020 until about the end of the year. The father restricted the mother’s contact with D. in these early days, all but precipitating the mother to launch this case on a rush basis. Once this case got underway, restrictions were then imposed on the mother’s contact with the child on ostensible mental health and safety grounds, pursuant to an early Consent Order of Justice Fryer. The mother was able to see D. while she lived in Stouffville, under the supervision of her brother or his wife. Those visits did not then occur without conflict.
[11] By early 2021, the mother moved out of her brother’s house in Stouffville and into a house in Ajax, with her parents and sister. The mother’s new home was near where the father lived, and where the child goes to school. But the father would not allow visits to take place in that home, even if supervised by another family member. For the better part of a year, both the mother, and the father and D., separately commuted back and forth between Ajax, to the maternal uncle’s house in Stouffville, for the mother to have her supervised parenting time. This too caused problems.
[12] Regrettably, this early requirement, that the mother could only have supervised parenting time with D., went on for almost two years. Furthermore, her parenting time actually decreased, rather than increased.
[13] It was only in early 2022, when the maternal uncle was no longer willing to supervise, that a change to the parenting arrangements occurred. The father would not agree to the Court lifting the supervision. This led to a motion I heard on March 17, 2022. At it, the mother only asked for limited time, pending a May 2022 trial. I lifted the supervision and granted the mother’s motion in full.
[14] By that point, the mother’s mental health had been scrutinized multiple times. Both at the time of the March 17, 2022 motion, and again by the time of this trial, none of the professionals who had been involved with this family supported the father’s narrative about the mother, that she is mentally ill, that she must take medication, that she does not perceive reality when not taking medication, that she makes up false narratives and gaslights him when off her medication, or that the mother’s sister’s mental illness or the maternal grandparents’ past difficulties in their own relationship, pose some kind risk for this child. Equally, none of the professionals involved with this family have taken the position that that the child’s mental health deteriorates as a result of contact with the mother either, another of the father’s unsupported positions in this litigation. The professional evidence has actually been to the contrary. Yet the father has been completely unwilling or unable to accept this feed back, and consequently to work out a reasonable parenting arrangement with this mother.
[15] Unfortunately, the case was not then called to trial for another year. It began during the spring 2023 sittings. The Court had previously appointed the Office of the Children’s Lawyer to undertake an investigation and to prepare a report pursuant to section 112 of the Courts of Justice Act. Following the release of this report (the “First OCL Report”), the father filed a 95-page dispute of it. His dispute had a table of contents with various headings and subheadings, and it also had attached to it, another report. The first clinician’s supervisor initially responded to the father’s dispute by letter supporting the validity and accuracy of the First OCL Report. The OCL later changed its mind, and offered to undertake its second section 112 investigation. On April 19, 2022, Fryer J. appointed the OCL for the second time (which resulted in the “Second OCL Report”) and determined this case was not trial ready as a result.
[16] At the outset of this trial, the mother asked the Court to award her sole decision-making responsibility. She asked the Court to order parenting time on a so-called 2-2-5 schedule and various ancillary parenting orders. By the end of the trial, the mother changed her position, and instead asked the Court to order a schedule that would make her the primary parent. The 2-2-5 shared parenting schedule became her alternate position.
[17] By contrast, the father initially asked the Court to award him sole decision-making. He asked the Court to order limited parenting time for the mother, not to interfere with the child’s religious Saturday school. He continued to take the position that the mother’s sister and parents pose risks to this child. He asked for what would essentially be a mutual restraining order, or perhaps a lesser conduct order. In his Opening Trial Statement, the father also argued that there needed to be further disclosure, including health disclosure from the mother, and a psychiatric assessment of her.
[18] By the end of the trial, the father changed his position, too. He stopped short of asking the Court for the outright eradication of the mother from D.’s life, forever. He asked for “An Order of protection terminating the Applicant’s parenting access time”. His request for a restraining order became one sided (against the mother). And he would have the Court completely remove the mother’s ability to talk to professionals involved in the child’s life, or obtain documentation about the child, not vetted through him. His alternative position, offered up during closing submissions during a dialogue with this Court, was there should be a suspension of parenting time and of the mother’s involvement, but she could come back to Court upon obtaining a psychiatric assessment and taking a parenting course.
[19] During closing submissions, Mr. Stangarone on behalf of the mother, argued that she had been emotionally abused throughout this marriage and that the father continued his abuse in various ways post-separation, up to and including during this trial. I agree with this argument of Mr. Stangarone for the reasons that follow.
[20] But this Court’s Order cannot turn entirely on the father’s bad behaviour. There must be a holistic best interests analysis, with the Court’s sole focus being on the child.
[21] The mother’s mental health has improved in the years since the end of the marriage. But the child exhibits some challenging behaviours. While I have an overwhelming amount of concerns about the way the father has conducted himself, his approach to parenting, his view of the mother’s relationship with the child, and his conduct of this case, I also have three very specific concerns about the mother’s parenting. I am concerned that the restrictions that were imposed on the mother, coupled with the father’s influence on the child, his attempts to exclude the mother from this child’s life, and his attempts to control her, have had their effect. She has been deprived of a full opportunity to parent, and to learn along the way. The mother experienced some difficulty parenting this child. Frankly so has the father.
[22] This confluence of problems has contributed to limiting the range of remedial options that might have otherwise been available. That said, I do not find the three concerns about the mother’s parenting to be insurmountable.
[23] For the reasons that follow, I find that joint decision-making, which the author the First OCL Report recommended, is not workable. Equally, the father cannot be trusted to be this child’s sole decision-maker, despite the recommendation for that in the Second OCL Report.
[24] I find that the Court must choose an arbiter between these parents to decide. After much careful consideration, the Court selects the mother. In the end, despite the Court’s three concerns, I have more confidence in her ability to learn, to have insight, to correct mistakes, and to recognize the importance of the child’s relationship with the other parent than the father does. In short, the Court’s concerns about the father far outweigh those it has about the mother.
[25] Because of the three concerns about the mother, I find that the Court should map out the decisions that need to be made with as much detail as possible. Recognizing that it is not possible for me to exhaustively do so, the mother will be given the residual power to decide any other issues.
[26] I also find that the mother’s time with the child needs to increase immediately. The evidence does not support the father’s request for an order terminating the mother’s parenting time, either temporarily pending some kind of review or Motion to Change, or permanently.
[27] The Court is also concerned that any Order it makes should succeed. Therefore, for the next year, until counselling for this child resumes and both parents take a parenting course, I increase the mother’s parenting time using the child’s attendance at school as a support to provide the mother with the time and skills she needs, as she continues along her journey as D.’s mother. Frankly, the father also needs these supports. In a year from now, the mother’s alternative request made at the end of this trial, for a 2-2-5 schedule, shall be put in place.
[28] To be very clear, I have no hesitation in finding that if the father is given any leeway, he will use it to marginalize and undermine the mother’s relationship with D., and cause the child emotional harm in the process. I seriously considered whether his parenting time with this child needed to be curtailed to ensure that the mother’s relationship with the child succeeds. In the end I am refraining from making such an Order, because of the medical evidence I heard about the child’s separation anxiety. And I was also not asked to do this by the mother, perhaps in part because of that evidence.
[29] I nevertheless intend to make provision, that if the father fails to support the child’s relationship with his mother, or breaches this Court’s Order in any way, that will constitute a material change. The mother will be entitled to return this matter to Court and to seek a remedy, which may include a reduction of his parenting time, or other relief.
[30] In regards to child support, the father became the child’s primary parent post-separation, until now. The father seeks retroactive child support from the mother, but except for a small amount for 2021, she does not owe him any. The prospective child support order that I am now making engages section 9 of the Federal Child Support Guidelines. Neither side actually provided the Court with the evidence or submissions it needs to undertake a proper Contino analysis. The father did not even fill out the budget section on three of his financial statements. In any event, as the mother does not and will not in the immediate to longer term have any significant income, other than spousal support, there would be little by way of a reduction to child support having regard to the shared parenting schedule that I am ordering.
[31] The mother’s entitlement to spousal support was conceded in a Statement of Agreed Facts tendered at the outset of this trial. The parties differ on quantum and duration. The father’s calculations in both his Opening Trial Statement and his Closing Submissions were premised on him being the child’s primary parent. While that was so for the purposes of retroactive support, that is no longer the case. The custodial payor formula of the Spousal Support Advisory Guidelines the (“SSAGs”) is not appliable any longer.
[32] The father’s expectations about what he will have to pay going forward are not reasonable. For example, after not having even paid the interim uncharacterized monthly amount to the mother each month that he agreed to pay, the father now asks the Court to terminate spousal support altogether as of December of 2023.
[33] I find the father owes a small lump sum on account retroactive spousal support, at the high range of the SSAGs using the “Custodial Payor” Formula. With the new parenting arrangement being ordered, the “With Child Support” Formula shall be used going forward, and the amount of spousal support in a shared parenting arrangement under that formula increases. I find that commencing June 1, 2024, the father shall pay increased spousal support, but which falls slightly less than the mid-range of the SSAGs, but under the “With Child Support” Formula. With child support, the amount I will order equalizes the parties’ net disposable incomes. I also shall order a spousal support review, to occur at any point after 6 years, when D. is ready for high school.
[34] I find the father owes an equalization payment of $124,542.43 to the mother. He owes her pre-judgment interest of $9,902.05 on that amount, up to today’s date. There is no need for more disclosure or more litigation, as the father stated should be ordered. I find that the father took this position based on a statement in an Endorsement of Fryer J., which he took out of context. The parties were given more than ample opportunity over three different trial sittings to call whatever evidence they wanted. If there were gaps in the father’s financial evidence, the father must take responsibility for that.
PART II: BACKGROUND
A. Backgrounds and Financial Circumstances of the Parties
(1) The Mother
[35] The mother is currently 34 years old. She was just 25 when she married the father.
[36] Following her graduation from high school, the mother enrolled in a two-year college diploma program in photography. She did not finish the program. The mother did some photography work for a time. She tried to build a career. That came to an end when she got married.
[37] The mother testified that her career was just gaining traction, when she got married to the father. It is not disputed that the mother did not work much during the marriage. For example, the mother participated in an art show, but did not earn significant funds. This was more akin to a hobby at that point.
[38] Before the marriage, the mother disclosed to the father, that she had student debt that she wanted to pay off. She said that the father wanted her to be a “housewife” and later on, a mother. He agreed to pay off her student debt, but it was never paid off. It is not disputed that the mother was financially dependent upon the father during the marriage. For example, although inconsistently, he gave her funds, akin to an allowance at first, and later access to credit cards.
[39] The mother has tried to do some photography work after the separation, but she has largely been out of the work force. She obtained social assistance in 2022. Her budget is extremely modest, consisting of transportation and cell phone expenses, a small amount for food, minimal health expenses, very modest clothing and personal care amounts, $100 per month for children’s activities, and a gym membership.
[40] The mother does not have a lot of money in the bank. She has had to turn to members of her family for support while this case has been pending. For example, the maternal uncle testified that he paid for a course that the mother took, he provided housing, and he covered other expenses for her. He likewise paid for her legal fees.
[41] On July 16, 2020, just a little over a month after the mother’s former counsel requested that the father commence paying spousal support of $950.00 per month on a without prejudice basis, based on the father’s estimated income of $160,000.00. On July 24, 2020, the mother revised her position and asked for $1,100.00 per month, as her former counsel had been earlier unaware that the father had rental properties and earned income from that. Former counsel made a third request for support on July 29, 2020.
[42] The father started to pay the mother $950.00 per month in November of 2020.[^2] The funds were characterized as an advance, not monthly support. The requirement that he make ongoing advances in this amount was memorialized in a later consent dated November 25, 2020, that was incorporated into the Order of Fryer J. dated December 3, 2020. The relevant term reads: “The Respondent Father shall continue to pay to the Applicant Mother $950.00 per month on a temporary and without prejudice basis as an advance on either property or support”.
[43] The father is in default of this Order as of August of 2023. He is also in default of a costs order of $2,600.00 that I ordered him to pay on March 17, 2022. He has offered various unreasonable excuses for this. This has no doubt compounded the mother’s financial difficulties.
[44] The mother did not really have a plan for her own support at this trial. She testified that she would like to obtain a place of her own and “get back on [her] feet”, but she cannot afford to do so. Were she to move out, she would like to live in the same area as the father, so that the child can continue in his current school, and have the same friends and community.
(2) The Father
[45] The father is currently 39 years old. He holds a Bachelor of Science Degree (Hons.) in Mathematics, Statistics and Actuarial Science from the University of Toronto. He obtained this in 2008. According to his curriculum vitae, he also holds a Masters Degree from the Schulich School of Business at York University. He describes himself as an “executive consultant”, an “obsessive problem solver”, and a “loving father” on this curriculum vitae.
[46] The father is currently employed as a Senior Manager with a large consulting firm. For the seven-year period between 2013 and 2020 (which included the period of the marriage), the father worked as a management consultant for a different large organization. In his Answer dated November 5, 2020, the father claimed to be a “consultant”, “earning $160,000.00 per annum as a T4 employee”. Eighteen days later, the father changed jobs, to work for the new consulting firm. His salary increased in the years that followed.
[47] In cross-examination, the father explained that he entered into a “personal flexibility arrangement” at work. The father said that staring in December of 2022, he was experiencing stress with the trial and with reviewing documents. He also said that he is taking 60 mgs of Cymbalta, and he had medical authorization to do this. The father said that he lost his ability to focus, and that he could not perform at his job as a senior management consultant while on medication. He claimed that now, after Covid-19, a global restructuring within the company, and the softening of the market, he was not able to support multiple time zones or to support the travel requirements of his job, a responsibility he had before, either. He said that the flexibility arrangement allows him to “respect [his] parenting responsibilities”, and to not have to work long hours. The father further explained that he took the entire summer of 2023 off of work, even though this trial was on a complete hiatus during the summer months. He said that the situation was “extremely stressful” as the reason for the time off.
[48] During closing submissions, the father said that he went back to work for a week, only to then go on a medical leave. As such, he was apparently paid based on full-time work. The father said he intended to return to work in 2024 (after this trial ended), but only on an 80% basis.
B. The Circumstances of the Parties’ Relationship
(1) The Parties’ Engagement
[49] The parties were introduced by a mutual friend in 2014. They were engaged soon thereafter.
[50] The engagement lasted about 9 months. The mother felt that their courtship was too rushed. She said she had concerns, early on. For example, she said she wanted to live with the father separately; not in the father’s household with his other family members. That did not happen. The mother testified that the father promised her that his family would give the new couple space. That did not materialize. There were brief times during their five-year marriage when they lived apart from the father’s extended family, but the situation did not last, either.
(2) The Parties’ Experiences Living in the Basement of the Father’s Ajax Home
[51] The mother described feelings of isolation and desperation after the marriage. She testified that she felt cooped up and secluded living in the basement of the father’s home. The mother also felt mistreated by members of the father’s family. She testified that there was a lack of communication within the household. She felt caught in between what the father’s family wanted and expected of her, and what she wanted in the new marriage. The mother explained that when the father was gone to work, the paternal grandmother would “talk down” to her. The mother described the father’s household as “intense”. She said she was turned into a scapegoat.
[52] The mother felt isolated from her family. She said that the father even encouraged her not to talk to her own mother. She did not have much of a support network. She was left financially “in the dark”. The father controlled the finances.
[53] The father disagreed that the environment in the home was somber. During his examination-in-chief, the father tendered various family photographs to try to rebut the mother’s perspective. He also tendered photographs to demonstrate how the mother was not isolated from her family, but rather they were involved.
(3) The Parties’ Expectations and Alleged ‘Lifestyle’ Choices
[54] There was a clash in the parties’ expectations about what their married life would look like. The mother views the father and his family as religiously more observant and conservative than she was. The mother testified that the father’s family had a number of expectations of her, including that she had to wear their traditional clothing.
[55] The father showed the Court photographs of other family members, like an aunt and a cousin, who chose to dress differently, and said these family members are not mistreated or harassed on account of their personal decision to dress this way.
(4) The Family’s Pilgrimage to Iraq in 2015
[56] When the mother was approximately five months pregnant, the father and his extended family organized a pilgrimage trip to Iraq. This trip caused a significant rift within the family.
[57] The mother explained that she was put under immense pressure to take this trip. She said she was made to go to her doctor to get clearance to travel. When she talked about not wanting to go, the mother said she was told to “suck it up” and to be “grateful”. She felt “herded” to go on this trip. The father objected to the mother’s characterization of having been forced to go on this trip, citing the fact that the mother had renewed her passport in advance of this trip, and asked if her own parents could accompany his family on the trip, which they did.
[58] The mother testified that she felt sick during her pregnancy and that happened while on this trip. She said she was criticized and looked down upon for not engaging in more activities during this trip. The parties missed their return flight to Canada at the end of the trip, because the mother experienced pregnancy sickness in the airport and needed to get some food. The mother testified that the situation was also quite tense because there were bombings happening in the area at the time.
[59] The mother said that after she and the father returned home on a different flight, she was criticized by one of the father’s sisters for having “embarrassed the entire family” and for being “extremely disrespectful”. The mother testified there was a lot of tension in the household. She explained that the father suddenly packed up their belongings, and they moved into a condominium in Markham.
[60] The father denied that the mother was sick and needed food as the reason for the missed flight back from Iraq. He made other allegations about why they missed the flight home, one of which is extreme. The father claimed the mother refused to get on the plane unless they could move out of his parents’ home upon their return, but he had already told her, before the marriage, that he could not support two households. He even claimed that the mother threatened to harm the unborn baby, if he would not agree to move out.
(5) The Parties’ Temporary Relocation to a Condominium in Markham
[61] The parties did move out of the Ajax home into a condominium in Markham. That did not last long. At most, the parties moved out for between 4 or 5 months.[^3] Soon after the mother gave birth, she returned to the hospital, suffering from a high fever. The mother testified that while she was in the hospital, the father took new baby D. to the Ajax property. The father then took her back to the Ajax home too, upon her discharge from the hospital.
(6) The Parenting Arrangements During the Marriage
[62] There was some disagreement between the parties about who was the child’s primary parent during the marriage. I find that the mother was D.’s primary parent.
[63] The mother testified about the care that she provided for the child. She explained that the father worked between 60 to 80 hours per week, and never on a part-time basis. Rather, he told her about various other work contracts that he wanted to pursue instead.
[64] The father travelled for work. The mother explained that the father’s business travel was within Canada and the United States, and that some of these trips lasted an entire week. The mother testified that the father would be gone from Sunday evenings, and return Friday night, or Saturday mornings, pretty much every week. She recalled that the child would only spend one bedtime with the father at home. The mother occasionally travelled with the child, to accompany the father on these business trips, but not always.
[65] The mother tendered a number of photographs of her and the child together, of the child’s living environment, and of the parenting that she did during the marriage. These photographs included engaging in art projects, and taking D. on outdoor and other activities, like swimming.
[66] The mother testified that the father’s family members helped care for D. when the father was home from work, but when he was away, they expected her to care for D. full time without assistance. She testified she only got a reprieve if she needed to go to a doctor’s appointment, or the like.
(7) The Mother’s Brief Hospitalization in 2018
[67] The mother experienced mental health episodes during the marriage. She testified that she experienced anxiety and stress, as she was closed off from her support system. The mother first saw a psychiatrist named Dr. Khitab, in 2016. She said she was diagnosed with generalized anxiety disorder and depression.
[68] By 2018, when D. was about two years old, the parties were still living in the Ajax home. The mother explained that she wanted to move out. The mother said that the father was dismissive. The mother became very upset, and she ended up calling a “suicide hotline”. Although she testified that she told the person on the hotline that she was not actually planning suicide, she said she had some “dark thoughts”.
[69] The mother ended up either going, or being taken to the hospital, for an overnight. She recalled that the doctor at the hospital must have prescribed her some medication for anxiety, and advised her to sort out her situation at home.
[70] After this brief hospital stay, the mother told the father, again, that she wanted to move out of the Ajax home. She also said she wanted the parties to attend counselling together. To his credit, the father did agree to move out of that house, for a second time, after this episode. He did not go to counselling with her, however.
(8) The Parties’ 2019 Move to the Oshawa Rental
[71] The parties moved to a rental property in Oshawa, but the father continued to work a lot when the parties lived in Oshawa. The mother testified that the father was “coming in and out” of this property when they lived there (referring to the amount of time he spent away for work).
[72] The mother experienced another mental health incident in the Oshawa rental. She smashed a glass and broke a window, while caring for the child, while the father was away. She did reach out to him over text message for his support when this occurred.
[73] The child’s life in this Oshawa rental did not last. After the separation, the father took D. and returned to living with his family in the Ajax home.[^4]
(9) The Parties’ Separation and the Immediate Aftermath
[74] On May 31, 2020, after she had put D. down for an afternoon nap, the father confronted her. He had her iPad in hand, and asked her if there was anything she wanted to tell him. The mother’s response was that they had a “problem” and she wanted “emancipation”. The mother testified that an argument ensued as the father insisted on knowing who the mother was speaking to over the internet. According to the mother, the father became upset, threw everything off his desk, and demanded to know this information, since he was entitled to it as the mother’s “husband”.
[75] The father denied having confronted the mother about the affair, or that he did so violently. He claimed that it was the mother who “lost control”. He said that she had hit D. on the hand, because D. tried to get her phone to watch cartoons. The father said this caused him to ask the mother if there was something on her phone that she did not want the child to see. The mother admitted to having met another artist.
[76] The father testified that later in the day, after the child had woken up from his nap, he overheard the mother either speaking on the telephone, or talking to herself. He said she was talking about a box cutter, saying that she would either attack the father with it, or use it in self-defense. He also said he had heard her talking about his life insurance. The father says he was afraid.
[77] The father said he later saw the mother with her hands inside the pockets of a ‘hoodie’ sweater, but he talked to her calmly, while also maneuvering in a fashion to grab her hand, and take the box cutter away. He said that he encouraged the mother to take some medication, which she did, and she then fell asleep. He said that he called a “suicide prevention” hotline, while she was sleeping. The mother denied that she had planned to hurt the father.
[78] According to the mother, the father suggested that they drop D. off at his sister’s house for a sleep over, and that the mother go to her parents’ house for a “break.” While their accounts differ about how this was ultimately implemented, the status quo of D. being away from the mother began at this time, essentially immediately upon the separation. D. did not accompany his mother when she was taken to her parents.
[79] The mother thought this break was to be a temporary one. She said she only packed enough clothing for one or two days, but the separation would become permanent.
[80] In the days that followed, the mother had another mental health episode. On June 4 or 5, 2020, she went to Credit Valley Hospital. Like her previous hospitalizations, she was only there briefly. She testified that she was diagnosed with “situational stress”, said she was prescribed anti-anxiety medication. She said she obtained a recommendation for counselling.
[81] There was insufficient space in the mother’s parents’ house for her to stay long term. The father booked a hotel for the mother to stay at for a few days. She would later go to her brother’s house in Stouffville thereafter.
[82] The parties communicated over text message in these days that followed the separation. After being away, the mother apologized to the father and told him that she would do whatever it would take to save the marriage, including resuming wearing the traditional clothing. The father deflected and delayed allowing the mother to return to the house.
[83] The mother’s counsel asked the father about a number of other messages exchanged between them during these first few days after the separation. The general theme of these messages was in the nature of discussions between the parties about perhaps working on, and repairing their marriage. Some of the messages from the father were about the mother addressing her mental health.
[84] During this time frame, in these messages, the father told the mother that one of the conditions for her to return, would be him controlling her access to the internet. He told her that she needed to give him her password. He told her that she needed to close out all of her social media accounts and wipe away any other online presence. The father told the mother that her communications over WhatsApp would need to be monitored. He did this at a time that the mother was very vulnerable.
[85] On June 3, 2020, the mother asked the father whether she could order burgers. The father responded and told her that she could but in general she needed to “start watching [her] diet.” He told her that the amount of sugar she was eating was not healthy. He told her that he needed her to start taking her appearance seriously, saying “I’m your husband and need you to pay attention to your weight, appearance etc.”. He said that it would make him “happier if [she] ordered something healthy, but since [she was] going through a tough time if the burger is comfort food I’ll allow it.” The mother wrote to the father that she found his messages to be hurtful.
[86] The mother asked the father to see D. many times in these early days. She tried to call him, too. The father restricted the mother’s ability to see and speak to D. Although he did bring the child to see the mother while she was in the hotel, he did so just once. During his cross-examination of the mother about the circumstances surrounding the separation, the father himself introduced an audio recording that the mother had made during this time frame. The audio recording is labelled “Applicant’s MMS Message to [D.] Following a Call 020-05-05-21-04-19-1” The recording is of the mother singing “Twinkle Little Star”, to be played for the child. While the father may have sought to introduce this recording for some purpose, this evidence became part of the mother’s narrative that the father was restricting the mother’s contact to with the child. The mother testified that she wasn’t being allowed to speak to the child, so she sent him a pre-recording. I accept her evidence.
(10) The Mother’s Attempt to Return Home on June 9, 2020
[87] On June 9, 2020, the mother told the father that she would be coming to the rental property in Oshawa. The father told the mother that she was not welcome in the home, and intimated that he had changed the locks. He also told her he would be calling the police if she tried to come back. During his cross-examination of the mother, the father tendered another recording, this one audio of a phone call between the parties. There was no objection to the father tendering it.
[88] During the call, the mother indicated that she wanted to return home. The father told the mother that the house was “under surveillance” and that she would not be able to enter the house with the key that she had. When the mother asked the father whether he changed the locks, he deflected answering. Throughout this recording, the father cut the mother off a number of times when she tried to speak. He told her that he wanted to get “legal counsel”. An argument ensued about the mother returning to the home. The father said multiple times that the mother was not welcome to return to the house. The recording ended with the father telling the mother that he would call the police if she tried to come home.
[89] Consequently rather than going straight to the Oshawa rental, the mother instead went to the Oshawa police station. She had police accompany her to the home. When the mother got there, D. was not there, but the father and his sister were in the process of removing items from the house, including some of her journals.[^5] The mother was given access to the house for a brief time to pack some belongings, too.
[90] The mother then went to stay with her brother in Stouffville. The mother’s brother is married and had two young children, O. and K. The mother stayed there until January of 2021, when she returned to Ajax, to live in a new house with her parents that her brother helped purchase. The mother’s sister occupies space in the basement of this home, although precisely what time periods she lived in the home in the past, and whether the mother was transparent about that, was a contested issue during this trial.
[91] It is common ground that there was some past family violence between the maternal grandparents, with whom the mother now lives. It is also understood that the mother’s sister suffers from some mental health issues. The father claimed throughout this proceeding, and still at this trial, that these grandparents, and the mother’s sister, pose a risk to this child.
(11) The Father’s Continued Control of the Mother’s Contact With D.
[92] On June 10, 2020, the day after the mother moved in with her brother, the mother told the father that she wanted to put things on a “two week pause”. She proposed a temporary equal time-sharing arrangement for her to see D. The father’s response was that he was not “comfortable with in person visits right now”. Over several messages, he told the mother she had to decide who she wanted to be, to be in a better place to decide on whether she wanted to remain in the marriage. Although the mother told the father that seeing the child was a “parallel conversation”, the father wrote, “[f]or now, you can do phone calls and video calls with him. After that until you establish a regular medicine and therapy regimen and get back to a stable place emotionally and mentally we can do supervised visits. Then eventually sleepovers as you’re proposing”. When the mother told the father that was not acceptable to her, he reiterated, “I don’t feel [D.] is safe under your care when you are unwell, off medicine or not actively attending therapy.” He also told the mother that the medical professionals did not have “all the facts”, an argument he continued to make throughout these proceedings, and one that he is still making some three years later during this trial.
[93] The mother separately asked the father to bring the child to her brother’s home, for a visit. The father would not do that, saying he was “not comfortable” and “rattled” by the mother’s actions of June 9, 2020. He wrote to her, “I’ve heard your requests. I’ve asked you to think about some topics and share your plans independent of our relationship: pious lifestyle, art practice plans, family interactions, commitment to treatment.” He said he also needed time to think through three of the four items on his list, although he claimed to commit that “access to your child and financial support regardless of your decisions will be there”.
[94] On June 11, 2020, the mother asked the father to have a video call with the child, saying that D. hadn’t seen her in days, and she really missed him. The father responded by saying that the child was doing well, but it was hard to match the mother’s “schedules” and so she could send an audio clip. Two days later, the father told the mother to have a “thorough medical screening”, including for “HIV/AIDs and for Covid-19”, since she mentioned “kissing/exchanging fluids with a stranger in the last two weeks”. On June 13, 2020, the mother told the father that she had a Covid-19 test, and said that she wanted to see D. On June 16, 2020, she followed up again. The father responded and told the mother that she was “misrepresenting the facts”. He said that she had already seen D. on June 7, 2020 (the hotel visit) and that she had been provided “regular access by Video calls “as per the guidance provided to [him] by the CAS”. The mother sent another follow up on June 17, 2020. In response, the father sent the mother a picture of the child, but did not arrange actual contact.
[95] On June 19, 2020, the father sent the mother a message, telling her to read a letter from his former lawyer, that she could find in her email. Notably, the letter was also copied to child protection worker, Sharon Taylor. The letter suggests the mother was a danger to the child, and falsely claimed that the Society supported the father restricting contact. Sharon Taylor was not called to testify at this trial, but child welfare business records were introduced, and the OCL would gather collateral information from child welfare agencies.
[96] The father gave inappropriate messages to the child during this time frame. Notably, this began very early on after the separation. One of the first of several videos that the father sought to introduce is dated June 15, 2020, made a mere 15 days after the separation. The child was then just four years old. It is a video of the child playing outside with sticks and pinecones. It seems that the father introduced this video, in some kind of attempt to disprove the mother’s allegation, that the father had previously said that she could not be D’s mother. That is a minor point. This video reflects poorly on the father. In it, the father made a number of manipulative statements to the child that were really directed at the mother. He had the child repeat his statements. On the one hand, he encouraged the child to say he loves the mother and the child did say, in response to questions from the father, without repeating the father’s words, that he had made the mother a heart shape (out of the sticks and pinecones) because he loved her. But on the other hand, the father also had this little boy repeat that the mother was sick, and that the child would not be seeing his mother until the mother was “better”.
[97] Towards the end of the video, the father said to the child, and had the child repeat the following message, which foreshadowed what would come next:
….mama we want you to take time to get better; and then we can’t wait to meet you.
[98] The father’s restrictive conduct all but necessitated the mother bringing this proceeding a mere 19 days after the separation, to get some visits established.
PART III: THE PRIOR PROCEEDINGS AND THE EVENTS THAT TRANSPIRED IN BETWEEN COURT DATES
A. The Mother’s Initial Ex Parte Motion
[99] This proceeding began by way of the mother’s ex parte motion on June 19, 2020, for an order for the child’s return to her care, and a non-removal order. Fryer J. scheduled an urgent case conference for June 25, 2020 instead. Although she noted a paucity of particulars respecting the allegation that the father might remove the child, Fryer J. granted the non-removal order pending the conference.[^6]
B. The Urgent Case Conference Before Fryer J. on June 25, 2020
[100] Fryer J.’s Endorsement from the urgent case conference on June 25, 2020 notes that the mother acknowledged early on, that she had struggled with her mental health, but not such that she should not resume her role as the primary parent. By contrast, the father then argued, as he still does today, that the mother has serious mental health issues, including recent suicidal ideation and a possible incident of self-harm resulting in hospitalization. Notably, the Society was not taking a position respecting parenting time, despite the father’s letter of June 19, 2020, referred to earlier.
[101] According to the Endorsement, Fryer J. made recommendations respecting the mother’s parenting time, to include overnights, with a mutually agreeable third-party present. She recommended a custody and access assessment, or the involvement of the Office of the Children’s Lawyer. She also modified her earlier non-removal order, such that now neither would remove the child from Ontario.
[102] The parties entered into a consent Order that day, based on those recommendations. They agreed that the mother would reside with her brother in Stouffville Ontario, that the brother or his spouse would be present in the home when the child was in the mother’s care, and that the parties would negotiate more terms respecting the brother’s or his spouse’s obligation to report any “access issues” or concerns regarding the mother’s parenting while caring for the child.
[103] The parenting time itself was to occur on certain specified dates, building up to Wednesdays at 9 30 AM until Saturdays at 9 30 AM, pending a further conference. The father was to transport the child to and from these visits. The parties also agreed that there would be a phone or video call, nightly at 6 PM, for approximately 20 minutes, with the other parent who had not been with the child that day.
[104] The maternal uncle and aunt later signed an undertaking on June 30, 2020. The undertaking states that the brother or his wife undertook to be present in the premises with D. when having parenting time with his mother. They agreed that if there was a concern respecting the mother’s parenting while caring for the child, either would advise the father as soon as possible by text, and then be available for a telephone call. The latter term caused conflict.
C. The Continued Case Conference of August 25, 2020 and the Order Appointing the OCL for the First Time
[105] There was a continued case conference on August 25, 2020. On this date, Fryer J. granted the first of two orders appointing the OCL that would be made during this case.
D. The Consent Order of Fryer J. dated December 3, 2020
[106] The parties entered into a further consent on November 25, 2020. On December 3, 2020, Fryer J. granted an Order based on that consent, on a 14B Motion. This was a significant consent Order that would map out the landscape for the next year and four months, and beyond. There has been much conflict over a number of terms in it. Several terms have been breached and it has largely been the father who has engaged in the breaching.
[107] The parties agreed that the child would attend school in Ajax. Both parents were to provide their contact information for the purposes of receiving notices and updates from the school, with the father registered as the child’s emergency contact. Both were also entitled to attend the first day of school and school events, but they agreed to attend parent-teacher meetings separately. By the end of this trial, the father would now have this Court make an order prohibiting the mother from attending the school, entirely.
[108] The mother’s parenting time was reduced pending the recommendations of the OCL. While she previously had the child with her at her brother’s house three nights each week, the child would now be in her care, just two nights each week, from Friday at the end of the academic day (or at 2 PM if there was no school that day) until Sunday at 6 30 PM, and still supervised.
[109] The father was ordered to advise the mother if he was going to be late for exchanges, and to inform her by text of the estimated time of arrival. I heard much evidence during this trial, about the father not getting the child to his visits on time, or sometimes at all.
[110] The child’s video calls also continued. The mutual non removal term also continued, but it was now made subject to the written consent of the other parent, to enable travel. This too has been a source of conflict.
[111] The parties agreed that the mother would advise the father of any “parenting issues or injuries” by text as soon as possible when D. was in her care. Somewhat similarly to before, the father would then be allowed to have a brief video call with the child “to soothe and comfort him when/if there is an incident”. This term has created conflict, too.
[112] The parties agreed to communicate by Our Family Wizard, by providing each other with brief, daily updates. These communications were only supposed to relate to parenting. This term has not been adhered to either. As I will explain in more detail later, the father has overwhelmed the mother with lengthy and detailed communications. The OCL has commented on this, too.
[113] The parties agreed that the child would continue to be seen by his pediatrician, Dr. Vinoja, and the parties would adhere to any recommendations made by her. Dr. Vinoja is no longer a family doctor for this child, as I will explain. They also agreed that the child would commence counselling with Breanna Rutledge. Ms. Rutledge is also no longer involved either. These developments have created problems, and so the Court must now rectify the situation.
[114] There were a number of other terms in the consent, such as a prohibition against using physical discipline, the parties not discussing any aspect of the litigation with the child, and the parties not denigrating the other to the child directly or indirectly, by words and actions. The latter prohibitions about insulating the child from the litigation and parental conflict have not been followed.
[115] Finally, the consent Order “continued” the $950.00 monthly payments to the mother, that the father had just started to pay. The father came into his trial is in breach of this term, too.
E. The Mother’s Move From Her Brother’s House in Stouffville to a New Home in Ajax
[116] After the mother moved in with her family in Ajax in early 2021, she tried to sell the father on the merits of this move. She explained she now lived close to the father’s home, and to D.’s school. She talked about the stability that this move would offer for the child. She told the father that this new arrangement meant he would no longer have to drive to Stouffville and back, for her to have parenting visits. She also described the physical environment of the home, such as that D. would have his own room.[^7] As a courtesy, she asked the father for his permission, to bring D.’s items that she had kept in Stouffville, to this Ajax home.
[117] This would have been an early opportunity, for the father to perhaps relax some restrictions imposed on the mother, and to cooperate in D.’s best interests. The father responded by telling the mother to have her lawyer contact his regarding this move.
[118] The mother’s former counsel then sent a letter dated January 11, 2021, to the lawyer who then represented the father, advising the father of this move, again. She asked to change the terms to permit the mother’s visits to take place in the new Ajax home, now supervised by her parents.
[119] The father did not agree. During this trial, the father raised four different complaints about the mother’s new home in Ajax, two of which have little impact on the decision that I must make, the third which reflects poorly on the father, and the fourth of which is completely without merit.
[120] First, the father took issue with the fact that the mother only notified him of move into this home by Our Family Wizard message on January 7, 2021, when the house had previously been purchased in October. This complaint centered around the fact that the mother must have known about the move, when she signed the November 25, 2020 consent, for visits to take place in Stouffville.
[121] But the father was not exactly prepared to change the location for the mother’s visits, or the identity of the supervisors, in any event. And I already addressed the father’s concern about the mother’s parents being in the home at the same time as the child, in my Order following the mother’s March 17, 2022 motion, discussed below. There was then no evidence called at the trial, that the maternal grandparents caused harm to this child, that there had been any conflict between them since the March 17, 2022 motion, or that my Order that the mother was to remove the child had to be acted upon.
[122] Second, the father has raised concerns about the mother’s parents and sister, as already explained. He accused the mother of having not been transparent on her Form 35.1 about the people living in the home.
[123] The mother corrected an omission about those living in the home on her Form 35.1 before the start of the trial. And by the time of the second OCL investigation, the sister was living in the basement of the home.
[124] Third, the mother tried to talk to the father about introducing the child to her new home, first by seeking his permission to bring the child’s toys there, and then by seeking his permission to tell the child about her move. The father would not agree.
[125] The mother did later talk to the child about his room without the father’s permission, but she waited well over a year after her move, and she did so only after a further conference before Fryer J. on January 28, 2022. At that conference, Fryer J. essentially ordered the supervised visits should take place in the mother’s home, now by a professional supervision service. So the mother went ahead and talked to the child about his room there.
[126] There was nothing untoward about her having done this. However, over Our Family Wizard on February 14, 2021, the father criticized the mother, saying:
…this is not appropriate. The last time you did this it resulted in [D.] having severe mental health issues for many months. Paragraph 17 of the Order dated 12/3/2020 restricts you from you exposing [D.] to aspects of the litigation. The suitability of your household as a parenting time location is the subject of conflict in the litigation. Your insistence on bringing D. in on this dispute is in contempt of the order. You have been granted a motion to canvass a change in location for your parenting time. Please read the endorsement dated 1/28/2022 closely. The purpose of the motion is to debate the change in location. Your insistence to change the location ahead of the motion is unreasonable. Your understanding that Justice Fryer has Ordered that the location be changed is incorrect. Even if it were not for the Order, [D.] is extremely vulnerable emotionally and you are exacerbating his emotional stability by trying to place him in the middle of an adult argument. Furthermore, Breanna has specifically – on multiple occasions – made it absolutely clear that no changes are to be communicated to [D.] about residence changes until they are set in stone. When I asked you not to repeat the behaviour on the second call for the day, you did not respond. On the call you started repeating the same behaviour and I had to terminate the call early. This behaviour needs to stop.
[127] Fourth, the father has suggested that the mother somehow owns or has an interest in this new Ajax property. This was little more than speculation by him that was not proven at this trial.
[128] In the result, for approximately a year between the time the mother moved to Ajax in January 2021, until the brother was no longer able to supervise the visits in Stouffville (around the end of 2021 or in early 2022), the father insisted on driving the child from Ajax to Stouffville for visits, even though the mother lived very nearby him. This resulted in each parent separately travelling to Stouffville each week, the father with the child in his car, the mother separately, and the mother and the child then staying in Stouffville in her brother’s house, to be able to visit with each other. This arrangement very much caused problems, that I will address in due course in this Judgment.
G. The Two OCL Investigations and Section 112 Reports
[129] The OCL has undertaken two different investigations and it prepared two separate reports pertaining to this family, pursuant to section 112 of the Courts of Justice Act.[^8] Clinician Alana McNee-Trinidad prepared the First OCL Report. It is dated September 30, 2021. The Second OCL Report is that of clinician Sandra Garibotti, dated December 12, 2022. Ms. Garibotti later prepared an addendum to her report dated April 21, 2023, after additional collateral documentation came to her attention from a collateral source.[^9] Both clinicians were qualified and experienced clinicians, with several years of experience having worked with the OCL and undertaken numerous investigations and writing reports pursuant to section 112. The father disputed both reports. He has criticized both clinicians on various alleged grounds, including even that one or both of them manipulated documents, in the mother’s favour.
G. The First OCL Report of Alana McNee-Trinidad dated September 30, 2021
[130] The First OCL Report was completed at a time when the mother was still having visits at the maternal uncle’s home in Stouffville. Ms. McNee-Trinidad did not recommend continued supervised parenting time. Rather, she observed that D. presented as a healthy and happy child who enjoyed time with both parents. She said that the child reported missing the other parent, when not with that parent. She did feel that the child had been impacted by the parenting schedule, though. She also noted the father’s adamance, that the mother’s mental health continued to be an area of concern for the child’s safety, even though by this point there was no collateral information that supported this view.
[131] Although the level of conflict between the parents was high, Ms. McNee-Trinidad recommended joint decision-making. She essentially did so to maintain the balance of power between the parents. She found that the father was not including the mother in significant decision-making, and that he did not share information with her. She concluded that the father was not prioritizing the child’s relationship with his mother post-separation, either. She wrote that the mother used to be the child’s primary parent, and she continued to try to remain involved in the child’s life, despite the obstacles that the father put in place.
[132] Ms. McNee-Trinidad also recommended an equal parenting schedule, gradually increasing over several weeks, to culminating in a 2-2-5 schedule. She wrote that the child needed more time to repair the relationship with his mother, and more time with her to heal the trauma caused by the separation.
[133] The father would not agree. He disputed the First OCL Report. The mother had to continue with supervision for another 6 ½ months.
H. The Settlement Conference Before Fryer J. on January 28, 2022
[134] This Settlement Conference was also a very significant event in Court. A few events occurred leading up to it.
[135] First, the father, who had been previously represented, began acting on his own.[^10] Second, the mother’s brother and sister-in-law could no longer offer the supervision that they had been previously providing, for personal reasons. Third, in addition to the First OCL Report, Dr. Walker-Kennedy’s psychological assessment reports were now available by the time of the conference. Fourth, the mother again raised her request to have parenting time in her home. The father continued to object.
[136] In the result, Fryer J.’s Endorsement of January 28, 2022 addressed six things.
[137] First, she wrote that while she made broad recommendations and observations, this matter would probably require a trial. She anticipated that the trial would be heard during the May 2022 sittings.
[138] Second, Fryer J. granted leave for the mother to bring a motion for parenting time.
[139] Third, and in the meantime, Fryer J. changed the location of the visits to be at the mother’s home with her parents in Ajax, now supervised by Side by Side if there was no agreement to lift the supervision, pending the motion. This led the mother to tell the child about her new home, and the father to have his adverse reaction over Our Family Wizard.
[140] Fourth, there is reference in Fryer J.’s Endorsement to the child’s reported behavioural issues, the fact that a pediatrician named Dr. Sohail Khattak had also been engaged, and the fact that he produced a report with recommendations. Fryer J. noted that it was crucial that the father advise the mother in advance as to what he was proposing with respect to the child’s treatment and that he obtain her consent. She also noted that the mother was entitled to participate in processes concerning the child, and wrote that the parties should use Our Family Wizard for this purpose.
[141] Fifth, Fryer J. noted that the parties were probably going to resolve equalization. (That did not then happen.) The father acknowledged that he had an obligation to pay spousal support. Fryer J. noted that admission, too.
[142] Finally, Fryer J. also scheduled the motion respecting the mother’s parenting time, that I heard on March 17, 2022. And she booked a further Settlement Conference before her, for April 19, 2022, that would end in the second order appointing the OCL, and an adjournment of the trial.
I. The Mother’s Motion for Parenting Time on March 17, 2022
[143] I granted the mother’s motion in full. Based on the record then before me, I found it to be in the child’s best interests for the mother’s parenting time to expand.
[144] The schedule that the mother asked for, and which the Court ordered, culminated in the child being in her care every Wednesday from 7:00 PM until 8:00 PM, and every Saturday from 10:00 AM until Sunday at 10:00 AM. I also permitted the mother to drive with the child, without a third party present, something that had previously been prohibited, too. I prohibited the father from retaining the services of any further medical professionals without the written consent of the mother. I also prohibited the father from discussing the mother’s mental health with third parties, without her consent.
[145] I added a term to the Order, arising out of the father’s complaint about the maternal grandparents, that if there was any conflict between the maternal grandparents during a time that the child is in the mother’s care, the mother was to remove the child from the situation. As I said earlier, during this trial, I heard no evidence that the mother has had to act on this term.
[146] I ordered the father to pay costs in the amount of $2,600.00. These costs have not been paid. Post-judgment interest has been accruing on this amount.
J. The Father’s Dispute of the OCL Report and the Settlement Conference Before Fryer J. on April 19, 2022
[147] Soon after the release of the First OCL report, the father wrote a letter to the OCL dated November 5, 2021. His cover letter states “I am disputing the methodology, findings and recommendations of the OCL clinician, as contained in her report. The areas of dispute are detailed in this letter – the most unfortunate perhaps being that the clinician failed to investigate or report on any of the present-day challenges facing the family in Section 2 and the Incorrect Findings highlighted in Section 3.”
[148] The father’s dispute was overly lengthy. It was some 93 pages long. Attached to it, he included another report.
[149] At first Ms. McNee-Trinidad’s supervisor, Kim Bush, wrote a letter to the parties dated December 3, 2021 saying that the First OCL Report contained “no factual, omission or process errors; nor has any additional information been put forward that would cause the OCL to change the recommendations provided in the Report”. However something changed internally at the OCL. Ms. McNee-Trinidad testified that after she completed the First OCL Report, she received an email from the father with several attachments. She testified that she had only reviewed the “legal materials”. Ms. McNee-Trinidad was on maternity leave. An internal decision was apparently made to have another report, that would include all of the attachments. Incidentally, supervisor Ms. Bush did say the OCL might have otherwise dealt with the issue by way of an addendum to Ms. McNee-Trinidad’s report, had she not been on a maternity leave.
[150] Fryer J. concluded on April 19, 2022 that this case was not ready for settlement or trial. She scheduled a new date for combined Settlement Conference and Trial Scheduling Conference, for September 16, 2022. She made the second Order appointing the OCL, too. She also made an order, on a temporary without prejudice basis, that if either party had contact with a care provider for the child, that party was to copy the other parent if the communication was in writing, or provide a brief written summary of any verbal communications within 24 hours.
K. The Father’s Dispute of the Second OCL Report
[151] After another 8 months or so passed and the Second OCL Report was released, the father would also refuse to accept the recommendations in it, too. By letter dated January 28, 2023, the father later filed his second dispute, now of the Second OCL Report dated December 21, 2022. This time, his dispute was only one page long, but it essentially incorporated by reference, his previous, 93 page dispute of the First OCL Report.
L. The Mother’s Parenting Time Between the Separation and the March 17, 2022 Motion
[152] While these procedural and substantive steps unfolded in court, much transpired outside of the Court respecting the mother’s parenting time between the separation and the March 17, 2022 motion.
[153] The actual visits themselves went well, in general. For example, the mother explained that her brother had a nice property in Stouffville, with a nice back yard. She showed the Court a number of pictures of the home, and of some of the creative activities that she engaged in with the child, while having visits there. The mother testified that D. also enjoyed playing with his cousins. From the maternal uncle’s perspective, the mother’s visits went well, also. He added that he did not have any concerns about the mother as a parent. Ms. McNee-Trinidad observed the mother and child to be laughing together and having fun and relaxed with each other.[^11] During one of Ms. McNee-Trinidad’s interviews with D., he told her that he liked to visit her with his uncle, aunts and cousins. He said that his mom missed him, and he missed his mother, when with his father. On July 6, 2021, Ms. Rutledge, the child’s therapist at the time, also reported to Ms. McNee-Trinidad, that the child had never disclosed any stress about going to see his mother, or about spending time with her.
[154] But in the face of these positives, there were numerous problems with the governing consent Order. One of these problems reported by Ms. McNee-Trinidad, was that D. had said that the schedule then in place was “making him dizzy”. Notably, at this point D. was being driven back and forth between Ajax and Stouffville for the visits. Apparently he told her that he would feel “less dizzy” in a week about schedule. There is also much evidence that the father tried to undermine the mother’s parenting time at her brother’s home almost from the outset. This continued after the visits stop taking place in Stouffville, too.
M. The Father’s Interference With the Mother’s Parenting Time
[155] The father interfered with the mother’s parenting time in multiple different ways right from the outset of these visits. He made false allegations that the mother’s brother had breached his undertaking. He gave inappropriate messages to the child. He brought the child late to visits. He caused the child to be upset at exchanges. He failed to follow Dr. Khattak’s recommendations about how to exchange the child between parents after the release of Dr. Khattak’s assessment (discussed later). He unnecessarily and inappropriately involved the police and child welfare agencies. He refused to cooperate to allow the mother to have visits in her home in Ajax, including after Fryer J. essentially ordered him to on January 28, 2022. He then controlled and micromanaged her time with the child in the community in the face of Fryer J.’s January 28, 2022 Order that provided for visits in the home, pending the motion on March 17, 2022. I will elaborate about each of these in some detail.
[156] First, father accused the mother’s brother of breaching the undertaking. The mother testified that the father was “paranoid” about whether her brother and sister-in-law were following the undertaking. She said he was “paranoid” that they were not home, and would send messages to this effect, saying that they were not home when they were. The mother testified that her brother and her sister-in-law were always available in accordance with the terms of the undertaking. The maternal uncle also testified that he fully complied with the terms of the undertaking.
[157] Aspects of the father’s cross-examination of the mother’s brother were directed at challenging this evidence. He did not undermine that evidence. I do not find that the maternal uncle or his wife breached the undertaking.
[158] Second, the father engaged in inappropriate messaging to this child, just as he had done shortly after the separation, as captured in the “sticks and pinecones” video. Another of the father’s videos that he made, and which he put to the mother during his cross-examination or her, is labelled “Dashcam Video – You locked the door on my mama”. It is dated August 8, 2020, soon after the Stouffville visits started. The child was also then just 4 years old.
[159] There is nothing visible in this video, but voices can be heard. During his cross-examination of the mother, the father told the Court that it was his sister who made this video, after the two picked the child up from a visit.
[160] Some of what the child says in this recording is hard to understand, but I note the father often repeated what the child is alleged to have said for the benefit of the recording. I gather that the point the father wished to establish by seeking to introduce this video, was that the mother was having inappropriate conversations with the child, as later reported to him by the child. For example, the child seemingly reported to the father his awareness that the father had locked the mother out of the house.[^12]
[161] However, what I also ascertain from this recording, again, is how the father not so subtly expressed to the child, his view that the mother-son relationship was of lesser importance. In fact, he engaged in the very behaviour that he was trying to criticize the mother for, namely having an inappropriate conversation with the child.
[162] On this video, the father can be heard telling the child that he did not lock the mother out of the house, and to the contrary the mother had a key.[^13] He told the child at least twice, that the mother was feeling “sad”.[^14] He told the child that the mother was “struggling”, but that he wanted her to “be well”. He said the latter about wanting her to “be well” multiple times. [^15]
[163] The following year, when D. spoke to Ms. McNee-Trinidad during the first section 112 investigation, he talked about the time that his parents lived together in Oshawa. He understood that he had moved from the house because his mother was “dizzy”. The father’s messages to the child had their effect.
[164] Third, the father brought the child to visits late. The mother testified that the father was supposed to drop the child off right after school for her parenting time, but she learned that he would take D. home first. The mother said that the father was then very casual about when he left the home. The maternal uncle also testified that the father was late, and sometimes he would just not bring the child at all.
[165] The father tendered another video that he had made, dated August 12, 2020, which he called “Access_Dropoff_Incident_Dashcam_Compressed”. It captures one of the early exchanges at the mother’s brother’s home in Stouffville. While the father tendered it to prove a different point, this video was an example of one of the father’s lateness. It also reveals the problems that were occurring at exchanges.
[166] At the outset of the recording, very little can be seen as the camera is pointing upwards towards the car’s sun visor and rear view mirror. What can be heard though, is the father uttering the words “I sent you a message”. Soon thereafter, the mother knocked on the father’s car window. The father jumped out of the car and turned his camera towards the mother, to film her. The mother expressed her upset at the father for having been late. The father claimed the child had been sick. Words to the effect that the parties were now going to call their lawyers were exchanged. The mother’s brother came out. The father said he wanted to speak to him about this so-called “parenting issue” pursuant to the undertaking. He accused the brother of not discharging his duties under the undertaking. The mother went on to tell the father to leave the property. The father retorted that he was not on the brother’s property. Apparently he was on the parked on the street in front of the house.
[167] The father then played a separate video that he had taken using a cell phone, that he labelled “2020 08 12 – Access_Dropoff Incident Phone Camera”. Apparently the parties agreed that if the first video would be played, so too would the second one. This related video depicts young D., now screaming and crying, and saying that he did not want to leave the father. The father can be heard telling someone else that he was trying to “soothe the child”. The father told the child not to worry, that the mother was not going to be angry at him, but rather that she was just mad at the father, because he was late. He told the child that the “rules” are that “we have to go to mama’s house for a couple of days”.
[168] Towards the end of this video, the mother’s brother approached the child. They began talking about a piggy bank that D. had brought with him. The child’s upset ended. He hugged his father and ran down the driveway towards the house, as the father stood behind and told the child that he was going to come back “in three days” and said “I promise”.
[169] Notably, the father stopped playing the first of these two videos after the first five minutes or so, saying nothing noteworthy happened in the last six minutes or so. Counsel for the mother asked the Court to note that the video continued for a further six minutes. During those remaining six minutes, the father remained on the scene in front of the Stouffville property.
[170] These parenting exchanges continued to be a problem between these parents. For example, the mother pointed me to messages between the parties on Our Family Wizard on March 16, 2021, wherein she asked to come and see the child after school following the father reporting to her, that the child had anxiety. Hypocritically, the father’s response to the mother was that he did not “… feel comfortable having you at my house given the past conflict. Please do not come to my house”. Yet the arrangement then in place was that the father took the child to the mother’s brother’s house over and over again, and sometimes he lingered. He would later insist that only he could come to the mother’s Ajax home, but the mother could not come to his house.
[171] Dr. Khattak told these parents in his assessment report that he released in the fall of 2021, that prolonged exchanges were contraindicated for this child. Dr. Khattak recommended that transitions occur in a short and quick way, according to an established ritual or routine, and with a short goodbye. While one might give the father some benefit of the doubt respecting his conduct surrounding traditions before the release of Dr. Khattak’s assessment report, there is little excuse for the father’s behaviour at the exchange that later occurred, in November of 2021.
[172] In November of 2021, the child was groggy and sleepy when the father arrived for a particular exchange. The mother asked the father to get the child out of the car, but the father apparently could not (or more realistically would not) do so. The father’s claimed inability to effect a quick parenting transition morphed into a 5 hour affair, that included written communications between the parties, the calling of the police and a children’s aid society by the father, and the involvement of other family members.
[173] Over Our Family Wizard, the mother accused the father of withholding the child. In response, the father claimed that the child, who was now 5 years old, would not come into the house. The father claimed that the child was afraid that his mother would get mad at him. The father also claimed that the child had reported to him, that the maternal uncle had on a prior occasion broken a chair in anger, and on a different occasion, threw a shovel. The mother called her brother to testify about the chair and the shovel, and the account was much different, neither involving bouts of anger.
[174] At 7:00 PM that evening, in the middle of this, the father called the York Region Children’s Aid Society to report that he was in a “high conflict custody and access dispute”. He told the worker that the mother was to have parenting time from Friday to Sunday. He told the worker that the mother had “mental health issues” and that the maternal uncle supervises the visits. The father told the worker that he was parked outside the house, but the child was refusing to get out of the car, because he was scared of the uncle. The father referred to the broken chair. During cross-examination, the father accused the uncle of having “pounded his fist on the car”, frightening the child.
[175] The worker told the father that parents had to comply with court orders. After consulting with her supervisor, the worker also told the father that if he was concerned about “their safety in the car”, he could call the police.
[176] The worker called the father back, by 8:58 PM, some two hours later. The father was still there. Now, the father reported that he had called the police in the intervening period, but the police would not come to remove the child from the car.
[177] According to the mother, at one point during this debacle, the father called his sister to come to Stouffville. Then the father, his sister and D. all came to the mother’s brother front door. This entire exchange could have ended then. But when D. was about to come into the house for his visit, finally, the father told the child that he was allowed to stay or go. The child also apparently announced he would get a toy when he went home. The maternal uncle explained that the child was already through the door when the father did this, sabotaging the exchange that was finally about to conclude.
[178] In the end, this entire exchange lasted some 5 hours. The mother did not have her parenting time with the child. During cross-examination, the father tried to claim that he was following other recommendations of Dr. Khattak, saying that he was not supposed to “sneak out” on the child.
[179] On November 26, 2021, a society worker contacted both parents in relation to this incident. The father took the opportunity to tell the Society that the mother had “stopped taking her medication and seeing her psychiatrist”.
[180] Fifth, this was not the first time that the father involved the police and a children’s aid society, unnecessarily.[^16]
[181] The maternal uncle testified about one of the father’s video calls with the child that occurred in mid-August of 2020, when D. was at his house visiting his mother. The maternal uncle happened to be in the room at the time of the call, when the call occurred. The maternal uncle explained that the father had noticed scrapes or bruising on D.’s arm. He described that the conversation “turned into an interrogation”. The mother tried to explain what had happened, but the father “abruptly interrupted her” and told her she was not allowed to speak.
[182] The maternal uncle testified that the father later emailed him, asking about the bruise. In their written exchanges, the father also claimed the child looked sedated, as if he had been given sleep medication.
[183] The mother’s counsel introduced the written communications between the two men dated August 19 and 20, 2020. The father “reminded” the maternal uncle about the terms of the undertaking and asked him to “inspect [D.’s] body for bruises and provide me with an update asap. Failing which, I will have no choice but to escalate the matter.” The uncle responded and said that he did not have a concern about the mother’s parenting, but he was concerned about the way that the father had acted on the call. He also explained why the child was sleepy during the call, which had nothing to do with medication. The emailing continued. It culminated with the maternal uncle asking the father to stop messaging him, beyond the requirements in the undertaking.
[184] An unnamed person called the children’s aid society about this incident. During this particular investigation, the child was not able to provide information about where the bruise had come from. The worker otherwise observed the mother to be attentive to the child through out the visit, the child reported appropriate discipline strategies, and the child did not report any concern. According to this case note, the father even denied concerns that mother caused harm to the child, which begs the question why the Society had to get involved in the first place.
[185] The mother testified about another time that the child had fallen off his bicycle in the driveway, and that caused bruising. So did the maternal uncle. He explained that two plain clothes police officers then came to his house, to inquire about whether D. had been hurt on his knee. The maternal uncle also testified that the father had not reached out to either him, or to the mother in advance, to discuss the child’s knee either. The maternal uncle was surprised.
[186] The father attempted during this trial to introduce hearsay statements of the child, that the mother had abused him. For example, the father tendered a police occurrence report of July 7, 2020, in which the child appears to attribute some bruising on his arm to the mother. I address the admissibility of the child’s hearsay statements later, when addressing various evidentiary issues.
[187] Sixth, the father restricted the mother’s access to information about the child. For example, the children’s aid society case notes before the Court reveal that on October 20, 2020, the school principal called the society, after the mother had emailed the school, asking to be added to the mailing list. The principal called the Society, because she had a notation in the child’s file, that there were safety issues, that the society was involved, and that there was an “order of protection in progress”. The principal wanted to know whether the school could release information to the mother. Notably, at the time of the school principal’s telephone call to the Society, there was no open file with a children’s aid society. Although the father had earlier raised objections to other CAS notes, redactions were made and he consented to the admission of the remainder of the notes in the mother’s document briefs (including this particular case note), later on in the case he claimed that it was incorrect. As the cross-examination on this topic continued, he avoided answering questions about whether he told persons at the school that the mother was dangerous, instead saying that he was supposed to do the pick ups and drop offs at the school pursuant to the governing order at the time. The father also criticized the competency of the children’s aid society. Notably, the father’s position at the end of the trial is that the mother should not be able to attend at the school going forward, and information about the child must be filtered through him.
[188] Seventh, it is common ground that the father did not cooperate respecting visits in the mother’s Ajax home, after Fryer J.’s Endorsement of January 28, 2022. The father instead would only agree to parenting time in the community. He took issue with a private supervision company, suggesting that the mother’s former counsel might have colluded with it.
[189] The mother’s evidence was that the father controlled and dictated her parenting time after the January 28, 2022 appearance before Fryer J. I heard evidence about how he supervised a community visit at the time of the child’s birthday, when the mother just wanted to have a birthday party for the child. He micromanaged it.
[190] The mother referred me to communications on Our Family Wizard about the birthday, part of which event took place at a Subway Restaurant, apparently. In writing, the father told the mother when at Subway, to let the child “choose the toppings and sauce so he (sic.) more autonomous.” He also wrote, “Next parenting time Thursday evening at Chuckee Cheese. He hasn’t been there for a while and will really enjoy it. Maybe you can even have Denny’s afterwards. He's really into their pancakes with low sugar syrup. Does 7 pm work for you?” The father told the mother that a treehouse play place was “too busy on weekends” but weekday evenings are “really quiet for next time.” In a subsequent message that he sent, he told the mother that he wanted to go to Chuckee Cheese because he preferred to stick to places that D. “has been to and has an emotional attachment to.”
[191] During the trial, the father touted the alleged benefits of having community visits that he would supervise (as opposed to following what Fryer J. had ordered). Despite that the recently released First OCL Report said otherwise, the father claimed that the child’s relationship with the mother had declined to the point that it was extremely difficult for him to be with her. The father said that having community visits would give D. a sense of comfort, because he would be nearby. The father also said that he wanted the child to have a safe space.
[192] During this trial, the father said “in retrospect I should have let it happen”. But he also testified that “the family system is not protective”. He said that courts allow a child to be placed in difficult circumstances, to then look to see, after the fact, if there are “any effects”. He also said that this court did not have all the evidence it needed from him, when it decided the March 17, 2022 motion.
N. The Mother’s Visits After the March 17, 2022 Motion
[193] The mother testified that the first visit after my Order went well. She said that the child really enjoyed the first unsupervised visit and even asked to stay longer.
[194] But the father continued to interfere after the March 17, 2022 motion, much like he had done before. For example, the mother referred me to Our Family Wizard messages between the parties dated March 18, 2022 in which the mother told the father that there was now, no limitation on driving, and so she wanted to pick the child up the father’s house. The father refused to agree. While he said that the mother was “welcome to drive [D.]”, he was not “comfortable having [her] on his property given the past conflict and issues. If you prefer I can drop him at a neutral location in the middle”. The mother responded saying that the father was making the logistics more complicated, but she told him to drop the child off in front of a particular store. In another act of hypocrisy, the father then responded and said “I prefer to drop him at your house”.
[195] Other problems would later arise when the parties did not then strictly adhere to the schedule that I ordered. For example, according to the father, the parties changed the schedule on Saturdays. The father wanted to enroll the child in a religious school at his mosque on Saturday mornings, so they changed the time of the mother’s weekend visits, to be from Saturday at 4 PM until Sunday at 4 PM, instead of the 24 hour period that I had ordered, between Saturday at 10 AM until Sunday at 10 AM. Although during his examination-in-chief the father pointed me to an Our Family Wizard exchange, whereby the mother readily agreed to this, in cross-examination, the father denied that the mother worked with him to accommodate this, and said that “she didn’t actually cooperate”; she “initially cooperated, and then half way through, she changed her mind”.
[196] During the summer of 2022, the father suggested to the mother, that the 1 hour visit I had ordered on Wednesdays was “disruptive” and the child could “tolerate” two hours. The father pointed me to an Our Family Wizard message from the mother dated December 19, 2022, wherein the mother later asked to consolidate the now two hour mid-week visit into the weekend, to reduce transitions. The father said that Mr. Stangarone’s office later accused him of breaching the Order. After the trial scheduling conference in April of 2023, the father “agreed on a temporary without prejudice basis to re-start the mid-week visits.”
[197] There was more conflict between the parties over ad hoc changes to the schedule throughout 2023. As I will explain later, on September 25, 2023, after the problematic events of the summer 2023, I ordered these parents to strictly adhere to the Court’s Order until the conclusion of the trial. These problems and complaints that ensued from ad hoc changes to the court ordered parenting schedule only got worse as more time passed.
O. The Second OCL Report of Sandra Garibotti dated December 21, 2022
[198] In a number of respects, the Second OCL Report was consistent with the First OCL Report, although the recommendations differed. For example, like Ms. McNee-Trinidad’s observation of the mother and child, Ms. Garibotti’s observation visit, now undertaken about a year later in June of 2022, in the mother’s Ajax home, was also positive. She wrote that D. was “observed to be happy as demonstrated by giggling, easily engaging with this mother and grandmother, making eye contact, and overall appeared comfortable. They were noted to sit very closely to each other, often their bodies completely toughing with no hesitation from [D.]. [The mother] was noted to be affectionate, and D. welcomed here caresses.[^17]
[199] In her analysis, Ms. Garibotti wrote that the father believed, that the first clinician, Ms. McNee-Trinidad, did not “understand the level of conflict and how the child’s health declined since February of 2021, when [the mother] began to have more contact with [D.]” He felt the assessment was incomplete. He continued to express concerns for the child’s well-being, the mother’s behaviour, and the mother’s extended family.
[200] But Ms. Garibotti was very concerned that the father wished to control the process, and ultimately marginalize the mother. For example, he provided her a comprehensive list of documents, itemized in a very organized manner. Ms. Garibotti wrote that he appeared to be very informed of the court process, and was “determined to ensure what he believes to be comprehensive evidence”.
[201] Ms. Garibotti reported that the father had altered her directions that she needed signed, for the release of police and child welfare documents, under the guise of wanting a fulsome process. She said “while this is presented as due diligence on the part of [the father], the concern remains on how his behaviour has impacted on [D.’s] ability to have quality time with his mother.” This requirement for the signing of consents during the OCL investigations would later turn into a major, but meritless allegation of misconduct by the father against the OCL. It consumed trial time unnecessarily.
P. The Trial Scheduling Conferences on March 10, 2023 and April 11, 2023
[202] Fryer J. heard two Trial Scheduling Conferences in the late winter/early spring of 2023. On March 10, 2023, Fryer J. ordered that the trial was to proceed in May of 2023, even if the financial issues such as equalization were not trial ready (although the parties were to make best efforts to ensure that they were).[^18] On April 11, 2023, Fryer J. updated it. She made a further order for certain disclosure from both parties.
Q. The Challenges with the Mother’s Parenting Time in Early 2023
[203] Unfortunately there were more challenges surrounding the mother’s parenting time during the first part of 2023.
[204] There were a number of occasions in the early part of 2023 wherein the mother declined parenting time or sent the child back to the father when he acted out. The mother testified that the child was hitting her. She testified that was trying to figure out the best approach to discipline. She scheduled an appointment with Dr. Narges Hosseini, the child’s latest therapist. She also talked to her own therapist, Robin Campbell. Based on Ms. Campbell’s advice, the mother decided to enlist the father’s help to show a united front, to teach the child it was not alright to hit.
[205] The mother testified that in hindsight, it was naïve of her to have thought that the father would work together with her like this, and that her new therapist would have had enough context to have given her this advice. While I find that the mother’s motives were bona fide, this is one of the areas of the evidence about the mother’s parenting skills that has caused me some concern.
R. The Consent Order for Summer 2023 Parenting Time
[206] The trial did not finish in the time allotted for it during the May 2023 sittings. On the last day allotted during the spring 2023 sittings, I had a discussion with the parties about the evidence that remained to be called. I put the matter over to the September sittings for what ought to have been an adequate amount of time.
[207] The mother asked to bring a motion for an increase in her parenting time over the summer that day. The issue quickly became moot as a result of the discussions that followed. The father indicated that he was prepared to agree to an increase to the mother’s parenting time between June 1, 2023 and the end of the school year, and to a further increase during the summer months when there was no school. I indicated to the parties that I was prepared to make an order based on the father’s concession. The mother agreed to this, on a strictly without prejudice basis.
[208] The Court’s new Order of June 1, 2023 now provided that the mother would have parenting time on Wednesdays from 6:00 PM until 8:00 PM until the end of the school year. The weekly weekend time ordered on March 17, 2022 was to continue. Then during the summer months, her Wednesdays would increase from 10:00 AM until 8:00 PM, and the weekends extended from Saturdays at 11:00 AM until Mondays at 7:00 PM.
[209] These arrangements unraveled soon thereafter, resulting in the mother not seeing D., essentially for two months.
S. The ‘After the Fact’ 14B Motions Relating to the Summer of 2023
[210] On August 31, 2023, the mother eventually[^19] brought a 14B Motion to seek a remedy.
[211] In her affidavit sworn August 31, 2023, the mother deposed that after I made the Order on June 1, 2023, the parties yet again made changes to it, albeit not without conflict. Otherwise, it seems that things started out well enough. However, the mother deposed that D. did hit her at times, and that she responded by giving the child a timeout. The mother deposed that the father did not then allow the child to come for a visit again. She also deposed that the father monitored her calls with the child, and refused to allow D. to attend a camping retreat with her during the month of August.
[212] The majority of the father’s affidavit sworn September 7, 2023 responding to this 14B Motion consisted of argument. In two short paragraphs, the father said that the mother’s affidavit was misleading, that she was having “daily parenting time with the child by video call”, that she had “in-person parenting time on September 5, 2023” and that her next scheduled visit was for September 9, 2023. The father also claimed that the mother had refused to engage the services of a “reunification specialist”, and that he had various appointments with Dr. Hosseini upcoming in the near future.
[213] As it turned out, neither side’s affidavit was particularly fulsome, transparent or accurate. The mother did not fully describe what happened between herself and the child. In regards to the father’s affidavit, the “in-person parenting time on September 5, 2023” was a short visit where the mother saw the child at the school on the first day of school; otherwise the mother had not seen the child. And the father had no intention of facilitating another visit on September 9, 2023; in fact, he did not even facilitate a visit during the week in September that this trial resumed, claiming an inability to do so. No concrete proposal for a “reunification specialist” had ever been made by either side. By time that this trial resumed in September, Dr. Hosseini had not seen the child for several weeks during the summer. And her services were about to end. More would be revealed during the oral testimony that the Court heard, when the trial resumed.
T. The Oral Evidence About the Very Problematic Events of the Summer of 2023 After the End of the Spring, 2023 Trial Sittings
[214] The first problem that began to unfold was more ad hoc changes to the schedule that the Court had just ordered. The mother testified that she had four days of parenting time after I made the Order on June 1, 2023, before the father began asking to take the child to different places during her parenting time. The mother said she agreed, but his requests kept coming.
[215] The father then asked the mother for permission to take the child on a pilgrimage to Iraq for 15 days. He had not raised the possibility of this travel at the end of the spring 2023 trial sittings, only to raise the issue with the mother directly a few days later. She disagreed for several reasons.
[216] Next, during the weekend of July 22, 2023, the mother took the child to a public swimming pool. The mother said that before she got into the pool, she reviewed the swimming pool’s rules with the child, which included that he needed to remain near the mother while in the pool. The mother testified that at one point, the child got upset because a ball got thrown out of the pool. D. threw a tantrum and swam away from her. D. would not come back.
[217] The mother tried to follow the child and remind him of the rules. The mother testified that the child started screaming, hitting and scratching her. The mother took the child out of the pool and told him that he would now be in a time out.
[218] This incident occurred on a Saturday. The mother then placed the child in a time out for the rest his visit, which ended on Monday. During his cross-examination of the mother about the events of the summer, the father suggested that the mother put the child in a “level two timeout”. The mother denied knowing what the father meant by this.
[219] The mother tried to contextualize this time out during her in court testimony in September. For example, she said he was allowed to play with his toys in his room. She said he was allowed to “come out for hugs”, to “play in the back yard”, to have meals, and to go for a “walk in the evening”. During her Reply evidence, the mother tried to elaborate about what transpired during the time out. However, my impression was that the mother minimized the severity of her response, after the fact.
[220] The parties exchanged written communications about the father’s withholding of the child after this. In them, the mother told the father that the child was supposed to be with her, and that the father was withholding him. The father’s responses were in the nature of him being unable to get the child to attend on visits. Meanwhile, the father sent the mother photographs of him taking the child to Legoland, to ToysRUs, of the child on the playing on the driveway while wearing a superhero cape, and of the child eating ice cream; in general having a fun time with his father while not seeing his mother after this swimming pool incident and the time out.
[221] The mother tried to pick the child up on two occasions for her parenting time. On one of these occasions, the mother drove to the father’s house, parked across the street and advised the father that she was there. The father responded by telling her that she was scaring D., and that D. himself was trying to call the police.
[222] The father later testified about how this supposedly scared the child, saying he hid under a blanket with a cell phone to call the police. The father said the cell phone that did not have a plan attached to it, so his attempt to call the police did not actually go through. The father then took the child to a religious gathering, at which the child allegedly told various unnamed community members, who were not called to testify, “don’t let mama take me”.
[223] But the mother had just had a video call with the child, that she recorded, and which she sought to introduce during the trial. The Court held a voir dire during the trial about this video, with a ruling to follow later. The father unsuccessfully challenged the authenticity of this recording, accusing, but without proving it, that someone in Mr. Stangarone’s office altered the video.
[224] During the call, the mother played with a cat photograph with the child. She then asked the child to get ready and said that she was going to come to pick the child up. Twice, the child said you are not allowed to come to his house. The child then said he was going to a religious gathering with his father. The mother told D. that the father could go to that gathering, but the child was coming to her house. The call ended with the child cheerfully saying “OK”. He was not in any way distressed, as the father maintained. The father then changed his testimony, and said that he was not sure whether this was contemporaneous in time with the child’s alleged traumatization.
[225] There was yet more conflict between the parties in the summer, now about travel. The mother twice asked the father for his consent to take the child camping. The mother said that the father did not respond on one occasion and on another, he said no, that there were “too many variables”. During cross-examination, the father asked the mother whether one of the camping trips was through a “religious organization” and then suggested to her that the trip involved a Montreal Hare Krishna community. The mother denied this, although she did say that the camping trip involved mindfulness. The father questioned the mother further about the fact that she took D. to an event within a different spiritual community. During his re-examination, the father added as another reason to have objected to this trip, that if the child had gone camping, he would have been without any heat or air conditioning.
[226] Meanwhile, although the father had refused to allow the mother to take the child camping, the mother nevertheless consented to the father taking the child on the trip to Windsor. When it came time for the mother to next see the child after this trip, the father claimed, yet again, that he was trying to get the child to go visit his mother, but the child would not go. I find the father was lying to the mother about this. The father tried to dodge questions in cross-examination about the dates he was in Windsor. It was exposed during his cross-examination, that the father was still out of town, while he pretended to make efforts to have the child see his mother.
[227] The father also involved his sister to interview the child, during the summer of 2023. The father said his sister sent him a “transcript” of the conversation. The father’s sister did not however transcribe her questions and the child’s answers according to the father, but rather made notes after the fact based on her recollection. The father said that he had his sister do this, because there was a “climate of mistrust” and he “wanted another resource”. He said he thought if there was “something written by someone else”, the mother might believe it.
U. The Court’s Order of September 25, 2023
[228] At the end of the time allocated to this case during the September 2023 trial sittings, I heard submissions about the withholding behaviour. I released an Endorsement on September 25, 2023. Because this trial was still ongoing, I made limited findings only, pending its completion.
[229] I found that the mother was not seeing the child in person, contrary to an Order of this Court. I found that based on the evidence called about the events of the summer, I would not have suspended the mother’s parenting time. I also found that the father did not have the right to “withdraw” his concession of June 1, 2023, that the mother could have increased summer parenting time, once it was incorporated into this Court’s consent Order of June 1, 2023. I also found that the other ad hoc changes to the Court’s prior Orders had caused problems.
[230] In the result, I merely ordered the resumption of the mother’s parenting time. I ordered that the Court’s Orders were to be strictly adhered to, including that there were to be no more ad hoc changes to them, pending the completion of the trial. I ordered the father was to continue to do the pick ups and drop offs, and not linger at exchanges. But I also ordered that if he continued to be unable to persuade the child to go, if he was unable or unwilling to take the child for visits, or if he was late, then there was no other option but to change the Order for there to be exchanges at the child’s school. The latter would have entailed an expansion of the mother’s parenting time.
V. The Troubling Events That Followed the Court’s September 25, 2023 Order
[231] Almost immediately after the release of this Endorsement, the mother received a series of angry text messages, ostensibly authored by the child, and 15 or 16 voice recordings from the child, too. In the voice recordings, the child was completely out of control. He screamed and cried at his mother.
[232] The child said, among other things, that he never wanted to see the mother again. He said this multiple times. He told the mother that he hated her, multiple times. He told the mother that she was lying, also multiple times. The child talked about how the mother was rude to “me and my family”, multiple times. He told the mother to stop coming to “our house”. He called her a “stupid fat head” more than once. He told the mother she was annoying, more than once. He said “I don’t love you for real this time” and that he wanted to “kill you”. The child told the mother that she was never picking him up from school. He told her that she was “faking things”. He made reference to calling the police, including that the father was going to call the police. In one of these recordings, the child made reference to the “rules people”, which I was told, meant this Court/me.
[233] The mother testified that conveniently, around the same time that she received the voice messages, the father sent her a text message asking her what she had said to the child to upset him, but she had not spoken to the child. Ms. Stangarone’s cross-examination of the father revolved around his suggestion that the father tried to manipulate the record, to set the mother up.
[234] When the mother later talked to the child, also on September 25, 2023, a call that she also recorded, the child was still upset and tried to repeat some of the contents of his messages, although with less hysteria. He told the mother that he was not happy, and then said that he wanted to talk about why he was not happy. He told the mother that the father let him see some messages that she had sent to the father. The mother tried to redirect the conversation several times, for example by trying to get the child to draw. Towards the end of her call, the mother was able to redirect the child. She made him laugh, by sticking crayons up her nose.
[235] The mother testified that she was highly concerned after receiving these voice messages. She felt that the father had exposed the child to the details of the Court’s Endorsement of September 25, 2023.
[236] I accept the mother’s theory about what happened. Very clearly, the father inappropriately discussed the Court’s ruling with the child, and got the child all riled up against his mother in some kind of attempt to sabotage the success of the Order. The father also tried to cover up the fact that he had done this, by preventively messaging the mother to ask her what she had said to the child, trying to shift the blame for this outburst onto her.
[237] The father partially admitted that he had done some of this. He admitted that he had some kind of conversation with this child. He testified that he told the child that “the rules have changed”.[^20] The father also told the child what the “options” were: either the child would have to go to his mother’s house, or the mother would pick the child up at the school.[^21]
W. The Father Contemplated Calling D. To Testify During this Trial
[238] On September 12, 2023, after the events of the summer and after the mother’s 14B Motion had been filed, but six days before this trial was to resume, the father sent an email to Mr. Stangarone that read as follows:
Dear Counsel, I am writing to notify you that I will be seeking leave from the trial judge to bring the child [D.A.] for chief examination by both parties at the trial. Please confirm if you (sic.) client will be providing consent. Thanks. R.A.
[239] Notably the child was then just 7 years old.
[240] During his subsequent testimony, the father told the Court that it had had heard from Ms. McNee-Trinidad and Ms. Garibotti. He went on to say that he wanted the Court to observe that the child is “smart”, has “strong interpersonal skills” and can communicate and “accurately portray his version of facts”. He also said that the two OCL clinicians “went so far as to manipulate police reports” and “they didn’t act with integrity”.
[241] But the father did not then actually ask to call the child to testify. He said he did not want Mr. Stangarone cross-examining the child, due to his “tone and manner”. The father also told the Court, that he had read a decision in which the judge had agreed to speak to an 11 year-old.
[242] Fortunately, in the end, the father neither asked the Court for permission to call the child to testify, nor did he specifically ask the Court to conduct a judicial interview during the September sittings. But then, during the last hiatus in the trial between September and November of 2023, the father sat the child down for a 29 minutes long video interview. The father sought to tender the video in November when the trial resumed.
X. The Father’s Video Interview of the Child
[243] In November, the father played his 29 minutes long video, that showed the child sitting in a chair in the basement of the father’s house. The father is not seen on camera, but his voice as the interviewer is recognizable. Throughout this video, the child can be seen twitching,[^22] fidgeting, and spinning in his chair. At times, the child can be seen looking away from the camera. At times, he sticks a highlighter in his mouth.
[244] The father covered a broad gamut of topics that were litigated in this case. He used leading questions and suggested answers to the child at times.
[245] For example, he elicited that the child only wanted to go to his mother’s for visits of 8 hours in length. At times, he elicited this information by asking about “sleeps”.[^23] The father brought up this topic twice more.
[246] The father tried to remind the child about certain times in the past when he did not want to go to his mother’s house. The child said that he stopped going for 1 ½ months, but didn’t know why. He asked the child about whether the mother tried to come to his house, where the father was at the time, and what the discussion was after the father got out of the shower.[^24]
[247] The father tried to elicit information from the child about the “time out” that the mother had put him in, during the summer of 2023. The child said that he was put in a time out “for 72 hours – which is 3 days”. The father tried to get the child to discuss different “levels” of time out, but the child would not do so.[^25]
[248] The child went on to say that he hit his mother because he couldn’t control himself. The father then asked him whether he apologized, and then elicited that he was still put in the time out, passive aggressively suggesting that the mother should have accepted his apology. He asked how he felt.[^26]
[249] The father asked the child at least twice if there was anything else that he wanted to tell the “rules people”. For example, he did this once at approximately 23 minutes and 45 seconds into this 29 minutes long video, and again at the end of it. At the 23 minutes and 45 seconds interval, the child said not really. The father then prompted the child again, this time about whether he remembered anything about the “old house”. The child said that the mother used to hit him when he did things by accident. The father said with an exaggerated tone, “Are you sure”. The child said “I’m not lying” and “I pictured it and took videos of it in my mind”.[^27]
Y. Findings and Conclusions About the Events of the Summer of 2023 and Their Aftermath
[250] On the one hand, I find that the mother’s response to the child’s behaviour in the pool was excessive. While I accept her evidence that she did not completely confine the child to his room for the balance of his visit with her, I found that she minimized her response when she later testified about it in Court.
[251] However, in regards to the father, I find:
(a) From the outset, the father has been quite prepared to use the child as leverage against the mother. He began to subtly message to this child, that his mother is mentally ill and indeed dangerous. He started to do this just days after the separation. He even recorded himself doing this, and tendered his own videos into evidence. While there may have been questions about the mother’s mental health initially that needed to be explored, they were more than adequately and amply addressed once this litigation got underway, and well before the trial commenced, but the father does not accept this;
(b) The father used the swimming pool incident during the summer of 2023 as an opportunity withheld the child for half the summer and almost the entire month of September, without any legal basis to have done so. When I ruled on the motion at the end of the September 2023 sittings, I did not find the mother’s response to the incident at the swimming pool warranted the father’s wholesale unilateral termination of her parenting time, and the other self-help actions that he took. I heard nothing additional occurred during the completion of the trial during the November 2023 sittings that would cause me to revisit that conclusion;
(c) In the midst of the summer of 2023, the father lied to the mother and to the Court about the child’s unwillingness to attend on a visit. He told this lie during his Windsor trip; the father was still in Windsor when he pretended that child would not go to see his mother;
(d) The father damaged his credibility further when testifying about the events of the summer. He testified as to the complete inability to get the child to go to visits with the mother over the summer. But as soon as I made an order that would have expanded the mother’s parenting time and allowed her mother to pick the child up at school in the event of any further breaches or lateness, the mother’s visits suddenly resumed. In fact, the mother testified the father showed up 15 minutes early. This very much speaks to the fact that the father was able to take this child to visits, but he was choosing not to do so. I do not accept the father’s explanation, that the child was afraid of the alternative (ie. more time with his mother, or that the mother would get to go to his school). It was the father who did not want this; and
(e) I will make other specific findings respecting the father’s October 29, 2023 video below, when addressing the admissibility of this video and the limited use that the Court will make of it.
Z. The Father’s Further Conduct Towards the OCL
[252] The father engaged in additional problematic conduct leading up to and during this trial’s resumption during the November 2023 sittings. The father had previously served summons to witnesses upon Kim Bush and Tashana Aziz, two Regional Clinical Supervisors with the OCL, in aid of him pursuing his allegations that various persons within the OCL acted unethically. On November 2, 2023, the father sent revised summons directing both to attend Court on November 22, 2023, and to provide PDF copies of various documents to him and to Mr. Stangarone. Not only had the OCL already produced its file, but the OCL did not have an electronic copy of its file; it provides paper copies.
[253] On November 9, 2023, the OCL filed a 14B Motion to seek urgent direction from the Court, specifically wanting to bring a motion to set aside the father’s summons to witness. The alternative relief sought was that those witnesses only had to attend court with paper copies of the notes and records. According to the affidavit of Lori Bennett, a Senior Manager of Clinical Services with the OCL, to comply with the father’s summons, the OCL would first have to create a PDF copy of its record, by scanning hard copies that had already been produced.
[254] The father responded to the OCL’s 14B Motion, with an unsworn affidavit dated November 16, 2023, mostly by making arguments, including that the OCL’s motion was not urgent, and otherwise saying that it was “necessary to provide documents electronically because there is a dispute concerning what information was provided to each party. He accused Ms. Bush of not providing the “full set of documents subpoenaed”.
[255] I heard the motions in Court on November 21, 2023. I did not order the OCL to produce electronic copies of its file. The father then abandoned calling Ms. Aziz as a witness at this trial; he only called Ms. Bush to testify. Ms. Bush would later testify that it took her some six hours to recopy her paper file that had already been produced.
AA. The End of Trial Preservation Order
[256] The trial finally concluded on November 27, 2023. On that day, I made a preservation order pending further Order of this Court. That Order was later amended on the mother’s 14B Motion to provide further particularized language that a real estate lawyer required.
[257] Below, I make provision for this preservation Order to continue until the monetary orders that I intend to make are satisfied, until the March 17, 2022 Costs Order is paid, and until this Court deals with costs of the trial.
BB. The Father’s 14B Motion to Address the Child’s Therapy
[258] On March 11, 2024, the father filed a 14B Motion asking for an urgent case conference or motion to address D.’s therapy, or for an order empowering him to enroll the child in weekly therapy with Sarah Long of the Mindful Mental Health Clinic. In his supporting affidavit sworn February 28, 2024, the father explained that the child had been without a therapist since October of 2023. He accused the mother of having provided her consent and withdrawn it, for the third time. He went on to repeat his previous narrative that the mother “struggles with psychiatric illness” and has ongoing struggles with “treatment compliance”. He said she was now “resisting as aggressively mental health treatment for the child as she is for herself.”
[259] However according to the mother’s responding affidavit sworn March 6, 2024, the mother did not do these things. She explained that after the trial, the father wanted her “open-ended” consent so he could unilaterally select a therapist. She didn’t agree. They then each proposed therapists in December. She agreed to meet with Ms. Long, whereas the father would not meet with her proposed therapist. In the end, the mother agreed to Ms. Long.
[260] Ms. Long had openings at 5 PM on Wednesdays. According to the existing parenting schedule, the mother has the child on Wednesdays. This enabled her to participate in a parental debrief for the last 15 minutes of the session.
[261] The mother said that the father began criticizing her to the therapist, he booked alternate session times, and he removed the in person debrief. He even threatened to call the police if she attended the debrief. The mother tried to suggest that the parties alternate the Wednesday sessions, so they could both participate in the debrief.
[262] In an Endorsement dated March 19, 2024, I declined to schedule an urgent conference or motion, and I also declined to award the father decision-making over this therapy decision. The determination of which parent will be responsible for deciding about and managing the child’s mental health was an issue at this trial. By the end of the trial the child’s last therapist had stopped working with this family. The father had a role in that outcome.
[263] I also reminded the parties that the trial Judgment was under reserve. I said I would deal with the issue of the child’s therapy when I released the Judgment. In so doing, I signaled to the parents that I did not need to hear any further from them about these issues, such as by way of a conference or a motion, nor would they be going before another judge.
[264] Reading these affidavits in context of the record as a whole, I am easily able to find the mother’s version of events is the accurate one. I do not find the father’s account to be credible. The mother’s version about what happened respecting this therapy is consistent with the father’s very own submission at the end of the trial, that he wishes to exclude her. The father himself attached an email from the mother dated February 27, 2024 stating that the mother had withdrawn her consent because the father made another appointment without her knowledge and she was being prevented from attending debriefs.
[265] My finding preferring the mother’s account of what happened, is also based on the broader credibility determinations, that I make next.
PART IV: THE PARTIES’ CREDIBILITY
[266] At ¶ 40 of Virc v. Blair, 2016 ONSC 49, Jarvis J. wrote that a credibility assessment includes the consideration of inconsistencies and weaknesses in a witness’ evidence, the review of independent evidence that confirms or contradicts a witness, the consideration of whether the witness’ testimony is plausible, and the consideration of demeanour, but to be considered with caution. Jarvis J. also wrote that special consideration must be given to the testimony of witnesses who are parties to proceedings; it is important to consider the motive that witnesses may have to fabricate evidence. At ¶ 12 of Liu v. Huang, 2018 ONSC 3499, Kristjanson J. set out similar factors for the assessment of credibility. At ¶ 13, she further wrote that the Court is entitled to believe none, part or all of a witness’ evidence, and may attach different weight to different parts of a witness’ evidence. Credibility is also evaluated on the evidence as a whole. Considering the evidence as a whole, I have several, significant concerns about both the father’s credibility.
[267] First, I found this father was prepared to twist and distort the truth when it suited his purposes. Several times during the trial, he made statements to the effect that certain documents, including the written communications between the parties, supported his version of events. Sometimes the father said he did not have the documents readily available. Frequently, I gave the father an opportunity to come to Court the next day with the purported documents. Sometimes he returned with the documents; sometimes he didn’t. Sometimes the documents that father purported would corroborate a statement were reviewed and sometimes they did not say what he purported they said. For example, the father alleged, that after the release of Dr. Khattak’s report, the mother had claimed that the child had been misdiagnosed. The father later referred me to messages sent over Our Family Wizard wherein the mother had allegedly said this. But the mother did not say this.
[268] Second, during the trial, the father sometimes ascribed words to professionals that they did not say, or that he didn’t prove them to have said. The father has made a number of complaints about professionals during the time that this case has been before the Court, which he did not prove. He violated the rule in Browne v. Dunn during the trial.
[269] Third, the father regularly testified in an overly detailed fashion about trivial or irrelevant matters. He was often not specific about important matters. I found some of his evidence to have been completely fabricated, such as his account of the child’s fear when the mother child to pick the child up from his home during the summer of 2023.
[270] Fourth, some of the father’s cross-examination of the two OCL clinicians, as well as that of Ms. Bush, a supervisor, revolved around his allegations that their investigations were insufficiently comprehensive, and that the reports were not reflective of the evidence. But a great deal of it also revolved around a conspiracy that they manipulated documents in favour of the mother. I gave the father ample opportunities to prove this, and even more chances during closing submissions, to tell me specifically what he felt the evidence that he elicited had established. I asked him direct questions. The father failed to prove that the OCL behaved improperly.
[271] Fifth, there were times during this trial, when things did not go his way, that the father cited his self-represented status as an excuse. The father chose not to invest his resources in hiring a lawyer. That was his right. But the father cannot then complain about his self-represented status.
[272] Moreover, this trial took an inordinate amount of time. It was heard over three different sittings. This family, and in particular this father, was given more than a fair opportunity to prove their case. I granted the father many accommodations throughout the trial. This included taking breaks to allow him to review documents, I allowed him to return to Court the following day after certain testimony had been given, to bring additional documents, and he was given an opportunity to review case law respecting child hearsay.
[273] Throughout this trial, the father demonstrated the ability to prepare for and to present his case. He was able to prepare a detailed Opening Trial Statement, draft Orders, and conduct examinations-in-chief and cross-examinations. He prepared multiple trial briefs, an updated trial record and numerous loose exhibits. Including because the trial spanned over three different trial sittings, the father also had more than ample opportunity to prepare, and prepare again, for examinations.
[274] Finally, as I have already alluded to in the overview section, and elsewhere in this Judgment, I have serious concerns about the father’s good judgment, when it comes to this child. I find that the father embarked on this approach to the litigation because underneath it all, he is angry at the mother. He was intent on punishing the mother for her affair. He was also very prepared to publicly attack her character during this trial. To use his own words, the mother wanted to live a “Florida spring break lifestyle”. He took the opportunity to disparage and humiliate her more than once during this trial, testifying about this so-called ‘lifestyle’.
[275] The father does not and is not capable of supporting and promoting the mother’s relationship with this child. He did not in the past cooperate to expand her parenting time in a reasonable way. He took a scorched earth approach to this case, with a view to spinning a false narrative, unsupported by the overwhelming weight of the evidence. He attacked the mother, involved the child in the litigation, coached the child with a view to undermining the mother son relationship, and tried to sully the good reputation of some of the professionals involved, in the process.
[276] In contrast, throughout this long trial, I generally found the mother to be a calm and thoughtful lady, concerned for the well-being of her child. Her testimony was for the most part internally consistent, and it was consistent with the other evidence. She was for the most part unshaken in cross examination. While I do find that she minimized her response to the swimming pool incident during the summer of 2023, I found that in general she was prepared to seek out professional advice. She was also prepared to admit when she made mistakes, such as the omission on her Form 35.1, which she corrected.
[277] Because the father has called into question the integrity of several professionals who work in the family justice system, I intend to address this, here and now. I found Ms. McNee-Trinidad, Ms. Garibotti and Ms. Bush to be credible witnesses. I found no evidence that either have acted in an underhanded or unethical fashion, or that either misled the Court. They each did their jobs in a professional manner, confronted with an obstreperous litigant, intent on complaining when things didn’t go his way. Mr. Stangarone and Ms. McArthur have also behaved appropriately and professionally.
[278] I have throughout this Judgment made specific credibility determinations about various events and aspects of the evidence. To the extent that I have not otherwise specifically set out which version of events I accept about the evidence, where there is a conflict in the parties’ evidence, I prefer the mother’s evidence.
PART V: EVIDENTIARY ISSUES
[279] A number of evidentiary issues arose during this trial. The parties agreed to deal with these mostly by way of a blended voir dire with evidentiary rulings to follow.
A. The Child’s Hearsay Statements About Physical Abuse
[280] The child has made several statements that the mother had “hit him” in the “old house”. He made these statements to the OCL clinicians, to Ms. Rutledge, and again in the video that the father made on October 29, 2023.
[281] While I am prepared to presume necessity is established given the child’s age, the child’s statements that the mother used to hit him do not satisfy a threshold reliability analysis for admission into evidence for their truth. There are other very plausible explanations that underlie the child’s statements, that do not point to the mother as a perpetrator of physical abuse towards a child.
[282] For example, in reference to one of the physical incidents talked about, Ms. McNee-Trinidad testified that she understood the mother grabbed the child’s arm to intervene during a fight the child was having with his cousins. Based on her follow up interview with the mother, it was a “very quick grab” and the mother was trying to protect the child from harm, not abuse him.
[283] Another example can be found in the children’s aid society case note of Ms. Taylor. There, she did not find the child to be at risk, and believed that “custody/access” issues were “more at play then the child being at risk given the court order in place”. Ms. Taylor also felt the father was “panic stricken” that the child was going to get hurt.
[284] A third example of the dangers of accepting the child’s statements for the truth of their contents, and the extent to which the Court cannot trust their reliability, was further revealed during the voir dire involving a statement made to Ms. Rutledge. The father introduced Ms. Rutledge’s letter to the OCL dated September 30, 2022, in which the child spoke fondly about both parents, but also in the first few months of therapy made comments about the “old house” in which he said the mother hit him if he did something wrong. The Court held the matter down for the father to review the legal principles that apply to admit a child’s out of court statements, before this particular examination continued.
[285] When the witness resumed testifying, Ms. Rutledge testified that she did not record in her notes the question that she asked the child that led to the answer about hitting. While she said she found the child insightful, she was not able to describe D.’s level intelligence, stating this was not her role to do so. The father himself elicited that the child did not disclose to her, that he was afraid of a caregiver. In fact, he said that he missed his mother when at the father’s house, and vice versa. The child had also said this to Ms. McNee-Trinidad.
[286] In cross-examination, Ms. Rutledge admitted that she did not call the children’s aid society after the child made these statements to her. She understood it to already be involved. Ms. Rutledge also acknowledged in cross-examination, that the father was very involved in therapy. He sent many emails and made many calls to her. The father took the child to most of his therapy sessions.
[287] From the outset of the child’s therapy, the father spoke of an abusive mother to Ms. Rutledge. In his intake form that he completed, the father told Ms. Rutledge that the child had already reported to him, that the mother hit him. Soon thereafter, the child made statements in therapy. In the intake session on September 1, 2020, that was scheduled for 30 minutes (and that ran long and took 45 minutes), the father also admitted to Ms. Rutledge that he had been recording the child frequently.
[288] And what Ms. Rutledge did not offer up, because the child did not say these things and she did not ask, were any further particulars about the alleged hitting. There were no details provided about when it allegedly took place, how it allegedly occurred, who was present, and so forth. The child would have been less than four years old when this hitting supposedly occurred, and the child would have been retelling this years later. Importantly, in Ms. Rutledge’s letter to the OCL of September 30, 2022, the child also said that the mother did not hit him now.
[289] Ms. Rutledge testified on June 1, 2023. When the trial resumed during the September, 2023 sittings, the father tried to offer up the details that Ms. Rutledge had not provided. He claimed to recall a December 2019 incident, when the child would have been just three years old, that he described as “difficult”. He alleged that he heard screaming upstairs, and walked into the room, to find D. “face down” on the carpet, with the mother’s knee lodged into his back, while she was punching him with both arms “uncontrollably”. He said he removed the child. Later that night, he claimed to have “set a hard limit” with regards to physical discipline. He said that in September or October of 2020, the mother not only started “gaslighting” him and “the rest of the social workers”, but also the child, saying that she had never hit him. The father would then conduct his video interview of the child on October 29, 2023, and bring up the hitting once more.
[290] As set out earlier, there is evidence of messaging to this child, starting immediately after the separation. I have already found in my credibility assessment, that the father is motivated to establish a particular narrative.
[291] In conclusion, the child’s statements about being hit by his mother in the past shall not be admitted for the truth of their contents.
B. The Lettered Exhibits
[292] There were twelve lettered exhibits for which a ruling about admissibility is outstanding.
(1) The Parties’ Recordings
[293] The parties have each sought to introduce various video or audio recordings. They are identified as lettered Exhibits “C”, which was later marked Exhibit 130, and Exhibits “J”, “K” and “L”.
(2) The Father’s Recordings
[294] I considered excluding all of the father’s recordings for several reasons.
[295] First, at ¶ 39 of Van Ruyven v. Van Ruyven, 2021 ONSC 5963, Kurz J. wrote that “the attempt to admit secretly made recordings by one parent of another and/or the child/ren has surged from a trickle to a gusher. I find that I am regularly provided with secret recordings that one party has made of the other, which the recording party asks me to then consider in order to prove the instability or perfidy of the other. Most of the times, the recording is an edited or selectively recorded version of a highly contentious argument between the parties.”
[296] Apparently, there are many other recordings that the father has made, not just those that have been shown to the Court. For example, the father testified that he had his dash camera on at basically every parenting exchange. It may very well be, that there are many, many recordings of benign interactions, or perhaps even loving interactions between the mother and child, that are inconsistent with the father’s theory of the case. It is difficult, if not impossible, to conclude that the father’s recordings that he did tender, accurately depict facts that the father wishes the Court to find, when only a few have been handpicked from an abundance. There is certainly not, as I have already found, an absence of an intention to mislead: see Rodger v. Strop, 1992 CarswellOnt 387; see also Webster v. Suteu, 2015 ONCJ 538 ¶ 44. Allowing the father to introduce just a snippet of his recordings without the full context is prejudicial to the mother, because she cannot respond.
[297] Second, in seeking to admit his recordings, the father himself acknowledged an awareness of the policy discouraging recordings in family law. Despite knowing about this policy (because he even said he obtained legal advice about this), the father nevertheless decided to embark upon his recordings to help him regain his “own perception of reality” and so he could review the videos to confirm that the mother is a “person who lies” and “weaponizes the litigation to further her agenda”. What I find he was really doing, was creating evidence to use against the mother in this lawsuit, or he thought, to paint himself in a positive light.
[298] Third, I considered whether it was necessary in this Judgment, to canvass in more detail a number of other authorities concerning the admissibility of recordings in a family law proceeding, for example because not every recording made in this case was a surreptitious one. But I need not do so. At ¶ 40-43 of Van Ruyven v. Van Ruyven, Kurz J. found that there should be a presumption that the prejudicial effect of secret recordings outweighs their probative value. He held that the presumption could not be rebutted short of evidence disclosing “serious misconduct by a parent, significant risk to a child’s safety or security, or a threat to another interest central to the need to do justice between the parties and the children.” Many of the principles and policy statements in the cases that Kurz J. considered, and in Van Ruyven v. Van Ruyven itself, would have some application, even if the recordings were not surreptitiously made.
[299] However in the end, despite all of these frailties and the admonition in the case law, the parties generally agreed that the father’s recordings could go in. Their dispute then revolved around for example whether the Court should rely on any child’s statements contained therein for the truth of their contents, or for some other reason.
[300] I am reminded of the adage, that one should be careful for what they wish. I will admit the father’s recordings into evidence. But I do not necessarily do so for the uses for which these recordings were tendered by the father.
[301] As I have already explained in several instances, the father’s videos do not help his case. The fact that he has made these, and then tried to use them in this case in the manner that he did, reflects very poorly on him. At the risk of repeating myself, the father’s own videos establish that he does not support the child’s relationship with the mother. His actions on October 29, 2023 were entirely inappropriate and particularly egregious.
[302] With reference to the father’s video recording of that latter date in particular, and the oral testimony about it, I find the evidence established that:
(a) The father breached paragraph 17 of the earlier, consent Order of Fryer J. dated December 3, 2020, by talking to the child about this case. Several times throughout this video, the father made is clear to the child, that the purpose of the video was to communicate information to the “rules people” (meaning this Court/me). At one point when questioning the child about the events of the summer of 2023, he stated to the child that the video was “for the rules people” because “it’s important they know what happened”. At another time the father said that the “rules people get to make the rules” but we “get to say what we want”. When the child answered one of his questions in another language, the father said “the rules people talk English”;
(b) The father chose not to pursue his request to Mr. Stangarone, to have the child testify, or to be judicially interviewed. I infer he knew that these requests were fraught with problems. Quite apart from the fact of this child’s young age coupled with his medical diagnoses, the father knew that this child has been subjected to interviews or questioning by others like doctors, therapists, and the OCL clinicians. He knew that it was very unlikely that this Court would allow him to call a 7 year old to testify, or embark upon a judicial interview;
(c) This October 29, 2023 video was not even the first time this child was questioned by someone on the father’s behalf. Recall that the father testified that he had his sister question the child, too;
(d) One of the father’s very clear purposes in making this video was to set the record straight, factually speaking. As I have already very specifically explained, the broad gamut of topics that the father covered with the child, covered contested matters of fact. The father also wanted to advocate for what is his view, that the OCL did not accurately detail the child’s views and preferences. He tried to do so, by having the child do it for him; and
(e) It does not unnoticed by this Court, that earlier in the trial, the father had a limited understanding about how to introduce children’s hearsay evidence. As I just explained, when he tried to do introduce the child’s statements that his mother had previously hit him through Ms. Rutledge, I held the matter down for the father to review a case about child’s hearsay. It was fairly obvious in the voir dire that followed, that Mr. Stangarone had raised serious questions about the threshold reliability of the child’s statements. The father then tried himself to provide more facts about physical abuse, and he tried again, to get the child to say so, via this video.
[303] As a matter of policy alone, the Court would not rely on these out of court statements of this child, taken improperly and in highly suspicious and problematic circumstances, to resolve contested matters of fact or questions about the child’s views and preferences. On the specific merits of this case, the father’s video is equally not probative when it comes to the Court’s findings about various factual matters like the child’s views about the parenting schedule, the mother’s disciplinary techniques, or whether there had been past physical abuse.
[304] What it is very probative of, is the father’s attitude and conduct, and the lengths to which he was prepared to go. The other evidence surrounding this video was also probative of his lack of insight. At the end of this trial, when the father testified about the October 29, 2023 video that he made, he was completely lacking in any awareness of the damage he caused to his case, and more importantly, to the child. Instead, the father told the Court why his interviewing techniques (of the child) were sound, something that he also attempted to explain with reference to his sister’s earlier interview of the child. Meanwhile, the father had just subjected this to a little boy to what Mr. Stangarone would later characterize as an “interrogation”, knowing full well that D. suffers from anxiety, he is impacted by the separation, and he is impacted by this litigation.
[305] The fact that the father did this very much causes the Court to significantly question his judgment. I draw an inference that the father has caused this child to suffer anxiety. I am prepared to go one step further, in the section of this Judgment about family violence, when I explain why I find that the father’s video is an act of psychological abuse towards this child.
[306] During her Reply evidence, the mother testified that watching this video made her afraid for the child’s physical and mental health.
(3) The Mother’s Recordings
[307] The father challenged the authenticity the mother’s recording at Exhibit “J”. After first not objecting to its admission, the father later raised a fairness argument about the mother’s video that was ultimately marked as Exhibit “K”.
[308] I find the father failed in his attempt the challenge the integrity of the mother’s counsel, and therefore the authenticity of the recording at Exhibit “J”. The father’s argument does not merit any further analysis and so I say nothing further about it.
[309] While not dispositive of the admissibility issue, the audio clips/Exhibit “K” that the child sent to the mother while in the care of the father are not surreptitious. But moreover, I find them to be quite probative respecting the events of the summer of 2023 and the aftermath following this Court’s Order of September 25, 2023.
[310] I find the mother’s recordings of her video calls with the child on August 5, 2023 and September 25, 2023 to be very probative about the father’s motives and his credibility. I also find these recordings to be very probative of the damage that the father is trying to cause to the mother-son relationship.
[311] I find the August 5, 2023 recording in particular to be an important piece of evidence that rebuts the father’s assertions about the child’s state of mind. Again and to be clear, I do not find that the child was afraid of his mother, as the father said. This recording stands in contrast to that assertion.
[312] The recordings that the mother sought to introduce will therefore be admitted into evidence for these purposes.
(4) The Mother’s Journals
[313] These disputed lettered exhibits are Exhibits “F”, “G”, “H” and “I”.
[314] The fact that the father took six or seven of the mother’s private journals at the time of the separation became a very contentious issue in this case. His taking of her journals impacted the OCL’s investigations, and this trial.
[315] I will only describe the contents of these journal entries in this Judgment briefly and in a non-detailed fashion, in view of my ruling that they are protected by a case by case privilege. Exhibit F is a note that the mother wrote, that is not from a journal book per se, but that was on a separate piece of paper. Exhibit “G” contains a list of other journal entries, and then the journal entries themselves. Exhibit “H” is a journal entry that the father tried to introduce during his own examination-in-chief. He described that the mother had written it about the holiday Eid, and he attempted to tie it to something he alleged happened in the past. The father testified that he had “no choice” but to rely on the journal entries marked as Exhibit “I” because the mother asserted he was abusive and the cause of anxiety. He sought to tender this journal entry to challenge the mother’s credibility.
[316] These journals are to be excluded from the evidence in this case. The Court will order that these lettered exhibits shall be sealed. The father shall also be ordered to destroy the copies of the mother’s journals that he has at later of the conclusion of an appeal period, or an appeal if there is one (unless of course the appellate court orders otherwise). My ruling is based on the findings of fact and analysis that now follows.
(5) Findings of Fact Respecting the Mother’s Journals
[317] While the mother may have already been writing journals earlier on, she nevertheless testified that it was with the advice of her therapist, that she journaled during the marriage. She did this as a therapy tool in aid of her mental health, which she said she found helpful.
[318] The mother journalled when the family was away on vacation, too. The mother sometimes made notes using hotel or other loose pieces of paper, that she then put into, or stored with her journals. For example, the father confronted the mother with one of these writings, which the mother said was in fact a journal entry.
[319] The mother testified that she did not allow the father to have access to her journals at any time during the marriage. She denied that they tried to write journal entries together, to “manage the [mother’s] various stakeholders” as the father suggested to her. While the mother did not keep these journals locked away, she testified that she kept them separate from him.
[320] The father took some of the mother’s journals unilaterally and surreptitiously upon the separation, without her consent. While the father would later return them, he did not do so without first photocopying them for their later use in this case.
[321] The mother testified that she now has more difficulty journaling. She previously viewed her journals as a safe space, but the father’s conduct has made her nervous to journal.
[322] The father tried to use these journals in at least three ways in this case.
[323] First, the father tried to have both OCL clinicians read the mother’s journal entries. Ms. McNee-Trinidad told the father that she would not be reading the mother’s journal entries. She also explained that she had been told by the mother’s lawyer at the time, that the journal entries were not included in the Continuing Record. Ms. McNee-Trinidad later learned that the journals did form part of the Continuing Record.[^28] She then questioned whether she had made a mistake in not reviewing them.
[324] Ms. Garibotti also refused to read the mother’s journals during her investigation. She too felt that they were the mother’s personal and private entries, and in any event not necessarily indicative of medical diagnoses.
[325] Second, the father took journal entries with him, when he went to see the Justice of the Peace, in the fall of 2021. This is discussed later, in the Court’s analysis of family violence.
[326] Third, the father tried to introduce them during this trial. The mother said she found this upsetting.
(6) Analysis Respecting Case by Case Privilege
[327] The mother seeks to exclude the journals. She asserts they are privileged.
[328] The Supreme Court’s decision in M.(A.) v. Ryan, 1997 CanLii 403 (S.C.C.) concerned a motion for production of counselling records, but the privacy and privilege analysis is applicable.
[329] Everyone owes a duty to give evidence relevant to the matter before the Court, so that truth may be ascertained. But privileges are an exception to this fundamental duty, where it can be shown that they are required by a “public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth”: see M. (A.) v. Ryan ¶ 20.
[330] While there is no blanket privilege here, the kinds of privilege that may exist at law are no longer confined to “centuries’ old categories”. The common law permits privilege in new situations, “where reason, experience and application of the principles that underlie the traditional privileges so dictate”. If the Court determines a privilege exists, there is no residual discretion to order the production: see M.(A.) v. Ryan ¶ 15-17 (or by extension, to admit and rely on these documents).
[331] The four-prong “Wigmore test” can apply to determine whether these journal entries are privileged. The test requires the Court to consider:
(a) Did the communication originate in a confidence?;
(b) Was the confidence essential to the relationship in which the communication arose?;
(c) Was the relationship one that must be “sedulously fostered” in the public good?; and
(d) If all the above circumstances are met, do the interests served in protecting the communications from disclosure outweigh the interest in getting at the truth and disposing correctly of the litigation?
See M. (A.) v. Ryan ¶ 20
[332] The Supreme Court specifically rejected an “all-or-nothing” approach in M.(A.) v. Ryan. The Court may order disclosure of some but not all documents, or edit them, or impose conditions about who may see or copy the documents, “…to ensure the highest degree of confidentiality and the least damage to the protected relationship, while guarding against the injustice of cloaking the truth”. See M. (A.) v. Ryan ¶ 32-37, 39.
[333] In my view, the first three branches of the Wigmore test are met. I do not accept that the parties journalled together, as the father tried to suggest. And regardless of the line of inquiry of the father, that the mother may have journalled before starting therapy, the entries that the father sought to introduce all post-dated the mother being in her therapy. Those journals would have still been private even if they had not been made in aid of therapy. But the fact that she did this as a tool of therapy aggravates further the seriousness of the father’s actions in my view.
[334] The fact that the father father’s actions have impacted the mother’s feelings about her therapy is counter to what should be promoted in a case of this nature. Where one parent is making allegations about the other’s mental health, and therapy is one of the recommendations by which the mother will maintain good mental health, that therapy should not be interfered with.
[335] In regards to the balancing required under the fourth branch of the Wigmore test, these journal entries are minimally probative of credibility or of the mother’s mental health, especially when considered in context of the overwhelming amount of other evidence on these topics. And the Court’s Orders must be reflective of Charter values. Just because there may be an alleged credibility issue, or a parent with mental health struggles, does not blow the door wide open for the admission of this kind of evidence, especially when it has very limited probative value. Recognizing and protecting a case by case privilege will be beneficial when it addresses any inequalities that would be perpetuated by the absence of protection: see M. (A.) v. Ryan ¶ 29, 30. I find that the father’s approach to this evidence has harmed the mother’s dignity.
[336] Finally, at ¶ 22 of L. (H.J.) v. E. (W.V.), 2001 CanLii 25255, Borenstein J., of the Quebec Superior Court, wrote specifically about journals:
The Court has a duty to protect these rights and a person has the right to see that his most private reflections which he keeps in his diary which he then locks up, are not exposed. The fundamental right of respect of one's privacy would be breached if the Court allowed the wife to produce the evidence obtained under such circumstances and its use would tend to bring the administration of justice into disrepute. The Court maintains the objection and declares the diaries inadmissible.
[337] I find the mother’s journals are protected by a privilege. They are to be excluded from the evidence, and various confidentiality orders will attach.
(7) The Text Message Between the Father and the Mother’s Sister
[338] Exhibit “D” is a series of text messages between the father and the mother’s sister, one of which is dated June 5, 2020. The discussion revolves around the mother’s temporary stay in the hotel after the separation. The father added his own commentary at the top of the page on which these text messages were photocopied. That commentary was struck during the trial.
[339] Some of the text messages were written by the father and some by the mother’s sister. The mother raised a hearsay objection, as her sister was not called to testify. During the line of inquiry that followed, the father asked the mother to admit that he had taken certain steps at the time of the separation, or whether her sister had told her that he had taken those steps.
[340] What the father wrote about the mother going to a hotel after the separation, is not particularly contested terrain. The father was also able to give his own evidence about what he did. No issues in this case turn on these test messages. They are not admitted.
(8) The Mother’s TD Bank Account Transactions, Her Other Financial Documents and the Father’s Ongoing Complaints About his Employer Audit
[341] The mother opened new bank accounts after the date of separation. Tab 44 of the Mother’s Supplementary Exhibit Brief contains print-outs from the bank, of the transactions in and out of the mother’s new TD Bank Chequing Account, as well as some statements of other accounts, credit card statements, and student loan documentation. These documents were marked as lettered exhibit B during the trial because the father objected to the authenticity of the chequing account print outs from the bank.
[342] The father complained that the mother produced a transaction summary and argued that she did not comply with an order for financial disclosure. He went on to say that she somehow manipulated documents to show that she complied with a prior disclosure order. He said she controlled documents in some fashion to prevent him from getting a spousal support deduction. He said this was a form of financial control.
[343] The father also testified more than once about an employer audit that he is undergoing, and that he says the mother has to participate in. He claimed that the mother’s bank statements weren’t authentic, and that this somehow posed a problem in the audit. He also claimed that she needed to sign a form and take other steps.
[344] In the draft Order that he tendered at the end of the trial, he asked for an order that “the TD Bank to release directly to him statements generated between June 1, 2022 and August 1, 2022 for any accounts held by the mother, at a minimum to include the accounts listed in [the mother’s] Financial Statement [sworn April 17, 2023]”.
[345] By contrast, the mother testified that she obtained the print-out by attending at the bank and asking the bank to generate this document, as she could not do it herself online that far back in time.
[346] These multiple arguments of the father are without merit. The father did not prove these different allegations of document manipulation. This is yet another example of the father baldly asserting that someone, whether the mother, her current lawyer, her former lawyer, the OCL, or Dr. Walker-Kennedy behaved with impropriety.
[347] This was also not an example of financial control. The father was not entitled to a spousal support deduction: see again the Consent Order of Fryer J. dated December 3, 2020, which provides that the funds the father paid were an advance to the credit of support or property, to be sorted out later. Payments made under such an Order are not spousal support, and are not tax deductible.
[348] There is no serious question in this case that the mother had very little by way of resources of her own, either during the marriage or after the separation. The father was the one who retained financial control.
[349] Finally, I already made an order about the financial audit on September 19, 2023. I do not intend to deal with the financial audit any further.
[350] Other than an enclosure letter from Mr. Stangarone’s office dated May 9, 2023 and a letter from TD Bank dated April 18, 2023 that I already struck, the balance of the documents behind this tab are business records and are admissible. There shall be an order accordingly.
(9) Dr. Khattak’s 2021 Assessment Report
[351] Dr. Khattak, whom I have referred to already in this Judgment, is a pediatrician with KidsClinic. His practice is focused on developmental and behavioural pediatrics. D. was referred to Dr. Khattak for an assessment regarding anxiety and an acute stress disorder in 2021, as the child had then been demonstrating tic-like behaviours. Dr. Khattak assessed the child on June 28, 2021 and again on September 3, 2021.[^29]
[352] The assessment report of was initially marked as Exhibit A. It was made a lettered exhibit because it was not immediately agreed whether he would be called to testify or whether his report would otherwise go in under the Evidence Act. This issue later resolved. His Report has already been made an exhibit.
(10) The Medical Note of Dr. Kitab dated March 26, 2018
[353] Exhibit “E” is a medical note of Dr. Kitab dated March 26, 2018. The parties also agreed that this note could be admitted into evidence. There shall be an order accordingly.
PART VI: ISSUES AND ANALYSIS RESPECTING THE PARENTING ISSUES
A. The Applicable Statutory Provisions Respecting Decision-Making Responsibility and Parenting Time
[354] 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.
[355] Decision-making responsibility is defined in section 2(1) 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 means the time that a child of the marriage spends in the care of a person referred to in section 16.1(1), whether or not the child is psychically with that person during the entire time.
[356] Pursuant to section 16.1(4), the Court may allocate parenting time or decision-making responsibility in accordance with sections 16.2 and 16.3, it may order terms respecting communication, and it may provide for any other matter that the Court considers appropriate. The Court may also make an order for a definite or indefinite period of time or until a specified event occurs, and it may impose terms and conditions, in accordance with section 16.1(5).
[357] When there is an application for a parenting Order, the Court’s only focus must be the best interests of the child or children in question: see section 16(1). This Court is to consider all factors related to the circumstances of the child when determining best interests. Section 16(2) requires that when considering the factors in section 16(3), the Court is to give primary consideration to the child’s physical, emotional and psychological safety, security and well-being. Section 16(3) requires the Court to consider all factors related to the child. There is a non-exhaustive list of eleven criteria in the section.
[358] Pursuant to section 16(5), the Court is not to take into consideration the past conduct of any person unless the conduct is relevant to the exercise of parenting time or decision-making responsibility. There have been a multitude of allegations about past parental behaviour in this case, some positive but much negative.
[359] Pursuant to section 16(6), in allocating parenting time, the Court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child. How this provision is to be interpreted, was recently addressed by the Supreme Court in Barendregt v. Grebliunas, 2022 SCC 22 ¶ 133-135.
B. Applicable Legal Principles and Analysis Concerning Joint Decision-Making Responsibility
[360] Although both parents have essentially sought sole decision-making responsibility, the first OCL Report recommended joint decision-making responsibility, and some form of consultation has been part of the principal and alternative positions being taken by one or the other parent at points during this trial. The legal principles applicable to joint decision-making are well known: see Kaplanis v. Kaplanis, 2005 CanLII 1625 (Ont. C.A.); see also Roloson v. Clyde, 2017 ONSC 3642 ¶ 59 in which Justice Chappel provides a helpful list of factors to consider.
[361] In particular, it is well-known that joint decision-making is generally only appropriate in cases where there is evidence of historical and appropriate communication between the parents. Just because one parent professes an inability to communicate does not preclude an order joint decision-making. Nor is the standard of perfection required. But where there is poor communication, joint decision-making should not be ordered in the hopes that two parents’ communication will approve. There must be some evidence before the Court that, despite their differences, the parents are able to communicate effectively with one another.
[362] Courts are sometimes willing to order some form of joint decision-making, even in the face of parental conflict, where such an order is considered necessary to preserve the balance of power between the parents. This is particularly in cases where both parties are caring and competent parents, but where one party has been primarily responsible for the conflict. That is exactly what Ms. McNee-Trinidad recommended in the First OCL Report.
[363] But as Ms. Garibotti later recognized in her analysis in the Second OCL Report, and I agree, joint decision-making will not work in this case. These parents’ abilities to communicate and co-operate is non-existent. Especially here, where there has been very problematic behaviour on the part of the father, the Court is concerned that any form of joint decision-making or parallel parenting is more likely to inflame the parents’ conflict and expose D. to it. That very much militates against such an Order: see S.S. v. S.K., 2013 ONCJ 432 ¶ 43.
C. Analysis Respecting the Statutory Best Interests Factors
D. The Child’s Needs
[364] Section 16(3)(a) provides that the Court shall consider the child’s needs, given the child’s age and stage of development, such as the child’s need for stability. That entails articulating what the child’s actual needs are.
(1) The Child’s Mental Health Needs
[365] D. exhibits certain behavioural issues, he has anxiety, particularly when he is separated from his parents, and he has a mild form of Tourette Syndrome. In view of D.’s health and behavioural issues, it goes without saying that this child needs to have healthy relationships with both of his parents.
(i) The Parents’ Evidence About the Child’s Behavioural Issues
[366] The Court heard much evidence about D.’s behaviour and anxiety, from the parents, from other witnesses, through the documentary evidence, and from the professionals involved in the child’s care. For example, both parents and the maternal uncle explained testified that D. has anxiety and a “tics disorder”. Both parents testified about the child’s aggression, which includes hitting.
[367] The father’s presentation suggested or implied to the Court that the aggression was exclusively, or at least primarily towards the mother. For example, the father asked questions of witnesses to establish that D. had not been aggressive with his therapists.
[368] But while the child has certainly been aggressive with his mother, the mother has not been the exclusive target of this. Each of the mother, the father, and the maternal uncle testified that D. would get into scuffles with his two cousins. The Court also heard evidence about conflict that the child had with other students at school, including recently. The Court heard evidence that the child had been aggressive with the father, too.
[369] The father believes that the mother is the cause of the aggression. Ms. Garibotti expressed a concern about this belief. The father has tied the child’s mental health to others in the mother’s family, too. For example, the father testified, without any expert evidence to this effect, that the child now has the “hereditary make up of an individual likely to have mental health issues” because the maternal grandmother and aunt are diagnosed with bipolar disorder and schizophrenia.
(ii) Dr. Khattak’s Assessment of the Child
[370] Dr. Khattak diagnosed the child with Generalized Anxiety Disorder and Separation Anxiety Disorder. In his Report, he wrote that D. experiences excessive worry more days than not. He wrote that D. has difficulty controlling his worries. He wrote that this worry on occasion disturbs his sleep, and the physical symptoms of anxiety are noticeable and interfere with his ability to function.
[371] In regards to separation anxiety, Dr. Khattak wrote that the child demonstrates developmentally inappropriate and excessive fear or anxiety concerning separation from those to whom he is attached. He has recurrent excessive distress when anticipating or experiencing separation from home or from major attachment figures. He worries excessively about losing major attachment figures or possible harm to them. He is reluctant to sleep without being near a major attachment figure.
[372] One of the reasons Dr. Khattak had to be called to testify, as opposed to his evidence going in by way of his written report alone, was that the father would not admit that the mother is a major attachment figure referred to in the report. Dr. Khattak confirmed this during his oral evidence.
[373] Dr. Khattak recommended individual counselling, a referral to a trauma specialist if the regular therapist reported D. demonstrating any symptoms of trauma, limits on excessive screen time, parental education, and that D. obtain an IEP. As set out earlier, Dr. Khattak made recommendations for transitions between households. He also made various recommendations for D.’s school.
(iii) The Child’s Tourette Syndrome
[374] The father believes that the child’s contact with his mother aggravates his “tics”.
[375] However, the father introduced the Report of Dr. Pearce dated February 1, 2022, obtained after the assessment of Dr. Khattak. This Report went in on consent, without Dr. Pearce testifying.
[376] Dr. Pearce did not find that the mother aggravated the child’s “tics”. Rather, she diagnosed D. with mild Tourette Syndrome, writing that the tics did not interfere with his day-to-day functioning. She recommended that the child be monitored for potential autism spectrum disorder as he progresses through school, given reports of some social skills difficulties from teachers.
[377] Dr. Pearce’s Report also indicates that psychoeducation was provided about the assessment and its recommendations. She specifically wrote that her assessment did not include an assessment of parenting capacity or abilities.
(2) The Child’s Other Health Care Needs
[378] This child had a number of health care professionals involved in his care. While complaints have been made about the father perhaps over involving health care professionals, what is notable, is that D. does not currently have either a family doctor, or a therapist; two essentials for his continuity of care and to address his anxiety, its behavioural manifestation, and his aggression.
[379] The child’s doctor used to be Dr. Vinoja. Dr. Vinoja went on a maternity leave at the end of 2021. Since Dr. Vinoja’s maternity leave, the child has been taken to walk-in clinics, and now most recently to Dr. Gihan, who the father described as the former family doctor of both parents. In reality, he is the father’s doctor; Dr. Gihan has not been the mother’s family doctor for quite some time. The parents have been unable to agree on a new doctor.
[380] Ms. Rutledge, who the father called to testify, is the registered psychotherapist, whom the father initially involved to provide counselling for the child, following the separation. Ms. Rutledge saw the child for weekly or bi-weekly therapy sessions between September of 2020 until August of 2022. Her final session with D. was in November of 2022, at which point D. was transitioned to a new therapist.
[381] The father made the decision to change therapists, because the child was apparently less willing to “self-disclose”. The father also felt that someone with more expertise was required. He found Dr. Hosseini.
[382] Dr. Hosseini, whom the father also called to testify, is a clinical psychologist. She provided counselling for the child between June of 2022 and until October 3, 2023. But in July of 2023, Dr. Hosseini told the parents that she could no longer provide therapy for the child, “due to a personal matter”.
(3) The Child’s Educational Needs
[383] The child attends a school that is close to both parties’ residences, although it is slightly outside the mother’s catchment area. The mother confirmed with the school, that the child could continue to attend school there, for example, if the child began living with her more of the time. Dr. Khattak’s report has been provided to the child’s school. There is already an IEP in place.
(4) The Child’s Cultural, Religious and Spiritual Needs
[384] In general, the parties are in agreement respecting culture and religion. They both agree that the child should be raised in the Muslim faith. The parents differ in the way they each practice their religion now.
[385] The father testified that he comes from a close-knit community of 100 families. He testified that members of his community attend between 60 and 70 religious programs together. He testified that people of this community watch each other’s children. He wants D. to be part of this community, but said that the mother has chosen to leave this community, because the choice to live in a “faith centered community caused her anxiety”. He seems to believe that the mother is moving the child “from community to community as [she] spends her time discovering herself”.
[386] I agree that it is important that the father should be able to involve D. in his community. But the mother is not objecting to this. At its core, the problem is that the father’s view of what is entailed for the child to participate involves curtailing the mother’s parenting time.
[387] In my view, the most significant parental dispute over culture and religion to date, concerned the child attending the Saturday school. This caused problems, at least until the Court’s Order of September 25, 2023, because of its impact on the parenting schedule, how the parties handled that impact, and the conflict that generated in the process. That is not the only dispute about religion and culture, however. I will identify and resolve the others in this Judgment, too.
E. The Father’s Ability and Willingness to Manage the Child’s Behavioural Issues, Mental Health, Other Health Care and His Education
[388] Having now identified what the child’s needs are, section 16(3)(h) directs the Court to consider these parents’ abilities and willingness to care for and meet the child’s needs. I will address the father’s abilities and willingness first; I address this factor as it pertains to the mother separately.
[389] In the second OCL Report, Ms. Garibotti recommended that despite a number of short comings and concerns she had about him, the Court should nevertheless empower the father to make final decisions about this child, after consultation with the mother. Her analysis is largely based on the status quo of the father having done so since the separation, and the fact that joint decision-making is contraindicated. While I agree that joint decision-making is contraindicated, I cannot give effect to this recommendation. I do not find that the father is better able to manage the child’s health and education for six reasons.
[390] First, the father has provided misinformation about the mother to the child’s health care professionals, such as to Dr. Pearce and to Dr. Khattak.
[391] I do not fully know what Dr. Pearce did with the information that the father provided,[^30] since she did not testify, but her Report states that the father wrote in his intake form that:
(a) The mother was struggling with marijuana use, and there was one incident during pregnancy where he had to intervene, because she was “secretly purchasing it”;
(b) Various family members of hers have a plethora of mental health issues;
(c) The child suffered from anxiety “related to prior abuse from the mother (physical, emotional and psychological)”, and he claimed his family doctor believed the child’s tics were “secondary to an anxiety disorder, which was believed to be the result of an “abusive relationship with the mother”; and
(d) The child’s tics escalated since mid-February of 2021.[^31]
[392] Dr. Khattak testified he recognized the need to some degree to take what the parents were saying with a grain of salt, as they were in a high conflict separation.
[393] Second, although neither Dr. Khattak, whether in his Report nor during his oral testimony, nor Dr. Pearce in her written Report, have ever said that the solution to the child’s behavioural and health issues is to curtail the mother’s parenting time, that is exactly what the father believes the solution to be. At his very first interview with Ms. Garibotti, the father told her that the child’s tics subsided when the mother’s parenting time reduced. He also told Ms. Garibotti that the mother causes the child stress. Likewise, the father claimed in cross-examination, that after he stopped the mother’s visits with the child for over two months during the summer of 2023, the child’s behaviour improved.
[394] The father argued with Mr. Stangarone about whether the child experiences anxiety when away from his mother. He would not concede this, [^32] even though his own, professional witness, Dr. Khattak, later said this when he testified. To be clear, Dr. Khattak said he had “no doubt” that both parents were major attachment figures for this child. Dr. Khattak was also of the view that the withholding of the child from the mother for a prolonged period of time, like that which occurred over the summer of 2023, would have caused an escalation in the child’s anxiety. What this means, as Ms. Garibotti has also written, is that this father is unwilling or unable to digest and incorporate professional advice about this child, that is not consistent with his own views and narrative.
[395] Third, the father has not necessarily made good health care decisions for this child, either. For example, his decisions about the child’s therapy have culminated in this child now not having a therapist.
[396] Fourth and relatedly, I find that the father has been shopping for a professional who will support his view that the mother is the problem. So far, this has included Ms. Rutledge, Dr. Hosseini, Dr. Khattak, Dr. Pearce, Ms. Long, and even chiropractors. The father also tried to persuade or influence the OCL clinicians, and Dr. Walker-Kennedy’s assessment of the mother.
[397] Again, Dr. Pearce wrote that she did not undertake a parenting assessment. Dr. Hosseini said more than once during her testimony that she did not undertake an assessment of the child too, as that was not her mandate. She also testified that the parents signed an agreement not to involve her in Court, yet the father served her with a summons and compelled her attendance.
[398] Meanwhile, to Ms. Garibotti, Dr. Hosseini said that the child had not reported any concerns about either parent. And in her subsequent written report dated April 3, 2023, that the father himself tendered, Dr. Hosseini wrote that the child talked positively about both his parents and expressed enjoyment of different activities done with them. He also spoke fondly about two cousins on both sides of his family. Most recently, the father misrepresented the state of affairs about the child’s therapy, respecting his conduct with Ms. Long. The mother’s evidence is that the father tried to malign her, to Ms. Long.
[399] The Court observes that despite looking for one, the father has not yet found a professional willing to give him the opinion that he is seeking. Yet he has kept on trying to find one. At one point during the trial, he wanted a “reunification specialist” to be ordered, a request he later abandoned.
[400] Fifth, the child’s school attendance has been an issue under the father’s watch. According to D.’s Report card dated June 28, 2023, by the end of grade one, the child had been absent 51 days, and late 5 times. The father admitted that during the first week of the 2023-2024 school year (which was only a four day school week to begin with), he kept the child home for “religious and illness reasons” for three of those four school days. According to the November 15, 2023 Report Card, the child had already been absent for 9.5 days during the first two and a half months of the school year. Given the child’s educational needs, this is a problem.
[401] Sixth, the father has also spread information about the mother in the educational realm. I refer again to the school principal’s call to the children’s aid society, early on after the separation, to inquire whether information could be released to the mother.
[402] For all of these reasons, I find the father cannot be given decision-making.
F. The Father is an ‘Unfriendly Parent’
[403] At ¶ 133 of Baredgret v. Grebliunas, Karakatsanis J. referred to the “friendly parent rule”, which 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. I find that the father is an ‘unfriendly parent’ and this too militates against providing him with decision-making responsibility. The reasons I draw this conclusion, are overwhelming.
[404] Much of the evidence, relevant to other best interests’ factors, is also again relevant here. As Ms. Garibotti succinctly and accurately said in the Second OCL Report, the father demanded supervised contact with the mother early on, and that it continue until a court order was made (being the March 17, 2022 Order). He refused to agree to various supervised agencies, and insisted that he be present for community visits. He was been unable to execute significantly more time, or accept positive assessments of the mother’s behaviour.
[405] At the risk of repeating myself, I find the father has:
(a) created a post-separation status quo that departed from the parenting arrangements during the marriage;
(b) unnecessarily insisted on restrictions to the mother’s parenting time, for far too long;
(c) excluded her from the full participation in the child’s life;
(d) delivered inappropriate messages to this child about his mother’s mental health and used the child to communicate messages;
(e) inappropriately involved the police and child welfare agencies;
(f) refused to move the location of the mother’s parenting time to Ajax in 2021, even if still supervised, resulting in the child having to commute back and forth between Ajax and Stouffville, when there had already been problems with the commute and these exchanges;
(g) refused to allow the mother to talk to the child about his home, and criticized her when she did this on her own;
(h) spread misinformation to others about the mother;
(i) interfered with her parenting time in multiple different ways;
(j) refused to allow the mother to attend at his house for exchanges;
(k) withheld the child for vast amounts of time during the summer of 2023;
(l) breached orders of this Court;
(m) lied about his whereabouts (in Windsor) while pretending that the child would not attend visits;
(n) involved the child in the dispute and got the child riled up, to the point that the child was verbally abusive towards his mother, after this Court’s Order of September 25, 2023;
(o) conducted his own video interview of the child; and
(p) most recently, refused to allow the mother to attend therapy debriefing sessions, while this decision was under reserve.
[406] Some of these examples would have been known to Ms. Garibotti when she wrote the aforementioned conclusion in the Second OCL Report; other examples post-date it. The subsequent examples serve to reinforce her conclusion.
[407] The father had ample opportunity to change. He has instead become more rigid, entrenched and extreme in his positions. All of these examples very much persuade me that the father is not supporting, and is not capable of supporting the mother’s relationship with the child.
[408] By contrast, I am not concerned that the mother might marginalize the father as the child’s parent. I find she has not and will not do so.
G. The Father’s Communications to the Mother Are Overly Lengthy, Detailed, Controlling, and Dictatorial
[409] Section 16(3)(i) provides that the Court shall consider the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child.
[410] The mother testified that the father had sent her lengthy messages, broken down into topics, like “injuries”, “medical”, “emotional”, “behavioural”, “parenting”, “logistics” and so forth. Both sides tendered voluminous communications between them (ie. hundreds if not thousands of pages of text messages and Our Family Wizard Messages).[^33] Most if not all of the Our Family Wizard messages that I reviewed reveal that the father used this format. The mother also testified that the father would send these messages, and then repeat himself in subsequent ones, asking her things that he had already asked earlier.
[411] The mother testified that the father told her that she had to write these kinds of detailed messages to him too, and when she did not, he accused her of not following an order and of not communicating. The mother viewed these messages from the father as “over communication”, something that she discussed with the OCL clinicians during the section 112 investigations.
[412] The father testified that he thought his detail was a good thing, saying that he thought he was keeping the mother involved.
[413] Ms. Garibotti described the Our Family Wizard messages as “challenging”. She said there were many examples where both parents had used Our Family Wizard to further their position and discuss court issues. She said they were confrontational in their communication. However she also wrote that the father is giving suggestions and directions to the mother more often to “assist” the mother in managing the child’s behaviour. She wrote that these messages can be perceived as derogatory and condescending. She wrote that the father’s messages were often long and detailed with several paragraphs and headings, and the communications should be streamlined.
H. Additional Examples of the Father’s Control
[414] There are other examples of the father engaging in controlling behaviour, in tandem with these written communications.
[415] One additional example is that the mother wanted to take the child to Coldwater Ontario for a family reunion during the summer of 2022. The proposed trip was for a mere four days in duration. While the father consented to this trip, he imposed conditions. He went to the area and stayed nearby. He insisted on seeing D. during this trip. The child went to stay with the father for one overnight with his father in the middle of this short trip.
[416] When he was cross-examined about this, the father claimed to be supportive, saying that he wanted the child to have “new memories” with the mother and her family. He also claimed that he offered to stay nearby in case the mother was uncomfortable. But the father’s written message to the mother of July 6, 2022 shows exactly how he dictated the terms of this trip:
He has therapy Tuesday evening so he won’t be able to come with you guys for check in. I will bring [D.] to the address you shared on Wednesday morning. He will spend Wednesday night with you and if on Thursday he’s missing me, I will pick him up for a few hours and drop him back. If he’s really cranky, he might spend Thursday evening with me. Then on Friday or Saturday he will drive back with me. I might stay up north with him Friday night so I can get some vacation time with him also. I will keep him this weekend on Saturday instead of sending him to you.
[417] The father also went on to tell the mother to set up a space where the child could have “alone time” from the other persons on the trip, “if he’s overwhelmed”. He directed her to “discuss a secret word he can whisper to you if he’s reaching a breaking point and needs you to immediately rescue him”, saying that he himself does this with the child.
I. The Father Engaged in Several Acts of Family Violence
[418] Section 16(3)(j) of the Divorce Act provides that family violence and its impact on, among other things, the ability and willingness of any person who engaged in the violence to care for and meet the needs of the child, and the appropriateness of making an order that would require persons to cooperate on issues affecting the child, are factors related to the child’s circumstances in the best interests’ analysis.
[419] Family violence has always been relevant in the assessment of a child’s best interests. It is now defined in section 2(1) of the Divorce Act. The definition is broad. It means any conduct, whether criminal or not, by a family member towards another family member that is violent or threatening, or that constitutes a pattern of coercive and controlling behaviour, or that causes the other family member to fear for their own safety or for that of another person, and, in the case of a child, includes direct or indirect exposure to such conduct. The definition then includes a non-exhaustive list of nine kinds of behaviour that constitute family violence. The Court is not precluded from finding that other conduct fits within its meaning, too: see ¶ 27 of McLellan v. Birbilis, 2021 ONSC 7084.
[420] The mother says the father engaged in coercive and controlling behaviour that qualifies as family violence. In Barendregt v. Grebliunas, the Supreme Court discussed that family violence can be difficult to prove. While that is very much so, in this case, a number of the examples outlined elsewhere in this Judgment, were patent, and not at all difficult to prove. The father himself established some of this evidence for the mother. I adopt and will apply, without needing to repeat it, Chappel J.’s definition of coercive and controlling behaviour, that is at ¶ 183 of M.A.B. v. M.G.C., 2022 ONSC 7207. Problematic litigation conduct, such as litigation bullying, can be a form of family violence, too: see for example C.L.M. v. M.J.S., 2017 BCSC 799¶ 392; see N.N. v. S.M., 2022 ONCJ 482 ¶ 122; and see also S.C.H. v. S.R., 2023 ONSC 4928 ¶ 511.
[421] In this case, I find the following three examples to be particularly egregious and worthy of emphasis. First, during this trial, and to others at other times, this father scurrilously alleged, that the mother was basically an unchaste woman, of a lesser moral character than he. He accused her of having had multiple partners, of having had multiple abortions in the past, and he even said that she used “street drugs” during the pregnancy. He told the latter to various professionals involved in the child’s care as well, in an attempt to skew their processes. Quite apart from the irrelevancy of matters like a person having a prior partner or an abortion, the father proved none of these things. This father was able, with far too much ease, to launch this vicious attack on the mother.
[422] Second, the Court finds it shocking that in November of 2021, after the release of both Dr. Walker-Kennedy’s comprehensive assessment and the First OCL Report, this father went to have a meeting with a Justice of the Peace in an attempt to have the mother forcibly hospitalized. To this meeting, the father brought some of the mother’s journals. I did not at all find the father to be credible when he claimed that his purpose was not to have the mother “admitted” but rather to “help [her] to get admitted”, because “often it is a loving family member” who does this.
[423] I also found the father to be disingenuous when he said that the Justice of the Peace’s refusal to act, apparently because the parties were embroiled in a divorce proceeding, “broke his heart” because he “wanted [the mother] to have positive interactions”, “good memories”, and he wanted the child to have “good memories of his childhood”.
[424] Understandably, the mother testified that she too found this evidence to be “shocking”. She also found it to be “violating”.
[425] Third, and I repeat again, that this father essentially co-opted a 7 year old child to scream and yell horrible, abusive messages at his mother, as recently as September 25, 2023. He then sat the child down for his video interview a little over a month later. At best, this reveals a serious lack of judgment and a lack of parenting skills on his part. But I also find this is psychological abuse: see also ¶ 122 of Bors v. Beluta, 2009 ONSC 7029 (aff’d by 2021 ONCA 513) .
[426] As a finding of family violence has been made, section 16(4) directs the Court, when considering the impact of family violence under section 16(3)(j), to consider a further list of factors. Those include the nature, seriousness and frequency of the violence and when it occurred, whether there was a pattern of coercive and controlling behaviour in relation to a family member, whether the violence was directed towards the child or whether the child was exposed, safety concerns, any preventative steps taken and “any other relevant factor”.
[427] I find the father has engaged in a pattern of coercive and controlling behaviour consistently over time since the separation. In so doing, he has involved the child. He has engaged in psychological abuse of the child. He has not taken adequate preventative steps to address this behaviour. He has not accepted professional feedback or changed his attitude.
J. The Mother’s Mental Health and Whether It Impacts Her Parenting Abilities
[428] The father has time and time again made a plethora of allegations about the mother’s mental health and to a lesser degree, about the mental health of other family members, like her sister. He basically asserts that the mother is unable to parent, and the child is at risk in her care, or around other members of her family.
[429] In P.P. v. A.V., 2021 ONSC 7459 and more recently in Gerasimoloulos v. Sambirsky, 2024 ONSC 2368, Himel J. and Kraft J. respectively, referred to the Revised AFCC-Ontario Parenting Guide, Microsoft Word – AFCC-O Parenting Plan Guide (Version 2.0, December 2021).doc (afccontario.ca) and the principles discussed therein regarding mental illness as instructive. They quoted from page 45 of the guide, which provides some guidance about how to address mental health in a parenting proceeding. In regards to a parent who is compliant with a treatment plan, or where parenting is not affected, regular parenting time can be established or resume. The guide also provides that if mental health is property addressed, a child will benefit from a relationship with the parent.
[430] In this case before me, the mother’s mental health has been adequately, and indeed exhaustively explored. The mother’s current mental health diagnoses are an adjustment disorder, anxiety and depression. There were times in the past, during the marriage, at the height of the parties’ relationship troubles, and as the separation unfolded, that the mother was distressed, including thoughts of self-harm. But the mother receives therapy, and the overwhelming evidence is that her condition is stable.
(1) Dr. Walker-Kennedy’s Psychological Assessment of the Mother
[431] Pursuant to the Consent Order of Fryer J. dated December 3, 2020, the parties each agreed to undergo psychological assessments by Dr. Walker-Kennedy. Dr. Walker-Kennedy has a Ph. D in psychology that she obtained from the University of Toronto in 2010. She has been in private practice since 2011, conducting individual family therapy, psychological and psychoeducational assessments since 2013, and custody and access assessments since 2015. She has participated in additional training and continuing education, including undertaking assessments and testing. She has undertaken numerous psychological assessments and prepared reports for both adults and children.
[432] Dr. Walker-Kennedy was qualified in psychology and psychological assessment, to give opinion evidence “on the psychological issues of the parties regarding their mental health and attention issues”. The father did not object to her being qualified to give opinion evidence. He later questioned her about the fact that she is a psychologist, not a psychiatrist.
[433] In addition to her own interviews, assessment and testing of the mother, Dr. Walker Kennedy’s Psychological Report of the mother dated June 30, 2021 also states that she reviewed the mother’s medical records from 2016 to 2020.[^34] Dr. Walker-Kennedy concluded that that the mother’s hospitalizations occurred after experiencing severe disagreements with the father, where she felt demeaned, belittled and verbally abused by him. While this led the mother to feel a sense of hopelessness and she experienced transient thoughts of suicide, all of the hospital records indicated a mild risk. Dr. Walker-Kennedy’s impression of the mother, was that she was doing the best she could to cope with the things that had happened to her, including the isolation she experienced during the marriage, and a very distressing separation.
[434] Dr. Walker-Kennedys’ Report diagnoses the mother as follows:
The information gathered from clinician interviews, observations during the testing, results of the self-report questionnaires, review of medical records, indicate that [the mother] has many symptoms best understood in the context of an Adjustment Disorder with Mixed Anxiety and Depressed Mood.
[435] Dr. Walker-Kennedy further noted that the mother had reported, “a reduction of her symptoms after her separation but is still somewhat anxious and depressed because of the limited time she has with her son and the restrictions placed on her access time. She indicated feeling very stressed, feeling unfairly treated and as generally having low levels of anger and hostile feelings although she is currently feeling frustrated by the current situation she finds herself in.”
[436] Dr. Walker Kennedy wrote there were “no indications of psychotic symptoms, including persecutory delusions, bizarre mentation, psychotic experiences, persecutory ideas, psychotic symptomatology, bizarre sensory experiences, though disorder, and schizotypal characteristics”.
[437] Dr. Walker-Kennedy did not find any evidence of significant mental health issues. She noted that the mother appeared to be working hard to adjust to her new life and her strong desire to be able to parent and work as an artist.
[438] Dr. Walker-Kennedy recommended that the mother attend regular weekly therapy sessions for 4-6 months, or as determined appropriate by her therapist in consultation with the mother. She encouraged the mother to read certain educational books about parenting-post-separation. She also recommended that the mother take a parenting course for parents after a divorce.
[439] Notably, the father tried to interfere in Dr. Walker-Kennedy’s process too, and influence the outcome. Unsolicited, he provided to Dr. Walker-Kennedy, a chart that he prepared about the mother, and which went on for several pages. Dr. Walker-Kennedy found this to be unusual; she was surprised. She also reviewed it and found aspects of the chart to have been inaccurate. She felt that the father was attempting to advocate for his position, being that the mother had significant mental health issues, a conclusion that Dr. Walker-Kennedy did not draw.
[440] Like he did with the OCL witnesses, the father’s cross-examination of Dr. Walker-Kennedy focused on the collateral information that Dr. Walker-Kennedy collected, the information that she did not have, his suggestion that her assessment was based primarily on self-reporting, and his own review of the mother’s medical records. He asked Dr. Walker-Kennedy questions about his theory, that the mother is resistant to treatment. Dr. Walker-Kennedy disagreed with the father’s suggestion that the health records she received pertaining to the mother were “spotty”. She testified that she had confidence in her conclusions.
[441] The father did not undermine Dr. Walker-Kennedy’s evidence during cross-examination. Nor did the father prove that the mother suffers from “treatment resistance”, that she “operated with irrational fear” during the marriage, or that she had “the most loving interactions with the child” when under the care of a psychiatrist and taking medication in the past, but now she does not have a good perception of reality. Consequently, I am prepared to attach great weight to Dr. Walker-Kennedy’s expert opinion evidence.
(2) The Therapy Evidence
[442] The mother called her current and former therapist to testify. The mother’s former therapist Ms. Donnelly felt that a lot of the mother’s difficulties were related to exiting a relationship that had “key marks of domestic violence”. Both Ms. Donnelly and Ms. Campbell testified that the mother was dedicated in therapy, and wanted to be a good parent.
K. Findings and Conclusions About the Mother’s Mental Health
[443] Ms. Garibotti’s analysis and conclusions about the mental health evidence is instructive. She noted that the father presented concerns for the child’s mental health and believes that his anxiety was a result of unresolved trauma and contact with the mother. She noted the father’s concerns about the mother’s parenting overall. She also noted that after her second interview with him, the father gave her an article about the impact of “toxic stress” on child development, suggesting that D. is exposed to this kind of stress from his mother only. But she then wrote that the father’s attempts to link of D.’s anxiety to contact with the mother are “worrisome”. She wrote that there was no evidence to support this. She wrote that D.’s anxiety might be connected to poor interaction between his parents, in addition to his limited contact with the mother.
[444] Ms. Garibotti specifically cautioned that D.’s “symptoms of anxiety should not be used as leverage to determine contact with either parent”, that it is important for his development that he have healthy relationships with both parents, and that both parents must support and speak positively of the other to the child. She wrote that if the child raised an issue with one parent to the other, he should be redirected back to that parent.
[445] Ms. Garibotti also reported that there was no information from any of the professionals involved that the mother’s mental health diagnosis impacted her parenting at this time. She said that that the father, by arguing only a psychiatrist could determine her true mental health, further marginalized the mother. She concluded that the mother is able to determine when to access therapy, dependent on her life circumstances at the time.
[446] In this latter regard, Ms. Garibotti’s analysis is completely consistent with what Kraft J. recently wrote at ¶ 107 and 109 of Gerasimoloulos v. Sambirsky:
The phrase “Mental Health is Health” is derived from a movement wanting to change the way mental health is treated to be as similar as physical health is treated. The purpose is to give mental health the attention it deserves in the health care system and also for mental illness to be given treatment, not judgment.
The role of the Court is to recognize stereotypes, bias, and discrimination against marginalized groups and/or individuals when such issues present and ensure that decisions are not based on any such biases, or reliance on stereotypes…
A parent’s mental illness is not, on its own, a reason to deny someone decision-making responsibility or limit someone’s parenting time. The issue, as with all parenting matters, is whether an illness, be it physical or mental, impacts a parent’s ability to care for a child or places a child at risk.
[447] Applied to the facts of this case before me, it would not be in D.’s best interests to terminate the mother’s parenting time, or continue the restrictions, that were previously in place, for too long. To do otherwise would be to deny the mother “equal treatment under the law” and the child his right to a relationship with the mother. That would not be in D.’ best interests “or in keeping with the role of a Canadian court to assess the circumstances of [this child], with the parents [he has].”
[448] The father’s argument that the child is at risk around the mother’s sister is also based on stereotypes, bias and discrimination. No specific examples of harm ever being visited on this child were offered up.
L. The Court’s Different Concerns About the Mother’s Parenting Abilities
[449] Earlier I indicated that I had three specific concerns about the mother’s parenting abilities. I have already made findings about two of these matters, but will mention them again in brief, to be followed by the third.
[450] First, at the outset of 2023, the mother reduced her parenting time by sometimes sending the child back to the father’s house a number of times, albeit she did it naïvely on the advice of her therapist at the time. Second, the mother was unable to handle the child again, in the summer of 2023, following the incident in the swimming pool.
[451] The third concern I have, is that by the time this trial concluded in November of 2023, the mother had not yet subscribed for the parenting app used to communicate with the child’s teacher at school. The issue was first raised during the trial time in September 2023, some two months earlier. Given the father’s accusations that the mother in the past delayed providing consent to therapy or other things, it struck me as odd, that the mother did not sign up right away, after the issue was raised in Court. The mother’s evidence when the trial resumed in November of 2023, was something to the effect that she had not yet gotten around to getting the app, but she would do so soon.
[452] While this may seem minor in nature in relation to the plethora of other, more serious issues raised during this case, I confess that it has caused me to pause.
[453] At the same time, I recognize that the mother has faced difficult circumstances, and her opportunities to parent have been limited. I am also mindful that since my Order of September 25, 2023 (apart from the immediate fall out that the father caused), the undisputed evidence during the November trial week that followed, was that the mother’s parenting time resumed without incident.
M. The Status Quo and the Parties’ Plans
[454] Section 16(3)(d) provides that the history of a child’s care, ie. the status quo, is a relevant best interests’ factor. The Court shall also consider any plans of care for a child in accordance with section 16(3)(g), although it is not bound by either’s plans if not in the child