ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
L.P.
Applicant
- and -
K.P.
Respondent
G. Cacciola and C. Lu for the Applicant
J. Brant, for the Respondent
HEARD: September 16-18, 22 and 23, 2025. Written submissions completed October 30th, 2025.
REASONS FOR JUDGMENT
LEMAY J
1The Applicant, L.P. and the Respondent K.P. were married on July 12th, 2014. They cohabited together from 2012 until September 1st, 2019, when they separated. They reconciled and cohabited again from August 1st, 2021, to March 15th, 2022. They separated for a final time, with no prospect of reconciliation, on March 15th, 2022.
2The Respondent alleged that the Applicant committed domestic violence against her as a result of the events on March 15th, 2022. Since that time, this case can be characterized as a “high conflict” case. The Respondent are the parents of twins, E.P. and C.P., who are currently eight years old and, at the time of trial, had just started Grade 3. Although the parties have resolved the financial issues, the parenting time and decision-making responsibility issues remain unresolved.
3The Applicant acknowledges that he has had a history of high and problematic consumption of alcohol. The Applicant testified that he used alcohol as a coping mechanism because he and the Respondent fought constantly throughout the marriage, at least after the children were born. The Applicant also testified that, since the final separation, he has learned other coping strategies to address stress, and that alcohol consumption is no longer an issue. The Respondent does not agree with the Applicant’s portrayal of his alcohol consumption and states that it remains a significant issue that should result in limited parenting time.
4The Office of the Children’s Lawyer has been involved with this family, and the same clinician has prepared two reports. The first was delivered on June 23rd, 2023, and the second was delivered on December 12th, 2024. The Respondent has challenged the second OCL report, and that challenge was part of the issues that had to be addressed in this trial.
5Ultimately, I must answer two major questions in this case. First, whether the Respondent should have final decision-making responsibility for all issues, or whether the Applicant should have final decision-making responsibility for the children in respect of education and counselling. Second, whether the parenting-time schedule should remain as it currently is or should be changed to a schedule that reflects the recommendations of the OCL. There are other ancillary issues that I will also address.
6For the reasons that follow, I have determined that the parties should endeavour to make decisions jointly for the children. However, where there is a dispute over education or counselling related issues, the Applicant shall have the final responsibility. Where there is a dispute over health or recreational related issues the Respondent shall have the final responsibility. I retain jurisdiction to address the boundaries between the parties’ separate spheres of decision-making responsibility for a period of fifteen (15) months from the date of the release of these reasons, or such longer period as may be necessary.
7I have also ordered the 2/2/3 schedule recommended by the Office of the Children’s Lawyer. However, I am of the view that the parties should consider revisiting this schedule once the children have had a psychoeducational assessment and have reached the age of 10, but I leave that to them. Any change to the order would either have to be consented to or would have to flow from a material change in circumstances.
8My reasons will disclose residual concerns with the ability of the parents to jointly parent. Specifically, I have concerns that the Respondent engages in unilateral decision-making, and I have concerns with both parties engaging in conflict enhancing behaviours when they are in direct personal contact with each other. I also have concerns about the amount of contact necessary under the parenting time order that I have made, and will address those concerns by continuing the communications orders that are currently in effect.
Background
a) The History and the Parties’ Relationship
9The Applicant is currently 50 years old, and the Respondent is currently 43 years old. The parties met through a dating service, began residing together in 2012 and were married on July 12th, 2014.
10The parties are the parents of twins, E.P. (a girl) and C.P. (a boy), born July 28th, 2017. The birth of the twins was medically challenging for the Respondent, and she suffered damage to, inter alia, her lower back nerves. I understand that the Respondent has ongoing problems and continues to seek medical treatment for these issues.
11There is some dispute between the parties as to the amount of care that each parent provided to the twins after they were born. The Applicant states that he was involved in parenting. In particular, the Applicant states that he was responsible for the night-time wakeups during the weekends as well as taking care of them during the day on weekends as well as during some lunch times on weekdays if he was working from home.
12The Respondent states, in her closing submissions, that “by the time the children arrived home, [the Respondent] was essentially caring for the children on her own, as [the Applicant] had returned to work.” The Respondent states that the Applicant did not provide very much care at all to the children once they came home from the hospital.
13I have no doubt that the Respondent bore substantially more of the childcare responsibilities. The Applicant was working full-time and the Respondent was (and remains) a stay-at-home parent, although I understand she also currently works as a lunchroom supervisor one day a week and is pursuing her real estate licence.
14However, based on the totality of the evidence that I heard, I am of the view that the Respondent has overstated her involvement in the care of the children during the marriage and minimized the Applicant’s involvement in the care of the children. On this point, I would note three key pieces of evidence:
a) The Applicant testified that, on the weekends, he was responsible for the care of the children overnight. I accept that testimony.
b) There was evidence that the Respondent’s mother assisted with the childcare, and that the parties had hired the Respondent’s sister to assist as a paid nanny during the weekdays, which would have alleviated the burden on the Respondent.
c) The Respondent, on a number of occasions in the contemporaneous documentation, refers to the Applicant as a good father. That suggests a level of involvement that was beyond the very minimal involvement suggested by the Respondent’s testimony at trial.
15It is also clear that, in the first couple of years of the twins’ lives, there were considerable tensions in the parties’ relationship and that the Applicant was regularly consuming too much alcohol, to the point that he was inebriated on numerous occasions and would have been unable to care for the children.
16The parties first separated on September 1st, 2019. The parties had agreed that they needed to separate because their relationship was not healthy, and it was having a negative impact on both them and the children. Both sides claimed that the other person assaulted them both before and after the first separation.
17The Respondent claims that, in October of 2018, she was assaulted and that the Applicant ripped her shirt. Around the same time, the Applicant claims that the Respondent hit him on the face with a closed fist. There was very little contemporaneous information about these incidents, except for a picture of a ripped shirt showing scratches on her back that the Respondent provided.
18The Applicant claims that, in January of 2020, the Respondent smashed his laptop and stole it when they got into an argument at the apartment where he was staying after the first separation. The Respondent claims to have accidentally dropped the laptop. The Respondent was charged with mischief and theft under $5,000. These charges were resolved with a peace bond on the return of the laptop. I will return to this incident when I address the history of domestic violence in this case.
19Between September of 2019 and August of 2021, the parties were separated but continued to try and work on their relationship. The Applicant and the Respondent agreed to move back in together in August of 2021. The parties were able to get along for a short period of time once they moved back in together. However, their relationship deteriorated again.
20At this point, the Applicant was consuming alcohol to excess. He acknowledges as much and the clinical notes and records filed by his family doctor certainly support that conclusion.
21There was an incident approximately a week before the final separation, where the Applicant had been left alone with C.P. When the Respondent returned, she believed that the Applicant was drunk. In his testimony, the Applicant acknowledged that he yelled at the Respondent and called her nasty names. As a result of this incident, the Applicant went to stay with his parents for a couple of days. He then returned home. There were then some rising tensions in the household after the Applicant returned home, caused in large part by the Applicant’s drinking.
22The parties subsequently separated on a final basis on March 15th, 2022. They have not lived together since that time. The events surrounding the separation would have been traumatic for the children, so it is important to set out both versions of events and to provide my conclusions on what I find actually happened.
23On the morning of March 15th, 2022, the Applicant had decided that he was going to take the children to his parents’ house. The Respondent did not want him to take the children. That much is agreed on.
24On the Respondent’s evidence, she then “in a panic” moved her vehicle to prevent the Applicant from moving his vehicle and taking the children to his parents’ house. She then testified that she went inside the house and was confronted by the Applicant who grabbed her and invited her to hit him. She then stated that he had to hide from him as he had tried to come at her. The Respondent stated that she used her hairbrush to get the Applicant away from her and ran from him. She then called 911.
25The Applicant says that he was planning to take the children to his parents’ but that the Respondent did not want to let him have the children. He states that the Respondent had hidden the children’s clean clothes and would not tell him where they were. On his evidence, he was ignoring the Respondent when she became enraged and hit him three times with a hairbrush, with at least one of the blows being hard enough to give him a black eye. The Applicant told the Respondent that, if she did not let him leave with the children, he would call the police and report her for having hit him. She then called 911 and then, on his evidence, blocked the car in.
26I had the advantage of listening to the 911 call that the Respondent made, as it was recorded and played at trial in the cross-examination of the Applicant. I have also had the advantage of seeing both the Applicant and the Respondent testify and be cross-examined.
27This was a chaotic incident, and I do not completely accept either party’s version of what happened. I conclude that the Applicant was intending to take the children to his parents’ house, and the Respondent did not want him to. I also conclude that the incident was escalated by the Respondent’s decision to hide the children’s clean clothes. However, I also accept that the Applicant grabbed the Respondent’s arm during this altercation. I also conclude that the Applicant invited the Respondent to hit him. I also conclude that the Respondent got the Applicant away from her by hitting him with her hairbrush several times and doing so with considerable force, bruising the Applicant and causing a black eye. Finally, I accept that towards the end of the incident the Applicant slammed a door and the Respondent’s hand got caught in it. I do not find that the Applicant deliberately slammed the door on the Respondent’s hand.
28The parties then each called the police, and the Applicant was charged. The Applicant called 12 Division directly and was put on hold, while the Respondent called 911. I have no doubt that the children witnessed portions of this incident and would have found it scarring. However, I am not prepared to ascribe all of the responsibility for this incident to one party or the other. This incident was the culmination of what was clearly a toxic relationship.
29As a result of the charges, the Applicant was released on his own recognizance but had to agree to a no-contact order with the Respondent and to not attend places where he knew the Respondent to be. The charges were withdrawn against the Applicant by the Crown. However, in February of 2023, the Respondent brought a private information against the Applicant for the same events. Once the Crown determined that the private information related to the same events as the previously withdrawn charges, the Crown stayed that proceeding as well.
b) Events After the March 15th, 2022, Separation
30Immediately after the separation, the Respondent took the position that the Applicant should only be permitted to have supervised parenting time with the children. It was not until August of 2022 that the Applicant was given unsupervised parenting time and at that point, it required a Court order. I will set out that history in the section on the litigation history, below.
31Between the separation and the date of trial, there were a number of incidents that were the subject of testimony by the parties. These incidents generally disclose difficulties in the ongoing relationship between the parties, and the existence of those difficulties will inform my decision in respect of decision-making responsibility. I will grapple with the facts underlying some of these incidents in my analysis of decision-making responsibility and parenting time. I will briefly summarize them here.
32In 2022, there was an allegation made that E.P. had been sexually assaulted by an older child while in the Applicant’s care. The older child (who was approximately 8 at the time) was the son of a friend of the Applicant. This allegation was reported to the CAS and to the family doctor by the Respondent, but it was determined to have been unfounded. I will address this issue in more detail below, as it forms part of the relief that the Respondent is seeking.
33At Hallowe’en in 2023, the children had been in the Applicant’s care and were then dropped off to the Respondent’s sister. One of them had forgotten something, and the Applicant made the regrettable decision to drop the item off at the matrimonial home, where the Respondent was still living. There was a significant contretemps between the parties that consumed significant time at trial. I will review this evidence in more detail below.
34Then, in April of 2024, shortly before a trial was scheduled to take place in this matter, the Respondent moved to Schomberg. She did so without prior notice to the Applicant. She also enrolled the children in a new school, again without prior notice to the Applicant. I will return to this issue below as well.
35Since separation, there has been an issue with obtaining counselling for E.P. and C.P. The counselling was sought as a result of the separation and of the psychological issues that they may be experiencing as a result of that separation. I heard testimony from the therapist that had been unilaterally selected for the children by the Respondent. I will discuss this issue in more detail below but, at the time of trial, the children had not received the necessary counselling from a fully qualified counsellor.
36There has also been an issue with both E.P. and C.P.’s performance in school. Their report cards for Grade 2, which ended in June of 2025, indicate substantial struggles. In particular, C.P. had “D”’s in language. There are indications from both the report cards and from the information that we have from the school that the children are struggling with both language (English) and mathematics, with C.P. struggling with language while E.P. is struggling more with mathematics. The Respondent views these struggles as being the normal Grade 2 struggles while the Applicant is significantly more concerned by them.
37Finally, throughout the case, and even at trial, the Respondent has expressed strong concerns about the Applicant’s alcohol consumption and has argued that this consumption should result in reduced parenting time for the Applicant. Given the emphasis on this issue and the significance that alcohol consumption played both during the relationship and at its’ end, I will also address this issue below.
c) The Procedural History of This Matter
38In April of 2022, the Applicant brought an urgent parenting time motion, as he had not seen the children since the parties’ separation on March 15th, 2022. Instead of giving leave to have an urgent motion heard before a Case Conference, André J. directed that a case conference should take place promptly, and one was scheduled for May 10th, 2022.
39At that case conference, Price J. made a number of disclosure orders, requested that the OCL become involved in the matter and provided a number of other procedural directions. The parties also agreed that the Applicant would have supervised access at Brayden Supervision Services.
40However, the Applicant wanted unsupervised parenting time and, as a result, he brought a motion before Rahman J. (as he then was) on August 2nd, 2022. Rahman J. ordered unsupervised access, and that it be gradually increased to overnight access over the ensuing weeks. Rahman J. also ordered that the Applicant not consume any alcohol for twenty-four hours before his parenting time with the children or during his parenting time.
41In January of 2023, the OCL accepted the referral from the parties and agreed to become involved in this case. The OCL appointed Ms. Tracy Majewski as the clinical assessor. Given some delays in obtaining records from the local police force, Ms. Majewski’s report was not delivered until June of 2023. That report recommended that the Respondent make the major decisions for the children, after consultation and that parenting time for the Applicant should be two after-school visits on Tuesdays and Thursdays and one overnight on every weekend. The report indicated that if, after a year, there had been both counselling and improvements, the OCL would be prepared to conduct another review of the family’s circumstances.
42In 2023, the Respondent also began ongoing efforts to bring a motion to reduce the parenting time that the Applicant had been given by Rahman J. The Applicant brought a cross-motion to reduce the amount of spousal support owing. The motion in respect of reducing the child and spousal support was dismissed by McSweeney J., while the motion in respect of the reduction in parenting time was ultimately adjourned to be addressed at trial, which was set for January of 2024.
43The January 2024 trial date could not proceed because, in late 2023, it was discovered that the Respondent had not filed an Answer. The history of this issue is addressed in the December 21st, 2023, endorsement of Ricchetti R.S.J. (as he then was). To summarize, the failure to file an answer in a timely way, coupled with late-breaking financial claims made by the Respondent, resulted in the adjournment of the January 2024 trial date and the Respondent being required to pay costs, both of the motion and costs thrown away, to the Applicant.
44The matter was set for trial on both the financial and non-financial issues for the May 2024 blitz list. After a series of exit pre-trials, the financial issues were resolved by McGee J., while the parenting time and decision-making responsibility issues were referred back to the OCL for further consideration, if the OCL was willing to consider them.
45I note that, even after the settlement of the financial issues, there were some outstanding issues that required Court intervention. However, I do not need to consider those issues in order to resolve the issues before me. There are some provisions of McGee J.’s consent order in respect of parenting that should be noted:
a) The Respondent had final decision-making responsibility for all issues but was obligated to consult the applicant and seek his input before making the decisions.
b) There was a parenting schedule that provided the Applicant with parenting time for every second weekend (from Friday after school to Sunday at 5:00 p.m.) and then every Tuesday night overnight, from after school to the start of the next school day. Finally, on the Thursday before the weekend when the Applicant did not have parenting time, he had an evening parenting time from after school until 6:45 p.m.
c) The Applicant continued to be required not to consume alcohol either 24 hours prior to his parenting time or during his parenting time.
d) The parties were to jointly select an art/play therapy provider for the children, and the children were to attend that therapy.
e) The matter was to proceed to trial on the January 2025 trial list if the parties could not resolve the parenting time and decision-making responsibility issues. The date was peremptory on both sides.
46The OCL was prepared to accept a further referral but did not begin its’ investigations until September 11th, 2024. Ms. Majewski, who had prepared the first report, was asked to come out of retirement and prepare the second report. She duly prepared that report and delivered it to the parties on December 16th, 2024.
47That report contained a number of recommendations that were different from those contained in the first report. Specifically, Ms. Majewski recommended:
a) That decision-making responsibility be split, with the Applicant having final say over both the educational and counselling decisions in respect of the children. The Respondent should have decision-making responsibility over the issues of health and recreation.
b) That the schedule be a 2/2/3 parenting-time schedule.
48These were both significant changes from the previous recommendations. The Respondent provided a Notice of Dispute in respect of the report, which ran to nearly thirty (30) pages and challenged all, or substantially all, of the factual findings that Ms. Majewski had made. The Notice of Dispute accuses Ms. Majewski of cognitive bias, fact-finding errors, a failure to take into account the Respondent’s mental health and the spousal abuse she had been subjected to. The Respondent also stated that Ms. Majewski had failed to take into account the gravity of the Applicant’s alcohol addiction and his history of relapse. I will return to these issues below.
49The OCL and Ms. Majewski conducted a detailed review of these concerns, and a supplementary letter was provided on March 28th, 2025. That supplementary letter, which was provided by a supervising staff member at the OCL, corrected one factual error in respect of the information that the Respondent had given the children’s school about the Applicant. It otherwise left the report as-is. Ms. Majewski testified that the Notice of Dispute had been reviewed by other staff at the OCL.
50In the meantime, pursuant to the Order of McGee J., the parties had been required to obtain the services of an art/play therapist. They obtained one therapist in the summer of 2024, and she had two sessions with the children before going off on a leave. A replacement therapist was not retained until more than eight months later. Ultimately, Ms. Nadine Crescenzi was the therapist who worked with the children over the spring and summer of 2025. I heard testimony from Ms. Crescenzi.
51Finally, in the summer of 2025, the parties changed the parenting time schedule so that the Applicant had the children for three overnights in a row on his weekend. The Respondent then took the position that she was accepting an offer on parenting time made by the Applicant that had been made on March 8th, 2024, and allegedly never withdrawn. As I understand it, the result of implementing that offer would have been that the Applicant would have received generally the schedule ordered by McGee J. on an interim basis, with one more night rather than the equal parenting time he is seeking at trial.
52The Respondent’s claim that she was entitled to accept this March 8th, 2024, offer (which had been made before the OCL’s second report) was heard by Cudjoe J. on August 5th, 2025. Cudjoe J. dismissed the Respondent’s claim on the basis, inter alia, that the offer had been overtaken by subsequent events. He directed that the parenting time issues proceed to trial.
53Shortly after this motion was heard, in early September of 2025, the Respondent determined that the parenting time would be reduced to the level ordered by McGee J. on an interim basis in May of 2024. She took the position that the increase had been for the summer only, and that it was not in the children’s best interests to continue it. I will also return to this decision below.
54Ultimately, the matter came before me for trial on the issues of decision-making responsibility and parenting time. I heard viva voce evidence and reserved my decision.
d) Post-Trial Events
55The parties sought the right to make written submissions, which I granted. However, there was a complicating event in this case. A few days after she testified, Ms. Crescenzi wrote to the Applicant and the Respondent and stated that “after the Court date on Monday September 22, 2025, it was clear to me that there was a lack of trust in my therapeutic intention which was not communicated directly to me as the therapist…”
56The Respondent wrote back to Ms. Crescenzi and asked her to elaborate on her comment that the “‘lack of trust’ was the main focus of questioning in the courtroom and not the wellbeing of the children.” Ms. Crescenzi provided a further letter that stated, in part:
In response, questioning in the courtroom on September 22, 2025 by the applicants counsel were based on ‘assumptions’ around my interactions with the parents, trying to determine a bias that is unfounded and the questioning directed at me was not child focused. This expressed a “lack of trust” by Lee and his counsel in my therapeutic intentions with the children, which has no benefit to myself as the therapist, or the children as the clients.
57The letter goes on to note that, given this breakdown in trust, she will not be able to provide further services to the children beyond the end of November. The parties appeared before me again by videoconference on October 9th, 2025. After some discussion, they agreed that both the correspondence from Ms. Crescenzi and the Respondent’s e-mail to her asking for clarification of the first letter were to be produced for the Court record. I will address both Ms. Crescenzi’s letters, and her testimony more generally, below.
The Positions of the Parties
58The Applicant takes the position that the OCL’s 2024 recommendations should be adopted in this case, and that final decision-making responsibility should be split between the parties, with him having decision-making responsibility for education and counselling and the Respondent having decision-making responsibility for healthcare and recreation. He also takes the position that the OCL’s 2024 recommendations for parenting time, of a 2/2/3 schedule, should be adopted.
59The Respondent takes the position that the OCL report was not properly done and should be disregarded by the Court. Instead, she seeks an order where there would be “joint” decision-making, but where she would have the final say on all issues. She also seeks appropriate safeguards around the Applicant’s parenting time. Finally, the parenting time schedule she proposes is that which was set out in the consent temporary Order of McGee J.
Evidence, Credibility and Reliability
a) The Evidentiary Record
60The Applicant and the Respondent both provided detailed Affidavits outlining the relevant facts. At the outset of trial, I spent some time reading the Affidavits. At trial, their counsel were permitted to provide very brief examination in chief of their clients, and then the parties were cross-examined by the other counsel.
61In addition, Ms. Majewski was called as the third witness, and we had the advantage of both of her reports in advance of her testimony. I will deal with Ms. Majewski’s evidence, and the challenge to her second report, below.
62Then, four additional witnesses were called, as follows:
a) Ms. Nadine Crescenzi, the art therapist, who is listed as an “art Psychotherapist RT Qualifying” on various materials. No one asked for her to be qualified as an expert.
b) Dr. Bruce Hickey, the family physician for the P. family. He is the treating physician for both the parties and the children.
c) Mr. B.W., a neighbour who witnessed the October 31st, 2024 incident.
d) The Respondent’s mother.
63All of the witnesses except for Dr. Hickey had provided Affidavits in advance of testifying. In terms of the last two witnesses, B.W.’s evidence relates to factual issues in respect of the Hallowe’en incident, and I will address his specific evidence in that section.
64The Respondent’s mother provided evidence that was quite dated, as it concerned events during the marriage. She had almost no contact with the Applicant after the end of the marriage. Even the evidence about events during the marriage would have come from occasions when she was visiting the parties to provide care to the twins, which means she would have been less likely to observe the distribution of caregiving between the Applicant and the Respondent as she was there to relieve the caregiving burden on them.
65While her evidence confirms the Applicant’s significant issues with alcohol consumption during the marriage, it was not otherwise useful in assisting me in addressing the issues in this case. I note that the Affidavit contains some allegations of domestic violence. However, there was no specificity to this evidence.
66Then, there was Dr. Hickey’s evidence. There was an attempt by the Respondent at the outset of Dr. Hickey’s evidence to have him qualified to provide opinion evidence. The Applicant had not been given any notice of this request prior to Dr. Hickey taking the witness stand. I pointed out to counsel for the Respondent that she was seeking to use Dr. Hickey’s notes to ask whether the Applicant was an alcoholic, and she was doing so both after the Applicant had closed his case and without suggesting to the Applicant that his family doctor might say he was an alcoholic.
67The Respondent’s request to ask Dr. Hickey for opinions was withdrawn. However, I also made it clear that, while I was aware of the principles in Westerhof v. Gee Estate, 2015 ONCA 206, I was also concerned about trial fairness. Seeking an opinion that went beyond what was specifically written in the notes that Dr. Hickey had produced after the Applicant had closed his case would work an unfairness on the Applicant, as he would not be able to properly respond to any such opinion.
68Finally, there was an issue of litigation privilege that arose in respect of the communications between counsel for the Respondent and Ms. Crescenzi. I understood that some of the e-mails between counsel and Ms. Crescenzi may have been accidentally shared with the Applicant’s counsel. I did not review those e-mails. I did provide the parties with an opportunity to consider both their position on this issue and the relevant case-law. We then discussed the issue and I provided directions. I will now summarize my directions.
69Based on the reasoning in Moore v. Getahun, 2015 ONCA 55, at para. 78, I ruled that the communications between counsel and Ms. Crescenzi remained covered by litigation privilege and that the privilege had not been breached because there was only inadvertent waiver and there was no “reasonable suspicion” that the expert had been improperly influenced by Respondent’s counsel. This was prior to Ms. Crescenzi testifying, and we still anticipated the possibility that someone might seek to qualify her as an expert. In the end, no one did so. I also note that there was no request to re-consider the “reasonable suspicion” issue at the conclusion of Ms. Crescenzi’s testimony.
70Finally, there was an agreed statement of facts that formed part of the trial record. There was not much room for agreement in this case and, as a result, the agreed statement of facts generally focused on the dates of events and generalities. I have integrated the agreed facts into my discussion where appropriate.
b) Credibility and Reliability
71Credibility and reliability are related concepts. Credibility is the question of whether the witness is telling the truth to the best of their ability. Reliability is the question of whether the witness can accurately observe, recall and recount the events in question: R. v. H.C. 2009 ONCA 56, 244 O.A.C. 288 at para. 41.
72An assessment of credibility requires the Court to apply the principles set out in Farnya v. Chorny 1951 CanLII 252, [1952] 2 D.L.R. 354 (B.C.C.A.) at para. 10:
The credibility of interested witness, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.
73In this case, I am generally of the view that the non-party witnesses were credible and reliable witnesses although, as will be seen, I have some concerns with Ms. Crescenzi’s testimony. Where I have issues with the testimony of the non-party witnesses, I will identify those concerns. However, the bulk of the evidence in this case concerns the Applicant and the Respondent, so I will make some overarching comments about the credibility and reliability of them both.
74Generally, I found the Applicant to be a credible and reliable witness. By the time he testified before me, he was willing to acknowledge the mistakes that he had made in the past and was willing to take his share of the responsibility for the misjudgments that he had made in his relationship and in managing the children. Some of these incidents were quite serious, such as getting angry and punching holes in walls. The only issue that I had with his evidence was his tendency to minimize the effect of his alcohol consumption on the parties’ relationship prior to separation. I also recognize that the Applicant’s actions at earlier points were caused, in part, by the fact that he has only more recently come to recognize both his mistakes and their effect on the other people around him.
75I have significant problems with the Respondent’s credibility and reliability as a witness. I will review several examples of these problems throughout my reasons. However, two examples stand out. First, there is the incident where the Respondent allegedly followed the Applicant to a restaurant where his family was having dinner.
76On April 13th, 2024, the Applicant’s family travelled to a restaurant called La Cantinella to celebrate the Applicant’s mother’s birthday. The evidence was that this restaurant was approximately an hour’s drive away from the Respondent’s home in Etobicoke and was located in St. George, Ontario. The Respondent also attended the restaurant on the same day, but after the Applicant and his family had left. The Respondent also made inquiries about the amount of alcohol that had been served, and whether any of it had been served to the Applicant.
77The Respondent denied that she followed the Applicant or his family to this event, stating that she was walking in the conservation area nearby and had purchased a gift card for her sister’s favourite inn as a birthday gift. She testified that she just happened to pass by the restaurant and see the Applicant and his family in the window of the restaurant. She testified that she knew that the Applicant’s family drank heavily at this dinner for his mother and was concerned about the amount of alcohol that was being consumed, as the children were in the Respondent’s care at this point.
78She then testified that she “knocked gently” on the restaurant door after everyone had left and asked to see the receipt, which was refused. The Respondent also asked the waitress whether the Applicant had been served any alcohol and had been told that he had not been. The waitress then called the Applicant to advise him that these questions were being asked.
79The Respondent then asked the police to do a wellness check on the children, telling the police that there had been a great deal of alcohol consumed at this event and that they needed to be checked on. The children and the Applicant were staying at his parents’ house in Brantford for the night. The Respondent testified that she went home after her interaction with the waitress at the restaurant. The Applicant testified that he believed she was in her car on the street where his parents lived to make sure that the wellness check got done.
80I reject the Respondent’s evidence on this incident as being untrue and find that she followed the Applicant. She knew that the Applicant was going out for his mother’s birthday to the restaurant that they regularly went to, which is how she knew where he was. Further, to accept the Respondent’s evidence, I would have to find that she coincidentally went to the same area that the Applicant was in over an hour away from where she lived in order to go for a walk in a conservation area and buy a gift card for her sister. I would also have to find that she did so on an April evening, and probably after 7:00 p.m., as she did not knock on the restaurant door until after 9:00 p.m. Presumably such a gift card would have been available on-line. I would then have to accept that she happened to drive by the exact restaurant where the Applicant was eating dinner, coincidentally saw him through a window and only then became concerned about the Applicant’s alcohol consumption. This explanation is not credible.
81What actually happened is that the Respondent decided to follow the Applicant in the hopes that she could obtain evidence to demonstrate that he was drinking heavily and was endangering the children. When she could not obtain that evidence from the waitress or from her own observations, she involved the police in an attempt to obtain the evidence she wanted. When confronted with the inconsistencies and improbabilities in her story, she tried to explain the whole thing away as a coincidence. The Respondent did not offer a credible or reliable explanation.
82I should also note that the Respondent testified that, after the dinner, she did not attend at the Applicant’s parents’ home to make sure that the wellness check was performed. I also reject this evidence.
83The second example of problems with the Respondent’s testimony is even more clear-cut. As I have noted at paragraphs 51-53, there was a change in the parenting time during the summer of 2025. After Cudjoe J. determined that it was not open to the Respondent to accept an old offer, she decided to return to the schedule set out in the consent Order of McGee J. The timing of this change is suspect for reasons that I shall come to.
84However, what is more important is what the Respondent told the Applicant about this change and when. On September 2nd, 2025, the Applicant asked whether they were going to continue the three overnight visits. The Respondent replied on September 11th that the change was not going to be continued because of disclosure that they had recently received from Ms. Crescenzi.
85However, on September 3rd, 2025, E.P. told Ms. Crescenzi that they would no longer be having the third overnight in a row at her father’s house and that she preferred that. This discussion is confirmed in Ms. Crescenzi’s notes. When confronted with this fact on the witness stand, the Respondent denied that she had told the children about the change before she told the Applicant about it. Her denial of this fact under oath is, given the contemporaneous documentation from Ms. Crescenzi, clearly untrue.
86The Respondent’s testimony on these points is also consistent with the rest of her testimony, especially on the incidents of her decision to move to Schomberg and the Hallowe’en incident. She has a tendency to minimize or ignore her own responsibility for events and blame the Applicant for everything. Ms. Majewski also noted this tendency, observing that the Respondent sees the Applicant through a negative lens.
87These incidents are also consistent with the Respondent’s approach to parenting as a whole. The Respondent has a belief that she knows what is best for the children, and that she does not need to consult with the Applicant. I cannot rely on her evidence and, where it differs from the evidence of other witnesses (including that of the Applicant) or the documentation, I prefer the other evidence unless I specifically explain otherwise.
88Finally, I should make an observation about the parents coaching the children when they were being interviewed by third parties. Each of them engaged in some of this behaviour over the course of the progress of this case, and I have taken that fact into account in weighing the evidence. For example, in the case of the N. incident, the Respondent appeared to have been prompting the children in their discussions with the CAS. In her interviews with the children, Ms. Majewski was able to confirm with E.P. that the Applicant had given her a message about parenting time to pass on to Ms. Majewski.
c) The OCL Report
89As I have noted, one of the key pieces of evidence that I had was the testimony of Tracy Majewski, an experienced OCL clinician. She also provided two reports, the first of which was dated June 23rd, 2023, with an addendum of July 7th, 2023. The second report was dated December 16th, 2024.
90The Respondent has challenged the second report, which recommends that the Applicant have final decision-making responsibility over education and counselling issues and that parenting time be shared equally. The Respondent’s closing submissions state that the report, “as demonstrated through [the Respondent’s] Notice of dispute dated January 15, 2025, and the clinician, Ms. Tracy Majewski’s [sic] own concessions, is methodologically flawed and biased.”
91The Respondent directed considerable attention and effort into her submission that I should not rely on Ms. Majewski’s report. The starting point in my analysis of this submission is what use does the law permit me to make of the OCL report. That report, even when the clinician testifies, is not binding on the Court. Rather, the Court must give the report its’ serious consideration and weigh the evidence accordingly: Bourke v. Davis, 2021 ONCA 97, (2021) 154 O.R. (3d) 431 at para. 59.
92Counsel for the Respondent directs my attention to the decision in Forte v. Forte, 2004 CanLII 7631 (ON SC) for the proposition that the Court “cannot delegate its decision-making authority to an assessor from the Office of the Children’s Lawyer” (para. 7). I accept this proposition. However, I would also note that Forte is a case involving an interim motion. In this case, I have had the advantage of hearing Ms. Majewski’s evidence, so I have considerably more evidence on which to base my consideration of her report.
93In Wilson v. Wickham, 2018 ONSC 2574, which was a case involving a motion to change and oral evidence from the OCL, Trimble J. outlined the approach to evidence from the OCL (at para. 37):
37Usually, Courts give great weight to the OCL’s evidence. The OCL’s people are highly trained in determining the views of children and conducting impartial assessments. Their evidence is not binding on the Court, but deserves serious consideration because their evidence usually results from extensive investigation with first-hand information (see: Fawcett v. Richards, 2009 Carswell Ont 3229 (S.C.J.); and Collier v. Campbell, 2013 BCSC 825). The Court gives little or no weight to the OCL’s evidence where the evidence is a) outdated such that the conclusions reached have been made unreliable because of events transpiring since the report was released, b) biased, c) uses poor methodology, d) uses incorrect or improper assumptions, e) contained limited or incorrect evidence, or f) reached conclusions that are inconsistent with objective evidence.
94In this case, none of the concerns in respect of the OCL’s evidence exist. The reports were timely, with the most recent one having been prepared less than a year before trial. In terms of bias, I would note that the bulk of the claims of bias come from claims that Ms. Majewski either did not properly weigh the evidence, that she did not accept the Respondent’s view of the evidence and that she blindly followed what the Applicant said. I do not intend to set out all of the Respondent’s assertions, although I have considered them all. I am of the view that the Notice of Dispute can be rejected based on more general themes.
95First, Ms. Majewski did not blindly accept what the Applicant had said. Indeed, in his interactions with Ms. Majewski, the Applicant suggested that the current parenting schedule should be reversed, and he should be the primary parent because of the attempts of the Respondent to alienate him from the children. Ms. Majewski did not accept that suggestion and recommended a more balanced approach.
96Ultimately, the entirety of the Notice of Dispute can be boiled down to one complaint: Ms. Majewski did not accept the Respondent’s view of the Applicant’s failings as a person and a parent, the Respondent’s version of various events and the Respondent’s view of how things should be done in this case. This complaint is rooted in one of the problems with the Respondent’s approach to this case, which is her assumption that she must be right about the parenting issues.
97On that score, based on the evidence I heard, I accept that the Applicant has come to terms with his flaws as a parent. He has internalized the mistakes that he has made in the past and is trying to fix them. Indeed, the difference between the Applicant’s relationship with the children when the 2023 report and the 2024 report were completed was captured by independent observations that Ms. Majewski made. In her 2024 report, she states:
As a result of the efforts by the parents, the children are presenting as much more relaxed and happy in the care of both parents. Indeed, they both reported that they are enjoying the new parenting schedule where they have 4 nights and 1 evening with Mr. [P] in each 2 week period. Neither child had anything negative to say about Mr. [P’s ] parenting, as in the OCL report of May 2023 where they expressed some negative experiences with Mr. [P.] and were unsure if they wanted to spend more time with him. Further the children’s new school reported that the children’s behaviour is much improved where the children are settling in nicely overall. Indeed, at interview, both children reported that they wanted to maintain the current parenting schedule in our first meeting and in our second meeting, Chase reported that he wanted to spend equal time with his parents.
98I have bolded independent observations in the previous paragraph. I have done so because it is important to remember that these were Ms. Majewski’s observations of what she saw herself and not the statements of one party or the other. It is the most valuable type of evidence in a case like this. It is also an observation that the Respondent cannot seem to accept about the Applicant.
99I would also note that Ms. Majewski acknowledges that both parents have made progress. However, I also note that her report explains why she believes that both parents, including the Respondent, have further work to do. One of the concerns that I have with the Respondent’s evidence is that, in spite of the fact that she also has work to do as a parent, she could not seem to acknowledge any of her shortcomings or errors, either past or present, in her testimony before me.
100The second thematic problem with the Notice of Dispute is that accepting the Respondent’s argument that there are valid concerns about Ms. Majewski’s weighing and consideration of the evidence would require me to accept large portions of the Respondent’s evidence. I have already set out some of the reasons why I reject the Respondent’s evidence where it differs from either what other witnesses say or from the documentary record and I will set out more when I deal with the evidence.
101However, it is worth noting one additional issue with the Respondent’s assertions that will not come up elsewhere in my reasons. In paragraph 15 of her Notice of Dispute, the Respondent states:
On page 4 of the Report wherein she states: “Ms. [P.] would not agree to increasing Mr. [P.’s] parenting time with the children. It was not until the judge spoke to Ms. [P.] in May 2024, that he was able to have additional parenting time.” This is not accurate. The Respondent had provided the Applicant with an Offer to Settle well before appearing before Justice McGee. It was in fact the Respondent that offered to extend the parenting time, it was not Justice McGee. Yet the Clinical Investigator based her report on false facts that came from the Applicant and did not review the communication between counsel to verify the Applicant’s statements.
102There are two problems with this assertion. First, in her report, Ms. Majewski clearly acknowledges that, at the point she was preparing the report, the Respondent “would like to keep the parenting schedule, as ordered by the Honourable Justice McGee”. This suggests that Ms. Majewski was well aware of the Respondent’s final position.
103Second, the remainder of Ms. Majewski’s comments, as set out in paragraph 15 of the Notice of Dispute, make it clear that Ms. Majewski understands how the Respondent’s position has evolved. In the Respondent’s answer, which was not filed until December of 2023 (after the first OCL report had been delivered), she sought to limit parenting time to one overnight (Saturday into Sunday) per week together with two three-hour visits after school per week. She was prepared to consider an expansion in parenting time only “when it is safe and appropriate to do so.”
104Indeed, in the parenting time motion that she had brought in 2023, the Respondent was seeking to reduce the parenting time from the order of Rahman J. In the appearance before Kumaranayake J. in September of 2023 (again after the first OCL report had been delivered), it is clear that the Respondent is continuing to seek reduced parenting time rather than agreeing to increase it.
105I have not explored the Respondent’s Offers to Settle, as it is not appropriate for the Court to review those prior to deciding the case. I am not sure that it was appropriate for those documents to be filed in the record for trial, but they are there. I am also not at all sure that those documents would have been provided to Ms. Majewski.
106However, it is clear that the Respondent’s assertion that she was prepared to grant the Applicant increased parenting time prior to the conference before McGee J. in May of 2024 is at variance with the positions that she was taking before the Court in the relevant time-period. Given that observation, I cannot see how Ms. Majewski’s comments on page 4 of her report are “false facts”.
107For these reasons, I see no merit to the Respondent’s Notice of Dispute. I view both OCL reports as having been properly prepared, and I view them as being appropriate sources of information for me to consider in my deliberations. Determining the facts and making the final decision, however, remains my responsibility.
Issue #1- Decision-Making Responsibility
108Although this was only a five-day trial, there was a great deal of evidence before the Court. In deciding decision-making responsibility, it is helpful to divide my analysis into the following three parts:
a) The relevant legal principles;
b) The various major factual incidents before me that inform the legal principles; and
c) The application of my findings of fact to the question of how decision-making responsibility should be managed in this case.
109I will deal with each issue in turn.
a) The Relevant Legal Principles
110Section 16.1 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp) gives the Court the authority to make an order in respect of parenting time or decision-making responsibility (“parenting orders”). Section 16 of the Divorce Act sets out the factors that the Court must take into consideration when making a parenting order, as follows:
16 (1) The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order.
(2) When considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.
(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including
(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
(b) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;
(d) the history of care of the child;
(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
(g) any plans for the child’s care;
(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
(i) 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;
(j) any family violence and its impact on, among other things,
(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and
(k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.
(4) In considering the impact of any family violence under paragraph (3)(j), the court shall take the following into account:
(a) the nature, seriousness and frequency of the family violence and when it occurred;
(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;
(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;
(d) the physical, emotional and psychological harm or risk of harm to the child;
(e) any compromise to the safety of the child or other family member;
(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;
(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and
(h) any other relevant factor.
(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order.
(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.
(7) In this section, a parenting order includes an interim parenting order and a variation order in respect of a parenting order, and a contact order includes an interim contact order and a variation order in respect of a contact order.
111This section requires the Court to focus only on the best interests of the child in making a parenting order. There are a number of factors that a Court should take into consideration in determining the best interests of the children, and a detailed discussion of these factors is set out in S.V.G. v. V.G, 2023 ONSC 3206 at paras. 90 to 92
112In addition to the factors set out in section 16 and the discussion in S.V.G., there are three important points for me to keep in mind:
a) The analysis of what is in a child’s best interests must be undertaken from the lens of the child rather than the parents: Young v. Young, 1993 CanLII 34 (SCC), [1993] 4 S.C.R. 3.
b) The considerations that the Court should focus on and the weight to be given to each one will vary depending on the unique factors of each child and each case: Van de Perre v. Edwards, 2001 SCC 60 at para. 13.
c) In conducting the best interests analysis, the Court should not apply a standard of perfection to parents: S.V.G. at para. 93.
113In making a determination about decision-making responsibility, there are a number of potential options open to me. Those options include joint decision making, a right for one parent or the other to make the final decisions after consultation or the decision-making responsibility can be split up by issue between the parents. A full listing of options is set out in S.V.G. at para. 107. I will now set out the specific facts of this case and return to the options available to me at the end of this section.
b) The Specific Facts of This Case
114I have already set out some of the history in this case and made some findings about the credibility of the witnesses. However, there are a number of factual issues that engage the factors set out in section 16, and it is useful to set out the evidence on those topics, as follows:
a) The Applicant’s alcohol consumption and the issues of domestic violence.
b) The Hallowe’en 2023 incident.
c) The “N” family incident.
d) The physical discipline by the paternal grandparents.
e) The issues in respect of counselling.
f) The issues in respect of the children’s education and learning capacity.
115I will deal with each issue in turn.
Alcohol Consumption and Domestic Violence During the Marriage
116I start with the observation that the Applicant engaged in considerable abuse of alcohol for a lengthy period of time during the course of the marriage. This had a negative impact on his relationship with the Respondent, his ability to parent and (most importantly) the children. I do not believe that the Applicant understood, either during the marriage or in the first year after the final separation, the effect that his drinking had on the children.
117The Applicant’s alcohol consumption in this time period was also obvious from the clinical notes (and testimony) of Dr. Hickey. In that regard, I note the following as a summary of key points from Dr. Hickey’s records:
a) At the December 18th, 2018, appointment, the Applicant advised that he had been drinking approximately 60 units per week of alcohol for a period of ten years. He stated that he still drinks 10 units on the weekend. He was advised to stop drinking.
b) A similar discussion was held in March of 2019, although at this point the Applicant stated that he had reduced his alcohol consumption considerably.
c) In September of 2019, the Applicant admitted to drinking 40 to 60 units per week because of the stress related to the separation.
d) In March of 2023, there was a note that he had begun to drink heavily again because of the stress. Dr. Hickey discussed coping strategies with him.
118However, the question of the Applicant’s overconsumption of alcohol during the marriage is not the only question I have to grapple with. The Respondent has made the claim that “it is a fact that the Applicant suffers from alcoholism and it remains untreated.” In other words, the Respondent believes that the Applicant continues to significantly abuse alcohol. However, a review of the evidence before the Court leads to the opposite conclusion.
119I start with the Respondent’s specific allegations. First, in paragraph 89 of her Affidavit, the Respondent alleges that:
- The Applicant recently provided his bank records and credit card statements. It is clear to me that he is not being forthcoming about his expenditures. I verily believe that the has another credit card or bank statement that he is using to make purchases of his alcohol, cigarettes, gas and food. The statements that he has provided show no purchases of gas, cigarettes or alcohol. It looks as though he spends approximately $100 per month on food which is impossible. Attached hereto and marked as Exhibit I is [sic] true copies of the Applicant’s RBC Avion Account ending in ****5585. I am certain that he is using another account to hide his alcohol consumption. I do not have access to updated statements.
120Given that the Applicant’s alcohol consumption was a significant issue, I determined that I should conduct at least a cursory review of the evidence in Exhibit “I” of the Respondent’s Affidavit even though none of the financial issues remained outstanding. This cursory review led me to the conclusion that the Respondent’s sworn statement in her Affidavit about what the accounts showed were untrue in respect of her claims about the purchase of alcohol, gas, cigarettes and food. I then did a deeper dive into the evidence, which caused me to come to the same conclusion.
121To support this conclusion, I will briefly set out the evidence that I saw in two statements after January 1st, 2023, that I randomly chose to review in detail and spell out in these reasons. I start with March 28th to April 27th, 2023. In that month, in addition to several hundred dollars at restaurants, the Applicant spent $358.62 at grocery stores, which is substantially more than $100.00. He also had a number of gas purchases, including at least one where he made two purchases at the same gas station at the same time. It could certainly be inferred from that double purchase that the Applicant had purchased cigarettes at the same time he bought gas although I have no direct evidence of that point. He also bought considerably more than $100. in groceries over the course of the month.
122I then move on to the statement for the period from September 28th to October 27th, 2023. That statement includes two purchases at the LCBO totaling $53.40. In that month, in addition to several hundred dollars at restaurants, the Applicant spent $572.20 at grocery stores. Again, he had a number of gas purchases, including at least one where he made two purchases at the same gas station at the same time. It could certainly be inferred from that double purchase that the Applicant had purchased cigarettes at the same time.
123In short, both my cursory review of these statements as a whole and my detailed audit of two of them reveal that the Respondent’s evidence on this point is contrary to what is included in the documents that she has provided.
124Then, there is the Respondent’s evidence in respect of an interaction at Brayden on January 29th, 2023. On that occasion, the Respondent testified that C.P. told her that both the Respondent and his parents were drinking, and that C.P. made this comment in front of the Brayden caseworker. The Brayden caseworker only heard the comment about the grandparents.
125When confronted with the inconsistency between the Brayden case notes and her recollection, the Respondent explained that the Brayden case worker had left between the moment when C.P. said his grandparents had been drinking wine and when he said his father had been drinking wine. Given that these phrases, had they been uttered, would likely have been part of the same sentence, this explanation is not credible. Instead, what happened is that the Respondent added “daddy” to what C.P. had said about his grandparents in order to bolster her position.
126From the Respondent’s evidence, I draw the conclusion that she is unwilling to accept that the Applicant has changed his ways. These examples also fortify my conclusion, set out elsewhere, that her evidence is neither credible nor reliable.
127This brings me to the evidence tendered by the Applicant about what he has done. In Dr. Hickey’s notes, there is the entry in 2023 (after separation) that I have set out at paragraph 117. It is clear that the Applicant was still using alcohol as a coping mechanism after separation.
128However, since this entry in 2023, the Applicant has pursued counselling through a psychotherapist and was engaged in this counselling approximately every two weeks although it has been less frequent more recently, as it is on an as-needed basis. He has been using this counselling to help him both process the issues that he has from the separation and to address his coping strategies so that he does not consume alcohol.
129I did not have the advantage of information about the counselling directly from the Applicant’s counsellor. However, the counsellor was independently interviewed by Ms. Majewski, and the summary that she provided independently corroborates what the Applicant has claimed, which is that he has experienced considerable gains since he started counselling and that he had implemented strategies to deal with the consumption of alcohol as a coping mechanism, including adopting other coping strategies such as regular swimming.
130The Applicant has also voluntarily undergone hair follicle testing for alcohol. While this evidence does not prove that the Applicant was not drinking during his parenting time, it demonstrates that the Applicant is prepared to take the issue of compliance with the Court’s orders seriously.
131Finally, there is Ms. Majewski’s observation that the children and, indeed, the parents, seem to be more “settled” when she interviewed them in 2024 rather than 2023. That is circumstantial evidence that the Applicant is coping better with parenting. It supports the inference that the Applicant’s counselling is helping develop better strategies for coping.
132Based on all of this evidence, I conclude that the Applicant’s alcohol consumption appears to be a low enough risk for the children’s wellbeing that it should not change the parenting or decision-making orders, other than that the order for abstinence (which the Respondent has said he can generally accept) should be continued.
133Then, there is the history of domestic violence. This is a significant consideration in any parenting order and must be considered here, given the facts of this case. First, there was an incident in October of 2018, where the Respondent alleges that the Applicant grabbed her shirt and scratched her to restrain her from leaving to go and visit a friend. I have already touched on that incident, and the Applicant’s related claims of being hit by the Respondent, above.
134At around the same time, the Applicant alleges that the Respondent had become enraged at things that did not bother her at all before and would abuse him both physically and verbally. The Respondent denies this.
135However, Dr. Hickey’s clinical notes for both parties were part of the record before me. In an entry dated September 12th, 2019, the Respondent tells Dr. Hickey that “she does agree that [Mr. P.] is a very good dad and is devoted to the children however between work and her moods thinks it become [sic] very difficult. Round the time for periods specially she is in a lot of pain and becomes very very irrational and angry.”
136The Respondent was not willing to acknowledge her contribution to the pre-separation issues between the parties in her testimony. However, at the time the parties were together, she was prepared to acknowledge them to Dr. Hickey. I accept this notation as being a true reflection of what was going on at the time.
137I have already alluded to an incident involving the Applicant’s laptop during the first period of separation. In that incident, the Applicant was living in an apartment and the Respondent arrived. On the Applicant’s evidence, the Respondent arrived unannounced and irate because the Applicant had sought information from a real estate agent about the value of the house. On the Respondent’s evidence, she arrived to drop off dinner for the Respondent as a “kind gesture”. She stated that the Applicant immediately lost control and began to yell at her when she entered the apartment.
138They got into an altercation, and the Applicant’s laptop was damaged and then taken by the Respondent. The Respondent says that the Applicant kicked the chair that she was sitting on, causing her to fall to the floor. She then says he charged towards her and, “in a moment of panic”, she grabbed the computer on the table to shield herself and it fell to the floor and broke.
139On this incident, I accept the Applicant’s evidence for three reasons. First, on the facts of this relationship, it is more likely that the Respondent arrived irate than the Applicant flying into a rage at the mere sight of the Applicant. Second, there is the fact that it is less likely that the computer would have broken if it had merely been dropped on the floor rather than deliberately smashed. Third, as I have noted elsewhere, the Respondent is not prepared to accept that she might have contributed to the issues in this case in any way, and this incident can be best understood as another example of the same concern.
140Then, there are the issues of the Applicant punching holes in doors and walls, both while the parties were married and afterwards. These are not examples of violence directed towards any person. However, they are still conduct that shows a significant concern about the Applicant’s emotional and temper control. They would also have been conduct that would have been emotionally scarring for the children.
141Finally, the incident leading to separation has been detailed at paragraphs 23-29, above. It illustrates that both parents were responsible for the issues in this case. In short, from all of the evidence that I have heard, I infer that the relationship between the parties was toxic (particularly after the birth of the twins), contained elements of physical violence and that both parties were responsible for both the toxicity and the physical violence.
142When I consider the factors in 16(4) of the Divorce Act, I am of the view that the parties’ separation and the use of written communications to exchange information about the children was an important step in reducing the effect of the family violence on the children. I am also of the view that the steps the Applicant has taken to improve his coping skills has, and will continue, to significantly reduce any risk of any harm to the children as a result of disputes between the parties.
Hallowe’en 2023 Incident
143On Hallowe’en 2023, the Applicant had care of the children earlier in the day but was to drop them off at the Respondent’s sister’s house so that they could go trick or treating with the Respondent. He duly dropped the children off, but C.P. forgot to take his knapsack, which he was going to need for the next day.
144The Applicant contacted the Respondent’s sister and told her that he would drop the knapsack off at the matrimonial home. The Respondent’s sister told the Applicant that he was not to do that and would have to drop the knapsack off at the Applicant’s sister’s house. The Applicant pointed out that this would be an extra forty-five minutes of driving, and that he could simply drop the knapsack off at the matrimonial home. He did not expect anyone else to be at the home, as they were scheduled to be out trick or treating. Therefore, the Applicant ignored the direction from the Respondent’s sister and attended at the matrimonial home.
145The Respondent and her sister arrived very shortly after the Applicant arrived at the matrimonial home. They had the children in the car. The Applicant and the Respondent’s sister immediately began yelling at each other, including swearing at each other.
146The affidavit of B.W. confirms that he heard the Applicant swearing at the other person but does not mention the fact that both of them were swearing. However, in cross-examination, B.W. freely admitted that both individuals were swearing at each other. While I found B.W.’s evidence as a whole to be both credible and reliable, his Affidavit evidence favoured the Respondent’s position.
147Once the parties had finished swearing at each other, the Applicant alleges that he threatened to call 911. Given the history of the parties’ interactions, I suspect that this is true. However, the Applicant also alleges that the driveway was blocked. B.W. confirms that he did not see the driveway as being blocked, and I accept his evidence and reject the Applicant’s evidence on this point.
148The Applicant acknowledged that this was “not one of our finer moments”. I agree. However, I ascribe fault to both sides for this incident. Given the volatility of the parties’ relationship, it was a clear misjudgment for the Applicant to attend at the matrimonial home. However, it was equally a misjudgment for the Respondent to arrive with the children when she knew that the Applicant would be there. That decision has the appearance of an attempt to deliberately provoke a conflict.
149More generally, this incident raises the issue of interactions between the parties since they separated. There are quite a number of these interactions, and I do not intend to review them all. They all fall into a similar pattern that can be exemplified by the Tupperware incident.
150In November of 2024, the Applicant had some Tupperware and clothing that needed to be returned to the Respondent. He sent the Respondent a message on Talking Parents that he was going to drop it off directly at her home. She did not respond to this message.
151The Applicant then dropped the Tupperware at the Respondent’s home. She was at the home, saw the Applicant and there was an altercation. On the Applicant’s evidence, he was yelled at and he dropped the bag of Tupperware from the window of his car and left. On the Respondent’s evidence, the Applicant saw her, yelled at her and threw the Tupperware at her.
152On this incident, I generally accept the Applicant’s evidence as to what happened in the interaction, although I am of the view that both parties raised their voices in this brief interaction. There are three reasons for my conclusion. First, the Respondent almost immediately sent the Respondent an apology note through Talking Parents. Second, he scheduled a conversation with his therapist to work through the issues. These two steps show that he understood that the interaction should not have happened and that he likely bore some of the blame for how it transpired. Finally, as I have said elsewhere, the Respondent’s evidence tends to exaggerate her concerns with the Applicant. I am of the view that this is another example of that tendency.
153That being said, there has been a history of the Applicant attending the Respondent’s residence unannounced, and I am of the view that this conduct has been (and will continue to be) inappropriate. It is also, arguably, a breach of paragraph 16 of McGee J.’s May 2024 order. I also accept that this conduct is seen by the Respondent as threatening, even if the Applicant (as in the Tupperware incident) does not intend it to be so. This intrusive conduct towards the Respondent was pointed out in the first OCL report. I would note that, as the parties get further from the date of separation, these types of incidents seem to be diminishing. They should stop completely.
154In short, when I review the criteria set out in Section 16 of the Divorce Act in respect of domestic violence, I am of the view that going forward the best interests of the children can be protected by minimizing the interactions between the parties.
The “N” Family Incident
155The N. family is a family that has been friends with the Applicant. In August of 2022, the Applicant had the children with the N. family at a swimming pool. The children were swimming, while the adults were not. During the course of the swimming, J. (the N. family’s 8-year-old son) pulled on E.P.’s bathing suit. The Applicant did not notice this incident.
156When E.P. and C.P. went back to the Respondent’s house, they reported an incident to her. The Respondent then reported this incident to the doctor and to the CAS and had the children provide information to the CAS as well. The way that the incident was reported by the Respondent was that J. had pulled down E.P.’s bathing suit and touched her vaginal area. The CAS did not take any action in respect of this incident.
157I do not know what happened in this case, and given the Respondent’s tendency to magnify events, I am not certain that the incident was as serious as the Respondent has claimed. However, I am certain that something happened. At a minimum, E.P.’s bathing suit was grabbed. In that respect, I note that the Applicant was not in the pool, and with a number of children around and splashing, it would not be unreasonable for him not to have noticed precisely what happened.
158I am not sure that the incident was as concerning as what was described by the Respondent to the CAS and to the doctors. However, I do conclude that something inappropriate happened that day and that it has been best to keep E.P. away from the N. family. I am of the view that it will continue to be best to keep E.P. away from the N. family. As a result, the orders in respect of the N family will be continued on a final basis and will apply until the children are eighteen.
Physical Discipline by the Paternal Grandparents
159At paragraph 51 of her Affidavit, the Respondent states:
- I have significant worries about the children’s safety and well-being in the presence of the Applicant’s parents. Recently the children have expressed that they are being physically harmed while in the Applicant’s care at his parents’ home. The Applicant disregards the children’s concerns about being physically harmed, when they tell him. The children have told this to their medical doctor, the Office of the Children’s Laywer and to their current counsellor. Both the Applicant and the parents completely deny harming the children.
160This statement flows from a single incident in November of 2023 where, in E.P.’s words, she was being “naughty” and her grandmother spanked her buttocks with the open palm of her right hand. Immediately after finding out about this, the Respondent brought the children to their family doctor and involved both the police and the CAS.
161The Applicant was also advised about this incident and told his parents that it was not to happen again. There is no evidence that any type of physical discipline has happened again at the Applicant’s parents’ house. As a result, it is clear that the Respondent’s assertion that the Applicant denies this and has done nothing about it is incorrect.
162In my view, the CAS has summarized this incident quite well in their note on December 1st, 2023, where they state:
…the file will be closed at investigation. The referral identified the [redacted] as the alleged maltreater, but [redacted] is not the primary caregiver, nor are they left alone with the children. There is no role for the Peel Children’s Aid Society at this time and does not warrant further involvement. The family is in the midst of a divorce proceeding with a trial date set for January 2024. This has been identified as the avenue for increased reports alleging risk of harm to the children. It was determined that interviewing the children each time a report is made, will have a significant impact on the children’s wellbeing. The parents have fundamentally different parenting styles, because the children primarily live with mom who has a gentler parenting style, dad’s parenting style may be viewed as harsher but is not abusive. The family has completed an OCL assessment with regards to custody and access, and it was determined that dad’s parenting time would remain unsupervised, despite mom’s effort to return to the supervised access center. The OCL and Peel Children’s Aid Society both made recommendations for the children and parents to explore therapeutic counselling to better manage the impact of the separation and support the children’s mental wellness.
163Parenthetically, this note also speaks to the issue identified at paragraphs 101 to 106. Specifically, in spite of the OCL recommendations for increased parenting time, the Respondent still has a desire to return to supervised access, contrary to what she has expressed in her Notice of Dispute.
164The Applicant is appropriately managing his parents’ relationship with the children, and I see no concerns in this regard. The Respondent’s focus on this issue, two years after it took place, supports the observations that the CAS made at the time about the divorce proceedings being an “avenue for increased reports”.
Counselling
165The first OCL report, released in June of 2023, recommended that the parties engage in counselling, and that the children also engage in counselling. The Order of McGee J., which was made on consent in May of 2024, mandated art/play therapy for the children.
166Between the OCL recommendations and the order of McGee J., no steps were taken to find a therapist, although the Applicant suggested therapists to the Respondent in October of 2023. Once the order of McGee J. was made, obtaining a therapist became mandatory.
167After some back and forth, the children were sent to see a counsellor named Jenifer Page. Ms. Page had two visits with the parties in the summer of 2024 and then, unfortunately went on leave in early August of 2024. At that point, the Applicant and the Respondent disagreed on what should happen. The Applicant wanted to have another therapist found relatively promptly, while the Respondent wanted to wait for Ms. Page to return to work. At this point, there was no indication as to when Ms. Page would be returning to work.
168The Respondent spoke with Dr. Hickey about waiting for Ms. Page to return in September of 2024, and he agreed with her decision to do so. However, by the time that Ms. Majewski completed her second report in December of 2024, Ms. Page had still not returned to work. Ms. Page also advised Ms. Majewski that she was still only forming a bond with the children and had not done significant clinical work with them. As a result, Ms. Majewski concluded that the Respondent was unnecessarily resisting the children attending art/play therapy and that this was not in their best interests. I agree with this conclusion. I also note that the Applicant had been pushing to have a new therapist chosen since shortly after Ms. Page went on leave.
169The Applicant suggested some therapists including ones whose primary focus was children, but the Respondent did not agree to them. Instead, she made a unilateral decision to have Ms. Crescenzi as a therapist. Ms. Crescenzi is a “qualifying” therapist, which means that she still has to write an exam with the College, and the bulk of her work is with adults. She has been practicing since 2021. The Respondent stated that Ms. Crescenzi came highly recommended but could not identify who had made the recommendation to her. Both how and why the Respondent settled on Ms. Crescenzi remains unclear to me. Ultimately, she was retained by the Respondent and began working with the children
170This brings me to the issue of Ms. Crescenzi’s understanding of the role of each parent in the lives of the children. That understanding was clearly flawed, and it led to difficulties in understanding the issues that the children were having. In this respect, although Ms. Crescenzi acknowledged that she had received the order of McGee J. which indicated that both parents were entitled to have information from the teachers and other professionals, she determined that she could not talk to the Applicant without the Respondent’s permission. It was only on cross-examination that she acknowledged that this understanding might have been wrong. In my view, the Order of McGee J. on this point is clear and unambiguous.
171This then brings me to the involvement of Ms. Crescenzi with the parties. She had an intake form completed by the Respondent. This form elicits significant information about the family from the party who completes it. Two problems flowed from this form. First, the form asks, “is there current involvement in the criminal or family court”? The Respondent responded with “On March 15, 2022, father was charged with domestic assault against mother.” This answer is, at best, incomplete in two respects. First, the Respondent had also previously been criminally charged with mischief. Second, the charges had all been disposed of almost two years previously, so these were not “current” issues.
172Ms. Crescenzi would likely have learned these facts if she had also obtained an intake form from the Applicant. She did not do so and did not provide a good explanation for this omission. It was suggested to her in re-examination that there was nothing preventing the Applicant from completing an intake form. However, in my view, it would be incumbent on a therapist to actively seek information from both parents in order to fully understand the children’s issues.
173On that point, the Applicant did attempt to engage with Ms. Crescenzi once the Respondent had retained her as the therapist. On April 28th, 2025, the Applicant sent Ms. Crescenzi the most recent OCL report and suggested to her that she might want to review the portions relating to the kids. Ms. Crescenzi responded to this request by saying that this was a very busy time for her and that she would review the documentation and schedule time to speak to the Applicant.
174The Applicant followed up with Ms. Crescenzi on both May 6th, 2025, and May 20th, 2025, asking for an update. Ms. Crescenzi did not reply to either of these e-mails and, in her evidence, testified that she had never spoken to the Applicant about the OCL reports.
175Ms. Crescenzi was given the OCL reports by the Respondent, but not until August 28th, 2025, after she had prepared her Affidavit for this proceeding. There is no mention of the OCL, or its reports, in Ms. Crescenzi’s Affidavit. From these two facts, I infer that Ms. Crescenzi did not review the OCL report until she received it from the Respondent at the end of August 2025.
176In cross-examination, Ms. Crescenzi was asked whether she had noted in the report what the purpose of the children’s therapy was. She testified that she had read through the report but did not remember that detail specifically. I found this testimony jarring, as the OCL’s recommendations for therapy and the purpose of the therapy are central to what Ms. Crescenzi was purportedly doing with the children. The OCL is also an independent third party and their information is likely to be both more balanced and more complete than anything either party might say.
177My concerns were heightened by the fact that the purpose of the therapy, as set out in the Respondent’s intake form, reads as follows:
Numerous incidents of physical violence. Father punching holes through several doors while children were present. Violent abuse towards mother in front of children. Physical abuse (hitting children) by paternal grandmother while in father’s care on several occasions. Both children still fearful. Reported to police by mother.
178As can be seen from the rest of these reasons, this statement is a mixture of some facts along with some statements that are clearly unsupported by the facts.
179In the 2023 report, the OCL sets out a very different purpose for the counseling. That report states that “it is important that the children get some counselling… to help them with their emotions and to process the conflicts that they have experienced and continue to experience with their parents.” (emphasis added). Ms. Crescenzi thought she was providing therapy to deal with issues cause solely by the Applicant, while in actuality she was supposed to be providing therapy designed to deal with issues caused by both parties.
180Then, there is Ms. Crescenzi’s record keeping. She originally provided just the clinical notes from each interaction when asked to produce her records. Very shortly before she was scheduled to testify, she provided additional records. Even then, some of the e-mails sent by the Applicant were not in the file. The evidence on this point is confusing enough that I cannot draw any specific conclusions other than that Ms. Crescenzi was not keeping a proper and complete file.
181Finally, there is the correspondence that Ms. Crescenzi sent after she had given her evidence. The “lack of trust” in her that she ascribes to the Applicant is, given the facts I have outlined, entirely understandable. I am disappointed that Ms. Crescenzi did not recognize some of the fundamental errors that she made in this case. To summarize, those errors were: accepting what one parent says at face value, failing to review third party documents that were relevant to her therapeutic approach, failing to review and understand the Court order under which she was appointed and failing to keep one complete file. All of these concerns would have been significant to the Applicant had Ms. Crescenzi continued to provide therapy to these children. However, she has withdrawn, and I need not determine whether she should remain as the children’s therapist.
182From this evidence, I draw two conclusions that are relevant to my disposition of the issue of decision-making responsibility on counselling. First, given the fact that Ms. Crescenzi was not aware of the complete family history and had not reviewed the OCL reports until August of 2025, I am not prepared to place any weight on her observations as to what the children want or need.
183In that respect, I particularly note that I am not prepared to give any weight to E.P.’s observation to Ms. Crescenzi that she prefers to only have two overnights with her father at a time and that three is too many. In terms of that observation, I also note that the references in Ms. Crescenzi’s notes to the overtimes being too much seem to come almost immediately after Cudjoe J’s decision that the matter of parenting time was not finally resolved by adding the one additional overnight. I find that timing troubling.
184Second, and more importantly for my final disposition of this matter, the involvement of Ms. Crescenzi with this family illustrates two significant concerns with leaving the Respondent to make final decisions in terms of counselling:
a) It is likely that the Respondent is not going to provide the therapist with all of the relevant information in the case. Indeed, she is likely to provide the therapist with incomplete, and perhaps misleading, information.
b) The Respondent is likely to make unilateral decisions in respect of the therapist if final decision-making is left to her.
185For these reasons, I am inclined to make an order that gives the Applicant the final decision-making responsibility on issues of counselling for the children.
Education
186There are two concerns that I have in respect of the children’s education:
a) The Respondent’s tendency to make unilateral decisions, both as outlined in the previous section and as discussed below.
b) The Respondent’s unwillingness to come to terms with the fact that the children, especially C.P., are struggling with schoolwork.
187In her Affidavit, the Respondent has stated (at para. 18):
- I have always informed the Applicant of my decisions for the children, and I will continue to do so, albeit in a safer meths, by Talking Parent App. As at the date of this Affidavit, I have made all of the decisions for the children. I have always informed the Applicant of those decisions. The children are doing well under the decisions that I have made for them.
188The problem with this statement is that the Respondent has not consulted with the Applicant about those decisions before she makes them. She has a tendency to make unilateral decisions, even though the final order she seeks is one whereby she will consult about decisions and then, if the parties cannot agree, will have final decision-making responsibility.
189One key example of the Respondent’s tendency to unilateral decisions is her decision to change the children’s schools in April of 2024. At that point, the parties were preparing for trial, and the Respondent was living in the matrimonial home. She unilaterally decided to move the children to Schomberg, where her family lived. She also registered them in a school in Schomberg without telling the Applicant until after she had done so. In her Affidavit, she notes that on April 30th, 2024, she provided the Applicant with notice that she was moving. However, the Respondent had made all of the decisions by the time that she told the Applicant about them.
190The other major example of the Respondent making unilateral decisions was in the area of counselling, which I have already described.
191This brings me to the second, and more important, issue in respect of the children’s education, which is whether the Respondent’s approach is the correct one. I start by noting that I do not have all of the evidence I would like to have about the children’s education. However, I do have their Grade 2 final report cards. Those report cards contain the following concerning information:
a) In language, which is a key component of the learning process, C.P. had a D+ as both his midterm and final mark. This section on his report card states that “with limited effectiveness, [C.P.] understands a variety of texts”. He is also noted to edit various forms of writing with “limited effectiveness.” A D grade is noted as “achievement falls much below the provincial standard.” His grades in math were C’s and C+’s.
b) E.P.’s report card identifies some of the same problems with language as C.P.’s report card, but her grades are in the C range, which is higher than a “D” but still concerning.
192In a message sent to the Applicant on September 27th, 2023, the Respondent noted that “[C.] seems to be excelling at math, where [E.] needs a bit more encouragement.” Although this message was sent at the start of the year, I am not sure that it demonstrates an understanding of the children’s strengths and weaknesses. A further message was sent on February 2nd, 2024, about the issues that the children were having with their letter sounds more than half-way through Grade 2, in that they were still working on them. This second message suggests that the children are having considerable issues in school.
193However, in the course of the Respondent’s testimony before me, she was asked about C.P.’s D grades in language. She stated that his grades had been improving because we have been working with him. The problem with that statement, of course, is that the D+ in language had remained constant between the midterm and final report.
194In cross-examination, the Respondent was also asked whether the children had learning issues. She responded that she did not believe that they had learning issues and that they had areas where they excelled and areas where they struggled.
195Finally, in cross-examination, the Respondent was asked whether a “D” in language was a “little bit of difficulty”. Rather than answering the question, the Respondent testified that she thought that it was important that the cross-examiner know that we use the school to implement different strategies to solve the issues. In this case, the truth of the matter is that C.P. in particular is struggling enormously with language and needs all of the help he can get. The Respondent does not seem to understand the significance of these struggles.
196In the 2023 OCL report, when the children would have been at the beginning of Grade 1, they were described as “average” students. However, by the time the 2024 OCL report was prepared, E.P. was viewed has having “academic challenges where she is poor in math and language, particularly math.” Special educational support was being sought by the school. C.P. has been having issues remaining focused in class, along with the language issues I discussed above.
197Ms. Majewski’s second report raises concerns with the Respondent’s approach to the children’s education. In Ms. Majewski’s interview with the Respondent, she notes that the Respondent was advised at parent teacher interviews that the children’s issues were “normal Grade 2 struggles.” This statement was contrary to what Ms. Majewski heard from the school.
198Overall, based on her discussions with the school, Ms. Majewski was advised that both children were presenting with some academic concerns, C.P. more in language and E.P. more in math. The school seemed to be recommending special education supports. As a result, Ms. Majewski concluded that there are “academic concerns for the children where special education supports are needed for both children. Mr. [P.] seems more accepting of this and ready to take supportive actions, if required.”
199Based on the objective evidence I have, I accept both halves of Ms. Majewski’s conclusions. Based on the children’s report card, I am persuaded that they need additional supports and that their challenges go well beyond “normal Grade 2 struggles”. Based on the testimony of the parties, I am persuaded that the Applicant understands these needs and the Respondent does not.
200I am fortified in that conclusion by the fact (as noted in the second OCL report) that the Respondent did not advise the children’s new school that C.P. had a plan to manage his tendency to leave class and, on occasion, leave the school building. That is information that should have been provided to the new school.
201It is in the children’s best interests to have the Applicant make the decisions about their education. I reach that conclusion for two reasons. First, as described above, the Applicant has a better understanding of the issues. Second, based on the evidence before me, the Applicant is far more prepared than the Respondent to reconsider his position, accept the possibility that he is wrong, and put aside his preconceived notions of how the children are doing and what their capabilities are in order to deal with their struggles in an objective way that will help them overcome those struggles.
c) Analysis and Disposition on Decision-Making Responsibility
202One of the issues that I face in this case is the fact that the relationship between the Applicant and the Respondent can best be described as high-conflict. Both parties bear some responsibility for this high conflict, and I am not certain that they can co-parent.
203As noted in Kaplanis v. Kaplanis, 2005 CanLII 1625 (at para. 11):
11The fact that one parent professes an inability to communicate with the other parent does not, in and of itself, mean that a joint custody order cannot be considered. On the other hand, hoping that communication between the parties will improve once the litigation is over does not provide a sufficient basis for the making of an order of joint custody. There must be some evidence before the court that, despite their differences, the parents are able to communicate effectively with one another. No matter how detailed the custody order that is made, gaps will inevitably occur, unexpected situations arise, and the changing developmental needs of a child must be addressed on an ongoing basis. When, as here, the child is so young that she can hardly communicate her developmental needs, communication is even more important. In this case there was no evidence of effective communication. The evidence was to the contrary.
204In this case, the parties clearly have difficulties in communicating and, historically, those difficulties have arisen from the conduct of both parents. As a result, I am of the view that the option of joint decision-making responsibility is not appropriate in this case. I cannot hope that their communications with each other will improve after the case is over.
205This means that I have two options available to me. Decision making responsibility could remain, on a final basis, with the Respondent or it could be shared on an issue-by-issue basis. The Applicant did not seek sole decision-making responsibility over all issues for himself, and, at this point, I am of the view that granting the Applicant sole decision-making responsibility would not be in the best interests of the children. These children have had enough disruption in their lives and to be subject to a complete change in this area would be additional unneeded disruption.
206I am fortified in that conclusion by the fact that the Respondent’s hypervigilance to issues with the children has resulted in her being very careful with their health care. She understands their health-care needs and should remain responsible for this area.
207However, the question is whether the Respondent should remain responsible for everything or if she should cede some of those responsibilities to the Applicant. I start with the educational issues, as that is one of the more important challenges for these children, and the outcome is clear from my review of the facts. For the reasons summarized in paragraph 201, the Applicant is in a far better position to make the decisions about the children’s education than the Respondent. As a result, some decision-making responsibility needs to be transferred to the Respondent.
208I acknowledge that the communications issues between the parties make it more difficult for them to share decision-making responsibility, even if there are clearly delineated boundaries. In Jackson v. Jackson, 2017 ONSC 1566, the Court sets out a detailed discussion of various custody options. In respect of parallel parenting orders, the Court notes (at para. 70(2)):
- Full parallel parenting orders will typically only be appropriate in circumstances where there is some evidence that the parties can cooperate for the sake of the child’s best interests. In the absence of some degree of cooperation, such orders create a serious risk of the parties acting independently at odds with each other on major issues, thereby creating chaos and confusion for the child and professionals involved with the child.
209While I have concerns about the ability of the parties to communicate, I am prepared to conclude that a parallel parenting order is in the best interests of these children. In that respect, I note Ms. Majewski’s observation that the parties all seem more settled in their relationships in 2024 than they were in 2023. The fact that there is progress in this area suggests to me that progress will continue as the parties get further away from the events of separation and from the litigation.
210I should also comment on the Respondent’s observation that the Applicant only became more interested in the children after the first OCL report was delivered. This observation appears to generally fit with the evidence I heard. As I have said elsewhere, the Applicant did not understand the effect his alcohol consumption was having on the children. The first OCL report seems to have acted as a motivator for the Applicant to make improvements to his life and his parenting skills.
211I am also of the view that the division of final decision-making responsibility is in the best interests of the children in this case. I have set out concerns in respect of the Respondent’s decision-making in both education and counselling. Based on those concerns, I am of the view that the Applicant is better positioned to make the final decisions in these areas. I am also of the view that these concerns outweigh any residual concern about the parties’ ability to communicate with each other.
212For clarity, the question of whether the children need a psychoeducational assessment is an educational decision and not a medical or health care decision. Further, in making any health care decisions that follow on this assessment (if one is conducted), the parties are to be guided by the recommendations of the assessor.
213I am also mindful of the fact that the parties have communication issues. To that end, I am retaining jurisdiction over the question of who has responsibility for what issues for a period of fifteen (15) months from the date of the release of these reasons. The parties will note that this supervisory role takes me to the beginning of Grade 5. That should be enough time for the parties to adapt to communicating in a world where both parents have to make final decisions. In making those final decisions, the parent with the final responsibility in each area is required to consult with the other parent in writing in advance of making any significant decisions.
214One final observation on this issue. Section 16 refers to decision-making responsibility. In my view, there is a reason for that choice of words. The ability to make these decisions for your children is best thought of as a responsibility and not as an authority. The decision maker is responsible for their decisions, and for the consequences of those decisions both in the short term and in the long term. That fact should not be forgotten in disputes over who has “control” or “authority” over the children’s lives.
Issue #2- Parenting Time
215I have already set out the relevant law in respect of parenting orders in the previous section. Section 16 of the Divorce Act applies to the Orders in respect of parenting time as well as decision-making responsibility. I have also set out most of the facts that are relevant to my decision in respect of parenting time.
216In deciding on a final order for parenting time, I have three different options to consider. First, I can adopt the OCL recommendation and proceed with a 2/2/3 schedule. Second, I could adopt the Respondent’s position and make the Order of McGee J. permanent. Third, I could fashion my own order taking into account the best interests of the children.
217I will start with the third option. As I listened to the evidence in this case, it was apparent to me that the parties have difficulties in getting along with each other, although their written communications are better than their oral ones, especially recently. It was also apparent that every time the parties came into contact with each other, there was a risk of conflict between them. As a result, during Ms. Majewski’s evidence, I asked her whether a “week about” schedule might be appropriate for this family.
218One of the attractive features of that type of schedule in this case is that it minimizes the contact between the parties, which minimizes the chances for conflict. Both the history of this case and the OCL report demonstrate that the conflict has been having a negative impact on the children’s well-being. It is not in their best interests to be exposed to conflict between their parents.
219However, I am of the view that a “week about” schedule is not yet appropriate for these children for three reasons:
a) They are still young enough that an entire week away from one parent may be too much. Certainly, when I asked Ms. Majewski about this, she indicated that the research speaks to it not really fitting children under the age of eight.
b) The children themselves have expressed to Ms. Majewski that they like seeing both of their parents during the course of the week. The fact that this type of schedule is comfortable for them means that they are more likely to thrive in that type of schedule, which means it is in their best interests to order it.
c) Given that they have become more settled, and given that they both appear to have some significant educational challenges, changing to a week about schedule at this point would be too disruptive and not in their best interests.
220This then brings me to the Respondent’s proposal that the temporary parenting time Order of McGee J. be made into the final Order. I note that the difference between that Order and the 2/2/3 schedule will result in a doubling of the overnights at the Applicant’s home from 3 to 7 and a corresponding decrease in the time with the Respondent. It is a significant change.
221I am of the view that the 2/2/3 schedule is in the best interests of the children in this case for four reasons. First, the Applicant now has final responsibility for the education and counselling issues and, as a result, should have more time with the children to make sure that their educational needs are being met.
222Second, as I have set out above, the Respondent has engaged in behaviour designed to minimize the Applicant’s role in the children’s lives, which has been contrary to their best interests. As Ms. Majewski noted, the Respondent’s approach is “not cooperative or collaborative at times, and I am not sure that she understands this”. Based on these concerns, Ms. Majewski notes that “[i]t could be that if Ms. [P.] continues to behave in such a way, [the children’s] relationship with their father could be damaged.”
223These conclusions precisely mirror one of my major concerns in this case, which is the attempted minimization of the Applicant’s role in the children’s lives by the Respondent. As Ms. Majewski points out, one of the ways to address this issue is to make the parenting schedule more equal, which can be achieved through the 2/2/3 schedule.
224Third, and related to the second point, the 2/2/3 schedule will ensure that the children have the benefit of time with both parents. In that respect, I note that this is not an application of the old “maximum contact” principle. It is my view that the children are benefitting from the time that they spend with the Applicant and would benefit from spending equal time with him, especially given my conclusions about the children’s education.
225Finally, I should briefly deal with the Respondent’s safety concerns, both in respect of the Applicant’s alcohol consumption and the risk of physical discipline from the Applicant’s parents. As I have set out in my analysis of the first issue, those concerns are much more limited at this point and, as a result, they are not a barrier to additional parenting time for the Applicant. Any residual safety concerns that the Respondent may have can be addressed through a series of ancillary orders.
226This schedule is ordered on a final basis. However, as the children age, I would encourage the parties to think about whether the schedule should be changed to a “week about” schedule at some point in the future. This is a decision that would have either be jointly agreed-upon or reconsidered by the Court if there was a material change in circumstances.
227I had given thought to retaining jurisdiction to consider a change to a “week about” schedule over the next year or two as the children aged. However, I decided against retaining jurisdiction over that topic for two reasons:
a) In response to my questions on the issue of the schedule, Ms. Majewski indicated that a 2/2/3 schedule can be appropriate for children into their teenage years.
b) This family has spent a great deal of time in litigation, and, in my view, the litigation needs to end for a while. It would be preferable if it ceased completely. As a result, providing the parties with a mechanism for renewed litigation (other than for the purposes of clarifying my current orders) is not in the best interests of anyone, especially the children.
228As a result, I am ordering the 2/2/3 schedule as proposed by the OCL report on a final basis.
Issue #3- Ancillary Orders
229In my view, there are four separate ancillary orders that should be addressed. First, there are a whole series of orders that have been made in respect of parenting, communications, child exchanges, documents and holidays on a temporary basis. As can be seen from the evidence, this case has been a high-conflict case. I am of the view that the ancillary orders in respect of all of these issues should remain in place, including in respect of vacation. I will spell out which orders remain in my conclusions.
230Second, there is the issue of the “N” family, as I have set out above. As I have already noted, something certainly happened when E.P. was in the pool with the son of the “N” family. While it is possible that time will have taken care of the inappropriate conduct of the N family’s son, I am not prepared to risk that. The Order preventing exposure of the children to the N family is to continue on a final basis until the children are eighteen (18) years old.
231Third, there is the issue of identification. In the interim Order, the Respondent had possession of all of the original documents, and the Applicant was entitled to photocopies, presumably except if he was travelling with the children. The OCL recommends that the documents go back and forth. My concern with that recommendation is that the documents will get lost. I am of the view that the health card should remain with the Respondent, while the passports should remain with the Applicant.
232Finally, there is the issue of alcohol consumption by the Applicant. Ms. Majewski has recommended that the Applicant be permitted to have “the occasional drink during his parenting time for a special family celebration or other event only.” I reject that recommendation. In my view, the temporary Order that the Applicant abstain from alcohol consumption for 24 hours before his parenting time and while the children are in his care has been working well. It has allowed the Applicant to focus on his therapists’ recommendations that he seek alternate coping strategies, which has allowed him to become a better, more focused parent. This Order shall also be continued on a final basis.
Conclusion and Costs
233For the foregoing reasons, I am ordering as follows:
a) The Applicant and the Respondent shall attempt to make major decisions with regards to the children’s education, recreation, health, counselling and religion together. In the event that they are unable to agree after strong efforts to communicate with each other, the Applicant shall have final decision-making responsibility for education and counselling and the Respondent shall have final decision-making responsibility for health and recreation.
b) The schedule set out in paragraph 1 of the parenting time discussion of the OCL report dated December 12th, 2024 shall apply to the children commencing on July 1st, 2026.
c) In terms of exchanges, the language in paragraph 16 of McGee J.’s Order of May 21, 2024 shall continue as a final order.
d) The Applicant shall have custody of the original copies of the children’s passport. The Respondent shall have custody of the original copies of all other documentation for the children.
e) The parties shall ensure that the other party has a notarized copy of any documentation that they hold the originals of.
f) The passports for the children, if they have been applied for, are to be delivered by the Respondent to her counsel and then to the Applicant’s counsel.
g) The parties shall cooperate with each other in the renewal of all documentation. The party who holds the original of a document is responsible for ensuring that it is renewed in a timely way.
h) Paragraphs 19 to 43 and 46 of McGee J.’s order of May 21, 2024 shall continue on a final basis.
i) In terms of any other issues in respect of decision-making responsibility, the parties are to ensure that any provisions not covered by the Order of McGee J. that are listed in paragraphs 2 to 10 of the OCL report of December 12th, 2024, are to be included in the final order.
j) I retain jurisdiction for a period of fifteen (15) months, or such longer period as may be necessary, to ensure that there are no disputes between the parties as to the boundaries between their respective spheres of responsibility.
234I make no order in respect of counselling for either parent, but I would offer the strong suggestion that continued counselling would be helpful to them both.
235Finally, there are the costs for the trial. The parties are encouraged to agree on the costs for this motion. Failing agreement, the following timetable will apply:
a) The Applicant shall have fourteen (14) calendar days from the release of these reasons to serve, file and upload his costs submissions. Those submissions are to be no more than three (3) single-spaced pages, exclusive of bills of costs, offers to settle and case-law.
b) The Respondent shall have fourteen (14) days thereafter to serve, file and upload her costs submissions. Those submissions are to be no more than three (3) single-spaced pages, exclusive of bills of costs, offers to settle and case-law.
c) In addition to serving, filing and uploading the costs submissions, the parties are required to counsel is to provide a copy of the submissions to my attention through the e-mail address: SCJ.CSJ.General.Brampton@ontario.ca . The e-mail should be sent to my attention and should contain the name and file number of the case.
d) There are to be no reply submissions. There are also to be no extensions to the deadlines for filing costs submissions, even on consent, without my leave. If I do not receive costs submissions in accordance with these deadlines, then there will be no order as to costs.
236As a final matter, I should make it clear that I do not retain the jurisdiction to address any issues flowing from any request to change the parenting schedule from 2/2/3 to a “week about” schedule. I only retain jurisdiction to address issues in respect of the boundaries between the parties spheres of decision-making responsibility and may be contacted through the trial office if there is a dispute in that respect.
LEMAY J.
Released: June 23, 2026