Singh v. Singh, 2019 ONCJ 266

ONTARIO COURT OF JUSTICE CITATION: Singh v. Singh , 2019 ONCJ 266 DATE: 2019 04 12 Brampton 144/18 B E T W E E N : ALLAN GANIESH SINGH Applicant — AND — LIANDA SINGH Respondent Before Justice Philip J. Clay Heard on February 25, 26, 27, 28, March 1, 4, 5, 6, 2019 Reasons for Decision released April 12, 2019 Ms. J. Freedman.…………………………………………………………...….for the Applicant Ms. G. Deokaran…………………………………….……………………..for the Respondent CLAY J.: PROCEDURAL BACKGROUND [ 1 ] This Application concerned the custody, of and access to, the child Athan Aakesh Singh born […], 2016.

It is also concerned the financial responsibilities that the parties have to their son and to each other. For ease of reference I will refer to the parties as the mother and the father even though they did not become parents until […], 2016. [ 2 ] The Applicant father (“father”) brought an Application in the Ontario Court of Justice (‘OCJ’) at 47 Sheppard Avenue, Toronto and obtained two court orders. The Application was then transferred to Brampton. The Respondent mother (“mother”) filed her Answer, in which she sought custody of the child.

The Office of the Children’s Lawyer (“OCL”) accepted a referral and their final report was released on May 30, 2018. This matter was scheduled for trial during the fall sittings of this court but it could not be reached. [ 3 ] Between that sitting and this trial sitting a report was made to the Peel Children’s Aid Society (“PCAS”) regarding this high conflict case.

That investigation was concluded with verification of risk of emotional harm due to parental conflict. [ 4 ] The matter was then scheduled for this winter sitting of the court. [ 5 ] At the Trial Management Conference (“TMC”) it was ordered that the direct evidence of everyone but the parties and the OCL would be given by way of affidavit and each witness would be cross-examined at the trial. Some witnesses were given permission to give evidence by Skype or other electronic means.

THE LAW [ 6 ] The statute that governs the custody and access issues in this matter is the Children’s Law Reform Act (“ CLRA”) and the applicable

section is s. 24 which reads in part as follows; 24

(1) The merits of an application under this

Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4). 2006, c. 1, s. 3 (1) .

(2) The court shall consider all the child’s needs and circumstances, including, (the relevant factors are discussed below)

(3) A person’s past conduct shall be considered only, (

a) in accordance with subsection (4); or (

b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent. 2006, c. 1, s. 3 (1) ; 2016, c. 23, s. 7 (2) .

(4) In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against, (

a) his or her spouse; (

b) a parent of the child to whom the application relates; (

c) a member of the person’s household; or (

d) any child. EVIDENCE CUSTODY ISSUE Prior to the birth of the child [ 7 ] The parties were both born in Trinidad. The father immigrated to Canada when he was 11 years old, lived in Brampton and ultimately obtained a mechanical engineering degree from Lakehead University. After graduation the father moved back to Trinidad. [ 8 ] The mother grew up with her family in Trinidad and was still living with them when she met the father at their mutual place of employment. The father asked the mother out.

She said she was initially reluctant to date the father but that she “eventually gave him the chance to be in a relationship with me”. Throughout the mother’s evidence she stated that while she was in love with the father she always had significant concerns regarding their relationship. It appeared from the mother’s evidence that she was convinced by her family and friends that she should marry the father but she always had some uncertainty in her mind about making a life with him. [ 9 ] The father moved back to Canada in 2011. The parties had a long distance relationship throughout 2011 and talked of marriage.

The father visited Trinidad in 2011 and the parties were engaged. They were married in Trinidad on March 3, 2012 and the father sponsored the mother to immigrate to Canada. The mother stated that she was scared about the prospect of moving away from the only home she had known but said that she would give it a try. She said the father told her that if she didn’t like it she could move back. [ 10 ] In December 2012 the father accepted an engineering position with Saskarc and moved to Oxbow, Saskatchewan (“SK”). The mother was finally able to come to Canada in October 2013.

She stayed with the father’s mother Jean Singh, for a few days until she could make the trip to Oxbow. The mother gave evidence that she was treated very poorly by the father’s mother who would become the paternal grandmother (“the PGM”). [ 11 ] When the mother arrived in Oxbow, she moved into the house that the father had purchased there. She said she felt very isolated. She said that she had limited contact with her family (though she also said was able to video call them once or twice a week).

She said the father forced her to remain in the home, did not give her access to any financial information and was verbally abusive and demeaning to her throughout their relationship. She said there were some periods of time that were not too bad but others when he yelled and screamed at her. She said that the father forced sex upon her without her consent and that on one occasion when she was five months pregnant, he grabbed her by the hair and stood her up against the wall, slapped her and then dragged her into another room.

The mother described this period of time in a very emotional way. [ 12 ] The mother said she had no friends in Oxbow. She talked to her doctor about her problems and she recommended Envision counselling which she began in April 2014. The mother also said she contacted her own father with whom she had reunited during her brief stay in Brampton in October 2013. Her father had immigrated to Canada when she was 10 and had another child with his spouse.

The mother said she disclosed the abuse to her father, the future maternal grandfather (“MGF”) over the phone from Oxbow. [ 13 ] The mother’s evidence was that the father was very clever with technology and he used it to monitor and control her. She used his computer to Skype her family and email her friends. He walked in on her emailing and said “I know what you are emailing because I know everything that goes on in this house”. The mother also alleged that there were cameras installed all over the house with the images available on the father’s phone.

She said she felt imprisoned in the home. [ 14 ] The father denied all abuse. He said the mother spoke with her family frequently by phone and by video through WhatsApp. He said he helped her apply for her driver’s license and she had access to the keys to the family car as he always drove his company car. The father conceded that moving from Trinidad to rural Saskatchewan was a major cultural change but he said that he did what he could to help her. He said that a friend of his offered the mother a job at the company where he then worked.

She began work as a receptionist in January 2014 and worked until sometime in 2015 when the company downsized and she was laid off. She opened her own bank account when she got a job and he kept all of his financial papers in an unlocked box and the mother knew where it was. The mother bought her own cell phone once she started working. [ 15 ] With respect to the allegation of physical abuse when she was pregnant, the father said that the mother was ill throughout her pregnancy. She was given medication but she did not like to take it (the mother admitted that in her evidence). He said he did strongly

encourage the mother to take her medication and the mother called the police when they had a big argument about it. He denied that that the argument resulted in any physical abuse. As to the allegations that he isolated the mother, the father said that the mother chose to accompany him on a trip to NYC on June 24, 2014 and from there she flew to Barbados for a holiday with her brother. The mother’s counsellor [ 16 ] The mother contacted Envision counselling by telephone and was connected with a counsellor named Skylar Gunderman. Ms.

Gunderman’s notes were filed as an exhibit and she appeared as a witness via Skype. The notes indicate that Ms. Gunderman first opened a file on May 29, 2014. The counselling was done by telephone as Ms. Gunderman was in Estevan SK. When the mother was employed she called from her workplace in Oxbow. The father was unaware that the mother had received any counselling until the questioning took place in this matter in July 2018. [ 17 ] Ms. Gunderman stated that she was the inter-personal violence and abuse counsellor and Envision was her first job out of university.

She began in January 2014 and left there on an educational leave in July 2017. She is now a school counsellor. She said the notes in the record that was submitted as an exhibit were accurate and transcribed by her from her rough notes within 48 hours of the conversation. Ms. Gunderman’s notes are very detailed and set out what the mother told her and the resources that the counsellor recommended to her. The counsellor said that she did not try to persuade or push her clients to take an action that they are not ready to take.

Throughout the notes there are references to the mother stating that she is unhappy with her life but that she was not yet prepared to leave her marriage. [ 18 ] The notes do show that as early as March 2014 the mother told a counsellor that the father was controlling and verbally abusive to her. She related that when she arrived from Trinidad in October 2013 she had a cold sore. After googling it, the father’s sister said she must have obtained the herpes virus from being promiscuous in the period between her wedding and her arrival in Canada.

This began the poor relationship that the mother had with the father’s mother and sister. As his sister was very close to him, this alleged unfaithfulness was communicated to the father and it may have had an effect on his relationship with the mother. [ 19 ] The mother reported that the father was emotionally abusive and would explode with anger and call her names such as “dumb” and “stupid”. At the trial the mother alleged that the father used much cruder, sexualized language to degrade and humiliate her.

The counsellor’s notes stated that the mother said that the father was not physically abusive as he knew that he could not do that in Canada. [ 20 ] The mother described that she and the father had travelled to Trinidad in March 2015. There appeared to be a gap in the counselling between August 29, 2015 and July 29, 2016, when the mother contacted Ms. Gunderman when she was in Estevan, presumably for a hospital checkup as she was then 19 weeks pregnant. The mother told her counsellor how ill she had been with her pregnancy and said that the father was not supportive of her.

She said that in June 2015 the father was angry with her and dragged her by the arm to the bedroom. She was worried that she or her unborn baby would be harmed. She called 911 and the RCMP responded. She said she lied to the police and told them it was a misunderstanding. The counsellor provided support and told her she could still make a report. The mother said she wanted to leave and travel home to be with her family. She asked the counsellor if the father would still have to pay child support if she was out of the country. This was the last contact with Ms.

Gunderman. [ 21 ] The mother called Envision again on August 25, 2017 and this time spoke to the new IVA counsellor, Megan Russel. Her note stated that the mother said she used to have telephone counselling and she wanted to ensure that if for any reason she was in a custody dispute that her concerns are documented. She said her husband was “sly” and she was not sure what he was “coming with”. The mother related that the father often tells her that she cannot take their son and go to Trinidad. The mother said she was worried that the father would try and take the baby away from her.

The counsellor referred the mother to legal and other resources. [ 22 ] The overwhelming impression left by the notes was that the mother was very sad and depressed and perhaps somewhat bitter that she had been uprooted from a full independent life in Trinidad to a small town life in SK. She felt unable to talk to anyone about her sadness because the father was a very well-known and respected member of the small community of Oxbow. She said the father was friends with everyone and treated everyone well and no one would believe her.

New job and new plans [ 23 ] The father changed jobs from Saskarc to Havwoods in February 2016. He signed an employment contract in April 2016 and was appointed the general manager of Havwood’s North American operations. Havwoods is a family run company based in the United Kingdom that makes engineered flooring products. They had a small base in Oxbow with four employees but they had plans to expand throughout North America. The father was responsible for managing their employees in their warehouse in Maryland and for working with the managers in the U.K. on their planned expansion to a showroom in Manhattan.

This new position came with a significant increase in salary. [ 24 ] At the time that the father was settling into this demanding new position, they learned that the mother was pregnant. Both parties described the pregnancy as being a very difficult time. The pregnancy was deemed to be high risk due to the mother being 42 years old. The mother was very ill from the onset of the pregnancy. She was In and out of hospital and she had to be on an intravenous line at home.

She said the father was quite supportive at first but when she did not get well she felt his patience must have run out as he would be angry at her. The father would yell at her to take her medication. She said she felt so depressed. [ 25 ] The child’s birth was a traumatic experience for the mother. Her labour began two weeks early and was a bad snowstorm on their journey to the nearest hospital in Estevan and from there the mother was taken by ambulance to Regina where she required an emergency c-section. The mother was required to be in hospital for 2.5 days.

Her mother and aunt came from Trinidad to Oxbow to help out and stayed for about 6 weeks. The father went back to work after they arrived. After the MGM’s visit ended the PGM came to Oxbow for a month. Early parenting

[ 26 ] The father said that as he worked for a U.K. company, he needed to be in the office for their work hours. He said he left for work at about 5:00 a.m. He would return home at about 9:00 or 9:30 a.m. “to see how everyone was doing” and he finished for the day around 5:00 or 5:30 p.m. [ 27 ] The father conceded that the mother was primarily responsible for parenting the child. The mother said she continued to be quite ill after her surgery but she breastfed the child and took care of Athan during the day. She said that when they were visiting, the respective grandmothers cooked and cleaned.

The mother said she encouraged the father to spend time with the child in the evenings. The father said that once he was home, he was fully involved with the child and participated in all of the bedtime routines. The mother denied this and said that the father told her he had worked all day so she should care for the child. [ 28 ] In May 2017, the father was required to attend a meeting in the U.K. at which time he was told that he would be required to assume responsibility for the launch and management of the Manhattan show room and he would have to move to New York City (“NYC”).

The father said he discussed the move with the mother and while she was understandably anxious about another big change in her life, she agreed to the move. The mother’s testimony regarding this life changing event was quite different. She said that the father presented the news like an ultimatum. He was going to move to NYC with the baby whether or not she chose to accompany him. [ 29 ] The parties also gave starkly different evidence as to the process involved with the move. The father said he decided to rent rather than sell the Oxbow home.

The parties packed up their home together and on November 1, 2017 they drove to the PGM’s home in Brampton. The father said that the mother chose to stay with his mother rather than with her father in Brampton. The father said moving to Brampton was a logical interim step as they had to obtain a home in NYC and it would be far easier for the father to fly back and forth from Toronto than to try to effect the work transition by driving back and forth from the Regina airport and connecting through Toronto to NYC.

The father admitted that in the fall of 2017, he travelled back and forth but estimated that he spent about 80% of his time in Saskatchewan. He noted that the mother accompanied him on trips to NYC to see the city and look for a house. The mother said she went twice and that she was shut out of the home purchase as the father and his sister made all the decisions. [ 30 ] The mother said she never wanted to move to NYC. When the father was travelling so much, she felt even more isolated with her infant child in Oxbow and she asked the father if she could go to Trinidad for a holiday with her family.

She said the father was insistent that she could not leave. He told her that she would only be spending a week or two with the PGM and his sister but it became over six weeks. She said that she was very poorly treated by the PGM and paternal aunt who spoke rudely to her and constantly criticized her parenting. The PGM said that in this time the mother would keep the child in her bedroom until the afternoon. She would Skype on her laptop so the child could see the MGM. The PGM said it was the mother who did not want to interact with her.

She denied being constantly critical and said she simply told the mother that the child never eats regular meals and needed more exercise. [ 31 ] The father said that the parties found a home in Bayside NY. The father admitted that the entire moving process took much longer than anticipated. Their house contents did not arrive in NYC until December 16 due to the moving truck

schedule and a truck breakdown. The father stayed in NYC from December 3 until his return to Brampton on or about December 22. What happened in the days between December 17 and December 22 were critical to direction of this litigation. The without notice motion [ 32 ] The father said that the mother told him on December 17 that she wanted to go to Trinidad with Athan. The father sent the mother a text message on December 18 stating that it was unfair for her to take Athan away from him for the Christmas holiday. She responded that he chose to be away from him now by leaving the child with her in Brampton.

The father said he had no choice as he had to work. She responded “Like I said Wat ever”. [ 33 ] On December 19, the mother left the home of the PGM with Athan and all of her contents. The PGM asked where she was going and she said she was leaving to be with family. The PGM called the father in NYC. The father then left a series of messages that said that he did not permit Athan going to Trinidad. They included “I hope you are not going to Trinidad”, “I am concerned about the safety of my son” and “How can you just take my son”. He also said “I spoke to you this morning and you never told me you are taking him”.

The mother did not respond to any of the messages. [ 34 ] The father called the MGF in Brampton. He was told that the mother and child were not there and the MGF did not know where they were. The father then called the MGM in Trinidad and left a message asking whether Athan was there. There was no response. The father then called the police. On December 20, the Peel Regional Police were able to locate the mother through her cell phone. She was at the Interim Place shelter.

The police reported to the father that the mother and child were safe and were in Mississauga but if he wanted any more information he would need to go to family court. The father then flew back from NYC and retained counsel. Ms. Freedman prepared a motion seeking an order to prevent the child from leaving the province of Ontario. The ex parte motion did not seek sole custody and did not seek an order to locate and apprehend the child. [ 35 ] Ms. Freedman took the motion to the OCJ at Brampton on December 22.

She did not file the motion there because, based on information her office said they received from the court staff, she was not confident that the motion would be reviewed that day. (In fact there were two family judges available and all urgent motions are reviewed the same day). In any event, the father and counsel then went to the OCJ at 47 Sheppard Avenue, Toronto where Justice R. Zisman was prepared to receive submissions on the record in court in addition to reviewing the affidavit filed.

A transcript of the proceeding was filed. [ 36 ] It is clear from the transcript that it was on Justice Zisman’s initiative that the motion for a non-removal order was converted to sole custody order with the police to apprehend the child and deliver him to the father. The mother subsequently said that the father “lied to the court” to obtain a custody order. The evidence before Justice Zisman and the evidence given at this trial do not support that.

Justice Zisman was very concerned that the father had not heard anything from the mother in two days and that she had spoken of going to Trinidad and being with family. She thought the mother had no status in Canada but the father made it clear that the mother was a permanent resident. Justice Zisman asked counsel why she was not seeking an order to have the child placed with the father as she was concerned that “we do not know where the child is”. Ms.

Freedman advised the court that the father did not have any concerns with the mother’s ability to care for the child and the father did not want to cause any undue stress to the child by having the police arrive to

remove him. [ 37 ] Justice Zisman then asked the father if he would like the child returned to his care and he responded “Most definitely”. Justice Zisman then made an order for the father to have custody and for the child to be apprehended and delivered into his care. There is no doubt that Justice Zisman had jurisdiction to make the order under R. 5 (2) of the Family Law Rules. There is also no doubt that the court simply wanted to ensure that the child was not taken to Trinidad.

Justice Zisman made it clear that she was making a custody order and transferring the child to the father only to ensure that her order would be effective in preventing the mother from leaving Canada with the child. She ordered the parties to attend before her on December 28 and stated that if the mother attends we will “straighten it out”. [ 38 ] The mother’s version of what happened is quite different. She said that she was living in intolerable circumstances in the PGM’s home. Christmas was approaching and she wanted to take her son with her to Trinidad for the Christmas holidays.

She said she made it clear that it was for a holiday only. She said she never mentioned moving to Trinidad. She was a permanent resident of Canada and the father had assisted her in starting her citizenship application when she was in Oxbow. She said that the father had threatened her that if she left him he would “end her story” and that her family would find “her body in a bag”. She said this threat was made by telephone on December 18 and that is why she was feared for her life and left the PGM’s home to go to a shelter. [ 39 ] The mother did not deny telling the PGM that she was going to see family.

She testified that she did contact her own father and he helped her move into the shelter. She claimed that she had a good relationship with her father but the MGF’s wife did not like her so she felt uncomfortable in that home. She said that is why she went to a shelter and not to the MGF home. The mother said that when she arrived at the shelter she was told to have absolutely no contact with the father. She said that is why she did not respond to his frequent texts and phone calls.

She said that when the Peel police spoke with her on December 20, she knew that the father would be told that his son was safe in Peel. She contacted a lawyer to begin the process of seeking custody of Athan, when on December 22 she was served by the police with the locate and apprehend order and the police delivered Athan to the father at the PGM’s house. [ 40 ] The mother did attend with counsel at the return of the matter before Justice Zisman on December 28. At that time she was still living in the shelter. An order was made granting her supervised access with the child for 3 hours a day.

The father said that the MGF was an agreeable supervisor. The matter was then adjourned to January 25 and at that time an order was made removing supervision and granting the mother access to the child every Monday, Wednesday and Friday from 10:00 a.m. to 7:00 p.m. The order also provided that if the father was out of the jurisdiction for more than 24 hours, the child shall be placed in the mother’s care pending his return. [ 41 ] Ms.

Doekaran, who was not counsel for the mother until late August 2018, built her trial case to a large extent around the narrative that the father abused the mother and then lied to the court to obtain a custody order which he then used as a continuation of the abusive behavior by denying the mother access. The evidence does not support that theory. [ 42 ] There is no doubt that the mother was the child’s primary caregiver until December 22, 2017. There is also no doubt that the father did not mislead the court.

Justice Zisman was aware that the mother’s planned trip was said to be for a holiday and she was aware that the police had located the mother and child in Mississauga on December 20. She was concerned that the mother had the motivation and ability to leave the country and she simply wanted to ensure that the child remained in Ontario until decisions about parenting were made. The without notice motion to court would not have been brought, or if it had been brought, it would not likely have succeeded, had the mother simply told the father that she was leaving him and she was staying in Peel.

She could have relayed that message directly by text or indirectly through her father. At that point, an agreement could have been reached with respect to the father, his counsel or some third party keeping the mother’s passport while a time sharing agreement was negotiated. [ 43 ] To be fair to the mother she stated that the father threatened her over the phone. She had no obligation to stay at the PGM’s. She had a right to go to a shelter.

If the shelter personnel told her to ignore all contact from the father then she may have some right to think she was badly advised as the failure to respond for two days led to the motion. At the end of the day though, it was the mother’s judgment to not respond and she is responsible for the consequences of that decision. Access from December 22 to May 16 [ 44 ] The father was very emotional when he testified that his year old son was brought to him on December 22 in the back of a police car.

He stated that he had not gone to court with any expectation that the police would physically take the child from the mother. In fact, throughout the trial, the father consistently took the position that he did not want the child to see the police involved in any interaction between his parents. [ 45 ] On December 28, the parties agreed that the MGF should be the supervisor. The mother stated that she moved into the MGF’s home after about two weeks in the shelter but she moved out to live with a cousin by March 2018.

The relationship between mother and the MGF and the father and the MGF was not fully explained by the evidence. The father said he was the one who proposed the MGF as supervisor. Yet when the MGF went to pick up the child, the father insisted on looking into the car to see if the MGF had installed the car seat correctly. The MGF presumably feeling insulted, denied the request, words were exchanged and a scuffle ensued. The father went to the police station and that report was filed in court.

The police declined to lay charges. [ 46 ] With this incident and the MGF’s involvement in the report to the PCAS in November 2017, one can see why the father and MGF do not get along. Yet the father also gave evidence that the MGF is the only grandfather Athan has, so he arranges for Athan to visit with him fairly regularly. Communication regarding care of the child [ 47 ] The mother said that the father’s controlling and demeaning behavior could be observed from the numerous texts that he sent her whenever she had access. The messages contained very detailed comments as to what Athan must eat when with her.

If she did not immediately respond, the father texted her to ask what the child ate. The mother said her son was just a baby and she knew what to do. She said that she did not ask the father what Athan did while in his care.

[ 48 ] The mother also said that the father also made access exchanges very uncomfortable. She said she just wanted to exchange without comment. She said that the father or PGM always had something that they wanted to say to her. There were comments about a scrape or a rash or some other issue. She said that it was these comments, which felt to her like accusations, that caused her to feel that it was necessary to video the exchanges. She said when the father saw she was recording, he did not say anything to her.

Child’s attendances at hospital [ 49 ] There was a considerable amount of evidence led by both parties as to all of the details surrounding Athan being taken to hospital for a febrile seizure on March 2, 2018. When Athan was with his mother that day, she noticed he was developing a fever and she gave him Tylenol and a teething medication known as Camilia. When she exchanged the child that evening, she told the father of the fever and the treatment. Athan became more ill and developed a high fever. Rather than calling an ambulance, the father drove him to the hospital.

Prior to so doing, he texted the mother and asked about the dosages of Tylenol and Camilia. She did not respond. The father became frantic and sent more texts demanding the information. It was not until he told the mother that the emergency room doctor must have the dosages that the mother responded. The mother said she did not respond immediately because she thought it was another example of the father trying to find fault with her care of their son. She said once he told her it was an emergency, she immediately responded, and then attended at the hospital. Both parents spoke to the doctor.

Later the father blamed the mother for the child’s seizure and said that the doctor told him that child became fevered because he was given Camilia. The mother denied that the doctor told them that and said that the emergency room record did not mention Camilia. The mother said that she used Camilia on doctor’s advice in SK when the child was teething. [ 50 ] The child was prescribed Amoxycillin and the father took him back to his home. His-temperature went up again and he developed hives. The father took him back to the hospital but did not contact the mother until the next day.

The mother was very upset and defensive about the late contact. She was right in saying that the father should have contacted her from the emergency department (the father said he forgot his phone). The mother was wrong to note that the hives issue arose only at the father’s home. When a child is ill, the parents should only be focused on the health of the child not making an issue of who the caregiver was when the illness or problem developed. [ 51 ] The March 2nd incident must have been frightening for the father as he had a very sick child and he felt helpless.

The mother should have responded immediately with all of the dosage information that the father sought. The mother’s excuse- that she did not know the child was having a seizure when the father asked about dosages- is only understandable in that there was a pattern of the father looking to find fault with the mother and she was tired of being questioned. I do not find that the mother was negligent in her care of Athan. Children can develop fevers quickly and there is no medical evidence that giving the Camilia worsened the situation. She did tell the father about the fever and the remedy.

She felt that the father was being accusatory in his demanding messages. Once she knew Athan was in hospital, she immediately attended. Mother’s move to an apartment [ 52 ] In March 2018, the mother moved from the MGF home to a basement apartment of a cousin who lived in Toronto. This was around the same time that she obtained a job working nights as a shipper for Amazon. She lived there until she was able to obtain her current two bedroom apartment in Brampton in June 2018.

The father testified that the mother did not advise him, or his counsel, of her move from the shelter to the MGF and from the MGF to the cousin’s home and then to the apartment. He also said that despite requests, she failed to advise him when she obtained employment. A theme of the father throughout the trial was the mother’s failure to keep him apprised of important information regarding herself and the child. [ 53 ] The mother brought a motion for expanded access that was returnable on May 16, 2018. The parties consented to an order that remained in place until trial.

At that time, the mother was still working nights on weekdays. By June 23, her access was as follows; Week one: Monday from 10:00 a.m. to 5:30 p.m. Wednesday from 10:00 a.m. to 7:00 p.m. Thursday from 10:00 a.m. to 5:30 p.m. and Saturday from 11:30 a.m. to Sunday at 5:30 p.m. Week two: Wednesday from 10:00 a.m. to 7:00 p.m. Thursday from 10:00 a.m. to 5:30 p.m. Pre-trial access requests [ 54 ] When this matter was being organized for trial, the mother recognized that she could not present a custody plan when she was working nights on weekdays and living alone.

She left her job at Amazon and after a brief period of unemployment obtained a new position. She initially said that she worked for National Logistics and as will be set out below, she said she was working on September 12, 2018. She then provided a letter from the People Store Staffing Solutions Inc. dated October 18, 2018 that stated that her employment began October 9, 2018 and that she worked from 7:30 a.m. to 3:30 p.m. on a full time basis. [ 55 ] The mother told the father that she had daytime hours on September 12, 2018. She asked the father for overnight access.

He did not believe that she had the new hours and asked for proof. Inexplicably the mother did not initially provide any information. She then

produced a letter from her employer. The mother’s evidence regarding her employment and income was inconsistent. Part of the problem was her failure to make updated financial disclosure as is set out below. Ultimately at trial she provided pay statements for October, 2018 and January 2019 which showed that she only worked 16-20 hours a week. The mother said that her employer was very flexible with her hours and let her make up time on weekends if she had child related responsibilities during her work hours. Her employer attended at the trial but was not called as a witness. [ 56 ] The mother’s position was that it was totally unreasonable for the father not to change the access

schedule once she changed her employment. On the surface there is merit to that claim. The father took the position at trial that the May 16 order only gave the mother one overnight in a 14 day period because she worked nights. Once she no longer worked nights it made perfect sense to renegotiate the access terms. The father never had any real concern with the mother’s ability to parent.

If the mother worked 7:30 to 3:30 p.m. she could only have access from 4:00 p.m. to 5:30 p.m. on Mondays and Thursdays and from 4:00 p.m. to 7 p.m. on Wednesdays. [ 57 ] The effect of the mother’s new job was the exact opposite of what she had hoped for. She wanted to be available for overnight time with her son and to share time equally with the father now that they were both working all day on weekdays. The result was that her daytime work hours made her unavailable for access during the times set out in the order.

The father initially agreed to some extended visits and then through counsel deferred any request to a

schedule change until the mother provided written confirmation of her work hours. As this matter drew closer to the winter trial sittings, the father took the position that the parties should just comply with the order and leave any possible changes for trial. November 6-20, 2018 [ 58 ] This matter was scheduled to be tried in the fall sittings of this court in late October/November. When the matter was not reached, the conflict between the parties escalated dramatically.

With few exceptions neither party was prepared to give the other any additional time with Athan or agree to anything the other suggested. [ 59 ] By then, the mother was well pre-disposed to see anything the father did as a means to control and dominate her. She already saw him as a very clever and manipulative.

The response to her access requests in November and early December confirmed her view that the father would make every request difficult and force her to go to her lawyer to get every half hour of additional time. [ 60 ] One example that the mother gave was her request for access on Diwali which was Tuesday November 6. The father said he agreed to this special access even though it was on his day with the child. The mother noted that she asked for 4:00-8:00 p.m. and the father said no and countered with 4:00-7:30 p.m. and he was adamant about that.

She then contacted her lawyer, a motion was brought and the parties finally agreed on the 4:00-8:00 p.m. that she originally requested. The mother viewed this exchange as the father fighting over every half hour. The father’s view was that he agreed to special access time and he felt that 7:30 p.m. was a reasonable return time for a two year old child. This was a bad example of access frustration and the fact that the mother’s counsel prepared a motion over the issue showed poor judgment on her part.

This was the opening salvo in what was to be a war over pre-trial access. [ 61 ] The mother said that the father knew that the MGM and the maternal great aunt were coming to Brampton from Trinidad for the scheduled trial. They arrived on November 7 and stayed for six weeks. The mother said that in all that time she only received 2 extra days of access and that the father was deceitful and manipulative throughout. [ 62 ] The period from November 11 to November 20 was covered extensively by both parties in their evidence.

The mother noted the terms of the May 16, 2018 order that provided that, if the father was not at home for a period for more than 48 hours during his scheduled access time, Athan should be with the mother. [ 63 ] The father had a business trip to NYC to get ready for the launch of his company’s showroom in Manhattan. He said the trip was scheduled for 2 days on his time with Athan. As he did not expect to be away more than 48 hours he did not inform the mother that he would be out of the country. If there was any good faith between the parties, the father could have used this trip and his busy business

schedule to offer the mother some extended time when her mother and the maternal aunt were visiting. He not only did not do this but he breached the court order, mislead the mother and involved the PGM and the paternal aunt in the deception. [ 64 ] Wisely, Ms. Freedman had the father apologize profusely for his egregious conduct and he fully addressed what happened in his direct evidence. The father stated that he intended to go to NYC from November 11-12, then return to Toronto and then go back to NYC when the mother had time with the child.

He described, in great detail, the business emergency that required him to stay in NYC for 9 straight days. What made his actions particularly troubling was that when the mother asked for more time with Athan during the MGM’s visit, the father texted her from NYC and told her that she would be breaching a court order if she over held the child. The mother, assuming that he was in Brampton, dropped the child off to the PGM.

She was curious that the father was not home to receive Athan but the PGM, complicit in the father’s deception, told the mother that he had “stepped out”. [ 65 ] The father did not inform his lawyer that he had been away for 9 straight days and this put Ms. Freedman in the position of providing misleading information to Ms. Deokaran. The mother had Athan with her on Thursday November 15 when she was supposed to return him to the father. She refused to return the child unless she knew the father was actually home. In a very effective cross- examination, Ms.

Deokaran put it to the father that he tried to deceive the mother. He had texted the mother on November 15 to tell her that if she did not drop the child off that day she would be in breach of a court order and it would be reported. When pressed on where he sent the text from the father tried to dodge the question. Finally he conceded to the fact that he “may have sent it from NYC”. He was then asked if he was trying to make it look like the mother was in the wrong. After a very long pause he finally said “yes”. [ 66 ] The father did not actually return to Brampton until November 17.

Scrambling to try and undo the damage, the father offered to let the mother keep the child for some limited make-up time. The mother was not satisfied with the make-up time offer. While the father conceded at trial that he should have told the mother that he was detained in NYC, the impression left was that the father only admitted fault because he got caught and he only offered make up time due to the advice of counsel. [ 67 ] The parties filed many exhibits detailing their interaction in this pre-trial period. Taken as a whole, the texts and correspondence

exchanged showed the father to be very detail oriented and often frustrated with the mother’s refusal or failure to respond in kind. The mother was initially reluctant to engage in any communication with the father and it appeared that she took a passive/aggressive approach knowing that this would irritate the father whom she considered controlling. The mother’s texts became more aggressive in nature though after September 2018. [ 68 ] Ms. Deokaran’s communication with Ms. Freedman is concerning.

In her letter of December 18, 2018, she stated the following; With respect to my email sent to you at 11:57 a.m. this morning please do not mischaracterize my email. I am not attacking your character, I am simply highlighting to the court (as that email and this letter will be provided to the Trial Judge) that you have and continue to act unethically. The following is the evidence I rely upon in support of my position: 1) You misrepresented information to the judiciary in Order to bring an ex-parte Motion in the jurisdiction of your choice …. (three other examples were given) You Ms.

Freedman (much like your client) may believe that your unethical behavior serves your client’s case but I can assure you it will only hurt your client’s case. [ 69 ] Ms. Freedman asked the mother whether she endorsed her counsel’s tone and comments and after an awkward pause the mother denied that the communication was inappropriate. I did not really expect her to do otherwise. She was in the midst of a custody trial and she did not want to undermine her own lawyer. I could not help but notice though that the mother’s communication became more aggressive and accusatory after Ms. Deokaran became her counsel.

Athan’s birthday access [ 70 ] With the above noted dynamics in play, the access situation turned from bad to worse. With the MGM still visiting, the mother asked for extra time around Athan’s second birthday. She proposed having Athan from Tuesday November 27 to Saturday December 1 at noon. The father denied the Tuesday time. He said she could have Athan from her usual Wednesday pick up at 10:00 a.m. to Friday morning. The father said that he had a family dinner planned on the Friday.

He then agreed to change his Friday plans but insisted the child be returned at 8:00 a.m. on the Saturday morning because he had scheduled a family breakfast. The mother’s evidence was that she thought that the father was intentionally throwing up roadblocks to a little extra time with the MGP and maternal aunt who lived so far away and who were about to go home on December 1. She said the father’s rigid position meant that she ended up with one additional access day. She was particularly upset when at the 8:00 a.m. return, she was criticized for not giving the child breakfast.

She said that convinced her that the father never had a family breakfast planned and it was just an excuse to have her return Athan to the father at a time that was earlier than she proposed. The pre-school issue [ 71 ] Both parents thought in the fall of 2018 that Athan should be registered in a pre-school program. The father, always the more organized of the two, sent the mother an email in October 2018 with a short list of three proposed pre-school programs. The mother did not respond. At trial, the father said he had put a lot of time and energy into finding just the right program for Athan.

He had taken his two year old son with him to some pre-schools to see if they were a good fit for him. He seemed to think that Athan’s reactions to the teachers and other children at the centre would somehow assist him with his decision. The mother said that she also looked at daycare or pre-school options. In fact, one of the places she looked at favourably in the fall of 2018 was a place on the father’s short list.

The mother did not tell the father anything about her intentions and he did not believe that she even looked at pre-school options. [ 72 ] The mother said her research told her that a 2 year old child should be eased into pre-school with only a couple of days a week. While that may be true, both parents soon learned that child care places are in such demand that no centre can accommodate less than full time schedules. The mother had a motivation for moving slowly on child care.

She had the flexibility at her new job to leave early and therefore be able to continue to spend weekday time directly with Athan. [ 73 ] The father was highly motivated to have Athan in a pre-school. He was very focused on education. He had even turned his mind to the type of elementary school that his son might attend. He preferred Brampton Christian School, even though both sides of the family are Hindu, because he was impressed with the knowledge of the Grade 12 students he met when he visited the school. The father has a busy business career.

The father wanted to have Athan with him on most weekdays (he proposed that the mother have Wednesday after daycare to Thursday return to daycare). It suited the father to have the child in full time daycare as he would then have the child cared for when he had to work or travel. [ 74 ] Given that the parties agreed that the child should be in daycare and given that they may have even had the same school on their respective lists, this should not have been a difficult parental decision.

It became a disaster. [ 75 ] The father intended to get on a waiting list for one pre-school when he learned that there was a vacancy in another school that he had not visited. He decided to register in the Songbirds Montessori School as he had visited another Songbirds that had no space available and he liked it. He said that he learned of the vacancy on December 28. He registered Athan to begin at the end of the winter break on January 7. The registration was only conditional on providing the immunization documents. He told the mother on Friday January 4 that Athan would be attending on Monday January 7.

When he registered the child, he did not mention to Songbirds that according to a court order the mother had Athan with her on Mondays, Wednesdays and Thursday during the week. Had the father been prepared to change the access

schedule in October when the mother obtained a day job, this would not likely have posed a problem. His failure to do so put him in a position where he had to register the child for 3 out of 5 days on the mother’s time. [ 76 ] The mother is not without fault on the pre-school issue. She failed to respond to the father’s early email about prospective centers. She allegedly researched pre-schools herself although there appears to be no written record of that prior to trial. She stated that she thought it was in Athan’s best interests to be in a pre-school and she knew that spots were difficult to obtain.

Nevertheless, when he was registered at Songbirds, she did everything possible to undermine the placement, solely because it was the father who had taken the

initiative to find a place and register the child. She did receive short notice of the actual pre-school registration. On the other hand, it occurred over the winter break when counsel were not easily available and, for reasons set out below, at a time when she knew that the father could not communicate directly with her. [ 77 ] Rather than being pleased that her son had been accepted into a pre-school with a good reputation that was close to their respective homes, the mother was very upset. She insisted on taking Athan out of the school during her access periods.

Her ability to do that played into the father’s doubts as to whether she was actually working on a full time basis. The mother did call the school to speak to the teachers though she was furious when the father did not advise her about the parent teacher meeting (He said as the school had her contact information and he could not contact her directly and he just assumed that the school would notify her). [ 78 ] Notwithstanding their inability to communicate directly, they could have contacted counsel and the parties should have been able to keep Athan at the pre-school by making adjustments to the access schedule.

Instead, their inability to trust the other meant that Athan was ultimately discharged from the pre-school after two weeks’ notice. Effective February 28, 2019, he had no child care available to him. The point is that, individually, these parents knew what they should do. The conflict between them though meant that Athan lost out on an opportunity for socialization and development. The alleged assault [ 79 ] The father asked the mother in late November 2018 to allow him to have Athan on December 8 for a Christmas party at his Hindu temple. There would be a visit from Santa and games for the children.

This was the mother’s weekend and she was slow to respond. Ultimately she agreed to bring the child from 12:00-4:00 p.m. The mother arrived at the temple a little after 1:00 p.m. with the child who had fallen asleep in the car. The father was upset that the mother held the child in her arms almost all the time. The child was put down to play some games but he was very upset about sitting with Santa. From the evidence of both parties, I conclude that the 2 year old child was sleepy because it was his normal nap time and he was overwhelmed by all the activity.

Clearly the father was very invested in the child having a good time and frustrated by the child’s lateness, sleepiness and general upset. The mother attended very reluctantly. It would have made much more sense for the mother to drop the child off at the temple where all the father’s family and friends were and pick the child up after the party. Instead she came inside and clutched on to the child. Athan may well have felt the tension between his two parents. [ 80 ] The mother tried to leave early with Athan. She alleged that when she did so, the father screamed at her and slapped her. The father denied it.

The mother called the police and they came to the temple. The mother attended at the police station and gave a statement. The father was charged with assault and a no contact order was put in place. This charge is still before the criminal courts. I draw no conclusions about what happened. It is necessary to note the alleged incident though as the release terms prevented the parties from communicating directly and it changed the exchanges for access.

Peel Children’s Aid Society [ 81 ] As is the protocol, the Peel Children’s Aid Society were notified after an alleged incident involving the police when a child was present. They spoke to the parties and closed their file. It was re-opened when Justice Parent made a report to them on December 17, 2018 about possible emotional harm to the child due to the level of conflict between the parents. The Society investigated and they did verify a risk of emotional harm due to parental conflict.

It is important to note that while this verification occurred after the December 8 charge it was not made as a direct result of that alleged incident. The Society had evidence as outlined herein of a pattern of conflict. [ 82 ] The Society recommended that each parent get counselling at the Family Education Centre. The mother followed up on this and at the time of trial she was attending their conflict resolution course. The mother takes the child to the program which is held on Monday evenings from 5:30-8:00 p.m. until early April.

The access time was adjusted in the midst of trial to allow the mother to drop off the child to the PGM at 9:00 a.m. on alternate Tuesday mornings instead of 5:30 p.m. on the Monday nights. [ 83 ] The mother noted that the father did not follow the Society’s recommendation for the place of counselling. He signed up for a different conflict resolution course run through the Family Enhancement Network on Saturdays. The father said the Society were aware of the course he was taking and were content with his choice.

Clearly both parties need assistance with conflict resolution and I find it immaterial that the father has chosen a different counselling service that might have initially been proposed. Access exchanges [ 84 ] After December 8, the mother took the position that all access exchanges must occur at a police station. The father initially refused to consider exchanging at the station. The father became very emotional when speaking of not wanting his son to see the police when his parents exchanged him.

The only other time the father lost his composure during the entire trial was when he spoke of the police apprehending Athan on December 22, 2017 at the shelter. The involvement of the police with his son was an emotional trigger for the father. As a general rule, parents should not use police resources for regular exchanges. In this high conflict matter, the mother’s insistence that exchanges be done inside a police station coupled with the father’s refusal to exchange this way resulted in the 2 year old child not seeing his mother over the Christmas period in 2018.

As noted above, there had been no access from December 22 to 28 in 2017 as well. Fortunately, as the disastrous December 8 Christmas party showed, Athan was too young to know the significance of the time when he did not see his mother. [ 85 ] I find that both parties are equally at fault for the failure of communication that led to access not occurring for Christmas 2018. Through counsel (not Ms. Freedman as she was on holiday) they argued over the exchange and the timing. When Ms.

Freedman was not available to give the father advice he could not seem to make a reasonable decision with the mother. [ 86 ] Both parties were videotaping access exchanges. It is not clear when that began. Neither party sought to introduce video or audio taping at the trial management conference so it may have begun after the trial was not reached in the fall. In any event, I refused to admit any of the tapes on public policy grounds.

[ 87 ] The videotaping led to the mother alleging that the father breached the terms of his recognizance when the mother went to pick up the child at his home. The mother brought a video to the police, after an exchange at the home in January, and alleged that the father had breached his bail because he was hiding behind the door. She said she recognized his hands reaching around the door holding a phone and videoing.

The police spoke to the father and he proved to their satisfaction that the hands visible in the video were not his. [ 88 ] After the criminal charge, the mother picked up Athan from the PGM’s home where the father resided, and she dropped off to the PGM at the police station with the father not to be present. The PGM alleged that the mother would hand the child to her in the police station and then follow her to her car and video her the entire time. The mother alleged that after exchanging the child inside the police station, the PGM would approach her just outside and swear in front of the child.

The MGM and maternal aunt said the same thing when they testified on the last day of the trial. Their allegations were almost identical and they claimed that the PGM was very aggressive with them in an exchange that occurred less than an hour before they were to give their evidence. As there was an exclusion of witnesses order and the PGM had already given evidence that she never confronted the mother or her family, it was very suspicious that the MGM and maternal aunt gave identical evidence of a confrontation. Trial allegations [ 89 ] By the time of trial, everything was contentious. While Ms.

Freedman referred to 8 motions served upon her between November and the trial, Ms. Deokaran alleged that there were a number of breaches of the bail (though no charges resulted). At the trial, Ms. Deokaran alleged that the father was looking at the mother in an aggressive way-the parties were at opposite ends of parallel counsel tables with the lawyers, stacks of paper and a lectern in between. I did not see the looks but cautioned both parties to look forward and not sideways at each other. When the mother began her testimony, Ms.

Deokaran said that the father was staring at the mother in an attempt to intimidate her. I did not see that. She asked that he be excluded from the court during her testimony. I would not make that order. After an exchange, Ms. Freedman said she was prepared to have her client turn his chair and look to the back of the court if it would help the evidence go in uninterrupted by the other counsel’s comments.

The father was quite prepared to follow his counsel’s suggestions and the evidence continued. [ 90 ] It is always possible that a judge could miss a glance here, or a glare there, but to put this in context, with the exception of his tears when talking about his son and the police, the father kept his emotions in check throughout this 8 day trial. There were no emotional reactions toward the mother or her counsel at any time.

I could not help but think that the allegations regarding the exchange of the child immediately before court, and the allegations of intimidation at court, were contrived to fit the mother’s narrative that she was frightened of her controlling and abusive ex-spouse. If the allegations were part of some twisted trial strategy, they were completely counter-productive as they cast some doubt on the veracity of the mother’s allegations generally. The OCL report [ 91 ] The OCL were asked to investigate by the order made on January 25, 2018. Ms.

Jaqueline Pullan was assigned on March 5 to conduct a report pursuant to s. 112 of the Courts of Justice Act . Ms. Pullan has been a social worker for about 20 years and has been on the panel of the OCL for about five years. [ 92 ] She completed her investigation and held a disclosure meeting on May 23. She delivered her final report on May 30, 2018. From the information that she received, she came to the following conclusions at p. 19 of her report; During the course of this investigation, there has been no evidence provided that Ms.

Singh was planning to leave the country or that she has any mental health challenges. She has been the child’s primary care giver since birth until these recent chain of events and she had relocated; albeit secretly, to a local shelter to escape what she described was an abusive relationship. Mr. Singh is seeking Sole custody of Athan with Sole decision making is supported as long as she signs necessary consent forms for Mr. Singh to receive all information regarding Athan’s health, education, religion and general welfare independently. (sic) Ms.

Singh has been Athan’s primary care giver since birth with the exception of when he was abruptly removed from her care by a court order and placed with his father temporarily for the past five months. Ms. Singh’s story has been consistent with regards to experiencing domestic violence from the family’s time in Saskatchewan to Ontario. There is history of a power imbalance between the couple and Ms. Singh talked with several service providers about her story which is well documented in their records. There are no child protection concerns with Ms. Singh or Mr.

Singh’s mental health although there were concerns about Athan’s exposure to the ongoing conflict. There are no allegations of substance abuse or misuse by Mr Singh or Ms. Singh. Although Mr. Singh reported that he will support a shared access

schedule with Ms. Singh he sought an emergency motion via the court to have the child removed to his care, and after that order was made he attempted to block her access with Athan, denying her overnights until recently. Athan needs both his mother and his father to care for him and an equally shared access

schedule in Athan’s best interests is supported while both parties live in Ontario. If one of the parents moves access will need to change. [ 93 ] The report recommended that the mother have sole custody, that the parties share time with the child on a 2-2-3 rotation, and that the parties share holidays equally. Ms. Pullan also recommended that both parents obtain counselling and that they use a shared parenting app like family wizard or google calendars.

The mother accepted all of the recommendations and the father filed a dispute. [ 94 ] At the time of her investigation the father’s position was that he wanted custody of Athan and he planned to move to NYC. He proposed that he would bring Athan back to Brampton at least once a month to visit with his mother. The mother’s position was that she wanted custody of Athan and she was prepared to share time equally with the father. [ 95 ] Ms. Pullan’s

summary of the situation and her report as to what each parent had to say was similar to the evidence given at the trial by the parties, with respect to events up to that point. She noted in her oral evidence, as she did in her report, that both parents have the ability to care for Athan in a loving and safe way. The main issue was the conflict between them and what she referred to as a power imbalance. [ 96 ] Ms. Pullan said that the mother talked a lot about domestic violence and the impact it had upon the ability of the parties to

communicate. She said the mother was seeking sole custody as she felt that she could not make decisions with the father. [ 97 ] The mother told Ms. Pullan that she was hesitant about the relationship. Where she was not wanting to get into a serious relationship, he was certain that he wanted to be with her. She said the father was good to her in the period leading up to their marriage. The mother told Ms. Pullan that after the marriage things changed.

The father became verbally abusive and then became physically abusive. [ 98 ] The mother said that after she was laid off from her job she thought about going back to Trinidad. The mother told the clinical investigator that she felt controlled and isolated by the father. She spoke of reaching out to Envision counselling services and Ms. Pullan reviewed the notes from the counsellor. [ 99 ] Ms. Pullan said that the mother told her that the father threatened her life over the phone on December 18, 2017 and that is why she went to the Interim Place shelter. Ms.

Pullan said that despite the fact that the child had been in her primary care since his birth, the father was able to get a court order on December 22, 2017 for the police to apprehend Athan from the mother. The investigator did not have all of the background to that decision that emerged at trial.

In the spring of 2018, when the interviews were conducted, the mother’s biggest worry was that the father would move to NYC and she would not be able to have access to Athan. [ 100 ] The clinical investigator said that the father’s greatest concern about the mother was his worry that that she would take the child to Trinidad. She said that he also expressed concern about the mother’s mental health, yet there was no evidence to support such concerns. [ 101 ] Ms. Pullan said that she recommended sole custody to the mother based upon all of the evidence.

She felt that the father had so much control throughout the relationship. She referenced phrases by the father such as “I will allow her to do this”. She said that the father felt that Athan’s life would be based upon his decision making. Ms. Pullan said in her testimony that she felt “pretty strongly” that the mother needed custody as otherwise the father would not take her views into consideration. [ 102 ] Ms. Freedman’s cross-examination focused on the sources of information that Ms. Pullan relied upon.

The investigator said that she did contact all professionals involved with the father such as the physicians and counsellors. She said that parties often want the investigator to speak with their family members and she often does not find this helpful as their comments usually mirror the comments of the parent who is their family member. Ms. Freedman asked why Ms. Pullan did not speak with the PGM whom the mother had been living with for about six weeks before she went to the shelter. She said that she was prepared to seek consent to talk to the PGM and to the MGF.

She noted that other than the MGF, the mother had no family support in the Greater Toronto Area (“GTA”) to interview. The mother did not provide consent for her to speak to the MGF. Based upon that and to ensure balance, she did not interview the PGM either. [ 103 ] Ms. Freedman quite effectively pointed out that the mother has stated in this litigation that the MGF is the mother’s main source of family support in the GTA. He was the one who contacted the PCAS in November 2017 to report that his daughter and grandson were living in an abusive relationship.

It was the MGF who had helped the mother to move to the women’s shelter and two weeks later into his home until she could find her own apartment. It was the MGF who supervised the mother’s access with Athan from December 28, 2017 to January 25, 2018. Despite what appeared to be his significant role, not only in the mother’s life but in the child’s life, shortly before the OCL investigation, the mother did not want him interviewed. Ms. Freedman quite rightly asked Ms. Pullan if that seemed a little unusual to her and she clearly caught the clinical investigator on the defensive.

She said that the mother told her that she was somewhat estranged from her father and so she respected her wish not to talk to him. [ 104 ] I agree with Ms. Pullan that an OCL investigator must be free to determine who to interview and when. I also agree that family member’s evidence can be quite predictable. However, when the mother was seeking custody of the child and she refused to grant consent for her main support person to be interviewed, that should raise some concern. I find that it would have been helpful if Ms.

Pullan had interviewed both the PGM and the MGF as the mother and child had lived with one or the other, but for the two weeks when she was in the shelter, in the period between the separation and her appointment as the clinical investigator. [ 105 ] Ms. Freedman also asked Ms. Pullan about the reason for her conclusion that there was a clear power imbalance in the couple’s relationship. Ms. Freedman suggested that the investigator had only relied upon self-reported abuse by the mother. Ms.

Pullan said that her finding of a power imbalance was not based upon the party’s statements but it was grounded in collateral information from the professionals involved. Ms. Pullan relied upon the Interim Place shelter’s danger assessment that resulted in a score of severe danger of abuse. Ms. Pullan did not have an opportunity to talk to anyone at the shelter who had actually spoken to the mother. The assessment was based upon a weighted scoring of answers to questions on a form. The mother answered “yes” to physical, verbal, sexual, emotional, financial and other forms of abuse.

She even said that she was worried that the father would harm the child. There was no credible evidence for anything other than possible verbal and emotional abuse and one incident of physical abuse when she was pregnant. [ 106 ] Ms. Pullan said it was somewhat of a factor in her view of the father as an unreasonable parent that he was unwilling to agree to the mother having overnight time with the child. It was also clear from her evidence and her report that she felt that there was no evidence that the mother planned to leave the country with the child.

Given this, she may have thought that the father’s action in obtaining a custody order based upon her being a flight risk was the move of a controlling parent who wanted to gain the upper hand in a custody battle. [ 107 ] It may be that the mother has no intention of taking Athan to Trinidad on a permanent basis. However, it is easier to see that now, or even in the spring of 2018, than it was to see it on December 22, 2017. I appreciate that an OCL investigator has limited time for a report and that she does not have access to all the facts that may emerge at trial.

As noted above Justice Zisman did have evidence to consider the mother a flight risk and she, not the father, was the one to determine that a custody order was required to mitigate that risk. [ 108 ] The basis of Ms. Pullan’s finding that the mother had to have custody to offset the controlling behavior of the father was somewhat undermined by the details that emerged at the trial as to the strength of the collateral information upon which she relied.

The simple fact is that there was no evidence, other than the mother’s own statements to collaterals, and the evidence of the MGM and maternal aunt, that the mother was being abused and controlled by the father. I find that her contemporaneous statements to Envision

counselling support a finding that the mother was very unhappy, that the father was not nearly as supportive as she wanted him to be and that he verbally lashed out at her from time to time. I do not discount the incident that caused her to call 911. Any physical assault upon a vulnerable pregnant women is very concerning. [ 109 ] I am prepared to give some deference to the views formed by Ms. Pullan about the parties, from her in depth interviews with them.

I have no doubt that she has developed good interview skills over the past 20 years and is able to make some judgments from the way people express themselves. However, I cannot accept that a review of the collateral information could be the basis for a finding of such a serious power imbalance that it must lead to a redressing of that imbalance by a custody order. The Father’s plan [ 110 ] The father set out a very detailed parenting plan which was filed as an exhibit. Briefly stated, he says he gets up at 7:00 a.m. and gives Athan his breakfast. He works from his home office.

The PGM watches Athan when he is working. Periodically, during the day the father stated that he would come out to see Athan or give him a snack. He also said that Athan had his own desk in his home office so that everyone in his global company knows Athan as they see him on video calls. [ 111 ] The father said that he schedules his day so he can spend time with Athan. He always has lunch with him. He then gives him a bath before he puts him down for his afternoon nap. He said that when Athan gets up at about 3:30 p.m., he finishes his work day.

The father said that he feeds Athan his supper and tries to get him into bed by 7:00 p.m. He conceded that the PGM does most of the cooking and he estimated that she cared for Athan for 2-3 hours during the day. The father said that he has some control over his work

schedule and he maximizes his work time when Athan is with his mother. [ 112 ] The father sought an order that Athan primarily reside with him and be in his sole custody. He proposed that the mother have regular access every Wednesday from after pre-school with a return to pre-school on Thursday morning. He also proposed that she have Athan every other Friday after pre-school to Monday return to pre-school. On non-pre-school days, he said that the mother could exchange Athan with the PGM and/or the paternal aunt at the home that he shared with them.

The Mother’s plan [ 113 ] The mother stated that since last June she had resided in a two bedroom apartment where Athan will have his own room. The mother said that Athan should be registered in a daycare or pre-school and she had found two options near her home . She had already determined that Athan could attend the Ross Drive public school . There was an Alliance Francais program that Athan could attend twice weekly once he is 3 years old. [ 114 ] The mother said that she had registered Athan in swimming last year. She has him in a sports activity program currently.

She planned to take Athan to her Hindu temple every Sunday. She said she had grown up in a multi-cultural background and Athan would have that opportunity as well. The mother noted that she had the support of the MGF and her many cousins in the GTA. [ 115 ] The mother said that she had always scheduled Athan’s medical appointments. She contacted the father whenever she scheduled an appointment. She was the parent responsible for ensuring that Athan had his immunizations. She wanted Athan to continue to see Dr. Ali.

ANALYSIS OF THE CUSTODY ISSUE [ 116 ] I must begin my analysis by reviewing the best interests factors set out in s. 24(2) of the CLRA . I will only refer to those sub- sections that are relevant to my factual findings. I will also address s. 24 (4). (a) 24 (2)(

a) the love, affection and emotional ties between the child and a parent [ 117 ] I find that the child is well bonded to both parents. Both parents clearly love their son and it is reciprocated. Despite the high level of conflict in this litigation, to this point Athan has not actually suffered any emotional harm. The OCL report showed that he was as comfortable with one parent as he is with the other. He has a greater opportunity to spend time with his paternal grandmother but he knows his maternal grandfather and his relatives in Trinidad. (a) (

b) the length of time the child has lived in a stable home environment; [ 118 ] This factor is one of the main pillars that the father relies upon to support a custody order in his favour. He emphasized the status quo that had developed since the December 22, 2017 custody order. After he made the decision not to move to NYC, he made arrangements to work out of his home with some commuting to Toronto. The father argued that the mother’s life was chaotic. He noted that she had lived in four places since December 22 and she did not notify him of any of the changes.

He raised the issue of her lack of supports and the fact that it was him, not the mother, who ensured that Athan saw the MGF on a regular basis. [ 119 ] Ms. Pullan, the clinical investigator noted that the mother had been the child’s primary parent until December 22. The father admitted this but he said that was only because he had to work while the mother was home with the child. The mother said that the father only established the status quo by virtue of misleading the court to get a custody order.

I have found that the father did not mislead the court and there were reasons why the mother did not have overnight access initially. I also find that the mother’s living arrangements do not show instability at all. The mother went to a shelter, then to the MGF, then to the basement apartment of a cousin and then finally to her own two bedroom apartment.

She wanted to separate from the father but did not have the financial resources to immediately afford an apartment nor the family home to simply return to. [ 120 ] I have found that it would have been helpful to have heard from the MGF as to any support he could offer the mother. The mother’s evidence was that she got along well with him but not with his spouse. It is for that reason that the mother moved out of his

home to her cousin’s home. I find it is very unfortunate that the mother did not receive overnight access to Athan until June 23, 2018 when she obtained her own apartment. However, but for a gap between December 22 and December 28, the mother has had Athan with her for some time at least every third day. Athan has stayed with the mother in the same apartment since June 2018. [ 121 ] I find the fact that Athan has primarily been residing in the PGM’s home with the father and the paternal aunt for over a year to not be a significant factor in my decision. (a) (

c) the ability and willingness to provide the child with guidance and education [ 122 ] The father also relied heavily on what he, in effect, said was his major strength and a major weakness of the mother. He said that he had a university education and would be focused on ensuring that Athan had every opportunity in life to succeed. He implied that the mother’s lack of formal education beyond high school in Trinidad meant that she would not be so well equipped to assist Athan. [ 123 ] The father also referred to his work ethic and his record of success in multi-tasking.

He could manage a company in different time zones and still ensure that Athan was well cared for by excellent organization and time management. He referred to the fact that he took the initiative to find and register Athan in pre-school and he had attended every doctor’s appointment that he was made aware of. [ 124 ] The mother said that before December 22, 2017, she was almost completely responsible for all of Athan’s needs. She had always taken care of his doctor’s appointments. She said the father demeaned her after the separation by assuming that she had not, or could not, take care of Athan’s needs.

He went to the doctor’s to see if the immunization records were there rather than just accepting that she took care of it. He sent her texts about what Athan should eat and wear. She said the father was very controlling and wa

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