I. v. P., 2011 ONCJ 584

Milton Registry No. 412/08 DATE: 2011·IX·21 CITATION: I. v. P. , 2011 ONCJ 584 ONTARIO COURT OF JUSTICE BETWEEN: F.I., Applicant, — AND — S.P. and D.P., Respondent.

Before Justice Roselyn Zisman Heard on 2 May 2011: and 25-27 July 2011 Reasons for Judgment released on 21 September 2011 ACCESS TO CHILD — Form of order — Disclosure of child’s parentage to child — Natural father’s claim for access to daughter (now 11 years old, and who believed that stepfather was her real father) was opposed by mother and stepfather who resisted any idea of telling her about her parentage — Mother and stepfather picked psychiatrist to conduct assessment and to prepare report, with which choice natural father agreed — But when that assessor recommended detailed parenting plan for mother and stepfather to tell girl of her parentage in sensitive way with help of family therapist and also recommended that parent co-ordinator be chosen to help parties and girl in implementation of this parenting plan and with resolution of any issues that might arise, mother and stepfather started to level various attacks on assessor’s qualifications, experience, methodology, factual information and observations — At heart, mother preferred that girl never be told unless absolutely necessary to do so — Stepfather preferred that child not be told until she were between 18 to 20 years old when she might mature enough to handle this information — Court had evidence that natural father had considerable access to girl during first 8 years of her life as “uncle” figure and that he had actually lived in home of mother and stepfather for brief time, although court agreed with assessor that father’s testimony tended to idealize and exaggerated nature of his contact with girl whereas mother tended to minimize it in her evidence — Mother finally decided to terminate relationship, alleging that natural father was exploiting his desire to see girl in order to continue his obsessive relation with mother — Issue for court was whether it was in girl’s best interests: 1. to re-establish relationship with her natural father despite objections of her mother and stepfather whom she considered to be her father, or 2. to withhold truth of her circumstances and to deny her right to have access to her natural father and to permit her mother and stepfather to decide when, if ever, to reveal truth about her parentage.

In their trial management brief, mother and stepfather had listed several witnesses whom they had intended to call but, in the end, only they themselves (principally the mother) gave evidence, from which court drew adverse inference against them — They were given every opportunity to present contrary expert opinion to support challenges that they had levelled against assessor but, after failing to exploit that opportunity or to back up any of their claims against assessor with any evidence, court found that assessment was thorough, well-reasoned, clear and even-handed report, conducted within terms of retainer agreement — Court also found that natural father had to have been much more than “casual acquaintance” (as alleged by mother and stepfather), since it would be highly unlikely that he would otherwise have been allowed to live with family and to be invited to family dinners and gatherings, child’s soccer games, concerts or birthday parties — Mother must have trusted this man if he had been allowed to pick child up from day care or to take her, on his own, to local park, to shopping mall or to his office Christmas parties — Mother’s and stepfather’s belief that it would be virtually impossible for girl to find out about her parentage from someone else was totally unrealistic because it rested on questionable premise that only they and applicant natural father knew truth, whereas evidence suggested that other members of their extended family and even neighbour knew — Because mother and stepfather decided not to call these persons as witnesses, there was no way to test validity of their premise — Moreover, even though their belief that child should only be told about her parentage at age 18 to 20 years (or perhaps not at all) was sincere, it was contrary to only expert evidence on this issue before court — Assessor’s clinical experience was that most late adolescents and young adults who discovered some family secret were angry about deception and upset that delayed disclosure had deprived them of chance to have made their own choices whether to form relationship with such person — Court was sympathetic to mother’s and stepfather’s desire to cover up and forget what must have been embarrassing episode in their lives, but this solution, whether best for

them, did not serve best interests of child who had right to know truth — Natural father had shown interest and commitment to girl frombirth and had always wanted to be part of her life — He was prepared to abide by amount of access that assessor had recommended, eventhough it was much less than what he wanted because he recognized that slow and gradual re-introduction into her life was in her bestinterests — Unfortunately, court had no authority to make order requiring parents to retain family therapist to help them to tell girl of herparentage in sensitive way or to hire parent co-ordinator to help parties and girl in implementation of assessor’s parenting plan — Atbest, court could merely “recommend” adoption of assessor’s recommendations — Court therefore gave mother and stepfather 30 days toadvise court and natural father in writing whether they would accept court’s recommendation — If they failed or refused to do so, thennatural father could hire family therapist to help him with advising child of her parentage and with developing his parenting skills —Therapist was to have copy of court’s reasons and copy of assessment report and would host at least 2 sessions with natural father alone— After that, child would also attend session where natural father with therapist’s help would advise child of her parentage — Therapistwould thereafter supervise access between child and her father for 4 sessions — Parents would be required to make child available forthose sessions and to transport her to and from those sessions — Court set out detailed access

schedule that would then take effect. ACCESS TO CHILD — Form of order — Miscellaneous terms — Participation in counselling — Under Children’s Law Reform Act,court had no jurisdiction to order parties either to attend counselling or to retain services of family therapist or parent co-ordinator to helpin revealing to child truth about her parentage — Likewise, court had no power to delegate to any professional authority to determinewhen access should begin between child and person who would be revealed to her as her natural father.

ACCESS TO CHILD — General — Incidents of access — Participation in counselling — Under statutory power to make any order as“incident” of “right to custody or access”, courts have routinely made orders with provisions to deal with treatment (such as parent’senrolment in anger management, parenting classes or drug and alcohol treatment) or to ensure child’s safety and well being (such as banon physical discipline or on consumption of tobacco, alcohol or illegal drugs while caring for child) — But requiring mother andstepfather to attend counselling to help them to tell 11-year-old girl about her parentage and then requiring them to arrange counsellingfor child to help her in coping and facilitating re-integration of natural father into her life was much more subtle and court doubted thatstatutory power over incidents of access could be pushed that far — Arguably, such counselling could be ordered in so far as it might benecessary to ensure the child’s emotional well being, but court in this case declined to do so — Order that would compel mother andstepfather to face reality of child’s birth and force them to tell her truth about her parentage went far beyond “incident” of custody oraccess — Moreover, such order would be practicably unworkable and would almost certainly guarantee that any chance of re-establishing relationship between girl and natural father would be sabotaged.

STATUTES AND REGULATIONS CITED Children’s Law Reform Act, R.S.O. 1990, c. C-12 [as amended], subsection 24(2), clause 24(2)(

g) and

section 30. CASES CITED Abrego v. Moniz, 2006 ONCJ 500, 35 R.F.L. (6th) 460, [2006] O.J. No. 5167, 2006 Cars​well​Ont 8378 (Ont. C.J.). Butty v. Butty, , 168 A.C.W.S. (3d) 340, [2008] O.J. No. 2017, 2008 Cars​well​Ont 2918 (Ont. Fam. Ct.). Children’s Aid Society of Waterloo Region v. L. (K.A.) and L. (R.W.), 2010 ONCJ 80, 92 R.F.L. (6th) 363, [2010] O.J. No. 4157, 2010Cars​well​Ont 7373 (Ont. C.J.). Kaplanis v. Kaplanis, , 194 O.A.C. 106, 249 D.L.R. (4th) 620, 10 R.F.L. (6th) 373, [2005] O.J. No. 275, 2005 Cars​-well​Ont 266 (Ont. C.A.). Lindner v. Lindner, , [2006] O.J. No. 5810, 2006 Cars​well​Ont 9901 (Ont.

S.C.). Montgomery v. Montgomery (1992), (ON CA), 59 O.A.C. 19, 97 D.L.R. (4th) 437, 42 R.F.L. (3d) 349, [1992] O.J.No. 2299, 1992 Cars​well​Ont 295 (Ont. C.A.); permission to appeal to the Supreme Court of Canada denied at [1993] 3 S.C.R. vii, 157N.R. 348n, 65 O.A.C. 290n, 106 D.L.R. (4th) vii, 48 R.F.L. (3d) 232n, [1993] S.C.C.A. No. 65. Osmak-Bonk v. Bonk, 2007 ONCJ 330, 169 A.C.W.S. (3d) 1070, [2007] W.D.F.L. 3732, [2007] O.J. No. 2838, 2007 Cars​well​Ont 4622(Ont. C.J.). Reid v. Catalano, , 165 A.C.W.S. (3d) 108, [2008] O.J. No. 912, 2008 Cars​well​Ont 1268 (Ont. Fam. Ct.). Tang v.

Ryckman (1993), 38 A.C.W.S. (3d) 530, [1993] W.D.F.L. 520, [1993] O.J. No. 324, 1993 Cars​well​Ont 1686 (Ont. Gen. Div.). Young v. Young, [1993] 4 S.C.R. 3, 160 N.R. 1, 34 B.C.A.C. 161, 84 B.C.L.R. (2d) 1, 56 W.A.C. 161, [1993] 8 W.W.R. 513, 108 D.L.R.(4th) 193, 19 C.R.R. (2d) 4, 49 R.F.L. (3d) 117, , [1993] S.C.J. No. 112, 1993 Cars​well​BC 264.

Applicant natural father, F.I. ................................................................................ on his own behalf Respondent natural mother, S.P. ......................................................................... on her own behalf Respondent stepfather, D.P. ................................................................................. on his own behalf For previous proceedings, see I. v. P. and P., 2010 ONCJ 473, 193 A.C.W.S. (3d) 1201, [2010] O.J. No. 4501, 2010 Cars​well​Ont 8025(Ont. C.J.), per Justice Theo Wolder.

JUSTICE R. ZISMAN:— 1: INTRODUCTION [ 1 ] This trial concerned whether or not the applicant, F.I. should have access to his child, S.S.P., born on […] 2000 (hereinafter referred to as “S.”) and whether or not S. should be advised of her parentage.

S. has not been told that the applicant, not the respondent D.P., is in fact her father. 2: HISTORY OF PROCEEDINGS [ 2 ] The applicant commenced this application on 20 October 2008 seeking joint or shared custody, reasonable access on reasonable notice to the respondent, S.P., permitting him to make inquiries and to be given information about the health, education, and welfare of S. and a declaration that he is the father of S..

The applicant had been permitted contact to S. by the S.P. up to about 2008 when she terminated all contact. [ 3 ] The respondent, S.P., served and filed an answer opposing any joint or shared custody order with the applicant, acknowledged that the applicant was S.’s biological father and agreed that the applicant should have access and information regarding S. but that any court order would be a nullity without the participation of her husband, D.P., who was a necessary and proper party to the proceedings. [ 4 ] The applicant then amended his application to add D.P. as a respondent who he acknowledged has acted as a parent to S. since her birth. [ 5 ] D.P. never filed an answer.

However, subsequent to Mr. P.’s being added as a party, both respondents took the position that it was not in S.’s best interests to have any contact with the applicant and that she should not told about her parentage. [ 6 ] At the time, all parties were represented by counsel. There were several attendances before the first appearance clerk due to procedural irregularities. [ 7 ] At the case conference, on 29 May 2009, on consent of all three parties, an order was made, pursuant to

section 30 of the Children’s Law Reform Act , R.S.O. 1990, c. C-12, as amended, for an assessment report on issues of custody and whether an access arrangement between the applicant and S. was in her best interests. The parties agreed to appoint Dr. Raymond Morris, Ph.D. C.Psych., to conduct the assessment and prepare a report. [ 8 ] Unfortunately, Dr. Morris experienced a great deal of delay in completing his assessment. Justice Theo Wolder, the case management judge, directed that he would not hear any temporary motion for access by the applicant until Dr.

Morris released his report. [ 9 ] On 14 September 2010, Dr. Morris released his assessment report and developed and recommended a detailed parenting plan that required S. to be advised by both respondents of her parentage in a sensitive way with the assistance of a family therapist. He also recommended that a parent co-ordinator be retained to assist the parties and S. in the implementation of the parenting plan that he recommended and with the resolution of any issues that may arise. [ 10 ] On 30 September 2010, the applicant sought a temporary order for access on the basis of Dr. Morris’ assessment.

The respondents opposed any temporary order for access as that was the issue to be determined at trial. Justice Wolder agreed that the substantive issue to be determined at trial was whether S. should be advised as to her parentage and that the respondents should be given the opportunity to cross-examine Dr. Morris and present opposing expert evidence at a trial. He dismissed the applicant’s motion for access but ordered that the trial be expedited.

Justice Wolder deferred the issue of costs of this motion to the trial judge on the basis that the success of the respondents on the motion needed to be decided in the context of the success of the parties after a trial. [ 11 ] A trial management conference before me was held on 30 November 2010 by that time all parties were self represented. The conference was adjourned to permit the respondents time to reply to a request to admit. [ 12 ] At the further trial management conference held on 26 January 2011, it was agreed that the trial would commence on 21 May 2011 to accommodate Dr. Morris’

schedule and then continue for the week of 25 July 2011. [ 13 ] The respondents advised that they wished to file a letter from Hilary Freeman, a therapist. They were advised that they could not simply file a letter from Ms. Freeman and that she would have to be available as a witness to provide the applicant with the opportunity to cross-examine her. The respondents were provided with a timetable by which time they needed to advise the applicant if they intended to call Ms.

Freeman as a witness and if so, they were required to provide the applicant with either a report or letter summarizing her evidence. [ 14 ] At the commencement of the trial on 2 May 2011, the respondents had still not advised the applicant of their intentions with respect to calling Ms. Freeman as a witness and were given an extension of time to do so. At the continuation of the trial on 25 July 2011, the respondents advised they were not calling Ms.

Freeman as a witness. [ 15 ] The applicant’s trial management conference listed six witnesses whom he intended to call to substantiate his close relationship with S. — these included Ms. P.’s mother and her aunt. Although Ms. P.’s mother and her aunt were properly served with a summons, they did not attend the trial. Mr. I. advised that Ms. P.’s mother had called him recently and he was aware that she had suffered a minor stroke. He did not request an adjournment or that the court take any action with respect to these witnesses not attending court.

[ 16 ] The respondents’ trial management brief listed three witnesses whom they intended to call, not including Ms. Freeman and themselves. At the commencement of the trial, the respondents stated that they only intended to call Ms. P.’s sister and brother in- law as witnesses. After the respondents testified, they stated that they had decided not to call any further evidence. 3: POSITION OF THE APPLICANT [ 17 ] It was the applicant’s position at trial that he was in agreement with the recommendations and parenting plan proposed by Dr. Morris.

Therefore, he was no longer seeking joint or shared custody of S. and was content with a gradual process of reintegration and resumption of his relationship with S. under the auspices of a family therapist. [ 18 ] It was his position that the respondents had recommended Dr. Morris conduct an assessment and he had consented to their choice. Dr.

Morris was an experienced psychologist whose expert opinion had not been refuted by any contrary expert opinion and that his recommendations were in S.’s best interests. [ 19 ] He denied that he only wished to have a relationship with S. as a means to continue his relationship with Ms. P.. 4: POSITION OF THE RESPONDENTS [ 20 ] It was the respondents’ position that it was not in S.’s best interests to be told about her parentage. Ms. P.’s position was that, unless it became necessary to tell S. about her parentage, she should never be told. Mr.

P.’s position differed in that he felt S. should be told but not until she was between 18 to 20 years old when she was mature enough to handle the information. [ 21 ] It was the respondents’ position that it was not in S.’s best interests to have contact with the applicant because of his character, namely, that he had exhibited a pattern of coercion, intimidation and obsessive behaviour. Further, the respondents submitted that the applicant was now using the court system “to bully and control” their family. [ 22 ] It was the position of the respondents that Dr.

Morris’ assessment was not in S.’s best interests as the assessment process itself is flawed because it is not an exact science. They submitted that Dr. Morris treated this assessment as a typical divorce but that this situation was unique and that he failed to change his standard methodology. They submitted that, although Dr. Morris may be experienced, he did not know how to deal with this situation and sought outside advice from his colleagues, lawyers and even his wife. He did not do a thorough investigation of the background of the applicant or the nature of the relationship between the applicant and Ms. P..

They also submitted that the assessment was not culturally sensitive to Ms. P.’s background as an East Indian. [ 23 ] It was the position of the respondents that S. was a well adjusted child and that the status quo should not be disturbed. If she was told about her parentage, she would become confused and it would negatively impact on her image of her mother and there would be “a 100% probability” that the relationship between the respondents would end.

S. would therefore lose two full-time parents, would resent the applicant for causing her family to fall apart and would cause a financial strain on their family by requiring that S. be in therapy and that they retain a parent co-ordinator. [ 24 ] It is important to note that, throughout the trial, it was Mr. P. who spoke for both himself and Ms. P.. Except for the difference between their positions on whether S. should ever be told the truth about her parentage, he made all submissions and conducted the cross-examinations of the witnesses and examined Ms. P. when she testified in direct examination. Mr.

P. needed to be reminded on several occasions to control both the tone of his voice and his demeanour in the courtroom. He also had to be admonished to not coach Ms. P. in her responses when being cross-examined by the applicant. 5:

SUMMARY OF RELEVANT EVDIENCE 5.1: Evidence of the Background of the Parties [ 25 ] Mr. I. is 55 years old. He was married and separated from his wife in 1995. He has two adult children from that relationship. He testified that, although he and his wife separated when the children were young, he has always had a close relationship with his children. They are both well educated. Mr. I. testified that he would never abandon his children. He testified that he recently gave his son a kidney. He has been employed for many years at a car dealership. He also does some construction and renovation work. [ 26 ] Ms.

P. is 51 years old. She was born in Georgetown, Guyana and is the eldest of four siblings. She was raised by her mother and stepfather in a very close family. Her grandmother told her, when she was 6 or 7 years, about her father. She met her father when she was about 16 years old but never developed a close relationship with him. [ 27 ] When Ms. P. was 18 years old, she came to Canada. She was married when she was only 19 years old in what she described as an arranged marriage as she was alone in Canada.

The marriage only lasted 5 years and she described her husband as very controlling and that he was emotionally and verbally abusive. They had a daughter, N.. Ms. P. gave up custody of N. but exercised access. She described N. as having a positive relationship with S., although they do not see each other a lot. Ms. P. met Mr. P. through their employment. They dated for a couple of years and then were married in 1993. [ 28 ] Mr. P. is 47 years old. He has two younger brothers and was raised by his parents who got along well. He had an unremarkable upbringing.

He is currently a vice president in the business development industry. He testified that he has a loving relationship with Ms. P.. He testified that he travelled a great deal before S. was born and that put a strain on their relationship but, after S. was born, she became his whole life.

5.2: Evidence Regarding the Nature of the Relationship between Mr. I. and Ms. P. [ 29 ] Mr. I. testified that he met S.P. in 1997 through one of her friends. Ms. P. was at the time married to D.P.. According to Mr. I., he was not aware at the time that she was married when they began their relationship. [ 30 ] As a result of the relationship between Mr. I. and Ms. P., S. was conceived. Mr. I. testified that he always knew that S. was his child but, out of respect for Ms. P. and her marriage, he never told S. that he was her father.

As he was doing renovations in the respondents’ home, he saw S. frequently and she knew him as a family friend and called him “Uncle F..” According to the applicant, his relationship with Ms. P. continued for about 10 years. However, in about 2008, Ms. P. refused to permit him to have any further contact with S.. [ 31 ] In July 2008, he retained counsel to correspond with Ms. P. in an attempt to resume his relationship with S.. Initially, Ms. P. did not respond but then sought a paternity test. Ms. P. in both her interview with Dr.

Morris and in her evidence, stated that it was the applicant who insisted on paternity testing but, when shown the correspondence from the applicant’s counsel, she conceded that she was the one who sought paternity tests. [ 32 ] Ms. P. testified that she was “100% certain” that the applicant was not S.’s father. However, both respondents confirmed that they had been trying to have a child for 5 or 6 years and had tried in vitro fertilization twice, fertility drugs and hormone replacement therapy. Ms.

P. testified that she met the applicant while she was in the process of trying to conceive a child with her husband. She testified that she was very emotional during this time and the applicant was there to help her. The paternity tests confirmed that the applicant was S.’s biological father. [ 33 ] Ms. P. testified that she only had a short sexual relationship with Mr. I. for about 32 months commencing in about 1998. From about 2001, it was a platonic relationship and she considered him a family friend. He helped her and her family with a family business. However, in 2006, Mr.

I. wanted to resume their sexual relationship and, when she refused, he threatened to tell Mr. P. about their relationship. [ 34 ] All of the parties agreed that Mr. I. did some landscaping and renovations to Mr. and Ms. P.’s residence in Etobicoke between 1997 and 2000. Mr. and Ms. P. did not agree with the extent of the work done by Mr. I. or the amount of time he was there. [ 35 ] All of the parties also agreed that Mr. I. did landscaping and renovations to Mr. and Ms. P.’s residence in Georgetown where they moved shortly after S. was born.

Again, there was no agreement about the extent of the work done or the amount of time that he was there. Mr. I. initially testified that he was at their residence almost daily, and then he changed his evidence to say almost every other day. He testified that Mr. P. was rarely home. [ 36 ] According to Ms. P., Mr. I. was at their home doing renovations from 2000 to 2003 and then she changed her evidence to say that he was there on and off from 2000 to 2006 and, as a result, he saw S.. From 2006 to 2008, she testified that he was at their home only about 10 or 12 times. She did not agree with Mr.

I.’s evidence that he was there as often as he maintained as he was employed full time and only doing the work around their home in his spare time. [ 37 ] Mr. P. testified that Mr. I. was like an unwanted houseguest who kept showing up uninvited to their home. Mr. P. did not agree that Mr. I. was at their home as often as he maintained. [ 38 ] When Ms. P. was cross-examined on the fact that, in her answer, she admitted that she had a relationship with Mr. I. for 10 years, she testified that she was under a lot of stress, she was under duress and just signed what her lawyer prepared without reading it.

She then testified that she had meant that she had a relationship with him as a friend for 10 years. [ 39 ] All of the parties also agreed that Mr. I. had resided with Mr. and Ms. P. in their home in Georgetown while the house that he bought in Acton was being gutted. Ms. P. testified that he lived with them for 3 or 4 weeks in January to February 2004 and then testified it was for 6 weeks. Mr. P. testified that, initially, he was only to stay for 2 weeks because they felt sorry for him as he had nowhere else to live but it stretched out to 6 to 8 weeks. Mr.

I. did not clarify the amount of time that he lived with Mr. and Ms. P., although their neighbour, Max Brinco, testified that he thought Mr. I. lived with them for about 5 or 6 months. [ 40 ] Mr. I. provided proof that he had purchased an Oldsmobile for Ms. P. in 2001 and paid the insurance for that car for about 3 years. Although Ms. P. agreed he did this, she testified that he had promised to change the ownership into her name and never did so.

She also testified and provided proof that that she had loaned him about $10,000.00 from a motor vehicle accident settlement that she received and that therefore the purchase of the car was just in repayment of the funds that she gave him. [ 41 ] Ms. P. did agree that, in January 2009, Mr. I. had lent her money to pay for her lawyer to respond to his court proceeding. She also agreed that he had been invited to some of her family’s celebrations. She testified that she did not know why her mother invited Mr. I. to her brother’s wedding in June of 2008. 5.3: Evidence Regarding Mr.

I.’s Relationship with S. [ 42 ] Mr. I. testified that he has been involved in S.’s life since her birth up to 2008. He went to see her at the hospital the day after she was born. He stated that, after Ms. P. decided their relationship was over in 2008, as she was having another relationship, all he wanted was access to S.. As a result, he retained a lawyer to correspond with Ms. P. to try to make those arrangements without the necessity of court proceedings. [ 43 ] Mr. I. testified that, when S. was a toddler, he was at the respondents’ home almost daily and helped Ms. P. care for her.

He would pick her up from day care, take her to dinner and to the park. He testified that he went to her soccer games and concerts. He took her shopping and had taken her to his employer’s Christmas parties for 8 years. Mr. I. introduced into evidence pictures of S.. The

pictures show S. at ages ranging from about 3 to 8 years old. The pictures were taken at the home of Mr. and Ms. P., at a shopping mall and at his home. He also produced some drawings and cards that read, “From S. to My Uncle F.”, “Love you F..” [ 44 ] In cross-examination, Mr. I. clarified that he picked up S. from her day care about 20 or 30 times and that he had been authorized to do so by Ms. P.. He also testified that he picked her up after she was dropped off by bus in junior and senior kindergarten without Mr. P.’s knowledge.

He also clarified his evidence in-chief and stated that he only took S. to his Christmas parties for 7 years and agreed he had no pictures to prove that he took her. Interestingly, neither Mr. nor Ms. P. in their evidence disagreed that he had taken S. to his employer’s Christmas parties. [ 45 ] In responding to Mr. I.’s evidence regarding the amount of time he spent with S., Ms P. agreed that Mr. I. was around their home doing work from 2000 to 2006; however, she disagreed that he had any significant contact with S..

She indicated that he saw S. because he was at their home but the real reason he was there was because he was obsessed with her. [ 46 ] Ms. P. testified that Mr. I. only saw S. five or six times between 2004 and 2009, not including the time that he saw her at Dr. Morris’ office. In cross-examination, she testified that he saw S. about ten or twelve times between 2000 to 2006 and then stated that he saw her on and off up to 2006 and then only about ten times between 2006 to 2008. [ 47 ] She testified that Mr.

I. was invited to S.’s soccer games only a couple of times because he was at their home when she and her husband were going to the game. She also testified that S. was at day care from the time she was 2 to 5 years old and she only authorized Mr. I. to pick her up in emergencies. Ms. P. testified that he had only picked S. up two or three times from day care and she denied that he picked her up from kindergarten as she was always home in time to pick her up. She testified that, in her culture, older men who are family friends are called “uncle.” [ 48 ] In cross-examination, Ms.

P. agreed with the information that she had given Dr. Morris, namely that Mr. I. was a casual friend and that he had limited contact with S., that he was only invited to S.’s events four times, took her to the shopping mall one or two times and other times he called and wanted to drop by. This excluded the time he lived with them. [ 49 ] When shown the pictures of S. with Mr. I., Ms. P. agreed that she looked happy and did not look afraid of him.

With respect to the picture taken at his home on 6 January 2009, she agreed that she took the picture, that she did not feel threatened and went to his home with S. to try to resolve the court proceedings. However, they argued on that day and S.’s only recollection of Mr. I. is that he made her cry that day. [ 50 ] In cross-examination, Ms. P. testified that she agreed with Dr. Morris’ observation that Mr. I., “appeared to be genuine and was forthright in his statements regarding his interest and focus only on the well being of S.,” although, in her testimony, she continually stated that Mr.

I.’s only motive in wishing to see S. was to continue his obsessive relation with her. [ 51 ] In cross- examination, Ms. P. also testified that she agreed with all of Dr. Morris’ assessment except for sections titled, “Brief

summary” and “Recommended Parenting Plan” . However, it was clear in her evidence that she did not agree with Dr. Morris’ analysis why S. should be told about her parentage. [ 52 ] Mr. P. testified that Mr. I. tried to ingratiate himself to their family. He offered to do work on their homes for free. He testified that, after the first time he met him, he did not have a good feeling about him. But he could only explain why he then agreed to let him work on their second home by explaining it was financially beneficial to them. [ 53 ] Mr. P. testified that Mr.

I. was only invited to their home about 10 times to various social events. He testified that over 8 years, he would have just shown up over a 100 times. [ 54 ] Mr. I. called two witnesses to establish proof of his relationship with S.. [ 55 ] Jean Hamilton was an acquaintance of Ms. P.. She met Mr. I. at the P.’s home 3 or 4 times. She recalled that it was for a couple of S.’s birthday parties and once for Ms. P.’s birthday. She viewed Mr. I. as a close family friend of Mr. and Ms. P.. They never mentioned any concerns that they had about Mr. I.. She recalled that she may have said that Mr.

I. loves S. or loves to play with her. [ 56 ] In cross-examination, she agreed that she had only been in the home of Mr. and Ms. P. 4 or 6 times. [ 57 ] When Ms. P. was cross-examined, she admitted that Ms. Hamilton had told her that she had never seen anyone love a child as much as Mr. I. loved S.. [ 58 ] Max Brinco testified that he has been a neighbour of Mr. and Ms. P. since about 2002. He has known Mr. I. since 1999. He testified that, from 2002 to 2008, he has seen Mr. I. at the P.’s home lots of time and mentioned over 50 times. He has seen Mr.

I. many times walking and playing with S. and saw her sitting on his lap. He also saw Mr. I., Ms. P. and S. together many times. He testified that Mr. I. told him sometime in 2007 or 2008 that S. was his daughter. [ 59 ] Mr. Brinco was asked in cross-examination whether he ever offered to give Ms. P. some homemade wine and then requested she kiss him. Mr. Brinco denied this accusation. [ 60 ] Dr. Morris interviewed S. during the course of his assessment. In his report, he states that, on four occasions, she was asked open-ended questions to probe who were the important people in her life. S. only mentioned Mr.

I. on one of the four times. During Dr. Morris’ second interview, he followed up with S.’s mention of Mr. I., she responded that he would come over after school and, on a few occasions, they had all gone out as a family. She could not recall any real positive memories of his involvement with her. She said she did not miss him or really knows him that well and did not consider him a friend of the family. [ 61 ] When Dr. Morris asked S. questions to probe any possible influence by Mr. or Ms. P., she said there was one occasion when her father, Mr. P., said that he did not like Mr.

I.’s children and her mother said that Mr. I. made her cry. Overall, Dr. Morris

concluded that S.’s memory was that there was no real interest or connection to Mr. I.. [ 62 ] Dr. Morris observed S. and Mr. I.. Dr. Morris concluded that S. did not appear either to feel very close to him or to exhibit strangeness, anxiety or fear in his presence. S. wanted to work with him and engage him in various activities but he was more interested in trying to elicit from her a memory of a connection with him and his family. [ 63 ] After the session, Dr. Morris spoke to S. to ascertain her response to the session. Her first response was that the session was okay and she had no problem with it.

When asked what her parents told her before the meeting, she stated that they only told her to tell the truth. S. stated that she did not really remember Mr. I. other than stating that he would come over an average of two times a week or she and her mom would go to see him. When asked about her discussion with Mr. I. about his daughter S., she said she did not really know her, belying her statement during the session that S. looked the same when Mr. I. showed her a picture of S.. [ 64 ] Dr. Morris agreed with Mr.

I. that there was some estrangement between S. and him but it was more likely as a result of his extraordinary high expectations of a relationship with her and a lack parenting skills that would allow him to utilize the observation session to interact with her in a way that would facilitate the relationship. Dr. Morris formed the opinion, based on his interviews and observations, that there had been a connection between S. and Mr. I. but not as infrequent as described by the P. and not as frequent as described by Mr. I.. 5.4: Evidence Regarding Mr. I.’s Character [ 65 ] Most of the testimony of Mr. and Ms.

P. and Mr. P.’s cross-examination of Mr. I. involved their accusations of his unsavoury character. [ 66 ] Ms. P. testified that Mr. I. was jealous of her relationships with both her female and male friends and her work-related acquaintances. She testified that he followed her and accused her of having affairs with men with whom she worked. [ 67 ] Mr. P. confirmed that most of the allegations that he made against Mr. I. were based on information that he obtained from his wife whom he believed. [ 68 ] But Mr. P. did testify about some first-hand experiences with Mr. I.. For example, Mr. P. testified that Ms.

P. told him sometime in 2007 that Mr. I. was going to her workplace and following her. He testified that, in June 2007, Mr. I. telephoned him and told him that Ms. P. was at a restaurant with 2 males. He testified that Mr. I. also told him on two separate occasions that he would ruin their lives. Mr. P. testified that, from 2007 to 2009, they had at least 50 to 100 hang up calls and that he had personally observed Mr. I. driving in their neighbourhood without stopping. Mr. I. denied that he made these calls or drove by their residence. [ 69 ] In May 2009, as a result of Mr. I.’s “stalking behaviour,” Mr.

P. made a police report. A copy of the police occurrence report, on consent, was entered as an exhibit by Mr. I.. The report indicates that Mr. I. was advised “again” not to contact the P.. The report also states that Mr. I. told the police about the ongoing court case and that police advised him that all future communication should be through his lawyer and he agreed. Mr. I. testified that the police advised him that the P. would be warned that they would be charged with harassment if they continued to make reports. But this is not reflected in the police report that was filed.

The investigating police officer was not called as a witness. There were no further allegations of any such behaviour by Mr. I. after this date. No criminal charges were laid. [ 70 ] Ms. P. testified that she was terrified of Mr. I.. She stated that he told her, “I’m big bad F.. If you mess with me, I have connections”. [ 71 ] In cross-examination, Ms. P. agreed that it was her evidence that, since 2006, Mr.

I. had harassed her, followed her, stole her cell phone, threatened her by saying, “don’t mess with me”, implied that he had unsavoury connections, told her he had guns at his friend’s home and had threatened to tell her husband about their affair. She agreed that, despite all of this and despite her evidence that she feared Mr. I., she had never made any type of police report or sought a restraining order against him. She agreed that it was only after April 2009, when she advised Mr. P. of the court proceeding and that he was not S.’s biological father that she and her husband made a police report.

She also testified that she had been advised by her lawyer to make a police report. [ 72 ] Both Mr. and Ms. P. testified about witnessing an incident in 2001, when Mr. I. punched and beat B… M… “to a bloody pulp” because he was jealous that Ms. P. was having a relationship with him. Mr. I. did not deny that he assaulted Mr. M. but explained that he did so because Ms. P. had told him that he had hit her while she was pregnant. But that would have been a year earlier. Mr. I. also testified that the presence of Mr. P. provoked the fight although he never explained why.

It appears that no one called the police and criminal charges were not pursued by Mr. M.. Mr. P. testified that there was a concern that Mr. I. was connected to the mob. Mr. P. testified that, although he did not believe this, he also did not call the police. [ 73 ] Mr. I. denied the accusation that he stole Ms. P.’s cell phone from her car in August 2006 or that he called her to say that someone had found it in the neighbourhood. [ 74 ] Mr. I. denied that he had ever said that children should be hit as alleged by the P..

When cross-examined about his “assault” against his daughter, he explained that, when his daughter S. was 15 or 16 years old, she not going to school and she was hanging out on the street. He explained that his former wife called him as she could not control S. and asked for his help. He found S. on the street at night and “smacked” her and dragged her into his car. He considered this was discipline. [ 75 ] Dr. Morris interviewed S. and she corroborated her version of the events. She told Dr. Morris that her father’s slapping her straightened her out. She also told Dr.

Morris that he was an amazing father. [ 76 ] Mr. I. also denied that he assaulted his former wife or that he threatened the P. as alleged by the P..

[ 77 ] The respondents, other than making these various allegations against Mr. I., did not call any witnesses or provide any other evidence to substantiate their accusations. 5.5: Evidence Regarding S. [ 78 ] S. is described as an outgoing, intelligent, well adjusted, happy child. She is in a French immersion program and is entering grade VI this fall. She is involved in competitive dancing and has many friends. [ 79 ] She is closely bonded to her mother and to Mr. P. whom she regards as her father. She is family-oriented and strongly connected with her mother’s extended family. [ 80 ] Dr.

Morris assessed her as being confident and functionally well in all aspects of her life with some need to please others. She complied with all aspects of the assessment without asking details why they were in existence and offered Mr. I. a hug good bye based on his request and her wish to please. [ 81 ] Dr. Morris did express some surprise that S. did not ask more questions about the assessment and why he was seeing her and why she was seeing Mr. I.. Dr. Morris told S. that he was helping her parents and that it was important for him to meet with everyone in the family. 5.6: Dr.

Morris’ Evidence and His Assessment Report [ 82 ] Dr. Morris’ assessment took an inordinate amount of time to complete. However, it appears from the evidence that the delay was a result of the parties’ and especially the respondents’ need for extra reassurance and explanations of the process. [ 83 ] Although Dr. Morris’ assessment is only one piece of evidence, the court needs to consider, in view of its importance to the ultimate decision that the court must make, and to review it thoroughly and to consider the many objections raised by the respondents to Dr.

Morris’ methodology, to his conclusions and recommendations and to questions regarding Dr. Morris’ lack of experience in conducting such an assessment. 5.6(a): Validity of Assessment Process [ 84 ] The respondents questioned the validity of any assessment by a psychologist to make any conclusions regarding what is in a child’s best interests. Ms. P., in her testimony, questioned how Dr. Morris could come to any conclusions about what was in S.’s best interests by only speaking to her a few times and only speaking and observing S. for a short time.

She felt that, as a mother, she is in the best position to know what is best for her child. Mr. P. suggested that Dr. Morris was only making an educated guess about what was in S.’s best interests and, if he were wrong, there would be devastating results for S.. [ 85 ] Mr. P. spent a considerable amount of time questioning Dr. Morris about the distinctions between the natural sciences and an applied science such as psychology that only dealt with probabilities versus absolute truths. [ 86 ] As Dr.

Morris explained, when he conducts this or any other assessment, he approaches it as objectively and neutrally as possible. He gathers all of the information that he can and does not reach any conclusion until he has completed gathering as much information as he can. He follows his professional guidelines. He testified that he felt he had no biases. He conducts psychological personality testing as an adjunct to the clinical interviewing process. [ 87 ] Dr.

Morris did not agree with the suggestion that, in the end, all he was doing was making an educated guess as opposed to conducting a scientific and objective assessment. Dr. Morris noted that he was ordered by the court to conduct an objective custody and access assessment pursuant to

section 30 of the Children’s Law Reform Act and that he produced an expert opinion based on the information that he was given. [ 88 ] A copy of the retainer agreement executed by the parties who were represented by counsel at the time was entered as an exhibit. That agreement is clear that Dr. Morris was being retained to conduct a

section 30 Children’s Law Reform Act assessment and details his role and the process to be followed. 5.6(b): Methodology [ 89 ] The P. also suggested that Dr. Morris treated this case like another “divorce case” and made no special provisions for its uniqueness. Dr. Morris disagreed and described that he makes adjustments as needed to each case. In this particular case, the greatest concern by the P. was to prevent or not reveal the facts of the paternity. He had to have further meetings with the P. after he decided that he needed to see S. and then further met with them to discuss his need to see S. with Mr.

I.. [ 90 ] Unlike other cases, Dr. Morris discussed with the P. the parameters of his observation of S. with Mr. I. and, at their request, sent them a written copy of what was discussed. He also agreed to sit in the room for the observation although usually he would observe through a one-way mirror. [ 91 ] Mr. P. continued to question Dr. Morris about the uniqueness of this case compared to the typical divorce case that he usually assesses. Dr. Morris patiently described that there was no distinction between a divorce or a separation case and that divorce is not typically the issue.

When he assesses a family, it is post separation or post marriage. The issues are similar to this case in that the issue is what custody and access arrangements are in a child’s best interests, what kind of access there should be and that there are typically two opposing sides to the dispute.

5.6(c): Thoroughness of the Investigation [ 92 ] The P. also questioned Dr. Morris about the fact that he did not do a thorough investigation as he did not reach any conclusions about the information provided to him. Dr. Morris responded that, initially, it was the view of Mr. P. that all he needed to do was to listen to the accounts by Mr. and Ms. P. to complete his assessment — in other words that, since their two accounts of events were similar compared to Mr. I.’s version of events, Dr. Morris should therefore conclude that their version was correct. [ 93 ] Dr.

Morris testified that there was a lot of “he said” “she said” information, although he felt that he had some support for the fact that Mr. I. took Ms. P.’s cell phone and that he did some stalking. But there was no third-party support or information to support the degree of the allegations. He considered the allegations that all the parties made against each other worrisome and took them seriously. Dr. Morris explained that his concerns were part of the reason that he recommended therapeutic and educative steps that he felt would be necessary as a precondition for any kind of access.

He also recommended that, once access commenced, it be supervised. [ 94 ] Dr. Morris also noted that the allegations made by the P. about Mr. I. would not have precluded access to him. There were no allegations of any mistreatment of S. nor did he find that there would be any risk to S. as a result of contact with Mr. I.. [ 95 ] Dr. Morris testified that, if there were any limitations to his assessment, it was with respect to its comprehensiveness as there was little information provided through significant third parties and professional collaterals.

He testified that, although each party was offered the opportunity of having him interview up to six individuals or couples, he only saw two individuals on behalf of Mr. I. and two on behalf of the P.. Even the information from the collaterals was limited. The P. would not agree to full disclosure that is, permitting Dr. Morris to obtain as much information that he could from all sources. 5.6(d): Assessment not Culturally Sensitive [ 96 ] Mr. P. questioned whether Dr. Morris had considered Ms. P.’s ethno-cultural upbringing as an East Indian. Dr.

Morris explained that this was not the first case he had with respect of individuals or families of East Indian background. But what was important and what he considered was the information that Ms. P. provided regarding her personal background, her culture, her values and her upbringing that may have been different from other individuals from her culture. [ 97 ] When pressed by Mr. P. for more specifics regarding Ms. P.’s upbringing, Dr.

Morris testified that he found that she has been raised essentially to be seen and not heard, that it was difficult for her to be straightforward and to state how strongly she feels about things and that she has a need to be private. 5.6(e): Dr. Morris’ Experience and Expertise [ 98 ] Mr. P. questioned Dr. Morris’ ability and experience to conduct this particular assessment as he had told them that he had never had a case like this before and that he told them that he needed to consult with his wife, legal friends and learned colleagues. [ 99 ] Dr.

Morris testified that it was part of his mandate to obtain as much information as possible in conducting an assessment and that would include from external sources. He clarified that, during the disclosure meeting, he mentioned that he canvassed a number of professionals and other individuals to obtain a sense of whether a child of S.’s age should be told about her parentage now or later and happened to mention that he had even discussed this with his wife. Dr.

Morris explained that he was trying to make the point that he had thoroughly canvassed the issue with everyone who has anything to do with knowing what is in a child’s best interests to see whether there was support for his view as to what should happen. [ 100 ] As Mr. P. persisted in questioning Dr. Morris about relying on his wife’s opinion, Dr. Morris further explained that he respected his wife’s view as she had raised four children and had forty years of experience as a dental hygienist working with children.

He did not rely on her opinion in the same way that he did not rely on the opinion of any of the other individual to whom he spoke. [ 101 ] Dr. Morris explained that it was his mandate as a psychologist and part of his professional standards to gather information on unusual and difficult cases such as this one. There was nothing in the literature that directly bears on the appropriate timing of informing a 10-year-old about the true identity of her biological father.

The closest component of literature emanates from that on adoption wherein it is clear that it is most appropriate to tell children about their parentage as early as possible so they might for example feel chosen and special having been raised by adoptive parents. But clearly, that was not this case. [ 102 ] Dr. Morris therefore took the opportunity to canvass a number of professionals without using any identifying information.

He testified that he had attended a multi-disciplinary conference of the Association of Family and Conciliation Courts, which is a conference where judges, family law lawyers, mental health professionals, including psychiatrists, psychologists, social workers, teachers, children’s aid society workers all attend and he took the opportunity to discuss this case. He testified that not one of the professionals to whom he spoke had the opinion that the secret should be held and the child not told the truth. [ 103 ] Dr.

Morris testified that he has had experience with a number of cases involving paternity but he had never had a case where a child as old as S. had not been told about her parentage. 5.6 (f): Assessment of Parties Personalities [ 104 ] Dr. Morris found that none of the parties had any substantive major mental illness. His assessment of the personalities of the parties in many ways corresponded with my assessment of their demeanour during the trial. [ 105 ] However, although the personality test results for Mr.

I. indicated that he might be impulsive and emotionally immature, sarcastic and be prone to outbursts of temper, he was remarkably calm and composed despite the many allegations of disreputable behaviour and conduct made against him during the course of the trial by Mr. and Ms. P..

[ 106 ] Dr. Morris found that Ms. P. was a private person who was attempting to contain her feelings during a very difficult time. She had a passive presentation. She was anxious and under considerable stress. All of these characteristics were evident during the trial. [ 107 ] Dr. Morris stated that, initially, Mr. P. presented as a blustery individual who appeared angry and in need of great deal of detail regarding the assessment process. However over time, Dr. Morris felt that this appeared to be more of a function of his anxiety and stress. Dr.

Morris found him to be logical, coherent and an intelligent individual who was ultimately quite reasonable. Dr. Morris explained the leading role that Mr. P. took in the joint interview with Ms. P. and him as he needed to speak for her in a way that she could not speak for herself. Mr. P.’s testing results indicated a person with very strong stereotypic masculine attitudes and interests as well as possible hostile and over-emotional reactions to people who he may feel are critical of him or are in positions of authority. Unfortunately, during his conduct in this trial, Mr.

P. presented himself much like his first impression with Dr. Morris showing a lot of anger and hostility, overshadowing Ms. P. and exhibiting inappropriate emotional reactions. However, on the basis of Dr. Morris’ assessment, I am assuming that his reactions were as a result of the anxiety and stress of the trial and the situation in which he found himself. Mr. P. apologized to the court several times for his outbursts and behaviour. 5.6(g): Rationale for Assessment Recommendations [ 108 ] It was Dr.

Morris’ opinion that S. should be told sooner rather than later about her parentage with the assistance of a duly qualified third party who can work with S. and Mr. and Ms. P. in the hope that a re-establishment of contact with her biological father can be implemented in the context of a progressive plan of involvement. [ 109 ] Dr. Morris explained his rationale for telling S. about her parentage before she reaches adolescence as follows: (

a) There was a concern that there was a very real possibility that S. may find out from someone other than Mr. and Ms. P. about her parentage and that would be devastating for her. (

b) Based on his clinical experience and child developmental theory, it would be difficult and confusing for S. to find out and process this information during her adolescence. Adolescence is a very difficult time where children consolidate their sense of who they are, their sense of self, including their sexual identity. There are the natural changes to physical and emotional makeup during those years in addition to the drive for autonomy and self assertion. (

c) Based on his clinical experience dealing with late adolescents and young adults who were not told about some family secret, most of them were upset that they had not been told earlier and sometimes angry at the deception. They were very upset at not being informed earlier so that they could make their own choices whether to have a relationship with such a person. (

d) Dr. Morris believed that S. was in the age range, according to child developmental theorist like Jean Piaget, of the stage of formal operations where she is beginning to learn to abstract and to conceptualize things. Dr. Morris found that S. was a bright, well-adjusted young child and he felt that she had the coping skills eventually to come to terms with this very difficult knowledge. [ 110 ] It was Dr. Morris’ opinion that S. needed to be told about her parentage with the assistance of a family therapist working with her and the P..

It was his opinion that there was a significant possibility that there will be emotional trauma for S. dealing with the fact that her current perception of her father is not a biological reality and that questions will arise with regard to the morality of her conception and the withholding of the truth for so long. [ 111 ] Dr. Morris concluded as follows: S. needs to know that Mr. I. is her biological father and work towards some form of contact with him until she is of an age she can have discretion over contact.

All three parties need to be in agreement with the plan or the added tension and conflict will only serve to create internal conflict and confusion for S., and likely disrupt her current very positive functioning on all levels. [ 112 ] I questioned Dr. Morris whether there was an alternative method for S. to be told about her parentage, if I found that was in her best interests, as it is clear that Mr. and Ms. P. do not agree with his recommendations. Dr. Morris responded that it was in S.’s best interests for all of the parties to accept whatever the court decides, live with it and make it happen. [ 113 ] Dr.

Morris stated that S. needed to be protected from what would be parental conflict. Dr. Morris stated that, in over 25 years of literature on separation and divorce, what was extremely clear is that children are affected by change, loss and parental conflict and that the one thing that determines how well children do in their lives is to how much tension and conflict they are exposed. If there is ongoing conflict, it will make the situation much worse for S. regardless of when or whether she is told about her parentage. [ 114 ] I also questioned Dr.

Morris whether counselling would beneficial or useful for S. if it were ordered by the court but Mr. and Ms. P. did not agree with the process. It was Dr. Morris’ opinion that a good therapist can engage reluctant or resistant clients to be part of the process. In further response to my question about the process of choosing a therapist if the parties refuse to communicate with each other, Dr. Morris made several suggestions of competent therapists. [ 115 ] Dr. Morris testified that his recommendations that S. be told about her parentage were not based solely of the extent of the relationship between Mr.

I. and S.. If the court made findings of fact that the relationship was more significant than he found, then it might bear on the issue of whether S. should be told but, if the court found the relationship to be less significant, it would not change his opinion. He also explained that his recommendation was not based on Mr. I.’s biological rights but based on what he believes is in S.’s best interests. 6: APPLICABLE LEGAL PRINCIPLES AND ANALYSIS [ 116 ] As in any case involving a dispute regarding custody and access, the test to be applied is what parenting arrangement is in a

child’s best interests. The criteria to be considered in determining a child’s best interests are set out in subsection 24(2) of the Children’sLaw Reform Act, which requires the court to consider the needs and circumstances of the child (emphasis added) including: (

a) the love, affection and emotional ties between the child and, (

i) each person entitled to or claiming custody of or access to the child, (ii) other members of the child’s family who reside with the child, and (iii) persons involved in the care and upbringing of the child; (

b) the views and preferences of the child, where such views and preferences can reasonably beascertained; (

c) the length of time the child has lived in a stable home environment; (

d) the ability and willingness of each person applying for custody of the child to provide the childwith guidance and education, the necessaries of life and any special needs of the child; (

e) the plan proposed by each person applying for custody of or access to the child for the child’scare and upbringing; (

f) the permanence and stability of the family unit with which it is proposed that the child will live; (

g) the ability of each person applying for custody of or access to the child to act as a parent; and (

h) the relationship by blood or through an adoption order between the child and each person who isa party to the application. [117] These criteria apply equally to issues of custody or access and to anyone applying for custody or access. [118] The meaning of “best interests” has been described as being “as fluid as each child’s circumstances. What is certain,however, is that the focus of the exercise is on the child.” See Montgomery v. Montgomery (1992), (ON CA), 59O.A.C. 19, 97 D.L.R. (4th) 437, 42 R.F.L. (3d) 349, [1992] O.J. No. 2299, 1992 Cars​well​Ont 295 (Ont.

C.A.); permission to appeal tothe Supreme Court of Canada denied at [1993] 3 S.C.R. vii, 157 N.R. 348n, 65 O.A.C. 290n, 106 D.L.R. (4th) vii, 48 R.F.L. (3d) 232n,[1993] S.C.C.A. No. 65. [119] Although clause 24(2)(

g) refers to “the relationship by blood or through as adoption order between the child and eachperson who is a party to the application”, the existence of such a relationship does not guarantee rights to custody and access. [120] Consistent with the focus on the best interests of the child, access is properly regarded as a right of the child, not the rightof the parent. The legislation and case law have recognized that generally it is in the interests of a child to maximize contact between thechild and each parent and to have a positive relationship with both parents. But this is only one factor to be considered.

The goal ofmaximum contact is not absolute and access may be restricted where there is evidence that such contact would otherwise conflict withthe best interest of the child. See Young v. Young, [1993] 4 S.C.R. 3, 160 N.R. 1, 34 B.C.A.C. 161, 84 B.C.L.R. (2d) 1, 56 W.A.C. 161,[1993] 8 W.W.R. 513, 108 D.L.R. (4th) 193, 19 C.R.R. (2d) 4, 49 R.F.L. (3d) 117, , [1993] S.C.J.

No. 112, 1993 Cars​-well​BC 264, per Justice Beverley McLachlin at paragraphs [203]-[204] and Justice Claire L’Heureux-Dubé at paragraph [53]. [121] The duty of the court is to exercise its discretion by considering these broad and general factors and to apply themaccording to the evidence in the case viewed objectively. The court must apply the “best interests” test only and parental preferences orthe “rights” of parents play no role unless those views are in a child’s best interests.

That is not to say that a parent’s perspective has norole but only if it is consistent with the best interests of the child. [122] Applying these principles and the factors set out in subsection 24(2) of the Children’s Law Reform Act, the issue to bedetermined is whether it is in S.’s best interests to re-establish a relationship with her biological father Mr. I. in spite of the objections ofher mother and Mr.

P., whom she considers to be her father, or whether it is in S.’s best interests to deny her the truth of hercircumstances and deny her the right to have access to her biological father and to permit the P. to determine if and when she be told thetruth about her parentage. [123] Mr. I. did not dispute that Mr. and Ms. P. retain custody of S.. He did not question their parenting abilities or theircharacter. He testified that that he respected Ms. P. as a good mother and respected Mr. P. for raising S.. [124] Mr.

I. wishes to resume the relationship he previously established with S. and is prepared to agree with the process ofreunification recommended by Dr. Morris. Mr. and Ms. P. feel very strongly that the current status quo should not be changed and that itis not in S.’s best interests to know about her parentage or have any contact with Mr. I. because of the serious allegations that they madeagainst his character and his past parenting of his own daughter. [125] Despite the many attempts to discredit Dr. Morris and his assessment findings, I find that it was a thorough and well-reasoned report. Dr.

Morris conducted his assessment in accordance with the terms of the retainer agreement. [126] The cross-examination of Dr. Morris did not raise any doubts or issues regarding his qualifications, experience,methodology, factual information or observations. Dr. Morris spent a considerable amount of time with the parties and with S.. He wassensitive to and respected the wishes of Mr. and Ms. P. to not reveal S.’s parentage to her or anyone else. Dr. Morris outlined a verydetailed and practical parenting plan. I was impressed with Dr. Morris’ clear and even-handed testimony. [127] Mr. and Ms.

P. were given every opportunity to refute the findings and opinions expressed by Dr. Morris and to present thecourt with a contrary expert opinion but they failed to do so. [128] On the basis of the evidence that I accept, I have come to the same conclusion as Dr. Morris regarding the nature andextent of Mr. I.’s relationship with Ms. P. namely, that I can only conclude that there was a relationship and that S. was conceived as aresult of that relationship. Although Ms.

P. agreed that the relationship lasted for 10 years in the answer that she filed with the court, shedisputed that it was always a romantic relationship. It appears even from Mr. I.’s evidence that the relationship was not always anexclusive romantic relationship as he had other intimate relationships during that time.

[ 129 ] I find that, regardless of the nature of the relationship between Mr. I. and Ms. P., Mr. I. spent a significant time at the residence of Mr. and Ms. P.. On the basis of the evidence that I accept, I also agree with the conclusions of Dr. Morris that Mr. I. has idealized and exaggerated the nature of his contact with S. and their family but that Mr. and Ms. P. have minimized that contact. [ 130 ] However, on the basis of the exhibits filed by Mr. I., his evidence and that of his witnesses, I find that he was much more than a casual acquaintance as maintained by the P..

It is highly unlikely that a casual acquaintance or someone working at the P.’ home would be permitted to live with them for any amount of time, be invited to dinner with their family, and be invited to attend S.’s soccer games, concerts or birthday parties or be invited to other family gatherings. Mr. I. must have been someone trusted by Ms. P. to be responsible to care for S. if he was allowed to pick her up from day care or take her, on his own, to the park, to the shopping mall or to Christmas parties. [ 131 ] I also draw a negative inference from the fact that Mr. and Ms.

P. chose not to call the witnesses set out in their trial management conference or even call the witnesses whom they indicated that they were calling at the commencement of the trial. [ 132 ] I do not accept Ms. P.’s evidence that she was certain that Mr. P. was S.’s father. Her evidence that she and Mr. P. were trying to have a child for 5 or 6 years is not consistent with her automatic assumption that Mr. P. was the father. Further, it is much more plausible that she permitted Mr.

I. to visit her in the hospital because she was aware or at least had a suspicion that he could be the father. [ 133 ] I also do not accept the evidence of Ms. P. as to the extent of her fear of Mr. I.. If he was threatening, stalking and harassing her for over three years, I would have expected that she would at the very least have confided in someone, a close friend or relative or reported his behaviour to the police. If she was so fearful of him, then it is not consistent that she would have gone to his home alone with S. on 6 January 2009 after this proceeding began and accepted money from him for her lawyer.

I also reject her evidence that she was only there because he was threatening or intimidating her and that he trying to make a secret deal with her. Rather, Mr. I. was prepared to continue the same relationship — that is, that Ms. P. would continue to allow him to see S. and he would continue to respect her privacy and not reveal their relationship to Mr. P. or tell S. about her parentage. [ 134 ] Except for the incident regarding Mr. I.’s assaulting B… M… sometime in 2001 which he admitted and the suspicious circumstances of Ms.

P.’s cell phone being stolen from her car, I do not find that any of the other allegations against Mr. I. have been proven or that they are relevant to whether he should have contact with S.. I specifically reject the allegations that Mr. I. beat his daughter or that he is an “abuser”. [ 135 ] I find that Mr. I. is genuine in his desire to resume a relationship with S. and that he has moved on with his life. There is no evidence to support the contention of Mr. and Ms. P. that his only interest in pursuing contact with S. is to continue his relationship with Ms. P.. Ms.

P. in her evidence contradicted herself on this point and stated that she agreed with Dr. Morris’ assessment that he had a sincere and genuine interest in having a relationship with S.. [ 136 ] I accept that Mr. and Ms. P. sincerely believe that it is in S.’s best interests to continue in her belief that Mr. P. is her biological father and that her life and their lives should not be disrupted. Their view that S. should only be told about her parentage when she is 18 to 20 years old or perhaps not told at all is contrary to the only expert evidence before the court. [ 137 ] Dr.

Morris’ expert opinion that it is in S.’s best interests to be told about her parentage as soon as possible is based on his own clinical experience, accepted child development theory and after a thorough assessment that included consultation with other professionals. [ 138 ] Although, when questioned by myself, both Mr. and Ms. P. agreed that it would be devastating for S. to find out from someone else about her parentage, I find that they were both totally unrealistic in their belief that it would be virtually impossible for S. to find out from someone else that Mr. I. is her father.

It was their evidence that only one of Ms. P.’s sister and her husband knew the truth and they were sure that they would not say anything. But Ms. P.’s sister and brother-in-law were not called as witnesses despite being listed in the trial management conference brief and despite Mr. P.’s indicating at the commencement of the trial that they would be called. I draw a negative inference from the fact that they were not called as witnesses.

There was no way test the truth of the P.’s statement that no one else knows about S.’s parentage except her sister and brother-in-law or that they have not told anyone else in the family. [ 139 ] Mr. I. summoned Ms. P.’s mother and her aunt as witnesses. It is reasonable to assume that they would have wondered or asked why they were being summoned to a family law trial between him and the P.. [ 140 ] In closing submissions when I suggested that there was a possibility that S. might find out about her parentage, as even their neighbour Mr. Brinco knew about it, Mr.

P. replied that they may move out of the neighbourhood. [ 141 ] I am sympathetic to the desire of Mr. and Ms. P. to put her relationship with Mr. I. behind them. I am sympathetic to the shame and embarrassment of Ms. P. in having her relationship with Mr. I. being revealed and the subject of this litigation. I am sympathetic to the feelings of Mr. P. who must cope with finding out that his wife has deceived him about his being S.’s biological father and that she had a relationship with someone else.

Nevertheless, although the solution for the P. may be to simply sweep it all away and pretend it never happened, such a solution may be what is best for them but not what is in S.’s best interests. [ 142 ] I have also considered the firmly held conviction of Mr. P. that his marriage with Ms. P. would probably not survive if Mr. I. is awarded access and is part of their lives and S.’s life. However, there is no guarantee that the relationship of the P. would be able to survive. They have attended marriage counselling but chose not to call their therapist Ms. Freeman as a witness.

So far, they appear to have been able to deal with Ms. P.’s affair and remain a stable family and are united in this court proceeding. But to deny S. the opportunity to have access to Mr. I. because of the possible impact on their relationship is to consider their interests and not the interests of S.. [ 143 ] Like Dr. Morris, I have been unable to find similar cases where a child of S.’s age has not been told of her parentage. There are similar cases where access has been ordered to a biological father where the child was not aware of his or her parentage and

over the objections of the mother and stepfather. However, in those cases, the child was much younger. [144] In the case of Abrego v. Moniz, 2006 ONCJ 500, 35 R.F.L. (6th) 460, [2006] O.J. No. 5167, 2006 Cars​well​Ont 8378 (Ont.C.J.), on a temporary motion, the court ordered supervised access to the father. The child was about 2½ years old and the child was notaware of his parentage but the mother had disclosed the fact she conceived the child with another man to her husband who was raisingthe child as his own child. In Tang v. Ryckman (1993), 38 A.C.W.S. (3d) 530, [1993] W.D.F.L. 520, [1993] O.J.

No. 324, 1993 Cars​-well​Ont 1686 (Ont. Gen. Div.), the child was only about a year old when access was ordered. Although the child was not aware of herparentage, the mother was committed to telling the child the truth. In both cases, the court ordered supervised access for 6 months to bethen reviewed by the court. [145] Both of those cases held that it was in the child’s best interests to be told the truth and for the biological father to beinvolved in the child’s life.

Both cases held that it was important to tell the child the truth although it may be confusing and disruptivebut to delay the introduction of the father into the child’s life at a later stage of life would be even more difficult. Unfortunately, that isthe situation here. [146] In considering S.’s best interests, I find that it is important to her emotional development that she be given the right to re-establish a relationship with Mr. I. and know that he is her biological father. It is not the right of the P. to predetermine and curtail herrights.

Although the P., in all other aspects, are meeting all of S.’s needs, I find that their view that S. should not be told the truth abouther parentage is not in her best interests on the basis of the evidence in this case, including the expert evidence of Dr. Morris. [147] Mr. I. has demonstrated an interest and commitment to S. from her birth. He has always wanted to be a part of her life. Although the amount of contact recommended by Dr.

Morris is much less than he wished and despite his regret that S. no longer has astrong connection or memory of him, he is prepared to do whatever is in S.’s best interests and to agree to a slow and gradual re-introduction into her life. He is sensitive to her needs and is prepared to put her needs and interests ahead of his own desires. He has agreat deal to offer S. and she should be entitled to benefit from a relationship with him. [148] S. has the right to know the truth. I remain hopeful that Mr. and Ms.

P. will accept that reality and work together with Mr.I. to avoid any further conflict and accept the parenting guidelines that are outlined in Dr. Morris’s report and the parenting plan. Dr.Morris has recommended a process that is child-focused and sensitive to the difficulty of these circumstances. [149] Attached to this judgment as

Schedule “A” is a copy of Dr. Morris’ parenting plan and attached as

Schedule “B” is a list ofthe therapists that Dr. Morris recommended in his testimony. [Schedules not reproduced here.] [150] Although I highly recommend that all parties, on consent, follow the recommendations of Dr. Morris, I have come to thedifficult conclusion that I do not have the jurisdiction to order the parties either to attend counselling or to retain the services of a familytherapist or parent co-ordinator or to delegate to that professional the authority to determine when access should commence. [151] The Ontario Court of Appeal considered this issue in the case of Kaplanis v.

Kaplanis, , 194 O.A.C. 106,249 D.L.R. (4th) 620, 10 R.F.L. (6th) 373, [2005] O.J. No. 275, 2005 Cars​well​Ont 266 (Ont. C.A.). Although that case involved a highconflict relationship between a mother and father, the principles are equally applicable here as Mr. I. and the P. do not communicate andhave a highly adversarial and conflictual relationship. In Kaplanis v.

Kaplanis, the trial judge awarded joint custody to the parties andordered that the parties attend counselling with an unnamed counsellor to improve their communication skills regarding their child,including adjustments to the scheduled access and by imposing a requirement that, if they could not agree on parenting issues, thecounsellor would decide the issues.

In allowing the appeal and ordering sole custody to the mother and a new trial on the issue ofaccess, at paragraphs [14]-[15], the court made the following comments on the jurisdiction of a court to order counselling : [14] It may certainly be desirable for parents to take counselling on how to better parent their childand to hire a counsellor or parenting coach to resolve disputes. The order provided by the trial judgewas, however, problematic.

The legislation does not specifically authorize the making of an order forparental counselling and, while some trial judges have held the court has inherent jurisdiction to make acounselling order, carrying out the order requires the co-operation of the parents. There was noevidence that the parties would be able to agree on whom to appoint. There was no agreed process forthe appointment of a counsellor in the event that they could not agree who should be their counsellor.

Nor was there any evidence that they were willing to submit their disputes to be decided by a counselloroutside the court process envisaged under the Divorce Act and without recourse to it. [15] Having regard to the above factors, the trial judge erred in making an order for joint custodyof the child. She further erred in making the orders she did that the parties attend counselling andappoint a counsellor to resolve their disputes. . . . [152] There are several cases[1] where courts have appointed parent co-ordinators in situations where the parties do not consentand do not communicate.

However, with the greatest of respect to those judges, there is no analysis or discussion of the jurisdiction ofthe court to make such orders. None of those cases consider the decision of Kaplanis v. Kaplanis, supra. [153] The only case that I have been able to find that has considered and analysed the issue of whether the court had jurisdictionto order parents attend counselling or the appointment of a parent co-ordinator is Reid v. Catalano, , 165 A.C.W.S.(3d) 108, [2008] O.J. No. 912, 2008 Cars​well​Ont 1268 (Ont. Fam. Ct.). In that case

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