H.P. v. W.P.1, 2011 ONCJ 159

Toronto Registry No. D31361/04 DATE: 2011·I·18 CITATION: H.P. v. W.P.1, 2011 ONCJ 159 ONTARIO COURT OF JUSTICE BETWEEN: H.P., Applicant, — AND — W.P.1, Respondent.

Before Justice Carole Curtis Heard on 22-26 March 2010; 21-24 June 2010; 19 and 23 July 2010;and 30-31 August 2010 Reasons for Judgment released on 18 January 2011 CUSTODY OF CHILD — Variation — Grounds — Obstruction of access — At high-conflict custody and access trial 3 years ago,parents of boy (now 5 years old) had consented to extremely detailed access order that court had crafted in attempt to eliminate possibleflashpoints between parents — Trial judge had specifically asked whether custodial mother understood terms to which she wasconsenting and whether she appreciated dire consequences if she failed to obey them — Despite her answer that she understood, it wasmatter of only days before mother began to chip away at terms of order, finding ways to circumvent them if not blatantly violating them— Fourteen months later, father applied to vary, seeking to have custody of boy — Despite their denials, there was ample evidence thatmother and her partner were engaged in effort to alienate child from father and to eliminate father from child’s life — Mother’sbehaviour revealed her inability to put child’s best interests ahead of her dislike of father and inability to put child’s needs ahead of herown — Aside from conflict between mother and father, mother’s relationship with her partner had features of instability that attractedattention of children’s aid society — Mother had little use for advice and opinions of professionals, to point where she ignored ordismissed doctors’ opinions for treatment of child’s medical problems — At trial, mother admitted that she had made some mistakes butwas now promising to abide by any future court order — Trial judge reviewed litany of mother’s deplorable conduct and examinedmethods that had been tried to make access regime work but that had failed — After years of mother’s outrageous behaviour, courtsimply had no faith in mother’s capacity to abandon her old ways — Mother knew and understood risk that she was running by herdefiance of consent order — Breakdown of access regime constituted material change in circumstances under

section 29 of Children’sLaw Reform Act that allowed court to entertain father’s application on its merits and on basis of child’s best interests — Evidence wasclear that status quo was quite harmful to this child’s long-term psychological and emotional well-being and court was not prepared togamble with it any further — Child’s best interests required abrupt and massive change — Father was competent caregiver and hishousehold was island of calm, stability and affection — Court transferred custody of boy to father immediately and limited mother’saccess to 1 two-hour visit per fortnight at supervised access centre — Court also made her right to apply for any future variationconditional upon proof of her completion of specific therapeutic and counselling programs.

STATUTES AND REGULATIONS CITED Children’s Law Reform Act, R.S.O. 1990, c. C-12 [as amended], subsection 24(1), subsection 24(2) and

section 29. Courts of Justice Act, R.S.O. 1990, c. C-43 [as amended],

section 112. CASES CITED A.(A.) v. A.(S.N.), 2007 BCCA 363, 243 B.C.A.C. 301, 401 W.A.C. 301, 40 R.F.L. (6th) 248, [2007] B.C.J. No. 1474, 2007 Cars​well​BC1591 (B.C.C.A.). B.(S.G.) v. L.(S.J.), , 66 R.F.L. (6th) 103, [2009] O.J. No. 1998, 2009 Cars​well​Ont 2660 (Ont. S.C.).

Jackson v. Jackson, , 50 R.F.L. (6th) 149, [2008] O.J. No. 342, 2008 Cars​well​Ont 654 (Ont. S.C.). Van de Perre v. Edwards, [2001] 2 S.C.R. 1014, 2001 SCC 60, 275 N.R. 52, 156 B.C.A.C. 161, 94 B.C.L.R. (3d) 199, [2001] 11W.W.R. 1, 255 W.A.C. 161, 204 D.L.R. (4th) 257, 19 R.F.L. (5th) 396, [2001] S.C.J. No. 60, 2001 Cars​well​BC 1999. Joseph R.

Powers .......................................................................... counsel for the applicant mother Roselyn Pecus .............................................................................. counsel for the respondent father For previous proceedings, see H,.P. v. W.P., 2008 ONCJ 615, [2008] O.J. No. 4791, 2008 Cars​well​Ont 7055 (Ont. C.J.), per JusticeRobert J. Spence.

TABLE OF CONTENTS 1: OVERVIEW para. [1] 2: BACKGROUND para. [2] 3: LITIGATION HISTORY para. [7] 3.1: The Initial Litigation para. [8] 3.2: The First Motion to Change and Trial para. [10] 3.3: The Second Motion to Change and Trial para. [21] 4: REPORT AND EVIDENCE OF THE OFFICE OF THE CHILDREN’S LAWYER para. [22] 4.1: Findings of the Children’s Lawyer Social Worker para. [25] 4.1(a): R.P.’sR.P.’s and His Mother para. [25] 4.1(b): R.P.’sR.P.’s and His Father para. [26] 4.1(c): Conflict para. [27] 4.2: Recommendations of the Children’s Lawyer Social Worker para. [28] 5: MATERIAL CHANGE IN CIRCUMSTANCES para. [29] 5.1: The Mother and Her Parenting Plan para. [31] 5.1(a): The Mother as a Witness para. [31] 5.1(b): The Mother’s Parenting Plan para. [35] 5.2: P.P. para. [44] 5.3: The Father and His Parenting Plan para. [49] 5.3(a): The Father para. [49] 5.3(b): The Father’s Parenting Plan para. [52] 5.4: Evidence of Material Change in Circumstances para. [61] 5.4(a): Conflicted and Denied Access para. [62] 5.4(b): The Child’s Well-being para. [77] 5.4(c): Conflict in the P.’s para. [80] 5.4(d): The Mother’s Intentional Undermining of the Father’s Role andRelationship with the Child para. [82] 5.4(d)(i): Bruises on the Child para. [84] 5.4(d)(ii): Physical Discipline para. [97] 5.4(d)(iii): The Child’s Clothing para. [100] 5.4(d)(iv): The Mother’s Use of the Log Book para. [108] 5.4(d)(v): The Child’s Treatment of the Father para. [112] 5.4(d)(v)(A): The Child’s Use of Names para. [112] 5.4(d)(v)(B): The Child’s Treatment of the Father and Ms.L… para. [116] 5.4(e): The Mother’s Breaches of Court Orders para. [122] 6: ANALYSIS para. [128] 7: ORDERS para. [151] 8: COSTS para. [165] JUSTICE C.

CURTIS:— 1: OVERVIEW [1] This is the decision in a thirteen-day trial of a dispute between the parents regarding custody and access of five year oldR.P.. This is the second trial regarding custody and access of R.P.. This trial resulted from the father’s motion to change the consentcustody order of Justice Robert J. Spence made on 21 February 2008, and to change the consent access order of Justice Spence made on12 March 2008.

2: BACKGROUND [ 2 ] This is a high-conflict dispute over the child. There has been conflict between the parents since before the child was born. There has been an inordinate amount of litigation. The parents are locked in an ongoing, unhealthy and inappropriate cycle of hostility, conflict and litigation, which has continued through R.P.’s short and entire life. [ 3 ] The mother is H.P. (“the mother”), born on […] July 1971 (39 years old). She is married to P.P. (“P.P.”), born on […] March 1950 (60 years old). They married in Cuba on 26 December 1997, and came to Canada to live.

She is the mother of five children, including R.P., four of whom (not the oldest) live with her and P.P.: • J.R.-R., born on […] October 1988 (21 years old); • M.R.-R., born on […] August 1990 (19); • W.P.2, born on […] August 1999 (11); • R.P., born on […] September 2004 (5); and, • I.P., born in February 2009 (1½). [ 4 ] P.P. is the father of W.P.2 and I.P.. The mother does not work. P.P. works as an industrial millwright (fixing machinery). [ 5 ] R.P.’s father is W.P.1, born on […] November 1960 (49 years old). He lives with his partner C.L., who is about 55 years old.

They have been a couple since summer 2007 and have lived together since June 2008. The father does not work and has not worked since 2003. [ 6 ] The parents were not married to each other and did not live together. They had a romantic relationship from March 2004 to January 2006. At the time of R.P.’s conception and birth, and at the time of the trial, the mother was married to and living with P.P..

The child resulted from an affair between the mother and the father. 3: LITIGATION HISTORY [ 7 ] There has been conflict between the parents right from the start of their relationship, before R.P. was even born, and while the mother was in the hospital for R.P.’s birth. The mother told the nurses that the father was harassing her, the father was banned from the hospital two days after his birth, and was not allowed to see the mother or the child. After several weeks, the ban was lifted and then was put in place again.

There was conflict after R.P.’s birth about who the father was and, within a few days, the father hired a lawyer. Paternity testing after his birth determined that issue. There have been problems and conflict regarding access since January 2005 (when R.P. was four months old). And there has been a great deal of litigation regarding R.P.. 3.1: The Initial Litigation [ 8 ] The litigation started almost immediately after R.P. was born. The first court order was made when he was two months old.

On 15 December 2004, the mother obtained an order without notice for temporary sole custody and a restraining order from Justice Geraldine F. Waldman. [ 9 ] Access began as supervised access at the Supervised Access Centre (consent order of Justice Waldman, made on 18 January 2005), and the restraining order was set aside. Unsupervised access began later (order of Justice Waldman, made on 19 September 2005), with exchanges at the Supervised Access Centre.

There was a detailed final order by Justice Waldman, made on 26 October 2005, for sole custody to the mother and specific daytime access to the father. 3.2: The First Motion to Change and Trial [ 10 ] The next round of litigation started in August 2006 when the father brought a motion to change the order of 26 October 2005 to seek more traditional access (every other week-end, mid-week, summer, etc .). [ 11 ] The court requested the involvement of the Office of the Children’s Lawyer on 14 February 2007 and the Children’s Lawyer produced a social worker report under

section 112 of the Courts of Justice Act , R.S.O. 1990, c. C-43, as amended, dated 10 October 2007. The report found that the mother was having difficulty separating from the child. The report recommended (among other things) that access be gradually expanded to overnight access within three months. The father agreed to accept the recommendations of the Children’s Lawyer’s social worker. The mother did not. [ 12 ] There was a temporary order increasing daytime access made by Justice Waldman on 20 November 2007. Exchanges continued to take place at the Supervised Access Centre, although an alternative location (Tim Horton’

s) was offered if the parents could agree. [ 13 ] Although consent orders were made expanding access, the mother would not agree to any overnight access. The first trial was heard on 21 and 22 February and 12 March 2008 by Justice Spence. On 21 February 2008, Justice Spence made a consent final order of custody to the mother. The trial continued on 22 February 2008 and was adjourned to 12 March 2008 regarding access. [ 14 ] Justice Spence gave the mother a strongly-worded warning at the conclusion of the evidence on 22 February 2008. The warning was detailed, explicit and concrete. As a result, it shall be reproduced here:

I have a message for the mother . . . and I have a message for the father. This case desperately needs to be settled between now and March the 12th. You have an unrealistic view, M’am. I’ve heard all of the evidence. You have an unrealistic view of this case, and sir, I understand your position completely but you need to adjust your position a bit, not a lot, but a bit. This case needs to be settled because, if you don’t get together and work out a resolution between now and March the 12th, somebody is going to walk away, at the end of the day, being very, very unhappy.

My preference is to see you reach a resolution that you can both live with rather than have the court impose an order that’s going to make you unhappy, because if you can reach a resolution, as a result of discussions that you have between now and the next date, it will more likely result in co-operation in the future between mother and father in terms of what’s in R.P.’s best interests.

If I have to impose an order that makes you unhappy, you will be less inclined to co-operate, and what that means is that, if there is a problem with access in the future, because of lack of co-operation, you will be back in court over and over and over again, with the prospect of very serious consequences. You have 19 days between now and the next court date. I want you to come back at 2:00 o’clock on March the 12th, if not before then by 14B, with minutes of settlement, having resolved this.

If not, I will make the order that I believe is appropriate based on the evidence that I’ve heard and the submissions that I’ll hear on the next date. . . . Yes, the access will remain as is, and there are to be no missed access visits, none, for any reason whatsoever. I don’t know how I can be clearer than that. It doesn’t matter whether the child has a runny nose, has a cough, has a cold, there will be no missed access visits. Miss Silverman, do you understand? . . . Please make that perfectly clear to your client. There will be no missed access visits between now and the next date. . . .

There will be no missed access visits, do you understand? . . . If he is so sick that he has to go to the hospital and you provide proof to Miss Pecus that he was in the hospital, but he has to be in the hospital. Otherwise, there will be no missed access visits, do you understand? Yes? Are you clear on that? [ 15 ] The mother admits that Justice Spence warned her and that she understood what he told her. [ 16 ] The parents, both represented by lawyers, worked out a detailed consent regarding access, which provided for a significant expansion of access, including over-nights.

The consent order that resulted, by Justice Spence made on 12 March 2008, deals only with access. It is seven pages long, single spaced. There are 61 clauses regarding access. One would think that even the most high- conflict parents would be able to follow such a court order without confusion, doubt, conflict or the involvement again of judges and lawyers.

These parents could not. [ 17 ] Although the consent includes a police enforcement clause regarding access, including a clause requiring the police to locate, apprehend and deliver R.P. to the father, it was agreed that this clause would remain in effect for only six months (to 12 November 2008). This would prove to be regrettable. [ 18 ] Following the trial, at Justice Spence’s invitation, the parents arrived at a consent regarding costs on 28 April 2008.

The father agreed to accept the reduced amount of $10,000 in costs provided that the mother met certain conditions set out in the consent order of 12 March 2008, as well as complying with certain other parenting-related issues. The case was adjourned to see whether the mother would comply. [ 19 ] After several court appearances, and some skirmishes involving other issues, Justice Spence released written reasons for judgment regarding costs on 30 October 2008. The decision was lengthy (21 pages) and detailed.

Justice Spence concluded that the mother had committed a number of breaches of the terms of the costs consent and he set the costs consent aside. Justice Spence found that the father was the successful party at the trial and that he had acted reasonably.

Justice Spence also found that the mother was intent on preventing the father from having overnight access, that she insisted on proceeding to trial and that she acted unreasonably. [ 20 ] On 30 October 2008, Justice Spence made the following order: • The mother shall pay the father costs of $32,000, inclusive of costs awarded earlier in 2008; • the mother shall have until 27 February 2009 to pay the costs in full, without interest.

After that time any outstanding costs shall attract interest at the rate determined by the Courts of Justice Act ; and, • should the mother fail to pay the full costs of $32,000 by 27 February 2009, all costs owing to the father shall be set off entirely against the father’s child support obligation at the rate of $120 per month, until costs are paid in full. 3.3: The Second Motion to Change and Trial [ 21 ] The father’s second motion to change was started on 12 May 2009. The father now claimed custody of R.P., with access to the mother.

On consent, a police enforcement order, including a “locate, apprehend and deliver” order, regarding access was made by Justice Spence on 8 October 2009. The order also changed the exchange arrangements and set out details of access times. A further order was made by Justice Spence, without notice, on 18 December 2009, for police enforcement of Christmas access.

4: REPORT AND EVIDENCE OF THE OFFICE OF THE CHILDREN’S LAWYER [ 22 ] In the first motion to change, the Office of the Children’s Lawyer prepared a social worker report under

section 112 of the Courts of Justice Act dated 10 October 2007. Neither parent filed a dispute to the report. There was a request for their re-involvement in this motion to change, which request was declined. The social worker who prepared the report gave evidence at the trial. [ 23 ] Each parent told the social worker that he or she wanted sole custody with supervised access to the other parent. [ 24 ] The social worker’s evidence was that she had concerns about the mother’s ability to allow the child to have a relationship with the father.

The mother told the social worker that she was not sure whether the father should see the child at all. The mother did not promote the child’s relationship with the father. The mother was very open about her concerns about the father. She did not see a role for the father in the child’s life. 4.1: Findings of the Children’s Lawyer Social Worker 4.1(a): R.P. and His Mother [ 25 ] The social worker from the Office of the Children’s Lawyer found that: • R.P. appears to be happy and comfortable in the mother’s care. He also appears to share an affectionate, loving relationship with P.P. and with his stepsiblings.

A change in the primary care-giving arrangement at that time would have been very difficult for R.P.. There were no concerns regarding abuse. • The child and P.P. have a very positive relationship. P.P. is very affectionate, very accepting of the child. • There were no health concerns regarding the child. The social worker spoke to the child’s paediatrician, the mother’s family doctor, and the mother’s obstetrician. R.P.’s medical needs were being attended to.

P.P. is quite vigilant about this. • The mother was described as a loving and caring parent. • The mother had difficulty separating her needs from the child’s needs. The mother had difficulty recognizing that for the child’s emotional development he needed to have a relationship with the father. The mother does not see the child as a separate person.

The mother does not see the child as having rights to a relationship that he is entitled to have. 4.1(b): R.P. and His Father [ 26 ] The social worker further found that: • R.P. appears to be very comfortable in his father’s care, and R.P. demonstrates love and affection for his father. • The father appears to be very appropriate in his interaction with R.P.. • The father has provided R.P. with a consistent visitation routine, using age-appropriate toys for R.P.. • R.P. would benefit by having more time with the father. • The challenge at that time was to develop an appropriate access plan that takes into account R.P.’s development needs and the need to minimize R.P.’s exposure to parental conflict. • There was no evidence that R.P. had ever been abused by the father or C.L.. • The interaction between the father and the child was very comfortable. 4.1(c): Conflict [ 27 ] In addition, the social worker found that: • By 10 October 2007, there were already six reports to the Toronto Police Services related to domestic incidents between the mother and the father, and there were three reports to the Toronto Police Services related to domestic incidents between the mother and P.P..

No charges resulted. • During the social worker’s involvement (6 January 2007 to 8 September 2007, an eight-month period), the mother cancelled 35% of Saturday visits and 25% of Wednesday visits. • The problem with police involvement regarding conflict or access is that the child learns that conflict only gets resolved through state intervention. There is concern regarding the degree of conflict to which the child was exposed.

The risk here, if no steps are taken regarding counselling and if no steps are taken regarding conflict resolution, is that the conflict would continue and the child would be exposed to the conflict. • The impact on the child may be that the child will take responsibility for the conflict: “What is it about me that I’m creating this conflict?” • Exposure to ongoing conflict can be very detrimental and can interfere with how the child does in other aspects of his life because the child is overwhelmed by what is happening at home. • These are the most important people in the child’s life.

So this becomes the model for how to resolve conflict. 4.2: Recommendations of the Children’s Lawyer Social Worker [ 28 ] The social worker recommended that:

• R.P. must not be exposed to parental conflict. • It is strongly recommended that the adults involved refrain from speaking disrespectfully to one another in R.P.’s presence, or to talk about the other parent in his presence. • The mother to maintain sole custody. • The father shall have access each Saturday from 10 a.m. to 4 p.m. and every 3rd Sunday from 10 a.m. to 5 p.m., with transfers at the supervised access centre. • As soon as possible the mother should obtain counselling with a Spanish-speaking counsellor to assist her in: □ separating from R.P.; □ understanding R.P.’s emotional needs; □ resolving conflict; and □ facilitating access to the father. • The father should as soon as possible seek assistance from Dr.

Seidman with conflict resolution. • Access to evolve in 3 months to one night over-night on alternate Saturdays from 10 a.m. to Sunday 5 p.m., and on off weeks Saturdays from 10 a.m. to 4 p.m. • Any failure by the mother to provide R.P. with weekly access to the father should be taken very seriously in these proceedings. • Access arrangements will need to change with time as R.P. gets older and his needs change. • Each parent shall co-operate with Catholic Children’s Aid Society of Toronto. • Non-removal re both parents re Ontario. • Parents should not speak disrespectfully to each other or about each other in the presence of R.P.. • R.P. should not be exposed to cigarette or marijuana smoke; and, • The mother and P.P. should not argue in presence of R.P.. 5: MATERIAL CHANGE IN CIRCUMSTANCES [ 29 ] The test for changing a custody and access order is set out in

section 29 of the Children’s Law Reform Act , R.S.O. 1990, c. C-12, as amended (“CLRA”): 29. Order varying an order.— A court shall not make an order under this Part that varies an order in respect of custody or access made by a court in Ontario unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child. [ 30 ] There must first be a determination that, since the last custody and access order was made, there has been a material change in circumstances that affects or is likely to affect the child. Then, if that threshold is met, the court embarks on a fresh enquiry into the best interests of the child, under

section 24 of the CLRA . 24. Merits of application for custody or access.—

(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).

(2) Best interests of child.— The court shall consider all the child’s needs and circumstances, 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 be ascertained; (

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 child with 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’s care 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 is a party to the application. 5.1: The Mother and Her Parenting Plan 5.1(a): The Mother as a Witness [ 31 ] The mother was a difficult witness. She was often combative during her testimony. She was confrontational and unco- operative. When she did answer, her evidence was convoluted. She rarely answered the question that she was asked. She refused or was unable to answer many questions. Her answers were evasive and she often feigned confusion.

The mother repeatedly answered “Why are you asking that?” and “I don’t deserve to be treated like this”. Although very experienced in litigation and although this was her second trial, the mother repeatedly had to be cautioned to answer the questions being put to her. [ 32 ] At times, the mother feigned lack of understanding regarding the consent order of 12 March 2008 and regarding many other things. This was not believable.

At other times, she openly admitted she had breached the consent order. [ 33 ] The mother’s evidence was that, since the order of Justice Spence on 30 October 2008 (regarding costs of the first trial)

“I have not done anything wrong”. [ 34 ] Her answers were evasive, internally inconsistent and there were repeated contradictions in her testimony. She gave answers that were at odds with her behaviour, without any explanation (for example she said “I will not interfere with anything between the father and the child”, and “of course I am supporting that relationship”). The mother was simply not credible as a witness. 5.1(b): The Mother’s Parenting Plan [ 35 ] The mother wants sole custody of the child.

The mother says that she does not mind at all for the child to have a relationship with the father and that it is alright with her, despite all the evidence to the contrary. [ 36 ] She says that she does not currently have concerns about the child’s being with the father, but that she had concerns in the past. The mother says that she accepts that, despite her fears, it is safe for the child to see the father. She says that she is quite worried, but that the child has to be with his father. She says that, if there is a court order, she has no choice.

She says that she is able to accept that and to deal with her worries and her fears. [ 37 ] The mother believes that she has been reasonable and co-operative with the father. The mother says that she has tried but that the father has never shown an interest in working together, he has been unreasonable and unco-operative and he always tried to get his own way. The mother believes that both she and the father are guilty of not following the court order. [ 38 ] The mother says that the father does not love the child and that he is not bringing the court case in the child’s best interests.

The mother believes that the father brought the case to court because he wants to damage her family economically and to break up her relationship with P.P.. The mother says that the father told her he is going to take her to court and ruin her. [ 39 ] The mother wants the court order regarding access to be simpler. P.P. wants the every weekend visits to be changed to every other weekend so that the family can go away sometimes on weekends. [ 40 ] The child would continue at the same school. The mother and P.P. plan to move to a bigger house in the near future, in which all the children would have their own rooms.

The mother wants to go to Cuba to visit her mom and her family and would like to take her whole family (including R.P.) there to meet her family in Cuba. [ 41 ] The mother proposed a detailed access plan that included every other weekend and every Wednesday night over-night, with all exchanges at the school (with Tim Horton’s as a back up when school is unavailable) and with neither parent present at exchanges. [ 42 ] The mother wants there to be no further use of the log book (as it has led to conflict) and no provisions for make-up access. [ 43 ] The mother says that she will follow the next court order. 5.2: P.P. [ 44 ] P.P. is an interesting and unusual man.

He is uncomplicated and unsophisticated. He clearly loves the mother and is committed to her, all five of their children, their relationship, their marriage and their life together. Given all the circumstances, this commitment is impressive. [ 45 ] P.P. described the mother as difficult to understand. The mother does not read or write. Her English is poor. He says that he has not used Spanish with her for quite awhile (the two oldest children speak Spanish).

He said that he has to express himself in ways that she can understand. [ 46 ] P.P. is the only wage earner in the P. family, supporting two adults and four children. As a result of the costs order of Justice Spence of 30 October 2008, there is no monthly child support being paid by the father, and there is no other child support being paid for M.R.-R..

No one else assists in supporting the family. [ 47 ] At times during his testimony, P.P. was aggressive, very agitated, hostile, angry and surly. [ 48 ] P.P. believes that the father is trying to break up his relationship with the mother, to wreck his family, and that the father bears P.P. malice. P.P. described the situation as “a man has come into my life, because of one mistake by my wife, and has caused my life chaos”. He says he is resentful of the father because of the trouble the father has caused them and because the father has interfered with his family.

He does not believe that the litigation is because the father wants to spend more time with R.P.. P.P. believes that he will never get along with the father so he tries to keep his contact with the father minimal. He believes that the father has caused the conflict. There is no evidence to support these beliefs. 5.3: The Father and his Parenting Plan 5.3(a): The Father [ 49 ] Arriving at the proper outcome in this case would be a simpler matter if one parent were entirely in the wrong and one parent consistently in the right.

That is not the case here, although the father feels he is entirely in the right and that he has been victimized. There is a self-righteousness about the father that is concerning and that contributes to the conflict. His charts about the missed access and how much of it was re-scheduled were very detailed and suggested an inappropriate interest in what he perceived as “his rights” and fairness. He is stubborn and rigid in the extreme.

[ 50 ] The father has also breached the court order of 12 March 2008: • The child is free to call the other parent: paragraph 7 The father has applied a very rigid

interpretation of this paragraph, which says “when R.P. is able to initiate such contact”. The father has not initiated any telephone calls for the child to the mother or assisted the child in calling the mother. The mother also does not initiate the child calling the father. Her evidence was “the child never asks”. • Cutting the child’s hair The father has cut the child’s hair about four times, although he was asked each time not to do so. The father said R.P. was having gender identity problems, as his hair was about 8" long at the back. The haircuts resulted in a radical change in R.P.’s appearance.

The father admits that he was wrong, and that he should have left that for the mother to do. • Taking the child to the doctor The father admits that he has taken the child to the mother’s family doctor, the dentist and the eye doctor without telling or asking the mother in advance. The father knows that the decision to take the child to doctor is the mother’s decision.

The father says that he did so as he was concerned that the child was not getting the attention that he required. [ 51 ] While he may not have single-handedly caused the confrontations and conflict, in many circumstances, his behaviour and insistence on a particular path has contributed greatly. He is far from innocent in this situation and he cannot continue to see himself as a victim. Like the mother, he is a participant. The parents in this case are both responsible for the conflict and for some inappropriate conduct regarding the child.

Both parents must accept responsibility for this situation and for their behaviour. 5.3(b): The Father’s Parenting Plan [ 52 ] The father’s plan for custody is that the child would reside with the father and C.L., have his own room and attend the Montessori school nearby. The father says his home is a calm, peaceful, loving home without conflict. [ 53 ] The father says that he will not simply attend to the child’s needs, but will ensure that all the child’s educational, medical and emotional needs are met.

The father has a strong interest in culture, music, theatre, travel that he would share with the child, as well as his love of sports (sailing, skiing, water-skiing, skating, cycling and bowling). [ 54 ] The father says that he can engender a love of learning and reading in the child. The father points out that the mother struggles with English and will not be able to offer the child much help with his education.

As well, there are other children vying for attention in the mother’s home, including a child younger than R.P.. [ 55 ] The father and C.L. took two parenting courses at Aisling Discoveries Child and Family Centre and took seminars at Families in Transition regarding parents apart, and conflict resolution. [ 56 ] The father identifies the duties that he says he owes to the mother if he has custody: (

i) to support the mother’s relationship with the child; (ii) to encourage the child to have a relationship with the mother; and (iii) to keep the mother informed. [ 57 ] The father identifies the duties that he says he owes to P.P. if he has custody: (

i) to support P.P.’ relationship with the child, as he has been an important person, and should remain an important person; and (ii) to support the child’s relationship with his siblings. [ 58 ] The father is prepared to get any counselling needed. [ 59 ] The father proposes that there should be no access to the mother for four months after the change in custody.

This proposal is not based on a professional opinion from a mental health expert or a custody and access expert, but appears to be based on information the father collected from the Internet. [ 60 ] The father’s evidence is that custody to him will allow the child to have a healthy and happy relationship with him and C.L., the mother, P.P., and his siblings, without interference from anyone. 5.4: Evidence of Material Change in Circumstances [ 61 ] There is a great deal of evidence, set out below, in support of a finding that there has been a material change in circumstances since the consent order of 12 March 2008. 5.4(a): Conflicted and Denied Access [ 62 ] The mother has consistently, continuously and intentionally interfered with and obstructed the father’s access. [ 63 ] Access problems became more serious after the expiration of the police enforcement clause on 12 September 2008.

The father says that, when this motion to change was started on 12 May 2009, 25% of scheduled access had been cancelled by the mother. The mother did not deny that access had been cancelled and did not even deny the father’s numbers about cancelled access. The father says that some, but not all missed visits, had been made up by the time of the trial. The mother said that it had all been made up: “I don’t owe him anything”.

[ 64 ] The serious access problems started in fall 2008 when the mother moved R.P. from the afternoon Kindergarten program to the morning. The mother says that she changed the child’s class as she was having a difficult pregnancy with I.P. and it was more convenient for her if the child was at school in the morning. [ 65 ] The mother demanded that the father pick up the child at 3.30 p.m. at Tim Horton’s, not at the school. The father refused this arrangement. He did not want to have direct exchanges with the mother as he says that she had falsely alleged he had harassed and assaulted her.

The mother had claimed that the father had harassed her to the nurses at the hospital at time of the child’s birth, to the social worker Sandrise James (Catholic Children’s Aid Society of Toronto (“CCAS”)), to the police, to her family counsellor, to the mother’s family doctor, and to the child’s paediatrician. The father’s evidence is that he did not harass the mother or assault the mother.

Sandrise James’ (CCAS) evidence was that she and her co-workers, the nurses at the hospital at the time of the child’s birth and the police have all questioned the credibility of the mother and P.P., at various times, in relation to various issues, including in relation to whether or not the father harassed the mother. [ 66 ] The father offered to go to the school at 11.30 a.m. to pick up the child and the mother refused.

The father felt that, if he did not hold the mother to the access schedule, they would be right back in court. [ 67 ] The first time this occurred, the mother was at Tim Horton’s and refused to bring the child to the school. The father refused to go to Tim Horton’s, as he thought he’d be at risk in meeting the mother directly.

The mother admits that she has no good explanation for why she did not just let the father pick up the child at the school. [ 68 ] The mother decided that this visit was missed due to the father’s own fault and she refused to agree to make-up visits, in accordance with the terms of the consent order of 12 March 2008. This continued on in November and December 2008. [ 69 ] This event is typical of the conflict between these parents.

The trial evidence was a litany of missed visits, of the father waiting in one location and the mother waiting with the child in another location, with neither prepared to go to the other’s location. The parents both behaved badly and dug their heels in on this issue.

This level of head-butting by the parents, both older adults, is astonishing. [ 70 ] Eventually, as a result of an incident at the school directly outside the main office, they were not allowed to do the access exchanges at the child’s school, as the school did not want to be in the middle of their problems. [ 71 ] The use of the access centre for exchanges was also suspended by the access centre because of the number of visits cancelled by the mother, the issue regarding the child’s clothing (more about this follows), and the fact that P.P. would not stay the required wait time before leaving the access centre (in accordance with Access Centre policy and in order to avoid contact with the other parent). [ 72 ] At access exchanges, the mother would frequently call the child to come back to her for a hug and kiss before she leaves.

This behaviour had the effect of making it a contest for his affection. The child was clearly conflicted. The father says this was damaging and harmful to the child. The father asked her to stop. The parents agreed that, on one occasion, the father grabbed the child very hard by the collar of his jacket and pulled the child back to him. [ 73 ] On 18 December 2009 the father went to court to get the mother to comply with the court order for Christmas access.

Police had been called to the mother’s home and tried to make the access exchange happen, but the mother refused to let the father take R.P. for the court-ordered Christmas access. [ 74 ] The mother obstructed visits even while the court was overseeing access. [ 75 ] The father does not accept any responsibility for missed visits or conflicted access. The father does not see what he could have done differently given the history. [ 76 ] The father will not speak to the mother on the telephone.

The mother says that she leaves many messages for the father. 5.4(b): The Child’s Well-being [ 77 ] The father concedes that the mother and P.P. can meet the child’s basic needs and can provide food, clothing and shelter. However, the mother and P.P. may be ignoring other fundamental needs of the child, and as a result, the child’s well-being is at risk. [ 78 ] The mother demonstrates no understanding of or ability to meet other than the child’s very basic needs.

There were several instances of the mother’s ignoring medical advice regarding appropriate steps or treatment for the child, set out below: • The mother refused on three occasions to follow the recommendations of the neo-natal occupational clinic (to use occupational therapy to improve R.P.’s fine motor skills). There was a report dated 2 December 2008 that recommended occupational therapy for the child through the school, which would be at no cost to the mother, and would not be inconvenient to the mother, as therapy would take place at the school and during school hours. The mother refused.

The mother says that she does not remember who she spoke to at the neo-natal clinic or when she spoke to them. She says that the child was okay, that he did not need occupational therapy. The mother only agreed to the therapy after some persistence on the part of the school principal. The child just started occupational therapy in January or February 2010 (more than a year after the recommendation was made). • The mother refused to register the child in swimming to help with his gross motor skills. • The child’s paediatrician recommended that the child see an allergist.

This did not happen until after this motion to change was brought. • The mother’s family doctor prescribed ammonia liquid for the child’s ears. The father was not told about this even though the child visited him during part of the time of the prescription. The mother says that the child never had any ear infection when he was with her and that he had an ear infection when he was with the father.

• The mother’s family doctor prescribed a ventolin inhaler for the child. The mother did not tell the father about this, and did not send the inhaler to the father to use, until after this motion to change was brought. The father has used ventolin himself, as he has had asthma since he was about 11 years old. The mother admits that, when the inhaler was first prescribed, she never sent it with the child on access visits. The mother says that she did not tell the father about it because he did not pick up the phone and that the father can request the information from the doctors himself.

P.P. says that the mother now knows that she has to send the prescription with the child for visits and that she has been doing this for 4-5 months (before the trial). The mother says that she always writes whatever the child needs in the log book. If the child is sick, she writes that in the log and that she sends the medicine with the child to the father. • The mother’s family doctor recommended that the child see the child’s paediatrician to be assessed for an umbilical hernia.

The mother did not do this until almost a year later, even though the mother saw the child’s paediatrician the day after the visit with the family doctor to complain to the paediatrician about bruises on the child following access. • Surgery for the child’s umbilical hernia was recommended. The mother did not give permission for surgery to be done until June or July 2009. The surgery did not happen until 8 September 2009, 16 months after the mother’s family doctor first suggested that the child be assessed for it.

The mother did not have the surgery done on the child until after she was served with this motion to change in 2009. The mother says that she called the father to tell him about the surgery when she scheduled it and left a message and that the father never called her back. [ 79 ] There are nine paragraphs in the consent order dealing with R.P.’s health (paragraphs 25-33). The provisions require the sharing of information about the child’s health. 5.4(c): Conflict in the P.’s [ 80 ] The evidence of Sandrise James (CCAS) is that there is a lot of conflict between the mother and P.P..

The mother and P.P. scream at each other, call each other names and swear at each other, in front of the children. The father corroborated this evidence and is quite concerned about this environment for the children. P.P. described the mother as hot tempered. He admitted that they yell a lot and shout. [ 81 ] The CCAS has been involved with the P. family since about 2004, since before R.P. was born in 2005. The initial involvement for about three years was around concerns regarding the mother and P.P.’s relationship.

The CCAS is still involved with the P. family. 5.4(d): The Mother’s Intentional Undermining of the Father’s Role and Relationship with the Child [ 82 ] The mother admitted that sometimes she did not want the child to go with the father, and that she had said that the father should have no role in the child’s life. The mother says that she did not try to stop the father from having a relationship with the child.

The mother has no understanding of the child’s need for a good, close, strong relationship his father, a relationship without interference or undermining by the mother. [ 83 ] The mother and P.P. are actively, consciously and intentionally engaged in a campaign to restrict the child’s contact with the father, to undermine the father’s relationship with the child and to minimize the father’s role in the child’s life. The evidence in support of this finding is clear, detailed and overwhelming.

There are many instances of the mother’s behaviour that support this finding, set out below. 5.4(d)(i): Bruises on the Child [ 84 ] The mother and P.P. continue to check the child for bruises after his visits with the father. This went on at the access centre as well, even though the mother was told at the last trial by Justice Spence to stop this. The mother was checking the child for bruises after most visits. She checked him at the access centre on 15 March 2008, three days after the consent order of 12 March 2008. [ 85 ] The mother says that, every time the child goes for a visit, he comes home with bruises.

She says that the reason that she checks the child for bruises is to protect herself so the father cannot say that she is the one causing the bruises, and also to protect the child. The mother does not feel it is wrong for her to do that. The mother says that the father is the kind of man who would hit a child. [ 86 ] The mother says that the father is capable of hitting the child because he hit her. She says that the father has abused her, and that he is very aggressive, and very possessive. The mother says that the father has a rough character, and a bad temper.

The mother says that the father hit her, which caused her to deliver the child prematurely, although three of her five children were premature, including I.P., the most recent child born in 2009. [ 87 ] The mother says that the father is capable of hitting the child because she saw him hit a child in the street with a long stick, 1½" in diameter, ¾" circumference, and 1 metre long. [ 88 ] The mother also thinks that C.L. abuses the child.

She says that the child tells her about it without even being asked and that the child tells her that they take turns. [ 89 ] P.P. also believes that the father hits the child and causes the bruises. P.P. believes that the father treats R.P. harshly, even though neither the CCAS nor the Children’s Lawyer report verified any abuse by the father, and there was no evidence to support this belief. [ 90 ] The father says that he has never hit the mother or the child, that he has never made a threat to the child’s life. The father

has no criminal record and has never been charged with a criminal offense. The father’s evidence is that he has never abused the child in any way, physically, emotionally, sexually or verbally. The court believed him. [ 91 ] The mother has raised the issue of bruises on the child after access and has claimed that the father and his partner have abused the child with everyone in the child’s life, including Sandrise James (CCAS), the child’s paediatrician, the mother’s family doctor, and the Jewish Child and Family Services.

These allegations are often made in the child’s presence. [ 92 ] The bruises on the child were examined by the child’s paediatrician, the mother’s family doctor and the hospital. This allegation (that the father or his partner have abused the child and caused bruises) has never been validated. [ 93 ] The mother says that the doctors have told her that the bruises with which the child comes back are quite normal. The mother does not believe that the bruises are normal.

The mother has taken photographs of the bruises, but did not bring them to the trial. [ 94 ] Sandrise James (CCAS) testified that the mother and her family members have made repeated and numerous allegations to the CCAS about the father’s abusing the child by hitting him, touching him inappropriately, that the child was slapped in the face, and the father putting him in a closet, and that they have observed bruises on his legs and cheek. Her evidence was that the child said “I don’t want to go there no more”, “the guy hit me”, “the lady hit me and pulled my hair”.

All allegations were investigated and none of these allegations have been verified by the CCAS. Her evidence was that neither the father nor C.L. has ever abused the child. [ 95 ] The mother knows that a number of organizations have investigated the father for hitting the child (including the CCAS and the Children’s Lawyer social worker) and that these organizations had no concerns about the father’s hitting the child.

The mother says that no-one ever verified that the father had hit the child “because they are not doing the work they are supposed to do” and that “those people never took this thing seriously”. [ 96 ] The mother’s evidence about this is not credible. The mother’s allegations about the father’s abusing the child are unreasonable and unfounded.

Her allegations are contradicted by the report of the Children’s Lawyer and the findings of various other professionals (the CCAS’ Sandrise James, the mother’s family doctor, and the child’s paediatrician). 5.4(d)(ii): Physical Discipline [ 97 ] The father witnessed the mother hitting her other children. The father reported this to the CCAS as early as 2004 and the CCAS did not verify this. The child tells the father that the mother smacks him all the time.

The mother says that she never hit R.P., but that sometimes she did hit the other children. [ 98 ] The mother says that she does not hit the child, that she uses time-outs for discipline. She admits to hitting W.P.2 one time but not the other children. The mother denies that she has ever been investigated for hitting her children, although there is a police report regarding this, referred to in the report of the Children’s Lawyer.

The mother says that her children have never spoken to the police. [ 99 ] P.P. admits that the mother uses physical discipline, that she has a bit of a temper, that she hits W.P.2 and M.R.-R., and that he has asked her not to do that. P.P. says that he has never used physical discipline on R.P.. 5.4(d)(iii): The Child’s Clothing [ 100 ] There is a long-standing and ongoing problem regarding the child’s clothing. The mother objected to the child’s wearing clothes provided by the father.

After the visit is over, when the child is returned to the mother, if the child is wearing clothes provided by the father, the mother changes the child’s clothes immediately, at the transition location. When the access centre was unwilling to do this, the mother changed the child and gave the father those clothes back. This situation started in summer 2007, well before the consent order of 12 March 2008.

In addition to the changing of the child’s clothes at the end of the visit, when the child returns to the mother’s home, he immediately has a bath. [ 101 ] The father said there were on-going and constant complaints from the mother, demanding that the child not be taken out of his clothes and demanding that the child be put back into them.

The child told the father that the mother was getting extremely upset and angry at the child. [ 102 ] The mother’s explanation is that there were many children in her home and it was too difficult to have to deal with sorting out clothes and returning clothes, and that she did not want to have to deal with keeping track of clothing. However, as there are no other children R.P.’s age in her home, and there are no other boys the age of R.P., this should not be difficult to track. [ 103 ] The issue was specifically addressed in the consent order of 12 March 2008 (para. 43).

The order specifies that the child may go home in the clothes he is wearing at the end of the visit and that he is not to be changed at the access centre. This did not change the mother’s behaviour. [ 104 ] This has become a major issue, especially at the supervised access centre. [ 105 ] The father says that this is not an issue of inconvenience for the mother as she alleges. It is simply that the mother does not want to see the child in clothing that was bought by the father. The effect on the child is that essentially the child is being rejected when seen in clothing that reminds the mother of the father.

This causes problems at the supervised access centre and creates anxiety for the child. When the first thing the mother does is remove the clothes from the child, it sends the child the message that anything associated with the father is bad, that any sign of the father’s involvement in the child’s life is unacceptable and is unbearable to the mother. [ 106 ] P.P. says that he does not care whose clothes the child wears and that he has never made the child change his clothes at the access centre. P.P. has told the mother to stop changing the child’s clothes after visits and has told her that it is ridiculous.

However,

P.P. says that the mother is adamant about this. [ 107 ] The mother admitted that the problem with the clothes is no good for the child. Yet this was still happening at the trial. And the child is very worried, very concerned about this.

This behaviour by the mother raises serious concerns about her ability to put the child’s best interests ahead of her dislike of the father and shows an inability on the part of the mother to put the child’s needs ahead of her own. 5.4(d)(iv): The Mother’s Use of the Log Book [ 108 ] The consent order of Justice Spence made on 12 March 2008 provided that the parents shall use a communications log book to pass information back and forth regarding the child’s life without the parents having direct contact.

The mother is illiterate in English, so P.P. writes what she tells him to write in the log. [ 109 ] The mother’s entries in the log book are constant instructions to the father to feed the child with a clear implication that the father has no idea how to care for R.P.. For example, these are some of the entries: • 26 April 2008: “don’t change clothes. Try some salad. No dairy.

Wash hands.” • 14 June 2008: “he must wear his own clothes back to us” • 19 July 2008: “do not leave clothes on him” “put his own clothes on him” [ 110 ] The clothing issue is referred to extensively in the log book. [ 111 ] One might ask why the court should care about this and why the father does not simply ignore this.

The mother’s constant entries of this nature are a reflection of the mother’s dismissive and condescending attitude towards the father and towards his care of the child and his ability to care for child. 5.4(d)(v): The Child’s Treatment of the Father 5.4(d)(v)(A): The Child’s Use of Names [ 112 ] While the child is with the father, he calls the father “daddy”, calls the father’s partner “mommy” and calls P.P. “other daddy” and the mother “other mommy”., The father’s evidence is that the child was never asked by the father to call P.P. “other daddy”, was never forced to call C.L. “mommy”. [ 113 ] The mother’s evidence is that the child calls the father “the guy” while with her, and calls C.L. “the lady”.

The mother says that she did not tell the child to do this. The mother says she has never told the child he’s not allowed to call the father “daddy”. The mother says she has corrected the child to call the father “daddy” and that every time she corrects him, the child gets upset. [ 114 ] The father knows from the mother’s family doctor and Sandrise James (CCAS) that they have heard the child refer to the father as “the guy” and to C.L. as “the lady”.

In fact, Sandrise James’ evidence is that she has only ever heard the child call the father “the guy”. [ 115 ] P.P. admitted that they used to call the father “the other guy” in front of the child, because of P.P.’ animosity towards the father. P.P. admits that R.P. learned to call the father “the other guy” or “the guy” from P.P. and from his sister M.R.-R.. P.P. acknowledged that it was not right and that they do not say that now. However, P.P. admits that he asked the child during the trial “do you want to go live with the guy?”.

P.P. says that the child said “No, you’re my daddy”. 5.4(d)(v)(B): The Child’s Treatment of the Father and C.L. [ 116 ] The father’s evidence was that the child is very inquisitive, very gentle, calm, did not need discipline, and was wonderful to be with. The father’s evidence is that their home life is loving, calm, peaceful and affectionate. They try to involve the child in everything they do. The child is an integral part of their family. [ 117 ] The father’s evidence and the evidence of C.L. is that she has a great relationship with the child. She is very gentle and kind.

She has really taken to filling a mother role when the child is with the father. C.L. loves being with the child. C.L.’s evidence is that she has never abused the child. The father’s evidence is that the child and C.L. adore each other and that they play together, bake, do puzzles and read. [ 118 ] The father’s evidence was that, until February or March 2009, R.P. was very open with him and C.L., was affectionate, hugging, kissing and the child was saying “I love you” on regular basis.

That has all changed. [ 119 ] The father says there have been changes to the child’s personality and that he is less affectionate, more withdrawn and distant. Where the child used to say “I love you” all the time, the father’s evidence was that he has only said it three times from March 2009 to March 2010. The child started to say “I don’t want you to hug me/kiss me”; “I don’t want to be with you”; “I’m not supposed to like being with you”. The child brushes away kisses on his face or head.

The child says he’s not supposed to like it with them and he says that he does not love them. [ 120 ] The child told the father that they should not kiss him; he does not want to kiss them; he does not want to visit him (the father); the father is not his father; the police are going to arrest him (the father). The child told the father that he has been told by the mother and P.P. that the father is not his father, and that P.P. is his father and not his stepfather. [ 121 ] The mother’s evidence is that she told the child that they (the father and C.L.) can kiss him but not on the mouth.

5.4(e): The Mother’s Breaches of Court Orders [ 122 ] The mother has frequently and repeatedly breached various court orders and various clauses in the court orders. She breached the consent order of 12 March 2008 about the father’s access repeatedly and openly. She breached the order intentionally and knowingly. The mother acknowledged that she breached the court order. She referred to breaching the court orders as “I understand that I made some mistakes”. [ 123 ] The consent order of 12 March 2008 regarding access is a very long and detailed order.

Because there were so many problems before that, the order was an effort to ensure that all possible issues were addressed so that there was no ambiguity about what the parents should do.

It is seven pages long, single-spaced and contains 61 separate numbered clauses, under eleven headings: • Principles of Access • Police Enforcement • Terms of Access • Statutory Holidays • Spring Break Holiday • Summer Holiday 2009 • Christmas — New Years Holiday • Summer 2010 Holiday • Missed Access Visits • R.P.’sR.P.’s’s Health • Parenting Issues [ 124 ] The mother’s evidence is that she understood at the time that by signing the consent she was indicating to the court that she would follow the terms of the court order.

The mother did not take the position at trial that this was not her contract or that she wanted to try to set it aside. Yet, on 30 March 2008, only two weeks after the consent order was made, the mother told the access centre staff that she did not agree with terms of the court order. [ 125 ] P.P.’ evidence is that he believed they were following the court order and that it was the father who was causing the conflicts. [ 126 ] The mother breached the orders knowing that there may be serious consequences for these breaches.

The mother’s evidence was that she understood that, if she continued to not follow the consent order of 12 March 2008, she could lose custody of the child. This is a catalogue of the mother’s breaches of the consent order of 12 March 2008: • Access exchanges: paragraph 1 Exchanges are to be at the supervised access centre or at a specified Tim Horton’s restaurant. The mother has not complied with this. • Missed access: paragraph 24 There is a system in place for scheduling missed access and the mother has not complied with this.

The mother has cancelled many access visits and has not made up majority of those missed. • Father’s access to information: paragraph 25 In clear contravention of the court order, some records keepers were told not to release information about the child to the father. • Each parent can speak to the doctors: paragraph 26 The mother refuses to give the father the information about the child’s doctors.

She says it is not necessary because she called the father to tell him about the doctor’s appointments and left a message for him to call her, and he never called her back. • Informing the father if the child requires medical or hospital care: paragraphs 27, 28, 29, 32, 33 The mother has failed to inform the father about taking the child to the hospital and has failed to inform the father when doctors have prescribed treatment or medicine for the child. Only one month after the consent order, the mother did not tell the father when the child was in hospital on 18 April 2008 for umbilical hernia surgery.

The father only learned about this after it happened, from the communications log book. • Neither parent shall expose or allow R.P. to be exposed to cigarette or marijuana smoke: paragraph 31 The child comes to visits smelling of cigarette smoke. The communication log book also smells of cigarette smoke. • Both parents may go to the child’s activities: paragraph 34 The mother has not complied with this clause. The mother got very upset when the father and C.L. attended a school information night, although the principal testified that they were doing nothing wrong and not bothering the mother in any way.

The mother tried to have the father and C.L. removed from school, and the school removed them. • R.P.’s birth registration to be changed to show the father’s name: paragraphs 35, 36 At trial the mother had not produced the long form birth certificate, or the short form birth certificate to the father to show that the registration of the child’s birth had been changed to show the father as the father (P.P. is shown as the father). These documents were to be produced to the father by 12 June 2008 and 12 September 2008. The mother admitted that she did not apply to change the birth certificate until March 2010.

The father was also to receive the hospital card, immunization record and social insurance card of the child. At trial, only the child’s health card has been provided. • Physical discipline: paragraph 38 The mother has used physical discipline on R.P.. • Parents are not to speak disrespectfully about the other parent: paragraphs 39, 40 The mother has not complied with this. The child has told the father several times that the father is not his father, and that the police are going to come and arrest the father. • Changing the child’s clothes: paragraph 43

The mother continued to protest about the child’s being returned from access in clothing that the father has provided, andcontinues to change the child’s clothes at the transfer. • The mother’s counselling; paragraph 45 The mother has not gone to “counselling to assist her in separating from R.P., understanding his emotional needs, resolvingconflict and in facilitating access” to the father. The mother says counselling was to help her so that the child can go withthe father because she is so attached to the child.

The mother has not provided the father or the court with any proof thatshe has gone to counselling. • Parenting co-ordinator; paragraph 47 The mother refused to contact parenting co-ordinator Linda Chodos. The mother says that both she and P.P. both contactedChodos, but did not sign up with her because of money. P.P.’ evidence was that he looked for a counsellor through his job,which would be free. The father contacted Ms. Chodos.

As a result, disputes could not be resolved except through court. [127] The details on the individual clauses that have been breached are not as important as the significance of breaches of thismany clauses of a consent order over a long period of time. This level of disregard for court orders, particularly a consent order, andparticularly one so extremely detailed, shows a clear intention on the part of the mother to not comply with any court orders of any kindabout the child. The mother has no intention of facilitating access for the child and his father. She has had ample opportunity to showotherwise.

She has not. R.P. is now five years old. In fact, she has shown over and over again that she intends to continue as she has,manipulating a young and vulnerable child, and undermining the relationship that the child has with his father. The evidence of thisbehaviour is overwhelming. 6: ANALYSIS [128] There is more than enough evidence to support a finding that there has been a material change in circumstances that affectsor is likely to affect the child since the last custody and access order was made (CLRA,

section 29). Next the court must determine whatarrangements are in the child’s best interest (CLRA, subsection 24(2)). [129] A determination of what is in a child’s best interests is specific to the needs and circumstances of that child; see S.G.B. v.S.J.L., , 66 R.F.L. (6th) 103, [2009] O.J. No. 1998, 2009 Cars​well​Ont 2660 (Ont. S.C.), at paragraph [48]. Eachcustody case turns on the needs of the particular child and the ability of the parents to meet those needs in the circumstances of the case. [130] Custody and access decisions are inherently an exercise in discretion.

Case-by-case consideration of the uniquecircumstances of each child is the hallmark of the process. This discretion vested in the trial judge enables a balanced evaluation of thebest interests of the child and permits courts to respond to the spectrum of factors that can both positively and negatively affect a child. See Van de Perre v. Edwards, [2001] 2 S.C.R. 1014, 2001 SCC 60, 275 N.R. 52, 156 B.C.A.C. 161, 94 B.C.L.R. (3d) 199, [2001] 11W.W.R. 1, 255 W.A.C. 161, 204 D.L.R. (4th) 257, 19 R.F.L. (5th) 396, [2001] S.C.J.

No. 60, 2001 Cars​well​BC 1999, at paragraph [13]. [131] The literature indicates that parental conflict is a major source of harm to children. High levels of parental conflict inseparated families can have a devastating impact on children and their development; see Jackson v. Jackson, , 50R.F.L. (6th) 149, [2008] O.J. No. 342, 2008 Cars​well​Ont 654 (Ont. S.C.), at paragraph [20]. [132] Conflict between parents at this level, sustained with this intensity and sustained over such a prolonged period of time, isunusual.

It is unhealthy for the adults involved and it presents a clear risk of harm for the children who are cared for by those adults:that means all of the mother’s children, including R.P., and clearly most significantly R.P.. [133] The CCAS has been involved with the P. family since about 2004, initially regarding the conflict in the relationshipbetween the mother and P.P..

The CCAS continues to be involved with the P. family today, largely due to risk of emotional harm to thechildren due to the conflict between the mother and the father. [134] A court should not award custody to reward good conduct or punish misconduct. But the court cannot ignore the parents’behaviour when that behaviour, as in this case, so strongly impacts on the child’s best interests and his life. [135] It is fundamental to the identity of a child to be able to love and accept love from each available parent.

The motherrefuses to accept the underlying principal for a child from separated parents, which is that in most cases, it is the job of the custodialparent to support the child’s relationship with the access parent. [136] Why should the court think anything would be different after this trial if the mother continues to have sole custody? Indeed, there is no evidence that it will be any different.

The mother has had many chances over six years and three rounds of litigationto comply with various court orders regarding access and related issues, to change her attitude towards the father and her behaviourtowards him and to help her son to deal with the life he has and the unusually high level of conflict between his parents. [137] The parents’ lawyers crafted an exceptionally detailed access consent and order. The mother has been warned on severaloccasions by the court, in clear and unambiguous language, that her behaviour is inappropriate and harmful to R.P. and cannot continuewithout consequences.

Similar warnings and suggestions have also come from the report of the Children’s Lawyer, the social workerfrom the CCAS, two doctors who treat R.P. and from others. The mother knew that she was at risk of losing custody of R.P. if she didnot comply with the consent court order. [138] The mother is a manipulative and intransigent parent who is blind to the child’s interests. She had the opportunity to keepher family intact and keep all her children living with her. All she had to do was to comply with the court order that she agreed to. Shechose not to comply.

The mother has not listened and has continued her harmful behaviour. The mother believes she can do what shepleases. [139] It is hard to imagine what other remedies are available to make this situation better for R.P. than the drastic remedy of

changing custody sought by the father. Much has already been tried, and has failed. [ 140 ] The father and the court have done everything possible to get the mother to comply with court orders. This is what has been tried and has failed: (

a) there is a very detailed court order; (

b) there was a police enforcement clause; (

c) the supervised access centre was used for neutral exchanges; (

d) a parenting co-ordinator was to be used to resolve disputes; (

e) the court ordered therapy for the parents; (

f) the previous trial judge emphasized the importance of following the court orders and the possible consequences of not doing so; (

g) there is a substantial costs order against the mother; and (

h) the court made an order offsetting costs against child support. [ 141 ] The mother continues to try to thwart the father’s access to the child and to undermine his relationship with the child. The mother still interferes with the father’s access. The mother still does everything in her power to eventually eliminate the father’s role in the child’s life. She continues falsely to allege that the father and C.L. have abused the child. She continues to demonstrate that she has no understanding nor ability to meet other than the child’s very basic needs.

The mother continues to breach court orders. [ 142 ] Although it is obvious that no court should gamble with a child’s long-term psychological and emotional well-being, where it is clear that the status quo is so detrimental to the child, a change has to be made: see A.A. v. S.N.A. , 2007 BCCA 363 , 243 B.C.A.C. 301, 401 W.A.C. 301, 40 R.F.L. (6th) 248, [2007] B.C.J. No. 1474, 2007 Cars​well​BC 1591 (B.C.C.A.). [ 143 ] The challenge for the court is to design an outcome that reflects the reality in which the child currently exists and looks forward to the child’s future.

It is also important for the court to design an outcome that has a chance of working for the child and the parents, that is, a court order that will be followed. [ 144 ] The child is now living in a family of six, living with the mother and P.P. and three of his four siblings. He has always lived with them. It is the life that he has known. [ 145 ] However, there was very little evidence offered at trial about R.P.. There was almost no evidence offered about his relationship with his siblings (other than that he is close to W.P.2 and goes to the same school as W.P.2).

There was almost no evidence about what kind of child he is; how his health is; how he is doing at school; what his likes and dislikes are; what activities he enjoys; who his friends are. The absence of evidence about the child is both puzzling and revealing. [ 146 ] The court considered carefully the impact on R.P. of moving to his father’s home and leaving the home where his siblings live.

There was no evidence offered at the trial at all on the impact of such a move for him, although it is the salient issue of the trial, and a very important question. [ 147 ] A change in R.P.’s living arrangements is likely to be difficult for him. But it is his mother who has put him in this position.

It is his mother who has created this situation. [ 148 ] The challenge in this case is to develop an appropriate plan (and court order) that takes into account R.P.’s developmental needs and at the same time takes into consideration the need to minimize R.P.’s exposure to parental conflict. [ 149 ] In determining the child’s best interests, the court must balance the risk of harm or damage to the child from continuing in the current arrangement, living with his mother, and his mother’s continuing to interfere with the father’s relationship with him, and the risk of harm or damage to the child from changing that arrangement, possibly to an arrangement where the child lives with the father full-time.

Such a monumental change in his life should not be made lightly. [ 150 ] The court reviewed and considered the criteria as set out in

section 24 of the CLRA regarding the best interests test. In all of the circumstances, it is the father’s plan that has the best chance of meeting the child’s needs for a healthy and loving relationship with both parents and both stepparents and with his siblings. It is the father who will facilitate those relationships. The concerns raised about the father are outweighed by these considerations. The father is willing to comply with court orders.

It is the father who understands that the child’s best interests require a relationship with both parents. 7: ORDERS [ 151 ] The order of Justice Spence made on 12 March 2008 is set aside in its entirety. [ 152 ] The order of Justice Spence made on 21 February 2008 is changed. The father shall have sole custody of the child effective immediately. [ 153 ] The father shall be the first parent and the first person to explain the results of the trial and the court order to the child.

Neither the mother nor P.P., nor anyone on their behalf (including R.P.’s siblings) shall discuss the results of the trial or the court order with the child until after the father has had an opportunity to do so. [ 154 ] The father shall not change the child’s school for at least three school years after this court order (that is, not until fall of 2014), unless the court orders otherwise. [ 155 ] The mother shall have only supervised access to the child at the Supervised Access Centre, for two hours, every other week. The parents shall prepare the intake information for the Supervised Access Centre promptly.

The mother shall have no other

contact with the child, in person, or otherwise (including electronic media). [ 156 ] P.P. and the other siblings may attend the mother’s access with her. P.P. and the other siblings shall have no other contact with the child, in person, or otherwise (including electronic media), except supervised access at the Supervised Access Centre, unless the court orders otherwise.

If W.P.2 and the child continue to attend the same school, W.P.2 only may have contact with the child at school. [ 157 ] Neither parent shall be present at access exchanges. [ 158 ] The police with jurisdiction shall enforce this order. [ 159 ] The mother may bring a motion to change the terms of this access only as follows: (

a) when she is able to produce written confirmation that she has attended a course of individual counselling with a qualified therapist who has addressed at least the following issues and can report that the mother has changed her approach to the father’s relationship with the child: (

i) acceptance of the changes in the family structure; (ii) facilitating the father’s relationship with the child; (iii) separating from the child; (iv) understanding the child’s emotional needs; and (

v) resolving conflict; (

b) when she is able to produce written confirmation that P.P. has attended a course of individual counselling with a qualified therapist who has addressed at least the following issues: (

i) to accept the changes in the family structure; (ii) to assist him in supporting the mother through these changes; (iii) to facilitating the father’s relationship with the child; (iv) to understanding the child’s emotional needs; and (

v) to resolving confl

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