N.P. v. D.B., 2019 ONCJ 291

ONTARIO COURT OF JUSTICE CITATION: N.P. v. D.B. , 2019 ONCJ 291 DATE: May 3, 2019 COURT FILE No.: D10037/17 BETWEEN: N.P. Applicant — AND — D.B. Respondent Before Justice Roselyn Zisman Heard on March 26-29 and April 10, 2019 Reasons for Judgment released on May 3, 2019 Victor Pilnitz.................................................................................... counsel for the applicant Patricia N. Gordon..................................................................... counsel for the respondent Zisman, J.: 1.

Introduction [ 1 ] This trial was primarily about the parenting arrangements for the parties’ two children a daughter HB who is 8 years old and a son NB who is 4 years old. Incidental to the parenting arrangements, the court was required to determine where the children would attend school. The trial also addressed the issue of child support that was dependent on the parenting arrangements. [ 2 ] At the outset of the trial, both counsel advised the court that the parties had agreed to an order of joint custody and that they would share the children’s

section 7 expenses equally. [ 3 ] I advised counsel that having read the affidavits that had been filed and the Interim and Final Reports of the clinical investigator Dawn Tracz of the Office of the Children’s Lawyer (“OCL”), that I expected to hear evidence as to whether or not a joint custody order was in the best interests of the children as based on the materials I had reviewed such an order did not appear to be appropriate. [ 4 ] Accordingly, in order to make a determination of what parenting arrangements are in the best interests of the children the court needed to assess if an order of joint custody is in their best interests and also what weight should be placed on the OCL’s recommendations for joint custody. [ 5 ] The trial proceeded as a focused trial.

At a trial management conference before the case management judge, Justice Carolyn Jones, it was agreed that the direct evidence of the parties and any witnesses would be primarily presented by affidavit with the right of

supplemental oral examination and cross-examinations as directed by the trial judge. A timetable for the filing of materials was agreed upon and an order made for disclosure from the mother. [ 6 ] The parties and their respective partners filed affidavits as their primary direct evidence. They were permitted to supplement their affidavits with brief oral evidence and they were also subject to cross-examination.

The OCL clinical investigator Dawn Tracz testified and was cross-examined by both counsel. [ 7 ] Counsel for the father served a Notice of Intention to Rely on Business Records and filed 3 document briefs that included the records of the Catholic Children’s Aid Society (“CCAS” or “the society”) and Ms Tracz’s observation notes and case notes of her investigation.

Only the documents identified and referred to by the witnesses were made exhibits. [ 8 ] The trial was held down briefly, so that counsel for the mother could review a Statement of Agreed Facts that he had been sent to him by the father’s counsel and to which he not responded to could be reviewed. The parties then field a Statement of Agreed Facts. [1] [ 9 ] Both counsel filed written closing submissions and also made oral closing submissions. 2.

Evidentiary issues [ 10 ] At the outset of the trial, counsel were asked to address the issue of the admissibility of the children’s statements as the mother’s affidavit relied heavily on statements of their daughter with respect to her wishes about a parenting plan and choice of school and allegations about mistreatment and neglect by the father and his wife. [ 11 ] Both counsel advised that they had agreed that the alleged statements made by the children to either parent were not being admitted for their truth but only being admitted to show the children’s state of mind. [ 12 ] Therefore, I have only considered any statements made by the children to either parent in the context of the statement of mind exception to the hearsay rule. [ 13 ] To be clear the basic requirements for the state of mind exception are:

a) a statement asserting a condition or state

b) the statement may not comprise the cause of the state, whether it be past or present events

c) the mental state can include a person’s present intention to do a future act and

d) the statement must not be made under circumstances of suspicion. [2] [ 14 ] Although counsel did not specifically refer to which statements allegedly made by the children were being admitted pursuant to the state of mind exception to the hearsay rule, I have considered that statements regarding views and preferences about where they wished to live and what school they wish to attend, statements made regarding fear of the father and his wife, statements regarding conflict between the parents and any statements regarding their fears, anxiety and worries would fit into this category. [ 15 ] In the OCL report there are also references made to statements made primarily by the daughter.

Both counsel assumed that these statement were admissible and made submissions with respect to the weight the court should place on those statements. [ 16 ] I agree that the views and wishes of children as expressed to a clinical investigator during an investigation by the OCL are admissible under the state of mind exception to the hearsay rule. The issue for the court to determine is the weight to be placed on those views and preferences. [3] [ 17 ] There are also references to statements made by the children, primarily the daughter, in the records of the CCAS that were filed as business records.

The issue of the admissibility of those statements is problematic as it is second hand hearsay. Unlike the statements made by the children to Ms Tracz in her investigation, the case worker from the CCAS was not called as a witness and the court is unable to assess the weight to be given to those statements. Therefore, I have not considered any of the children’s statement as set out in the CCAS records as an expression of the children’s state of mind. [ 18 ] However, Ms Tracz as part of her investigation contacted the society workers and had disclosure of the CCAS records.

I have relied on the statements made by children to the society workers for the limited purpose of assessing if they are consistent with the statements made by the children to Ms Tracz or consistent with information obtained by Ms Tracz from the parents; if they are not consistent, how Ms Tracz then dealt with any inconsistencies as part of her investigation. [ 19 ] There was no objection to the records of the CCAS being admissible as business records. They meet the requirements of

section 35 of the Evidence Act , in that, notice was properly served, the records are made in the usual and ordinary course of business, there is a duty to report by the maker of the record and the records are made contemporaneously or shortly thereafter. The contents of the record are therefore prima facie admissible for the truth.

Therefore, I have relied on the direct observations of the society workers with respect to the parents and the children, the results of any investigations and any statements or admissions made by the parents. [ 20 ] However, not all of the information contained in a business record is admissible. Statements by third parties in these records who are not under a duty to report should be excluded. [4] The records contain information provided to various CCAS workers from third parties who are not under a duty to report and were therefore not relied upon by the court as to the truth of their contents.

This type of information from third parties in the society notes is not admitted for their truth but as information received by the society workers and to explain subsequent steps taken by the society workers. [ 21 ] However, information from the police, school authorities and medical professionals who are bound by a duty to report issues of

child abuse or neglect can be relied upon for their truth. [ 22 ] An issue also arose as to the admissibility and weight of a report from Families in Transition titled, “Client Assessment and Treatment Plan” with the client stated to be the parties’ daughter HB. During the mother’s testimony she stated that their daughter had just undergone a psychological assessment by Families in Transition and the report was either prepared or being prepared.

Neither counsel nor the father had any previous knowledge regarding the existence of this report. [ 23 ] In view of the possible significance of such a report I requested both counsel contact Families in Transition.

Both counsel agreed, after speaking to Josie Yu who is a case worker assigned to work with the daughter, that there was no psychological assessment of the daughter, that an internal assessment had been prepared regarding what services would be appropriate for the daughter and that the assessment was available but could only be released to one of the parents. [ 24 ] The father undertook to attend and pick up the report that was then filed as an exhibit with the court.

Neither counsel asked for an adjournment to require the author of the report (not Ms Yu) to attend to provide oral evidence. [ 25 ] In closing submissions counsel for the mother requested that the court put considerable weight on the contents of the report and in particular statements made by the daughter. [ 26 ] In closing submissions counsel for the father submitted that the court should put no weight on any statements attributed to the daughter, due to concerns about coaching by the mother, lack of any information as to the circumstances regarding the daughter making any statements and lack of information about the qualifications of the author of the report. [ 27 ] I agree with the submissions made by father’s counsel and have not put any weight on the statements made by the daughter contained in the report or on the conclusions or opinions reached by the author of the report.

The purpose of the report is to outline the goals for counselling for the daughter and both parents, not for the purpose of a court proceeding. I also recognize that it would be unfair to the parties if weight was placed on the report as counsel had agreed that all evidence that they intended to rely upon had to be filed prior to trial and it was the court that requested the report be obtained and filed. 3.

Position of the parties [ 28 ] At the outset of the trial, the mother sought an order in accordance with the recommendations of the OCL namely, an order for joint custody, that the children reside primarily with her and spend alternate week-ends from Friday to Monday with the father.

A further order, in accordance with the OCL recommendations that each week their daughter spend Tuesday overnights and their son Wednesday overnights with the father and that the children attend the Catholic school close to the mother’s residence. [ 29 ] In closing submissions, counsel for the mother proposed that given the evidence presented at trial, particularly the difficulties the parties’ experienced in cooperating with each other, that the court make a joint custody order but with parallel parenting decision making, with the mother being responsible for educational decisions and the father for medical decisions. [ 30 ] At the outset of the trial the father sought an order for joint custody with an equal parenting residential

schedule and a slight variation of the current parenting

schedule of 2-2-3 and for a week about

schedule within several years.

The father also sought an order that their daughter continue to attend the Catholic school she presently attending and that their son, who would be beginning kindergarten in September 2019, also attend the same school. [ 31 ] In closing submissions counsel for the father submitted that if the court determined that a joint custody order was not in the children’s best interests, it had the jurisdiction to make another order despite the parties’ consent to joint custody. [ 32 ] The father then sought an order that he be granted sole custody and that after consulting with the mother that he have sole decision making authority.

He submitted that despite such an order it was in the children’s best interests that they spend equal time with both parents. He proposed a shared

schedule with fewer transitions then the current

schedule and a week about

schedule by September 2021 when the son would be in Grade 1. [ 33 ] With respect to child support, it is the mother’s position that if she is granted primary residence, then she seeks child support in accordance with the Child Support Guidelines based on the father’s income.

If there is an order for shared parenting, then it is the mother’s position that as she is currently unemployed that only minimum income of $29,100 should be imputed to her based on her educational credentials and her present circumstances. [ 34 ] If a shared parenting plan is ordered, the father seeks that income be imputed to the mother in an amount of $45,000 which was roughly equivalent to the father’s income and accordingly that no support be paid by either party. 4. Theory of the case [ 35 ] It was difficult to ascertain the theory of the case due to the parties’ consent to joint custody.

I appreciate that I put counsel in a difficult position in advising that the court had serious concerns about such an order as counsel may have felt that they could not withdraw their respective client’s consent to a joint custody order. [ 36 ] I infer that counsel advised their respective clients to agree to joint custody because of the recommendation of the OCL. During the testimony of both parties, neither provided any evidence that they had in the past or present been able to jointly make any major decisions about the children.

Both parties in their interviews with Ms Tracz stated that they each wished a sole custody order and could not co-parent. It also became abundantly clear during the trial that neither party actually agreed to joint custody. Both counsel conducted their case as if each party sought sole decision making authority. [ 37 ] It has been the mother’s theory throughout that she was the primary caregiver of the children, that the father had a minor role, that the father and his wife are not properly caring for the children and are unable to meet the needs of either child. It is also the mother’s

belief that the father does not respect her or listen to her views or the information she provides about the children. [ 38 ] It is the mother’s belief that the shared parenting

schedule is not workable and that the children should reside primarily with her. [ 39 ] It has been the father’s theory that both parents were involved in caring for the children when the parties resided together. But the mother treats him as if he knows nothing about caring for the children.

Despite his concerns about the mother’s lifestyle and her judgment, he believes that it is important for the children to have a meaningful relationship with both parents and he has always sought a shared parenting schedule. [ 40 ] It is the father’s belief that the mother has attempted to marginalize and devalue his role as a parent. 5. Credibility and reliability assessment [ 41 ] In order to determine what parenting arrangements are in the best interests of the children it is important to assess the credibility of both parents.

There were factual disputes regarding the father’s past involvement in the children’s upbringing, allegations of domestic abuse, allegations of physical discipline of the children, allegations of a lack of supervision and general concerns about the care of the children.

There are also factual disputes about post-separation communication between the parties, post separation support of the other parent and respect for the other parent’s role in the children’s lives. [ 42 ] Assessing credibility is not a science and it is sometimes difficult to “articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events”. [5] [ 43 ] However, in order to evaluate the credibility and reliability of the witnesses, in particular the mother and father, I have considered whether or not there are inconsistencies and weaknesses in their evidence, including internal inconsistencies, prior inconsistent statements, inconsistencies between the witness testimony and the documentary evidence and the testimony of other witnesses.

I have considered the motives of the witnesses and have assessed the overall probabilities and plausibility of their testimony. [6] [ 44 ] I have considered whether or not the witness testified in a candid and straightforward manner or whether or not the witness was evasive, strategic, hesitant or biased. I have considered whether or not questions were answered in a frank, forthright manner without evasion, speculation or exaggeration. [ 45 ] There were significant inconsistencies with respect the mother’s evidence that are important in the court’s credibility assessment. In the case R. v.

A.M. [7] the Ontario Court of Appeal specifically commented on inconsistencies as follows: ...[O]ne of the most valuable means of assessing witness credibility is to examine the consistency between what the witness said in the witness box and what she has said on other occasions, whether or not under oath... Inconsistencies may emerge in a witness' testimony at trial, or between their trial testimony and statements previously given. Inconsistencies may also emerge from things said differently at different times, or from omitting to refer to certain events at one time while referring to them on other occasions.

Inconsistencies vary in their nature and importance. Some are minor, others are not. Some concern material issues, others peripheral subjects. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth about which the trier of fact should be concerned... [ 46 ] Generally I found the mother’s evidence to be evasive, contradictory and unreliable. She changed her versions of events several times and admitted lying to the father on several occasions.

She also misled the school and lied to the society workers. Where there is a discrepancy between her evidence and the evidence of the father I prefer his evidence. Where there is a discrepancy between her evidence and the evidence of other witnesses or the documentary evidence I prefer that evidence. [ 47 ] The mother had to be continually admonished to stop muttering to herself when she and other witnesses were testifying. She needed to be told to answer questions directly. She needed to be told to stop gesturing when other witnesses were testifying.

The mother tended to be emotional, exaggerated incidents and at times was evasive especially regarding her financial circumstances and her boyfriend’s drug use. [ 48 ] I found that the father was calm and conducted himself appropriately during the trial. His evidence was clear, straightforward, consistent and even handed. He was frank in admitting incidents where his behaviour was not flattering to him. [ 49 ] Although there are many inconsistencies in the mother’s evidence I outline only some of the significant inconsistencies as follows:

a) The mother deposed that the father was not involved in the care of the children prior to their separation. When it was pointed out that she told the CCAS during an investigation in August 2012 that both parents shared parental responsibilities for their daughter, she claimed she lied to the CCAS.

b) The mother claimed that the father and the paternal grandmother were not involved in the care of the children. However, Ms Tracz testified that she had spoken to the children’s paediatrician who confirmed that both parents were involved and neither appeared to be more involved than the other. He was also familiar with the paternal grandmother who also brought the children to see him. The school was familiar with both parents and the paternal grandmother who they believed was a positive support for HB.

c) Ms Tracz testified that she believed the mother was untruthful when she claimed that the father and the paternal grandmother were not active participants in the children’s lives.

d) The mother testified that she had the children in her care 70% of the time from the separation in February 2016 to January 2017.

However, the mother’s own email to the father dated June 24, 2016 contradicts her testimony as the mother complained that she only had the children in her care 40% of the time whereas the father had said that he wanted them to have a 50% schedule. In Justice Jones’ decision on January 16, 2017 she confirmed that the status quo was a shared parenting arrangement when she ordered the mother to return the children to the father and resume the shared parenting schedule.

e) The mother testified that she told the father in May 2017 that she was considering changing their daughter’s school for the upcoming school year. The father denied that this and testified that the first he heard about this change was at the OCL disclosure meeting on July 7, 2017. Ms Tracz confirmed that the father looked shocked at the mother’s revelation and she understood this was the first time the issue had been raised by the mother. Ms Tracz also confirmed that she had spoken to the mother about the issue the day before the school issue and the mother told her that she had not spoken to the father.

f) Further, the mother signed the Statement of Agreed Facts less than an hour before the trial commenced agreeing that she did not consult with the father before changing their daughter’s school and did so without his knowledge yet she testified that she told him about this.

g) The mother told the CCAS worker that Ms Tracz had told her to change their daughter’s school as she needed a “fresh start”. Ms Tracz testified that she never told the mother this and in fact told her the opposite that is, that she should not move HB’s school.

h) The mother told the principal of HB’s school that she would be living with her as of September 2017 so she wanted to change her school. This was simply not the truth. When confronted with this evidence the mother testified that she only told the principal that HB “may” be living with her.

i) The mother deposed that she changed their daughter’s school because she was being bullied at her old school and her teacher confirmed that HB had been bullied for years. However, Ms Tracz testified that the mother never mentioned HB was being bullied or that the teacher told her this. The mother told Ms Tracz that she wanted to change schools because the school was closer to her home and it had a higher EQAO rating. The information Ms Tracz obtained from the school, never mentioned HB being bullied.

j) The mother deposed that she was acting in self-defence when she assaulted the father and that she had attended a program for victims of domestic violence. However, the police report states the mother was the aggressor and there is no mention of the mother stating that she acted in self-defence. In cross-examination after changing her evidence several times, the mother finally admitted that the program she attended was for women who commit domestic violence. The mother also admitted to the incident to Mc Tracz that she assaulted the father due to her extreme anger.

k) In the Statement of Agreed Facts field with the court, that mother agreed that she assaulted the father and did not say that it was in self-defence.

l) The mother deposed and testified that she lost the motion before Justice Jones on January 16, 2017 because the CCAS report needed to be submitted within 7 days but it could not be finalized for 60 days. This makes no logical sense. It is clear from the temporary court order that the court found that the parents had a shared parenting schedule, that the mother needed to return the children to the father and resume the shared parenting

schedule and that the mother’s allegations about the father’s lack of proper care and supervision of the child was rejected by the court. A finding that was later confirmed by the CCAS.

m) The mother made many allegations about the father’s neglect of the children’s medical needs to the society and the OCL. None of her allegations were confirmed by Ms Tracz or the society workers who spoke to the children’s paediatrician who had no concern about the care by either parent. The paediatrician specifically denied that NB had asthma as alleged by the mother. The paediatrician also denied that he had ever told the mother that HB had a severe lung infection and had to be in a sterile and dust free environment or that HB could only stay with one parent as was being alleged by the mother.

n) The mother in her evidence with respect to her boyfriend’s use of drugs was evasive and not credible. She testified that when he moved in he was not abusing drugs but yet she testified that she had referred him to a methadone clinic. However, when RB testified he admitted that he had been abusing prescription opiates when he moved into the home where the parents lived and had a positive drug test around April 2016.

o) The mother made many allegations as to statements made by the children that used phrases that were not credible as they were not consistent with the ages and stage of development of the children. For example, she testified that the children on their own referred to the father as their “blood daddy,” that HB told her she wanted to change school for a “fresh start,” and that the children told her they wanted to be in a school with a good “air filtration” system but then changed her evidence to say that they told her they wanted to be in a school with air conditioning.

p) The mother testified that she lied to the father about her whereabouts when she told him she was working or at a job interview. 6. Background facts and court proceedings [ 50 ] The mother is 36 years old. She previously worked as an administrative assistant in a law office. Since July 2016 she has been unemployed and is currently in receipt of social assistance. The mother is presently living with RB who is also unemployed. [ 51 ] The father is 40 years old. He is employed as a production coordinator at a radio station.

The father married SM and is living with her and her son TL who is 9 years old. [ 52 ] The parties met in January 2009 and began to live together about 8 months later. [ 53 ] They resided together in the home the father presently occupies until their separation in about February 2017. [ 54 ] When the parties met the mother was addicted to Percocet. When she became pregnant with their daughter she attended at a

Methadone clinic to wean herself off the drugs. Their daughter was born in early 2011. Their son was born in 2015. [ 55 ] Both parents were involved in the care of the children. [8] After their children were born the parties initially worked opposite schedules to minimize the need for day care, with the mother working in the days and the father nights.

As the father did not obtain full time employment until 2016, the mother returned to work early after their son was born and the father was home caring for the children. [ 56 ] The maternal grandfather and paternal grandmother assisted the parents in caring for the children since as of 2016 both parents were working full-time. [ 57 ] In January 2016, the mother asked the father if her friend RB (who is her current boyfriend) could move into their home temporarily in order to assist him with getting clean from his addiction to opiates as he was beginning his treatment at a methadone clinic.

Despite the father’s reservations he agreed. [ 58 ] The parties separated in about February 2016 but agreed to continue to reside under the same roof to save some money and pay off some debts. [ 59 ] The mother’s boyfriend moved out in March 2016 into a small one bedroom basement apartment. [ 60 ] In April 2016, the mother also moved out and began to live with RB. [9] The children remained in the care of the father. The paternal grandfather who had been residing in the basement of the home continued to reside there after the mother moved out. [ 61 ] Although the mother continued to see the children, there was no

schedule in place. The father was resistant to the children sleeping over as there was no bed for their daughter and no crib for their son. [ 62 ] On April 26, 2016 the mother attended at the home to remove her belongings. The father was in their daughter’s room when the mother shut the door behind her and began to scream at the father, blocked him from leaving the room and she then proceeded to strike him 3 times in the face, punched and kicked him and ripped his clothing.

When the father began to call the police, the mother stopped the assault and took the children with her and left. [10] [ 63 ] The mother was charged with assault and the police alerted the CCAS as the assault had occurred in the presence of the children. The terms of the mother’s release prohibited her from having contact with the father or from attending at the home.

Despite these terms the mother harassed and belittled the father and claimed he was “not a man” because he reported the assault to the police. [11] [ 64 ] The CCAS verified risk of physical harm due to the children’s exposure to physical conflict and risk of emotional harm due to their exposure to parental verbal conflict. [ 65 ] The mother had no contact with the children for about a week after the criminal charges.

A friend of the mother’s then began to act as a go between and the father also arranged for the paternal grandfather, who continued to reside in his home after the separation, to supervise the access exchanges. [ 66 ] By June 2016, the parties developed a

schedule with the mother picking up the children every other day at 6:00 p.m. and dropping them off the next morning. The mother complained that despite the father stating that he wanted an equal

schedule she only had the children 40% of the time. [12] [ 67 ] According to the father, in about mid-July the mother and her boyfriend broke up and he kicked her out of his apartment but about month later they reconciled. [13] The mother also lost her employment around this time. [ 68 ] The father agreed to remove the no contact order to permit the parties to directly arrange access as the third party was no longer willing to act as a go between and the children were not consistently seeing their mother. The parties then agreed to a shared parenting

schedule with the exchanges to occur every 2 days. [ 69 ] Over the next several months there were several instances of the parents having ongoing conflict and concerns being raised about the care of the children. [ 70 ] In September 2016, during an access exchange the mother became angry at the father and began to yell and swear at him in front of the children.

The father attempted to walk away but the mother followed him and continued to yell and swear. [ 71 ] In mid-September 2016, the school reported to the CCAS that the daughter had reported that the mother’s boyfriend punches her in the head and her mother covers her mouth with her hands when she cries. The caller reported that the daughter also reported that when she is in the bathtub her mother puts her hands on her neck. [ 72 ] As a result of these allegations the society investigated.

The daughter did not disclose information about the mother’s boyfriend punching her but told the society worker that her mother covered her mouth because her mother did not want her to wake up her brother. [ 73 ] The society worker spoke to the mother’s boyfriend and although he denied that he punched the daughter he admitted that he “flicks” her in the face when she does not listen to him. In his testimony, RB confirmed that he did this and demonstrated the action in court.

He further admitted that he was cautioned about using physical discipline. [ 74 ] The mother admitted that she has covered her daughter’s mouth because their place is small and she does not want her son to wake up. Although the use of physical discipline was not verified, the mother was also cautioned about using physical discipline and advised to find more appropriate methods of discipline. The society worker gave the mother and her boyfriend information about parental supports. [ 75 ] In November 2016, the mother picked up their daughter and became angry because the father’s partner Ms SM (now his wife)

had styled their daughters’ hair in a style similar to her own. The mother sent a text message stating that she forbade the father’s partner from ever touching their daughter’s hair. [ 76 ] The mother then returned to the father’s home with their daughter and attempted to engage the father’s partner in an argument. The father continually told the mother to stop yelling and leave but she only left after he told her she was in breach of her recognizance.

According to the father, their daughter was happy with her hair until the mother became upset about it. [ 77 ] This issue about Ms SM doing the daughter’s hair became an ongoing issue. The mother only explanation about this incident was that she returned to the home because SM would not promise to stop doing her daughter’s hair. [ 78 ] Later in 2016, the father suggested changing to a 3 day

schedule to reduce the number of transitions. The mother told the father she was not agreeable as she and her boyfriend were already having trouble sleeping as the children slept in the same bed as them. [14] [ 79 ] On January 4, 2017 the mother told the father she had taken their son to see the paediatrician but would not tell him why. The mother told him that her boyfriend would be dropping off the children and he would tell him.

An argument ensued and the father said that if they were to co-parent they needed to share important information and if she was not prepared to do this, then he would have to commence a court proceeding. The mother then sent a text message that her boyfriend would not be dropping off the children and she would be keeping them. [ 80 ] On January 7, 2017 both parents attended a birthday party for their daughter that had previously been jointly planned. The father told the mother he would pick up the children on January 9 th in accordance with their regular schedule.

The mother refused to return the children and would not tell the father why she was keeping the children or for how long. [ 81 ] On January 10 th , the mother brought an urgent without notice motion seeking custody of the children, supervised access for the father, an order that he not attend at their daughter’s school and for police enforcement. [ 82 ] Justice Carolyn Jones ordered that the motion be served on the father and the motion was adjourned to January 16 th . [ 83 ] In the mother’s affidavit in support of her motion, the mother alleged that there was “imminent danger” to the children, that the father “pushed her against a wall and cornered her,” that she had continued to care for the children in her home after she moved out, that the father had no toothbrush for their son and that the father left the children unattended. [ 84 ] The father brought a cross-motion for an order for a return to the shared parenting

schedule that had been in place before the mother unilaterally withheld the children. The father denied the allegations by the mother. [ 85 ] After hearing the motion, Justice Jones delivered an oral decision and made a temporary order that provided inter alia:

a) the children were to be delivered to the father’s care and remain with him for the next full week;

b) the previous shared parenting

schedule would then resume;

c) each parent would ensure the children have their own beds and not share a bed with an adult;

d) each parent would ensure that all prescription and non-prescription medications is kept in a locked cabinet to which the children do not have access;

e) neither parent or any caregiver to be intoxicated or impaired by any substance while in the presence of the children; and

f) each parent share important information with the other parent pertaining to health, education or welfare of the children. [ 86 ] Justice Jones ordered the mother to pay costs of $2,825 and ordered the involvement of the OCL. [ 87 ] The CCAS also investigated these concerns that were reported by the mother and did not verify them.

The society worker concluded that the father and his partner were properly caring for and supervising the children. [ 88 ] However, the society worker transferred the file for ongoing services as there was ongoing verbal conflict between the parties in front of the children related to custody and access issues. The parents continued to make allegations against one another exposing the children to new investigations.

There was a pattern of conflict, including physical violence after their separation where the mother was criminally charged and the society worker noted that this was the third investigation in one year after the separation. [ 89 ] The conflict between the parties continued despite the court intervention and the involvement of the society. [ 90 ] In May 2017, Mother’s Day fell on a day the children were with the father. In a series of text messages the father offered the mother that afternoon and that the children could sleep over that evening and he hoped that she would do the same for him on Father’s Day.

The mother’s response to the father refusing his request is telling: “ since you are allowing the children to stay overnight so they can see there [their] mother mom on mother’s day because you are doing it for the children on behalf of them I thank you…as for giving you the children the extra night [on Father’s Day] I can’t agree with that because they want to spend it with both of their dads.

I’m sorry and I know you probably don’t want to hear that but is their words they call him daddy and he is their father you are their blood daddy that’s how [their daughter] explains it when she talks to people I hope you understand that is for the kids…. [ 91 ] For the summer of 2017, the father wanted to enroll their daughter in day camp that he would pay for. The mother refused to take their daughter during the time she stayed with her. When the father suggested an alternate week

schedule for the summer to

facilitate summer activities, the mother would only agree if the father agreed to the mother having primary care. [ 92 ] The parties, their counsel and the OCL attended a disclosure meeting on July 7 th , 2017 at which time the mother revealed for the first time that she had de-enrolled their daughter from her school and enrolled her at a school closer to her new residence. [15] This was despite the fact that during the interviews with the OCL, the mother had been told that such a decision would have to be made by both parents. [ 93 ] On July 24, 2017 the OCL released an interim report and recommended joint custody with the 2-2-3 shared

schedule continuing and that the parties engage the services of Families in Transition, particularly to address the impact of the adult conflict on their daughter. Ms Tracz indicated she would reassess the situation once the parties had engaged the services of Families in Transition.

She contemplated that the review would take place in about another 6 months. [ 94 ] The OCL recommendations were incorporated into Minutes of Settlement dated August 28, 2017 that also required the mother to re-enroll the daughter in her previous school. [ 95 ] The mother took no steps to re-enrol their daughter in her previous school until the Friday before school was to commence.

Mother’s counsel wrote to father’s counsel stating that the mother had contacted their daughter’s previous school and there was no availability to re-enrol her. [ 96 ] The mother took the position that since their daughter was already enrolled in the new school she should just remain there. Attached to mother’s counsel’s letter was a letter from the principal of HB’s former school confirming that there was no availability for their daughter in the Grade 1 class.

The letter stated that as the mother had informed the school that as of September their daughter would be residing with her at a new address therefore her home school would be the school closest to the mother’s residence. [16] [ 97 ] The father contacted the school and explained that their daughter was still living in the school’s catchment area in a joint custody arrangement. The school then agreed to have their daughter re-enrolled.

HB attended at the new school for 4 days and then returned to her previous school. [ 98 ] The mother sent the father a video recording of their daughter saying that she did not want to go back to her old school. [ 99 ] In January 2018, Ms Tracz began her follow-up investigation and met with both parents. In February 2018, counsel for the father inquired what the next steps were. Ms Tracz advised that she planned to meet with the daughter who she hoped would be more receptive to speaking to her and she would follow up with Families in Transition.

She further indicated that she was uncertain if she needed to do a new observation but if something came up when she speaks to the daughter she may do that. [ 100 ] During the course of Ms Tracz’s investigation there were several instances of a lack of co-operation between the parents and ongoing conflict. [ 101 ] In March 2018, the father became aware that as the children were in a shared parenting arrangement that the mother was not entitled to claim the entire child tax benefit.

The father on the advice of his accountant took steps to correct the situation. [ 102 ] During an access exchange the mother confronted the father in front of the children about the child tax benefit and was yelling that he was “fraudulent” and he “committed a crime”. [ 103 ] The mother also became upset because the father and his partner were being married on the same day as the mother and father’s first date.

When the mother’s partner told the children she loved them the mother stated that she does not love them and never will. [ 104 ] When the father suggested that they enroll their son in a toddler soccer program, the mother would not commit to taking him on her week-ends even though the father offered to pay her bus fare. [ 105 ] According to the father, the mother called the father to complain that she was having trouble managing their daughter’s behaviour and that she was not listening to her.

The father gave the mother some strategies and told her, as he had repeatedly told her in the past, that she needs to be parent to the children and not be a friend that is, set boundaries and consequences. The mother did not dispute this discussion in her affidavit or in her testimony. [ 106 ] On April 13, 2018 the parties and their counsel met with Ms Tracz for a disclosure meeting.

During this meeting she recommended joint custody with the children residing primarily with the mother and spending alternate week-ends with their father and each child spending one evening with their father. [ 107 ] The father filed a formal Dispute to the report. [ 108 ] On May 15, 2018 the parties attended before Justice Jones for a case conference and were able to agree to a final holiday schedule. It was agreed that each party would have the children for 2 non-consecutive weeks in the summer and evenly split other holidays.

The parties also agreed that the mother would consent to the children participating in any programs offered by Families in Transition and that they could attend with the father. [ 109 ] On June 20, 2018 the mother brought a motion to essentially implement the recommendations of the OCL.

Justice Jones dismissed the motion for extensive oral reasons [17] finding that Ms Tracz’s recommendations were surprising given the level of continuing inability of the parents to coordinate plans for the care of the children and the degree of mistrust between them. [ 110 ] Justice Jones stated that Ms Tracz had recommended significant changes to the status quo parenting arrangements after only doing a cursory investigation that did not involve an observation of the children with either parent and without even speaking to the son or considering his needs.

Ms Tracz appeared to rely on interviews with the daughter but then noted in her report that she was not a reliable historian.

[ 111 ] With respect to the school issue, Justice Jones noted that there was evidence that the daughter’s present school was a stable and supportive environment and that the daughters’ behaviour had settled and that removing her from that environment appeared to be against her best interests. [ 112 ] Justice Jones also noted that there was evidence of recent incidents that raised concerns about the stability of the mother’s relationship with her boyfriend and other incidents that were not mentioned in Ms Tracz’s report.

Justice Jones ordered that a copy of the father’s affidavit be sent to the CCAS. [ 113 ] Justice Jones also ordered that neither parent audio or videotape statements made by the children or discuss the issues in dispute between the parents in the litigation in the presence of either parent. [ 114 ] She also ordered that the daughter remain in her current school and that her school not be changed without the written consent of both parents or a court order. [ 115 ] The mother was ordered to pay costs of $4,800 to be paid by the sum of $1,200 in 30 days and further payment of $300 per month. [ 116 ] The mother has not paid any amount with respect to both costs orders and owes a total of $7,625. 7.

The Reports of the Children’s Lawyer [ 117 ] Dawn Tracz was assigned to conduct an investigation and report pursuant to s. 112 of the Courts of Justice Act. As previously referred to she filed both an interim report dated July 20, 2017 and a final report dated April 30, 2018. [ 118 ] Ms Tracz is a registered social worker who has worked primarily in the area of adoptions.

She has been a clinical investigator with the OCL only since 2016. [18] She testified that she had only conducted one investigation prior to this one. 7.1 Observations, collateral information and recommendations in the Interim OCL report dated July 20, 2017 [ 119 ] Ms Tracz made the following observations of the children in the mother’s home:

a) The mother and her partner RB made a few sarcastic remarks about Ms Tracz’s visit in the father’s home the previous day in front of the children.

b) The mother spoke about her problems with the father in the presence of the children.

c) HB challenged her mother’s authority and needed to be redirected several times during the visit.

d) NB climbed on a folding chair to reach an object. The mother did not intervene although after a few minutes RB did.

e) Initially the visit was ruckus and somewhat unfocused until the mother suggested they go to the park.

f) The mother offered healthy and nutritious snacks.

g) The mother and RB are “great playmates for the children” and the children seem to enjoy their time with them.

h) As RB played a big role in structuring the visit, another visit was necessary to observe the children with only the mother present.

i) On the second observation of the mother and the children only, the mother discussed the challenges of planning their son’s birthday party with the father in the presence of the children.

j) The mother in the presence of the children discussed her problems with the father namely, that he doesn’t contribute financially, she does not receive communications from the school because the father throws away the notices and she discussed the difficulties of jointly planning their son’s birthday party.

k) NB picked up a small round object about the size of a pea and held it between his fingers, the mother did not intervene and said he would eventually put it down which he did.

l) The mother was able to handle the competing demands of both children. [ 120 ] Ms Tracz’s concluded that her clinical impression was that the mother and RB were “great playmates” for the children and the children seem to enjoy their time with the couple. [ 121 ] Ms Tracz made the following observations of the children in the father’s home:

a) The father was affectionate to both children.

b) When HB suggested they make a cake, the father engaged both children in this activity and used the opportunity to teach them about following a recipe.

c) When HB had a temper tantrum after being scolded for being mean TL (his partner’s son) the father used appropriate parenting strategies to calm her down.

d) Ms Tracz concluded that her clinical impression was that the father handled HB’s challenges quite well. It was her view that HB and TL may be experiencing adjustment issues since he had only moved into the home 2.5 weeks earlier.

e) Ms Tracz arranged a further observation of the father’s partner SM and the children as she had not been home on the previous visit and the mother had expressed concerns about the care she was providing.

f) Ms SM was helping the children with their breakfast and getting them ready to go out for an outing.

g) During the visit, NB hurt his foot and he turned to SM for assistance and she bandaged his foot.

h) It was Ms Tracz’s clinical impression of the visit that the children and SM were very calm and relaxed. SM seems to have a good ability to manage the competing needs of both children. She agreed with SM’s observation that the children were getting used to her and they are settled. [ 122 ] Ms Tracz interviewed HB who was 6 years old at the time at her school. Ms Tracz noted that when she told HB that she wanted to hear about her thoughts she became nervous. Ms Tracz attempted to reassure her and told HB that she was curious about how she felt going back and forth between her parent’s homes.

HB said that she did not want to talk about that. Despite several attempts HB was unwilling to discuss her feelings. [ 123 ] In the Appendix to Ms Tracz’s report she sets out the collateral information she received. [ 124 ] Ms Tracz spoke to a society worker and had the notes of the CCAS. HB had met with social workers from the society who noted that in their interactions with her she expressed that she was feeling happy with both parents. One note stated that HB said she was sad because her mother wants her father to sign a paper and he won’t.

During a different meeting she stated that her mother and father both want her to live only with them. [ 125 ] The society worker to whom Ms Tracz spoke indicated that she observed that the level of conflict between the parents was so great that they find it difficult to agree on the basic tenets of good parenting for the children for example, communicating about medication and how to administer it.

Due to this conflict the society had elected to keep their file open and the conflict was the greatest source of harm or potential harm to the children. [ 126 ] Ms Tracz also spoke to the daughter’s teacher who described how she can sometime be withdrawn and has difficulty expressing her emotions to others and she can sometimes get into conflict with staff and peers because of her holding onto pent up emotions. [ 127 ] Ms Tracz spoke to the children’s paediatrician.

Her case note states that she told the paediatrician that at times the mother’s attention to supervision may be lacking and he indicated that he had a similar impression however, neither child had ever been brought to appointments with accidental injuries as a result of the lack of supervision. The paediatrician confirmed that he had no concerns about either parent but wondered if the parents would not benefit from ongoing counselling for support. [ 128 ] Ms Tracz also met with NB who was 2 years old at the time. But due to his age she did not interview him.

She described him as a charming and active child who loves to explore his environment. She stated that supervision of a child of his age is important because he had not yet developed a sense of danger of safety. Ms Tracz observed him to be comfortable in the presence of both parents.

Both parents are warm and affectionate with him and he responded to their attempts to comfort and/or redirect him. [ 129 ] In her interim report Ms Tracz made the following comments in the Discussion part of her report at page 17: Considering what is at the heart of this conflict, it seems that there are some residual feelings related to the break-up of the parental relationship. It is important that parents learn to manage these deep-seated feelings of betrayal and frustration if they hope to move forward to co-parent their children.

Ms P [the mother] admits that she can feel a deep anger and she would like to access support for herself to help her understand it better. Both parents could benefit from understanding how this kind of animosity is viewed by H. and N. [the children], so they can be sensitive to the special circumstances that may need attention for the children. By all accounts H [the daughter] is having difficulty expressing her emotions that makes her particularly vulnerable to the effect that her parents’ conflict.

If she has difficulty expressing herself then it will be hard for her to ask questions and communicate with trusted adults about her fears and worries regarding her new living situation. It’s not enough to be willing to care for your child. You also need to be able to attune to that child’s emotional state and to help him or her understand her own feelings. H [the daughter] may benefit from professional support to learn about her own emotions so she can more easily communicate them to those who want to support her.

It would seems that this family requires some clinical supports and education to help them navigate their changing circumstances. I have recommended that they attend the Families in Transition Program offered through Toronto Family Services.

Through this program parents can learn about how separation could impact their family and they may begin to be proactive about how to support their children….also there are an array of services to individuals and children, should they require more assistance. 7.2 Interviews, collateral information and recommendations in final OCL report dated April 30, 2018 [ 130 ] On January 8, 2018, the file was re-opened and Ms Tracz then began her investigation in support of her final report that was released on April 30, 2018. [ 131 ] In the opening paragraph of the report Ms Tracz notes that an interim report was filed on July 20, 2017 with parents to follow up on her clinical recommendations with the intention to evaluate the outcome 6 months later as it pertains to custody and access of the children.

She specifically noted that both parents were asked to attend Families in Transition and explore supports that would assist the parents to learn to work together. It was also her hope that services for their daughter would be acquired to address the emotional turmoil that seemed to be influencing her behaviour. [ 132 ] Both parents were interviewed. The father reported that he was quite frustrated when the mother changed their daughter’s school prior to the interim report being released and without his permission.

The father was able on his own to re-enroll their daughter in her old school but when he asked the mother to take some responsibility her response was, “well it is done now, let’s just keep her there.”

[ 133 ] The father admitted that over Christmas, he got involved in a conflict with RB during the pick-up of the children. The mother called the police and he was warned to act in a more responsible and calmer manner. There was also a conflict between the mother and his wife where there was a verbal argument where names were called. [ 134 ] The father reported that there was less direct conflict with the mother but she continued to push and try to get her own way.

He was managing by disengaging with her during all discussions. [ 135 ] The father reported that there was some disruption at the beginning of the school year but things had settled down although his daughter continued to tell him she wanted to return to the other school. [ 136 ] The father reported that he believes that their daughter had adjusted to the parenting

schedule but she was influenced by the mother’s opinions and emotions. He noticed that she shows oppositional and defiant behaviour towards him and his wife when she returns from her mother’s home and it takes about a day for her behaviour to settle down. The father admitted that it can be difficult to parent her, especially when she draws him into the power struggle.

He believes that she needs firm and consistent rules and expectations. [ 137 ] With respect to his son, the father described him as a rambunctious toddler who is meeting his developmental milestones but is slow to potty train. [ 138 ] With respect to Families in Transition the father confirmed that he contacted them in August 2017 to register for their orientation that he attended for an intake appointment in January 2018. The next step was for a clinician to complete an assessment and make recommendations. He believes that some of the services will be helpful for his family.

He was also hopeful that the children’s groups could help his daughter understand her situation better as he was worried that the separation and disputes between himself and the mother are affecting her. He was also concerned that the mother would not consent to the children participating in any programs. [ 139 ] Ms Tracz interviewed the mother who reported that since July 2017 there have been fewer instances of conflict.

However, she has attempted to speak to the father about their daughter’s desire to attend the new school and he refused to discuss it with her. [ 140 ] The mother reported that their daughter told her that she gets into too much trouble at her father’s home and she was unhappy. The mother stated that she tried to talk to the father about their daughter’s concerns and worries and he refuses to speak to her about it. He also refused to speak to her about health concerns regarding the children.

The mother feels that the father does not respect her views or opinions about the children and that this is source of their conflict. [ 141 ] The mother expressed that she was deeply concerned about their daughter’s unhappiness with the current parenting arrangements, that she feels she does not live anywhere and that she wants to live with her and spend time with her father on the week- ends. [ 142 ] With respect to their son, the mother described him as “still a baby who needs his mommy”.

She stated that he was meeting his developmental milestones. [ 143 ] The mother stated that their son spent a week at his father’s over the summer and at Christmas and both times it was difficult for him and he was clingy and cranky for a few day. She thought it was too long for him to be away and admitted it was hard on her too. [ 144 ] The mother also expresses frustrated because the father does not support her with potty training him and felt that potty training will be more difficult if he moves between two homes. [ 145 ] Ms Tracz outlined that the key findings in her report as follows:

a) Both parents have different parenting styles. The father focuses on behaviour with clear expectations and consequences while the mother prefers to tune into her children’s emotional state (that is the driving behaviour) and address the situation from there.

b) Both parents report that the children continue to have difficulty settling into each household. The mother reported that the children have vocalized a desire to not move back and forth as often. The daughter also vocalized to the clinician that she doesn’t like going back and forth and that she feels she “lives nowhere.”

c) The current debate over potty training, dust allergies and school placement appear to be an example of how these parents see their children differently.

d) The daughter seems to have settled into her school routine, her behavioural difficulties have been fewer than in the previous year. There have been some instances of oppositional behaviour.

e) There is a dynamic of relationship between the parents where both feel that the other does not listen to or accept their point of view. There is a mistrust in the other’s motives that can overshadow each parents’ ability to reflect on whatever issue the other person is attempting to bring forward. Both parents have stated a belief that their current conflict cannot be shifted.

f) When there have been instances of serious conflicts it has occurred at times of exchanges and both parents’ partners have been involved.

g) The mother raised concerns over the cleanliness of the father’s home but the clinician observed that while housekeeping standards are different in each home, neither home poses a serious risk to health. [ 146 ] Ms Tracz interviewed HB who was 7 years old twice at her school on February 9 and March 8, 2018. [ 147 ] A

summary of the February 9 th interview is as follows:

a) HB did not show the same nervousness as at the first time and she was friendly and engaged.

b) When asked how she was feeling about going back and forth between homes, she shared that “things weren’t going very well” and provided the following examples: - Ms SM (father’s wife) sometimes makes fun of her hair and how she wears it, telling her that it looks ugly if she doesn’t wear it in a bun - Ms SM says that her brother’s hair looks ugly. She did it the other day when he woke up and it was sticking up in the air - Ms SM doesn’t like her orange shoes. SM thinks they are ugly. - she frequently feels as if she is always “in trouble” at her father’s house and that makes her feel sad.

She said her Dad is mad at her all the time. - she said there were things she liked at her mother, father and grandmother’s home. All have good food. - she said she likes the way her father does bedtime as he reads a story every night and her mother does not always have time - she doesn’t do her homework with her father only with her mother - she said that she loves to visit her father and loves her dad very much but doesn’t want to live with him because she doesn’t like going back and forth.

She added that she has a lot of fun with her father on the weekends when he doesn’t work - she doesn’t like her father’s girlfriend very much, although her dad likes her a lot. She believes that SM doesn’t like her

c) she wanted to be clear that she would like the clinician to tell the judge, “I want to stay at my mom’s and visit my dad on the weekends” like my friend.

d) She added that she was angry when her dad took her out of her new school because she likes taking the school bus and she made a friend on the bus. [ 148 ] Ms Tracz wanted to meet with HB a second time to reinforce and remind her about the process as there was some “confusion” after the first visit as HB seemed to think that because she told her where she wanted to live that she could just stay with her mother because now the judge knew what she wanted. [ 149 ] On February 12 th Ms Tracz spoke to HB on the phone and told her that it would take many weeks until the judge got her letter that explained how she felt and what she wanted. [ 150 ] Ms Tracz then met with HB again on March 8, 2018.

A

summary of that interview is as follows:

a) Ms Tracz explained to HB that even if the judge read her letter [OCL report] that he or she may still decide that it is best for her to go back and forth but the judge will have a good understanding of what she feels and thinks about the situation.

b) HB nodded her head in agreement and said she understood now that it was still going to take time before she could stay at her mom’s.

c) HB again said that she doesn’t like that SM is mean to her. She reminded Ms Tracz about the times when SM said her hair looked ugly and that she has said that NB’s hair looks ugly too.

d) HM then said that she thought that SM would make fun of Ms Tracz’s hair, if she doesn’t like how she wears her hair. Ms Tracz had to explain to HB that she wears her hair the way she feels is comfortable and it had nothing to do with SM.

e) HB explained that she liked her new school because no one there knew she was a kid who got into trouble and she liked taking the bus.

f) HB also said that she might feel jealous that SM takes her dad’s attention and time and that was why she didn’t like her. [ 151 ] Although Ms Tracz makes comments and observations about NB in her final report. She did not observe him with either parent. [ 152 ] Ms Tracz summarized her impression of her interviews with HB as follows: “ … I was left with the distinct feeling that the complaints against Ms M [SM] were a way to express anger.

It is not clear that the actual events that H shared happened the way she explained them but that she believes them to have occurred and the emotion behind it was unmistakable. She clearly indicated her dislike of Ms M and a belief that Ms M doesn’t like her.

She described how bad it feels to be in trouble “all the time.” These two emotions appear to be fuelling her desire to spend more time with her mother. [ 153 ] Ms Tracz spoke to the children’s paediatrician again and in the Appendix [19] to her report she notes that he told her that he is quite frustrated with the current conflict that is brewing about their daughter’s dust allergy and the bug bites that appeared on her arms and legs. His frustration is connected to the poor communication between the parents.

He stated that he observed an antagonistic tone where each parent seems to be searching for instances when the other makes a mistake for the sole purpose of bringing it up in court. It is his belief that the bed bug allegation is fuelled by that desire. He would like to meet with both parents simultaneously to provide information about how best to manage HB’s dust allergy. He wondered if the parents could not benefit from some ongoing support from counselling. The paediatrician confirmed that despite the conflict, both parents provide good care of the children.

[ 154 ] Ms Tracz spoke to the principal of HB’s school who confirmed that she had difficulty settling in when she returned to their school for the first few months but she has now settled and is doing well. She still sometimes gets into conflict with staff and peers because of her holding onto pent up emotions. The school reported that it was “very aware” of the conflict between the parents. [ 155 ] Ms Tracz also received information from a society worker that the conflict had settled and their file was closed.

The society worker sated that she was hopeful that with support from Families in Transition the parents will be taught a new pattern of relating.

She also felt that HB could benefit from counselling, perhaps a group for children. [ 156 ] In making her recommendation that both children should live primarily with the mother, Ms Tracz concludes that: “ To protect H’s sense of self-esteem she should spend time with caregivers who can attune to her needs and help her feel heard and right now that appears to be Ms P [the mother]”. [ 157 ] Ms Tracz points out that HB easily misinterprets social messaging and that on at least two instances she misunderstood her own interactions with her.

HB misunderstood the court process and twice reported a belief that Ms Tracz was connected with her father’s partner. [ 158 ] Ms Tracz recommended that HB receive counselling in a children’s group where she can explore her feelings of divided loyalty and that deals with separation. She further found it troubling that HB is expressing a lot of her emotional turmoil through behaviour in her relationship with her father. As a result she felt that they might benefit from some positive one to one time. [ 159 ] With respect to schooling, Ms Tracz stated that HB might function well in either school.

But as she would be spending more time in her mother’s home, it was her opinion that it made sense for both children to attend the school closer to the mother’s home and that school also had better outcomes connected to EQAO. 7.3 Ms Tracz’s testimony [ 160 ] Ms Tracz provided further oral evidence.

In response to questions from mother’s counsel she confirmed that at the time she wrote her report although she would have made several more recommendations and corrected her “missteps” she would not have changed her conclusions. [ 161 ] The court ordered a copy of Ms Tracz’s testimony due to concerns about the very troubling nature of her evidence. Ms Tracz admitted that she omitted relevant information from her final report. Her evidence also revealed her lack of adequate investigation and failure to follow proper protocol. [ 162 ] I summarize Ms Tracz’s evidence as follows:

a) She agreed that HB exhibited challenging behaviours in both homes and in her school.

b) When asked for an example of the father handling HB’s challenging behaviours Ms Tracz gave an example that occurred during an observation outlined in her interim report. Ms Tracz had concluded that the father had used appropriate parenting strategies to handle a conflict between his daughter and his partner’s son over a video game by teaching her that there are consequences for her actions.

c) When asked for an example of how the mother handled their daughter’s challenging behaviours, Ms Tracz stated that she joked with her, distracted her and then negotiated with her. Ms Tracz agreed that she never observed or reported that the mother set limits or boundaries for HB’s challenging behaviour. She agreed that “negotiating” might not be a method of correcting those behaviours and negotiating was not a helpful technique to correct her behaviour at school.

d) Although Ms Tracz stated in her report and in her oral evidence that it was her impression that the mother understands HB’s personality more and understands what going on emotionally underneath it, she provided no examples or instances to substantiate this impression.

e) She testified that it was her perception that the children’s relationship was better with the mother’s boyfriend than with the father’s partner. She then refined her answer to state that the son is comfortable with both parents and with both their partners. Ms Tracz admitted that she had not made any further observations for her final report and nowhere did she document that RB had a better relationship with the children than SM had.

f) She agreed that after her first observation of the mother with the children she had concerns about how the mother structured her time with the children that she did not have those same concerns about the father.

g) She agreed that after the two observation visits of the mother with the children she had significant concerns about the mother’s parenting. She agreed that she did not set out her concerns about the mother in her report.

h) She agreed that the mother making negative comments about the father in the presence of the children in both of her observation visits was a concern. Further she agreed that a parent making repeated negative comments about their other parent would be a concern. Yet she made no comments about this concern in her report.

i) She did not agree that HB telling a society worker that she was sad because her father would not sign a paper that her mother wanted him to sign raised concerns about the mother speaking negatively about the father. She explained that HB could have overheard this. But she finally conceded that even if HB overheard or was told this, such a discussion raised a concern about what she had been told or what she was hearing in her mother’s home.

j) She agreed that her observations of the father with the children and with his partner were very positive.

k) As part of her investigation for her final report she made no further observations of either parent or their partners with the children

and agreed that this may have been an error.

l) She agreed that the mother’s comment that watching too much television can cause autism raised concerns about the source of the mother’s medical information but she never addressed this issue with the mother or spoke to her about her source of medical information.

m) She agreed that the only information she had about the relationship between HB and Ms SM was from statements made by the child and that she had not observed any negative parenting behaviour in her observations of Ms SM and the children.

n) She agreed that she observed incidents that raised concerns about the mother’s supervision of the children namely, their son holding a small object in his hand and climbing on a folding chair and the mother did not intervene. She agreed that the children’s paediatrician had also raised concerns about the mother’s lack of supervision.

But she then testified that there was no indication that the children had actually been hurt and perhaps this was just the mother’s “parenting style and she was more attuned to the kids than it appeared.” Ms Tracz would not agree that a small child could choke on a small object but rather testified that her concern related to him putting the object up his nose. After further cross-examination Ms Tracz finally conceded that even if the children had not yet suffered an injury as a result of lack of supervision there is still a concern about a lack of supervision and risk of potential injuries.

She did not feel this was important enough to address in her report.

o) Despite her knowledge of the mother’s and RB’s history of drug addiction and the misuse of prescription drugs, she does not refer to the issue in either report. She did not address the issue of the children’s safety regarding drugs being stored in the home. She relied on RB’s information that he was receiving methadone treatment and things were going well. In the notes of the society there is a reference to the mother having “marijuana pills” but this is not referred to at all in her report.

p) She testified that RB’s lack of relationship with his own children raised “a bit of a red flag” did not feel the need to probe further. She accepted his information that he does not see his children because of a conflict with their mother and they live a distance away.

q) Ms Tracz testified that she did conduct a children's aid society records search regarding RB and there were no child protection concerns. She did not mention in her report that in January 2016, it was alleged that RB burnt his then girlfriend’s child with a cigarette. She testified that as this incident was not verified it was not a concern. But she never asked RB about this or inquired if it was connected to his admitted drug use during this time frame.

r) She agreed that HB’s school was a positive and supportive environment filled with adults who understood her needs and were well attuned to those needs. Despite stating that the new school had better EQAO ratings, she admitted that she had no case notes or actual knowledge of the comparison of the ratings between the schools.

s) She omitted from her report that she spoke to Ms Sylvia Bieweglowska of the CCAS who reported that she had no concerns about the hands on care of the children by both parents. But she was quite concerned that the mother gets herself all upset and then stirs up conflict between herself and the father. Ms Tracz admitted that she did not note this information in her interim report but made it appear that the conflict was mutual. She further conceded that in her own observations she agreed that the conflict was coming more from the mother than the father. But nowhere is her report does she allude to this.

t) Although she agreed that the mother was not honest about the history of caregiving, but that she did not feel this was a big enough concern to mention it is either her interim or final report despite the many other instances where the mother had not told the truth.

u) Despite receiving information, at the disclosure meeting for the interim report, that the mother had unilaterally taken steps to move the daughter’s school, Ms Tracz did not include this significant information in her interim report. She testified that she saw the mother’s behaviour as an extension of her emotional impulsiveness that was going to be addressed through the Families in Transition program and if the mother received some appropriate support for herself.

v) She agreed that nowhere in either report had she described her impression of the mother as “emotionally impulsive”.

w) She agreed that she did not discuss in her final report that the reason the father had to take steps to remove their daughter from her new school was that the mother had unilaterally withdrawn HB and then after agreeing to return her to her old school, the mother had not done that. She agreed she “missed it” and it should have been addressed in her report.

x) She did not mention in her report that the mother videotaped HB saying that she wanted to stay in her new school and sent it to the father. She never mentioned in her report that the mother never corrected HB’s understanding that her father removed her from her new school because the mother had registered her there without permission and that it was her fault.

y) She testified that it was the policy of the OCL and her understanding that once the interim report was done that it was a closed period and that she should not have any contact with the parties until she then began the investigation for her final report.

z) She admitted that she had spoken to the mother during this interval and the mother told her that she could not move HB back to her old school. Ms Tracz denied that she told the mother just to leave her in her new school, as testified to by the mother. Ms Tracz further admitted that she kept no notes of her discussion with the mother. aa) She confirmed that the mother spoke to her about the child tax benefits namely, that the father changed the benefits and did not tell her before he did this. Ms Tracz also testified that she spoke to the mother about her financial situation.

She explained that she did not speak to the father to obtain his side of what happened as it was not relevant to her. However, she then agreed that she told the father that he should not have done what he did regarding the child tax benefit and did not give him an opportunity to explain. She further testified that she believed the mother about her version of the events. bb) She testified that the mother called her several times during her investigation for the final report expressing concerns or asking questions about how to support her daughter when her daughter was expressing frustration.

But this information was also omitted from her report.

cc) Ms Tracz testified that she continued to engage the mother in conversations about accessing programs at Families in Transition. Ms Tracz did not clarify or document how many telephone calls she had with the mother. She testified that the mother went back and forth about whether

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