M.K. v. M.A., 2021 ONCJ 658

ONTARIO COURT OF JUSTICE CITATION: M.K. v. M.A., 2021 ONCJ 658 DATE: 2021 12 2 COURT FILE No.: D20956/18 BETWEEN: M.K. Applicant — AND — M.A. Respondent Before Justice Melanie Sager Heard on November 15, 17, 18, 19 and 22, 2021 Reasons for Judgment released on December 2, 2021 Lalit Kalra................................................................................................. counsel for the applicant M.A. ........................................................................................................ acting on her own behalf SAGER, J.: I.

Introduction [ 1 ] This trial addressed the parenting and support issues regarding the parties’ son M.H.K. born […], 2016 who is four years old (hereinafter referred to as the child). [ 2 ] The child lived in the primary care of the mother until February 16, 2021 when he was placed in the primary care of the father pursuant to the order of the case management Judge, Justice Robert Spence dated January 13, 2021.

The child has remained in the father’s primary care since that time. [ 3 ] The father asks the court to make final orders that the child have his primary residence with the father who shall have sole decision making responsibility. He further asks that the mother’s parenting time be virtual and supervised by him until Access for Parents and Children (APCO) resumes in person visits and can provide supervision services. The father provides a framework for the future consideration of expanding the mother’s parenting time to unsupervised day visits.

The father also seeks a police enforcement order. [ 4 ] With respect to child support, the father requests an order requiring the mother to pay child support as of January 1, 2023, based on an annual imputed income of $15,000.00 and the Child Support Guidelines (the Guidelines) unless the mother’s actual income exceeds $15,000.00 in which case child support would be payable in accordance with the Guidelines based on her actual income. [ 5 ] The mother asks the court to order the child’s primary residence be with her and that she have sole decision making responsibility.

She asks the court to reinstate the parenting

schedule in place for the father at the time the child was removed from her care which was alternate weekends from Friday to Sunday; every Wednesday from 11:00 a.m. to 5:00 p.m.; and, every Friday before and

Monday after a weekend the child is in the mother’s care from 11:00 a.m. to 5:00 p.m. [1] She also seeks an order requiring the father to pay her child support effective upon the date the child is returned to her primary care. [ 6 ] In addition to affidavit evidence in chief, the father gave oral evidence and called a worker from the Children’s Aid Society of Toronto (the society) to give evidence. The mother’s evidence was provided entirely orally, and she called her parents and a gentleman who the father had spoken to at his Mosque who also gave oral evidence. [ 7 ] The trial was conducted by videoconference over five days. [ 8 ] The issues to be determined are as follows: (

a) Who should the child have his primary residence with? (

b) Which parent should be granted sole decision making responsibility over the child? (

c) What parenting time is in the child’s best interest for the parent with whom he does not primarily reside? (

d) If the child has his primary residence with the father, should the mother’s parenting time be supervised and limited to video contact until such time as APCO resumes in person visits? (

e) Should an order be granted instructing police to enforce the orders of the court? (

f) Should there be orders permitting one parent to obtain government issued documentation for the child and/or travel with the child outside of Canada without the other parent’s consent? (

g) Should there be any orders restricting a parents’ travel with the child outside the Greater Toronto Area or other specified boundary? (

h) Should there be any orders limiting or dictating the method by which the parties communicate about the child? (

i) What order for child support would be appropriate after a consideration of the parenting orders? II. The Parties [ 9 ] The father is 31 and the mother is 29 years old. They were both born in Pakistan. The mother moved to Canada with her family when she was 8 or 9 years old and the father moved to Canada on December 8, 2016. [ 10 ] The parties were married in Pakistan on June 15, 2015. They are first cousins and their parents arranged their marriage.

The parties have no other children other than M.H.K. [ 11 ] The father currently works as a pre-boarding screening officer at Pearson International Airport and the mother is enrolled at York University where she is in the second year of an undergraduate degree, but it is unclear if she is currently attending classes. [ 12 ] The parties lived together in the mother’s parents’ home between December 8, 2016 and March 5, 2018 when they separated, and the father moved out. [ 13 ] After the parties separated, the child resided with the mother and the maternal family and at the mother’s insistence, the father visited the child in the mother’s home and was not permitted to leave with the child.

III. Credibility of the parties and their witnesses [ 14 ] The father gave his evidence in a clear and forthright manner. He provided details when answering questions and his evidence was logical and easy to follow. He had a significant amount of documentary evidence to corroborate his oral evidence. He never exaggerated or overdramatized his evidence. The father was very credible. [ 15 ] The society worker called by the father provided very clear evidence and thoughtful answers to difficult questions. She was fair to both parents and in no way appeared aligned with either parent.

She provided evidence that supplemented the society records that were filed as business records which the parties agreed in advance of trial would be relied upon for the truth of their content. [ 16 ] The mother did not cross examine the father or the society worker and did nothing to diminish the credibility of these witnesses. [ 17 ] The mother and her witnesses were not credible. The mother repeatedly made extreme and at times outlandish statements without providing any evidence whatsoever to support the statements.

She provided illogical explanations for discrepancies in her evidence, could not explain contradictory affidavit evidence she provided in the course of the litigation, and she denied the accuracy of her own medical disclosure and the society’s records despite consenting to an order prior to trial that the documents can be relied upon at trial for the truth of their content. [ 18 ] More specifically, the mother denied the accuracy of information she previously provided to third party professionals about her conflictual relationship with her parents and a long history of verbal and physical abuse directed at her by her father, the maternal grandfather.

She said that she was forced to provide the false information by the father (of the child) even on dates that predated their relationship and without providing an explanation as to why the father would want her to lie about her relationship with her parents. [ 19 ] In her evidence the mother made serious allegations of mistreatment by the father, repeatedly saying that he “tortured” her and that she is left “traumatized” by their relationship and the court proceedings. The mother provided no credible evidence, medical or

otherwise, to support these claims despite her involvement with several medical professionals in recent years. While the mother did allege the father grabbed and shook her and slapped her across the face while in Pakistan, nowhere in any of the business records relied on by the parties does the mother report any other mistreatment by the father.

To the contrary, except for the alleged incidents in Pakistan, the mother denies any mistreatment by the father to the society, the police and to her doctors. [ 20 ] The mother’s efforts to explain her questionable behaviour throughout the litigation and some very serious parenting concerns raised by the father, included clear fabrications, convenient memory loss and long speeches about how she was forced to marry the father who is a horrible person and have a child before she was ready.

She struggled to answer straight forward questions and blamed the father and the court system for traumatizing her saying that no one “fucking cares about my son” and “no one fucking cares about me”. [ 21 ] The mother’s evidence of the trip she took to Pakistan with her mother and the parties’ son in December 2020 significantly damaged her credibility. She took the child out of Canada without the father’s knowledge or consent violating a court order granting him specified parenting time. She commenced court proceedings in Pakistan against the father for relief that was already before this court.

She gave several contradictory statements about what precipitated the trip and she could not explain previously sworn contradictory affidavits that also contradicted her evidence at trial. [ 22 ] When the mother found herself in a difficult position during cross examination and faced with having to give evidence adverse to her case, she resorted to becoming overly dramatic announcing that she is not comprehending what is being said in court and that she is being traumatized by the questioning and can barely follow what is being said in the court during the trial. [ 23 ] The mother’s witnesses also made bold and sweeping statements about the father without the details a trial judge would expect to hear.

Their evidence can only be described as sensational and completely unreliable. Their evidence simply parroted that of the mother. The paternal grandfather said repeatedly that the father has tortured his daughter. The paternal grandfather was argumentative and had to be asked several times by the court to answer the question and refrain from engaging with father’s counsel who always maintained his professionalism.

The maternal grandfather and the gentleman from the father’s Mosque argued with counsel for the father rather than answer a question that would clearly undermine their evidence. [ 24 ] Both the maternal grandparents gave evidence that they do not remember important meetings with society workers during which safety plans were discussed in order to protect the child from risk of harm due to the level of conflict in the home between the mother and her parents but mostly with the maternal grandfather.

Their memories only faltered when asked about society involvement creating serious credibility issues for these witnesses. [ 25 ] The evidence of the mother’s witnesses provided the court with little to no assistance in determining what orders are in the best interests of the child. [ 26 ] The extent of the blatant lies, misrepresentations and unbelievable explanations in the mother’s evidence was overwhelming.

Her evidence was completely unreliable and where it differed from that of the father, the court accepted the father’s version of events, the evidence of the society worker, and, the information contained in the business records filed by the father and which the parties agreed prior to trial would be relied upon for the truth of their content. IV. History of the Case 2018 [ 27 ] The father commenced this Application on June 21, 2018 claiming that the mother had mental health issues and was abusive towards him during the marriage.

He claimed she is unable to meet the needs of the child and is denying him meaningful parenting time. He requested an order for joint custody of the child. [ 28 ] The father amended his Application on January 12, 2019, seeking sole custody (as it was then referred to in the Children’s Law Reform Act ) and primary care of the child. [ 29 ] The mother served and filed an Answer and Claim dated June 29, 2018 which she amended on January 24, 2019.

In addition to seeking primary residence and sole custody of the child, the mother requested an order that the father’s access to the child be supervised because she said he had threatened to take the child away from her. [ 30 ] On August 2, 2018, the parties consented to a temporary without prejudice order that the child’s primary residence shall be with the mother and the father shall have access for 2 hours twice per week increasing to 3.5 hours after the first five visits.

The order also provided that the father shall pay the mother child support for their son in the amount of $230.00 per month based on the father’s annual income of $27,525.00 and the Guidelines. [ 31 ] On November 10, 2018, the mother swallowed several prescription pills and was taken to the hospital where she remained in the Intensive Care Unit for several days. The society was notified of the mother’s attempt at suicide and became involved with the family. A safety plan was implemented that allowed the child to remain with the mother in the maternal grandparents’ home.

The plan required the mother’s parenting of the child to be supervised by the maternal grandparents. A Protection Application was not commenced by the society. [ 32 ] On November 29, 2018, the father brought an urgent motion without notice to the mother seeking orders granting him primary care and temporary custody of the child. The motion was brought after the mother was hospitalized again after having a bad reaction to a strain of marijuana she received from a friend.

The motion was ultimately dismissed and the child remained in the mother’s care subject to supervision by her parents. [ 33 ] On December 7, 2018, on consent, Justice Spence increased the father’s parenting time to be implemented on a step up basis between December 2018 and January 2019 ultimately resulting in the father having care of the child alternate weekends from Friday to Sunday commencing the week of January 21, 2019; every Monday and Wednesday from 3:00 p.m. until 7:30 p.m.; and, alternate Fridays

prior to a weekend he is in his mother’s care, from 3:00 p.m. until 7:30 p.m. 2019 [ 34 ] The year of 2019 began with the first of several lawyer changes by the mother and litigation conduct that has resulted in this case lingering in the court system for over three years. The mother has had five lawyers of record throughout this proceeding several changes of which occurred just prior to a court date. [ 35 ] Between February 2019 and the date of this trial, the mother either requested an adjournment or attended in court unprepared and unable to proceed on at least nine court appearances.

At least three court appearances including the trial of this matter first scheduled for October 2021, were made peremptory to the mother. 2020 [ 36 ] By February 2020, the parties had agreed to the father having extensive parenting time. On February 24, 2020, the parties consented to a temporary order granting the father parenting time as follows: (

a) Every Wednesday from 11:00 a.m. to 5:00 p.m. (

b) Alternate weekends from Friday at 11:00 a.m. to Sunday at 5:00 p.m. (

c) Alternate Fridays before a weekend the child is with the mother from 11:00 a.m. to 5:00 p.m., and, (

d) Alternate Mondays following a weekend the child is with the mother from 11:00 a.m. to 5:00 p.m. The mother’s trip to Pakistan in December 2020 and the court order changing the child’s primary residence to be with father [ 37 ] The mother says that she went to Pakistan with the child and her mother on December 8, 2020 to attend the father’s brother’s wedding, to see her sick aunt (the father’s mother), and to obtain a divorce as she believed she could not obtain a divorce in Canada having been married in Pakistan.

She was in Pakistan from December 8, 2020 until February 16, 2021. [ 38 ] The mother knew that in late November 2020 the father travelled to Pakistan to see his sick mother. [ 39 ] The mother acknowledged that she took the child to Pakistan without the father’s consent or knowledge. [ 40 ] While in Pakistan, the child had no contact at all with the father.

The father did not know where the child was for approximately two months although he suspected the mother was in Pakistan once he was served with her court documents. [ 41 ] On January 13, 2021, the parties were scheduled to attend in court on a continuing Settlement Conference. On that date, the court learned that the mother was in Pakistan with the child without permission from the father or the court and in breach of the court’s order of February 24, 2020 granting the father specified parenting time. Justice Spence granted the mother’s third lawyer an order removing her as solicitor of record.

In addition, Justice Spence ordered the mother to advise the father where she and the child are and to return the child to Toronto immediately where he will be placed in the primary care of the father who shall have authority to make medical and education decisions related to the child. Justice Spence also ordered the appropriate police forces to assist in enforcing the order, specifically that they shall locate, apprehend and deliver the child to the father.

The mother was ordered to pay the father’s costs of the appearance fixed at $1500.00 and the matter was adjourned to January 26, 2021. [ 42 ] On January 26, 2021, both parents participated in the court appearance from Pakistan. On that date the mother was assisted by her fourth lawyer of record.

The mother advised the court that she had not complied with Justice Spence’s order of January 13, 2021, as she was still in Pakistan where she commenced divorce proceedings and must attend a court hearing on February 9, 2021. [ 43 ] On February 16, 2021 the mother returned to Canada and the child was placed in the primary care of the father. The events that followed mother’s return to Canada on February 16, 2021 [ 44 ] After returning to Canada in February 2021, the parties had scheduled court appearances on March 15, 2021, March 25, 2021, June 2, 2021 and August 25, 2021.

On March 15, 2021, Justice Spence referred this case to trial the week of July 19-23, 2021. On June 2, 2021, unopposed by the father, Justice Spence reluctantly granted the mother’s request to adjourn the trial to October 2021 after she had only recently hired her fifth lawyer.

Justice Spence made the October 2021 trial date peremptory to the mother and made several other orders as conditions of the adjournment including prohibiting the mother from brining any motions for substantive relief prior to the trial, the mother undertakes to proceed to trial in October 2021 with or without counsel, and, the mother will pay the father’s costs of $1500.00. [ 45 ] On March 25, 2021, Justice Spence also made several procedural orders on consent in preparation for trial. The orders made include: (

a) The mother agreed to admit at trial copies of the notes and records of several medical professionals for the truth of their content and without the need to call the record keepers as witnesses at trial. (

b) The mother agreed to admit at trial several police occurrence reports, the records of the society and the child’s previous daycare and school for the truth of their content and without the need to call the record keepers as witnesses at trial. (

c) The mother agreed to provide the father with the notes and records of five medical professionals from January 2019 to the

date of the order, translated copies of all the court Applications she commenced in Pakistan, an updated resume, and copies of her school transcripts for the past nine years. [ 46 ] Unfortunately, this case was not reached in the October 25-29, 2021 trial week and was referred to the next trial sittings between November 15-26, 2021 as a back up to the child protection trials. [2] [ 47 ] At the commencement of trial on November 15, 2021, mother requested yet another adjournment saying that she needed more time to prepare her written evidence as her full time enrollment as a student at York University [3] and the Covid-19 pandemic have made it difficult for her to prepare for trial.

The mother suggested a one month adjournment. [ 48 ] The father opposed the mother’s request to adjourn the trial but was not opposed to the mother receiving a day during the two week trial sittings to prepare her evidence which she was told she could give orally. The trial commenced with the father’s case on November 15, 2021 and the mother was given one day, November 16, 2021 to prepare her cross examination of the father and her evidence.

The mother was provided with a written guide to ‘Representing Yourself at Your Family Law Trial’, produced by the Ontario Court of Justice and the trial was adjourned to November 17, 2021. [ 49 ] On November 17, 2021, the trial resumed. The mother did not cross examine the father or the worker from the society. The mother advised the court that her evidence would be comprised of several videos she wished to file with the court along with a written statement of her description of each video.

As the mother did not provide the videos or the statement to counsel for the father in advance, he was given the opportunity to review the videos and the statement with his client and they were entered as evidence. [ 50 ] The court assisted the mother in giving her testimony by going through the father’s evidence and having her respond to the issues or provide her version of events raised by the father in his testimony. [ 51 ] As the mother was self represented, the court gave her a lot of latitude when giving her evidence. [ 52 ] The court was vigilant not to rely on the statements contained in the business records from third parties who did not give evidence at the trial.

The court only relied on statements made by the parties and the maternal grandparents to the third party professionals who recorded the statements in the records. Mother’s parenting time after her return from Pakistan [ 53 ] After the mother returned with the child to Canada her parenting time was to be supervised. The mother has been offered in person parenting time supervised by the society and by a professional supervision service, but she did not respond to the offers. As a result, the mother’s parenting time since her return to Canada in February 2021 to the date of trial has been by video only. V.

The Law [ 54 ] Subsection 18 (1) of the Children’s Law Reform Act (the Act) defines decision-making responsibility as follows: “decision-making responsibility” means responsibility for making significant decisions about a child’s well-being, including with respect to, (

a) health, (

b) education, (

c) culture, language, religion and spirituality, and (

d) significant extra-curricular activities. [ 55 ]

Section 20 of the Act reads as follows: Equal entitlement to decision-making responsibility 20

(1) Except as otherwise provided in this Part, a child’s parents are equally entitled to decision-making responsibility with respect to the child. Rights and responsibilities

(2) A person entitled to decision-making responsibility with respect to a child has the rights and responsibilities of a parent in respect of the child, and must exercise those rights and responsibilities in the best interests of the child. Authority to act

(3) If more than one person is entitled to decision-making responsibility with respect to a child, any one of them may exercise the rights and accept the responsibilities of a parent on behalf of them in respect of the child. If parents separate

(4) If the parents of a child live separate and apart and the child lives with one of them with the consent, implied consent or acquiescence of the other, the right of the other to exercise the entitlement to decision-making responsibility with respect to the child, but not the entitlement to parenting time, is suspended until a separation agreement or order provides otherwise.

Parenting time

(5) The entitlement to parenting time with respect to a child includes the right to visit with and be visited by the child, and includes the same right as a parent to make inquiries and to be given information about the child’s well-being, including in relation to the child’s health and education. [ 56 ]

Section 24 of the Act addresses the best interests of the child. It reads as follows: Best interests of the child 24

(1) In making a parenting order or contact order with respect to a child, the court shall only take into account the best interests of the child in accordance with this section. Primary consideration

(2) In determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child’s physical, emotional and psychological safety, security and wellbeing. Factors

(3) Factors related to the circumstances of a child include, (

a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability; (

b) the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life; (

c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent; (

d) the history of care of the child; (

e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained; (

f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage; (

g) any plans for the child’s care; (

h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child; (

i) the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child; (

j) any family violence and its impact on, among other things, (

k) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and (

l) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and (

m) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child. Factors relating to family violence

(4) In considering the impact of any family violence under clause (3) (j), the court shall take into account, (

a) the nature, seriousness and frequency of the family violence and when it occurred; (

b) whether there is a pattern of coercive and controlling behaviour in relation to a family member; (

c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence; (

d) the physical, emotional and psychological harm or risk of harm to the child; (

e) any compromise to the safety of the child or other family member; (

f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person; (

g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve the person’s ability to care for and meet the needs of the child; and (

h) any other relevant factor. Past conduct

(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person,

unless the conduct is relevant to the exercise of the person’s decision-making responsibility, parenting time or contact with respect to the child. Allocation of parenting time

(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of the child. [ 57 ]

Section 28 of the Act sets out the different types of parenting orders that a court can make. The relevant subsections of

section 28 for this case read as follows: Parenting Orders and Contact Orders 28 1) The court to which an application is made under

section 21, (

a) may by order grant, (

i) decision-making responsibility with respect to a child to one or more persons, in the case of an application under clause 21 (1) (

a) or subsection 21 (2), (ii) parenting time with respect to a child to one or more parents of the child, in the case of an application under clause 21 (1) (b), or (iii) contact with respect to a child to one or more persons other than a parent of the child, in the case of an application under subsection 21 (3); (

b) may by order determine any aspect of the incidents of the right to decision-making responsibility, parenting time or contact, as the case may be, with respect to a child; and (

c) may make any additional order the court considers necessary and proper in the circumstances, including an order, (

i) limiting the duration, frequency, manner or location of contact or communication between any of the parties, or between a party and the child, (ii) prohibiting a party or other person from engaging in specified conduct in the presence of the child or at any time when the person is responsible for the care of the child, (iii) prohibiting a party from changing the child’s residence, school or day care facility without the consent of another party or an order of the court, (iv) prohibiting a party from removing the child from Ontario without the consent of another party or an order of the court, (

v) requiring the delivery, to the court or to a person or body specified by the court, of the child’s passport, the child’s health card within the meaning of the Health Insurance Act or any other document relating to the child that the court may specify, (vi) requiring a party to give information or to consent to the release of Information respecting the child’s well-being, including in relation to the child’s health and education, to another party or other person specified by the court, or (vii) requiring a party to facilitate communication by the child with another party or other person specified by the court in a manner that is appropriate for the child.

Allocation of decision-making responsibility

(4) The court may allocate decision-making responsibility with respect to a child, or any aspect of it, to one or more persons. Allocation of parenting time

(5) The court may allocate parenting time with respect to a child by way of a schedule. Parenting time, day-to-day decisions

(6) Unless the court orders otherwise, a person to whom the court allocates parenting time with respect to a child has exclusive authority during that time to make day-to-day decisions affecting the child. Parenting plan

(7) The court shall include in a parenting order or contact order any written parenting plan submitted by the parties that contains the elements relating to decision-making responsibility, parenting time or contact to which the parties agree, subject to any changes the court may specify if it considers it to be in the best interests of the child to do so. Right to ask for and receive information

(8) Unless a court orders otherwise, a person to whom decision-making responsibility or parenting time has been granted with respect to a child under a parenting order is entitled to ask for and, subject to any applicable laws, receive information about the child’s well-being,

including in relation to the child’s health and education, from, (

a) any other person to whom decision-making responsibility or parenting time has been granted with respect to the child under a parenting order; and (

b) any other person who is likely to have such information. VI. Analysis of the best interest factors –

Section 24 of the Children’s Law Reform Act Section 24(2) – Primary consideration: The child’s physical, emotional and psychological safety, security and wellbeing [ 58 ] The court must give primary consideration to the child’s physical, emotional and psychological safety, security and well being in determining his best interests. [ 59 ] The evidence demonstrates that the child’s physical, emotional and psychological safety, as well as his security and well being is of the utmost concern to the father and that he has at all times conducted himself in a manner and made decisions that promote and put the child’s overall wellbeing before anything else. [ 60 ] The father has met the child’s need for physical, emotional and psychological safety at all times by providing him with a safe, stable and happy home; ensuring he receives regular medical care; promoting his education and socialization; being alive to medical and dental issues that arise outside of annual check ups; promoting and attempting to foster a healthy relationship with his mother; and, taking steps to protect the child from adult conflict. [ 61 ] The mother has been unable to recognize and meet the child’s need for physical, emotional and psychological safety.

Her conduct and choices have had a negative impact on the child’s sense of security and well being. Examples are as follows:

a) The mother denied or at least limited the father’s parenting time unnecessarily following separation.

b) The mother removed the child from Canada without the father’s consent or court order during the court proceedings and travelled to Pakistan for two months. In doing so, she violated a court order for specified parenting time for the father.

c) The mother failed to obtain dental and medical treatment for the child when he needed it.

d) The mother enrolled the child in school over a month after the school year began and then failed to take him regularly before removing him for two months to travel to Pakistan.

e) The mother has failed to adequately address her mental health issues including depression and anger.

f) The mother allowed the child to be subjected to frequent adult conflict in the home she shares with her parents and siblings.

g) After the child was moved into the father’s primary care in February 2021, the mother did not take any steps to implement in person supervised parenting time despite it being available to her. As a result, her child has only seen her via video since February 2021.

h) The mother has repeatedly made unfounded allegations that the father is sexually abusing the child.

i) The mother has repeatedly breached court orders impacting the child’s relationship with his father.

j) The mother has behaved inappropriately towards the child during her video parenting time showing an inability to control her emotions to her son’s detriment.

k) The mother takes little to no responsibility for her behaviour and choices and shows little insight into the negative impact they have had on her son. Section 24(3) – Factors to be considered where applicable when determining best interests i. The history of care of the child [ 62 ] The child resided primarily with both parents until they separated in March 2018 when he was not even two years old. The father’s evidence is that he worked the night shift at Tim Horton’s and was available to assist with childcare during the day. He says he was actively involved in the day to day care of the child.

The mother did not provide evidence to contest the father’s version of events. [ 63 ] In 2017, the mother reported to her psychiatrist that the father was supportive with respect to child care and on July 6, 2017 the mother told a society worker that the father “is a great person” and is “loving and patient” with the baby.

She described the father as “kindhearted”. [ 64 ] The court finds that during the marriage both parents were involved in the day to day care of the child. [ 65 ] After the parties separated in March 2018, the child was cared for primarily by the mother until February 16, 2021 when he was placed in the primary care of the father. Before the child was placed in the father’s primary care, the father had regular and frequent parenting time with the child during which he engaged in various outings and activities. He also tended to the child’s medical and dental needs during his parenting time.

The evidence before the court is that the father has met the child’s needs while in his care and no concerns have been noted by anyone. [ 66 ] After being placed in his father’s care, the mother has only exercised video parenting time despite being given the opportunity to commence supervised in person parenting time.

[ 67 ] Since February 2021 the mother has missed several scheduled video visits with the child. In addition, the father has some concerns with the mother’s behavior during her parenting time which will be addressed in more detail below. i. The nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life [ 68 ] There is no doubt the child has a strong attachment to both parents. This is noted repeatedly in the society’s records.

It is also noted that both parents were able to meet the child’s basic physical needs. [ 69 ] The society workers recorded in their notes that the father was affectionate and appropriate with the child who often sat in his lap. The maternal grandmother gave evidence that the father always picked the child up and kept him in his lap. [ 70 ] While in his mother’s care, the child also created important relationships with his maternal grandparents, uncles and aunts.

The mother’s evidence included video of the child with his young uncles and their closeness was obvious. [ 71 ] The maternal grandmother and uncles can be seen in some of the videos of the mother’s virtual parenting time. The love of the child can clearly be seen on the maternal family’s faces. ii. The child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage [ 72 ] The parties are both of Indian descent and practicing Muslims.

No evidence was given by either party that there is any disagreement with respect to the child’s religious or spiritual upbringing. iii. The child’s views and preferences [ 73 ] While the child is too young to express his views and preferences in relation to the parenting orders the court is being asked to make, the court finds that the child loves both of his parents and has an important connection with both. iv. Each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent (

a) Denying the father contact with the child following separation [ 74 ] When the parties first separated the mother only allowed the father to see the child in her home. He complied with this requirement in order to see his son. Then the mother began to ignore his requests for parenting time which ultimately resulted in the commencement of court proceedings. [ 75 ] Once court proceedings were commenced, the mother consented to court orders granting the father parenting time.

At first his parenting time consisted of short day visits but over time increased to include regular overnight parenting time. [ 76 ] On several occasions the mother interfered with or unilaterally denied the father his parenting time, violating court orders. At the beginning of the Covid-19 pandemic in March 2020, the mother insisted on suspending the father’s weekday parenting time. The father agreed to this arrangement for a couple of weeks, but the mother denied him weekday parenting time until August 2020.

It makes little sense to suspend the father’s mid week parenting time but allow him to continue to care for the child alternate weekends as per the order of February 24, 2020. The mother did not provide evidence as to why the mid week visits did not resume until August 2020. [ 77 ] In September 2020 when the child commenced junior kindergarten, the mother once again attempted to unilaterally alter the father’s court ordered parenting time.

The father did not agree to the change and asked the mother whether the child is attending school in person or virtually, so he knows where to pick the child up for his parenting time.

When the mother did not respond to his communications, he had to involve the parties’ lawyers. [ 78 ] Even after the lawyers became involved, the mother attended at the child’s school on the father’s parenting time and removed him so that the father could not pick him up. [ 79 ] The mother also incorrectly told a society worker on November 16, 2020 that the father’s parenting time is pursuant to a verbal agreement when it was actually pursuant to a court order made on consent on February 24, 2020.

She complained that he was attempting to pick the child up from school on the days the order granted him parenting time from 11:00 a.m. to 5:00 p.m. and that she attended at the school in order to stop him from doing so.

This resulted in conflict between the parents in front of the child, the mother calling the police and video taping the father, and the child eventually becoming visibly upset and crying. [ 80 ] In her interaction with the society worker on November 16, 2020, the mother unsuccessfully tried to convince the worker that a video she recorded showed the father holding the child up against a fence so that he could not get to his mother. The worker did not agree with the mother’s

interpretation of the video. This is important as there is a pattern of the mother trying to convince third parties that the father is abusive and a danger to the child in an attempt to reduce or restrict his time with the child. [ 81 ] The father provided the court with multiple emails, text messages and WhatsApp communications evidencing the numerous times the mother cancelled his parenting time.

He also produced letters between counsel addressing the issue of mother cancelling his visits to support his claim that the mother regularly interfered in his parenting time and did so arbitrarily and unilaterally. [ 82 ] The mother did not contest the accuracy or authenticity of the communications between her and the father. She provided no evidence to adequately explain the numerous occasions she cancelled the father’s court ordered parenting time.

(

b) The mother’s repeated unfounded allegations of sexual abuse by the father [ 83 ] On October 25, 2018, the mother called the society and reported to the Intake worker that she is worried the father is sexually abusing their child. She reported that the child, who was just under two years of age at the time, is tired after visits with his father, lashes out at her physically when he wakes up and makes moaning sounds. The mother was advised that what she reported would not justify an investigation. [ 84 ] On June 19, 2019, the mother asked the society worker to describe signs of sexual abuse in a child.

The worker gave some examples and asked the mother if the child is displaying any of the examples given. The mother answered “no”. [ 85 ] On August 25, 2019, the mother took the child to Humber River Hospital to be examined as she was concerned that he was being sexually abused. The mother reported to the doctor that she noticed redness and swelling around the child’s anus upon his return from visits with the father. She also reported that the child behaves differently upon return from visits with his father. [ 86 ] Upon examination, the doctor found no signs of sexual abuse.

The attending doctor consulted with the Suspected Child Abuse and Neglect department at the Hospital for Sick Children, who agreed with the attending doctor’s conclusions. [ 87 ] On August 28, 2019, the mother reported to the society worker that she is concerned that the father is sexually abusing the child because he holds and hugs him too tight and sometimes will not put him down when he wants to be put down. She expressed concern to the worker that the father is gay. The mother acknowledged that there is really no evidence of sexual abuse and that “it’s just a feeling”.

By the end of the discussion the mother told the worker that she does not believe the father is sexually abusing the child. [ 88 ] On September 9, 2020, the society received a referral that the mother is alleging the child is being sexually abused by the father. The society’s records state that the mother told them she took the child to emergency at Etobicoke General Hospital. The mother complained that she waited six hours to see a doctor and by that time the swelling and redness around the child’s anus had subsided.

She complained that the doctor who made her findings too quickly, is not a pediatrician and only an emergency room doctor. [ 89 ] The society investigated the allegations during which the mother reported that she did not approve of how long the father hugged the child or held him in his lap. The society did not verify the mother’s allegations. [ 90 ] The mother made further allegations of sexual abuse by the father in discussions with the society on November 17, 2020. She advised the worker of behaviours the child was exhibiting that led to her belief he was being sexually abused.

This included hair pulling and resistance to hugging. The worker advised the mother that these are typical behaviors of young children and not signs of sexual abuse. [ 91 ] At trial, the mother submitted several videos to corroborate her oral evidence. One video she referred to as “Father-son interaction” lasted for five and a half minutes. The child is five months old and is lying on his back. The father is playing with the child, kissing him, rubbing his belly, lies down with him, and, places his finger in the child’s mouth. The video shows a loving, doting father who appears completely enamoured with his baby.

The mother’s evidence is that she finds the father’s interaction with their son “unusual” and “unsettling” as she says the father was never this intimate towards her. [ 92 ] The mother’s repeated allegations that the child is being sexually abused by the father based on a “feeling” or “mother’s intuition” is disconcerting. In addition, the timing of the allegations is suspect.

The mother did not raise these concerns until the parties had exhausted attempts to reconcile their relationship and separated with no prospect of reconciliation. [ 93 ] The mother subjected the child to intrusive and repeated examination of his genitals and anus. She repeated her claims over and over despite medical professionals assuring her that there is no evidence of sexual abuse. [ 94 ] The mother’s repeated baseless allegations are very serious and part of a disturbing pattern of her interfering or attempting to interfere in the child’s relationship with his father. (

c) The mother’s trip to Pakistan with the child without notice to the father [ 95 ] The mother took the child to Pakistan in December 2020 for two months without notice to the father. She did so in the face of a court order granting the father frequent parenting time. She was prepared to suspend the father’s parenting time for two months in contravention of a court order.

This behaviour heightens the court’s concerns about the mother’s ability to support the development and maintenance of the child’s relation with his father [ 96 ] The mother has interfered with the child’s relationship with his father prior to the commencement of court proceedings and during the proceedings. At trial she was unable to provide a suitable explanation for doing so.

In the absence of an acknowledgment from the mother that her conduct was inappropriate there is no basis for the court to assume it will not happen again. [ 97 ] The father’s evidence demonstrates his understanding of the importance of the mother’s role in the child’s life. He always shared important information impacting the child with the mother, he consulted the mother before scheduling any appointments for the child, and, he attempted to implement in person parenting time for the mother upon her return from Pakistan as he appreciated the importance of in person parenting time to the child. iv.

Any plans for the child [ 98 ] In his evidence the father provided the court with a detailed plan for the child’s care if his primary residence is maintained with him. The father has a routine in place for the child that includes a regular bedtime, wake up time and meal schedule. The father provides the child with structure by implementing a routine that includes play time as well as learning or educational time. [ 99 ] The father is also fostering friendships between the child and other children in his area in order to ensure the child develops

socialization skills. [ 100 ] The child is enrolled in senior kindergarten at Clinton Street Public School. The father has a doctor, dentist and optometrist in place for the child and schedules and takes him to his appointments regularly. [ 101 ] The father takes pride in the fact that he has exposed the child to different cultures, events and interesting locales in the City of Toronto.

He says this is important for the child’s overall development. [ 102 ] The mother provided no evidence of her plan for the child other than he would return to Elms Junior Middle School which is close to her current home if he were returned to her primary care. v. The ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child (

a) Ability to meet the child’s medical needs Dental Issues [ 103 ] There is no evidence that the child’s medical needs were not met during the marriage. After separation, the evidence shows that the father took an active role in ensuring the child’s medical and physical needs were met. He attempted to engage the mother and tend to the child’s medical needs together, but she did not respond to his communications.

As a result, he often took it upon himself to make necessary medical appointments for the child and ensure he received treatment when required. [ 104 ] There is overwhelming evidence of the mother’s failure to meet the physical needs of the child after separation. The mother’s neglect of the child’s dental health resulted in him undergoing extensive dental surgery including a crown, deep filings and root canal while under anesthesia at the age of four. [ 105 ] The father was concerned about the child’s teeth and oral hygiene and in January 2020 he acted immediately and responsibly.

He took the child to Toronto Public Health to have a check up and learned he had cavities. The father emailed the mother right away advising of the appointment and sharing information the dentist provided about the care and treatment of the child’s teeth. [ 106 ] The mother responded to the father via email asking questions about the dentist and any future appointments.

The father replied immediately and provided the name and address of the dentist, the list of pediatric dentists he was referred to in order to have the cavities addressed, and, information about the Healthy Smile Ontario program which covered the cost of the check up. The father asks the mother in his email dated February 25, 2020 if she will book the follow up appointment or if he should make the arrangements and, he suggests they attend the next appointment together. [ 107 ] The father did not receive a response from the mother to his February 25, 2020 email.

As a result of the mother’s failure to arrange the dental treatment, in August 2020 the father took it upon himself again to make an appointment with a dentist for September 4, 2020 and promptly notified the mother of the appointment. He did not receive a response from the mother and when she did not attend the appointment he sent her an email advising her of the outcome of the appointment and specifically that the child had x-rays and has cavities in his front teeth that must be treated under anesthesia.

The mother’s email in response simply chastised him for taking the child to the dentist and other medical professionals without consulting her and obtaining her availability to attend such appointments in advance. She asks for the names of all medical professionals he has taken the child to without her knowledge.

She does not request any information about the cavities and the need to fill them under anesthesia. [ 108 ] When asked why she did not ask the father about the cavities in her correspondence to the father, the mother said that she is not really “cognizant” and “taking in the information that you are saying to me”. The mother said that this is “psychological torture” and “I’m literally being traumatized right now.” [ 109 ] On September 30, 2020 the father emailed the mother with possible dates for a consultation with a specialist.

The initial consultation with the specialist took place on October 21, 2020 and December 15, 2020 was scheduled for the extensive dental treatment to be completed. The mother did not take the child to the appointment on December 15, 2020 despite an email from the father to the mother on November 18, 2020 advising of the December 15 th , 2020 appointment (presumably because she was in Pakistan). [ 110 ] The mother gave conflicting evidence on whether she contacted the dentist.

She said that she cannot remember if she spoke to the child’s dentist or the specialist who completed the work but later said that she did not have the opportunity to consult a dentist. She also cannot remember if she received the email from the father notifying her of the December 15, 2020 appointment. When asked if she believed the teeth were “milk teeth” that would fall out, she said that this was her belief at the time.

She angrily added that she let the father take the child to one dental check up and as a result she had to endure all this abuse. [ 111 ] The mother’s evidence is that the emails from the father are unclear and that she felt harassed by him. In fact, the father’s email communication very clearly sets out that the child has serious issues with his teeth that must be addressed by a specialist and that someone has to make the necessary appointments and take the child for treatment. There is no ambiguity in the emails in so far as the child has serious dental issues that require attention immediately.

No reasonable person would view the emails as harassment or abusive. [ 112 ] The society worker who gave evidence said that the father raised his concerns with her several times about the mother’s failure to respond to his emails regarding dental treatment for the child. The worker said she spoke to the mother about this issue on a few occasions and as early as February 2020.

She said the mother was “quite dismissive” and felt that this was not a priority as the teeth would fall out. [ 113 ] After the father tried to work with the mother for almost a year to have the dental work completed, it was finally done in March 2021 after the child returned from Pakistan with the mother and was placed in the father’s care pursuant to the order of Justice Spence

dated January 13, 2021. [ 114 ] On April 16, 2021, a society worker visited with the mother at her home and asked her why she did not arrange for the dental work to be done when the child was in her care. The mother told the worker that his teeth were worked on in Pakistan and she did not agree that the child required a root canal as determined by the child’s dentist in Toronto. The mother told the worker that the teeth are “milk teeth” and fall out and that she did not believe that they could cause pain. [ 115 ] The mother’s memory during cross examination failed her when it was convenient.

She often resorted to answering a question in cross examination by saying that she has been threatened and harassed or tortured and traumatized without any evidence whatsoever to substantiate these serious allegations. Her attempt to deflect the questions answers to which would harm her case was obvious. [ 116 ] The mother completely neglected the child’s dental health when he was in her care. As a result, the child required root canal under anesthesia at the age of 4 years. If the treatment was done expeditiously, it would have been done when he was only three years of age.

The mother concluded that the child did not need the treatment based on her uninformed knowledge and belief. She took no steps to contact the treatment providers to educate herself on the issue and make an informed decision. She did not arrange for the required treatment and when the father did, she took the child to Pakistan for two months and missed the appointment. The child’s treatment was unnecessarily delayed from January 2020 until March 2021 after his return from Pakistan because of the mother’s neglect.

General Health [ 117 ] The mother also did not show adequate interest in the child’s general health and welfare. The father took the child to the doctor to discuss issues such as diet and sleep. He shared information he received from the doctor with the mother, but she did not respond to his email. He also took the child for an eye check up and advised the mother in advance of the appointment. She did not respond to his email or attend the appointment. [ 118 ] The father took the child to the doctor on February 9, 2020 after noticing a rash on his buttocks.

The child had a fungal infection and was prescribed cream that was sent to the mother with the child upon his return to her care. The mother did not respond to the father’s email for two weeks and only after he sent a second email noting that it appears that the fungal infection has spread. In her responding email she says that she has been applying the cream, but she does not think it is working. She also says the child has been itching the area which is likely why the infection is not improving.

Strikingly missing from the mother’s email or her evidence was that she had taken the child to or at least spoken to his doctor about the infection worsening and the possibility that the cream prescribed was not working. If the mother thought the cream was not effective why did she not contact the child’s doctor? [ 119 ] The fungal infection persisted and spread between February and May 2020. The father sent the mother several emails to which she did not respond including one in which he invites her to make an appointment for the child during his parenting time and he will take him to the doctor.

The father contacted the child’s doctor in April and May 2020. On May 17, 2020, the father advised the mother via email of the doctor’s instructions and that she must take pictures of the infection and send them to the child’s doctor after one week of treatment. [ 120 ] The mother only communicated with the father about the child’s fungal infection on one occasion between February and May 2020. This is unacceptable. The child was not even four years old at the time. He was itchy and in pain and the infection was not going away.

The mother’s failure to communicate with the father and work together to address the infection highlights for the court the mother’s inability to meet the child’s basic medical needs. (

b) Ability to meet the child’s educational needs [ 121 ] The father gave evidence that the mother rarely took the child out of the home when they were together. He believed the child was not being adequately socialized and would not be prepared for school. The mother saw no need to send the child to daycare as she and her parents were available to care for the child before he started school. [ 122 ] After the father expressed an interest in enrolling the child in daycare, the mother spoke to society workers about the need to do so as she did not believe it was necessary.

Suddenly and contrary to her beliefs, she enrolled the child in a daycare in December 2018. [ 123 ] The uncontested evidence before the court is that the child was only enrolled in the Centre for Early Childhood Education from December 10, 2018 to March 5, 2019 during which time he was absent for 11 days. He was dropped off at different times between 9:35 a.m. and 11:15 a.m. and always by the maternal grandmother.

The daycare had no concerns about the child who often cried for a short time after his grandmother dropped him off but otherwise adapted well. [ 124 ] The child was in the daycare for a very short time and the father’s evidence is that an opportunity was lost to create structure and routine in his life prior to commencing full time school.

In addition, the child lost the opportunity to socialize with other children in his age group. [ 125 ] The mother did not give evidence explaining why the child was enrolled in daycare, missed several days, and then was abruptly withdrawn. [ 126 ] In April 2020, the father raised with the mother the issue of the child being enrolled in junior kindergarten for September 2020. He advised her via email that they could enrol the child on line and asked if she would like to do it or should he.

The mother responded to the father and advised that she would enrol the child and advise the father once she has done so. [ 127 ] By late August 2020 it became apparent that the mother had not provided the school with the documents necessary to complete the child’s enrollment in the school. The father emailed the mother on August 26, 2020 reminding her that she had to provide the school with the child’s birth certificate, health card and proof of his address. He did not receive a response from the mother.

When school began the father asked the mother via email if the child is attending in person or not, so he knows where to pick him up for his parenting time. He received no response.

[ 128 ] The uncontested evidence before the court is that the mother did not enrol the child in school until October 30, 2020. After missing the first month and a half of school, the child missed 16 days of school and attended late on 5 days between October 30, 2020 and December 7, 2020, when he was withdrawn for two months to go to Pakistan.

As a result of the mother’s choices, the child effectively missed three quarters of his year in junior kindergarten. [ 129 ] According to the society’s records, on November 17, 2020 when the worker met with the mother to investigate the conflict that took place at the child’s school in front of the child, the worker told the mother that as part of her investigation she spoke with several school officials and that none had any concerns about the child’s behaviour or emotional issues but that they did feel he was “academically lagging”. [ 130 ] Even after being advised of the school’s concerns about the child academically, the mother saw fit to keep him from school not only for most of November 2020 after receiving this information but for an additional two months between December 2020 and February 2021 to travel to Pakistan. [ 131 ] The mother’s evidence is that it is not mandatory for the child to attend junior kindergarten, so she was not doing anything wrong.

While it is correct that a child is not required to attend junior kindergarten, the mother gave no explanation for why she enrolled the child in school a month and a half after school began or why the child missed 16 days in a span of less than two months.

The school records show that the child was absent due to illness, but the mother provided no proof of the child being so ill that he would miss 16 days of school in two months. [ 132 ] Once the child was placed in the father’s care upon his return from Pakistan and out of quarantine, he started before and after school daycare at Centro Clinton Daycare and junior kindergarten at Clinton Street Junior Public School.

Between late February 2020 and June 2021, the child only missed one day of school and was not late at all. [ 133 ] The mother’s evidence is that she has not spoken to or met anyone from Clinton Street Public Junior School, but she did send an email requesting information. She could not recall when she sent the email. (

c) Ability to provide the child with a safe and healthy home environment [ 134 ] The father’s evidence is that the mother has a very unhealthy relationship with her parents that results in frequent arguments. He says there is a significant amount of yelling and arguing in the maternal family’s home. He also says that there is a lot of conflict between the maternal grandparents. He says that the mother has threatened to kill her father and provided a text message from her from 2016 in which she makes this threat.

He says that when the parties were together in the home they shared with the maternal grandparents, the environment was toxic and extremely unhealthy, especially for their son. [ 135 ] The father has produced text messages from the mother from 2016, that she acknowledges are authentic, in which she complains about the treatment she is receiving from her parents, that they are always arguing, that they do not care about her and that she wishes she could leave their home. [ 136 ] The business records admitted as evidence and for the truth of their content is replete with disclosures by the mother to third party professionals that she endured a very troubled childhood that included verbal and emotional abuse by both parents and physical abuse by her father.

She has made several disclosures about the abuse she experienced at the hands of her parents to the father, the society, her family doctors and to two psychiatrists. The following are some examples of the evidence set out in the business records on this issue: (

a) July 15, 2014 reports to her doctor, Sofia Alahi that she has arguments with her parents and once left home and lived in a shelter for a few weeks. (

b) November 5, 2015 mother reports to Dr. Alahi that she has issues with her parents. (

c) In text messages from the mother to the father in 2016 she writes: i. All my parents do is fight. ii. I’m gunna kill my dad tonight; I’ve had enough. iii. If I could I would leave this house. iv. I’m sad that even though they know I’m pregnant they’re not helping me they’re just stressing me out more. v. You know how mama and papa make me upset. vi. Mama started arguing with me again. vii. No one gives a shit if I die or my baby dies. That’s why I can’t ask anyone for help. Because no one cares. Not even my parents. (

d) August 25, 2017 – mother tells her doctor that living with her parents is a stressor for her. (

e) September 17, 2017 – mother tells her doctor that she has been experiencing low mood as a consequence of her mother and father. (

f) September 27, 2017 – during a psychiatric assessment by psychiatrist, Dr. Nadia Stroganova at William Osler Health Centre, the mother reports the following: i. Her father has been physically and verbally abusive to her and her siblings from a young age.

ii. Her father is a very angry person. iii. She began feeling sad at age 12 and had severe panic attacks and began inflicting superficial cuts to herself. She said that this was mostly related to “the physical abuse from her father, physical and verbal abuse from her parents, especially her father.” iv. She has a lot of stress related to her conflictual relationship with her parents. v. That her current living environment with her parents is not healthy. (

g) On June 13, 2017, the mother told a society worker that she grew up with a lot of conflict and living with her parents was not helpful. She advised that her and the father might move to a shelter. (

h) On July 6, 2017, a society worker met with the mother and father in their home. The worker reported that the mother described much conflict with her parents. She reported they argue a lot and there has been pushing and the police have been called. Both parents disclosed concern with the baby being exposed to the adult conflict. Mother reported she is very angry about her relationship with her parents and that her father triggers her. (

i) On August 2, 2017, the mother reported to a society worker that she is upset and angry about growing up with constant arguing and that her father exercises control over her. (

j) On August 8, 2017, the parents met with a society worker and they discussed the “stressors they face” which included “living in a home where yelling and verbal conflict was seen as a norm (with mat. Grand-parents)”. (

k) On August 2, 2017, a society worker met with the parents and the maternal grandparents. The grandfather acknowledged that there was a lot of disagreement in the house. He acknowledged that there are arguments in the home including screaming and name calling and door slamming which he does not think is good for the baby. The mother told the worker that her parents are always arguing. The parties discussed a safety plan given their concerns for the baby which included the grandfather and the mother making an effort not to engage with one another for the “sake of [the] baby”. (

l) On November 7, 2017, the parents met with a society worker and the mother told her that their counselling is going well but that they will need support for a long period of time in order to address her own childhood abuse. (

m) March 27, 2018 – psychiatrist Dr. Salvatore Mallia, reports that in his assessment of the mother she elaborated on her childhood and “the verbal and physical abuse she went through.” [ 137 ] Despite these repeated disclosures to third party professionals and the involvement of the society in the mother’s life when she was a child due to what she described as “corporal punishment” by her father, the mother insisted at trial that her parents have not been and are not abusive and that they have a happy and healthy relationship.

The mother’s evidence is that she falsely made these reports to third parties as a result of manipulation and control exerted over her by the father. The mother’s evidence is that the existence of any and all reports to third parties by her of a conflictual relationship with her parents or abuse by her father is a fabrication she was forced to make by the father. [ 138 ] The mother and both her parents gave evidence that there is no yelling or arguing in their home and that it is a safe and happy place.

Both the grandmother and grandfather said they do not remember speaking to the society about the conflict in the home and the risk it posed to the child. They have no recollection of discussions with the society of a safety plan. [ 139 ] The court does not believe the mother or her witnesses on this issue. No where in the court documents or to any third party professional does the mother allege that she made false reports of the maternal grandfather being physically and verbally abusive towards her. This explanation was only provided at trial.

There is no explanation provided by the mother as to why the father would want her to make false reports about her father’s treatment of her. No rational explanation was provided to explain why the parties and the maternal grandparents required a safety plan in their home to protect the child from adult conflict if there was no such conflict present in the home. [ 140 ] The mother’s descriptions of the arguing and yelling in her home in the presence of the child when he was a baby is extremely concerning. The mother knows that this is potentially harmful to her son.

On February 7, 2020, the mother was discussing her hope for her and the father to move out of the maternal grandparents’ home with their child with a society worker. She told the worker she “feels concerned about her younger brothers”.

The worker noted that there has been no abuse of the brothers since the file was opened but that “parents yelling at the boys was common”. [ 141 ] The mother expressed concern about the well being of her younger brothers in the care of her parents yet she asks this court to make an order placing the child in her care while she lives in the very home she is concerned to leave her brothers in. Her decision to remain living with her parents who create an inordinate amount of stress in her life and subject her son to constant arguing and yelling discloses very poor judgment on her part.

The court finds the mother’s desire to have her son returned to her care to live in what she has described as an extremely unhealthy environment to be misguided and contrary to her son’s best interests. (

d) Failure to acknowledge and address mental health needs [ 142 ] The mother’s medical records disclose a long history of depression and other mental health diagnoses dating back to when the mother was 12 years old. The medical records contain several statements by the mother that her sadness and poor sense of self worth stems from the abuse she suffered as a child. She describes her father as angry and physically abusive. She feels controlled by her parents, yet she cannot extricate herself from their home and control.

The mother reported to medical professionals that when she was younger, she had panic attacks and engaged in self cutting. She even reported thoughts of jumping from the balcony of their apartment building. [ 143 ] The mother has been on and off medication to address her mental health issues over the years. In November of 2018, the mother

attempted suicide by ingesting two bottles of prescription pills. She swallowed the pills and then called the father who alerted the maternal grandparents to check on the mother and call 911. The mother reported to her family doctor on November 23, 2018, that she took the pills and then called the father to “get him back”. [ 144 ] The mother was ordered to disclose her more current medical records to the father prior to trial. She did not comply with this order.

As a result, there is no third party professional evidence before the court of the current state of the mother’s mental health, if she is receiving treatment and whether she is compliant with the treatment, although she did give evidence that she is fine and not receiving treatment or counselling.

The court draws an adverse inference from the mother’s failure to provide the court ordered medical disclosure. [ 145 ] The society worker who gave evidence said that the mother was averse to services as she reported that while she built a rapport and trust with her former counsellor over time, she found the counsellor to be judgmental and things she said to be unhelpful so the mother was no longer fond of counselling. [ 146 ] The mother’s evidence at trial is that she took medication for depression in 2014. She said she was “cleared” in November 2019 and prior to that she had two diagnoses.

She could not recall the diagnoses. Despite her medical records reporting her suffering from depression back to age 12, engaging in self cutting and reporting to several doctors that her sadness stems from the verbal and physical abuse she experienced by her parents she denied that any of this was true. [ 147 ] The mother’s evidence is that her memory of the suicide attempt in 2018 is “fuzzy”. She said she took a lot of pills but does not know why. She has worked on herself since then and has a safety plan that involves turning to her parents when she feels “low or something like that”.

The mother acknowledged that she has not had any counselling since the suicide attempt as she has returned to University, [4] “which is my priority” and she has not had the time or felt the need for counselling. [ 148 ] The mother’s evidence is that her mental health issues have no impact on her ability to care for her son. The court disagrees. [ 149 ] The mother minimizes her mental health issues. She says that she is well and does not require treatment or counselling. Her parents denied any knowledge of their daughter having a history of mental health issues.

They both gave evidence that their daughter is perfectly healthy and happy. The maternal grandfather said that the idea of the mother suffering from mental health issues is a creation of the father and his lawyer. [ 150 ] There is no doubt that the mother has suffered from mental health challenges in the past. Her denial of the truth of her own statements to several medical professionals over the years and her failure to acknowledge the significance of her mental health issues and especially her suicide attempt in November of 2018, places the child at risk of harm.

Her lack of ongoing treatment or at least a relationship with a mental health professional that she can turn to when needed is of significant concern to the court. This is exacerbated by her failure to provide up to date medical records as ordered by the case management judge. [ 151 ] It is also very concerning to the court that the mother’s major source of emotional support are the very people that exasperate the mother and test or worsen her mental health and who apparently have no knowledge of their daughter having any mental health issues despite her attempt at suicide three years ago.

The maternal grandparents are therefore not a protective factor and provide no comfort to the court should the child be placed in the mother’s primary care. [ 152 ] The child’s primary caregiver must be able to take care of themself first and foremost before being entrusted with the primary care of the child. In other words, if a parent is unable to meet their own needs then they are not well positioned to persuade a court that they can meet the needs of a young, completely dependent child and should be entrusted with their primary care.

The mother’s failure to acknowledge her mental health issues or take steps to maintain good mental health in this case impairs her ability to care for a soon to be five year old child full time. (

e) Inability to meet the child’s emotional needs and inappropriate behaviour in the presence of and directed at the child during video parenting time [ 153 ] When the mother returned from Pakistan in February of 2021 and the child was placed in the primary care of the father, video calls were arranged immediately between the mother and the child three times per week for 15 minutes.

Counsel for the father confirmed in writing with mother’s counsel that the video calls will be recorded to protect both parties from false allegations. [ 154 ] In March 2021 the father’s lawyer enquired with the society if they would be willing to supervise in person visits between the mother and the child. When the society advised they were unable to do so at that time due to Covid-19 protocols, the father proposed the use of a professional supervision service.

The mother did not respond to the proposal. [ 155 ] On July 14, 2021, the father’s lawyer corresponded with counsel for the mother and proposed three potential supervision services. The father offered to pay 50% of the cost of the first 4 visits.

The mother did not respond to the proposal. [ 156 ] On July 20, 2021, counsel for the father corresponded with the society again to see If their policies had changed and they could supervise the mother’s visits with the child. [ 157 ] On August 27, 2021, the society emailed counsel for both parents to advise that they are agreeable to supervising six one hour visits at their offices. On that same date, counsel for the father responded to the email and copied the mother as she was no longer represented by counsel.

The father’s lawyer advised the society that the father was agreeable to all the terms of access as set out by the society in their correspondence to the parties. [ 158 ] The mother did not respond to the society’s offer. [ 159 ] The mother’s evidence is that she did not believe her parenting time should be supervised and therefore did not respond to the society’s or th

[…]