Wu v. Blair, 2016 ONCJ 341

ONTARIO COURT OF JUSTICE DATE: June 8, 2016 COURT FILE No.: D61328/13 CITATION: Wu v. Blair , 2016 ONCJ 341 BETWEEN: SIMON WU Applicant — AND — ANDRENIA BLAIR Respondent Before Justice Roselyn Zisman Heard on March 2 and May 2, 2016 Reasons for Judgment released on June 8, 2016 Solmaz Separy ................................................................................... counsel for the applicant Leanne Shafir ................................................................................. counsel for the respondent Zisman, J.: 1 .

Introduction [ 1 ] A focused trial was held with respect to custody and access arrangements for the parties’ child, Joshua Wu born May 19, 2009 (“the child” or “Joshua”). [ 2 ] The father seeks sole custody of the child with primary residence. He proposes that the current access arrangements for access to the mother continue that is, alternate weekends from Friday to Sunday and for 2 hours on alternate Fridays. He is agreeable to the mother having 3 weekends of access during the summer months and for a sharing of holidays.

He also seeks an order that he be permitted to travel with the child and obtain the child’s government issued documents without the mother’s consent. [ 3 ] The mother seeks sole custody of the child with primary residence. She proposes that the father exercise access 3 weekends a month and if possible, a mid-week visit. She proposes that the parties equally share the summer and March school break, the child’s birthday and all other special holidays. [ 4 ] Both parties agree that they do not communicate and that joint decision making is not possible.

As an alternative, the mother proposes that there be a parallel parenting decision making order.

2. Background [ 5 ] The Applicant (“father”) is the child’s father and is currently 33 years old. He resides with his parents in their home. The paternal family is of Chinese heritage. [ 6 ] The Respondent (“mother”) is the child’s mother and is currently 29 years old. She resides with her mother and two adult brothers. One of her brothers has 2 children who are 5 and 7 years old and visit on alternate weekends. The maternal family is of Jamaican culture. [ 7 ] The parties met on the internet in 2007 or 2008 and began dating shortly thereafter and then became pregnant.

The parties never resided together but did have an on and off relationship until about 2012. Both parties agree that their relationship deteriorated with many verbal arguments and several separations. [ 8 ] There are extreme discrepancies between the parties as to where the child resided when he was released from the hospital. The father and the paternal grandfather alleged that the child stayed with them for a few weeks after his release from the hospital and then lived with their family for either half of the time or for the majority of the time.

In cross-examination the paternal grandfather then stated that this was all a long time ago and he could recall the arrangements. An affidavit from a neighbour who babysat the child deposed that she babysat from 2009 to 2013 for the majority of the time from Mondays to Thursdays but this was contradicted by the father who deposed that for some time the child was only in his care half of the time. [ 9 ] The mother and the maternal grandmother alleged that the child stayed with them upon his release from the hospital and until he was 6 months old.

When the mother returned to school and until he was 2 years old, the child was in the care of the father for only 3 days a week. [ 10 ] I find that the child was in the care of the mother upon his release from the hospital and for several months thereafter as this is confirmed by the children's aid society notes that refer to a worker visiting for some time the mother and child in her home after the child was released from the hospital. Thereafter, I find that the parents both cared for the child on a

schedule that varied in accordance with the mother’s school

schedule and the maternal grandmother’s work schedule. [ 11 ] As of April 2013, the child was registered by the mother in daycare and until July 2013, he was in her care during the week and with the father on the weekends. The mother had registered the child to commence kindergarten as of September 2013 but due to the father obtaining a temporary without prejudice custody order the child was then registered in a school in his father’s neighbourhood. [ 12 ] The parties travelled together to New York for the Canada long weekend.

The mother returned by bus to Toronto on Monday July 1 st , 2013, to be back for work for July 2 nd and the arrangement was that the father and child would return on Thursday July 4 th and the mother expected the child to be returned to her care on July 8 th in accordance with their informal parenting schedule. Instead the father commenced this court proceeding and refused to return the child to the mother as he alleged that the mother had slapped the child and refused to give the child prescribed medications.

The father reported these concerns to the children's aid society and alleged that the children's aid society opened a file. [ 13 ] The child has resided in the primary care of the father since July 2013. 3. Court proceedings [ 14 ] The father commenced his application on July 8 th 2013 on his own but shortly thereafter obtained counsel. The mother retained counsel and filed an urgent motion to be heard on July 25 th . A case conference was held to set the process for the motion to be heard on August 9 th .

In the interim, the father would not agree to any access and only agreed to the mother speaking to the child on the telephone. He then reported to the police that the mother was harassing him by calling whereas the mother alleged she was just trying to speak to the child. [ 15 ] The contested temporary motion was heard on August 9 th .

Justice Curtis who heard the motion endorsed that it was not possible for the court to make a temporary order based on the material filed. [ 16 ] A temporary without prejudice order was made granting the father custody and the mother access on alternate weekends from Friday to Sunday as the parties agree. Both parents were ordered not to use any physical discipline on the child and not to tape or record access exchanges. The parties were ordered not to have any contact with each other in accordance with section 28 (1)(c)(

i) of the Children's Law Reform Act. The endorsement states that, “the court is very concerned about the serious allegations made” and as a result an order was made for the court staff to send the endorsement, a transcript of oral reasons and contents of the continuing record to date to the children's aid society for further investigation.

The matter was adjourned to October 10 th to the case management judge for better materials to be filed and for a response from the children's aid society. [ 17 ] The proceeding was then adjourned several times as the children's aid society did not immediately receive the court’s endorsement, for the children's aid society to compete its investigation, to permit the mother to retain new counsel and for reasons that are not clear from the endorsement. [ 18 ] On August 24, 2014, a temporary without prejudice order was made with respect to the mother’s obligation to pay child support of $120 monthly based on her income of $16,793 and retroactive to August 2013.

The status quo access order was continued with the addition of a mid-week access as agreed. The endorsements also indicates that the children's aid society was to provide a mother and child observation in the mother’s home. [ 19 ] On July 9, 2014 the issue of child support was re-examined. The endorsement indicates that upon reviewing all of the affidavit evidence, the court concluded that the child spent considerable time with each parent and his extended family. The court

ordered that the Office of the Children's Lawyer be appointed due to concerns about the number of children's aid society investigations due to the father’s allegations, two of which were unsubstantiated, due to the high conflict between the parents with a young child and reported concerns about mental health issues regarding both parents. [ 20 ] On September 17, 2014 the parties were again before the court. Since the last court attendance there had been 2 further referrals to the children's aid society.

The father alleged physical discipline by the mother that was verified and he also alleged that the mother caused the child’s throat to bleed by feeding him hot noodles that was not verified. The children's aid society had closed their file again. The Office of the Children's Lawyer had declined to be involved as the children's aid society was investigating but a further referral was made as the society had closed their file. [ 21 ] There were several telephone conference calls for counsel to update the court regarding the status of the Office of the Children's Lawyer referral.

Further, in February 2015 the father made another allegation to the children's aid society. Both parents and their counsel were ordered to meet with the family service worker from the children's aid society to determine the next steps and timeline for the children's aid society, what changes there should be to the current access regime and what resources were available for the parents.

On consent there was an order for disclosure of the children's aid society file. [ 22 ] The proceedings were again adjourned several times waiting for the outcome of the children's aid society investigation and for the Office of the Children's Lawyer investigation to be completed. [ 23 ] On September 15, 2015 a settlement conference was held.

Yulanda Julien, the clinical investigator from the Office of the Children's Lawyer filed an interim report, made temporary recommendations and recommended re-involvement after the completion of specified courses and a mental health assessment so that the investigator could then provide an updated report to the court. Counsel declined to agree to the update and wished to proceed to trial. A 1 day focused trial was set. The parties agreed that each party would rely on their affidavit, each party would be permitted 30 minutes for examinations and cross- examinations of the witnesses.

It was agreed that the witnesses were to be the clinical investigator, the current children's aid society worker, the paternal grandfather and the maternal grandmother. [ 24 ] The focused trial commenced before me on March 2, 2016. Counsel agreed that the children's aid society family service worker would not be called.

Although some of the disclosure obtained from the children's aid society was attached to the affidavits filed by each party, it would have been more helpful if counsel filed the entire children's aid society disclosure brief they received as a business record as there are references in the court’s endorsement and in the Office of the Children’s report to incidents or observations that are not included in either party’s affidavit. [ 25 ] It was agreed that the clinical investigator would be the first witness.

After that evidence, when the court inquired why the father was not testifying, both counsel advised that they were under the impression that neither party would be permitted to testify or be cross-examined and that their entire evidence would consist of their respective affidavits. As counsel had not prepared their clients for the prospect of testifying or being cross-examined a further half day was set for the continuation of the trial.

Both parties were permitted to file brief updating affidavits with respect to anything new that had occurred between the adjournment dates. [ 26 ] The trial resumed on May 2, 2016 when each party testified confirming the information in their affidavits and were subject to cross-examination. My decision was reserved. I advised both counsel that I was considering a further referral to the Office of the Children's Lawyer to update her report. 4.

Involvement of Children's Aid Society of Toronto [ 27 ] The involvement of the children's aid society has been an integral part of this proceeding and there have been numerous investigations that resulted in the child being subjected to various interviews and contributed to various delays in the court proceedings. [ 28 ] Although there appear to be other investigations as set out in the father’s affidavit of the father based on the records provided in this trial, the involvement of the society can be summarized as follows:

a) May 21, 2009: A social worker at the birthing centre contacted the society due to concerns about the mother’s past history of anxiety and depression and recent attendance at the crisis clinic where she indicated that she did not want to live but had no plans to hurt herself. The society did not verify any risk of harm and noted that the mother was managing her depression and had a good support system in place. The file was closed on July 28, 2009;

b) June 1, 2013: The father contacted the society to allege that the mother refused to give the child prescribed medications. He also alleged that he had video recordings of the mother slapping the child on the face and that she threatened to kill and cause harm to the paternal grandfather. On July 9, 2013 the father called the society to advice that he had retained counsel and been advised not to discuss the case with the society. The file was closed as the father would not meet with the worker and the child was in the full time care of the father;

c) August 9, 2013: A referral was made by the court due to the serious allegations by the father that the mother repeatedly struck the child in anger and threatened to kill him and the paternal grandfather. A society worker met with the mother who denied the allegations. The worker also met with the father who showed her a video recorded in August 2012 during an exchange where the parties are arguing in front of the child and the mother says, “yes, I slapped him”.

The father also alleged that during a recent trip to New York, the mother slapped the child while they were settling into bed, he told her not to do that and fell asleep as he was tired. The child was also interviewed and randomly stated, “I have to go to mommy’s; mommy always slaps me and it is not very nice” and he then demonstrated slapping his own cheek. During the same conversation, the child stated that all of the adults hit him and that both his parents slapped him on their trip to New York. The child was noted not to express any fears of any of his caregivers.

Based on the child’s disclosure and the video clip, the society verified likely risk of harm due to physical discipline by the mother. Both parents denied using physical discipline and the mother, in her affidavit deposed, that her comment about slapping the child was stated sarcastically. Both parents were advised

about alternatives to physical discipline and the file was closed;

d) July 11, 2014: The father reported that the child told him that he had punched the mother on the leg and she had punched him back. The child was interviewed and stated that during an access visit he was angry with his mother as she asked him to stop playing with the computer and he punched her on the leg and then she punched him back on his right arm once. He then added that his mother punched him 4 times on his right knee. The society verified physical discipline. The mother denied hitting her son. The society developed a safety plan with the mother so that she would not hit the child again if she became frustrated with him. The file was closed;

e) February 1, 2015: The father noted a significant bruise on the child’s lip after an access visit. When asked how it happened by his paternal grandfather who first noticed the bruise, he did not tell him how it happened. The father in his affidavit of February 25, 2016 alleges that the society verified physical discipline but there is no society case note or reference to this allegation in any reports filed [1] ;

f) May 3, 2015: The father reported that the child sustained a bruise near his penis that was caused by his cousin and he was concerned that there was inadequate supervision by the mother. The child was seen by his doctor and the injury was determined to be accidental and it was concluded that the child was not left unsupervised. The allegation was not verified; and

g) Referral by Office of the Children's Lawyer: During the course of the investigation, Ms Julien, the clinical investigator made a referral to the society due to detailed disclosures made by the child about adult conflict in his father’s home. Ms Julien also had concerns about the mental health status of both parents.

The society interviewed the child who made the same disclosure he had made to Ms Julien namely, his father swearing, his father banging a table and throwing food, his father punched the paternal grandfather in the face and arguing with his grandparents about money and grabbing his paternal grandmother’s shirt. The society verified adult conflict between the father and his parents despite the paternal family attributing these concerns to cultural practices of speaking loudly. The society also verified risk of emotional harm as a result of the conflict related to custody and access issues between the parents.

The society worker did not observe any signs indicative of mental health disorders by either parent and the worker noted that she was not qualified to assess mental health illnesses. [ 29 ] In

summary notes dated May 5 and 12, 2015 the current society worker concluded that concerns about either parent’s ability to care for the child have not been verified. [ 30 ] The society noted that it believed that the mother was: “possibly inappropriately disciplining Joshua given that he can be aggressive and she may at times get frustrated with him. The society believed this was not a regular form of discipline and that it was more than likely used sporadically.

However, it was also noted that Ms Blair demonstrated the ability to calm and engage Joshua well.” [ 31 ] The society noted that the mother had not been offered services previously and that the mother was agreeable to attending a program to learn a how to effectively discipline the child. [ 32 ] The society worker concluded that the child was well loved by all of his caregivers. He presents as a confident and engaging child who was quite social and responds well to the structure at school and performs well.

However, in contrast to how he behaves at school, he can be aggressive at home and swears and hits his caregivers. The worker observed the child punching his paternal grandmother and saying that he “hated black women”. The incident occurred in a public place and the worker needed to intervene. The mother assisted in calming the child down and showed patience in dealing with his behaviour. [ 33 ] In her

summary letter, the society worker expressed the view that the misbehaving that she observed may be indicative of the child’s confusion with the situation between his caregivers and that it would be beneficial if they participated in a group for families undergoing separation to help them learn to co-parent.

The worker was concerned that Joshua’s behaviour may continue to escalate if the parents are unable to accept the fact that he is entitled to a relationship with each parent and does not have to choose one parent over the other. [ 34 ] The society further documented that the August 2012 video that the father showed the worker showed both parents arguing about discipline of Joshua while he was present and he was heard whining on the video. Both parents were oblivious to the child’s reaction.

The society recommended it remain involved in view of the verified concerns and to ensure the parents access services in the community. Both parents agreed to accept ongoing services from the society. 5. Report of the Office of the Children's Lawyer [ 35 ] Ms Julien, the clinical investigator testified during the trial and her reports were filed. The interim report dated July 6, 2015 outlines her observations and interviews with the parties and various collaterals. The father’s dispute and the response to that dispute were also filed. I find that there is no merit to the issues raised in the dispute.

The report was well-balanced and insightful. Ms Julien’s observations and conclusions were not diminished by cross-examination. [ 36 ] Ms Julien confirmed that she had no concerns about the mother’s care of the child and that she interacted appropriately with him. She observed a natural and comfortable relationship. [ 37 ] However, during her observation of the child with the father, she noted that during most of the observation the father did not interact with the child or attempt to do so except to encourage him to recall places they had gone together.

Ms Julien concluded that the child had a strong relationship with his paternal grandparents and in particular his paternal grandfather. When the child needed assistance from an adult he sought out his grandfather. The report notes that the children's aid society worker during a 2.5 hour visit, also observed that the father did not interact with Joshua and made the same observations of his relationship with the paternal grandfather. The collaterals also confirm that their interactions regarding the child’s needs are with the paternal grandparents.

Ms Julien reported that she found it concerning that the father needed to be re-directed 3 separate times not to engage in negative conversation about the mother while Joshua was immediately present or beside him.

[ 38 ] Ms Julien testified that she had concerns about the children's aid society investigations as the society noted but did not investigate the possibly of Joshua being coached by his father. During an interview in February 2015, Joshua described his mother as being “very good” and that his father instructs him to say that his mother punched him.

Joshua then indicated that “he lies every day; he was lying about my mom punching me”. [ 39 ] During the disclosure of family conflict that Joshua made to Ms Julien he also told her that he was feeling worried for his grandfather and at times he has intervened during incidents of conflict in efforts to protect his grandfather from harm.

Ms Julien expressed concerns about the child’s safety as his love for his grandfather has already caused him to intervene during times of family violence and therefore he places himself at risk of physical harm. [ 40 ] Ms Julien was concerned that although the paternal grandparents love and care for Joshua they are so closely aligned with Joshua’s father that at times it appears that their need to protect their son outweighs their need to protect their grandson. [ 41 ] Ms Julien also had concerns about the paternal family’s ability to support the child’s relationship with his mother.

Joshua was aware that his parents did not like each other. He said that his paternal grandparents told him to only like his father and not his mother. He had no photos of his mother at his father’s home; whereas the mother is more supportive of the father’s family and Joshua has photos of his father’s family and is able to talk about them at his mother’s home. [ 42 ] Ms Julien made the following interim recommendations: 1. No custody recommendations at this time; 2. Primary residence to remain with the father; 3.

Access to the mother the first 3 week-ends of the month from Friday to Sunday to be extended to Monday on a holiday week-end; telephone access 3 times a week; 4. The mother to complete a parenting course as recommended by the children's aid society through the Jamaican Canadian Association; 5. The father to have a complete psychiatric evaluation and assessment by a mental health professional at CAMH which can be done at no cost; father to provide a full copy of her report and Dr. Lau’s medical notes; 6.

The father to complete a co-parenting course as recommended through children's aid society for a parenting program and Reducing Conflict after Separation Program given through Family Services of Toronto. [ 43 ] Ms Julien only made interim recommendations as she wanted the mother to complete a parenting program. She was concerned about the conflict in the father’s home and wished to see if the paternal family would address this issue.

She wished to obtain the results before she made any final recommendations. [ 44 ] Ms Julien reported that she had ongoing concerns about the father’s emotional regulation and possible mental health issues. The father’s doctor reported that the father had self-reported that he had been diagnosed with a bipolar disorder by Dr. Ng, a psychiatrist he had seen in 2004 to 2007. When the father was asked about Dr. Ng he said he thought he had died and the paternal grandfather agreed. But Ms Julien spoke to Dr.

Ng who advised her that at the time of the father’s discharge he appeared stable and his previously noted impulsive behaviours were no longer a concern. [ 45 ] Near the end of her investigation, Ms Julien was informed about an incident at the father’s place of employment where the police were called. According to the information obtained, the father was in an altercation with a colleague and was “crying and rolling on the floor”. The father was also reported to have told a colleague that he had suicidal thoughts and threats of him being dead if he lost his employment or his child.

Out of concern about his mental health his employer asked the father to stay home for a week with pay. The father denies the incident as reported and maintains that his employer was trying to discredit him and have him terminated. The father refused to give his consent for Ms Julien to speak to the police or his lawyer and without these consents and an updated report from the children's aid society she was unable to further investigate this incident. [ 46 ] It was the intention of Ms Julien to resume her investigation about 3 months after her interim report and then make final recommendations.

However, in her final report dated October 16, 2015 she confirmed that she was advised by both counsel that the parties did not wish to proceed with the resumption of the investigation. Ms Julien reported that the father telephoned her and wanted to “thank” her for her work and that he “appreciated…the hard work” which she queried as she understood he was not pleased with the report to which he responded “yeah, yeah…that’s right”.

He then asked her the location of the office and when asked why as there would be no more interviews he stated that he wished to thank her in person and told her that he was now working downtown. He then said that “ever since OCL called the CAS on me”, the society views him as being a “bad person” and he repeatedly asked her to “fix it”. [ 47 ] With respect to the child’s wishes, Ms Julien stated that Joshua was clear that he wanted to live with his paternal grandfather and that he is “the best”.

Ms Julien confirmed that in the interim there would be no reason to change the child’s current living arrangements. [ 48 ] With respect to why there was a different recommendation regarding a psychiatric assessment for the father and not the mother, Ms Julien explained that based on the mother’s history she felt that the mother would obtain assistance if she felt she needed it.

The father did not have the same history, was not forthcoming about his mental health history and there were current concerns based on the recent incident at his workplace and his outbursts and physical aggression against the paternal grandparents. Ms Julien also testified that at the disclosure meeting she held with the parties and counsel, both parents agreed to obtain a psychiatric assessment. 6. Father’s plan and updating information

[ 49 ] The father’s plan has many strengths as the child would remain in the same home, the same neighbourhood and the same school. All of his present needs are being met. He would continue to be cared for by his current doctor. The paternal grandparents offer a great deal of assistance to the father and according to most of the collateral reports they are primarily involved in his care.

The child is very attached to his paternal grandparents and living in their home offers him the opportunity to spend a great deal of time with them. [ 50 ] The weaknesses of his plan are mainly related to the paternal family’s lack of insight into the importance of the child having a meaningful relationship with his mother. When the paternal grandfather was asked by the court to describe anything positive about the mother’s relationship with the child, all he could reply was that she reads to him. The paternal grandmother did not intervene when the child said he hated “black women”.

The maternal grandmother testified that Joshua told her that he did not want to be black and insisted he was not black. When she told him that he was of mixed race, he replied that he was Chinese.

The father and paternal grandfather testified that they did not know where this was coming from but there was no evidence that either of them tried to talk to the child about his mixed heritage or appreciated the long term effect on the child of denying a part of his heritage. [ 51 ] When the court inquired if there had been any discussion about the father moving out of the paternal grandparents’ home the paternal grandfather replied that this may happen but it had not been discussed.

Any such move would significantly impact on the father’s plan. [ 52 ] The father testified that although he does not agree that there is conflict between him and his parents, they have nevertheless enrolled in a one session 2 hour program about minimizing the exposure to children to conflicts. [ 53 ] The father testified that the children's aid society has now closed its file with respect to him. [ 54 ] The father also testified that although he attempted to follow through with a psychiatric assessment at CAMH as was recommended, he produced an email that stated that they do not conduct parent capacity assessments.

He testified that when he clarified the purpose of the assessment they still would not do it. However, he also testified that he has no mental health issues so he did not understand the recommendation, that the children's aid society told him to go for the assessment but their file is now closed so he saw no need. 7. Mother’s plan and updating information [ 55 ] The strengths of the mother’s plan are her insight and her ability to support the child’s relationship with his paternal family and to support both of his cultures.

The maternal grandmother testified that she understood that the child needs 2 parents and 2 families. The mother also has the support of the maternal grandmother and the child has the opportunity of a relationship with his maternal uncles and cousins. [ 56 ] The child has a close and loving relationship with the mother and she has been observed to be able to meet all of his needs.

The mother was the child’s primary caregiver for the first several months of his life and thereafter she was generally the primary parent or at times the child resided in the shared care of both parents. [ 57 ] The weaknesses of the mother’s plan is that a change of primary residence would be a major change for the child. He would move to a new school, new neighbourhood and have to make new friends.

Although he is very young, it would still be a major change in his life. [ 58 ] The mother’s plan was vague with respect to practical issues about how she would arrange for the child to be taken and picked up at school in view of the current work hours of herself and the maternal grandmother.

The mother testified that she could change her job so that the hours would make her more available for the child. [ 59 ] The mother has now completed the recommended parenting course and deposes that she has implemented the parenting skills that she has learnt. [ 60 ] The mother deposes that she has been taking anti-depressants since July 2015, as well as medications for anxiety and this is monitored and followed by a psychiatrist but she did not file a report from the psychiatrist. 7.

Statutory Framework and applicable legal principles [ 61 ] In determining the issues of custody and access the sole consideration is what is in the best interests of a child. Each case must be decided with a careful consideration of the unique circumstances and needs of the individual child. [ 62 ] In determining what custodial and access orders are in a child's best interest, a court is guided by

section 24 of the Children's Law Reform Act and the factors set out in section 24(2) which is a non-exhaustive framework of relevant considerations in determining the analysis of the best interests of the child.

Section 24 provides as follows: Merits of application for custody or access 24.

(1) The merits of an application under this

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

(2) The court shall consider all the child's needs and circumstances, including, (

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

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

b) the child's views and preferences, if they can reasonably be ascertained; (

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

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

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

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

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

h) the relationship by blood or through an adoption order between the child and each person who is a party to the application. Past conduct

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

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

b) if the court is satisfied that the conduct is otherwise relevant to the person's ability to act as a parent. Violence and abuse

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

a) his or her spouse; (

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

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

d) any child. 8. Analysis [ 63 ] I have considered and applied these considerations. [ 64 ] Both parents and all of his grandparents love this child and the feelings are certainly mutual. [ 65 ] Although the child is too young for the court to put weight on his wishes it is interesting that when asked where he wanted to love, his response was with his paternal grandfather. [ 66 ] The child has a significant relationship with both of his parents. I find that although the mother was the primary caregiver

during the first 6 months of his life and that the father was only sporadically involved. Thereafter both parents were involved at various points of time either as the primary parents or in an informal equal shared parenting plan. [ 67 ] However, based on what I find were exaggerated allegations by the father and his unwarranted withholding of the child in July 2013, he created a status quo as the primary parent.

Despite the fact that the order of August 9, 2013 was a temporary without prejudice order, the reality for the child is that he has lived with the father and his paternal grandparents for almost 3 years. [ 68 ] Although this is a stable environment there are concerns about the conflict between the father and his parents.

Despite the recommendations for the father and his parents to be involved in program, they have only registered for a 2 hours one time session which was not the type of program contemplated by Ms Julien nor in the circumstances do I find that this seminar is sufficient. [ 69 ] Both parents are able to meet the child’s physical and medical needs.

The father’s allegations that the mother feeds the child spoilt or unhealthy foods or that she refuses to give him prescribed medications are without any foundation. [ 70 ] I find that the mother is the parent best able to meet the child’s emotional needs and ensure that he has an appreciation of his heritage and would be the parent that ensures that he has a relationship with his paternal family. I have serious concerns that the paternal family is not able or willing to do this. [ 71 ] The father has ensured that the child’s academic needs are met.

He and his parents are in touch with the school and follow up with his teachers. I found it strange that the mother has not met with the child’s teachers or attended any parent teacher meetings or any other events at the school. Until the trial the mother had not seen the child’s report card. The mother testified that she was unaware that she could get information from the school and was concerned about the father’s reaction if she tried to do this. [ 72 ] The father testified that the biggest problem was the mother’s use of physical discipline.

Although there were past verifications of physical discipline, there are some questions as to the validity of these findings. I did not find that father’s evidence credible with respect to his many allegations against the mother. For example, he alleged that the mother after the birth threatened to kill the child, put him in the garbage and flush him down the toilet and as a result the child stayed with him after his release from the hospital. None of these allegations were proven to be true. He also told the children's aid society worker that he had a video showing the mother slapping the child.

But he only produced a video where the mother says she slapped the child and she explained that this was in the context of an argument and she said it sarcastically. [ 73 ] The father is so focused on making allegations about the mother using physical discipline and the fact that this has been verified by the society on 3 separate occasions that he is either unable or unwilling to understanding the long term effect of the risk of emotional harm on the child due to conflict between the parents or the long term risk of harm of not supporting the child’s relationship with his mother. [ 74 ] I have concerns about the mental health of both of the parents.

The father’s explanations for CAMH not conducting the assessment were not credible. In any event, as he was now aware the Dr. Ng, his former psychiatrist, was alive he could have proceeded to obtain an assessment from him. I find that there is a need for an assessment based on the incident at the father’s employment, the child’s disclosures about his father’s aggression and conflict with the paternal grandparents and his rather strange discussion with Ms Julien after counsel did not agree to her re-involvement.

I agree with the concerns of Ms Julien that the paternal grandparents are so protective of their son and as a result may not be able to properly protect Joshua. [ 75 ] The mother does have a prior history of depression and anxiety and is now taking medication and being monitored by a psychiatrist a current report on her stability and functioning would be helpful. [ 76 ] As outlined both parents have presented plans that have some strengths but there are also significant weaknesses and concerns about each of their plans and about their parenting abilities.

Ideally, this is a situation where an equal shared parenting arrangement would have been in the child’s best interests. However, the parents live quite far apart and the mother testified that it takes her 2 hours by public transport to commute to the father’s neighbourhood. As a result, the mother is also unable to utilize any mid-week access. [ 77 ] I have come to the same conclusion as Ms Julien that further information is required in this case before the court can make a final order. It is unfortunate that the parties did not agree to the interim report being updated.

I find that further input is required from the Office of the Children's Lawyer with respect to the possible coaching of the child by the father, the outcomes of the mental health assessments of both parents, the impact of the mother’s parenting program on her parenting and to follow up with the father to determine if he has have followed through with the recommended parenting courses and if there are any further allegations of conflict between the father and the paternal grandparents. [ 78 ] However, in the interim I see no reason why the parents should not share the summer holidays.

This will also give an opportunity to determine if the mother is able to meet the child’s needs for longer periods of time and how the child adjusts to such a schedule. The father testified that he has enrolled the child in summer camp for the entire summer. According to the mother, the father also enrolled him in summer camp last summer and as a result she did not obtain any extra time with the child. Regardless of any plans already made by the father, the child will spend alternate weeks with each parent this summer.

Each parent will therefore be responsible for making appropriate childcare arrangements for the child while he is in his or her respective care. [ 79 ] Joshua is loved by his parents and his extended family and they all wish what is best for him. Although the parents may have differing views about what parenting plan is in his best interests I expect the parents to comply not just with the terms of this temporary order but with the spirit that is, that Joshua has two loving parents and he deserves a meaningful relationship with them both. 9. Order [ 80 ] There will be a temporary order as follows:

1. The child Joshua Wu born May 19, 2009 shall continue to reside in the care of the Applicant and he shall continue to reside in the home of the paternal grandparents. 2. The Respondent shall have the child in her care as follows:

a) Regular schedule: On alternate week-ends from Friday at 8:00 p.m. to Sunday at 8:00 p.m. and alternate Fridays for two hours. Andy Wu, the paternal grandfather shall assist in transporting the child for access exchanges;

b) Summer schedule: On alternate weeks from Sunday at 8:00 p.m. to the following Sunday at 8:00 p.m. commencing Sunday July 3 rd to Sunday July 10 th , 2016 and each alternate week thereafter; the regular alternate week-end

schedule shall recommence on Friday September 9 th to Sunday September 11 th , 2016; and

c) Telephone access: Every Monday and Wednesday between 8:00 to 8:30 p.m. 3. During the summer when the child is in the care of the Respondent, the Applicant shall have telephone access every Monday and Wednesday between 8:00 to 8:30 p.m. 4. The Office of the Children's Lawyer shall be appointed to update the investigation of July 6, 2015. The parties shall immediately forward their intake forms to the Office of the Children's Lawyer. The parties shall sign any consents requested by the clinical investigator. 5.

The Applicant shall obtain a complete psychiatric evaluation and assessment as to his past diagnosis, present diagnosis, if any and present functioning. The psychiatrist shall be provided with the copy of this judgement and a copy of the reports of the Office of the Children's Lawyer dated July 6, 2015 and October 16, 2015 and his complete medical file from Dr. Lau. 6. The Respondent shall obtain a complete psychiatric evaluation and assessment as to her past diagnosis, present diagnosis, if any, present functioning and whether or not her current medications impact on her parenting abilities.

The psychiatrist shall be provided with the copy of this judgement and a copy of the reports of the Office of the Children's Lawyer dated July 6, 2015 and October 16, 2015. 7. The Applicant shall provide proof that he has completed or is registered for a parenting program and the Reducing Conflict after Separation Program with the Family Services of Toronto. 8. The Respondent shall provide proof that she has completed the parenting program through the Jamaican Canadian Association. 9.

The Respondent shall be permitted to directly make inquiries and obtain information from the child’s school, doctors or any other professional involved with the child in accordance with section 20 (4) of the Children’s Law Reform Act. 10. Counsel shall contact the trial co-ordinator to arrange a telephone conference call to discuss a timetable for the Office of the Children's Lawyer investigation to be completed and for a resumption of the trial. Released: June 8, 2016 Signed: “Justice Roselyn Zisman ”