Neger v. Dalfen, 2016 ONCJ 751

CITATION: Neger v. Dalfen , 2016 ONCJ 751 COURT FILE No.: Toronto DFO-08-10653-00 DATE: 2016-12-22 ONTARIO COURT OF JUSTICE BETWEEN: ALIZA NEGER Applicant — AND — STEVEN DALFEN Respondent Before Justice Sheilagh O’Connell Trial heard on April 1, 11, 12, 13, 14, 18, 19, 20, 21, May 19, 2016 Reasons for Judgment released on December 22, 2016 Jason W. Gottlieb .......................................................................................... for the Applicant Steven Dalfen ............................................................................................... on his own behalf O’CONNELL J. : 1.

Introduction : [ 1 ] The mother, Aliza Neger (“Ms Neger”), has brought a motion to change the access and child support provisions of the Final Order of the Honourable Justice Marion Cohen dated February 11, 2010. In his response to the motion to change, the father, Steven Dalfen (“Mr. Dalfen”), also seeks to change the custody and access provisions of the Final Order. [ 2 ] The child of the relationship is Lillian Reesy Dalfen, born May 1, 2005. The mother calls the child “Lily” and the father calls the child “Reesy”.

For the purposes of this judgment, the child shall be referred to as “Lily Reesy”. [ 3 ] The parties have been litigating custody and access arrangements regarding Lily Reesy since June of 2008, when the child was three years old. She is now eleven years old.

This case is appropriately described as a “high conflict” case. [ 4 ] In this trial, I heard ten days of evidence from the father and the mother, the OCL clinical investigator from the 2011 investigation of the custody and access issues, the mother’s therapist, the child’s therapists, two child protection workers from Jewish Child and Family Services, school, a school official, a police officer, and family members and friends of the parties.

Thirteen witnesses were called at trial. [ 5 ] The 2010 Final Order of Justice Cohen, made on consent of the parties, provides as follows, among other provisions: 1. the mother shall have custody of the child; 2. the father shall have access to the child on ‘week one’ from Tuesday after school to 7 PM, and on ‘week two’ from Tuesdays and Thursdays after school to 7 PM and from Friday after school until Monday morning, pickup and drop-off to be at the school; 3. each parent shall be entitled to have reasonable telephone and Skype contact with the child while she is in the care of the other parent.

Such telephone contact shall not exceed two calls daily and shall not be permitted to interfere with the child’s ordinary meal, bath and bedtime routines.

The mother shall make best efforts to facilitate this access; 4. the father shall have the right to make inquiries of and to be given information regarding the child’s health, education and welfare from any third-party professionals, from whom she is receiving services including but not limited to health professionals, educators and recreational instructors/coaches; 5. the father shall pay child support in the Child Support Guideline Table amount of $200 per month, based on an annual income of $25,000.

6. the parties shall share special and extraordinary cost of the child in proportion to their respective incomes. [ 6 ] The Final Order also contains a number of other provisions regarding the child’s religious upbringing, summer holidays, Jewish holidays, Mother’s Day and Father’s Day, information sharing, communication provisions, notice and cancellation provisions which will be addressed later in these reasons. [ 7 ] One particularly contentious clause in the Final Order provides as follows: “7.

Each parent shall be responsible for making appropriate arrangements for the child’s care during those times when she is scheduled to be with each of them. In the event that either of the parents is unable to care for Reesy during scheduled times, he or she shall give at least 48 hours’ notice to the other and shall reimburse the other parent if child care costs are incurred as a result of cancellation.

If the father cancels or fails to attend for three (3) consecutive visits without reasonable explanation, his access shall be suspended failing further court order or agreement.” [ 8 ] There have been numerous temporary orders made since Justice Cohen’s Final Order. These temporary orders have changed and adjusted the access provisions. At the time of the trial, the Final Order had been most recently changed on a temporary basis on November 20, 2015 by the Honourable Justice Murray. Currently, the two subsequent temporary court orders governing the father’s regular access Lily Reesy are as follows: a.

Week One: Tuesday after school, pickup from the after school program at Lawrence Heights Community Center to drop off at 7:30 PM at the Second Cup coffee shop at Lawrence Plaza at Bathurst and Lawrence; b. Week Two: i. Tuesday and Thursday after school, pickup from the after school program at Lawrence Heights Community Center to drop off at 7:30 PM at the Second Cup coffee shop at Lawrence Plaza at Bathurst and Lawrence on those two days; ii. Friday after school, pickup from the after school program at Lawrence Heights Community Center, until Monday morning drop off at Glen Park Public School. 2.

The Applicant Mother’s Position : [ 9 ] It is the mother’s position that it is in the child’s best interests to restrict and eliminate any overnight access between the father and the child.

She submits that the material changes in circumstances affecting the child’s best interests are as follows: the father’s violent and abusive conduct towards her and other individuals; his volatile and ungovernable behavior, including violent behavior in front of the child; his transient and unstable housing, and his frequent cancellations of access for lengthy periods of time. [ 10 ] Ms Neger also seeks a restraining order and a police enforcement clause for the above reasons and the father’s refusal to follow court orders that he does not agree with. [ 11 ] Ms Neger also seeks changes to the child support provisions in the Final Order to reflect the father’s actual income or income that he is capable of earning.

She also seeks an order that the father share the child’s

section 7 expenses. [ 12 ] Ms Neger submits that provisions of the Final Order should be changed as follows: a.

The father should have day-time access only on three out of four Sundays each month, with the pickup of the child at 11 AM and the drop-off of the child at 7 PM; b. all access exchanges shall take place at the second cup coffee shop at the Lawrence Plaza located at Bathurst and Lawrence; c. there shall be a restraining order prohibiting the father from attending within 50 metres of the mother’s place of residence; d. the father shall not attend within 10 metres of the mother or the mother’s vehicle during access exchanges; e. there shall be an order that the parties communicate with one another by email only and that all communications shall be strictly limited to access arrangements for the child or for one parity update the other party about the child; f. there shall be a police enforcement clause in the final order to ensure that the father’s complies with the order. 3.

The Respondent Father’s Position : [ 13 ] It is the father’s position that it is in the child’s best interests to grant him sole custody in a shared parenting schedule. In the alternative, he seeks joint custody so that he can be fully involved in decisions affecting the child. [ 14 ] The father submits that the material changes in circumstances affecting Lily Reesy’s best interests since the Final Order are as follows: in 2013, the mother entered into a residential drug and mental health treatment program to address serious drug addiction, fibromyalgia and mental health issues, including a personality disorder.

These issues continue to render her unable to act as the sole custodial parent. He further submits that the mother uses sole custody to restrict his access and to alienate him from his daughter. [ 15 ] At trial, Mr. Dalfen also proposed that the child’s principle residence remain with the mother, but that he have sole custody regarding all major decisions for the child, including medical, education and welfare. [ 16 ] Mr. Dalfen does not agree that there should be a restraining order or a police enforcement clause.

[ 17 ] In addition to changing custody, Mr. Dalfen submits that the provisions of the Final Order should be changed as follows: a. Option one: the child to be with the father every Tuesday overnight and every other weekend from Thursday to Monday, overnight; b.

Option two: the child to be with the father every Wednesday overnight and every other weekend from Thursday until Monday overnight with the father; c. all pickup and drop-off of the child shall be at the school or another neutral location; d. all communication between the parties shall be through email and/or a mediator or parenting coordinator; e. summer holidays shall be equally divided with the child to be with the mother for the first month of the summer and the child to be with the father for the second month; f. the mother shall have the right to make inquiries as to be in getting information regarding the child’s health, education and welfare from any third-party professionals from the child is receiving services, including but not limited to health professionals, educators and recreational instructors and coaches.

First month the summer 4. Issues : [ 18 ] The main issues for me to determine are the following: 1. Has there been a material change in circumstances since the 2010 Final Order that affects or is likely to affect the best interests of the child? 2. If so, what custody and access order is now in the best interests of the child? 3. Should there be a restraining order against the father? 4. Should there be a police enforcement clause? 5. What amount of child support should the father pay? In particular, should income be imputed to the father? 6. What are the child’s

section 7 expenses? What should the father’s proportional be to the child’s

section 7 expenses? 5.

Summary of the Relevant Evidence: 5.1 Background Facts and Litigation History : [ 19 ] Ms Neger is 34 years old. Mr. Dalfen is 40 years old. The parties met when Ms Neger was approximately 18 years old and Mr. Dalfen was 25 years old. They began a relationship and became engaged to be married shortly thereafter. The parties were married on December 29, 2003. Lily Reesy Dalfen is their only child and she was born on May 1, 2005. [ 20 ] The parties separated in February of 2008 when Lily Reesy was almost three years old. At that time, Ms.

Neger and the child returned to her parents’ home and Lily Reesy’s primary residence remained with her mother. [ 21 ] The parties attempted to negotiate custody, access and support issues with the assistance of third parties, including a Rabbi in their community. Ms. Neger had retained a lawyer to draft a separation agreement. They were not successful in resolving the issues. [ 22 ] In June 2008, the mother commenced the first court application by way of an emergency motion without notice to the father. She sought custody, and supervised access, and a restraining order against the father.

In her supporting affidavit, the mother described a history of verbal abuse, threatening behavior, anger and violence by the father towards her and third parties, including the child’s day care providers, witnessed by the child. [ 23 ] Based on the evidence filed, the Honourable Justice Paulseth made a temporary without prejudice order granting Ms Neger custody and a restraining order. Mr. Dalfen’s access to the child was suspended pending further court order. [ 24 ] Mr. Dalfen’s access was suspended until December of 2008.

At that time, the parties reached a consent order providing that the father exercise supervised access to the child at a supervised access center. The father did not exercise this access. It is not disputed that the father did not agree that his access should be supervised at a supervised access centre and that he refused to comply with that order. [ 25 ] During this period, the father did not see Lily Reesy for approximately eight months. [ 26 ] The parties then entered into further negotiations with the assistance of a Rabbi in their community.

On May 7, 2009, the parties signed a final minutes of settlement respecting the issues that were before the court. Rabbi Yoseph Oziel acted as the mediator in the negotiations that resulted in this agreement. [ 27 ] However, when the agreement was presented to the court to be incorporated into a final court order, Justice Cohen, the case management judge, expressed a number of concerns about the provisions in the agreement. She declined to make an order reflecting those provisions.

[ 28 ] At that time, Ms Neger stated that she did not obtain independent legal advice before entering in this agreement and had only agreed to the provisions so that Mr. Dalfen would agree to give her a “Ghet” or Jewish divorce. [ 29 ] Mr. Dalfen then sought to move for judgment in accordance with the terms of the parties’ agreement.

He also sought an order permitting cross-examination of the mother’s lawyer with a view to establishing that she had provided independent legal advice to Ms Neger regarding the terms of the agreement. [ 30 ] For written reasons, Justice Cohen dismissed the father’s motion, having found “a complete absence of any evidence about who, if anyone, might have provided legal advice to either party.

There is no statement in the agreement by a lawyer confirming that advice was provided.” Justice Cohen further found that the agreement included a provision for child support that was not consistent with the Child Support Guidelines and “that depart[ed] so far from a reasonable professional standard that I find it highly unlikely that a lawyer would have permitted its inclusion in the agreement without acknowledgment and waiver.” [1] [ 31 ] After the dismissal of the father’s motion, and after further negotiations, the parties eventually entered into a final agreement regarding the issues of custody, access and child support which became the Final Court Order of February 11, 2010.

The 2011 Motion to Change: [ 32 ] On January 7, 2011, the mother brought a second emergency motion without notice for a restraining order against the father and for an order supervising or suspending his access to Lily Reesy. [ 33 ] According to the mother’s evidence, after the father started to exercise access under the 2010 Final Order, his conduct became increasingly aggressive, unstable, threatening and abusive.

He missed and cancelled numerous access visits and the mother, through her counsel, suspended access in accordance with paragraph 7 of the Final Order which provides that access shall be suspended if the father misses or cancels three consecutive access visits without reasonable explanation, failing court order or agreement. [ 34 ] It is not disputed that the mother suspended the father’s access in October of 2010 by instructing her counsel at the time to send a letter to the child’s school informing the school that the father’s access was suspended pursuant to the provisions of the Final Order.

The mother did not bring her emergency motion until January of 2011. [ 35 ] It is further not disputed that on October 5, 2010, the father attended Lily Reesy’s school and forcibly removed her by lifting her over the school fence and removing her from school property against the direction of school officials. The father admitted to removing the child from school property on that day.

He denied missing and cancelling numerous visits and believed that the mother had acted unilaterally and unlawfully by instructing her lawyer to send a letter to the school stating that his access had been suspended. [ 36 ] The police became involved during this incident as the mother alleged that the father had abducted or removed the child without permission. The father actually called the police and waited with the child for them to arrive.

The police did not remove the child from the father at that time. [ 37 ] On January 7, 2011, at the return of the mother’s emergency motion, Justice Cohen granted the restraining order and suspended the father’s access on a temporary without prejudice basis, based on the mother’s evidence. [ 38 ] On April 7, 2011, after a number of adjournments for the father to retain counsel and to file responding materials, the custody and access issues were referred to the Office of the Children’s Lawyer for a “section 112” social work investigation and report.

By that time, the father had not exercised access to Lily Reesy for several months. [ 39 ] During the period of the adjournment, the mother proposed that the father’s access initially take place at a supervised access center. It is not disputed that the father refused to exercise access at a supervised access centre. According to Justice Cohen’s endorsement on that date, the father stated that he would not exercise access to the child if it was supervised.

He proposed “Skype” access at certain times during the week. [ 40 ] Justice Cohen therefore ordered that the father have access to the child on Fridays via Skype between 5 PM and sundown as well as any access necessary for the purposes of the Children’s Lawyer’s investigation and report. [ 41 ] On September 22, 2011, the Office of the Children’s Lawyer (“OCL”) concluded its investigation and report of the custody and access issues.

Ms Eva Casino, a witness in this trial, was the clinical investigator who prepared the OCL report. [ 42 ] The OCL report recommended among other provisions, that the mother have sole custody of the child and that the father’s unsupervised access be reinstated immediately.

The clinical investigator recommended that this access should be gradually introduced to allow the child to normalize renewed contact with her father gradually towards generous overnight access. [ 43 ] The mother disputed the contents of the OCL report and served a Notice of Dispute in accordance with Rule 21 of the Family Law Rules. [ 44 ] It is not disputed by the parties that at the time the OCL report was delivered, the father had not exercised access with the child since the fall of 2010, when his access was suspended, except for the visits that were arranged to conduct the OCL investigation.

It is further not disputed that it was open to the father to have access with the child at a supervised access center during this period of time however he refused to accept any supervised access.

Instead he chose to have contact via telephone or Skype. [ 45 ] After the OCL report was delivered, the father brought a motion for interim unsupervised access to the child in accordance with the OCL’s recommendations. [ 46 ] On December 12, 2011, following the hearing of the motion, the court made a temporary order that the father shall have access to the child on Wednesdays from 4:30 PM to 8 PM; Sundays from 10 AM to 6 PM and at any other times as agreed between the

parties in writing, among other provisions. The access was to take place with a member of the father’s family present or a third party agreeable to the mother as arranged through her counsel. Access was to be reviewed on February 7, 2012 with a view to expand should all go well. [ 47 ] On February 7, 2012, the review date, the parties agreed to a graduated expanded access

schedule moving towards overnight access. The provision regarding a third party supervisor remained at that time. [ 48 ] It is not disputed that during the summer of 2012, the father’s access was gradually expanded to unsupervised overnight alternating weekends and some mid-week access. [ 49 ] The matter proceeded to a trial management conference and was proceeding to a trial in the fall of 2012.

However, on October 25, 2012, both parties discontinued the 2011 Motion to Change and filed Notices of Withdrawal. [ 50 ] It is not disputed by the parties that after the 2011 motion to change was withdrawn, by the fall of 2012, the mother became increasingly ill with fibromyalgia. She sought treatment from a number of doctors who prescribed various medications to assist with her pain. The mother developed an addiction to pain medication and in the spring of 2013, the mother attended a drug treatment rehabilitation program in the United States.

She returned to Toronto in late July or early August of 2013. [ 51 ] During the time that the mother was receiving treatment in the United States, the child was residing with the father in Toronto with the mother’s consent. [ 52 ] In August of 2013, upon the mother’s return to Toronto, the child returned to the primary residence of the mother. The parties disagreed as to the nature and form of the father’s access to Lily Reesy upon the mother’s return from treatment. The mother sought to return to the parenting

schedule under the Final 2010 Order. The father disagreed. The 2014 Motion to Change: [ 53 ] On September 5, 2014, the mother commenced this motion to change. Again, it was commenced without notice to the father on an emergency basis. In the within motion to change, the mother again sought an order that the father shall have supervised access either at an access center or by a mutually agreeable third-party supervisor. In the alternative, she requested that the father be granted daytime access only, with no overnights pending further court order.

The mother also sought a restraining order and a police enforcement clause. [ 54 ] According to the motion to change filed, the mother stated that there were a number of concerning and violent incidents that occurred during the father’s access to the child, causing the child emotional harm and exposing the child to escalating conflict and abuse. [ 55 ] In particular, the mother described incidents that occurred during Passover on April 20, 2014 in which the police became involved and on July 29, 2014 that occurred at the child’s summer camp resulting in camp directors involving the police and Jewish Child and Family Services.

An investigation by the Jewish Child and Family Services followed. [ 56 ] On September 5, 2014, based on the mother’s evidence filed, the father’s access was suspended on a temporary without prejudice basis by the Honourable Justice Katarynych. [ 57 ] On October 7, 2014, at the return of the motion and upon hearing all of the evidence, Justice Cohen ordered that the father’s regular unsupervised access should be reinstated in accordance with the Final 2010 Order except that for the first three visits, the alternate weekend access will conclude Sunday at 7:00 PM to allow for a transitional period.

Thereafter, the access will conclude on Monday mornings (drop off at school). [ 58 ] Following the reinstatement of the father’s access, Justice Cohen ordered the re-involvement of the Office of the Children’s Lawyer to conduct a further investigation. On January 30, 2015, the OCL consented to provide an updated investigation and report. Ms Zaria Duncan was assigned as the clinical investigator.

The matter was adjourned pending the OCL updated report. [ 59 ] On April 30, 2015, during the course of the OCL investigation, the mother brought a further urgent motion seeking to restrict or supervise the father’s access following information that she received that the father had moved to a new residence that he had failed to disclose and that Lily Reesy was having overnight visits in this residence and being forced to keep it a secret from the mother.

According to the mother’s materials, the residence was unsafe and inappropriate for the child. [ 60 ] Following a series of motions and the very serious escalating conflict between the parties, Justice Cohen requested that the Jewish Child and Family Services (“the Society”) to attend court on an urgent basis “in light of the high conflict in this matter in which the child’s emotional well-being may be at risk.” [ 61 ] On May 1, 2015, a Society lawyer and child protection worker attended court before Justice Cohen and agreed to conduct a child protection investigation regarding the impact of the custody and access dispute on the child’s emotional health.

Justice Cohen directed the parties to cooperate with the Society and to sign any consents reasonably required by the Society for the purposes of its investigation. [ 62 ] As a result of the child protection investigation, the Office of the Children’s Lawyer placed its investigation on hold pending the outcome of the Society investigation, as per their mandate.

The OCL indicated that it would provide a report at a later date which will include the outcome of the child welfare investigation. [ 63 ] The child protection investigation was conducted by Ms Michelle Cukier, a child protection worker and a witness in this trial. The investigation was concluded on June 30, 2015. At that time the Society verified that “child protection concerns of a risk of emotional harm due to significant conflict over custody was verified.” However, it decided to close its file as, according to the report

filed on consent of the parties: “…the society feels that continued JF&CS involvement will only further allow Ms. Neger and Mr. Dalfen to involve Lily in the conflict. Further, the JF&CS understands that the Office of the Children’s Lawyer has almost completed their assessment, which will contain custody and access recommendations.

As a result, the file is being closed. [ 64 ] The Society also recommended that the parents attend a high conflict workshop or group such as the group involved provided through Families in Transition in order to address appropriate ways to manage a high conflict situation. [ 65 ] Following the completion of the child protection investigation, regrettably, for personal reasons, the OCL clinical investigator Ms. Zaria Duncan was unable to complete her investigation and report of the custody and access issues. The OCL offered a new investigator to continue and complete the investigation, but Mr.

Dalfen did not agree. [ 66 ] On August 4, 2015, the father brought a motion seeking to significantly expand his access and for a restraining order against the mother. He also sought an order that both parties comply with drug testing. Justice Cohen did not find that the father had established a material change in circumstances justifying the significant expansion in access that he was seeking. She further dismissed the father’s request for the restraining order.

However in light of the length of time needed by the father to transport the child on Tuesdays and alternating Thursdays, Justice Cohen extended the access on those days to 7:30 PM. [ 67 ] On September 24, 2015, the father brought a further motion for an order that the mother be found in contempt and for an order that the child continue to be registered for her final grade 5 year at Associated Hebrew School, a private Jewish day school. The mother had enrolled the child at Glen Park Public School commencing September 2015 with little notice to the father. [ 68 ] Justice Cohen dismissed the father’s motion.

Justice Cohen stated the following in her written reasons: “The mother deposes that the child is doing much better at the new school and is pleased to be there. She states that the supports for the child are more intensive at the public school, including an on-site psychologist. The child is able to participate in more extracurricular activities because the tutoring is no longer required. She is on the track and field team, and is enrolled in gymnastics. She appears happy and is making new friends. The mother is a custodial parent, and has been for many years. She is entitled to make educational decisions.

Based on the evidence, I find her decision to change the child’s school and educational program was reasonable and made in the child’s best interests.” [ 69 ] During the same written reasons, as a result of ongoing events, Justice Cohen stated the following: “There is another issue I wish to address. The father has become virtually ungovernable in the courtroom. He interrupts at will, and insults counsel and the court repeatedly.

Such conduct directly interferes with the proper administration of justice and the court and cannot continue.” [ 70 ] Accordingly, Justice Cohen ordered that, other than the father’s contempt motion, the father was not permitted to bring any further motion without leave. She further ordered that in the event the father continues his disruptive conduct, he will be removed from the court. [ 71 ] On October 13, 2015, the father’s motion for contempt returned before Justice Cohen.

According to a transcript of the proceedings obtained by mother’s counsel, for oral reasons, Justice Cohen transferred this case to another case management judge. Excerpts of her oral reasons are as follows: “… this case has been going on for a number of years and the tone has gotten increasingly hysterical and much of it is directed against me, ..

I have struggled to determine all the motions and the other proceedings in this matter in a disinterested, detached, fair manner and in a reasoned manner, but it has been come absolutely impossible for me to continue to case manage this case. … If I were so inclined, I would conduct a contempt hearing, but I do not want to distract or derail this matter, particularly when it is so close to trial, but in my view his [the father’s] comments are continuously, repetitiously contemptuous, attempting to intimidate the Court, intimidate the lawyer, scandalize the Court, and I am not going to continue with the matter.” [ 72 ] Justice E.

Murray assumed the role of case management judge pending the trial of this matter. She also heard a number of motions. [ 73 ] On November 24, 2015, following a series of previous court orders for disclosure that had not been followed according to Justice Murray’s review, the court ordered that the father shall serve and file all the financial disclosure ordered on or before December 22, 2015.

If the father failed to comply with this order, Justice Murray ordered that the mother may apply on motion for an order striking the father’s pleadings with respect to the issue of child support only. [2] [ 74 ] On February 1, 2016, on the mother’s motion, Justice Murray made an order striking the father’s pleadings with respect to child support, retroactive and prospective as the father had failed to comply.

Notwithstanding the mother’s request, Justice Murray did not strike the father’s pleadings with respect to the custody and access issues. [ 75 ] In the same ruling, Justice Murray considered a motion brought by the mother to eliminate the father’s mid-week access to the child and an order regulating access transfers, among other relief.

Justice Murray declined to eliminate the father’s mid-week access, but ordered that the father shall pick up the child at the child’s aftercare program at the Lawrence Heights Community Centre, rather than school, and return the child on Monday mornings to school and to the mother at a specified Second Cup coffee shop on Tuesdays and Thursdays. [ 76 ] It not disputed that since this Order of Justice Murray, dated November 24, 2015, and at the time of trial, the father had refused to exercise access on Thursday evenings because he states that the new pick up location interferes with his time with the child

and it is too far for him to travel back and forth with the child on those evenings. [ 77 ] On January 28, 2016, in preparation for the upcoming trial before me, Justice Murray requested that the Office of the Children’s Lawyer provide a “Voice of the Child” report to determine the child’s views in this matter. The OCL consented to provide the services before the trial. A clinician was assigned on February 2, 2016. [ 78 ] Unfortunately, the “Voice of the Child Report” did not proceed.

According to the letter and Affidavit dated March 18, 2016 from the OCL clinician, both the father and child declined to participate. The father raised the objection that the child’s participation in the process would negatively impact her emotional well-being. In addition, despite attempts made on three separate occasions, the mother informed the clinician that the child was refusing to attend scheduled appointments with the clinician.

The clinician’s report and affidavit were filed on consent in this trial. [ 79 ] On February 1, 2016, the father brought a further motion for contempt against the mother for her obstruction of his ability to obtain information regarding the child’s education and schooling directly from school officials.

The father alleged that the mother had deliberately lied to school officials and caused school staff to believe that a court order forbade them to communicate with him. [ 80 ] The mother denied this and stated that if the school is refusing to provide information to the father, then the father’s complaint should be with the school.

The school’s director, Elliot Brodkin, was one of the father’s witnesses in this trial. [ 81 ] Justice Murray dismissed the father’s motion for contempt for the reasons set out in her endorsement. [ 82 ] On March 18, 2016, the mother brought a motion for security for costs against the father. For oral reasons delivered, Justice Murray dismissed this motion. The matter then proceeded before me for the Trial Management Conference and trial. 5.2 The Mother’s Evidence and Her Witnesses : The Mother Aliza Neger : [ 83 ] Ms Neger is 34 years old and has resided in Toronto her entire life.

She has lived in the same apartment since 2010 with Lily Reesy, but for a period of time in 2013, when she was attending a rehabilitation and drug treatment program in the United States. She comes from a family of six children and she was raised in the Jewish faith. She describes her relationship with her family as close. Her parents, who have now separated, both live close by and visit with Ms Neger and Lily Reesy on a regular basis. She describes Lily Reesy’s relationship with her grandparents as very close. [ 84 ] Ms Neger is currently a part-time student at Seneca College in a social services diploma program.

Her long-term goal is to transfer into a BSW program and eventually obtained a Masters in Social Work and become a therapist. Prior to attending Seneca, she obtained a certificate from Humber College in psychosocial rehabilitation. [ 85 ] Since 2013, Ms Neger’s main source of income has been ODSP (Ontario Disability Support Program Benefits). Currently, in addition to her ODSP income, she also receives some self-employment income doing respite work for people with developmental disabilities and mental health issues. Her total income is approximately $22,000 per annum.

Her ODSP is based on a diagnosis for PTSD and fibromyalgia. [ 86 ] The parties met and became involved when Ms. Neger was 18 years old and Mr. Dalfen was 25 years old. At the time, Ms. Neger was a college student and living in a bachelor apartment. Mr. Dalfen was employed. The parties started living together and married shortly thereafter. Ms Neger testified that she was aware that Mr.

Dalfen had been incarcerated in the United States for fraud and conspiracy related offences when they married. [ 87 ] Ms Neger testified that none of her family attended the wedding as her parents were very upset with her decision to marry Mr. Dalfen and did not approve of him. She did not see her family for a considerable period of time after her marriage to Mr. Dalfen. During the four years of marriage with Mr. Dalfen, her relationship with her family was strained.

She testified that she worked very hard at rebuilding her relationship with her parents. [ 88 ] In cross-examination, Ms Neger denied being kicked out of her parents’ home and did not respond to questions about the nature of her relationship with her father when she was younger. Although she acknowledged that it was strained, she did not denied that it was abusive. She acknowledged attempting to get a restraining order against her father when she was with Mr. Dalfen. [ 89 ] During the marriage, Ms. Neger was attending school prior to her pregnancy with Lily Reesy. Mr. Dalfen was working outside of the home.

She testified that after Lily Reesy was born, she was a stay-at-home mother and the primary caregiver for the child while Mr. Dalfen worked full-time. She continued also some of her college work from home. [ 90 ] Ms Neger described her marriage as initially good, but soon developed into a very abusive relationship. She testified that Mr. Dalfen was very derogatory and verbally abusive towards her. He would call her names, throw things at her, break doors down, and sometimes push her when he became angry. She described the relationship as very volatile. The abuse would escalate and then Mr.

Dalfen would apologize and promise to go to anger management. She described her entire relationship was an “abuse cycle.” [ 91 ] The parties separated in February of 2008. Ms Neger testified that she discovered that Mr. Dalfen was gambling away their rent money and using drugs, including cocaine and crack cocaine. They were evicted from their apartment. After Ms.

Neger returned to her parents’ home with Lily Reesy, they resided with her parents for approximately 1.5 years until she obtained the apartment where they currently reside, which is government subsidized. [ 92 ] After the separation, Ms Neger described things as “very chaotic” and volatile with Mr. Dalfen. Although they were attempting to negotiate an agreement with community members including a Rabbi, this was not working and she decided to commenced

court proceedings. [ 93 ] Before Ms Neger decided to go to court, she received the following Facebook message from Mr. Dalfen, to which he admits sending: “Subject: you bitch Be ready for the battle of your life. I decided that I want Reesy. I don’t trust your whore ass. We will battle as long as it takes. No rabbis, councelors, [ sic ], just lawyers. I’ll start the process, you prostitute.” [ 94 ] Ms Neger testified that this is one of many abusive emails that she has received from Mr. Dalfen over the years.

A document brief containing numerous email exchanges between the parties over the pasts several years was admitted into evidence in this trial. [ 95 ] Ms Neger testified that after she obtained the first restraining order against Mr. Dalfen, the parties attempted to negotiate a final agreement with the assistance of a Rabbi, who was also helping her to obtain a Jewish divorce or Ghet. [ 96 ] Ms Neger testified that Mr. Dalfen refused to give her the Ghet unless she agreed to the terms that he wanted in the final agreement, including a waiver of proper child support.

She agreed to the terms under duress in order to obtain the Ghet. She stated that she did not have legal advice when she entered into the agreement. [ 97 ] After Justice Cohen declined to approve the agreement and it was set aside, the parties then entered into the final agreement that formed the basis of the 2010 Final Order. [ 98 ] Ms Neger testified that she returned to court again in 2011 to seek another restraining order against Mr. Dalfen because his harassment and verbal abuse escalated.

She testified that the father was stalking her, showing up at her apartment and that during access exchanges, he was yelling and screaming at her in front of Lilly/Reesy, causing her to be very anxious and frightened. She testified that the communication from him through email and text messages was extremely verbally abusive. [ 99 ] After Ms Neger obtained the further restraining order in January of 2011, she recalled that Mr. Dalfen’s access was initially suspended for several months and then supervised by some of his family members.

However, he refused to exercise supervised access for several months and would only agree to Skype access. [ 100 ] Ms Neger’s recollection of the events after this period was hazy.

She testified that she did not agree with the recommendation of the OCL Report and would not agree to implement those recommendations, instead filing a Notice of Dispute with the OCL. [ 101 ] Ms Neger did not appear to recall exactly what happened in 2011 and 2012, but after a period of Skype access and then supervision by family members, she testified that the father’s access gradually returned to more regular overnight access by the summer of 2012. She agreed that by early 2013, he and Lily Reesy started to spend significantly more time together.

Mother’s Mental Health and Addiction Issues: [ 102 ] Ms Neger described suffering from depression in her teens and in her early twenties. She sought psychiatric treatment and other alternative treatments from a variety of doctors, which she states were successful. In cross-examination, she acknowledged that she has been under psychiatric care throughout periods in her life since she was approximately 18 years old. Between the ages of 18 and 19, she received electroshock therapy. She further acknowledged an earlier history of some suicide attempts.

She testified that she was suffering from depression when she met Mr. Dalfen. [ 103 ] Ms Neger was under the care of a psychiatrist between 2003 and 2004 and receiving medication and treatment during that time. According to her evidence, during her pregnancy with Lily Reesy she went off all prescription medications used for depression and no longer used or needed medication. [ 104 ] In 2011, Ms Neger was diagnosed with PTSD and fibromyalgia. Ms Neger testified that she developed PTSD as a result of her abusive relationship with Mr. Dalfen and the trauma of the divorce and separation.

She further testified that because of her PTSD and the trauma that she was experiencing, she also developed fibromyalgia, which became very painful. [ 105 ] Ms Neger testified that during the 2011 and 2012 period, she had a number of treating doctors prescribe various medications to assist with the chronic pain of fibromyalgia.

In early 2013, it was determined that she had developed an addiction to the prescription medications. [ 106 ] According to her evidence, in the spring of 2013, with the financial assistance of her brother, she went to Florida to address her fibromyalgia and then attended a rehabilitation and drug treatment program to address her addictions. [ 107 ] Ms Neger remained in treatment, including residential treatment to address her addictions and her PTSD/fibromyalgia for a period of approximately three to four months, between April and July of 2013.

She came home briefly at one point in May of 2013 for Lily Reesy’s birthday and then returned to treatment.

[ 108 ] Ms Neger testified that the medications that she became addicted to were largely opioids, and in particular a “fentanyl patch” and Percocets. She was taken off all of her medication during her rehabilitation and weaned off all addictive medication in 2013. [ 109 ] Ms Neger testified that upon her return home in late July of 2013, she assembled a support and treatment team comprised of an addictions doctor, a psychologist, both of whom she still works with, a pain specialist to address the fibromyalgia and a life coach or community case worker to help her get life back on track. [ 110 ] Since Ms.

Neger’s returned to Toronto, she has attended ongoing therapy with Dr. Erin Mantis, a licensed clinical psychologist, who she began working with on July 30, 2013. She has also been under the care of Dr. Ivan Peruso, a Humber River Hospital physician and general practitioner specializing in addiction. Dr. Peruso filed a report in these proceedings, however he did not testify. Dr. Mantis did testify in these proceedings. [ 111 ] Ms Neger also attends Narcotic Anonymous (NA) on a regular basis, and she has a very strong role in this program. She has a sponsor and she herself is a sponsor to several members.

She regularly speaks at high schools and other organizations to share her experience with addiction and also volunteers with JACS (Jewish Addiction Community Services). [ 112 ] Ms Neger testified that she has been clean and drug free since May of 2013. Pursuant to a Consent Order of Justice Cohen dated August 7, 2015, she participated in hair follicle drug testing and produced a hair follicle drug test through a lab called “Life Labs” which was negative for all drugs and controlled substances.

She testified that she is no longer suffering from any addictions. [ 113 ] Ms Neger completed the drug test on October 5, 2015, approximately three months after the order was made. She denied waiting for a period of time prior to completing the report, contrary to the father’s claims. Part of the difficulty was finding a lab after the concerns regarding the Motherisk Lab. The report filed also indicated that the test results detected drug use for a period of 90 days prior to the date the sample was tested.

A copy of the report, dated October 6, 2015 was entered as evidence in this trial. [ 114 ] Ms Neger testified that she no longer sees a pain specialist as her fibromyalgia is completely manageable and that she is not suffering from any major mental illness. She continues to have PTSD, however, through her counselling, therapy and support team, she has learned how to manage her emotions and to manage her PTSD.

She testified that it is occasionally triggered by stress, such as these court proceedings. [ 115 ] Ms Neger testified that Lily Reesy is aware of her illness and understands that her mother was on some “bad medications” and that she had to get off of them. Ms Neger described very proudly that in 2014, Lily Reesy made a speech at Ms Neger’s First Year Medallion which is a celebration of the anniversary of the first year of sobriety and recovery. Lily Reesy also spoke at Ms Neger’s second year medallion in 2015.

Ms Neger described this as a very moving experience for everyone and that there “were a lot of tears in the room”. According to Ms Neger, Lily Reesy talked about how proud she was of her and how much she loves her, which was very special for her. Many family members were present as well. Father’s Care of Lily Reesy in 2013: [ 116 ] Ms Neger testified that when she became ill and went away for treatment, Lily Reesy lived with the father from April of 2013 to the end of June of 2013. She asked Mr. Dalfen to care for Lily Reesy during this period.

However, she testified that during this period, her family was very concerned for Lily Reesy’s well-being as Mr. Dalfen was apparently approaching members of her family for money to pay for food and other expenses. [ 117 ] Ms Neger testified that her father arranged for Lily Reesy to attend an overnight summer camp for the months of July and August of 2013 until Ms Neger returned from treatment because they were concerned about Mr. Dalfen’s parenting. [ 118 ] In cross-examination, Ms Neger denied that the father was extensively involved with Lily Reesy’s care during this period prior to her going into rehab.

Although she acknowledged that Mr. Dalfen cared for Lily Reesy from April to June of 2013, she testified it was for a period of no more than eight weeks. She denied that Mr. Dalfen was extensively involved in supporting and helping her parent Lily Reesy prior to this time in early 2013. [ 119 ] Ms Neger testified that upon her return home in late July of 2013, Lily Reesy returned to her mother’s primary residence and has continually lived with her mother since that time. [ 120 ] Ms Neger testified that she commenced her second motion to change in September of 2014 because Mr.

Dalfen would not agree to follow the 2010 Final Order once she returned from treatment. She brought an emergency motion at that time. She testified that Mr. Dalfen’s abusive behaviour started to escalate again and it became impossible to communicate with him. In particular, she described two specific incidents that occurred in April 2014 and July of 2014 which caused her great concern. In addition to refusing to follow the 2010 order, Mr. Dalfen was frequently cancelling access visits for very significant periods of time, causing emotional harm to Lily Reesy. The April 2014 Incident [ 121 ] Ms.

Neger testified that during the Jewish Passover holiday in April of 2014, Mr. Dalfen came to pick up Lily at her apartment building for the holiday. Ms Neger testified that after she delivered Lily Reesy to Mr. Dalfen, Mr. Dalfen phoned her and was very angry because she had not packed the proper clothing for Lily Reesy. He was yelling loudly at her and she could hear him yelling at Lily Reesy. [ 122 ] Shortly afterwards, Lily ran back up to her apartment. According to Ms. Neger Mr. Dalfen became explosively angry.

He chased Lily up to her apartment and tried to force his way into the apartment while the child Lily Reesy inside with her. Ms Neger described Mr. Dalfen as yelling loudly and banging on the apartment door. She described Lily as being completely traumatized and very frightened by this behavior.

[ 123 ] Ms Neger called the police who attended and spent a considerable amount of time calming down Lily Reesy and attempting to deal with the father. Ms. Neger testified that during the time the police were in her apartment, she received approximately seventeen abusive and threatening text messages from the father which the police reviewed. The July 2014 Summer Camp Incident [ 124 ] Ms Neger testified that in July 2014, she emailed to father to confirm where he should pick up Lily Reesy at the conclusion of her summer camp on July 28, 2014.

According to Ms Neger, there was a miscommunication at the camp and the camp bus driver did not receive confirmation that Mr. Dalfen was authorized to pick up Lily Reesy. On that day, Ms Neger received a call from the camp requesting confirmation and Ms Neger provided permission. [ 125 ] Ms Neger testified that when Lily Reesy came home that evening, she was very upset and traumatized by the father’s actions that day.

Ms Neger testified that she later received a telephone call from Ms Devra Igre at Jewish Child and Family Services who advised her that the agency had received a call from the camp about the father’s behaviour. According to JFCS worker, the camp had issued a trespass order against him. Ms Neger was advised that the father became violently angry and started banging on the camp bus door demanding the release of his daughter, causing staff and other children to be very frightened and intimidated. [ 126 ] Ms Neger testified that the father did not exercise any access to Lily Reesy pending the JFCS investigation.

Ms Neger testified that she did not suspend the father’s access during the JFCS investigation but rather that the father chose not to see Lily Reesy during this investigation. [ 127 ] On September 5, 2014, Ms Neger sought and obtained an emergency motion to restrict the father’s access. Jewish Family and Child Services completed their child protection investigation regarding the incident and verified that the child was at risk of emotional harm as a result of the father’s conduct.

Ms Neger testified that the Lily Reesy only saw her father once for a period of approximately two hours after the summer camp incident until October 6, 2014, the return of the motion. At that time, Justice Cohen reinstated the father’s access in accordance with the 2010 Final Order. Mother’s May 2015 Motion to Restrict the Father’s Access: [ 128 ] It was Ms Neger’s evidence that she became aware in April of 2015 that that father was living at a different address that he failed to disclose to her.

She received information from a person named Lisa Rapkin who disclosed to her very concerning details regarding where Lily Reesy and the father were staying during his overnight weekend access. Ms Neger believed that the apartment was unsafe and dangerous for Lily Reesy. [ 129 ] Ms Neger attempted to discuss this with Lily Reesy and believed that Lily Reesy had been told by the father to keep this a “secret” from her and other adults. Ms Neger arranged for herself and Lily Reesy to meet with the child therapist at the time, now Ms Susan Murrell-Pritchard, to discuss the “secret”.

Ms Murrel-Pritchard called the children’s aid society. Ms Neger brought a further emergency motion to restrict the father’s access. [ 130 ] Ms Neger did not call Ms Rapkin as a witness at trial. She testified that Ms Rapkin had been threatened and intimidated by Mr. Dalfen and did not wish to testify. The Father’s Cancellations: [ 131 ] Ms. Neger testified the father has repeatedly refused to exercise access to Lily Reesy for significant periods of time because he would either not agree to exercise access at a supervised access center or he does not agree with the court order.

She further described the father’s access as very inconsistent and sporadic and that the often has a number of different excuses for why he is cancelling his access with Lily Reesy. [ 132 ] According to Ms Neger, Nr. Dalfen regularly makes promises to Lily Reesy and then fails to follow through when he cancels his visits. Ms. Dalfen prepared a chart of the missed access by the father. According to Ms Neger, the father had cancelled the following visits with Lily Reesy since April of 2014: 1. in April 2014, the father sent an email suspending all of his access until all the OCL recommendations were implemented.

The father agreed to start seeing Lily Reesy again approximately two weeks later; 2. in May of 2014 the father refused to exercise midweek access until June 15, 2014; 3. in July of 2014, after the summer camp incident, Ms. Neger testified that the father did not see Lily Reesy or exercise access to her until he received communication from Jewish Family and Child Services.

He then did not see Lily Reesy until October of 2014; 4. in December 2014, the father cancelled all of his overnight weekend access; 5. in January of 2015, the father cancelled some midweek access and cancelled both weekend access periods 6. in February 2015, the father cancelled the February 20-22 weekend; 7. in April 2015, the father cancelled his Passover access; 8. in November 2015, the father cancelled all of this Thursday access visits going forward after the Justice Murray’s Order changing the access exchange; 9. in December 2015, the father canceled all of his weekend access due to a shoulder injury until January 8, 2016; 10. despite emailing the father well in advance to plan Lily Reesy’s summer, he has never exercised his summer holiday access

pursuant to the 2010 Order. [ 133 ] Ms. Neger testified that the father will unilaterally canceled his access

schedule until further notice at different times as a form of punishment. According to Ms Neger, the father appears to believe that the access

schedule is a weapon that he can use against her by canceling his access when he is upset or unable to get what he wants. [ 134 ] Ms. Neger introduced several email exchanges between the parties regarding his numerous cancellations and the difficulties that she encounters in attempting to

schedule holidays or address cancellations. Some of these emails were also exchanges between Mr. Dalfen and her counsel. [ 135 ] The mother also testified that the father believes that the 48 hour confirmation clause in the Final Order can be used by him to regularly cancel access, so long as he cancels within 48 hours. The mother testified that the father has routinely used this clause to cancel his access when she has already made plans.

For example, in March of 2015, the father canceled all of his access forty-eight hours before the mother was scheduled to go away on a holiday outside of the country, [ 136 ] When the mother advised the father that she had already made arrangements to travel out of the country, having booked her flight and accommodations, the father replied in writing as follows “Sorry … as per our court order I have the right to cancel 48 hours in advance and I’m doing exactly that.

I suggest you deal with it in court as it is your responsibility, it is my responsibility to notify you 48 hours in advance only.… Good luck figuring it out.” [ 137 ] Ms Neger testified that these frequent cancellations used to be very difficult for Lily Reesy. She would be very disappointed. However, Lily Reesy now appears to be more accustomed to the frequent cancellation and she is happy to be with Ms. Neger. Ms Neger also testified that whenever there has been extended periods of time when the father has not exercised access, things have been a lot better for Lily. According to Ms.

Neger’s observations, Lily Reesy appears calmer and happier and does better at school. [ 138 ] Ms. Neger also testified that she observed Lily to be very anxious around the frequent cancellations and the unpredictability of the father’s access. She describes Lily is a child who likes to have things very organized and wind things are chaotic or unknown she becomes anxious. [ 139 ] Ms Neger testified that even when the father does exercise access, during the mid-week evening access periods, he is constantly late and never returns Lily Reesy on time. [ 140 ] Ms.

Neger testified that the current access regime is not working. She feels that the child’s life is been in complete chaos as a result of the father’s frequent cancellations and the impossibility of communicating with him. She described the father’s communication and abusive and derogatory. She testified that she can never plan or

schedule for Lily Reesy given the father’s refusal to cooperate. She further can never plan extracurricular activities during the weekend because the father will always refuse to take Lily Reesy to those activities on “his” weekend time with her. [ 141 ] Ms Neger denied attempts to restrict the father’s access to Lily Reesy. She testified that she has made numerous efforts to encourage access. She testified that she always has Lily Reesy available and offers makeup access when the father cancels. Ms Neger’s Description of Lily Reesy: [ 142 ] Ms Neger testified that Lily is “a very sweet child” and “a great kid”.

She is “very athletic” and “very energetic”. During their time together they do a lot of activities such as ice-skating, rollerblading during the summer and visiting with family. She has enrolled Lily Reesy in gymnastics. She arranges ‘get togethers’ with Lily Reesy and the maternal grandparents approximately once per week. They often visit her sister and Lily Reesy’s cousins. They try to do activities during the weekends although it is difficult to organize extracurricular activities on the weekends when the father refuses to take Lily Reesy on his weekends. They have two cats and a pet turtle.

Lily Reesy loves her pets. [ 143 ] Regarding Lily Reesy’s schooling, Lily Reesy had been at Associated Hebrew, a private Jewish Day school since grade four. Ms. Neger explained that she received bursaries and grants from the school and some assistance from her parents to pay the tuition. [ 144 ] However, Ms Neger testified that that during the 2013-2014 academic year at Associated Hebrew, Lily’s behavior had greatly deteriorated. An Individualized Education Plan (IEP) assessed Lily Reesy as having a learning disability. According to Ms Neger, Lily Reesy was becoming very disrespectful and disruptive at school.

She was getting into fights with other children. Ms Neger testified that she regularly received phone calls from the teachers at Associated Hebrew regarding Lily Reesy’s behaviour. [ 145 ] Ms. Neger decided to transfer Lily Reesy to Glen Park Public School for the September 2015 school year because she did not feel that Associated Hebrew was a good fit for her and that Lily Reesy was not doing well there.

She testified that this was a very difficult decision. [ 146 ] Ms Neger acknowledged not informing the father of this decision until July 28, 2015 through a letter from her counsel in which the father was informed that decision was made for “financial reasons.” No other reason or information was provided. [ 147 ] According to Ms. Neger’s evidence, the move to Glen Park has been very successful for Lily. She has made several friends and she has shown interest in her school activities. She is not overwhelmed by her academic workload and she is completing her school work with confidence.

She is now able to explore new extracurricular activities as she no longer requires a tutor. [ 148 ] Since Lily Reesy has transferred to Glen Park Public school, she has received a further Individualized Education Plan, remedial classes, and other programs and supports. Her academic performance has improved tremendously. Copies of Lily Reesy’s report cards at both Glen Park Public School and Associated Hebrew school were filed as exhibits in these proceedings. The report cards showed a significant improvement after her transfer. Lily Reesy has no longer been identified as a child with a learning disability.

The Child’s Name: [ 149 ] When asked by the court why Lily Reesy appears to have two different names and when this happened, Ms. Neger testified that Lily’s birth name is Lillian Reesy Dalfen. This is the name on her birth certificate. Until Lily Reesy was approximately 8 years old, she went by the name of Reesy. Ms. Neger testified that approximately two years ago Lily Reesy told Ms. Neger that she wanted to “go by Lily” and that she did not like the name Reesy. She preferred her English name to her Hebrew name, as it was less unusual. [ 150 ] Ms.

Neger testified that she took this seriously so she booked a session for herself and Lily with Joanna Seidel, Lily’s child therapist at the time. They discussed the reasons with Lily/Reesy that she wanted to change her name. According to Ms. Neger, Lily Reesy’s child therapist was of the view that this was not an unhealthy decision for Lily Reesy. [ 151 ] Ms Neger testified that they decided to try out the name ‘Lily’ when she went away to a summer overnight camp where no one knew her by the name ‘Reesy’. Ms Neger testified that when Lily Reesy came back from camp, she would not go back to ‘Reesy’.

Ms Neger testified that her parents and her family had a hard time switching over to Lily but it is her daughter’s choice and she has gone by her first name Lily since that time. There was no evidence that Ms Neger discussed this change with Mr. Dalfen. [ 152 ] In cross-examination, Ms. Neger acknowledged that during their relationship, she never contacted the police regarding any allegation of violence or abuse by Mr. Dalfen.

She further acknowledged that during the period of time that the parties were in marriage counseling, she did not disclose any physical abuse to the marriage counsellor either in private sessions or otherwise. However, Ms Neger testified that she did not realize the severity of the abuse until after the marriage was over. [ 153 ] Mr. Dalfen cross-examined the mother at length with respect to the findings and recommendations of Ms. Eva Casino, the first OCL clinical investigator in this matter. [ 154 ] Ms. Neger acknowledged that she did not agree with the findings or the recommendations of Ms.

Casino and believed that there were several factual inaccuracies in her report. Ms Neger further acknowledged that she filed a lengthy Notice of Dispute to the Report in 2012. She acknowledged that she would not agree to unsupervised access notwithstanding the clinical investigator’s recommendations.

She continues to believe that Lily Reesy is afraid of her father. [ 155 ] The parties’ marriage counsellor and the mother’s psychiatrist had provided a psychiatric report to the first OCL clinical investigator which, according to the OCL investigator, diagnosed Ms Neger with acute major depression, a generalized anxiety disorder and a borderline personality disorder. Ms.

Neger testified that she did not have any recollection of this report and she strongly disagreed with these diagnoses. [ 156 ] In cross-examination, the mother denied that the father was actively involved in Lily Reesy’s care prior to the mother’s admission into drug treatment, including spending overnights at her apartment to care for her and for Lily Reesy in late 2012 or early 2013 when she was very ill. She further denied that the father was actively involved in helping her get treatment and in seeking out her brother-in-law Akiva to fund her treatment in the United States.

She further denied that the father called her and spoke to her and her treatment providers on numerous occasions while she was in the United States to assist with her treatment. [ 157 ] Ms Neger also denied asking the father for help in caring for Lily Reesy during the period of 2012 and 2013 when she became ill. Although she admitted that she withdrew her earlier Motion to Change in the fall of 2012, her evidence was that it was only for financial reasons. [ 158 ] Ms Neger denied that she had permitted to the father to enter her apartment while she was in rehab to get clothing and other items for Lily Reesy.

She accused him of stealing things from the apartment and from her car without her permission. She did not agree that she agreed to use her aunt as a mediator and testified that the aunt refused to assist after Ms Neger came back from rehab because the father was so abusive. [ 159 ] In cross-examination, the mother also denied any knowledge of a private investigator that was hired by her brother-in- law to conduct surveillance on the father in the 2012 during the time that he was exercising access with in the presence of his aunt and his extended family members.

She could not recall if there was a copy of that surveillance report in her car and did not believe so. [ 160 ] The mother also acknowledged that after she obtained the first emergency order without notice, suspending the father’s access, she would not agree to a number of third-party supervisors that the father had presented to supervise his access with Lily, including a Rabbi.

She would only agree to supervised access at a supervised access center. [ 161 ] The mother further acknowledged that in October 2010 with the assistance of one of her previous lawyers, she unilaterally suspended all of the father’s access using the cancellation clause confirmation pursuant to the February 2010 order. She acknowledged that the when the father had removed Lily Reesy from the school in October of 2010 he had not kidnapped Lily Reesy. However she testified that she alleged that the father had kidnapped Lily Reesy in her emergency motion materials because he had threatened to do that in the past.

Police Constable Shawn Kinghorn, Investigation Officer Regarding the April 2014 Incident : [ 162 ] Constable Kinghorn is a Detective Constable with Toronto Police Services. He has been with Toronto Police Services for 11 years. [ 163 ] He testified that in April of 2014, he received a radio call for a domestic incident. The dispatch information received was that a female complainant called in and alleged that her ex-husband was banging on her door of her apartment building. He attended with one of his colleagues, P.C.

Jennifer Young and arrived at the mother’s home, whom he identified in the court. [ 164 ] Constable Kinghorn testified that when they arrived, the father had already left the scene. The mother alleged to him that

there had been a dispute during the access exchange the child had become upset when the father started shouting at her. The child returned to her apartment and the father started to bang on the door of the apartment. The mother then called the police at her child’s urging, according to the mother. [ 165 ] Constable Kinghorn testified that he and his colleague spoke to both the mother and the child. He observed the child to be visibly upset. The child was very jumpy and very nervous.

He testified that whenever the phone was going off, the child would jump and appeared very concerned that her father would return to the apartment after the police had left. He testified that they spent a period of time calming the child down. They also spent some time speaking with the mother to get an understanding of the history. [ 166 ] Constable Kinghorn testified that during the meeting with the mother and the child, he observed that the father had sent approximately seventeen text messages to the mother.

According to his understanding of the history and court orders and the unwanted and constant nature of the contact, the father’s behaviour could constitute criminal harassment. [ 167 ] Both he and Constable Young were in uniform and stayed at the apartment for approximately 45 minutes. He also testified that he observed the mother to very nervous. She was pacing a lot and seemed to be on edge.

They were able to calm the mother down and offer her some advice. [ 168 ] Constable Kinghorn testified that he contacted the father by phone and cautioned him regarding following court orders and that criminal harassment was a possible charge if the behaviour continues. He discussed alternate means of communication such as My Family Wizard. He felt that the father understood the caution that he had given to him and the father advised him that he would be returning to court to pursue other options. [ 169 ] In cross-examination, Constable Kinghorn did not recall speaking to Mr.

Dalfen previously or working closely with a child protection worker known as Ann Rose. He testified that he works with many different child protection workers and did not recall the name, although it was entirely possible that they had previous contact. [ 170 ] Constable Kinghorn also recalled telling Mr. Dalfen that if he continued to call the mother, it’s going to be construed as criminal harassment and at that point in the conversation, Mr. Dalfen told him to go “F..ck himself” and terminated the call.

Ms Devra Igre, Child Protection Worker Assigned to Investigate the July 24 Summer Camp Incident : [ 171 ] Ms Igre was the child protection worker at JFCS assigned to investigate the July 2014 summer camp incident. [ 172 ] Ms Igre testified that she was assigned to conduct an investigation after an intake worker received a call from a staff person at the summer camp where Lily Reesy was attending. According to the staff person at the camp, a situation had occurred at pick up time in which the child’s father had attended to pick up the child.

Due to a miscommunication in that the bus monitor and driver had not been advised that the father was picking up the child, the child was not released to her father. [ 173 ] According to Ms Igre, it was reported by camp staff that the father became increasingly agitated and the situation evolved to a point where the father began screaming, using profanities and pounding on the bus, demanding the child to be released.

The child was eventually released after the mother was contacted by telephone and confirmed that the father had permission to take the child. [ 174 ] Ms Igre testified that as part of her investigation, she interviewed collaterals, two staff persons from the summer camp, and Joanna Seidel, the child’s therapist at the time. She also interviewed the mother, the child and the father on two occasions. [ 175 ] Ms Igre stated that she interviewed the child at the mother’s home privately.

Unfortunately, despite the Court’s direction and suggestion, a voir dire was not conducted regarding the admissibility of the child’s hearsay statements to the worker. These statements were therefore not elicited during Ms Igre’s evidence nor admitted. [ 176 ] The court did hear that Lily Reesy called the worker and left a voice mail message on her direct line from the mother’s home which stated “I am scared to talk to my Dad and I don’t know why.” This statement may have been a ‘state of mind’ exception to the hearsay rule, however, when asked by Mr.

Dalfen, the worker could not comment on whether it was possible that the mother had coached the child to make that phone call to her and leave the message. She did not know where the child was when she made the phone call, how the child made the phone call and whether the mother was present when she made the phone call.

She was also not aware that in the past, another child protection worker had concerns that the child may have been coached by the mother, nor had she read the OCL report. [ 177 ] However, Ms Igre’s case notes regarding her interview with the father were admitted under the hearsay exception as an admission against interest by a party. The case notes were prepared contemporaneously by Ms Igre, in accordance with her professional duty and had not been amended or edited subsequent to recording. Further, Mr.

Dalfen did not dispute the accuracy of these statements in his cross-examination and in fact admitted to almost all of the statements. [ 178 ] Ms Igre testified that in her interview with the father, he told the worker that he had been picking up the child from the camp for years and did not understand what happened. He told his daughter to come to the front of the bus and he did not understand why the camp counsellors would not even let her move.

The father told Ms Igre, “What is this, Nazi f..king Germany?” [ 179 ] Based on Ms Igre’s evidence, the father became very angry when she told him that the agency was involved because he had exposed the child to a fight between himself and the camp staff. According to her case notes, the father stated to Ms Igre, “Why does my daughter have to remain in her seat? Why should I have to stand there and wait for my daughter? ..I am f..king pissed off because you guys are f..king pieces of shit. You guys are dirty motherf..kers. F…ck you all. You have no right to speak to my daughter.” Mr.

Dalfen continued swearing so Ms Igre terminated the call. [ 180 ] In a further interview with the father, Ms Igre testified that the father told her in a telephone call, “If I feel my daughter is threatened, I absolutely will bang on the door” and continued swearing at her and making further verbally abusive statements.

[ 181 ] Ms Igre testified that based on her interviews with the mother, the father, the child and the collaterals involved, she verified that the incident as described by the camp staff occurred. She prepared a letter stating that “the Society will be verifying that the incident did occur at the camp.

Following this investigation, the file has been closed.” Ms Igre also testified that a Family Risk assessment was completed which identified that the child was exposed to a high level of risk of conflict. [ 182 ] Ms Igre testified that the Society closed its file after this investigation because the child was engaged in therapy with a child therapist, the mother had multiple supports and the summer camp would not allow the father back onto the camp property.

The agency also referred the mother to the “Here to Help Program” which she described as a program for mothers and children who have been exposed to domestic violence. [ 183 ] In cross-examination, Ms Igre acknowledged that when she contacted the child’s therapist, Joanna Seidel, she did not identify any child protection concerns. She further acknowledged that the only children involved, other than Lily Reesy, were the two teenage counsellors on the bus. All of the other children had been picked up by their parents.

However, it was not disputed that Lily Reesy was exposed to the confrontation as were the two teenage camp counsellors on the bus. [ 184 ] Ms Igre testified that the family had been involved with the family on approximately three other time periods. She was not aware that a previous JFCS worker, Jean Chodos, had concerns that the mother was coaching the child. Ms Michelle Cukier, Child Protection Worker Assigned in May of 2015 per Justice Cohen’s Direction : [ 185 ] Ms Cukier is a family service worker with Jewish Family and Child Services.

In May of 2015, she was assigned to conduct a risk and safety assessment of the child after the agency received a referral from Justice Cohen during the custody and access proceedings regarding possible child protection concerns arising from the child’s exposure to the conflict between her parents. [ 186 ] Ms Cukier testified that on May 1, 2015, Justice Cohen had requested that the agency attend at court in relation to the parties’ custody and access matter. The mother had brought an urgent motion to restrict the father’s access.

Justice Cohen indicated that she believed that this case had all the markers of a high conflict. At this point, the court was concerned that the high conflict had crossed the line into child protection. [ 187 ] Ms Cukier testified that it was her understanding that she was investigating the child’s risk of emotional harm due to the custody and access conflict between the parents. [ 188 ] Ms Cukier testified that she commenced her investigation shortly thereafter. She interviewed the child in person and both parents.

She also interviewed numerous collaterals, including the child’s therapist at the time, Susan Murrel-Pritchard, the OCL clinical investigator, Zaria Duncan, the child’s school, Associated Hebrew at the time, including the two of the child’s teachers. She understood that the OCL investigation of custody and access sues was being put on hold as a result of the child protection investigation. [ 189 ] Ms Cukier testified that during her interviews with Lily Reesy, the child initially refused to speak to her. Lily Reesy would not disclose any child protection issues regarding either parent.

She testified that it was clear that Lily Reesy did not want to speak to her. Ms Cukier testified that she tried to speak to Lily Reesy about specific issues but the child appeared frustrated and would not talk to her. [ 190 ] Ms Cukier testified that in order for Lily Reesy to talk to her, they had to have a ‘hula hoop’ contest, which she did. However, Lily Reesy continued to refuse to speak to her about a number of issues. [ 191 ] Ms Cukier testified that the mother was very concerned for the child and very concerned that the child is being forced to “keep secrets of what happens with Dad”.

The mother was also very concerned about the father’s drug use and his choice of friends. [ 192 ] Ms Cukier testified that the father expressed serious concerns about the mother’s mental health and a number of inappropriate caregivers that the mother leaves the child with, including a number of recovering drug addicts that she has met thought her NA programs. [ 193 ] Ms Cukier could not confirm any of the concerns, although she did caution the mother about leaving Lily Reesy with inappropriate caregivers.

She also testified that the child was very hesitant in speaking to her and making any disclosures regarding either parent. [ 194 ] According to Ms Cukier, Lily Reesy seemed happy with both parents and expressed that she likes to spend time with both parents. She expressed feeling comfortable in speaking to both parents if there were problems.

Ms Cukier further observed that the child did not seem fearful of either parent and that she did not express fear of either parent. [ 195 ] Ms Cukier testified that based on her investigation, the Society found that the child protection concerns of a risk of emotional harm to the child due to the significant conflict between the parents over custody was verified. [ 196 ] However, despite the outcome, the society concluded that it would close its file because according to Ms Cukier, it was

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