D.J. v. S.F ., 2017 ONCJ 879

CITATION: D.J. v. S.F ., 2017 ONCJ 879 COURT FILE No.: Toronto DFO-06-11158B2-03 DATE: 2017-12-22 ONTARIO COURT OF JUSTICE BETWEEN: D. J. Applicant — AND — S. F. Respondent Before Justice Sheilagh O’Connell Trial heard on June 13, 14, 15, 24, August 8, 9, October 21, November 21, December 12, 2016, January 9, 10, 2017, March 20, 21, 22, April 24, 2017 Reasons for Judgment released on December 22, 2017 S.

Lawrence Liquornik .................................................................................... for the Applicant Harold Niman and Meysa Maleki ............................................................... for the Respondent Catherine Bellinger……………………………………………………..............for the child O’CONNELL J. : TABLE OF CONTENTS 1. Introduction: Pre-Trial Motions Post-Trial Motions 2. Issues 3. The Mother’s Position 4. The Father’s Position 5. The Children’s Lawyer’s Position 6.

Background: 6.1 The Final Order dated December 10, 2009 6.2 Litigation Events Following the Final Order 6.3 The Mother’s Original Motion to Change, issued December 4, 2012 6.4 The Temporary Orders of Justice Cohen 6.5 The Mother’s Amended Motion to Change, issued August, 2014 6.6 Father’s Temporary Motion to Reinstate Unsupervised Access

Summary of the Relevant Evidence at Trial: The Parties Evidence Regarding their Early History 7.1 The Mother’s Evidence: a. The Father’s Boat and Safety Issues b. The Mother’s Private Investigators and Ruling c. The Child’s Medical Issues d. The Father’s Failure to Abide by Court Orders e. The Father’s Absences from the Child’s Life f. Issues that Occurred during this Trial g. The Father’s Shoulder Surgery h. The December 18, 2016: The Pillsbury Dough Incident i.

January 22, 2017: The Suspension of the Father’s Access 7.2 The Child’s Teacher and Day-Care Staff 7.3 The Mother’s Friends and Family 7.4 The Medical Evidence 7.5 The Child’s Therapist: a. The Therapist’s Evidence: Ruling b. The Therapist’s Notes and Records: Ruling c. The Voir Dire on the Child’s Out of Court Statements 7.6 Brayden Supervised Access Reports and Witnesses a. The Voir Dire on the Admissibility of the Supervised Access Notes b. Ms Dorothy Sliwinski, Service Director c. Brayden Supervisors d. Brayden’s Decision to Withdraw Services 7.7 The Father’s Evidence: a. Events following Final Order b.

The Private Investigators c. The Father’s Boat and Safety Issues d. Frequent Cancellations and Lateness e. Father’s Accommodation and Care of the Child f. Father’s Response to the Child’s Medical Issues g. The August 18, 2012 Incident on Toronto Island h. Justice Cohen’s Orders i. The Father’s Absences from the Child’s Life j. The Kraft Dinner Incident k. The Summer 2016 Bicycle Ride with Child l. December 18, 2016 Pillsbury Dough Incident m. The Father’s Shoulder Surgery During Trial

n. The Mother’s Alleged Criminal Harassment o. Flight Risk p. Father’s Claim for Sole Custody 8. D.D., Father’s Former Girlfriend 9. The Evidence of Dr. Butkowsky, the Custody and Access Assessor 10. Credibility Findings 11. Material Findings of Fact 12. The Law and Governing Principles 13. Application of the Law to the Facts in this Case: 13.1 Has there Been a Material Change in Circumstances 13.2 The Fresh Inquiry into Best Interests 13.3 The Request for the Police Enforcement Clause 13.4 The Request that I Remain Seized with this Case 14. Conclusion and Final Order 1.

Introduction : [ 1 ] The respondent mother and moving party in this trial, Ms S. F. (“the mother”), has brought an amended motion to change the custody and access provisions of the Final Order of Justice Heather Katarynych, dated December 19, 2009. [ 2 ] The child who is the subject of this litigation is H. F., born […], 2006 (“H.”). He is the only child of the parties. [ 3 ] The parties have been litigating parenting issues regarding H. since August of 2006, when he was approximately four weeks old.

He is now 11 years old. [ 4 ] The 2009 Final Order granted sole custody to the mother and specified alternating weekend, mid-week and holiday access to the father, among other provisions. [ 5 ] The mother seeks an order that the father have indefinite supervised access to the child, that the father be prohibited from removing the child from the Greater Toronto Area and that he be prevented from attending the child’s school/daycare. She also seeks an order for police enforcement if necessary, among numerous other provisions, including claims for alternative relief. [ 6 ] In his response, the father, Mr. D.

J. (“the father”) seeks a return to the Final Order of Justice Katarynych, or further liberal and unsupervised access as determined by the Court. In the alternative, should it be determined that the mother is unable or unwilling to facilitate the child’s relationship with him, the father seeks sole custody. [ 7 ] This litigation has included countless court attendances in both the Ontario Court of Justice and the Superior Court of Justice. It has involved a parenting coordinator who resigned, a custody and access assessor, and numerous other service providers.

In many respects, these court proceedings and the conflict between his parents have defined H.’s life. [ 8 ] At the commencement of this trial, the father was exercising supervised access to the child, pursuant to a Temporary Order of Justice Marion Cohen. Partway through the trial, the parties consented to move to unsupervised day visits, subject to a number of conditions. However, in November of 2016, after the father underwent surgery for a dislocated shoulder, the mother withdrew her consent to unsupervised visits.

Subsequently, the mother asserted that during an unsupervised visit, the father fed the child food that causes a potentially life threatening anaphylactic-type reaction for the child, in breach of a court order. Supervised visits were reinstated. [ 9 ] In January of 2017, the supervisor, Brayden Supervision Services, withdrew its services as a result of events that will be addressed later in these reasons. The father was not exercising any access by the conclusion of the trial while the parties canvassed alternate supervisors. [ 10 ] In this trial, I heard fifteen days of evidence.

Eighteen witnesses, including the parties, were called at trial. More than 100 exhibits were filed and thousands of pages of documents, including six volumes of the trial record, fifteen volumes of transcripts, and several document briefs and correspondence briefs. I also received submissions, both written and oral, of considerable length from the parties. [ 11 ] In addition to hearing extensive viva voce evidence, both parties prepared trial affidavits of considerable length, filed as exhibits in this trial.

[12] The trial was originally scheduled for only six days. The length of the trial was underestimated. Unfortunately, due to counsel’sschedule and the court’s schedule, it was impossible to find continuous or consecutive days to conclude the trial. A number of telephoneconferences were scheduled with counsel to find dates in which all counsel were available after the first six days were completed. Thisproved to be a difficult task and the trial continued over a period of several months.

Pre-Trial Motions: [13] The mother brought a pre-trial motion seeking an order requiring the father to post security for costs in the sum of $60,000.00before trial. She further sought costs rulings on a number of case management motions. In two separate written rulings, Justice Cohendismissed the mother’s motion for security for costs but awarded costs to the mother of $25,000.00 for various court appearancesthroughout the proceeding in which costs were specifically reserved. [14] The father also brought a pre-trial motion seeking to call Dr. Irwin Butkowsky as a witness in this trial. Dr.

Butkowskyconducted the custody and access assessment leading to the resolution of the 2009 trial in this matter. It was necessary to

schedule a pre-trial motion to argue this issue as the mother was opposed Dr. Butkowsky giving evidence in this trial. [15] I permitted the father to call Dr. Butkowsky as a witness in this trial, for reasons addressed later in this judgment. Post-trial Motions: [16] At the conclusion of the trial, the mother brought a motion to for an order to introduce fresh evidence, to amend the title ofproceedings to use initials to identify the parties and the child, and for an order that no person shall publish or make pubic anyinformation that has the effect of identifying the parties or the child, among other relief.

The father opposed this motion. I reserved myruling on this issue until the release of this judgment. [17] It is not disputed that during the course of the trial, that there were a number of people sitting in the court room observing andtaking notes. The case attracted some media attention in a national newspaper and an

article was written. The journalist did not refer tothe parties or the child and their identities were kept confidential. However, the father identified himself as being the father in the articleon the newspaper’s web-site in response to comments from the public at large, thereby also identifying the child.

The mother alsoproduced a number of social medial postings from the father’s Twitter and Facebook accounts in which he made numerous referencesidentifying himself as the father in the case, including one that read, “My problem officially made the front page of a nationalnewspaper”. [18] In order to protect the confidentiality of the child, I am granting this motion in part. The title of proceedings in this case shall beamended to use initials to identify the parties and the child.

There shall also be an order that no person shall publish or make public anyinformation that has the effect of identifying the parties or the child in these proceedings. [19] The use of initials is a minimal impairment to the openness of judicial proceedings. It should be used where psychological orother harm may occur to the parties or individuals involved. In this case, the identification of the parties by initials is entirely appropriategiven the privacy interests of both the parties and in particular the child in this matter. See B.G. v. H.M. and T.Q. in Right of B.C. 2004 BCCA 345 , 2004 B.C.J. 1235; S.C. v.

S.M. (ON SC), 37 R.F.L 6th 373 (SCJ); [20] The father also sought to bring a post-trial motion to vary the temporary order to unsupervised access pending the release of thisjudgment. I declined to hear that motion, as generally the governing temporary order is intended to remain in effect pending the finaldisposition of the issues at trial, absent a compelling change in circumstances, particularly when the issue to be determined on thetemporary motion is the main issue to be determined at trial. It was a highly contested issue, where the parties disagreed on virtuallyevery material fact.[1] 2.

Issues: [21] The main issues for me to determine are the following: 1. Has there been a material change in circumstances since the 2009 Final Order of Justice Katarynych that affects or is likely toaffect the best interests of the child? 2. If so, what custody and access order is now in the best interests of the child? 3. The Mother’s (Moving Party’

s) Position: [22] It is the mother’s position that there have been a number of material changes in circumstances that affect the child’s bestinterests which require that the father’s access be supervised indefinitely and that he be prohibited from leaving the Greater Toronto areawith the child. [23] She submits that the following material changes in circumstances have occurred since the 2009 Final Order: 1.

The child suffers from a potentially life-threatening food allergy to tartrazine or yellow food dye which the father does notaccept, leading to reckless and irresponsible care of the child, placing him at serious risk of physical harm. Based on his past and currentbehaviour, the father cannot be relied upon to abide by court orders which might otherwise ensure the child’s safety during access; 2.

After the Final Order, the father failed to provide proper sleeping accommodation for the child for overnight access, failedto properly care for the child, including returning the child unbathed, fatigued and improperly dressed and returned the child to schoolchronically late after his weekend access visits; 3. Further, the father failed to abide by the ruling of the parenting coordinator/arbitrator Dr. Barbra Fidler, and took the child

on his boat thereby placing the child at serious risk; 4. The father repeatedly breached court orders, including cost orders, child support orders, FRO default orders and access orders and this history of non-compliance demonstrates his inability to comply with court orders made in the child’s best interests; 5. The father is a flight risk and will remove the child from Canada if he is provided unsupervised access, or unless strict conditions are placed on his ability to remove the child from the province; 6.

The father is an irresponsible and unreliable parent who is unable to exercise consistent access, including choosing not to see the child at all for periods of several months on more than one occasion, causing the child emotional harm. [ 24 ] According to the mother, the father is “recalcitrant and ungovernable”. He has repeatedly breached court orders and is the source of the ongoing conflict between the parties.

She is in the “line of fire” and the child is the “collateral damage.” [ 25 ] In her opening statement at the commencement of trial, the mother acknowledged that supervised access is not a long term remedy and that it appeared that the father now accepts that the child has medical issues. She was therefore prepared to move towards unsupervised access, subject to a number of conditions, although not a return to the 2009 Final Order. [ 26 ] However, by the conclusion of the trial, the mother had changed her position.

She submitted that the father’s access to the child should continue to be supervised on an indefinite basis, subject to a number of conditions, which were set out in a draft order provided to the court. 4. The Father’s Position : [ 27 ] It is the father’s position that there have been no material change in circumstances since the 2009 Final Order and that this Order should be reinstated in a graduated and child-focussed manner. He proposes that for the first six consecutive weekends, he should have day-time access with the child before moving back to the alternating weekend access and holiday

schedule set out in the Final Order. [ 28 ] According to the father, the mother has engaged in “a relentless campaign” to marginalize, minimize and restrict the father’s relationship with his son. Over the years, she has given the child the very strong message that he needs to be protected from his father.

The father states that the mother embarked on a “scorched earth” litigation strategy designed to alienate the child and undermine his relationship with the father. [ 29 ] The father asserts that the mother’s first motion to change did not raise any serious medical issues regarding the child and was designed solely to restrict his access. However, when the father would not capitulate, the mother’s motion to change “morphed into something else”, specifically that the child has a life threatening condition brought on by ingesting tartrazine or yellow food dye.

According to the father, no matter how many times that the father stated that he would comply with doctor’s orders, the mother would not accept this. [ 30 ] It is the father’s position that although he accepts that in 2012 and 2013, H. experienced anaphylactic or anaphylactic type symptoms on a number of occasions, the medical evidence is unclear regarding whether H. has a life threatening medical condition or allergy to yellow food dye or tartrazine.

According to the father, “despite extensive testing, there is still no definitive diagnosis to explain the cause of these incidents.” Nevertheless, he asserts that he would never put his son in harm’s way and that he would take whatever steps are necessary to protect his son, including following all of the medical doctors’ directions. 5.

The Position of the Children’s Lawyer : [ 31 ] Counsel for the child submits that there ha s been a material change in circumstances since the 2009 Final Order and that this court should vary the Order of Justice Katarynych. [ 32 ] Ms Bellinger submits that since the Final Order of Justice Katarynych, the child has had medical issues and that these issues have impacted on his access to his father. There is disagreement between the parents regarding the exact nature of these issues and the extent of their impact on H.’s health.

According to Ms Bellinger the issues that continue to be alive in this trial are as follows: 1. Whether H. suffers from a dangerous medical condition; 2. Whether the father accepts that this condition exists; 3. Whether the father is going to take the necessary steps to protect the child when the child is in his care. [ 33 ] Ms Bellinger asserts that the evidence will show that H. is a delightful boy who loves both of his parents. [ 34 ] H. has very much enjoyed access time with his father and for the most part, he has had extremely positive visits.

However, there have been significant periods when access did not take place when access was available to the father and he did not exercise that access. This has been very upsetting for the child. [ 35 ] According to Ms Bellinger, H. very much loves his father and he wants to see his father. His views have not wavered in this regard.

However, certain events, including the father’s lengthy absences have left H. “a little apprehensive” about access with his father. [ 36 ] At the commencement of trial, it was Ms Bellinger’s position on behalf of H. that there should be a gradual increase in access moving to six hours of supervised access, followed by the unsupervised day access on the same basis, and then eventually moving back to the Final Order of Justice Katarynych. [ 37 ] At the conclusion of the trial, Ms Bellinger advised that the child’s position had changed somewhat. H. now expressed that he

was content with unsupervised day visits every Sundays for a period of eight to twelve hours, or to see his father by calling up to make plans together. 6. Background Facts and Litigation History : [ 38 ] The mother is 53 years old. She is trained as a lawyer and has an MBA. She describes herself as a Family Enterprise Advisor, a licensed Client Practitioner in Insights Discovery and a communication behaviour evaluator. The mother practiced civil litigation until 1994, but has broad experience in the investment, legal and business fields. For approximately ten years she worked as an investment advisor.

From 2009 to 2014 she worked for TD Bank and by the end of her tenure there she was Vice-President and Senior Manager for the Ultra High Net Worth Advisory Group of TD Wealth Advisory Services. She now has her own business providing advisory services, as described above. She lives with the child in Toronto. [ 39 ] The father is 53 years old. He is a self-employed musician, performer and music producer who has a music studio in his residence, also located in Toronto. The father obtained an undergraduate honours performance degree in music from McGill University.

In 2015, the father obtained his real estate licence and he is also employed as a real estate agent. He continues to produce and license music and do voice-over work. [ 40 ] The parties are not married and never cohabited. They were in a relationship from the summer of 2004 to the fall of 2005. They separated in the late fall of 2005. Both parties described meeting over a shared interest in sailing and described spending much of their dating relationship sailing on the father’s boat. [ 41 ] The mother learned that she was pregnant after the relationship ended and advised the father.

The father had little or no contact with the mother throughout her pregnancy. The mother stated that the pregnancy was difficult, necessitating many medical appointments. The mother described being very concerned that she was a carrier of galactosemia, which she described as a metabolic disorder that can have serious and irreversible effects for an infant. She asked the father to participate in blood tests to determine whether he was a carrier. [ 42 ] The parties have very different narratives of this time period. The father said that he cooperated in the blood testing for galactomsemia.

The mother said he was uncooperative but acknowledged that the blood testing was eventually done. The mother invited the father to participate in the pregnancy. The father wanted paternity testing before he committed as he believed that the mother had other dating partners. [ 43 ] In June of 2006, the father wrote to the mother requesting paternity testing and advising that he would like to participate in the child’s life if he is the biological father. The mother response suggested that she was very angry and upset by the request.

One lengthy and very angry email dated June 30, 2006 stated, “As you are denying paternity, I see no point in initiating discussion at this time.” Another email stated “I am dumfounded by your relentless focus on the most inconsequential aspects of this whole matter, as paternity is a fait de compli . Only buttressed by the fact that he looks like you from head to toe.” [ 44 ] On […], 2006, H. was born.

On August 23, 2006, the father commenced his application seeking a paternity test, and if the test confirmed that he was the father, then he sought joint custody in “a reasonable time sharing” arrangement and an order that the mother be prohibited from removing the child from the Greater Toronto area. [ 45 ] The mother responded by seeking sole custody and an order that the father be granted one hour of access twice weekly to be increased gradually when “the [father] has demonstrated a sincere and lasting commitment to the child.” [ 46 ] The paternity test confirmed that H. was indeed the father’s biological child and the father sought access to the child. [ 47 ] And so it began.

The parties litigated extensively for the next ten years. The court record is voluminous and is contained in more than twelve banker boxes in this court. There have been numerous conferences, motions, orders and appeals in both the Ontario Court of Justice and Superior Court of Justice.

I cannot address the entire litigation history in this decision, but I have attempted to highlight some proceedings relevant to the issues. 6.1 The Final Order of Justice Katarynych dated December 10, 2009 : [ 48 ] The Final Order that the mother seeks to vary was made on consent of the parties on the eve of the first trial in this matter, which had been scheduled for numerous days. [ 49 ] The Final Order was based on a detailed Parenting Plan recommended by Dr. Irwin Butkowsky, a lengthy custody and access assessment completed in 2009. It provides as follows: 1. The mother will have sole custody of the child. 2.

All parenting issues between the parents shall be in accordance with the Recommended Parenting Plan of Dr. Irwin Butkowsky, as amended and attached as

Schedule “A” to the Final Order and forming an integral part of the Order. 3. The Parenting Coordinator shall be Dr. Barbara Fidler, as provided for in the Parenting Plan. 4. If disputes arise with respect to paragraph 13 of the Parenting Plan (Travel with the Child) they shall be dealt with by Dr. Barbara Fidler as provided for in the Parenting Plan. [ 50 ] The Parenting Plan is approximately15 pages long. It includes the following relevant provisions regarding access, holidays, travel and other issues, following a three month transition: 1. The father shall have access on alternating weekends from Saturdays at 10:00 a.m. to Monday mornings at 10:00 a.m., and on

alternating Thursdays and Mondays at 4:00 p.m. to the following morning at 10:00 a.m.; 2. The father (and mother) shall have specified summer and Christmas school vacation periods and the parents shall alternate Thanksgiving, Halloween, Family Day, March School Break, Easter Weekend. The child will be with the father on Father’s Day and the mother on Mother’s and the child will have contact with each parent on each year on his birthday for a two to three hour period. 3.

Commencing in the summer of 2012, the child shall have one two-week uninterrupted period with each parent, or two one-week periods, also uninterrupted. 4. Commencing on the child’s third birthday, each parent shall be permitted one daily and predictable telephone or webcam call with the child at a consistent, predictable and mutually agreeable time (e.g. between 7:00 p.m. and 7:15 p.m.) on those days in which the child is in the other parent’s care. 5.

In instances in which the child is ill, defined by a temperature above 100 degrees Fahrenheit or such medical conditions that would normally prevent the child from attending school, then the child is to remain in the care of the mother and she is responsible for providing appropriate medical attention for him. If the child is with the father when he becomes ill, then he is to be returned to the mother’s home as soon as possible; 6.

The child is permitted to travel outside of Canada with either parent for the purposes of vacation, contact with extended family, or special occasions, with the consent of the other parent, such consent not to be unreasonably withheld. If a parent is travelling outside of Canada or out of town with the child, then he or she will provide a complete itinerary, including a description of travel arrangements and an address and telephone number where the child and the parent may be reached; 7.

Both parents and their extended families are permitted to attend extra-curricular activities, school concerts, plays, presentations, graduations etc., subject to both parents and their families behaving in accordance with the Parenting Plan’s Guidelines and Principles; 8. The father is to complete an appropriate child care course within one year of the implementation of the Parenting Plan and to attend for appropriate healthcare instruction by the child’s paediatrician, Dr. Hilton, in order to enhance his ability to meet the child’s healthcare needs; 9.

Both parents are to complete a similar parenting course, though not simultaneously, within one year of the implementation of the Parenting Plan in order to enhance consistency in the management of the child’s behaviour; 10.

The parents are to agree upon an independent expert in boating safety as it relates to children of the child’s age, who would be retained to inspect the father’s boat to ensure that it meets all safety requirements for the child to be present on the boat, either at the dock or during sailing, with both parents to be bound by this individual’s opinion and with any associated costs of this inspection to be share equally by the parents. [ 51 ] A separate Final Consent Order resolving the issue of child support was granted by Justice E.

Murray on December 14, 2009. [ 52 ] The one aspect of the first trial that was not resolved was the issue of costs. The trial judge rendered a comprehensive decision on costs after receiving submissions of considerable length. The mother sought costs of $287,477.89. The father claimed costs of $161,943.38. The court found that the mother achieved more litigation success and awarded costs on a partial recovery basis in the amount of $65,000 inclusive of disbursements and GST.

She also ordered that one-half of that amount was to be “enforceable as child support”. [2] [ 53 ] The father appealed this Cost Order to the Superior Court of Justice, which was dismissed with costs payable to the mother in 2011. [3] 6.2 Litigation Events following the Final Order : [ 54 ] In 2010, the parties commenced parenting coordination and arbitration with Dr. Barbra Fidler regarding a number of disputed parenting issues. In particular, the issue of the father taking the child on his sail boat was a highly contentious issue.

The mother’s travel with the child was also highly contentious. [ 55 ] In May of 2010, during arbitration, the mother brought an urgent motion in the Superior Court of Justice seeking an order prohibiting the father from taking the child on his sailboat.

The father would not agree to provide an undertaking not to go on any sailboat with the child or to remedy safety deficiencies, according to the mother. [ 56 ] It is unclear why the mother brought the motion in the Superior Court of Justice, however, that court made an order that the parties shall not take the child on any boat for one week and directed that the order be filed with the Ontario Court of Justice for a full hearing of this motion before a judge of this court. [ 57 ] The parties then returned to arbitration with Dr. Fidler. In June of 2010, Dr.

Fidler delivered an interim ruling providing that the child should not be permitted to sleep on the father’s boat or any sail boat overnight. The child is only permitted to be on the father’ sailboat if it is docked and at rest and the child is wearing a life jacket. [ 58 ] A final arbitration hearing on this issue did not occur because the father did not wish to continue paying for Dr. Fidler’s services. The father had lost confidence in Dr. Fidler. Dr.

Fidler subsequently resigned in the spring of 2011 as a result of the father’s non-payment of her fees. [ 59 ] In May of 2011, the mother brought a motion seeking to travel and other issues. The parties appeared before Justice Murray and agreed that the arbitration provisions of the Final Order of Justice Katarynych were now null and void given that the father refused to pay Dr. Fidler and she had resigned. The June 2010 interim arbitration award of Dr. Fidler continued to be in full force and effect. Justice

Murray made an order permitting the mother to travel and adjourned the boating issue. [ 60 ] In May of 2011, the father brought a motion to change the special (section 7) expenses included in the Final Consent Order regarding child support. The father also brought a motion seeking to transfer the proceedings to the Superior Court of Justice. In response, the mother brought a motion dismissing the father’s motion for failure to pay previous cost awards and because it lacked merit.

This father’s motion to change was dismissed by Justice Penny Jones with costs payable to the mother in the amount of $4,000.00. [4] [ 61 ] In June of 2011, the mother brought a further motion in the Superior Court of Justice seeking to incorporate the terms of Dr. Fidler’s interim arbitration award on the boating issue into a final order. On June 28, 2011, Justice Herman made an order incorporating the terms of the arbitration award into a final order. [ 62 ] In January of 2012, the father appealed Justice Jones’ decision and cost award. In response, the mother commenced a motion for

summary judgment seeking that these appeals be dismissed.

The father’s appeals were again dismissed with costs payable to the mother in the amount of $12, 191.29. [ 63 ] On February 2, 2012, the mother brought a motion in the Superior Court of Justice dispensing with the father’s consent to travel and to apply for the child’s passport, which was granted. [ 64 ] On April 5, 2012, the mother brought a further motion with respect to travel in the Superior Court of Justice and on consent, an order regarding travel, make-up access and passports was made. [ 65 ] Given the growing duplicity of the family law proceedings in the Ontario Court of Justice and the Superior Court of Justice, in a ruling delivered on July 15, 2014 regarding jurisdiction, Justice Cohen of this court found that “The Ontario Court of Justice is the only court having jurisdiction in this matter as the court of first instance.” [5] She further found that the Superior Court rulings were now moot, but to the extent that the rulings purported to address ongoing issues, those rulings should be treated as per incur am . [6] [ 66 ] The father also filed for bankruptcy.

The mother is a creditor given the number of outstanding costs awards owed to her. In a discharge hearing before Master Weibe in July of 2014, the mother intervened and successfully challenged the father’s discharge from bankruptcy pending a resolution of monies owed to her. She was awarded $10,000.00 in costs.

The father has not yet been discharged and bankruptcy proceedings are ongoing. [ 67 ] The mother testified during this trial that her lawyers (not the lawyers in this trial) have taken over the father’s bankruptcy and that she is opposing his discharge because she is owed well over $65,000.00 in costs. [ 68 ] The mother has also brought separate proceedings in the Ontario Superior Court of Justice against the father and the paternal grandparents seeking judgment, damages and other relief totalling $915,000.00, excluding costs and pre-judgment interest.

The mother claims fraudulent misrepresentation, and conspiracy to defeat the mother’s claims arising out of present and future judgments in her favour in matrimonial litigation. [ 69 ] The mother claims that the father and his parents, the child’s grandparents, hold property in trust for the father and that the father and his parents have arranged to employ him at his parents’ company at a nominal salary so as to divert or hide his real income that might otherwise be available for garnishment.

This law suit had not been resolved at the time of this trial. [ 70 ] In September of 2012, the mother’s counsel wrote to the father requesting the names of other suggested parenting coordinators, given that Dr. Fidler had resigned. The father did not agree and requested an updated custody and access assessment. 6.3 The Mother’s Original Motion to Change, issued December 4, 2012 : [ 71 ] Three years after the 2009 Final Order, the mother brought her first motion to change the custody and access provisions. In the original motion to change, the mother sought to change the access

schedule for H., who was then 6 years old, because she was “extremely concerned about H.’s safety and well-being while under his father’s care.” [ 72 ] Specifically, the mother requested that the father’s mid-week overnight access be replaced with a mid-week dinner and that his alternate weekend access end on Sunday evening rather than return to school on Monday. [ 73 ] The mother also sought to suspend the father’s access completely “pending his cooperation in engaging, retaining (paid up in good standing) and attending with a parenting coordinator” as required by the 2009 Final Order.

Finally, she asked for a non-removal order preventing the father from leaving the Greater Toronto area with the child. [ 74 ] In the 2012 Motion to Change, the mother stated that the following circumstances caused her to continue to be extremely concerned about the child’s safety and well-being under the father’s care: a. The father did not have appropriate sleeping accommodation for the child because he rents out his home. As a result, the child sleeps in the father’s garage/coach house, various girlfriend’s homes, and his yacht club’s parking lot.

The father makes it difficult for the mother to know where the child is sleeping; b. On August 18, 2012, there was a serious medical emergency involving the child while in the father’s care. The father failed to inform the mother promptly of this emergency and only provided her with selective information, thereby breaching the Final Order. c. The mother stated that she subsequently discovered that the child was having difficulty breathing and may have experienced anaphylactic shock.

As well, the father was not present when the child was ill, failed to inform the mother for two hours and provided false information to the hospital even though the mother has sole medical decision making authority; d. The child was told by the father that they were planning a trip “for a long time” because the father wants to spend equal time with

him. The mother believed that the father was planning a trip to Mexico with the child and will not return, in light of his bankruptcies, ongoing breach of court orders, significant support arrears, attempts to liquidate assets, lack of ties to Canada, including not having a Canadian passport, and his accusations of parental alienation; e. The child is chronically late for school while under the father’s care and is often unbathed, fatigued and improperly dressed when returned to the mother’s care; f.

The father refuses to abide by the terms of the Final Order and has violated the terms of the Superior Court of Justice Order of Herman, J. by permitting the child to ride on the RCYC ferry without his direct supervision or a life jacket and has ignored the term of the order requiring that provide “hyper-vigilant supervision of the child around boats and water; g. The child is struggling with anxiety and behavioral issues, particularly in relation to spending time with his father and has told the mother that he feels unsafe with his father and that “the only way to make my life better was to be dead”.

The mother has arranged for the child to seek professional help and the father has refused to cooperate. h. The father refuses to cooperate with engaging a new parenting coordinator to address these concerns [ 75 ] After the mother brought the Motion to Change, the mother stated that she became increasingly concerned about the child’s heath.

According to the mother, since August of 2012, when the child had a serious medical incident in the father’s care, the child suffered from a number of episodes involving a sudden onset of serious gastrointestinal and anaphylactic type reactions resulting in his possible or actual collapse. [ 76 ] The mother states in her evidence that she became aware that the child was suffering from a life threatening medical condition in March of 2013.

The mother became very concerned that the child was experiencing anaphylactic or anaphylactic type reactions which the father did not accept, or about which he was dismissive and irresponsible. 6.4 The Temporary Orders of Justice Cohen, dated July 29, October 25 and December 13, 2013 [ 77 ] On July 27, 2013, the mother brought an urgent motion to court, prior to the father’s summer access with the child.

The mother sought an order suspending the father’s access or alternatively, an order prohibiting the father from exercising access to the child at his family cottage; that he not remove the child to any place where he will not be within a reasonable distance from a hospital should he require emergency treatment; that he ensure that the child have his medical fanny pack with him at all times, including two Epipens, flovent and ventolin, and that he exercise caution and vigilance in selecting the food that the child eats during access visits, “having regard to the ongoing medical investigations and the child’s recent medical events,” among numerous other orders. [ 78 ] On July 29, 2013, for oral reasons delivered at the motion, Justice Cohen made a detailed written order on a temporary without prejudice basis that included the following provisions: a.

Neither parent will remove H. to any place where he will not be within reasonable distance to a hospital should he require emergency treatment; b. The father shall not exercise access with H. at a cottage location where he will not be within a reasonable distance to a hospital; should he require emergency treatment; c. The father shall exercise caution and vigilance in selecting the food that H. investigations, the child’s recent medical events, and the as yet undetermined nature of the child’s medical condition; d.

The father shall ensure that the child has his medical fanny pack with him at all times, including Epipens (two), flovent and ventolin; e. The father shall be directly responsible for the supervision of the child during access visits. f. The father will take H. to his medical appointments scheduled for July 27, 2013 and August 18, 2013. The mother will provide the father with any preparatory instructions with respect to the appointments and the father will comply with the instructions g. Neither parent shall travel by airplane with the child pending further court order; h.

If H. becomes ill during an access visit with his father, the father will immediately notify the mother and the Final Order of Justice Kataryncych dated December 10, 2009 shall be followed. i. The balance of the mother’s motion was adjourned to September 17, 2013. [ 79 ] In July of 2013, the mother and child were permitted to travel by airplane to Vancouver for a holiday to see her sister, pursuant to a subsequent court order. On August 16, 2013, the mother brought a motion seeking an order permitting her to travel to California for a vacation commencing in August of 2013.

Justice Murray granted this request. [ 80 ] On September 17, 2013, the mother’s motion regarding the father’s access returned before Justice Cohen. At that time, the mother sought a temporary order suspending the father’s access to the child due to what she submitted were the father’s multiple breaches of Justice Cohen’s orders. [7] [ 81 ] In her affidavit evidence supporting her motion, the mother deposed that the child suffers from a life-threatening condition and that the father does not accept this. His dismissive and reckless attitude places the child at serious risk.

She further argued that based on the father’s past and current behavior, the father cannot be relied upon to abide by court orders which might ensure the child’s safety during his access and that the father is “ungovernable”. [8]

[ 82 ] The mother described the following five incidents in her evidence to support the assertion that the child has a serious medical condition: [9] a. An incident on August 18, 2012 when the child suddenly ill during an access visit with his father with “high fever, hives, and other symptoms, including “breathing difficulties.” According to the mother, the child was prescribed Benadryl as well as an Epipen must be with him at all times. b.

An incident on March 30, 2013 where the child was taken to the hospital with what the Emergency Outpatient record notes as “allergic reaction” with “Anaphylaxis” as a provisional diagnosis; c. An incident on April 6, 2013 subsequent to a food challenge with an allergist when the child became very ill with abdominal pain, severe diarrhea, vomiting and loss of vision. The Emergency outpatient record noted “possible allergic reaction” and a provisional diagnosis of “viral” and “allergy” d.

An incident on June 17, 2013, where the child became “violently ill at school consuming treats that were in his knapsack,” (gastrointestinal symptoms, no Epipen was administered; e.

An incident on July 14, 2013, where the child “became violently ill” in Vancouver after consuming vanilla soft ice cream, (gastrointestinal symptoms, no Epipen was administered. [ 83 ] A number of medical letters from various doctors were filed by the mother in support of her motion to suspend the father’s access, including letters from two allergists, the child’s paediatrician, a paediatric neurologist, and the emergency medical records referred to above. [ 84 ] Based on the affidavit evidence and medical reports filed at that time, Justice Cohen ruled the following on the temporary motion: “The burden on the respondent [mother] is to establish her claim on a balance of probabilities.

On this basis, I conclude that the child has experienced anaphylactic or anaphylactic-like reactions and is susceptible to future anaphylactic reactions. Again, I stress that it is not disputed that anaphylaxis is a life threatening condition. I also conclude that the trigger for these reactions is not clearly established, and that food containing tartrazine may be implicated. Finally, all reports indicate the child must have an Epipen on him at all times.

I conclude from the medical evidence that the respondent [mother] has established the child suffers from a recent and serious medical condition.” [10] [ 85 ] Justice Cohen further concluded the following: “Based on the medical and other evidence, I am satisfied that a material change has occurred that affects or will likely affect the best interests of the child, and that may require that the status quo be changed pending trial.” [11] [ 86 ] In further support of her motion, the mother deposed that after the Justice Cohen’s July 26, 2013, the father deliberately breached the court order by taking the child to the family cottage which was not within reasonable distance from a hospital, failed to ensure that the child had his Epipens and medical fanny pack with him at all times, including leaving the Epipens in the car while he was staying at a summer resort, failed to vigilantly supervise the child, removed the child from the GTA and failed to advise her where the child was located, and permitted the child to eat foods containing tartrazine in direct contravention of medical direction. [ 87 ] In addition, the mother stated that father breached the summer access order by withholding the child for an additional three days, and failed to advise the mother where he and the child were located during this access breach, requiring police involvement. [ 88 ] Justice Cohen found, based on the mother’s affidavit evidence, that the father had breached her previous orders regarding the cottage and summer access that he failed to follow medical direction, and that, based on the father’s own evidence, he had a dismissive attitude towards the child’s medical condition.

He believed that the mother was grossly exaggerating because she is “on a quest to destroy [the father’s] relationship with the child.

He also blamed the mother for fabricating the incidents because “she may have “Munchausen’s by Proxy.” [12] [ 89 ] Justice Cohen was also very concerned, based on the mother’s affidavit evidence, that the father deliberately contradicts the child’s understanding of what he can and cannot eat and repeatedly tells the child that he does not need the medical fanny pack, leaving the child anxious and confused. [ 90 ] She found that the father did not accept that the child has a medical condition that may be life threatening, refused to follow medical direction or court orders, and therefore placed the child at risk of physical and emotional harm.

Justice Cohen also found that supervised access would not be effective because she did not believe that the father, who is not only strong willed and independent, but demonstrably resistant to court orders, would submit to conditions of supervision.

She therefore made a temporary order suspending the father’s access, however she would consider a request from the father for supervised access. [ 91 ] On November 13, 2013, the Office of the Children’s Lawyer (“OCL”) agreed to provide a lawyer for the child to conduct an independent inquiry and to provide the court and the parties with information about the views and the preferences expressed by the child about the custody and access issues. [ 92 ] On November 14, 2013, the father brought a motion seeking to have his access reinstated on a supervised basis and for an updated custody and access assessment by Howard Hurwitz.

The father’s motion for supervised access was adjourned to December 13, 2013 and the father’s motion for the appointment of Howard Hurwitz was adjourned pending clarification of the OCL’s involvement. [ 93 ] On December 13, 2013, the father brought a motion for Christmas access, ongoing supervised access and renewed his request for a further custody and access assessment.

[ 94 ] At the same time, the mother brought a motion to travel to San Diego California with the child over the Christmas holidays. On consent the parties agreed that the mother and the child could travel to California from December 17 th to 24 th , 2013.

Justice Cohen further ordered, on a temporary without prejudice basis, that the father be granted supervised access with the child every Tuesday from 4:00 p.m. to 7:00 p.m. and every Sunday from 12 noon to 4:00 p.m. and Christmas access on Christmas Day from 12 noon to 4:00 p.m. [ 95 ] The court ordered that the father’s access shall be supervised by Brayden Supervision Services (“Brayden”), subject to numerous conditions, including the following: a.

At each access visit, the father shall produce for inspection by the supervisor the child’s fanny pack containing Ventolin, two Epipens, and an antihistamine, which will be confirmed in writing by the supervisor; b. The fanny pack containing the child’s medication will be with the child at all times during the access visit; c. In the event that the child does not have the fanny pack with the medication the access visit will not commence; d. The supervisor will list the foods consumed by the child during the visit in the supervision report; e.

The father will exercise vigilance and caution in ensuring the safety of all food consumed by the child during the access visits; f. The father will take training recommended by the child’s paediatrician in emergency treatment for the child in the event of an allergic or anaphylactic-type reaction; g. The father’s motion for an assessment by Howard Hurwitz is adjourned to the return date. [ 96 ] The father did not exercise the Christmas access ordered above for reasons addressed later in this Judgment.

On January 31, 2014, the mother brought a motion to travel with the child to Montego Bay, Jamaica from February 14 to 21, 2014, which was granted on consent of the parties. [ 97 ] It is not disputed that the father briefly commenced supervised access with Brayden but then stopped exercising all access on March 23, 2014 for a period of approximately eight months, with the exception of telephone contact, and a number of unannounced attendances at the child’s school and day care. [ 98 ] On May 16, 2014, the mother brought another motion regarding travel outside of the jurisdiction seeking to dispense with the father’s consent. [ 99 ] On July 28, 2014, the parties consented to a final order regarding travel which permitted the mother to travel with the child outside of Toronto with seven days’ notice to the father, including a detailed itinerary, but without the father’s consent or written confirmation required.

The parties also consented to an order dispensing with the need for the father to complete and sign the child’s passport application with only the mother’s information and without the need for the father’s participation. 6.5 The Mother’s Amended Motion to Change : [ 100 ] In August of 2014, the mother amended her Motion to Change. In the mother’s amended motion, the mother sought that the father’s access to the child be supervised by Brayden Supervision Services for an indefinite period of time.

In addition to the concerns set out in her December 2012 Motion to Change, the mother set out the following additional concerns, already raised in her temporary and urgent motions: a. “There is now medical evidence that the child suffers from a life threatening medical condition that requires vigilant parental care. Despite medical evidence that substantiates this, the father does not believe this and continues to places the child at serious risk of harm, including repeated breaches of court orders; b.

Since the original Motion to Change, the father has chosen not to exercise access to the child for two separate periods of time of approximately eight months each, or a total of 16 months, placing the child at risk of emotional harm.” [ 101 ] In his response to the mother’s amended motion to change, the father sought sole custody and supervised access to the mother if the court found that the mother was engaged in parental alienation. 6.6 The Father’s Temporary Motion to Reinstate Unsupervised Access : [ 102 ] On September 12, 2014, the father brought a motion to vary the temporary order for supervised access made on December 13, 2013 to reinstate unsupervised access to the child.

He further sought a temporary order to take the child sailing during access; and again an order appointing Howard Hurwitz to conduct an updated assessment. [ 103 ] The mother brought a cross-motion for an order that the father’s access to the child continued to be supervised by Brayden in accordance with the terms of the December 13, 2013 order, an order preventing the father from attending the child’s school and daycare, and an order for police enforcement if necessary. [ 104 ] The mother also opposed any order that the child be permitted on the father’s boat, unless docked and not for sleeping.

She also opposed the appointment of another assessor. [ 105 ] According to the written reasons of Justice Cohen regarding these motions, the material filed by the mother in support of her motion fills two and one-half volumes of the continuing record while the father filed three new affidavits, nine pages in total, in support of his motion for unsupervised access. [13]

[ 106 ] The mother introduced testimony from the father at his bankruptcy discharge hearing on July 17, 2014, (which she attended and opposed,) where the father stated under oath that he does not accept that the child has a life threatening condition as that has not been supported by any medical documentation. [ 107 ] Justice Cohen dismissed the father’s motions.

She found that the father had not filed any “new, coherent or relevant evidence” on the motion to vary which suggested that the father’s attitude towards the child’s medical condition had changed or that he would be compliant with directions from the child’s doctors. [ 108 ] Justice Cohen was also very concerned that the father had chosen not to exercise any supervised access for almost eight months at the time he brought his motion and found that this was an expression of his “determination to reject any order which does not accord with his wishes irrespective of the harm he may be causing to the child, and his own case, by so doing.” [14] [ 109 ] On December 16, 2014, the father brought a motion for Christmas access.

Justice Cohen granted the father Christmas access on December 25 th from 4:00 p.m. to 8:00 p.m., to be supervised by Brayden, subject to the following additional conditions: a. The child shall not be permitted to consume any food possibly containing yellow food dye (tartrazine); b. The father shall ensure that the above condition is respected by all others in attendance and shall cooperate with Brayden’s supervision; c. The child shall not be removed from the Greater Toronto Area during access. [ 110 ] For reasons addressed later in this Judgment, this access did not occur.

It is not disputed that once again, there was a further significant gap in the father’s access with the child and that the father did not exercise access to the child from December of 2014 to August of 2015, another period of approximately eight months. [ 111 ] The father resumed supervised access with Brayden in August of 2015 and supervised access continued consistently until trial. [ 112 ] The trial was delayed as both parties sought questioning of the other and were granted leave to do so.

Once questioning was complete, a number of settlement conferences were held in which the parties were unable to resolve the issues. The matter then went to the September 21, 2015 trial assignment court and trial dates of May 16 to 19, and June 13 to 17, 2016 were set. The May 2016 trial dates had to be vacated due to a trial scheduling conflict by counsel in another court and the trial proceeded on June 13, 2016. 7.

Summary of the Relevant Evidence in this Trial : The Parties’ Evidence Regarding the Early History of the Parties Relationship : [ 113 ] The mother gave very detailed and very extensive evidence about the history of the parties’ earlier relationship, her difficult pregnancy, the father’s refusal to participate in her pregnancy and the first court application brought by the father. She introduced numerous emails between the parties that she had kept from that period of time. The mother’s memory of that time was quite detailed and vivid, notwithstanding that it was over ten years ago.

The mother became at times quite emotional, angry and upset when describing this period and going through those emails. [ 114 ] The father also gave evidence about the parties’ early history. He described meeting over a shared love of sailing and that during their period of dating, they spent much of the time on his sailing boat. He described feeling increasingly uneasy in the relationship and wanting to end the relationship because he was feeling that he could not trust the mother.

He described the mother as a “chameleon”. [ 115 ] Although the mother disputes this, it is the father’s evidence that he ended the relationship and that this greatly upset the mother. The father described being shocked when the mother ‘texted’ him after the relationship was over and told him that she was pregnant. He described feeling very confused at that time and unsure about what to do going forward.

He acknowledged that he did not participate in the mother’s pregnancy, and that he was not prepared to commit to being a father until paternity testing confirmed that he was the biological father. [ 116 ] The father testified that the mother was extremely angry that he wanted a paternity test and told him on a number of occasions that he would “never have a relationship with [the child]”.

According to the father, the mother refused to cooperate in paternity testing or to permit him to have any contact with the child after his birth, which is why he brought the initial application. [ 117 ] The mother acknowledged that she was upset when the father requested paternity testing but testified that the father could have asked for the testing when they went through the galactomsemia during the early stages of her very difficult pregnancy.

She further described the father as having no interest or involvement during and after the child’s birth. [ 118 ] Although the very detailed background information provided by the parties was not entirely relevant to mother’s motion to change, it did provide some assistance in understanding the dynamic that led to the very high conflict between these parties. 7.1 The Mother’s Evidence : Events Following the 2009 Final Order : [ 119 ] The mother described many serious concerns that she had regarding the father’s parenting after the Final Order. [ 120 ] The mother testified that the father was habitually late in picking up the child and missed many visits.

A document brief containing hundreds of emails regarding access between the parties, as well as a chart of missed or late access visits was entered as an exhibit at trial.

[ 121 ] The mother also gave evidence that H. was often “unbathed”, “fatigued” and “improperly dressed” when he was returned to her care. According to the mother, the failure to bathe H. and provide him with proper clothing resulted in the child experiencing low self- esteem limited his ability to cope at school and contributed challenges regarding H.’s anger management. The mother stated that she repeatedly advised the father of these concerns. The Father’s Accommodation : [ 122 ] The mother had grave concerns about the father’s living arrangements.

It was her evidence that the child did not have a consistent place to sleep while he was under his father’s care. She testified that the father rented out his home and principle residence on “Airbnb” and as a result, H. would be sleeping at neighbour’s homes, the father’s various girlfriends’ homes, and the father’s “garage/coachhouse”.

She provided copies of rental listings that she had researched over the years regarding the father’s principle residence. [ 123 ] The mother testified that based on the internet sites that she reviewed, and the reviews filed by people online who have rented the home, the father’s house was rented out during the summers of 2011, 2012, 2013, 2014, 2015, and even the summer of 2016. [ 124 ] In addition, the mother testified that the father and H. would routinely sleep in a tent on the gravel parking lot of his yacht club or that the father would camp with H. at 10:00 p.m. on Toronto Island, which is illegal.

It was her understanding that H. was “tenting” with his father rather than sleeping in the father’s home because the father had rented out his home over the summer. It was also her evidence that the father made it routinely difficult for her to find out where H. is sleeping during his access visits with the father. [ 125 ] In cross-examination, the mother conceded that if the father occasionally camped with H. on a grassy surface at the yacht club with the club’s permission, then she would not object.

However, she continued to assert that the father was living in the tent at the yacht club over the summer and that is where H. was sleeping, based on what the father told her and her own investigation. [ 126 ] The mother acknowledged that the father did have a studio or what she described as a garage/coachhouse attached to the rear portion of the main house, where the father and H. would sleep if the father rented out his main house on occasion. However, it was her understanding that this was “uninhabitable”.

She further acknowledged making a report to the Children’s Aid Society that during the father’s access, the father and the child were sleeping in a garage attached to the house which was uninhabitable. [ 127 ] In cross-examination, the mother did not dispute that the Society investigated and had no concerns about the child’s sleeping arrangements with the father. When the father has rented out his home, the father and child slept in the separate studio in the back, complete with shower, cooking and sleeping facilities.

However, the mother continued to express her concerns that the child did not have his own space if the father rents out his room in the main house during his access visits. The Father’s Boat and Safety Issues : [ 128 ] The safety of the father’s boat was a great concern of the mother during Dr. Butkowsky’s 2009 assessment, leading to the recommendation that the parents agree upon an independent expert in boating safety to inspect the father’s boat. According to the mother, H., a toddler at the time, had a history of sleepwalking and she was very concerned about him being left on the father’s boat.

She also had concerns about the boat. [ 129 ] In the spring of 2010, the parties entered into arbitration with Dr. Fidler regarding this issue. The mother testified that she asked for a marine survey from the father to demonstrate that it was a viable and safe vessel for H. The arbitration lasted for approximately eight months. [ 130 ] The mother testified that she “gets that the father loves sailing” and that he has sailed for many years and that he wanted to introduce H. to his love of sailing, as he expressed to Dr. Butkowsky in the 2009 assessment.

She described herself as also an avid sailor. [ 131 ] However, her personal experience of the father as a boat owner when they were dating in 2005 was that he was “far from a careful boat owner.” At that time, she described his boat as not in good shape, which “fell apart under sail” and had no working radio, and no safety features for a toddler. [ 132 ] In cross-examination, the mother acknowledged that the father was an experienced sailor. She further acknowledged that the marine survey report which the father obtained to satisfy the mother’s concerns was prepared by a professional surveyor.

The report expressed no concerns about the safety of the boat. This survey was provided to Dr. Fidler. [ 133 ] The mother testified that her expert identified various issues with the father’s survey, which she also provided to Dr. Fidler. The mother acknowledged that her expert had actually never stepped foot on the father’s boat but she later stated that this was because the father refused. [ 134 ] The mother testified that the father repeatedly breached Dr. Fidler’s interim ruling regarding the father’s sailboat and sailing.

According to the mother, the father took the child on his boat in 2010 and 2011, left the child unattended at his club for hours while he went sailing on the boat and made it clear that he would not abide by Dr. Fidler’s ruling, thereby placing the child at great risk. [ 135 ] In cross-examination, when asked how she knew this, the mother testified she had hired private investigators to follow the father during his access with H.

None of their reports were introduced at trial. [ 136 ] The mother testified that even though the child is now almost 11 years old, she continues to have serious safety concerns regarding the child being on the father’s boat.

She described the father’s boat as a 30 or 40 year old “abandoned yacht” or “kick-boat” that was sitting in a boat yard scheduled for demolition at the time of purchase. [15] [ 137 ] Since 2014 and 2015, according to the mother, the father has made a number of revisions to the boat, including adding twenty feet of weight to the boat, moving the gas and water tanks and putting a piano on the boat which may affect “the integrity of the weight

of the boat”. She does not know if any of the safety features that were recommended by her marine surveyor were ever put in place. Itwas unclear how the mother knew about the various revisions made to the boat. [138] The mother was also very concerned that H. has no experience sailing and is therefore more vulnerable. She expressed seriousconcerns that if the father is driving the forty foot yacht then who is looking after H. on a sailboat that does not have proper safety linesor safety equipment.

A child with no experience sailing is more vulnerable and the father cannot sail the boat singlehandedly and lookafter a “rambunctious ten year old.” [139] The mother testified that she does want to H. to learn how to sail, but in a structured and safe environment.

She anticipates “nocooperation from the father on this issue for some period of time” so there needs to be an order in place restricting H.’s presence on thefather’s boat until she can give H. the life skills that he needs as a new sailor. [140] In cross-examination, the mother acknowledged that H. could obtain experience if he is with his father on a sailboat.

However, after going through a number of different kinds of boats and scenarios, the mother testified that she would only feel comfortable with H.on the water with his father if wearing a life jacket in a properly inflated dinghy, and possibly an introductory sail boat like a ‘laser’, andonly if H. wanted to go. She continued to express strong reservations about H. going on the father’s boat or sleeping on the father’s boat. [141] The mother further acknowledged that H. is “a pretty good swimmer”, having taking swimming lessons since he was six monthsold until 2014.

He has achieved level three or level four Red Cross designation. As well, she and H. are members of the Royal CanadianYacht Club and have been for a number of years. [142] The mother testified that she takes H. surfing in southern California on a regular basis and skiing at their ski club in Collingwoodwhere they have been members since 2010, since H. was 2.5 years old. H. has been skiing since he was 2.5 years old and surfing since hewas 6 years old with the mother. He also goes zip-lining in B.C. with the mother, and has also gone camping, and fishing with her.

Themother did acknowledge that there may be some risk in these activities but the risk is managed by “careful professionals”. [143] When asked, the mother testified that if the father had unsupervised access, she would allow him to go rock wall climbing with H.in Toronto and possibly surfing if it is in a professional instructional course for age appropriate children and located in Toronto. Shewould also be willing to allow him to go zip-lining, again as long as it is in the Toronto area. She would also permit skiing in the Torontoarea. But she would not agree to allow H. to go sailing on the father’s boat.

The mother testified that she has had H. on a boat without alife jacket but only for lunch when the boat was at dock. She would not be comfortable with the father doing the same because she isconcerned that he would leave H. alone and unattended and that he would not be within arm’s reach of him, based on the father’s pastbehaviour. [144] However, the mother also added that at this point, in any event, H., now eleven years old, has really no interest in sailing.

The Mother’s Private Investigator(s): [145] In cross-examination, when the mother was asked if she had ever had a private investigator under her employ to follow around thefather, mother’s counsel objected on the ground of litigation privilege. [146] For oral reasons provided during the course of the trial, I ruled that the work product of the private investigators, which wouldinclude any written reports, photographs, and surveillance videos, is protected by litigation privilege and should not be disclosed as themother was not intending to call the private investigators as witnesses or to rely upon this evidence. [147] However, I also ruled that that this did not preclude the mother, in cross-examination, from answering any relevant or properquestion regarding whether she employed a private investigator to follow the father, the reasons that she employed the privateinvestigator, and the time periods in question.

See Chatham-Kent Children’s Services v. R.T. 2014 ONSC 789 , [2014] O.J. No.542, 40 R.F.L. 467 (S.C.J.); Walker v. Woodstock, [2011] O.J. No. 157 (Div. Court). [148] I limited the cross-examination to those issues.

In my view, this narrow line of questioning was relevant to the issues in this trial,in particular, the level of trust between the parties and the degree of the mother’s concern about the father’s parenting, supervision andvigilance regarding the child or lack thereof. [149] When questioned, the mother acknowledged that since 2007, she has had a private investigator or investigators under her employat various times to monitor and observe the father, continuing up until approximately 2013, when the father’s access was suspended. [150] When asked why, the mother testified that prior to 2010, the investigators were hired to verify the father’s employment and assetsfor child support purposes.

However, since 2010, the investigators were hired to watch the father during his access time with the child, towatch the father’s boat, to document the times that the child would be on the boat, to ensure H.’s safety at all times, and to ensure thatthe father was adequately supervising the child and not leaving him unattended during access.

According to the mother, the privateinvestigators reported to her the father’s whereabouts with the child at all times and the numerous breaches of the court orders by thefather. [151] The mother also testified that in 2013, when she called the police to report that the father had unlawfully withheld the child forthree days beyond his allotted summer vacation time, she utilized the private investigators to go to the boat and search for the father andH. in an effort to assist the police and to pass that information on to them. [152] When asked in cross-examination whether she ever told the police that she had hired private investigators with a view tosuspending or “terminating” [16]the father’s access to his son, the mother testified that she may have said that she had hired privateinvestigators because she was going to be back in court asking for a “suspension” of access as a result of events that she found alarmingwhile the child was in the father’s care.

The Child’s Medical Issues:

[ 153 ] The mother testified during the trial that when the child orally ingests yellow food dye or tartrazine he becomes “catastrophically ill”. She further testified that “the illness has been categorized by a number of medical professionals as anaphylaxis, which is life- threatening”. [ 154 ] The mother testified that it is clear that her child has medical issues when he consumes tartrazine.

The mother described it as “a catastrophic physical response” and that “his muscles collapse, and he cannot help himself, or even administer the Epipen” She described it as “a scary physical response”. [ 155 ] The mother described witnessing her child “lose [his] vision”, “suffer uncontrollable projectile vomiting and diarrhea and lose the musculature in [his] body”. She testified that “there is also a concern that his heart will stop”. She further testified that she has administered the Epipen and she has seen the immediate response when it is given.

As a child, he is not capable of managing the situation himself and he needs an adult in his life who is going to do this for him. [ 156 ] The mother does not believe the father is capable of managing this risk, nor does she believe that the father will be vigilant or responsible in protecting the child. The mother testified that H. continues to be at risk while in his father’s care.

The mother believes quite strongly that even during this trial, H. consumed food with tartrazine (namely Pillsbury Dough cinnamon buns) while in the father’s care on December 11 th , 2016 during an unsupervised access visit. [ 157 ] It is the mother’s evidence that it was not until March 30, 2013 when it became apparent that “H. suffers from anaphylactic shock as a result of an unknown food source”.

Until the child could be tested, the father “was instructed not to feed the child any non-natural food that is yellow, green, orange, including anything with the ingredient “colour”; he was also specifically told not to feed the child food such as Kraft dinner, Lucky Charms cereal, Smarties, M & M’s, or most orange cheeses”. He was urged to make sure that H. consumed only healthy natural foods without artificial coloring or ingredients until further notice. According to the mother, the father “steadfastly refused”. [ 158 ] What follows is a

summary of the mother’s evidence of incidents involving the child’s medical condition. The August 18, 2012 Incident : [ 159 ] According to the mother, the first serious medical incident occurred on August 18, 2012, while the child was with his father on Toronto Ward Island during an unsupervised access visit.

It is the mother’s evidence that the father has only provided her with selective information about the incident and has in fact deliberately misled her and provided the hospital with false information. [ 160 ] It the mother’s understanding that “at some time after 7:15 PM on August 18 th , an emergency 911 call was made stating that H. was having difficulty breathing and may have experienced anaphylactic shock (a severe and potentially life-threatening allergic reaction)”, according to her trial affidavit. This occurred approximately ten minutes after she briefly spoke to H. for their evening telephone call.

H. was fine when she spoke to him. [ 161 ] The mother testified that she later learned that two EMS teams, fire station attendants on Ward Island and the Police Marine Unit were involved in treating H. and transporting him via speedboat and ambulance from the Island to the emergency room at the hospital. [ 162 ] The mother testified that when the father phoned her cell phone, he left a message and did not try to reach her at home. In his voicemail to her, he said that he and the child were at the doctors following up after “a bout of food poisoning”.

The mother testified that the father made no mention of the medical emergency, the 911 call or the fact that H. had been transported via speedboat and ambulance to hospital emergency. [ 163 ] The mother’s friend J.H. was a witness for the mother in this trial. She testified that the mother played the father’s voice mail for her. She corroborated the mother’s evidence that the father only advised the mother that the child was at the doctor’s and appeared to minimize this incident.

She advised the mother to speak to her lawyers about this. [ 164 ] In cross-examination, the mother acknowledged that shortly after the father’s call, the father advised her that they were at the Hospital for Sick Children, but only upon further questions from the mother when they did connect by phone. The mother arrived at the hospital shortly thereafter and subsequently removed the child and brought him home.

When she attended at the hospital, H. had no shoes or clothing and that the father and his girlfriend were both wearing hospital gowns. [ 165 ] It is the mother’s evidence that the father refused to tell her what had happened to the child or even when it happened. She testified that it has taken her “over two years” to ascertain all of the details of what had occurred.

She has attended the Toronto Police Services Marine Unit on the Toronto Island and spoke the officers involved, the Hospital for Sick Children to obtain medical records and the head office of the Toronto’s Emergency Medical Services (EMS) to obtain copies of all reports.

At the time of trial, the mother testified that she was still awaiting the reports of Toronto Fire Services. [ 166 ] However, the mother later acknowledged receiving the hospital medical records two days after the incident, according to the faxed report from the Hospital for Sick Children, dated August 20, 2012, addressed to the mother and entered as an exhibit at trial. The “SickKids Report” indicates that the child arrived at the hospital at 8:28 p.m. by land ambulance. The synopsis on the Triage Record indicates that the child “ ate hamburger at Canadian Tire this afternoon. Took dingy to Toronto Island.

Had sudden onset of nausea and vomiting and diarrhea. Continuous. EMS called. Found to be lethargic, pink and having no further emesis. No abdo pain. ” The Primary Discharge Impression” on the Emergency Record reads “ Vomiting and diarrhea. Possible food poisoning. ” [ 167 ] The mother further testified that after obtaining the medical records she discovered that the father had deliberately changed the medical records at the hospital, by changing the primary contact phone number and address to his own home address and identifying his girlfriend as the child’s mother.

She further testified that the police report from the incident states that the child was transported to the marine basis on the island by his “mother” (the father’s girlfriend) and the child’s name was provided with the father’s last name, spelled incorrectly.

[ 168 ] In cross-examination, it was pointed out that the child’s last name was correctly identified as the mother’s last name on the Hospital Emergency Record and that the notation on the record indicated that the father advised the emergency doctor that he would wait for the mother to arrive before making any medical decisions regarding the child.

However, mother did not accept this as evidence of an inadvertent error regarding the child’s address or name by police officials as she continued to assert that the father deliberately misled officials. [ 169 ] Further, the mother testified that the father had breached the Final Order. Pursuant to that order, if the child becomes ill in the father’s care, then he is to be returned to

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