Chodon v. Khan, 2023 ONCJ 138

ONTARIO COURT OF JUSTICE CITATION: Chodon v. Khan , 2023 ONCJ 138 DATE: 2023 03 27 COURT FILE No.: Brampton 45/21 BETWEEN: TENZIN CHODON Applicant — AND — USAMA KHAN Respondent Reasons for Judgment Trial held February 27, 28, March 1 and 9, 2023 Decision released March 27, 2023 Mr. A. Lebedev…………………………………………………… counsel for the Applicant Ms. B. Ikenefo and Ms. Osei-Boadi ………………………….counsel for the Respondent ______________________________________________________________________ CLAY J. BACKGROUND [ 1 ] The parties are the parents of the child Xavier Khan born […], 2017.

Pursuant to the temporary order of Justice M. Cheung made September 1, 2021, Xavier resides with the Respondent father from Sunday night to Friday morning every week and every fifth Friday of the month. Xavier resides with the Applicant mother on all other weekends from Friday after school to Sunday evening. [ 2 ] On September 1, 2021, Justice Cheung also made an order requesting the involvement of the Office of the Children’s Lawyer (“OCL”). The OCL conducted a s. 112 investigation, and the clinician Ms. J.

Hylton-Campbell delivered her report on April 6, 2022. [ 3 ] The OCL report recommended that the mother should have sole decision-making responsibility (‘DMR”) for the child, and that Xavier should primarily reside with her. The father was to have input into decision making and have the child with him on three consecutive weekends per month. There was to be a week about time sharing arrangement in the summer months. [ 4 ] The mother accepted the OCL recommendations, but the father did not.

His position was that he should have sole DMR and primary residence and that the mother should have alternate weekend parenting time. [ 5 ] This matter was then scheduled for trial pursuant to a consent order that all direct evidence of the parties and their witnesses would be submitted by way of affidavits. The OCL clinician would attend to be cross-examined by the father’s counsel on her report.

THE ISSUES

(1) Which party should have sole DMR for the child or should the parties share joint DMR?

(2) Where should the child primarily reside and what parenting time should the child have with the non-primary resident parent?

(3) What amount of table child support should be paid by the non-primary resident parent to the primary resident parent on an ongoing basis?

(4) Should the mother pay to the father retroactive child support for the period from July 4, 2020, given that the child primarily resided in the home where the father resided from that point to the time of trial?

(5) What should be the proportionate contribution of each party to the child’s s. 7 expenses?

AFFIDAVIT EVIDENCE [ 6 ] The following affidavits were made exhibits in this proceeding; • The mother’s affidavits of June 28 and July 26, 2021, and February 1, 2023 • The affidavit of the mother’s partner, Sunil Singh, dated February 1, 2023 • The affidavit of the mother’s friend, Sara Gebreslassie, dated February 1, 2023 • The affidavits of the father dated July 12, and August 3, 2021, and February 15, 2023 • The affidavits of the paternal grandmother (“PGM”), Shazia Khan, dated July 12, 2021, and February 15, 2023 • The affidavit of the paternal uncle, Huzaifa Khan, dated February 15, 2023.

APPLICANT’S CASE Mother’s evidence Relationship begins, child born and the move to Poland [ 7 ] The mother said she met the father in Toronto in March 2016. She began attending Humber College in September 2016, but then decided to join the father in Poland where he was attending medical school. The mother became pregnant, and the parties were married in an Islamic ceremony in Berlin on March 19, 2017. The mother returned to Canada and their child Xavier was born on […], 2017. [ 8 ] The mother lived with her best friend in Toronto from the child’s birth to February 18, 2018, when she went to live with the PGM.

When the father returned to Toronto for his summer break he resided with the mother and her friend. [ 9 ] The mother said that during this period from July to September 2017 the father was increasingly hostile and domineering. She said that the PGM tried to convince her to live with the paternal family the PGM, two paternal uncles and the PGF when he was in Brampton. When she refused, she said that the PGM told her to “give them the baby,” and go on with her life. [ 10 ] The mother decided to join the father in Poznan Poland and moved there with the child on February 19, 2018.

The parents and Xavier lived in an apartment. Neither parent spoke Polish. The father was very busy with his medical studies and the mother stayed home and parented the child. She said she was the primary caregiver and took care of all of the child’s needs. She denied that the father assumed any significant parenting role when he was home in the evenings or weekends. [ 11 ] The mother and the child returned to Toronto from July 21, 2018, to August 15, 2018, as her Polish visa had expired, and they stayed with the maternal grandmother in her home in West Toronto.

During this time, they visited with the paternal family in Brampton. [ 12 ] The mother and child returned to Poland from August 16, 2018, to August 2019 with the mother returning to Toronto for a visit in March 2019. With the exception of that short visit, the mother said she was fully responsible for all of the child’s needs as she was home with him all of the time. The mother said that not only was the father busy with his studies, but that he had an active social life with other students, and she believed that he cheated on her with other women.

The mother did find the father’s profile on a dating site, and she did obtain photos of him at a party. The mother became obsessed with the father’s whereabouts when the father did not come home after school and in

an act of very bad judgment, she left the young child asleep in the apartment when she went out to look for the father. [ 13 ] The mother returned to Canada from August to October 2019, but this time she stayed with the paternal family in Brampton. She said that she received constant pressure from the PGM to bring Xavier to live with her family. The mother said she was the primary caregiver for Xavier when in the paternal home. She decided to return to Poland to be with the father and was there with the child from October 4, 2019, to February 4, 2020.

Move into paternal family home and separation [ 14 ] On February 4, 2020, the mother came back to Canada and she and the child moved into the paternal family home. The father had gone to Miami Florida to take a course to improve his chances of obtaining a surgical residency in North America. He was there from February to April of 2020. [ 15 ] The mother said that during this time when she lived with the paternal family she was subjected to bullying and attacks on her character, personality, and parenting skills. She became depressed and decided that she had to leave the home. She made the decision to

leave Xavier with the paternal family on March 4, 2020. [ 16 ] By way of cross-examination, it became clear that the mother did not ensure that the 2-year-old child was left with an adult. The mother left before the PGM got home from work. She called out to a paternal uncle who did not hear her as he was studying upstairs with headphones on. The crying child was found by the PGM near the door about 2 hours later. The PGM tried to reach the mother, but she was not responsive to her until March 30.

The mother said that she knew that the child was safe in the care of the PGM as she was communicating daily with the father in Miami, and he communicated regularly with the PGM. She admitted that she avoided contacting the PGM directly until March 30 at which time she said she would be coming back for Xavier. [ 17 ] The mother said she felt depressed at the time from all of the stress of living with the paternal family. She said she did not see a physician about her stress and has never had any medical attention for mental heath issues.

She self-diagnosed herself with post-partum depression in the summer of 2017 and said that she only felt anxious or depressed as a result of her treatment at the hands of the father and his family. [ 18 ] The mother stayed with her own mother from March 4 to about April 15, 2020. She then returned to the paternal family home but stayed away overnight on some occasions. She had made plans to celebrate Canada Day with her mother and a cousin form New York City who was visiting. She took Xavier with her and stayed at her mother’s home.

During this time, she finally resolved to leave the father and move out of his parent’s home. [ 19 ] The mother went to the father’s home on July 4, 2020, with Xavier. She said in her affidavit that she tried to pack up her things and Xavier’s things, but the father would not let her leave with Xavier, and he became very upset and insisted that she sign a paper stating that the father would have custody. [ 20 ] The mother’s account was effectively refuted by the father’s affidavit prior to the motion that resulted in the September 1, 2021, order.

Under cross-examination, the mother was uncertain and somewhat evasive. She did not want to concede that she intentionally left the child with the father and his family but could not credibly maintain that she brought the child to the paternal home just to pack up and leave with him. [ 21 ] The mother insisted that she left Xavier with the paternal family under duress. She conceded on the witness stand that there was no written agreement presented on July 4, as she had stated in her affidavit, as the father did not know she intended to leave.

The only agreement the father asked her to sign was on November 28, 2020, so that the Child Tax Benefit could be transferred to the father. [ 22 ] The mother’s position was further undercut by a text on August 14, 2020, to the PGM in which she apologized to the PGM for leaving without talking to her. She said she was so grateful for everything that the PGM had done for her. She said that she left the paternal home because she was not happy and the PGF does not like her.

She said that she wanted to have the child (whom the family calls Makwharan) in her care, but both she and the father and agreed that; … it would be better if he is the care of you guys because there’s more family members in the house. We have also agreed for me to see him whenever I want to see him. If you are not okay with that I have no problem taking full responsibility of him. If you want to talk in person we can do that. I just don’t want any drama or hate from each other.

I want the best for Makwharan and if I wanted to be selfish I would get full custody but I know that he is happy there and that’s all that matters. [ 23 ] The mother said in her Application to the court in January 2021 that she had concerns about the father taking Xavier outside of Canada when he does his residency. She said that the PGM had told her that the father will do his residency in the United States. When cross-examined she admitted that she had not actually spoken to the PGM since the separation so if she was told that by her it must have been prior to July 4, 2020.

Parenting time post-separation [ 24 ] The mother said that the father reneged on his promise to make Xavier available to her whenever she wanted to see him. She said that the father was very restrictive with her time with Xavier and wanted it to be in his presence. There is some text evidence that the parties were getting along quite well in the fall of 2020, but that did not last long. [ 25 ] At this time, the mother was living with her friend and could not really accommodate overnight time. By February 2021 the mother was living with Mr. Singh, and they had a couch that folded into a bed.

Still the father took the position that he needed to supervise the mother’s time with the child. He told her he did not trust her due to what he said were undiagnosed mental health issues that had caused her to abandon her child. [ 26 ] The mother said that from the separation in July 2020 to the without prejudice agreement in March 2021 the father would only agree to visits about once a week for 2 hours at a time, and he always insisted upon being present.

The mother recalled waiting on a bench in a park for the father to show up with the child. [ 27 ] When it was clear to the mother that the father would not agree to unsupervised time, she issued the Application. It was not until the case conference in April 2021 that the parties reached a without prejudice agreement that graduated the mother’s time up to alternate weekends by late May,2021. The mother said that the father was not considering what was best for the child. She has been his primary parent until July 4, 2020.

She needed to leave the relationship, and the paternal family home, but Xavier still needed to see her frequently. The father prevented this from happening. [ 28 ] The mother said that she could still not trust the father to tell her what is happening in the child’s life. She noted that the September 1, 2021, order required that each parent inform the other if there was someone else caring for the child.

She was not told by the father that he would be going back to Poland from January to April 2022 and leaving Xavier in the care of the PGM. [ 29 ] The father covered this up by sending the mother texts, that she did not know were coming from Poland, advising her that his mother or brother were downstairs waiting for the child to be exchanged at her home. It was not until the OCL had difficulty contacting

the father that the clinician found out, and told the mother, where the father was. [ 30 ] The mother admitted that she had no concerns about the care of the child in this period, but she said that the father was breaching the court order by delegating his parenting time to the PGM for four months without telling her. She said that had she known he was not in the GTA she could have sought more time with her son. Mother’s education and employment [ 31 ] The mother had been working as a part-time personal support worker (“PSW”) prior to meeting the father and ultimately going to Poland.

In 2016 she started a 2-year course at Humber College to become a registered practical nurse. She put her studies on hold after she met the father, and they had a child together. She returned to her studies on January 5, 2021, and graduated as an RPN in December 2021. [ 32 ] The mother obtained a job as an RPN at a rehabilitation hospital operated by the University Health Network. She said that she currently works Monday to Thursdays from 7 to 7. She has 3 shifts in the four days with two weeks of nights followed by 2 weeks of days. The mother filed an email from her manager and also attached her work

schedule She said she wanted to work on Mondays to Thursdays and had asked not to be scheduled on weekends. Her manager said that her availability would be accommodated. That said, the

schedule provided did show the mother scheduled for some weekend shifts. It also showed that she turned down the weekends. The

schedule showed her working one Friday overnight to Saturday shift and that was on November 18. Mr. Singh was able to be home for the child on the Saturday morning when the mother finished work. The mother said that there was a second occasion when he did that. [ 33 ] The mother said that with the serious shortage of nurses she knows that she will be able to change shifts within a couple of weeks of asking her manager for the switch. Her plan is to request 8-hour day shifts during the week and to work every alternate weekend. She adopted the OCL recommendation that the father have three consecutive weekends.

It appears that some juggling of time may be necessary to ensure that she is not working on her weekend time with the child. [ 34 ] It is noted that the mother was still scheduled for some weekends (which she cancelled) so it is not clear if she could be scheduled exactly as she wants or whether she could just keep turning down shifts to be with her child.

It may be that the mother could trade shifts with a colleague to ensure that she is available on her parenting time, and able to work sufficient hours. [ 35 ] It appears that the mother could pick-up and drop-off the child to school if she is working night shifts (7 p.m. to 7 a.m.), but that she would require before and after school childcare if she worked day shifts (7 a.m. to 7 p.m.) The mother did not anticipate having a difficulty with arranging childcare, but it has not been arranged yet and she will not have child-care subsidy for the balance of this school year.

Mother’s plan for the child [ 36 ] The mother said she met her partner Sunil Singh in November 2020 and they moved in together in February 2021. At that time, they had a one-bedroom apartment in Toronto. Beginning in January 2022 the mother put Xavier in a Kumon class on the weekends and helped him with his homework. [ 37 ] In December 2022 Mr Singh purchased a townhome in Downsview park in Toronto. Xavier now has his own room, and he can attend a public school very close to the home. He has not been attending Kumon since the move. [ 38 ] The mother said that her parenting time with Xavier is going well.

She spends all of her weekend time with her son. In the better weather she takes him to parks and other play areas. She is often accompanied by her partner Sunil Singh or her best friend Sara Gebreslassie. [ 39 ] The mother said that more recently the father has involved her in the child’s life. She has watched his soccer games and attended with the father at his school for interviews. There was some tension in the summer of 2022 when the mother refused to consent to the father taking the child to Pakistan.

She said that DMR was not settled, and she was concerned that the father might take some time before returning, and there was nothing she could do about it. Sunil Singh [ 40 ] Mr. Singh said that the mother and the child began living with him in February 2021. He said she was so excited to be able to spend her weekends with her son and they did many activities together. He said that the mother did not work on weekends. He said that he did look after Xavier on one or two occasions. The mother had either not been scheduled for or cancelled any other weekend shifts. [ 41 ] Mr.

Singh made a point of saying that the child was his best friend. He said that Xavier had a father, and he did not want to interfere in their relationship by encouraging him to consider him as a father figure. He said that the mother cared for Xavier, and he was in a supporting role. [ 42 ] Mr. Singh said he worked as a site supervisor for a construction company. He generally works from 9 a.m. to 5 p.m. but said that he worked at sites throughout the GTA so would have to leave home much earlier.

As the proposed school for Xavier is so close to their home, he could be involved in picking-up and dropping-off the child to a before and after school program if needed, but he anticipated that the mother would obtain shifts that would allow her to do so. [ 43 ] As the mother does not drive it is her step-father who has driven her to Brampton to pick up Xavier after school on Friday afternoons. The father then picks him up from their home on Sundays at 6 p.m. [ 44 ] Mr. Singh said that he looked for a new home as Xavier did not have his own bedroom in their one-bedroom apartment but had

to sleep on a pull-out bed. Now he has his own room with his own toys. He said that the mother usually does some homework with her son on weekends. He said that the mother spends every possible minute with Xavier. She listens to him and responds to his needs. Sarah Gebreslassie [ 45 ] Ms. Gebres lassie is the mother’s childhood friend. She welcomed the mother and child into her home after Xavier’s birth and the mother and child spent time with her at other times when she was not at the paternal family home. [ 46 ] Ms. Gebreslassie is a settlement worker with the Parkdale Intercultural Association.

She helps newcomers settle in Canada and she works from 9 to 5 Monday to Friday. She also has her own internet business. She said that she spends a lot of time with the mother and her child in parks and other places in the community. She and the mother speak daily. RESPONDENT’S CASE Father’s evidence [ 47 ] The father said that he chose to go to Poland to attend medical school as he wanted the experience of living in Europe.

He said Poznan university had a good reputation and he thought if he went there, he could ultimately become a surgeon in Canada. [ 48 ] The father met the mother in Toronto during a trip home in the winter of 2016. Their relationship continued after his return to Poland and ultimately the mother agreed to come to Poland to be with him. They married in the spring of 2017 and Xavier was born on May 17, 2017. [ 49 ] The father said that when the mother came with Xavier to Poland in February 2018 that they shared the parenting responsibilities.

He said the mother was home with the child during the day, but when he came back to their apartment in the afternoon he did as much or more than the mother to care for the child. He did not consider the mother to be the child’s primary caregiver at any point. [ 50 ] The father said that the mother became quite insecure and jealous when they lived in Poland. She falsely believed that he was involved with other women.

He said that the photo she provided to the court of him holding another woman’s buttocks at a dance and his text asking another woman to come to his apartment was from a period in 2017 when they had broken up prior to the mother returning to Poland in February 2018 with the child. [ 51 ] The father maintained that the mother’s insecurity was paranoid thinking. He said in his July 12, 2021, affidavit for the motion that the mother needed to obtain a psychiatric evaluation.

He thought the mother’s mental health problems made her a “time bomb” and at some point, she will harm herself when she is caring for the child. The only example that he could give of

an act of self harm was her popping pills when in Poland. He conceded that the pills she took in front of the chid were acetaminophen. Nevertheless, the father repeatedly said that the mother was unstable and when her relationship with Mr. Singh breaks down (which he saw as inevitable) she will not be emotionally able to care for the child. [ 52 ] The father said that on one occasion the mother’s obsession with his alleged infidelity caused her to leave the 2-year-old child in the apartment in Poland in the middle of the night to try and find him as he had yet to come home.

Notwithstanding this incident and the father’s stated constant worry about the mother’s mental health the parties continued together with the mother caring for the child by herself in the days and evenings when the father was not home. [ 53 ] The father agreed that the mother returned to Toronto in the summer of 2018 and stayed with the MGM for a month or so, but he noted that the mother left Xavier with him when she chose to return to Toronto without the child for a brief period in late February 2019. [ 54 ] The father acknowledged that when the mother came back to Canada in February 2020, he then went to Miami until April 2020 for further studies to improve his chances of getting a surgical residency.

He said he was in touch with the mother and with the PGM daily. He said that the mother abandoned the child on March 4, 2020. He said that the mother had always said that she was depressed and anxious and on one occasion she had texted him to say that she was suicidal. [ 55 ] The father said that the mother chose partying with friends over caring for their child. He said that she did not contact their son from March 4 to March 30 when she finally responded to the PGM’s pleas for her to return. The father essentially said that he could not trust the mother with the child after that.

He was convinced that she had undiagnosed mental health problems that put their child at risk if she was alone with him. [ 56 ] The father returned to the paternal family home in April 2020 where he resided with the mother and the child. He recalled the mother taking Xavier with her to her mother’s home on July 1 for Canada Day with family and then said she did not return until July 4 when she showed up with Xavier and packed up her belongings. She chose to leave Xavier in his care, and she left with her friend.

He denied that he or his family ever pressured the mother to leave Xavier with them or took any steps that might make her feel that she had no choice but to do so. [ 57 ] The father said the mother knew that his family could provide better care for the child than the mother could. He denied telling the mother that she could see Xavier whenever she wanted. He said he was concerned about her mental health. He knew that the mother lived in a home with a lot of adults and that she could not care for a 3-year-old child there.

He said that he did provide opportunities for the mother to see the child, but that he could not trust her to be alone with Xavier, so he was always present. [ 58 ] The father said that there was no reason for the mother to leave. With the exception of the PGF, who was often not at the Brampton home (he spent a lot of time in Pakistan and was there during this trial) the rest of the family was very supportive of the mother. The mother’s allegations otherwise were very hurtful to him and to the PGM. The PGM had a good relationship with the mother until she left.

Outside of the one text on August 14, 2022, the mother never showed appreciation for that.

[ 59 ] The father said the mother’s actions in March and July 2020 demonstrated that she had no interest in caring for the child but was only interested in pursuing her own happiness. He admitted that in the period July to November 2020 he had a tracking device on her phone, and he followed her to a motel where she was staying. He also spent time with her and the child in this period. He said that they were intimate, and he thought it could lead to a reconciliation. When it did not, the father had nothing positive to say about the mother’s commitment to the child or her parenting abilities.

Father’s educational plans [ 60 ] The father completed medical school in Poznan, Poland in or about January 2020. He wants to be a surgeon and to work in the GTA. To improve his chances of obtaining one of the two annual residency placements he did some upgrading (the father said that he expected the number of residency placements to increase due to the general demand for more physicians). He went to Miami, Florida from February to April 2020 to complete additional courses.

He went back to Poland from January to April 2022 to obtain some clinical experience. [ 61 ] The father admitted that he did not tell the mother about the four-month program in Poland. He said the parties had a fixed

schedule by the terms of the September 1, 2021, order. He said that the mother obtained all of the parenting time that she was supposed to receive under the order. He said the mother knew that Xavier was well cared for by the PGM in the paternal home, and, in fact, the mother did not have any stated concerns. Finally, he said that the mother knew that he used the PGM, and sometimes his brother, to exchange the child so there were no new caregivers to tell her about.

The father did not express any regret for not telling the mother of his child that he was living and working in Poland while the PGM took care of the child more than the mother did. [ 62 ] The father said that he had always hoped to be able to get his residency in Canada. He said that he did speak to the OCL clinician about residencies in the U.K., Europe or the U.S., but he maintained that he only discussed this in a very general way such as providing statistics about the different paths foreign trained doctors could take to ultimately work in Canada.

He denied saying that he would likely do a residency outside of Canada. If that was discussed, he would have said that he would only do so if he had the child in his care. He said that he would not go outside North America and he would not consider going to the U.S. unless all options of obtaining a residency in Ontario were exhausted. [ 63 ] The father stressed that he would not leave his child to pursue his dream of a surgical residency. He also said that if he went to the U.S. he would only do so if the PGM could come with him as she could care for Xavier when he was not home as she does now.

He even said the PGM would quit her job to move to the U.S. with him if necessary. [ 64 ] The father stated that the mother could have video contact daily and that she could have the child on school holidays and during the two-month summer vacation. If that time sharing arrangement could not be ordered, or agreed upon, he would not leave the GTA.

The father did not see any inconsistency in him taking the position that the mother could not be trusted with primary care of the child because of the time bomb of her mental health issues while at the same time stating that she could care of the child for two straight months while working shifts as a nurse.

The father said that a potential move of the child to the U.S. would not interrupt the status quo of the child’s stability with the paternal family as it would just be a change in location not a change in caregivers. [ 65 ] The father said trying to get a residency in the U.S. would be more difficult than it would be to get one in Ontario. The process in Ontario is that a candidate has to advise the governing body that they are ready to write the two exams foreign trained students need to pass to be eligible for a residency. The exams are written in the period September to December each year.

If the exams are passed the candidate is eligible to be matched for a residency and that process concludes with a residency in place by March every year. [ 66 ] The father is currently studying for those exams. He will know from his marks in practice exams when he is ready to write the exams. He is not yet ready to commit to writing exams in the fall of 2023. He felt it may be more realistic to contemplate writing his exams in the fall of 2024. If not successful on those exams he said he would try again the next year.

It is only if he has failed to pass the Ontario exams after two attempts that he would consider trying to be qualified in the U.S. [ 67 ] The father said in the U.S. each state has three exams that foreign trained students have to pass. As he is not a U.S. citizen he would be only considered for a residency after all U.S. applicants are considered. He said that it is possible that he could try to get a residency in the U.S., but it would not be until at least 2025.

The father’s evidence at trial was significantly different than what the OCL clinician said his statements were to her regarding his medical residency plans. Father’s plan for the child [ 68 ] The father wants to continue the current time-sharing arrangement as set out in the temporary order. He notes that Xavier has continually lived in the paternal family home since July 4, 2020. He said the child is doing well in a loving and supportive home. [ 69 ] The father works part-time for DynaCare laboratories. He stated that he worked on Tuesdays, Wednesdays, and Thursdays from 9 p.m. to 5 a.m.

He said that he studies for his exams on Mondays and Fridays. [ 70 ] The father said that he is the primary caregiver of the child when he is at home. He is available in the morning to take Xavier to school although the PGM also takes him some days. He did not actually say this but it is noted that on Wednesday, Thursday and Friday mornings the father would get home from a night shift well before the child needs to leave for school so it may be that is when the PGM takes the child as she does not work until noon. The father is quite available to take the child on Monday and Tuesday.

The father is always available to pick the child up from school at 2:40 p.m., and it is noted that the PGM cannot do so as she is at work. [ 71 ] The father said that after he picks-up the child from school, he is responsible for him until his bedtime which is before the father has to leave for work. He said that the only time that he is not at home to care for the child is during his night shifts, but the child is asleep when he leaves and when he gets home. [ 72 ] The father said that he had just received an e-mail that Xavier has been accepted into a French immersion program.

This will involve a school change in September, but the new school is only 5 minutes away from the paternal home. (The mother said that there

was a French immersion program at the school in which she wanted to enrol the child). Father’s plan for mother’s relationship with child [ 73 ] The father sought sole DMR in his Answer and his evidence at trial was somewhat equivocal. He said that he did not think he could make joint decisions with the mother and that he had been responsible for all decisions concerning health and education since she “abandoned” the child. He also said that it had been a slow process, but over the past few months the parties had been able to speak about their child and attend events at the same time.

He said in his February 15, 2023, affidavit that he was amenable to joint parenting as he felt that ideally that was in the child’s best interests. [ 74 ] The father admitted sending a text to the mother in which he stated that he was “all fucked up… and he could be destructive.” He said the mother had manipulated him and got him frustrated in Snapchat messages until he finally lost his cool.

He said the mother knew the messages leading up to his outburst would be deleted by the App, but that she could take a screenshot if she was successful in getting him upset. [ 75 ] The father did not believe that the mother was not working overnight shifts when she had the child. He was worried that she would delegate care of the child to Mr. Singh whom he has never met and knows nothing about. Shazia Khan the paternal grandmother [ 76 ] The PGM, Ms. Khan, resides in Brampton with her three sons.

Her husband lives there as well when he is in Canada, but he is often in Pakistan or other places where he does business. [ 77 ] Ms. Khan is employed as a dental office manager. She works Monday, Wednesday and Friday from 12 p.m. to 7 p.m., Tuesdays from 12 to 6 p.m. and Saturdays from 10 – 4 p.m. She has had the same job since 2014 and she stated that she enjoyed her work. [ 78 ] The PGM said that she welcomed the mother when she came with the father and the child to stay in her home for the first time in August 2019.

As she had three sons, she was excited to have a “daughter” in the home and especially excited to have her first grandchild live with them. Ms. Khan said that she had a very good relationship with the mother prior to the separation. She felt that the mother was part of her family. [ 79 ] Ms. Khan admitted that when the parties were together, they did discuss the father completing his residency in the United States. She was so proud of her eldest child and fully supported everything he did to fulfill his dream of becoming a surgeon.

She said that after the mother left in July 2020, she did not talk to her and there was no mention of the father leaving the child in the GTA while he went to the U.S. [ 80 ] The PGM acknowledged under cross-examination that she would do anything for the father. This meant that if he needed her to quit her job and go to the U.S. to look after Xavier while the father was doing a residency, she would do that. She insisted though that after the separation a residency in the U.S. was always an option that would only be pursued if there was no possibility that the father could obtain a residency in Ontario [ 81 ] Ms.

Khan said that she was shocked when she arrived home from work on March 4, 2020, to find 2-year-old Xavier sitting just inside the door of the home with obvious signs that he had been crying for a long time. She said that her son Huzaifa was upstairs in his room and there was no one else home as the father was in Miami. [ 82 ] Ms. Khan sent numerous texts to the mother and tried calling her. She said she begged the mother to come home and care for her child. She did not receive any response from the mother until March 30 when she got a text saying that the mother would be coming back. Ms.

Khan could not understand how the mother could abandon her child. [ 83 ] In the period March 4 to July 4, 2020, Ms. Khan said the mother left her home multiple times. The father came home in April and sometimes the mother stayed with the paternal family and sometimes she stayed over at her mother’s or her friend’s home. [ 84 ] On the Canada Day weekend the mother took Xavier to her mother’s home. On July 4, 2020, she returned to the paternal home, took her belongings and left the child without saying anything to Ms. Khan.

She said she did not hear from the mother until the text of August 14 when the mother apologized to her. At this point in her evidence the PGM broke down in tears and said that she did not know why the mother left. [ 85 ] Ms. Khan was asked about the period January to April 2022 when the father left the paternal family home to go to Poland for clinical training. The PGM did not think the father had done anything wrong by not informing the mother. She said that from Mondays to Thursdays Xavier is with “us.” Huzaifa Khan [ 86 ] Huzaifa is the middle brother in the family.

He is a student at the University of Toronto. He lives in the paternal home in Brampton . He said that he loves being an uncle to Xavier and that his relationship with him has grown over the years. He said that anytime his older brother required assistance with the child he was more than willing to come to his aid. [ 87 ] Huzaifa said that the father met the child’s every need from getting him ready for school to picking him up. He said that if the father needs help with caregiving because of his work or medical studies other family members will assist. The father takes his son to soccer and swimming.

Huzaifa emphasized that Xavier is growing up in a secure family household and he was a happy child. [ 88 ] Huzaifa referred in his affidavit to the father travelling “briefly” to Poland in January 2020. He said he Facetimed with his Xavier before and after school. He said that he personally “stepped up as an uncle and assisted my mother in the pick-up and drop-off to school” As for drop off’s to the mother’ home, he said he called his brother in Poland so he could call the mother with details. Huzaifa

noted that the mother did not complain and her time with the child was not reduced. [ 89 ] Huzaifa recalled the March 4, 2020, incident and confirmed that he could not have heard the mother calling out to him as he had headphones on. He said that after that the child was distraught when she picked him up. He even claimed that the child still does not like to spend time with the mother. [ 90 ] Huzaifa said that the father picks up Xavier from school and the three brothers look after the child from then until the PGM gets home. He said that the father or one of the brothers – gives the child a snack.

The PGM comes home from work shortly after 6 or 7 depending on the day. He said that the PGM makes dinner and the whole family then eats together. [ 91 ] Huzaifa then said that the PGM spends the evening with Xavier and gets him ready for bed. He said that the father studies during the evenings and has to go to work for 9 p.m. in the middle of the week. OCL [ 92 ] The mother accepted the recommendations in the OCL report prepared by Ms. J. Hylton-Campbell dated April 6, 2022. The OCL recommended the following;

(1) The mother should be responsible for decision-making and Xavier should have his primary residence with her.

(2) If the father is in the country, he should have three consecutive weekends per month starting Friday after school to Sundays at 7 p.m. and weekly parenting time from after school on Tuesday to the start of school on Wednesday.

(3) If the father is in the country a week about access

schedule should be in place for July and August.

(4) That as there is an established relationship between Xavier and the PGM, if the father is out of the country the child should be able to spend agreed upon days with her. [ 93 ] There were additional recommendations that are not contentious. [ 94 ] The clinician began her work in November 2021. She spoke to the mother but had difficulty connecting with the father. She said that she found out that he was in Poland and so she conducted her interviews with the child at the mother’s home and at the child’s school. [ 95 ] The clinician spoke with both parents, the PGM, the MGM and Mr. Singh.

At the time of her interviews both parents sought primary residence and sole DMR for the child. The mother was amenable to joint DMR. She was also agreeable to a different summer break schedule. The father sought primary residence and an order that the mother have virtual parenting time and holiday parenting time when he had Xavier with him out of the country and weekend and holiday time if he was living in the GTA. [ 96 ] When Ms.

Hylton-Campbell interviewed the father, he told her that his plan was to become a surgeon and as there are limited opportunities for surgical residency in Canada, he will have to complete his residency in the U.S. Europe or England. She said that she was impressed by how focused the father was on his career. He spoke passionately about his path to becoming a surgeon and she was convinced that he would do whatever it took to realize his dream. [ 97 ] The clinician said she had no doubt about what the father said to her about his career path as she kept good notes.

She said the father offered up his plan as he wanted her to know that he planned to be a surgeon. She did not have to ask about how that could happen. [ 98 ] The father was very clear that the child would live with him wherever he did his residency, and the mother could have virtual access and holiday parenting time. The father specifically mentioned that he knew of another medical school graduate who has their child with them while doing an out of country residency and it works for them. [ 99 ] The father’s counsel challenged the narrative set out in the report.

She put it to the clinician that the father’s first choice was always doing what he could to get a residency in Ontario and only contemplating going to the U.S. if he had could not get one in Canada. The clinician was sure that she had accurately captured the father’s statements in her notes. She based her report on the strong possibility that the father would not be living in the GTA for the period of his residency. [ 100 ] Ms.

Hylton-Campbell was also challenged on her apparent acceptance of the mother’s narrative that she was not well treated by the paternal family and felt she had no option but to leave Xavier in their care as she would not be able to take him with her and she needed to end the relationship. The clinician did set out what the mother told her. She said that she did not come to any conclusion that there was abuse or coercive control in the paternal family-mother dynamic. [ 101 ] The clinician noted that both parents were quite young when they had a child.

The mother moved to Poland to be with the father, and she stayed with the paternal family when back in Canada. The father was entirely focused on his medical studies. In March 2020, the mother felt she had to leave but she had nowhere to go. She knew the PGM would care for the child, so she left the child with her. [ 102 ] Despite the determined efforts of the father’s counsel the clinician did not adopt the word “abandoned” to describe what occurred on March 4 or July 4.

However, she did state that the mother was negligent in not ensuring that the paternal uncle heard her say that she was leaving without the child. She stated that it was very poor judgment for the mother to leave the child at night in the apartment in Poland. She did not agree that the mother had a “pattern” of leaving and putting her child at risk, but she did say that if it ever happened again that might be an applicable term.

She said that the mother was young and isolated in Poland and that she was overwhelmed on March 4, 2020. [ 103 ] With respect to not responding to the PGM’s calls the clinician said that the mother was in touch with the father and knew the child was safe. At the time of the final separation in July, the clinician thought the mother put the child’s interest ahead of her own. She

viewed that as a strength. [ 104 ] Ms. Hylton-Campbell said that the mother had a reasonable explanation for leaving the child with the PGM/father in that she had made the difficult decision to leave the marriage, but she had no home for herself and the child. She determined that it was best for her child to remain in the stable environment in which he was living. The child was well cared for in a home with people who loved him.

The mother thought that she could visit with her child until she could get an appropriate place for herself at which time she could try and work out a time-sharing arrangement with the father. [ 105 ] Ms. Hylton-Campbell was asked why she did not require the mother to provide proof that she had no mental health issues. The clinician responded that the mother was appropriate in her interviews and observations with her.

She did speak with the mother’s family physician. [ 106 ] The father’s counsel said that as the family doctor had not seen the mother in two years that some further investigation into the mother’s mental health should have been conducted before a recommendation was made concerning her time with the child. The clinician noted that the father could not provide her with any evidence that the mother suffered from a mental illness that would impact upon her parenting ability.

The father’s counsel noted that the mother had sent quite a few texts saying she was anxious and depressed and in at least one she had stated she was suicidal. The clinician said that the mother had been the primary parent of the child from birth to at least March 2020 and that there was no evidence of a risk of harm to the child due to the mother’s mental state. [ 107 ] Ms. Hylton-Campbell conducted her investigation at a time when Xavier was being primarily parented by the PGM. The father was in Poland and the mother only had weekend time.

Prior to the separation, the clinician said that the mother was the primary caregiver. She was challenged on that by the father’s counsel as the father maintains that they shared parenting prior to the separation. Ms. Hylton-Campbell said that both parents clearly told her that the mother was primarily caring for the child while the father was completing his medical studies. [ 108 ] The clinician was asked about the mother’s relationship with Mr. Singh and the living arrangements in their apartment. She said she conducted a Zoom interview when they were at their home, and she saw the apartment.

She said the mother told her that they were trying to get a two-bedroom. She said she did not have any concerns with the fact that the child did not have a separate bedroom at that time and that he slept on a couch converted to a bed at night. (The mother and Mr. Singh did not move to their townhome until December 15, 2022, which was well after the April 6, 2022, report.) [ 109 ] The clinician said that the father was very concerned about the risks to Xavier caused by the mother living with some unknown man.

She said that, at the time of her involvement, the mother had been living with her partner for a year and no concerns had been noted. The clinician tried to reassure the father that she had done background checks and interviewed Mr. Singh, but this did not seem to allay his concerns. [ 110 ] Ms. Hylton-Campbell said she did not recommend joint DMR even thought the mother, but not the father, would have been fine with that. She said the reason was that, at that time, the parties did not have strong communication skills and they did not trust each other.

Challenge to the OCL report [ 111 ] The father disputed to the OCL report although he did not file a formal dispute as permitted by the Family Law Rules . He alleged that Ms. Hylton-Campbell did not set out the facts accurately and relied on incorrect facts and false assumptions to ground her recommendations. His counsel also noted that the report was released in April 2022 and the trial was not until late February 2023, so the report was not up to date. [ 112 ] I find that the report was done expeditiously. The clinician was retained in November 2021 and her completed report was done by April 6, 2022.

Given that there was some third-party delay, this is reasonable time frame. This matter was organized for trial after the report was released and the gap between the report and the trial is also reasonable given all the factors involved. This was not a case in which an update was sought or required. I will take into consideration post-report evidence when determining if the recommendations are supported by all of the evidence available. [ 113 ] The father’s counsel relied upon the decision of the Ontario Court of Appeal in D'Angelo v. Barrett, 2016 ONCA 605 .

In D’Angelo the children were living with the mother in the matrimonial home and the OCL recommended that their primary residence be moved to the father’s home. The trial judge chose not to rely upon the OCL recommendations. The father appealed. The appeal court held as follows on this issue. Custody and access [4] The application judge found that the best interests of the children were in remaining at the matrimonial home, where they have a stable environment. She found, further, that the respondent is a fit parent and is able to provide the children with the guidance, education, and the necessaries of life.

She rejected the appellant’s narrative that the respondent was “missing in action” and was unable to make decisions for their children. [5] The appellant argues that the application judge wrongly disregarded the report of an investigator from the Office of the Children’s Lawyer (“OCL”), who recommended that the appellant be awarded sole custody with access to the respondent. [6] We disagree. [7] The decisions of trial judges on custody and access are entitled to a high degree of deference.

An appellate court is not to overturn a custody order in the absence of a material error, a serious misapprehension of the evidence, or an error in law: Van de Perre v. Edwards , 2001 SCC 60 , [2001] 2 S.C.R. 1014. [8] It was for the application judge to determine the best interests of the children, and the report of the investigator of the OCL was

simply evidence in this regard. The application judge was under no obligation to accept the report or the recommendations of the investigator, either in whole or in part. [9] The application judge gave extensive reasons for rejecting the investigator’s recommendation, running for several pages in her decision. The application judge considered the fact that the investigator wrote her report approximately 15 months prior to the conclusion of the trial in this case. As it was not updated, it did not reflect counselling and parenting sessions that the respondent had undertaken.

Nor did it reflect the respondent’s willingness to consider joint parenting or a joint custody agreement. Further, the application judge found that the investigator was biased against the respondent. [10] There was ample evidence supporting the respondent’s parenting, including evidence from three independent counsellors and social workers. The application judge gave detailed and careful consideration to all of the evidence in reaching her decision.

Significantly, she found that the appellant “was determined to take whatever liberties he could with the truth to obtain sole custody of his daughters.” [11] The appellant has not demonstrated that the application judge made any error in this case. There is no basis for this court to interfere with her decision on custody. [ 114 ] There has never been any doubt that a trial court has the discretion to reject the recommendations set out in an OCL report. This is explicitly set out in D’Angelo.

The court of appeal deferred to the trial judge in her assessment of the report in light of all of the other available evidence, and in light of her findings with respect to the objectivity of the clinician. I will review all of the evidence which will include whether I find that the report is fair and balanced, and whether the recommendations are supported by the facts as found at the trial. THE LAW [ 115 ] The statute that is applicable to this matter is the Children’s Law Reform Act. The relevant sections with respect to parenting orders are set out below. Parenting order, application by parent 21

(1) A parent of a child may apply to a court for a parenting order respecting, (

a) decision-making responsibility with respect to the child; and (

b) parenting time with respect to the child. 2020, c. 25 , Sched. 1, s. 2. … Best interests of the child 24

(1) In making a parenting order or contact order with respect to a child, the court shall only take into account the best interests of the child in accordance with this section. 2020, c. 25 , Sched. 1, s. 6. Primary consideration

(2) In determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child's physical, emotional and psychological safety, security and well-being. 2020, c. 25 , Sched. 1, s. 6. Factors

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

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

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

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

d) the history of care of the child;

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

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

g) any plans for the child's care;

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

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

j) any family violence and its impact on, among other things, i. the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and ii. the appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate on issues affecting the child; and

k) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child. 2020, c. 25 , Sched. 1, s. 6. ANALYSIS OF THE PARENTING ISSUES [ 116 ] I will approach this matter by considering the facts of this case and the applicable law under the heading of the issues to be resolved. The first two issues are: 1. Which parent should have sole decision-making responsibility and primary residence of the child? 2.

What parenting time should the non-residential parent have? [ 117 ] Both decision-making responsibility and parenting time are parenting orders that can be made under s. 21 of the CLRA. Sub- section 24 (1) states that the court can only take into consideration the best interests of the child. Sub-section 24(2) sets out that the primary consideration is the child's physical, emotional, and psychological safety, security, and well-being. Primary consideration [ 118 ] I find that the child's physical, emotional, and psychological safety, security and well-being would be met in each of his parent’s home.

Neither of them has any significant parenting deficits and they are both very committed to their child. I find that the child needs to spend a significant amount of parenting time with the non-primary residence parent. A complete sharing of parenting time is not possible in this case due to the fact that Xavier attends school and the respective homes are some distance from each other. The best interest factors [ 119 ] I have reviewed all of the best interest factors in s. 24 (3) of the Act but will only comment on those that are directly relevant to the facts of this matter.

The need for stability [ 120 ] The father’s counsel relied heavily on the stability argument in her submissions. It is clear that the child has primarily resided in the home of the paternal family since July 4, 2020. The father has resided with his family for all of that time with the exception of the four-month period from January to April 2022 when he did clinical work in Poland.

The PGM has been a consistent presence in the child’s life and, as will be outlined below, I find that she has effectively been the primary caregiver for the child in the paternal home. [ 121 ] The paternal family has lived in the same home since well before Xavier’s birth and he has lived there continuously since he was 3 years of age. He is no doubt very comfortable and secure in that home.

Prior to that, Xavier moved with his mother to a few different homes as the young family followed the father to Poland and back and forth. [ 122 ] For what I find to be economic reasons, the mother was unable to secure an appropriate home in which to have Xavier live with her until she moved in with Mr. Singh in February 2021. I accept Ms. Hylton-Campbell’s evidence that their apartment did provide appropriate accommodation for the child.

I find that the townhouse in which they now reside in Downsview Park is an upgrade and since December 2022 Xavier has his own room in home in a residential area. [ 123 ] It may be that the father has a slight advantage in that he resides in the home that has been Xavier’s primary residence for over 2.5 years. However, the child’s need for stability is not just viewed by looking backwards to determine which parent had the primary residence.

I also need to look forward at the likely stability of each parent’s lives as far as that can be determined from the available evidence. [ 124 ] The parties had a child when the father was in second year of medical school in Poland and the mother was a part-time PSW. They were young and had no parenting experience. I find that the mother was clearly the child’s primary caregiver during the parties’ time in Poland. I do not find the father’s statement that the mother and he equally shared in all of the duties of parenting during the Poland years to be credible.

It is though consistent with all of his evidence in which he refuses to give the mother credit for any parenting ability and minimizes her involvement in the child’s life while exaggerating his own. [ 125 ] The father is very motivated to be a doctor and I have no doubt that while in Poland he worked long hours on his studies and also participated in some social activities. It appears clear that the mother was isolated and became perhaps a bit resentful. She was certainly insecure and suspicious. This led her to leave the child in the apartment in the early morning to look for the father.

This was a terrible lack of judgment. Fortunately, it appears that it only happened once. [ 126 ] The rest of the evidence led about partying by both sides and alleged infidelity is not relevant to the parenting issues. The parties were in their early twenties, not settled in life and were trying to care for a young child. When the father was in medical school it is understandable that he would form friendships with other students. When the mother returned to Toronto it was understandable that she would want to spend time with her friends. [ 127 ] Both parents relied upon the PGM when they were in the GTA.

The father and the PGM strongly encouraged the mother to move in with the paternal family even when the father was not going to be there because he was studying in Miami. This could not have been easy for the mother, but she had no other viable options, and she knew that the PGM loved the child, and that the paternal residence

would be a safe and secure home. [ 128 ] The father relied heavily on a few texts sent by the mother to try and establish that she had serous untreated mental health issues. It is certainly very concerning to receive a text from one’s spouse in which she says she is so depressed she feels suicidal. There is little doubt that on March 4, 2020, the mother felt that she had to leave the paternal family home. This is where she made her second big parenting mistake.

She decided to leave when the PGM was at work, and she did not ensure that the paternal uncle heard her say that he was responsible for the child until the PGM got home. She then compounded her error by not following up with the PGM until March 30 (though she spoke to the father in Miami regularly). [ 129 ] A constant theme of the father’s case was that the mother abandoned her son and that her alleged mental health issues meant that she could not be trusted to care for the child on her own. There was no evidence that the mother ever had a serious mental health problem.

There was only evidence that the mother felt unhappy and trapped in her relationship and somewhat overwhelmed and that she communicated that by way of text messages. [ 130 ] On March 4, 2020, the mother knew that she needed to escape, and she knew that the PGM could care for the child. It is noteworthy that the mother never left the child in the direct care of the father. She left the child in March and then July in the care of the PGM and her family. [ 131 ] I accept the OCL clinician’s view that at least in July 2020 the mother made a responsible choice.

I also find that she did not expect the paternal family to have the child indefinitely. The mother was living with some other adults in a place where she could not parent Xavier. Very little evidence was led about the MGM, but it was clear that the mother knew that she and the child could not live with her. The mother felt she had to leave the relationship and she ensured that the child was in a secure home with family who loved him. [ 132 ] The period of time between March 4, 2020, and approximately November 2020 was one where the father used the ability to see Xavier as a way for him to see the mother.

He admitted that he wanted to reconcile and have the mother come back to live with his family. The mother may have sent mixed signals as at this point, she wanted to see her son and if she had to have the father present, she tolerated that. The complexity of their relationship was reflected in two texts.

One which the father got very angry with the mother and made threats of “destroying” her and another in which the parties exchanged a poignant text about their memories of sharing their twenties together. [ 133 ] I find that the father went from using Xavier as a way to see the mother to using Xavier as means to hurt the mother. He may well have convinced himself that the mother was unstable and had mental health problems, but that was ultimately just a rationalization for his inability to move ahead to a post-parenting separation agreement.

I find that Xavier did not have the benefit of a healthy, positive relationship with his mother until at least late May 2021 when the parenting time

schedule finally moved to alternate weekends. [ 134 ] I find that that there was no reason that a parenting time

schedule could not have been arranged in the summer of 2020 and no reason why that

schedule could not have included an equal sharing of time by February 2021 when the mother had an apartment with her partner. The child did have a stable and secure relationship with the paternal family, but he could also have had a stable and secure parenting time relationship with the mother well before the temporary order of September 1, 2021. Strength of relationships [ 135 ] As noted, the evidence persuaded me that until March 4, 2020, the mother was the child’s primary caregiver. In the period March to July 2020 the mother was considering whether to leave the relationship.

I find that the PGM then stepped into the role of providing for all of the child’s needs. The mother returned to the family home when the father came back from Miami, but the relationship between the parents was not good and the PGM was the constant steady presence in the child’s life. [ 136 ] There was evidence that when the mother tried to see Xavier after the separation that the child became upset and stressed. This is to be expected when a primary caregiver effectively steps out of the child’s life for a period of time.

The relationship between mother and child was repaired some time ago, and I find that they have a healthy and loving bond. [ 137 ] The father has lived with the child for most of time since the mother joined him in Poland when the child was 9 months old. There were a couple of gaps – two months in 2020 and four months in 2022 when he was not physically present with the child, but he saw the child virtually. The father also has a healthy and loving bond with the child. [ 138 ] The other truly significant relationship that this child has is with the PGM.

The evidence was that the PGM has spent more time with the child since July 4, 2020, than either of the parents. The father’s claim for primary residence is very dependent upon his continuing to live with the PGM.

Other than a couple of weeks in the winter of 2019, when the mother left the child with the father in Poland while she made a trip to Toronto, the father has never cared for the child without the PGM being present. [ 139 ] The mother recognized the central role of the PGM in the care of Xavier as she said on August 14, 2020, that when she left in July, she felt that the child was better off with the father’s family.

The mother did express some resentment of the PGM’s parenting advice/criticisms over the years, but the concerns appear to me to be nothing more than any young mother might feel as she tried to raise her child in her mother- in-laws’ home. [ 140 ] Ms. Hylton-Campbell was convinced that the father would leave Canada to pursue a residency. She asked the father about the care of the child if this were to occur, and he said that the child would be with him.

At trial, while the father downplayed any concern of him leaving the GTA, he did say that if he did so, his mother would have to quit her job and come with him to care for Xavier while he was at work. For her part, the PGM said she would do that as she would do anything for her children. [ 141 ] The evidence of the routine in the parental family home was instructive. The father insisted that he picked up the child at 2:40 p.m. every school day and took care of all of his needs until he put the child to bed. He conceded that his mother and his two brothers could help him, but he said he did the basic parenting.

The PGM said the father picked up from school and often took the child to school.

However, she also said she was with the child when she got home from work every day. The paternal uncle Husaifa described a routine that seemed much more credible in this very traditional family home. The father was responsible for Xavier, with some help from his brothers, until the PGM came home. She then cooked dinner and the entire family ate together. The three sons would then study. He said the PGM got the child ready for bed. [ 142 ] The father’s story would have him in the prime caregiving role in the before school period and in the afternoon from 2:40 p.m. to the child’s bedtime around 7:30 or 8 p.m.

The father works nights from 9 p.m. to 5 a.m. on Tuesday, Wednesday, and Thursday. This would mean he would return home at around 5:30 a.m. and either stay up, or sleep and then wake up a couple of hours later, to get the child up and make his breakfast.

He would then take him to school, return home, and presumably get some rest before he has to be back at the school for pick-up and five straight hours of primary parenting. [ 143 ] Based upon all of the evidence, and the father’s tendency to exaggerate his parenting role as I find he did during the Poland years, I find that Huzaifa’s account of the daily routine is more credible. This is not to denigrate the father’s parenting abilities or his willingness to care for his child.

I just find that it unlikely that the father was the adult who cared for the child before school when he came off a night shift or after dinner before he was about to go on to a night shift. The father is focused on his studies. The PGM is only too willing to spend her non-working time caring for her grandson. [ 144 ] The father said that the next step in his long journey to fulfill his dream of being a doctor was to pass two critical exams. He said he is only working part-time so he can devote time to study for those exams.

I find that the paternal uncle’s evidence that the father studies in the evenings while the PGM cares for the child to be credible. He clearly supported his brother in this matter, but I find that he answered the simple question as to who cares for the child at different times in the home directly and honestly. [ 145 ] I find that it is likely that the father does not take the child to school on the Wednesday, Thursday, and Friday mornings when he has just finished a night shift.

I appreciate that the father has Mondays and Fridays off work, and his evidence was that he used those days to study, but he certainly has more time then to primarily care for Xavier. I also recognize that the father does not work on weekends whereas the PGM does work on Saturdays so if he had the child with him on weekends, he could be the primary caregiver in his home.

Since September 1, 2021, Xavier has been with his mother almost every weekend, but there is no reason that he could not be with his father on weekends. [ 146 ] I find that when the child is with the mother, she is his primary caregiver, and her partner Mr. Singh has a secondary role. I find that when the child is with the father the PGM does a significant part of the caregiving. This is because she is so bonded with her only grandchild, and she is free every morning to get him ready for school and every evening when she gets home from work.

The father has never contemplated an arrangement wherein he does not live with his mother while parenting Xavier. He told the OCL clinician and the court that his mother would come with him if he had to leave Canada for a residency placement. [ 147 ] The father has emphasized all of the strengths of the continuity of care if Xavier remained in the paternal family home. The main reason for this continuity is the PGM. Her role is so significant that the clinician said that if the father left the country without the child the PGM should have some independent contact with the child.

The determination of primary residence in this matter is not between the mother’s home or the father’s home, but between the mother’s home and the paternal family home headed by the PGM. Willingness to support the other parent [ 148 ] As noted above, in the year following the separation, the father was not willing to support the mother’s relationship with the child. The father insisted on minimal supervised parenting time. The mother then brought her application, which was filed in early January 2021. The father offered the mother two hours of parenting time per week in his Answer.

Even after both parties obtained counsel no agreement on any

schedule for the mother’s parenting time could be reached until the first case conference. That agreement became a without prejudice order, but it was really just a compromise by both parties to get to the motion that was argued in late August. [ 149 ] The argument of the motion resulted in both sides making exaggerated and ultimately not supportable claims against the other. The mother alleged that the paternal family coerced her into living with them, treated her badly, and refused to let her leave with her child on July 4, 2020.

I find that the evidence shows that the mother was welcomed into the paternal family by all, but the PGF. The PGF did not accept the marriage because the mother was not from Pakistan, and she was not a practicing Muslim. [ 150 ] The PGM may have been conservative or traditional in her overall beliefs, but I believed her when she said she treated the mother as the daughter she never had. When she commented on the mother’s parenting, I find that the PGM clearly had the child’s best interests in mind. I do not find that she went out of her way to criticize the mother.

The mothers account of July 4, 2020, in her initial affidavit was not supported by the trial evidence. [ 151 ] The father failed to recognize in his evidence how difficult it must have been for the mother when she went to Poland with a 9- month-old child. He would not give her credit for anything when it came to parenting and focused on her alleged mental health issues to the point where he called her a “time bomb.” He insisted that the mother would eventually have a break down and cause herself harm in the presence of the child.

He said this even though he created and/or acquiesced in a situation in which the mother clearly had care of the child every day when he was studying at medical school. The father harshly criticized the mother for her immaturity and desire to party while completely overlooking the fact that he was free do what he wanted secure in the knowledge that the mother was caring the for the child. [ 152 ] The mother was uncomfortable and uncertain in some of her evidence particularly around the areas in which she had overstated her case. She was soft spoken and had a quiet demeanor.

Her text evidence showed that she did appreciate that the PGM was a good caregiver and had helped her even if she was not able to state that to her directly. She showed a willingness to co-operate with the terms of any parenting arrangement that could be worked out. She stated to the OCL clinician that she was open to joint DMR. [ 153 ] By way of contrast the father was quite confident in his giving his evidence. There was also an inconsistency between the father’s trial evidence and statements he had made before the trial.

The father was determined at trial to downplay the possibility that he might leave Canada to pursue a residency.

[ 154 ] The father said that he did not consider going to a Canadian medical school because he wanted the opportunity to study abroad. As the father has always lived with his family and, at age 31, is still doing so, I do not believe he would have gone to Poland if he could have gone to medical school in Ontario. He said that graduates of the Poznan medical school had good success in finding placements in Ontario.

He said at trial that he only discussed with the OCL some general statistics about residency programs in Europe or the U.S., but his first choice was a residency in Ontario. [ 155 ] The OCL said that the father spoke freely and passionately about his career path. He told her that it would involve a residency outside of Canada likely in the U.S. He said that he would go anywhere to further his medical career. When she asked about Xavier, the father just assumed that his son would go with him wherever he ended up. He said that the mother could have virtual parenting time and holiday parenting time.

The OCL said the father never really discussed obtaining a residency in Ontario and continuing to live with the PGM. [ 156 ] I accept the clinician’s account of what was discussed. She was taking detailed notes. She spoke to the father when he was in Poland doing further clinical studies. He had left Xavier with the PGM without telling the mother he was doing so. I find that the father’s trial testimony was contrived to cover a glaring weak point in his trial argument. He stressed at trial that the child needed the stability and continuity of care that he provided in the family home.

He could not deny speaking to the OCL about leaving the country when she was preparing her report, so he tried to change the narrative from a stated plan to go to the U.S. or elsewhere to one of leaving Ontario only if absolutely necessary after all options in this province are exhausted. [ 157 ] I accept the conclusion of the OCL report that if the father had a chance for a residency somewhere else in the world, he would pursue it.

I recognize that it is possible that after he spoke to the OCL, he reviewed residency requirements more closely and recognized that for Europe or the U.S. he had major obstacles to overcome. [ 158 ] I commend the father for pursuing his dream. There is no doubt that if he becomes a doctor that it would be good for his son as he will be happy, fulfilled and financially secure.

Even if he does not realize his dream of being a surgeon his educational success and capacity for hard work will serve him well in a related field. [ 159 ] The father argued that the OCL incorrectly understood the facts when she made her recommendation. He postulates that if it was known that he would be staying in the family home that this would mean any change to the existing status quo would be seen as disruptive to the child.

When forced to answer what would happen if he did go to the U.S., the father clung to the argument that it would not be disruptive to the child to go with him as the child would still be living with him just in a different location. [ 160 ] The key point to this issue of the father’s mobility was his automatic assumption that the child would accompany him. He did not consider the impact on Xavier of not seeing his mother in person for months. He simply said that she could do virtual calls.

He easily offered up July and August as times that the child could live with his mother notwithstanding that he had testified that he was very worried that she would harm herself while the child was in her care. [ 161 ] The father was completely unable to provide examples of how Xavier could benefit from time with his mother. He fought for limited parenting time to the mother through a motion.

He said that the child cried every time he had to go and see his mother and only stopped doing so once the mother had “conditioned” him. [ 162 ] The father refused to even consider expanding the mother’s time with Xavier when he knew that he would be out of the country for four months. Even in his trial evidence, he did not see that he had done anything wrong by keeping this information from her.

He just said that she received her parenting time as scheduled and she had no concerns with Xavier’s care while he was away. [ 163 ] Not only did the father not consider whether his son could benefit from more time with his mother, he showed a willingnes

[…]