2013 ONSC 7269, 2013 ONSC 7269

CITATION : A.A.-L. v. M.L., 2013 ONSC 7269 COURT FILE NO.: 04204/08 DATE: 20131122 ONTARIO SUPERIOR COURT OF JUSTICE BETWEE N: ) ) A.A.-L. ) ) ) Carol A. Allen, for the Applicant ) Applicant ) ) - and - ) ) ) M.L. ) ) ) Viola Nabrotzky, for the Respondent ) Respondent ) ) ) ) HEARD: October 28, 29, 31, November 1, 4, 5, 6, 8, 13, 14, 15, 18, 19, 20, and 21, 2013 REASONS FOR JUDGMENT Conlan J. Introduction and the Background of the Litigation The Parties and the Children [ 1 ] To say that this is a sad case would be an understatement.

To describe this litigation as protracted and acrimonious would be a gross understatement. [ 2 ] The Applicant mother, A.A.-L., and the Respondent father, M.L., were married on September 18, 2004. It was a short-lived union. They separated on November 1, 2007. [ 3 ] The mother has two children from a former relationship – a boy N., born […] 2001 (12 years old), and a girl, P., born […], 2003 (10 years old). [ 4 ] The parties had two children together – a girl, S., born […], 2005, and a girl, A., born […], 2008 (5 years old).

[ 5 ] Tragically, the young girl S. died from an illness, neuroblastoma (a childhood cancer), on October 15, 2010. She fought hard and bravely from the time of her diagnosis in February 2009. [ 6 ] Unfortunately, rather than bringing the parties together, that death only drove them further apart. [ 7 ] The boy N. has serious special needs. Exhibit 3 at trial, the report of Dr.

Mirza, psychiatrist, dated 21 December 2012, indicates that N. has the following diagnoses: sensory integration disorder, generalized anxiety disorder, obsessive-compulsive disorder, Tourette’s disorder, ADHD, a learning disorder and severe educational and social problems. He takes anti-psychotic medication. [ 8 ] The girl P. also has significant special needs. Exhibit 5 at trial, the report of Dr.

Benoit, psychiatrist, dated 24 January 2012, indicates that P. has the following diagnoses: oppositional defiant disorder, conduct disorder and a host of other grief, academic, interpersonal relationship and family conflict problems. She takes medication for ADHD. [ 9 ] Exhibit 16 at trial, the report of Dr.

Dourova, psychiatrist, dated 30 April 2013, indicates that P. has the following diagnoses: disruptive behaviour disorder, major depressive disorder, parent/child relational problems, sibling relational problems, problems with primary support group, problems with education and grief-related issues regarding the death of S. [ 10 ] Dr. Cato, the paediatrician for N. and P., was one of the clearest and most helpful witnesses at trial. It is clear from Dr. Cato’s evidence that P. is a deeply troubled girl.

The Applicant herself has reported to the doctor, on numerous occasions since 2010, significant behavioural concerns regarding P., including physical aggression towards her little sister, A., although the mother has reported that things have improved recently. The Positions of the Parties [ 11 ] In her Application issued on 26 November 2007, the mother sought sole custody of the children; child support to be paid by the father as per the Guidelines including

section 7 expenses, retroactive to the date of separation; spousal support to be paid by the father; an Order that the father maintain employment benefits coverage for the children; an Order that the father designate the Applicant and the children as beneficiaries under his RRSP and life insurance policy; and a restraining Order against the Respondent. [ 12 ] In her written opening statement at trial, the mother sought joint custody of the child A., on a week-about basis, with one parent designated by the Court as the parent responsible for decision making in the areas of education, health and activities.

There would be no child support paid by either party to the other. [ 13 ] In her examination-in-chief at trial, the mother proposed that she and the father share time with A. on a week-about

schedule with exchanges occurring on Wednesday evenings. She also suggested that the Respondent have A. every Father’s Day; the Applicant have the child every Mother’s Day; and holidays be divided between the parties. The Applicant supports the idea of the Court ordering one parent to be responsible for making decisions regarding A.’s medical and educational matters. [ 14 ] The mother is adamant that her other children, N. and P., do not pose any risk or threat to A. [ 15 ] In his Answer dated December 18, 2007, the father sought a divorce; sole custody of the child S. (now deceased) and the then unborn child, A.; child support to be paid by the mother as per the Guidelines including

section 7 expenses; an Order that the Respondent not be liable to pay child support for the children N. and P.; an Order that neither party be liable to pay spousal support to the other; an Order setting aside a marital agreement between the parties; a restraining Order against the Applicant; an Order to appoint a lawyer for the children; and an Order regarding equalization of net family properties. [ 16 ] In his written opening statement at trial, the father sought sole custody and primary residency of the child A.

Presumably, there would be access between the child and her mother. [ 17 ] In his testimony at trial, the Respondent stated that he wanted sole custody of A. He supports supervised access between A. and her mother. He supports supervised access between A. and N. and P. He supports supervised access between A. and the baby boy born to the Applicant and R.A. (the Applicant’s new partner). The Current Circumstances of the Parties [ 18 ] The mother currently lives just outside Walkerton, Ontario, with her children.

Up until September 2013, the child A. also lived there. [ 19 ] The Applicant is currently in a relationship with a man named R.A. That relationship started in March 2011. They have one child together – T. (a boy), born […], 2013. [ 20 ] R.A. also has two children of his own, with whom he has access (often at the Applicant’s home). There is a ten-year old girl and a six-year old boy. [ 21 ] The mother and R.A. plan to move in together before the end of this year.

According to the Applicant, the local Children’s Aid Society has no current concerns about that proposed cohabitation. [ 22 ] The Applicant is a stay at home mom. Although the Applicant completed post-secondary programs in personal support work and educational assistance, she has no plans to work outside of the home because of her child-care responsibilities.

She has no plans to move out of the area. [ 23 ] The mother’s current income is from irregular child support payments made by the natural father of N. and P., child tax benefits and credits and special government assistance for children with severe disabilities (N.). Exhibit 15 at trial is the Applicant’s Financial Statement sworn on 22 October 2013. It shows that the mother’s total monthly income is $2,730.00, while her total monthly expenses

are $3,440.00. [ 24 ] R.A. is currently unemployed, however, he worked fairly recently for a refinery near Oakville, Ontario. While working there seven days per week for about one month starting September 24, 2013, R.A. lived with his father near the place of employment. [ 25 ] R.A. was found guilty in the past of sexually assaulting his former female partner. He was convicted and sentenced for that crime at court in May 2011. [ 26 ] Both the Applicant and R.A. deny that R.A. is in fact guilty of the sexual assault. [ 27 ] D.V., the natural father of N. and P., has no current contact with those children.

There is an outstanding Court Order that D.V. pay child support of $500.00 monthly, however, those payments are not collected on a regular basis. [ 28 ] The father currently lives on a farm near Teeswater. He lives with his current wife, her children from a prior relationship (a 19 year old boy, a 17 year old girl and a 12 year old girl), A. (the subject of the within custody and access dispute), and a little three year old girl born from the relationship between the Respondent and his current wife. [ 29 ] The father’s current landlord is also his employer – a farmer.

The Respondent’s gross annual income in 2012 was $62,563 (he was in construction last year). This year, it is estimated to be $18,000.00, although the father says that he is now happier and has more time at home and with the children. He does not pay rent or hydro; those things are included as employment perks.

And his transportation costs are lower than what they were in 2012. [ 30 ] A.’s school has very recently changed from one in Walkerton to one in Teeswater. [ 31 ] A. still sees play therapist Jan Yordy. [ 32 ] All of the parents, the Applicant and R.A. and the Respondent and his wife, are currently involved with the Children’s Aid Society, Bruce Grey Child and Family Services, on a voluntary basis. There are Plans of Service for each household. There has never been any court proceeding with the Children’s Aid Society as a party. The Litigation History [ 33 ] This Application has been outstanding for far too long.

There have been numerous Temporary Orders made by various Justices. The parties have failed or refused to cooperate on the most private and generally non-litigious matters, including for example visitation of their dying daughter, S., in the hospital and what would become the inscription on her tombstone. [ 34 ] Speaking bluntly, the thought of a Judge having to sort out access to a dying child and what the words should be on her gravestone is depressing to say the least. [ 35 ] The following is a

summary of the Orders made in this proceeding to date, excluding trial management matters directed by Thompson J. [ 36 ] On 13 February 2008, O’Connell J. made a Temporary Order that the father pay child support for S. and A. in the amount of $578.00 monthly; that the father pay spousal support for three months at $500.00 per month; that the Respondent have supervised access to the children; that there be a custody and access assessment completed; and that the mother stop discussing with others the father’s alleged abuse of the children. [ 37 ] On 11 April 2008, Thompson J. made a Temporary Order that the father have specified access, supervised, with S. and A. [ 38 ] On 28 May 2008, Thompson J. made a Temporary Order removing the supervision requirement regarding the father’s access to the children; that the father of N. and P. be added as a party to the proceeding; and that either party may apply to the court for disclosure of the Children’s Aid Society records. [ 39 ] On 04 March 2009, Thompson J. made a Temporary Order for specified access between the parties and S. (then very ill) at the hospital including terms of supervision and communication through a Family Book; and joint custody regarding the child S. [ 40 ] On 25 March 2009, Thompson J. ordered that the divorce be severed from the other relief sought.

The divorce was granted as part of that same Order. [ 41 ] On 28 April 2009, Thompson J. made a Temporary Order confirming joint custody regarding S. and for joint custody of the child A. [ 42 ] The next day, on 29 April 2009, Thompson J. ordered that the London Custody and Access Project provide specified disclosure to both parties’ counsel with regard to the assessment report dated December 19, 2008. [ 43 ] On 26 June 2009, Thompson J. made a Temporary Order confirming joint custody of both S. and A.; and specified access between the parties and S. (still very ill) at the hospital in Toronto including terms of supervision and communication through a Family Book. [ 44 ] On 15 January 2010, Thompson J. made a Temporary Order that the father pay child support for S. and A. at $232.00 monthly, based on incomes of $32,100.00 for the Respondent and $15,000.00 (imputed) for the mother. [ 45 ] On 06 April 2010, Thompson J. was forced to again enter the fray of the parties’ relationships with their dying daughter, S.

The Court ordered that there be a thirty minute separation period between their attendances at the hospital to visit S. And the Court ordered that neither party do or say anything to denigrate the other.

[ 46 ] On 20 May 2011, Thompson J. ordered that Dr. Kathleen McDermott conduct a custody and access assessment regarding A., to be paid for by the father subject to re-allocation by the trial judge. Then the unthinkable. The Court had to give direction as to what would be on the tombstone for S. Finally, the Court ordered that there could be play therapy for the child A., but that no report from that therapy would be admissible at trial. [ 47 ] If the thought of the Court having to make an Order about what would be etched on the little girl’s gravestone does not turn the reader’s stomach, then perhaps this will.

The parties also fought later on about a flower bed around the headstone. Imagine that. [ 48 ] On 05 November 2012, I ordered disclosure of various third party records – some to both counsel and to Dr. McDermott and others, at that stage, to Dr. McDermott and the Court.

I also ordered that the parties continue to exchange financial disclosure on an ongoing basis. [ 49 ] On 04 April 2013, I ordered that various third party records be disclosed to counsel. [ 50 ] On 17 September 2013, on an ex parte basis and having reviewed motion materials filed by the father, Thompson J. made a Temporary Order that “For the time being, the child [A.] shall reside with her father, without access by her mother, until further order of this court”.

The matter was adjourned to September 20 for a “hearing on notice to the Applicant”. [ 51 ] There is no Endorsement or Order in the Trial Record or in the Endorsements file from September 20, 2013.

I am advised by counsel that Justice Thompson made a Temporary Order on 23 September 2013, however, the Endorsement and the reasons for it are sealed so as not to be reviewed by me, the trial judge. [ 52 ] Ultimately, very shortly before the commencement of the trial, Thompson J. made an “interim, interim, without prejudice” Order that the Applicant mother have access with the child A. at the Grey Bruce Supervised Access Program.

That Order was signed by the Clerk of the Court on October 29, 2013, on what was the second day of the trial. [ 53 ] Between September 12, 2013 (when the child A. was exchanged from the mother to the father) and the first supervised access visit between the Applicant and A. pursuant to the “interim, interim, without prejudice” Order described immediately above (which did not take effect until after the trial started), the mother had no access with A. [ 54 ] The first access visit between the Applicant and A. at the supervised access centre in Walkerton took place on Sunday, November 3, 2013 (between the fourth and fifth days of the trial).

Additional access between the Applicant and A., at the centre, took place later while the trial was still ongoing. [ 55 ] Due to allegations reported by A. to her father and to her therapist, which allegations were in turn reported by the therapist, Jan Yordy, to the Children’s Aid Society, the father refused to surrender the child back to the mother as scheduled on 15 September 2013. [ 56 ] That is what led to the Order of Justice Thompson made on 17 September 2013. The allegations before Thompson J. were (

i) that P. had threatened to get a knife from the kitchen and stab or kill A. and (ii) that R.A. had choked P. That allegedly occurred in the care of the mother and at her home. [ 57 ] The Children’s Aid Society’s investigation of those allegations, completed on 20 September 2013, was inconclusive. [ 58 ] This marathon trial was held in Owen Sound on October 28, 29, 31, November 1, 4, 5, 6, 8, 13, 14, 15, 18, 19, 20 and 21, 2013. There were ten witnesses for the Applicant, including the mother herself. There were ten witnesses for the Respondent, including the father himself and one expert.

There were 46 Exhibits filed. I reserved my decision. [ 59 ] There was no need for the trial to last that long. This is a one-issue case.

The Issues and Analysis A Preliminary Comment About Hearsay Evidence [ 60 ] It should be noted at the outset that, notwithstanding my repeated expressions of concern, this trial was replete with hearsay evidence, much of it being comments allegedly made by the children to various persons who testified. [ 61 ] As just one example, Timothy MacKinnon of the Children’s Aid Society testified about what N., P. and A. said to him during his investigation of the September 2013 referral from Jan Yordy. [ 62 ] Neither party tendered any of the out-of-court statements for their truth.

No voir dire was conducted with respect to any of the hearsay evidence. None of the hearsay evidence is admissible for its truth. I have not considered any of the hearsay evidence, for its truth, in deciding this case. [ 63 ] As a result, I make no findings that the alleged incidents which are the subject of the hearsay evidence actually happened. For illustrative purposes, I will give one example with regard to each parent. [ 64 ] Regarding the Respondent, around the time of the separation of the parties in November 2007, there was an allegation that the father had sexually touched N. and P.

The Children’s Aid Society investigated the matter and did not verify the abuse. At trial, there was no admissible evidence that the Respondent did what he is alleged to have done. The father, in his testimony, denied that he ever sexually assaulted or touched inappropriately either child. In these circumstances, it is no surprise that I make no finding that the father sexually assaulted either child. [ 65 ] Concerning the mother, in September 2013, there were allegations that R.A. had choked P. and that P. had threatened to stab A. with a knife.

The Children’s Aid Society investigated the matters and did not verify the complaints. At trial, there was no admissible evidence that either item happened. R.A., in his testimony, denied that he ever choked P. In these circumstances, it is no surprise that I

make no findings that R.A. choked P. or that P. threatened to stab A. with a knife. [ 66 ] These are just examples. There are numerous other allegations against each party for which there is no admissible evidence at trial in support of. [ 67 ] Family law trials have a tendency to devolve into exercises in “throw it up and see if it sticks”. There are rules of evidence. They exist for valid reasons. If a party believes that it is important to have the trier of fact consider for its truth out of court hearsay evidence, then, absent consent, it is incumbent on that party to tender that evidence in the proper way.

The Court must be satisfied on balance that the hearsay evidence is admissible – necessity and threshold reliability must be established. It is no answer to suggest that “it all goes to weight”. Some things are just not admissible for certain purposes. [ 68 ] The inherent dangers of hearsay evidence are well known. In this case, for example, to accept the “evidence” in support of the allegation that the father sexually assaulted N. and P. would be preposterous.

We have the mother testifying at trial as to what someone at the school allegedly told her in terms of something allegedly reported to the school by a neighbour. None of N., P., the neighbour or the school official testified and could be cross-examined. As another example, to accept the “evidence” in support of P. having threatened to stab A. with a knife would be very unsafe. P. did not testify. A. did not testify. The play therapist who reported the matter to the Children’s Aid Society did not testify. [ 69 ] At the end of the day, the goal of our justice system is to seek the truth.

The rules of evidence are not cast in stone as some kind of constitutional fixtures for all time. Regarding hearsay evidence, we have seen recently a movement away from reliance on the traditional common law pigeon-hole exceptions to the hearsay rule in favour of a more nuanced approach that emphasizes the twin objectives of necessity and reliability (not ultimate reliability as the matter of weight is determined by the trier of fact once admissibility is decided).

This trend as applied to the evidence of children was fueled in part by a recognition that, to some degree, our system was too formulaic. [ 70 ] There are still rules, however. And for good reason. [ 71 ] In this case, the mother’s position was very clear from the outset of the trial – none of the hearsay evidence from the children was being tendered for its truth. The position of the father was less clear initially but became more definitive during the trial.

At one point, I specifically asked counsel for the father whether the Respondent wished to have a voir dire to determine the admissibility, for its truth, of out of court statements allegedly made by the children. After consultation with her client, counsel for the Respondent answered that question in the negative. [ 72 ] So, to repeat myself, I have not considered any of the hearsay evidence, for its truth, in deciding this case. “Warring” Parents [ 73 ] If it was raining outside and you asked these parties to describe the weather, they would not agree. One would say it is pouring.

The other would say it is a steady rain. [ 74 ] I have empathy for any parent who loses a child. I respect the fact that these parties have managed to move on and continue to love and be loved by others. [ 75 ] But I am very frustrated at all of the wasted energy over the last few years. The battle over the wording on S.’s gravestone is appalling. The fight over the flowerbed around the girl’s burial plot is sickening. The twenty-two pages of e-mails between the parties trying to sort out Mother’s Day access between the Applicant and A. this year are absurd. Eventually, there was no access at all!

The parents could not agree on the details, and thus, the innocent child was the loser. [ 76 ] The bottom line is that the mother believes to be true everything, or nearly everything, bad alleged by one of the children against the father, regardless of the result of any investigation that may have been done. Yet the mother denies all of the allegations made by the children against her and those against R.A. [ 77 ] Likewise, the father believes to be true “a lot” of the bad things alleged by the children against the mother, regardless of the result of any investigation that may have been done.

Yet the father denies all of the allegations made by the children against him and, presumably, those against his current spouse. [ 78 ] Apparently, these parents live in some world separate and apart from reality. What are the chances that a child lies about everything bad alleged against one parent but always tells the absolute truth when making allegations against the other parent? Slim to none. That is the answer. Custody and Access [ 79 ] What is in the best interests of A.? That is the question. A. Dr. McDermott [ 80 ] According to the strong recommendation of Dr.

Kathleen McDermott, expert witness and psychologist who authored a 78-page report dated May 2013 pursuant to a Court Order, the answer is clear. The father ought to have sole custody of A. The mother ought to be granted alternate weekend access (not overnight) at her home but in the absence of R.A.’s children. Overnight access, in the doctor’s words, would be “too much of a stretch”. In the future, access between the mother and A. may have to be supervised.

Whatever access there is, it must be fixed and not left up to negotiation between the parents – the latter would be, using the doctor’s words, “a hornet’s nest”. [ 81 ] In her testimony at trial, Dr. McDermott stated that 10:00 a.m. until after supper on alternate Saturdays would be reasonable for

the mother’s access with A. [ 82 ] Dr. McDermott is of the opinion that it is important for A. to have a continued relationship with her mother and her siblings, N. and P. The same cannot be said regarding R.A.’s children from his previous marriage. With regard to T. (the newborn boy of the mother and R.A.), the doctor is of the view that A. would likely benefit from continued access with T. [ 83 ] Joint custody or co-parenting, in the words of the doctor at page 77 of her report marked Exhibit 40, is “doomed to continue failure”. In the opinion of Dr.

McDermott, decision-making for A. cannot be split; her residency cannot be divided. In the words of the doctor, history proves that parallel parenting will not work. [ 84 ] I pause here to note that these parties could not agree on everything from what would be etched on their deceased daughter’s tombstone, whether cream was required for A.’s rashes, whether A. needed allergy testing, what type of formula should be fed to A., what precise Mother’s Day access the Applicant should have, and a host of other matters. It is not surprising that Dr.

McDermott’s opinion on joint parenting is what it is. [ 85 ] The doctor testified that, if the Respondent has sole custody of A., the father “will give a good try” at supporting a continued relationship between the child and her mother. [ 86 ] Dr. McDermott’s report indicates that the Applicant is narcissistic and has major control issues. The mother is forceful, confrontational and manipulative. She engages in “impression management” (she tries to portray herself in a deceptively or misleadingly positive light). In her testimony at trial, the doctor indicated that the Applicant has a personality disorder.

The mother has “very deep issues” that have no “quick-fix”, even with therapy. The Applicant is extremely self-focussed. According to the expert, it is “very difficult to turn this boat around”. The situation is “not susceptible to more than superficial changes”. [ 87 ] Dr. McDermott’s report opines that the mother’s household cannot handle the serious issues presented by all of the children living there. [ 88 ] Dr. McDermott is an experienced witness. She has conducted hundreds of parenting capacity assessment reports and has testified as an expert witness numerous times in courts throughout Ontario. [ 89 ] Dr.

McDermott’s report is very thorough. It is obvious that the assessment process took a long time, was detailed, involved a review of third party records and included contacts with numerous collateral sources. [ 90 ] Although Dr. McDermott was prone to giving overly lengthy answers to questions posed to her at trial, I found her to be a credible and reliable witness. She was fair. She demonstrated an acute understanding of the subject matter. Her expertise was readily apparent. She seemed very earnest and to genuinely care about the future of young A. [ 91 ] In cross-examination, Dr.

McDermott was at times rather feisty. But she was responsive to the questions asked of her. The doctor was forceful, but I never suspected for a moment that she was in any way biased or jaded against the mother. [ 92 ] Perhaps most important, the key findings of Dr. McDermott are amply supported by the other evidence at trial.

The following are just some examples. [ 93 ] First, the mother testified that, on November 1, 2007, almost immediately after learning of P.’s allegation of having been touched sexually by the Respondent, the Applicant contacted the Children’s Aid Society, the police and several of the father’s family members to advise them of the allegation. This notwithstanding that the Applicant testified that she was completely shocked at hearing the allegation. It was totally unexpected.

Although I place no fault on the mother for being concerned and seeking advice from professionals, I cannot understand her desire to immediately notify the Respondent’s family. It appears to me that this is an illustration of the Applicant wanting to unilaterally control the dissemination of information – something that Dr. McDermott spoke about at length in the doctor’s testimony. [ 94 ] Second, the emails between the parties (Exhibit 6) show a pattern of the mother being bossy, rather rude, commanding and extremely controlling. They illustrate very clearly what Dr.

McDermott described as the mother’s “major control issues”. Whether it related to who could be around S. while she was sick, cream for A.’s rashes, formula for A., who could pick up A. from school or a myriad of other matters, the tone of the mother’s communications is much more confrontational than that regarding the father’s correspondence. [ 95 ] Third, when one examines the evidence of the professionals like Dr. Mirza, Dr. Benoit, Dr. Dourova and Dr. Cato, one is left with the inescapable impression that N. and P., especially P., are deeply troubled youngsters.

Yet the testimony of the mother, taken alone, portrays a much rosier picture. This is precisely the type of “impression management” that Dr. McDermott referenced in her evidence. Mr. Keating from Keystone Child and Youth Family Services, for instance, testified that Keystone’s chief concern has been the very strained relationship between P. and the Applicant. That surprised me when I heard it in court because the degree of that strain would never have been apparent from the evidence of the Applicant. [ 96 ] Fourth, the mother was at times quite critical of service providers during her testimony.

I give the Applicant credit for being actively engaged in the lives of her children, however, she likes to control the actions of those who presumably have the expertise. For instance, the mother criticized Keystone Child and Youth Family Services for closing its file too quickly at various stages of its involvement with the family.

Again, the Applicant seems unable to surrender her need for total control. [ 97 ] Fifth, the mother readily acknowledged that she breached the Order of O’Connell J. made on 13 February 2008 in that she, almost immediately after the Order was made, continued to discuss with family and friends the father’s alleged abuse of the children. The Applicant must control the information that others receive, even if that need for control means that a Court Order is disobeyed. [ 98 ] Sixth, it is clear to me that the father was prepared to compromise significantly more than the Applicant was with respect to

what was to be etched on S.’s tombstone. In fact, at one point the mother took the position that it did not matter what the Court Order said about the issue (Exhibit 6, page 327 – the mother’s email to the father dated May 27, 2011). Again, the mother’s need for complete and total control is palpable. [ 99 ] Seventh, while S. was at the hospital in London, there were times when the mother insisted that the Respondent visit with S. outside of the girl’s room.

The Applicant needed to control what and who were present in that room. [ 100 ] Eighth, it is clear to me that the mother, at times, tries to manipulate the situation in her favour. The photographs of N. and P. without any clothes on that were sent to the Applicant’s mother are one example. The Applicant’s mother was very candid in testifying that she has “no clue”, “no idea” how the photographs came to be. But the Applicant, to this day, believes that the father took the photographs. There is not a shred of evidence to support that.

It was a spurious allegation made in spite and to gain some advantage in the litigation. There is no other reasonable way to interpret it. This is an illustration of what Dr. McDermott described as the mother’s self-interested and manipulative tendencies. [ 101 ] The above are simply examples. I could detail numerous others, however, the goal here is not to punish the mother. This suffices to show how the findings of Dr. McDermott are consistent with the other evidence at trial. [ 102 ] I have asked myself how much weight I should place on the opinions and recommendations of Dr.

McDermott given that her report includes references to items not before me as admissible evidence, such as comments allegedly made by the children as summarized in the Children’s Aid Society records reviewed by the doctor. [ 103 ] I have concluded that I should place considerable weight on the opinions and recommendations of Dr. McDermott. I found the expert to be a credible and reliable witness. As the doctor indicated in cross-examination at trial, she based her opinions and recommendations on the “totality of the information” before her; her report is like a “tapestry” or a “puzzle”.

One or more pieces of the puzzle excluded or discounted does not necessarily lead to a different overall picture. B. The Risk Posed to A. by N. and/or P. [ 104 ] I do not believe that N., notwithstanding his serious challenges, poses any real risk to the safety and security of A. [ 105 ] My conclusion is different for P. [ 106 ] Although I have no doubt that P. and A. love each other dearly, the evidence at trial as a whole, and in particular the testimony of Dr. Cato, provides ample support for concern about A.’s safety in the presence of P. [ 107 ] According to the evidence of Dr.

Cato, whose testimony I found to be independent, credible and reliable, the mother has reported to her some very concerning things regarding P. On 24 November 2010, the Applicant told Dr. Cato that P. was frequently physically aggressive with A. In February 2011, the mother told Dr. Cato that P. was frequently fighting, physically, with A. In August 2011, the Applicant told Dr. Cato that P.’s physical aggression towards A. had actually worsened. In September 2012, the mother told Dr. Cato that P.’s anger and aggression had, again, worsened over the summer of 2012. In December 2012, the Applicant told Dr.

Cato that P.’s relationship with A. was “poor” and, at best, “on and off again”. On September 4, 2013, although the mother reported to Dr. Cato that P. was at that time “more agreeable” with her siblings, the Applicant also told the doctor that P. was still having “relatively frequent physical outbursts”. [ 108 ] If anything, these reports from the mother to Dr.

Cato would have been understated regarding the problems being experienced with P. and specifically between P. and A. [ 109 ] Evidently, despite the love and affection that P. no doubt has for her younger sister A., P. continues to exhibit physically threatening behaviours towards A. [ 110 ] Until P.’s behaviours can be better managed on a consistent basis, I find that it would not be in the best interests of A. to live in the same home as P. C.

The Submissions by Counsel [ 111 ] Because of my ultimate decision regarding custody of and access to A., it is important that I deal at some length with the submissions by counsel for the mother, which submissions I must say were eloquently delivered by Ms. Allen. [ 112 ] The mother submits that, between the summer of 2009 and September 2013, the parties shared joint custody of and approximately equal time with A. I agree. [ 113 ] The mother proposes, principally, that the parties share joint custody of A., on a week-about rotation, with exchanges taking place at A.’s school.

I disagree that the said proposal is in the best interests of A. My ultimate conclusions on custody and access are outlined below. [ 114 ] The mother submits that the parties are equally to blame for the long-standing, high conflict between the parties. To some degree, I concur. The father has, at times in the past, been just as disagreeable as the mother. For example, the Respondent’s refusal to simply allow Mother’s Day access between the Applicant and A. is difficult to understand. [ 115 ] The mother submits that she will be more likely to maximize contact with the father than the other way around. I disagree.

The history suggests otherwise. Given the evidence of Dr. McDermott, which evidence I accept in terms of the personality of the mother, I think it is very unlikely that the mother will foster a healthy relationship between A. and the Respondent to a degree equal to or more than the father will do so vis a vis A. and her mother.

[ 116 ] The mother submits that the father has been unreasonable in the past in terms of bringing numerous Motions and refusing to accede to simple requests by the Applicant for changes to the access

schedule for A. I think that both parties have behaved unreasonably in the past, period. And I do not believe that the Respondent can be faulted for wanting to adhere strictly to Court-ordered access regimes. [ 117 ] The mother submits that there is no admissible evidence that the mother “coached” the children to make allegations against the Respondent. I agree. [ 118 ] The mother submits that several witnesses at trial, including family members, gave evidence that they have observed the mother and R.A. with the children and have had no concerns.

I agree, although this fact must be assessed in the context of those witnesses’ rather limited opportunities to make those observations. [ 119 ] The mother submits that several witnesses at trial who were service providers (including the school principal, the family doctor, the paediatrician, Mr. Keating from Keystone Child and Youth Family Services and the play therapist) testified that they had no concerns about the mother utilizing services recommended to her for the children. I agree. [ 120 ] The mother points out that much of the evidence on behalf of the Children’s Aid Society is inadmissible – I agree.

The society witnesses had no concerns about the mother’s parenting generally. I agree. And the mother’s involvement with the child welfare authority has always been voluntary; I concur. The current society worker has no concerns about A. being in the mother’s custody – I agree (the same can be said for the father). The society takes no position on the custody and access issues before the Court; that is true. [ 121 ] The mother submits that R.A. was a forthright and candid witness. I agree. [ 122 ] The mother submits that there is no evidence that the behavioural challenges of N. and/or P. pose a risk to A.

These are said to be simple disputes among siblings. For the reasons stated above, I disagree. [ 123 ] The mother states that Dr. McDermott’s opinions and recommendations were influenced by the London Custody and Access Project’s report completed years earlier. I disagree. Dr. McDermott was clear in her evidence that she came to her conclusions after a very different process and using a very different methodology. In fact, the doctor was rather critical of some aspects of the earlier assessment. [ 124 ] The mother submits that Dr. McDermott was biased against the mother. I disagree.

The doctor was strong in her opinions and recommendations but solidly impartial. [ 125 ] The mother submits that Dr. McDermott’s opinions and recommendations should be discounted because of the hearsay evidence relied upon. For the reasons stated above, I disagree. [ 126 ] The mother submits that Dr. McDermott was unfair in describing in her testimony the mother’s personality disorder when that expression does not appear in the doctor’s report. I disagree. The report deals specifically with, among other things, the Applicant’s narcissism and compulsivity, and Dr.

McDermott was clear in her evidence that, without wanting to be a slave to labels, narcissism is a personality disorder. [ 127 ] The mother submits that Dr. McDermott made assumptions about things without a proper foundation to support them. I disagree. For example, I have no doubt that the mother was hesitant and somewhat difficult in having the consent forms completed so that the doctor could obtain information from third parties. That was not an assumption – the Applicant failed to do what was asked of her.

And I see no other reasonable explanation for that failure other than to conclude that the Applicant was hesitant, at least initially, to have certain information disclosed to the assessor. [ 128 ] The mother submits that Dr. McDermott “glossed over” certain troubling items concerning the father. To some extent, I agree.

For example, I would have thought that the doctor would have been more concerned about the father’s swearing of an affidavit that he knew was false (regarding the marks on P. supposedly being the fault of her natural father), even if the Respondent was pressured by the mother. [ 129 ] The mother submits that Dr. McDermott was disrespectful towards the Applicant and R.A. in, for instance, describing R.A. as being “under new management” – referring to the Applicant.

That choice of expression likely ought to have been avoided, however, I repeat that I found the doctor to be impartial, fair and professional in her report and in her testimony at trial. [ 130 ] The mother submits that certain findings made by Dr. McDermott were not supported by the evidence at trial. I agree, however, the doctor cannot be faulted for the fact that she had information which was not properly before me. For example, the expert’s conclusion that the mother’s follow-through with services recommended was “perfunctory” was supported by the information before Dr.

McDermott, although not based on the evidence adduced at trial (it should be noted that the doctor was not present for the evidence at trial which preceded her testimony). [ 131 ] The mother submits that Dr. McDermott appeared as an advocate for the father. I disagree. She was forceful in her opinions but not biased in any way. [ 132 ] The mother submits that Dr. McDermott “downplayed” the value of the relationships between A. and her siblings. I disagree.

The doctor recognized the value of A. having continued contact with N., P. and T., although she testified that the said contact was not strictly necessary in that it was not as important as the bonds between A. and her parents. [ 133 ] The mother submits that the law requires me to consider the best interests of A. I agree – subsection 16(8) of the Divorce Act , as amplified by subsection 24(2) of the Children’s Law Reform Act . [ 134 ] The mother submits that I should try to maximize contact between the child and both parents. I agree – I shall do so to the

extent that it is consistent with the best interests of the child: subsection 16(10) of the Divorce Act. [135] The mother submits that I should not hesitate to be creative in fashioning a custody/access regime for A. I should not bedependent on the traditional joint custody or sole custody with access alternatives. Conflict between parents, even very high conflict,should no longer be considered a bar to both of them remaining active in their child’s life.

I agree with all of those sentiments. [136] In that regard, I have considered the mother’s suggestion of parallel parenting as envisaged in the decision of Justice Chappelof the Ontario Superior Court of Justice in V.K. v. T.S., 2011 ONSC 4305 , [2011] O.J. 4046, and in two other decisionsprovided by counsel for the Applicant. [137] I am convinced that parallel parenting, although perhaps appropriate in some cases, will not work for these parties. I agreewith Chappel J. that one key factor to consider is whether the parents “are able at times to focus jointly on the best interests of the child”[subparagraph 96(

b) of the decision in V.K., supra]. These parents are not able to do so. They never have been. They never will be. Child Support [138] The mother submits that no child support should be ordered at this time. I agree. The father’s counsel did not press the issuein submissions. The mother is unemployed and has responsibilities to two children with very high needs and a newborn baby. She has avery limited income. [139] I order that the mother shall provide to the Respondent copies of her complete income tax return and Notice of Assessment andRe-Assessment, if any, by June 1st of each year starting in 2014.

The father may bring the matter of child support back to court based onthat disclosure, if he chooses to do so. Conclusions [140] Having considered the legislation including the factors outlined in subsection 24(2) of the Children’s Law Reform Act and theevidence at trial in its totality, most primarily the expert opinions and recommendations of Dr. McDermott and the evidence related tothe risk to A. posed by her sister P., I am satisfied on a balance of probabilities that it is in the best interests of A. to be in the solecustody of her father, M.L.

So ordered. [141] I will now turn to the other aspects of the draft Final Order provided by the father’s counsel during closing submissions. [142] Regarding access between the mother and A., the father proposes as follows.

a) Every second Saturday from 10:00 a.m. to 6:30 p.m., generally to fall on those Saturdays where any children of the Applicant’spartner are with their other parent; or, in the alternative, the first and third Saturdays of every month from 10 a.m. to 6:30 p.m.;

b) Mother’s Day from 1:00 p.m. to 6:30 p.m.;

c) Up to 8 hours on one of the days from December 24th through December 26th if the parties are able to come to an agreement as tothe time. [143] Although the father’s position is consistent with the recommendations of Dr. McDermott, I am not satisfied that such limitedaccess between A. and the mother recognizes to the extent warranted the principle of maximum contact with both parents, provided it isconsistent with the child’s best interests. [144] Thus, I order that sub clause 2(

a) of the draft Final Order sought by the father shall be amended to the first three Saturdayseach month, commencing the first Saturday in December 2013. That will allow the father to plan a trip out of town with the family andA. on the fourth weekend of the month, for example.

The hours suggested by the father shall apply. [145] If R.A. and the mother are living together, then there shall be no restriction on R.A.’s children from his previous marriagebeing present during access between the mother and A. [146] While R.A. and the mother are living separate and apart, R.A.’s children from his prior marriage shall not be present duringaccess between the mother and A. unless R.A. has regularly scheduled access with his children that same Saturday. [147] Further, sub clause 2(

b) of the draft Final Order sought by the father, regarding Mother’s Day access, shall be amended to 9:00a.m. to 6:30 p.m. [148] Further, sub clause 2(

c) of the draft Final Order sought by the father, regarding Christmas access, shall be amended to 9:00a.m. to 6:30 p.m. on the 24th of December plus 1:00 p.m. to 5:00 p.m. on the 26th of December. [149] Further, the mother shall have access with A. from 9:00 a.m. to 6:30 p.m. on either Easter Sunday or Easter Monday, at theelection of the father; plus 9:00 a.m. to 6:30 p.m. on either Thanksgiving Sunday or Thanksgiving Monday, at the election of the father; plus 9:00 a.m. to 6:30 p.m. on A.’s birthday – every second year commencing January 2014; plus from after school to 8:00 p.m. onHalloween – every second year commencing October 2014. [150] I decline to order clause 3 of the draft Final Order sought by the father: 3.

Where it would be in the best interests of the child to do so, the Respondent shall have the right to make changes to the accessschedule at his discretion. However, such changes shall be minimized wherever possible, be done with as much notice as possible, andshall not significantly impact the overall amount of access provided to the Applicant as outlined above. [151] The child deserves consistent access with her mother.

[ 152 ] I decline to order clause 4 of the draft Final Order sought by the father: 4. Where communication is necessary, the parties shall primarily communicate by means of email, unless in case of emergency. Such emails from the Applicant shall be limited wherever possible to the information needed to update the Respondent on any issue arising out of the Applicant’s access that the Respondent should be made aware of. [ 153 ] These parties need to grow up and communicate like regular human beings. [ 154 ] Clause 5 of the draft Final Order is granted: 5.

Exchanges for access shall take place at the Mac’s in Mildmay. If one of the parties moves, the Respondent shall have the discretion to choose a new place for the exchanges. [ 155 ] Clause 6 of the draft Final Order is granted: 6. The Applicant shall immediately provide the Respondent with the originals of the child’s birth certificate, health care card, passport (if any), social insurance card (if any), and any other such documents pertaining to A. [ 156 ] Clause 7 of the draft Final Order, although consistent with the recommendations of Dr. McDermott, is denied: 7.

The Applicant shall not have a right to make inquiries, or to be given information as to the health, education and welfare of the child. [ 157 ] I am satisfied that the mother will not do anything from this point onward to jeopardize her relationship with her daughter. [ 158 ] Clause 8 of the draft Final Order is granted – the first two sentences only: 8. The Applicant and the Respondent shall each promptly update the other as to any change in their contact information, including physical and mailing address, cell phone number, and email address.

The Applicant shall provide written notice to the Respondent in the event there are changes to the number and identity of those living in her home. [ 159 ] The last three sentences are unnecessary and are not part of the Order: The Applicant shall further advise the Respondent in writing of any significant events in her household or involving those in her household that may negatively impact A.’s welfare in her home. Such events shall include, but not be limited to, school suspensions of her children, Children’s Aid involvement, behavioural problems, criminal charges, and so forth.

Bruce Grey Child and Family Services is encouraged to keep the Respondent apprised of any factors in the Applicant’s home that may have a negative impact on A.’s welfare. [ 160 ] Final Order to go as per these Reasons for Judgment. [ 161 ] I am convinced that what I have ordered herein is in the best interests of little A. [ 162 ] If the parties are unable to settle the issue of costs, they may contact the Trial Coordinator in Owen Sound to

schedule a further court attendance of thirty minutes in length to hear submissions and consider filings in that regard. [ 163 ] I shall consider the matter of costs resolved between the parties if the Trial Coordinator is not contacted within two weeks of the release of these Reasons for Judgment. [ 164 ] I encourage the parties to try to settle the issue of costs. Nobody needs more litigation and acrimony. It may be that no costs is an appropriate disposition, although of course I have no knowledge about matters such as offers to settle. [ 165 ] I conclude where I began.

To say that this is a sad case would be an understatement. To describe this litigation as protracted and acrimonious would be a gross understatement. [ 166 ] Hopefully, for the sake of the children and for the sake of the memory of their late sibling, S., this is the end of the road. It is time for the parties to stop using the Court as a sounding board for every grievance, big or small. [ 167 ] Judges are not equipped to heal broken families. The parties must undertake that process themselves. I encourage them to do so. [ 168 ] Neither the Applicant nor the Respondent is a bad person. Each has a lot to offer.

I wish each party and his/her children the very best in the future. [ 169 ] I thank counsel for their patience and assistance throughout the trial. A Final Observation [ 170 ] I am just one judge in one small pocket of Ontario. But I encourage any family law litigant who cares to listen to think long and hard about the impact of his or her actions during the litigation process on the ultimate trier of fact. [ 171 ] If a parent cannot bring him or herself to reasonableness for the sake of the children, then the parent should do so for purely selfish reasons.

A party’s credibility at trial will depend in large part on the reasonableness of his or her conduct along the way. [ 172 ] A parent who has fought every issue as if it was the last stand at Juno Beach, showing no compromise or flexibility throughout, hardly comes to trial with clean hands.

[ 173 ] We are past the study phase of how adult conflict affects children. Nobody disputes the proposition that high conflict between parents who have separated or divorced is likely to have a negative impact on the children. So parents should pick their battles. Do not disagree just for the sake of disagreement or because of some default position that anything suggested by the other side must be stupid because it came from “the other side”. [ 174 ] Parenting is a tough job. There is no advantage to making it even tougher by engaging in perpetual combat with one’s former partner. It does the children no good.

And it does the parent no good at trial. ___________________________ Conlan J. Released: November 22, 2013 CITATION : A.A.-L. v. M.L., 2013 ONSC 7269 COURT FILE NO.: 04204/08 DATE: 20131122

ONTARIO SUPERIOR COURT OF JUSTICE BETWEE N: A.A.-L. Applicant - and - M.L. Respondent REASONS FOR JUDGMENT Conlan J. Released: November 22, 2013