half million custody battle

8/19/2019 Half Million Custody Battle

http://slidepdf.com/reader/full/half-million-custody-battle 1/209

CITATION: Jackson v. Mayerle, 2016 ONSC 72COURT FILE NO.: F67/13

DATE: 2016-01-05

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN: ))

DAVIS JACKSON

Applicant

– and –

EILEEN MAYERLE

Respondent

)

)))

)))

)

))

)

Melissa Fedsin, Counsel for the Applicant

Kanata Cowan, Counsel for the Respondent

)

)

))

))

HEARD: Sept 15,16,17,18,22,28,29,30,Oct1,2,5,6,7,8,9,13,14,15,16,19,20,21,22,23,

26,27,28,29,30, November 4,5,6,9,20,12,13,

2015.

THE HONOURABLE MR. JUSTICE PAZARATZ

1. Why would we need a 36 day custody trial where the basic facts are pretty

straightforward?

a. One child. A delightful eight year old girl with minor academic issues but no

special needs. b. She loves both parents equally. She wants to spend as much time as possible with

each of them.c. Both parents are equally capable and dedicated to meeting all her needs.d. But the parents can’t get along or communicate with one another. Not at all.

2.

Not such a tough set of facts, really. Nothing we don’t see in family court every day. 3. So why did we need a 36 day trial? 4. Why did we need 20 witnesses, including teachers, a principal and vice-principal, CAS

workers, a family doctor, and a custody/access assessor?

5. Why did parents of modest means choose to impoverish themselves – and theirdaughter’s future -- for a needlessly destructive three-year court battle?

6. For the sake of the child?

http://intra.judicialsecurity.jus.gov.on.ca/NeutralCitation/




Page: 2

7. Not a chance.8. Custody trials are supposed to be about children. But 36 days – that speaks volumes

about the parents.

BACKGROUND

9. The parties:

a. The Applicant husband is 45.

b. The Respondent wife is 48.c. Their daughter Paige is eight years old.

10. The chronology:

a. The Applicant and the Respondent met in 1993 at their place of employment. b. At the time the Respondent was still married.

c. They started dating in 1995.d. They started living together in 1997. The Respondent had been renting the upperlevel of a house. The Applicant moved in.

e. In 1998 they bought a house in Waterdown which eventually became theirmatrimonial home.

f. They married on April 22, 2004.

g. They wanted children but initially they had fertility issues. The Respondent became pregnant but had a miscarriage.

h. Their only child Paige was born on June 16, 2007.i. They separated on July 26, 2011 when Paige was four years old. The Applicant

moved to his mother’s residence leaving Paige primarily in the Respondent’s care.

j. The Applicant now lives in Oakville with his fiancé. The Respondent and Paigestill live in the former matrimonial home.

11. The Ap plicant’s background:

a. He studied mechanical engineering and hydraulics at Mohawk College. b. He went through a series of low-paying jobs, including a labour position at Basic

Technology where the Respondent had a better job.c. In 1998 he commenced his current employment as an officer with the Toronto

Police Service, where he has always worked shifts.

d. He’s currently a member of the Emergency Task Force (a S.W.A.T. team).

12.

The Respondent’s background:

a. After completing high school in Ancaster she worked locally in a fish and chips

shop, and then spent a year in Banff, Alberta working in a hotel. b. After moving back to Ontario she returned to school.

c. In 1988 she completed a two year diploma in fashion design.



Page: 3

d. Between 1988 and 1989 she worked for about a year with a small local knitwearcompany.

e. She then ran her own knitwear business between 1989 and 1993. She closed the business because the economy was in a recession and many of her customers were

going out of business.

f. For a period she taught autocad part-time as an instructor at Mohawk College, Niagara College, and at the Halton Board of Education. She had never received

formal instruction in autocad. She explained: “I have many skills I haven’t goneto school for. That was just one of them.”

g. Between December 1993 and August 1998 she worked at Basic Technologies as acontrol detailer. That’s where she met the Applicant.

h. Her job as a detailer entailed designing plans for the application of automated

controls on machines.i. While at Basic Technologies her employer encouraged and paid for her to

upgrade her skills through after-hours studies at Mohawk College. In 1996 sheobtained a college certificate in electro-technology.

j. In August 1998 the Respondent left Basic Technologies for a more senior positionat Aisco (which was eventually taken over by Outokumpu).k. She was employed at Aisco when she took a one year maternity leave for Paige,

between June 2007 and July 2008.l. When she returned to Aisco in about August 2008, she knew the firm had been

laying employees off and that her job was likely insecure.

m. She was laid off in June 2009. Initially it was characterized as a temporary layoff.But by February 2010 she was notified that it was a permanent layoff and she was

given a severance package.n. After that she remained home with Paige. She was unemployed on the date of

separation.

o. In January 2013 she commenced her current part-time employment with EngageAutomation in Guelph, Ontario. Once again, she is doing control detailing. She

works alone on a computer so she is primarily able to work from home and set herown hours. Periodically she has to attend meetings, mostly in Guelph.

p. She elects to work between 20 and 24 hours per week even though full time work

would likely be available. She says she has only sought-out part-timeemployment which would allow her to meet her ongoing obligations toward

Paige.

THE ISSUES

13. As stated, this is primarily a custody case.

a. Each parent claims sole custody. b. Each parent claims primary residence as a first choice.

c. Notably, each parent openly acknowledges that in the alternative they could alsolive with equal time-sharing. But each of them still wants final decision making

authority.



Page: 4

d. Decision making is really what this case is all about. Including decisions aboutwhether Paige should change schools or programs. And whether the child’s name

should be changed to include the Respondent’s surname. e. There’s minor disagreement about what equal time-sharing should look like. The

Respondent prefers “week about” (Paige spending alternating weeks with each

parent). The Applicant proposes a schedule referred to as “8-8-8-8-5-5”, meaningPaige would spend either eight or five days in a row with each parent, depending

on the Applicant’s employment shift schedule.

14. The Applicant’s position on custody basically adopts the recommendations of socialworker Michelle Hayes who prepared a custody assessment pursuant to section 30 of theChildren’s Law Reform Act (“CLRA”). The Respondent disputed the methodology and

fairness of the June 9, 2014 report and asks that it be disregarded. Hayes made thefollowing recommendations in her 63 page report:

a. The Applicant should be responsible for decision making regarding Paige.

b. Paige should remain at Guy Brown Elementary School, unless the school were tomake a recommendation that she return to the English speaking stream ofeducation in the Hamilton-Wentworth District School Board.

c. Timesharing should rotate on a schedule that maximizes time between Paige andeach of her parents – namely, the 8-8-8-8-5-5 schedule proposed by the Applicant.

d. The parties should engage the services of a Parenting Coordinator for productive

and timely assistance with communication and parenting decisions.e. Both parents should have direct access to all information related to the child.

They should sign the necessary releases in order to facilitate this process.f. As the Easter break includes the Good Friday and Easter Monday as part of the

school break, the parents should share the holiday equally. In odd numbered

years, Paige should be picked up after school on the Thursday by the Applicant.Paige shall remain in his care until Sunday morning at 9:00 a.m. when the

Respondent should pick up Paige and return her to school on Tuesday morning.The regular schedule should continue thereafter. In even numbered years, theschedule should alternate.

g. Thanksgiving should be shared equally. In even numbered years Paige should be picked up after school by the Respondent. Paige shall remain in her care until

Sunday morning at 12:00 noon when the Applicant should pick up Paige andreturn her to school on Tuesday morning. The regular schedule should continuethereafter. In odd numbered years the schedule should alternate.

h. The parties should alternate the March break each year from the Friday schoolconcludes to the Monday morning when school resumes. The Respondent should

have even numbered years and the Applicant should have odd numbered years.The regular access schedule should resume after the break.

i. If a professional activity day falls on the day before or after Easter, Thanksgiving

or March break, the access should be extended to include those days. Pick upwould then occur one day earlier after school and/or drop off at school would

extend one day further.



Page: 5

j. The parents should alternate Halloween each year, beginning in even-numberedyears with the Respondent.

k. The child should spend Mother’s Day and Father’s Day with that respective parent regardless of the access schedule, from 9:00 a.m. until 7:00 p.m.

l. During the summer months the regular access schedule should continue.

m. At Christmas, the regular access schedule should prevail, aside from thecelebration of the Christmas Eve, Christmas Day and Boxing Day. In odd

numbered years the Respondent should have December 24 from 9:00 a.m. untilDecember 25 at 12:00 noon. The Applicant should pick Paige up at 12:00 noon

and have time until December 26 at 7:00 p.m. In even numbered years theschedule should alternate.

n. The parents should utilize the school for transitions or exchanges of Paige, during

the school year. Only the parent who has Paige in their care according to theschedule should attend the school at the exchange time. Any exchanges outside

of the school year should be made at the McDonald’s parking lot in Waterdown. o. Paige’s name should remain as it is legally registered unless a change is otherwise

approved by the Court. This includes all registration forms to be completed withthe name Paige Jackson, whether formal or informal documents. p. Paige should be allowed to enjoy recreational activities such as swimming, Sparks

and karate. The parents should register Paige in extra-curricular activities thatoccur on their own access time. If the activity falls on both parents’ time, theactivity must be agreed upon. The parties should utilize the Parenting Co-

ordinator in the case of a disagreement. In any event, only the parent who has physical care of the child during the extracurricular activity shall attend the event.

It should be noted that this only applies during the regular season of sports,including practices or games. If Paige has school or religious events, or playoffsin a sport, the parents should both be permitted to attend the event. The parent

who has Paige in their physical care shall be responsible for the preparation of thechild for the activity.

q. The Applicant and the Respondent should engage in individual counselling inorder to gain perspective and make positive parenting changes to overcome all theidentified challenges they each face in parenting Paige.

r. The child should have open telephone contact with both parents, facilitated andencouraged by both parents. Telephone access should not exceed 15 minutes at a

time with either parent.

15. Other issues were addressed more efficiently by the parties.

16. They disagree about the unencumbered matrimonial home.

a. It’s in the Respondent’s name, but who really owns it? b. Should the Applicant get half the value (agreed to be $376,000.00) as of the date

of separation?

c. Should he get half the current value (agreed to be $485,000.00)?d. Will the property have to be sold?



Page: 6

17. Equalization is also an issue.

a. Determination of ownership of the home will affect whether its value is attributedto one party or shared equally on the net family property statement.

b. The second largest asset is the Applicant’s employment pension whose value has

been agreed upon. Should a portion of his pension be transferred to theRespondent to satisfy part of the equalization obligation?

18. Temporary child and spousal support is in place, and neither party seeks a retroactive

adjustment. But ongoing child support requires further determination:

a. Each party seeks full table child support if they are granted sole custody and

primary residence. b. But both agree that if equal timesharing prevails they want child support

calculated based on a simple set-off of table amounts. Neither provided evidencewhich would facilitate a more detailed section 9 analysis under the Child Support

Guidelines.c. Neither party currently claims any section 7 expenses. The Applicant asks thatthe final court order include provision for sharing such expenses in the future.

The Respondent doubts a formula will help because the parties won’t likely beable to agree on which expenses should be incurred.

19. Related to these child support calculations is the bigger issue of spousal support.

a. The Applicant acknowledges the Respondent’s entitlement to spousal support.But quantum and duration are in dispute.

b. The parties agree he earns about $100,000.00.

c. The Respondent expects to earn about $30,000.00 working half-time hours.d. The Applicant says there’s no reason the Respondent can’t work full-time. He

seeks to impute income in the range of $60,000.00.e. The Applicant proposes time limited spousal support. Perhaps seven years,

including the period since separation in 2011.

f. The Respondent seeks open ended spousal support, subject to variation if there’s amaterial change in circumstances. But she admits she’s not anticipating any

changes. She has no plans to seek full-time employment – perhaps not until Paigeturns 18.

20. Among the minor residual issues, the Respondent seeks $1,920.64 in post-separationadjustments, for things like fines and insurance she says she paid for the Applicant.

THE COMPETING THEMES

21. To better follow the complicated evidence in this long trial, it will help if I summarize thetwo dramatically diverging narratives advanced by the parties in relation to parenting

issues.



Page: 7

22. The Applicant father’s theme:

a. The early years of the relationship were good. But by the time Paige was born inJune 2007 the Respondent was already experiencing mental health issues which

impacted on her ability to enjoy and relate to the child they had always wanted.

b. After Paige was born, the Applicant was always involved and formed a close bond and familiarity with the child.

c. While the Respondent spent more time with Paige during the early years -- byvirtue of maternity leave and her eventual loss of employment – nonetheless the

Applicant took on significant parental responsibilities whenever he was off work.d. When marital tensions worsened, in July 2011 the Applicant voluntarily moved to

his mother’s residence because he didn’t want Paige disrupted or disturbed.

e. Between July 2011 and August 2012 the Applicant had regular access on aflexible schedule, including overnight visits at his mother’s home. The parties

were getting along fairly well. Occasionally there was intimacy.f. But in the summer of 2012 the Applicant revealed he was dating a female officer

also with the Toronto Police Service. In August the Respondent discovered theApplicant had taken Paige for a week- long vacation at his girlfriend’s cottage.She also learned the Applicant had moved into his girlfriend’s home in Oakville.

g. In the Applicant’s view, as soon as the Respondent found out about his girlfriend-- everything changed.

h. The Respondent became bitter and extremely restrictive with access. She tried to

shut him out of school issues just as Paige was starting senior kindergarten.i. In September 2012 the Applicant hired a lawyer who proposed mediation and a

conciliatory approach. The Respondent rejected those overtures, and becamedictatorial about how often he could see his daughter – and even how he couldretrieve his belongings from the home.

j. The Applicant says Paige was emotionally devastated by the Respondent’sspiteful efforts to subvert the father-daughter relationship.

k. By 2013 he obtained temporary orders which stabilized access.l. But the Respondent then embarked on a sustained campaign to undermine the

quality of any time the Applicant had with his daughter.

m. The Respondent took devious steps to shut the Applicant out of Paige’s life. Sherefused to allow proper clothing, school work, or necessary information to get to

the Applicant’s home. At every opportunity she r einforced to the young child asubtle message that her life would be good at the mother’s residence; bad at thefather’s residence. If she spent time with her father she would miss out.

n. The Respondent embarked on a psychological campaign to convince Paige thatmother and daughter were indispensable to one another. She used guilt and

emotional blackmail to pressure the young child to align herself only with themother.

o. The Applicant says the child has suffered tremendous emotional distress as a

result of years of manipulat ion and alienation by the Respondent. p. He acknowledges Paige loves both parents equally. Ideally, she needs to spend

time with both parents equally.



Page: 8

q. But the Applicant’s main concern is that for most of the past four years theRespondent has abused any control she has had over Paige. She has taken every

possible opportunity to extinguish or marginalize the father from the child’s life.And if she is given any decision making authority in the future, she will continue

to place her own need for control and vengeance above the needs of the child.

23. Not surprisingly, the Respondent’s theme is quite opposite:

a. The Respondent agrees their relationship started out strong. But she says it soon

became evident that they were “very different people with different values anddifferent viewpoints on different issues”. With the passage of time she realizedthe relationship was doomed.

b. She denies ever having had any significant mental health issues.c. She went through a period of grieving when the parties ’ beloved two German

Shepherds unexpectedly died within weeks of one another during her pregnancy.She took it hard. They both did.

d. Her family doctor will confirm she has always addressed any emotional or psychological issues. She is on a low dose of medication for a “low mood”.e. The Applicant’s purported concern about her “mental health” is a red herring.

Simply part of his ruthless campaign to malign her.f. She says one of their biggest areas of conflict was finances. She was prudent. He

was irresponsible. She started out financially secure. He had nothing.

g. The Applicant is a bully. As a police officer he is skilled at intimidating andmanipulating people – including teachers, CAS workers, and the custody assessor.

He knows how to use the court system – including the family court system.h. He now claims to be a devoted father. But prior to separation he was quite

content to leave all responsibility for Paige to the Applicant. And she did a

superb job with virtually no help from him.i. After separation, adjusting to life as a single mother was quite easy – because

even when the Applicant lived under the same roof she was still a single mother .She did it all.

j. Between separation in July 2011 and the summer of 2012 the Applicant had the

best of both worlds. After his unexpected departure from the home, he had thefreedom he had apparently wanted. He dropped in and out of Paige’s life as much

– or as little – as he wished. Up to three weeks would go by between visits. TheApplicant took advantage of the fact that the Respondent took care of everything:the house and the child. He could just pop in whenever he decided he wanted a

family again.k. During that year following separation the Applicant manipulated her with mixed

messages. Periodically he’d come to the home, stay overnight, and the three ofthem would do things together.

l. At times they were intimate. The Applicant would allude to the possibility of

reconciliation. The Respondent was confused by his behaviour. She was preparedto either save or end the relationship – but she needed clarity from the Applicant.

What did he really want?



Page: 9

m. She admits she was surprised at the revelation during the summer of 2012 that hewas dating a police officer he used to work with. She denies becoming

embittered, but admits disappointment that he had apparently been leading her on.Clearly there was no further chance of reconciliation.

n. She felt the Applicant showed particularly poor judgment taking Paige to the

girlfriend’s cottage for a week in August. Paige returned from that vacation quiteconfused about daddy suddenly sleeping in bed with another woman. The

Respondent insists her reaction has nothing to do with jealousy. This was simplyno way to introduce a then-five-year-old child to a new partner. It was insensitive

and epitomized the Applicant’s selfishness and poor parental judgment. Even theApplicant knew it was wrong, because he had promised the Respondent hisgirlfriend wouldn’t be at the cottage. Once again, he lied to her.

o. The Respondent admits access suddenly became an issue in September 2012. Not because she was trying to reduce access. But because suddenly, after going to a

lawyer, the Applicant was asking for all sorts of time – equal time – he had never previously been interested in.

p. The Respondent insists she has never tried to reduce or interfere with theApplicant’s time or involvement with his daughter. q. But for the first five years of Paige’s life the Respondent did everything. The

Applicant did virtually nothing. That’s what Pa ige was used to. Paige wasthriving with that arrangement.

r. If – for whatever reason – the Applicant suddenly wanted to be a father, the

Respondent was fine with that. But he couldn’t just barge in and disrupt patternsthe child was used to.

s. In September 2012 the Applicant insisted everything had to be his way. Rightaway. When the Respondent stood up to him – for the sake of the child – hevowed that he would take Paige away forever, and that his girlfriend would be her

new mother.t. The Respondent admits that’s when she became less conciliatory. He decided to

get a lawyer involved – an act which she found intimidating. So she decided tolet the lawyers handle everything.

u. The Respondent feels that since September 2012 the Applicant has focussed on

winning this trial, while the Respondent has focussed on protecting a sensitivechild.

v. She questions the Applicant’s motives and parenting skills. She says theApplicant had a horrible, abusive childhood. She fears he is now trying to perpetuate his tragic family “legacy” by ignoring Paige’s emotional needs – just

as his own emotional needs were trampled as a child.w. She says Paige loves the Applicant but often doesn’t enjoy going with him –

particularly since the Applicant interrogates the child and maligns the mother.x. The Respondent denies being overly emotional or possessive with Paige. She

insists at every stage she has simply tried to respond to the child’s preferences.

y. She denies allegations she misbehaved at her daughter’s school. The Respondentfeels she was the unsuspecting victim of a smear campaign which turned teachers

and CAS workers against her.



Page: 10

z. Overall, the Respondent feels everyone is focussing on the negatives. No one iswilling to acknowledge what a wonderful job she is doing.

aa. “I’m raising a really, really great girl by myself.”

24. Clearly, the parties see things very differently.

25.

For reasons which I will expand upon as I review the evidence, I find that the Applicant’snarrative is more credible and accurate than the Respondent’s.

26. I will briefly summarize the witnesses and the perspective they provided.

WITNESS #1 THE APPLICANT FATHER

27. The Applicant father testified for five days including three days of rigorous cross-

examination. I will address specific credibility issues as I review the evidence. Butgenerally:

a. He was a calm, soft spoken and cooperative witness.

b. He remained child-focussed, and periodically became emotional when describingdifficult situations experienced by Paige – or significant periods when access wasinterrupted.

c. He was a responsive witness and specifically answered each question as it was putto him.

d. He acknowledged facts favourable to the Respondent or unfavourable to him.

e. On parenting issues he testified with clarity, good recall, and for the most part hisevidence was consistent.

f. On financial issues his evidence was less precise. He openly acknowledged he’snot very good at finances.

g. Under cross-examination he tended to become subdued. He held his ground but

never became argumentative.h. At times cross-examination revealed a tendency toward embellishment or over-

statement. But despite the volume of serious allegations, there was little sign offabrication or deceit.

i. His overall tone was one of frustration rather than anger.

j. There were only a handful of instances in which I rejected his evidencecompletely.

k. For the most part I found that he was truthfully describing his perspective.

WITNESS #2 ANNETTE ERNA LAWSON

28. Annette Lawson was called as a witness by the Applicant.

a. She has been teaching for eight years. She just started her fifth year at GuyBrown Elementary School in Waterdown where Paige attends.

b. She is a French Immersion teacher. Paige is in a French Immersion program.



Page: 11

c. Lawson was Paige’s teacher in senior kindergarten which commenced September2012 – just when conflict suddenly exploded between the Applicant and the

Respondent.d. In May or June 2013 when students were being assigned to classrooms for the

following school year, the school administration decided it would be best for

Paige to remain in Lawson’s classroom for grade one. e. Paige started grade one with Lawson in September 2013. But in October 2013

Lawson was advised that Paige was being transferred to another grade one teacher – at the Respondent’s request.

f. The Respondent testified that even though Paige was quite comfortable withLawson, the Respondent felt Lawson had become too involved in the family’sconflict – and that she had become aligned with the Applicant.

29. Lawson was an excellent and helpful witness, describing her regular interaction with

Paige – and the parents -- during a very tumultuous year in the child’s life.

a. She testified in a quiet, factual, balanced manner. b. She had a very good memory.c. Her evidence was balanced.

d. She appeared to go out of her way to be fair to both parents. In her dealings withthem at school. And on the witness stand.

e. She provided detailed examples of problems or situations which arose.

f. Her descriptions of events were logical, comprehensive and internally consistent.g. Most importantly – in a custody trial – Lawson was completely child-focussed

and demonstrated insight and sensitivity to the young child’s situation. h. Her testimony stood up to scrutiny. None of her evidence was even slightly

undermined in cross-examination.

i. Despite the Respondent’s allegation that this teacher was taking the Applicant’sside, I found Lawson to be a neutral and entirely credible witness.

WITNESS #3 BERNADETTE MIOC

30. Bernadette Mioc was called as a witness by the Applicant. She has been an earlychildhood educator for 25 years, and was assigned to Paige’s class between February and

June 2013.

a. Mioc was also an excellent, credible witness.

b. She was friendly and cooperative with both lawyers.c. She had a good memory and provided context as she described situations or

conversations.d. Her answers were very specific. She was very careful selecting her words.e. She offered a lot of detail.

f. She referred to several situations which caused her to have “empathy” for Paigeand for the Respondent. Her empathy showed.

g. Her evidence overlapped and was consistent with Lawson’s testimony.



Page: 12

h. And as with Lawson, Mioc’s evidence stood up completely during cross -examination.

WITNESS #4 PATRYCIA COSENTINO

31.

Paige’s grade one teacher Patrycia Cosentino was called as a witness by the Applicant.She taught the child between October 2013 and June 2014.

a. Cosentino was also a good witness.

b. Her evidence was thorough and child-focussed.c. She readily admitted her recollection at trial was not as detailed as it would have

been two years earlier, when she provided information recorded by school

administration and the Children’s Aid Society. d. At times she sounded like she was advocating for the Applicant.

e. But her factual descriptions of some important events were clear and consistentwith other witnesses.

WITNESS #5 MICHELLE STICKNEY

32. Michelle Stickney was called as a witness by the Applicant. She was Paige’s grade twoteacher for the September 2014 to June 2015 school year. She has been teaching at GuyBrown for four years.

a. Stickney was a very quiet, reluctant witness.

b. Unlike Lawson, Mioc and Cosentino who described ongoing patterns of behaviour, Stickney spoke about a few specific situations or incidents – and sheseemed to want to say as little as possible about them.

c. She was thoughtful and credible. Her evidence stood up to cross-examination.d. But clearly she didn’t want to say very much, or hurt either parent.

WITNESS #6 SARAH BUIST

33. Sarah Buist was called as a witness by the Applicant.

a. She has been a school social worker for the past 10 years. b. She has bachelor of social work and masters in social work degrees.c. At various times she has been assigned to Guy Brown School.

d. For a few months in early 2013 she was assigned to help Paige and her parents.

34.

Buist was an excellent witness – helpful not only to the court, but to both parents.

a. She was articulate and child focussed.

b. She provided insightful and independent information about Paige’s situation. c. Her evidence was not undermined through cross-examination.



Page: 13

WITNESS #7 AUDREY HENSEN

35. Audrey Hensen was called as a witness for the Applicant. She was Vice Principal at GuyBrown for the 2013-2014 school year when Paige was in grade one.

a. Hensen was very, very thorough. b. She provided a lot of information about problems Paige was experiencing.

c. Her evidence was supported by her notes, but she also had a good memory.d. She gave precise answers.

e. She was careful not to accuse either parent or assign blame. She simply laid outsome troubling facts.

f. In general terms her evidence was consistent with the evidence of other school

witnesses. (Whenever multiple witnesses testify about overlapping observations – years after the events -- there are bound to be minor inconsistencies.)

g. Hensen was somewhat stern in response to aggressive cross-examination. But herevidence was fair, balanced and withstood scrutiny.

h. I found her to be a credible witness.

WITNESS #8 ALISON GRICE

36. Alison Grice was the first of three Hamilton Children’s Aid Society (“CAS”) employeescalled to testify for the Applicant.

a. CAS never initiated a protection file.

b. In December 2013 CAS became involved after receiving a call from Paige’steacher Cosentino expressing concern about the Respondent’s interaction with thechild during a school Christmas celebration which was open to parents.

c. (As it happens, CAS had previously been contacted by the Respondent complaining about an occasion when the Applicant transported Paige without a

car seat. CAS apparently concluded this was an isolated incident, took a report,and closed their file.)

d. Almost continuously between December 2013 and May 2015 CAS maintained an

open file on Paige’s family. Several times the file was being closed, newconcerns arose, and the file was reopened.

37. Grice was an intake worker assigned to Paige’s file between December 2013 and June2014. She was a low-key witness, with brief answers.

38. A recurring issue arose with respect to each of the CAS witnesses:

a. All three workers testified about direct personal interactions and observationsconcerning Paige and the parents. Subject to some specific concerns aboutaccuracy, I found that information to be relevant and quite helpful.

b. But the notes of all three workers – and the CAS records generally – included agreat deal of repetition of hearsay information from teachers or other workers.



Page: 14

c. Indeed, the file management system at CAS appears to mandate uncriticalrepetition of old information through a computer process known as “auto -

population”. Old comments automatically show up as background information asnew reports are typed. One early piece of erroneous information could get

perpetuated…forever.

d. One of the Respondent’s themes is that misinformation about her was “planted”early – both at Guy Brown School and at CAS – and that lies or half-truths then

became self-fulfilling. She says teachers and CAS workers presumed she wasmisbehaving, because they had been told she was misbehaving.

e. As a result, while I am mindful that background information is often relevant toexplain the context in which professionals performed their tasks, with allwitnesses I made a point of distinguishing personal observations from hearsay.

WITNESS #9 JULIE-ANN LEE PEARCE

39. Julie-Ann Pearce was called as a witness by the Applicant. She was a family service

worker with CAS, assigned to Paige’s case in May 2014. Her involvement ended in mid-August 2014 when Pearce left the agency for a position as a social worker with a school board in another community.

a. Pearce was a smart, well educated, formidable witness.

b. Unfortunately, through cross-examination it became clear that she had quiteunfairly characterized the Respondent as uncooperative about scheduling anappointment.

c. She was also too quick to draw a negative inference from the fact that theRespondent appeared to be nervous when they first met. I’d be more surprised if

a parent being interviewed by a (second) CAS worker wasn’t nervous.

d. For these and similar reasons I found Pearce was just too tough on theRespondent. Not to the point of malice or bias. But there appeared to be a

distinct reluctance to give the Respondent the benefit of the doubt.e. Accordingly I am not prepared to accept any of Pearce’s evidence about the

Respondent.

40. However, Pearce also testified about an important private discussion she had with Paige

on August 22, 2014.

a. Her evidence on this topic was thorough and unshaken by cross-examination. b. In every respect, I am satisfied that the manner in which she conducted this

interview – and the manner in which she recorded it – was appropriate andunbiased.

c. Pearce may not have hit it off with the Respondent, but I am satisfied that she

established a good rapport with Paige. She was skilled and sensitive in herdealings with the then-seven-year-old child.

d. I accept Pearce’s evidence about her interview with Paige (the details of which I

will discuss below).



Page: 15

WITNESS #10 KATHRYN ANDERSON

41. Kathryn Anderson was called as a witness for the Applicant. She was a family services

worker with CAS and was involved with Paige’s file from January to May 2015.

a. I had no reservations about her evidence about her direct observations.

b. She was a good witness. She carefully reviewed her notes to ensure accuracy.c. Her testimony was balanced. She tried to be fair to both parties.

d. She demonstrated insight and sensitivity in relation to Paige.

WITNESS #11 MONIQUE ALDERMAN

42. Monique Alderman was called as a witness for the Applicant.

a. She is a Girl Guides volunteer and in October 2013 she ran an evening children’s

program known as “Sparks”. b. She testified very briefly about the Respondent enrolling – and then withdrawing – Paige from Sparks.

c. She was the classic witness who had no idea why she had been called to court.d. She answered questions clearly and with no apparent sense of whether she was

helping anyone or not.

e. As it happens, her evidence was quite helpful to the court.

WITNESS #12 HOLLY LYNN DUNK

43. While Alderman had no idea why she was testifying, the Applicant’s next witness Holly

Dunk entered with witness box with a mission.

a. Dunk operated the Monkey Pit daycare center where Paige attended betweenAugust 2008 and May 2009 – during the approximately one year the Respondentworked, after maternity leave and before her permanent layoff.

b. Clearly, Dunk took it upon herself to be embarrassingly helpful to the Applicant.c. She initially portrayed the Applicant as doing “everything” in Paige’s life.

d. During rudimentary cross-examination, she quickly scaled it down to “he wasactively involved as a father.”

e. Given the fact that the Respondent was claiming the Applicant did “nothing”,

Dunk’s evidence was relevant. But marginally so.

WITNESS #13 DAVID BUCKLEY

44. The Applicant’s step-father David Buckley testified on his behalf.

a. Until age eight the Applicant was raised by his grandparents.



Page: 16

b. Buckley married the Applicant’s mother in 1978. That’s when the Applicantcame to live with them.

c. Buckley testified he always had a strong relationship with the Applicant – “like afather”.

d. He admitted he and the Applicant’s mother Vivien had marital problems. But

they’re still together.

45. Buckley was a plain-spoken, spontaneous witness. He made no effort to mask hisfeelings.

a. In several instances he was quite sure about what happened, but wasn’t really sureabout when. That makes sense with non-party witnesses who would have no

particular reason to remember dates. b. Buckley and the Respondent used to work at the same firm Autocad. Buckley

was a manager and arranged a job for the Applicant. That’s how the parties met. c. Buckley had a lot to say about how qualified the Respondent was and how easy it

would be for her to get a job. The Respondent countered that he knew nothing ofher current situation. I need not weigh his evidence on this topic. By theRespondent’s own statements, the issue is not whether she can work full time, but

whether she should work full time.d. Similarly, Buckley had a few uncharitable things to say about the Respondent’s

personality and parenting skills. I’m going to ignore those comments. It’s only

human nature that in prolonged custody battles, extended family members willdevelop a certain amount of animosity.

e. The advantage of a no-nonsense witness unafraid to say what he honestly thinks isthat…he’s telling you what he honestly thinks. That’s more than we get from alot of witnesses.

f. In that context, while I will disregard some of what Buckley said about theRespondent, I find that he was a credible witness on the topics of (a) the

Applicant’s relationship with Paige; (b) a September 21, 2012 interaction betweenthe parties; and (c) chattels.

WITNESS #14 CATHERINE WHITE

46. The Applicant’s fiancée Catherine White testified on his behalf.

a. It goes without saying that a party’s current spouse is hardly an independent

witness. Extra scrutiny of evidence is required. b. Having said that, I found White to be an excellent, credible and reliable witness.

c. She remained civil, calm, child-focussed, and entirely consistent during intensecross-examination. None of her testimony was undermined.

d. She had a good memory. Her narrative included many specific details.

e. She demonstrated insight and sensitivity to the Paige’s situation.f. I detected no sign of White wanting to meddle or usurp the Respondent’s role in

Paige life.



Page: 17

47. A specific indicator of White’s candor arose:

a. The Applicant has moved in with White and her two teenaged children in her

Oakville home.

b. With Paige now spending increasing time with the Applicant, the home is gettingtoo crowded. The Applicant and White both testified they plan to find a larger

home.c. The Applicant testified it might be possible for them to relocate closer to Paige’s

Waterdown school. That evidence might have enhanced his custody claim.d. But White testified that – while she was aware of the Applicant’s interest in

moving closer to Waterdown – she couldn’t consider relocating outside of her

current school catchment area in Oakville, because she can’t disrupt her son’sspecial education program at his current school.

e. It would have been easy for White to vaguely endorse the Applicant’s “we mightmove closer to Waterdown” option. Instead she candidly acknowledged such a

move is unrealistic. I was impressed with her willingness to give clear,unequivocal answers even if they didn’t help the Applicant.

WITNESS #15 THE RESPONDENT MOTHER

48. The Respondent mother testified during all or portions of eight days. I will deal with

serious concerns about her credibility as I review the evidence. But some generalcomments:

a. The Respondent is a very intelligent, articulate and passionate woman. b. Throughout her testimony there was no such thing as a short answer.

c. Her responses were thoughtful and thorough -- but often self-aggrandizing.d. There were repeated references to how much research she had done on a topic, or

how much thought she had put into a decision.e. At times she conveyed a distinct sense of moral superiority when discussing

parenting. As if she knew – not only better than the Applicant – but better than

everybody.f. She also tended to ramble and get “off” topics she was asked about; and “on”

topics she wanted to talk about. More than once I had to remind her to answer thequestion.

g. Under cross-examination her persona quickly changed from pleasantly

informative to stubbornly combative. Snippy and sarcastic.h. And she made little effort to conceal her loathing and disrespect toward the

Applicant. She used every opportunity to steer the conversation toward hisfailings.

i. At times during her testimony she became visibly emotional -- raising questions

about her claimed ability to shield Paige from her unhappiness and resentmenttoward the Applicant.

j. She was careful with words. But also coy and evasive. At times shrewd.



Page: 18

k. She adhered faithfully – and conspicuously – to a self-serving narrative wherebyeverything she did was for the sake of the child. Often at the request of the child.

She used the mantle of motherhood to challenge the legitimacy of anyonequestioning her judgment or motive.

49.

Perhaps the most notable aspect of the Respondent’s testimony was her rigid sense ofinfallibility.

a. She was always right.

b. Everything she did was right.c. She knew best on every topic.d. And even if she made a decision with a poor or unfortunate outcome – at the time

she was right to make that decision.e. An indicator of her confidence: She not only denied ever experiencing mental

health problems. She went on to say: “I will never have a mental health issue. Iam almost 50 years old.”

50. The Respondent tended to use the language of entitlement and ownership.

a. Paige was “my daughter” or “my child”. b. The matrimonial home was “my house.” c. Conversely, this court case was “his ruthless litigation”, “his trial”, and “this

circus he created.”

51. Listening to the Respondent, there can be no doubt that she loves Paige. Perhapsobsessively so.

52. The painful question: whether her expressions of love are helping or hurting the child.

WITNESS #16 DR. SHARON KIM MCMILLAN

53. Dr. Sharon Kim McMillan was called as a witness on behalf of the Respondent.

a. She is a family physician and on consent of counsel was qualified as an expert infamily medicine.

b. The Respondent has been her patient since 1993.c. For many years she was also the Applicant’s phys ician, although that ended a

couple of years after separation.

d. McMillan has always been Paige’s family doctor.

54.

McMillan was an excellent witness:

a. She gave a balanced and largely equal description of both parties as parents and as

individuals. b. She demonstrated insight and commitment in relation to Paige.



Page: 19

55. McMillan’s testimony was of particular assistance in refuting some of the major themesadvanced by each party.

a. The Applicant portrayed the Respondent as having serious mental health issues.

McMillan disagreed.

b. The Respondent portrayed the Applicant as historically being an absentee parent,and that the Respondent has a stronger, more insightful relationship with the

child. McMillan disagreed.

WITNESS #17 SARAH DALRYMPLE

56. Sarah Dalrymple testified on behalf of the Respondent.

a. She lives in Waterdown.

b. She is a friend of the Respondent.c. Her daughter Hayley is best friends with Paige.

57. Dalrymple was a neutral and fair witness.

a. She had equally good things to say about both parties as parents. b. She testified about conflict between the parties at Paige’s soccer game during the

summer of 2013.

WITNESS #18 CHANTEL DANIS

58. Chantel Danis was called as a witness by the Respondent.

a. Her daughter Zeya attends school with Paige. b. Danis testified about her observations of events at Guy Brown School.

c. She described herself as a friend of the Respondent “although we don’t hang outtogether”.

d. She said she recognized the Applicant, but hadn’t had much direct interaction

with him because he largely kept to himself at school.

59. Danis was a good witness.

a. She was very open and communicative.

b. She was responsive to questions.c. She definitely sympathized with the Respondent, but did not appear to go

overboard in trying to slant the evidence in her favour.

WITNESS #19 MICHELLE HAYES



Page: 20

60. By agreement between counsel, custody assessor Michelle Hayes was to be the lastwitness called. On consent she was qualified as an expert in custody/access assessments,

and the impact of high conflict on children.61. The timelines of her assessment are relevant to the narrative as it unfolded:

a. June 2013 Hayes was retained and started work. b. November 21, 2013 Hayes convened a disclosure meeting with parties and

counsel. The final report was to follow.c. January 2014 her assessment was re-opened. The final report was delayed.

d. June 9, 2014 her final report was issued.

62. Hayes was an excellent witness, and her report was of great assistance to the court.

a. Her credentials and background as a social worker are impressive.

b. She has extensive experience preparing section 30 assessments, as well as clinicalinvestigations for the Office of the Children’s Lawyer pursuant to section 112 of

the Courts of Justice Act .c. The Respondent’s counsel cross-examined Hayes extensively about hermethodology. No shortcomings or irregularities were established.

d. I accept Hayes’ description that she established excellent rapport with Paige,which allowed her to provide the court with meaningful insight about the child’sfeelings, experiences, and overall situation.

e. Hayes was a strong witness who provided comprehensive, balanced and insightfulinformation about Paige and her parents.

f. None of her evidence was undermined during questioning.

63. I denied a request by the Respondent’s counsel to file a critique of Hayes’ assessment, or

have the author of the critique give evidence.

a. The Respondent submitted no evidence to suggest the assessor failed to considerall relevant evidence or issues; that the assessor’s methodology was specificallyflawed; or that the assessor violated appropriate guidelines in preparing her report.

b. The author of the critique never met Paige. She was in no position to provide thecourt with any recommendations or insight as to the best interests of this child.

c. Basically, the author of the critique had nothing positive to add. She had nosuggestions as to the appropriate disposition of this case. At best she would bespeculating that maybe the assessor got it wrong. Maybe.

d. In M. v. F., 2015 ONCA 277 the Ontario Court of Appeal recently confirmed thatcritique evidence does not meet the criteria for expert evidence set out in R. v.

Mohan, 1994 CarswellOnt 1155 (S.C.C.).e. In most cases it is simply not necessary or appropriate to have the parties bring

forward evidence of a collateral critique. Mayfield v. Mayfield , 18 R.F.L. (5th)

328 (SCJ).

https://nextcanada.westlaw.com/Link/Document/FullText?findType=Y&pubNum=6407&serNum=1994396499&originationContext=document&transitionType=Document&contextData=(sc.History*oc.Search)








Page: 21

f. Critique evidence is rarely appropriate. It generally has little probative value, addsexpense, and risks elevating the animosity of the parties. M. v. F. (supra); Sordi v.

Sordi, 2011 ONCA 665 (Ont. C.A.).g. Even in cases where critiques have been admitted, they have generally been given

little weight. Ascani v Robert, 2015 ONSC 4585 (SCJ).

WITNESS #20 KELLY RIZZO

64. Kelly Rizzo, the school principal at Guy Brown School was called as a witness by the

Applicant.

a. She has been off work since June 2015 as a result of a serious leg injury.

b. (Her medical situation delayed her availability to testify. She had to be called outof order. The Respondent was given the option to present responding evidence

after Rizzo testified, but she declined to do so.)c. Rizzo brought an extensive school file concerning the administration’s

involvement in parenting issues concerning Paige. She admitted other documentsand e-mails had existed which were not in the file she brought with her.

65. Rizzo was a careful, thoughtful, cautious witness.

a. She distinguished information from others which she assembled and co-ordinated

as school principal, from her own personal observations. I rely only on the latter. b. She tended to be a very compliant witness under cross-examination. Definitely

not combative or resistant.c. But her first hand observations stood up to intense questioning.d. Her evidence was credible, reliable, and consistent with the direct observations

and experiences of other staff at Guy Brown.e. As with all of the school staff who testified, I was impressed by the insight,

sensitivity and patience Rizzo displayed in her dealings with Paige and her parents.

f. I saw nothing to support the Respondent’s suggestion that the school came to be

biased or even conspiratorial against her.

THE EVIDENCE: PARENTING ISSUES

EARLY RELATIONSHIP

66. The parties had similar descriptions of the ten years they lived together prior to Paige’s

birth on June 16, 2007.

a. The early years were good.

b. They both discovered they had very different personalities and priorities.c. Their relationship developed problems.

d. But they both wanted children. That’s why they married on April 22, 2004.



Page: 22

e. They both persevered through fertility problems and a miscarriage.

67. Financially, the Respondent started out stronger.

a. She came into the relationship with a higher income and significant savings. The

Applicant came in with nothing. b. With the passage of time their financial fortunes reversed.

c. After he joined the Toronto Police Service his income rose quickly, eventuallyreaching $100,000.00.

d. The Respondent’s best year was about $56,000.00, followed by maternity leave, a brief return to work, and then unemployment after 2009.

68. A major issue at trial was the matrimonial home. I will review this in detail afterfocussing on the evidence in relation to parenting issues. But briefly:

a. The house was purchased pre-marriage in November 1998.

b. The Respondent contributed the entire $58,000.00 downpayment. The balancecame from a mortgage of $150,000.00 to $160,000.00.c. The property was registered in both names. They disagree about why that

happened.d. In December 1999 the property was transferred into the Respondent’s name.

They disagree about why that happened.

e. The Applicant remained on the mortgage.f. The Respondent was astute financially. The Applicant wasn’t.

g. The Respondent controlled the finances through her own account. She didn’twant a joint account.

h. At her urging, payments on the mortgage were accelerated and it was discharged

in 2007 – the year Paige was born.i. The Applicant says they paid off their mortgage.

j. The Respondent says he paid her rent . She paid off her mortgage.

69. The parties agree they were passionate about their two German Shepherd dogs – and

devastated when both dogs suddenly died prematurely within weeks of one another, mid-way through her pregnancy. The Applicant testified this was a turning point – in their

relationship and in the Respondent’s mental health.

a. He said she went into a deep depression and lost interest in the pregnancy. And in

Paige after she was born. b. He said when the Respondent failed to snap out of it, they acquired two

replacement German Shepherds hoping to cheer her up.c. But he said rather than lifting her mood, the Respondent became focussed on the

new dogs in priority over their infant child.

d. He testified that when he saw signs of suicidal ideation, he approached theirfamily physician Dr. Kim McMillan for help, and the Respondent went on

medication.



Page: 23

e. He said whenever he was home he had to assume care of Paige because theRespondent seemed detached from the child, or preoccupied with other things.

70. The Respondent called his allegations distortion and fabrication.

a. She testified they were both equally upset when their dogs died. They bothgrieved and slowly came to terms with it.

b. She absolutely denied any difficulty bonding to Paige, or any distractioninterfering with the mother-child relationship.

c. She was never diagnosed with post-partum depression.d. She felt the normal struggles of a mother with a new baby were compounded by

the general sadness in the household about two beloved pets dying unexpectedly.

71. I accept the Respondent’s description of her mental health during this period.

a. McMillan testified the Respondent’s emotional responses at the time were quite

understandab le and moderate. b. McMillan said there has never been any indication that the Respondent has mentalhealth issues which would impact on her ability to care for Paige.

c. The doctor had regular interaction with Paige and both parents after the child was born. No parenting concerns arose.

d. Assessor Hayes testified she thought it was completely appropriate for the

Respondent to grieve the loss of her pets. She agreed with McMillan that thisrepresented a significant loss for the Respondent, and there was a protracted

period of grief. But it did not diminish the Respondent’s ability or commitment tocare for Paige.

e. Under cross-examination the Applicant acknowledged that despite what he

characterized as her serious depression, the Respondent was still able to care forPaige quite adequately while he went to work. Paige reached all her milestones

and didn’t appear to have any problems in pre-school or junior kindergarten.f. Indeed, there never appears to have been a time when the Applicant showed any

reluctance to entrust Paige to the Respondent’s care.

g. Upon separation, the Applicant had no qualms about leaving Paige with theRespondent. And during that first year after separation – while the parties were

still getting along – the Applicant had no complaints about the Respondent’s parenting.

h. Given the fact that the Applicant’s primary complaint is that the Respondent now

insists on having too much involvement in Paige’s life, I cannot accept that therewas ever a time when the Respondent showed too little interest in the child.

72. By the same token, the Respondent attempted to falsely portray the Applicant as acompletely disinterested and uninvolved parent, both before and after separation.



Page: 24

a. The Respondent complained the Applicant was manipulating people against her.But she must have spent days preparing lengthy typed documents, itemizing every

conceivable infraction and omission by the Applicant. b. She repeated many of those allegations at trial.

c. Cumulatively she tried to portray the Applicant as an uncaring, selfish, absentee

father who was never there for Paige. Never involved.d. For example in a 22 page, single-spaced typed memo the Respondent provided to

Hayes, she stated “Davis did not help to raise or care for Paige.” e. Under cross-examination she admitted this was an overstatement.

f. The Applicant gave numerous examples of things he did with Paige, and thecommitment he made to the child from the very outset.

g. His evidence was consistent with the testimony of Dr. McMillan, Dunk, and

Buckley – and the conclusion of Hayes – that in every respect the Applicant was pretty much equally involved in Paige’s life, both before separation and during

that first year after.

SEPARATION

73. Both parties testified about the circumstances leading to separation on July 24, 2011.

74. The Applicant said they were arguing a lot.

a. He said Paige had just turned four years old and was being negatively affected by

the increasingly stressful home environment. b. The child was showing anxiety about the Applicant and the Respondent being in

the same room together, because they quarreled so much.c. Ultimately the Applicant decided it would be better for him to move to his

parents’ home, to spare Paige from experiencing any more upset.

d. He described moving out as the hardest decision of his life.e. He anticipated that he would get his own place quickly, and that he and the

Respondent would work out a fair timesharing arrangement through a separationagreement.

f. But he recalled that just before separation the Respondent told him “If you leave

you will never see Paige again.”

75. The Respondent denied the suggestion by Applicant’s counsel that she was “devastated”when he moved out. To the contrary, she said she was relieved.

a. She said they had experienced “some serious upheavals” even before gettingmarried.

b. She felt their marriage had been “decaying” prior to the birth of Paige. c. She admitted she wasn’t expecting the Applicant to move out on the particular

weekend he chose.

d. But she felt separation was inevitable and for the best. They were both unhappy.They both wanted out.



Page: 25

76. Both parties testified the first year of separation went relatively well.

a. The Applicant kept giving the Respondent money out of each pay cheque, sothere were no immediate cash flow issues.

b. They didn’t fight about Paige. The Applicant said he saw the child frequently.

The Respondent said visits were rare. Whatever the schedule, they didn’t quarr elabout it.

c. The Respondent said she felt good mentally. McMillan prescribed somemedication for her moods. The Respondent is still on the medication, but after the

first year the dose was lowered. McMillan testified the amount currently prescribed causes “absolutely no impact on her ability to think clearly orfunction.”

d. The Respondent said McMillan also referred her to numerous texts aboutseparation which she “read thoroughly.”

77. Under cross-examination the Respondent denied the suggestion that as of August 2012

she still wanted to reconcile, and that she became embittered when it became clear to herthat the Applicant was moving on with another woman.

a. She said for one full year after moving out in July 2011, the Applicant kept givingher mixed messages.

b. He would drop in and out of her life as he pleased.

c. She allowed him contact with Paige whenever he wanted, but sometimes hewould go three to four weeks without being in touch.

d. At times they went on outings with Paige.e. At times it was just the two of them and they were sexually intimate. She said the

last occasion was in June 2012.

f. She said for almost a year their relationship included both heated arguments and passionate moments.

g. She admitted in August 2012 she sent him an e-mail stating she still loved him.But she denied begging him to return to her.

h. She said after a year she just wanted a clear answer about whether he wanted to

reconcile or whether he was moving on with his life. She was prepared to accepteither decision.

i. “It was a hard time for him; it was a hard time for me; it was very complicated.”

78. The Applicant apparently felt it was less complicated.

a. He said he was relieved that at first the Respondent still wanted to be friends. To

cooperate. b. He had regular visits on all his days off, including overnight visits at his mother’s

home.

c. He thought it was great for Paige that sometimes the three of them did thingstogether. And that the Respondent didn’t mind him coming by the house to visit

the child. But he was visiting the child .



Page: 26

d. He agreed that occasionally he and the Respondent were sexually intimate. Buthe didn’t think either of them had any realistic expectation of reconciliation.

79. It’s hard to know what each of them was thinking. It sounds like the Respondent was

more hopeful of reconciliation than she’s prepared to acknowledge.

80.

But looking at it from the perspective of what Paige experienced during the first year ofseparation, I find:

a. The parties were getting along relatively well.

b. Paige was having regular, enjoyable, and beneficial contact with the Applicant.c. It’s a shame that changed.

PROBLEMS EMERGE

81. The Applicant testified that by late spring 2012 the Respondent started becoming morerestrictive and interfering with his contact with the child:

a. The Respondent had never liked the Applicant’s mother. She started resenting theamount of time Paige spent in the paternal grandparents’ home. She disapproved

when the Applicant starting setting up a comfortable environment for the child inhis mother’s home (purchasing a bed; clothes; toys for the child to feel like shehad a second bedroom).

b. He said the Respondent started coming up with excuses to cancel or shorten visits.c. The Respondent would unilaterally dictate when the Applicant could or couldn’t

see his daughter.d. Communication between them became more strained.e. On Father’s Day 2012 the Respondent advised the Applicant that Paige would be

spending the day visiting the maternal grandfather. She allowed the Applicant aone hour visit. He felt this was unfair.

82. The Respondent insisted any gaps in access were the Applicant’s choice.

a. She didn’t deny making her own plans for Paige on Father’s Day. But she said theApplicant had time with the child in the morning, because he had stayed over at

the matrimonial home the night before. b. The parties had jointly arranged a fancy birthday party for Paige and her friends

that weekend, based on the Disney movie “Madagascar”.

c. The Applicant insisted he was very upset by the Respondent’s unilateral action because he wanted very strongly to spend the whole of the first Father’s Day after

separation with his daughter.

83. The Applicant testified the Respondent became even more restrictive after he advised her

in June 2012 that he had started dating Catherine White, a co-worker with the TorontoPolice Service.



Page: 27

a. The Applicant requested access to Paige during his one week vacation periods ineach of July and August 2012.

b. He said the Respondent refused the request, stating she had already registeredPaige to go to dance camp for the week in July. The Respondent said she would

be taking the child to and from dance camp, and Paige would also be spending

time with a friend, so there wouldn’t be much time for the Applicant.c. He felt this was unfair since the Respondent had been aware of which weeks he

had booked for holidays.d. But the Respondent referred to a June 12, 2012 e-mail she sent the Applicant –

before any lawyers were involved – asking what vacation time he wanted.e. She said if the Applicant had replied in a timely way they could have avoided the

scheduling problem which arose. By the time the Applicant requested a week in

July, Paige had already been signed up for dance camp.f. The Respondent said she had no idea when she signed Paige up for the camp that

the Applicant would want that week.

84.

For his August vacation week, the Applicant proposed to take Paige to a cottage beingrented by his girlfriend and her family.

a. The Respondent said he could have Paige for the week but only if he promisedthat his girlfriend would not be present.

b. The Applicant admitted he lied to the Respondent and promised the girlfriend

wouldn’t be at the cottage.c. He testified that he regretted the lie, but felt he had no choice because otherwise

he wouldn’t be able to see Paige. He said he had no money or other vacationoptions.

d. He said Paige had a wonderful time at the cottage interacting with his girlfriend

and her family. But when the Respondent found out about the lie, she virtuallycut him off from having contact with Paige.

85. The Respondent denied the Applicant told her about White in June 2012.

a. She admitted that in July 2012 the Applicant mentioned going to a wave pool witha group of colleagues including White. She recalled Paige returned from that

wave pool adventure saying that only White (and possibly her children) was present. There were no other “colleagues”.

b. She said at that point she started to get a sense that perhaps the Applicant was

developing a relationship with White. But the Applicant continued to be evasive.She said that’s why she wanted clarification of the Applicant’s intentions.

c. She said all of that uncertainty disappeared when Paige returned from the August2012 week at the cottage, and revealed White and her family had been there thewhole time -- and the Applicant and White were sleeping together. The Applicant

had assured her that he and Paige would be alone at the cottage.d. Soon after, when the Applicant came to her house to pick up Paige for a second

week of vacation in August, he admitted he had moved in with White. Until then



Page: 28

the Respondent had been under the impression the Applicant had moved to afriend’s basement apartment.

e. At that point the Respondent told him she didn’t want to continue to have any sortof relationship with him.

APPLICANT’S NEW RELATIONSHIP

86. The Applicant and White each testified about their relationship.

a. They met at their workplace, the Toronto Police Service, in 2002. b. For a period she was his supervisor. But they haven’t worked in the same

division for quite some time.

c. With 26 years on the force, White is currently a detective working straight days,flexible hours, earning $110,000.00

d. She is separated and has custody of her two children Claire, 18, and Tyler, 14.White’s mother also resides with them.

e. The Applicant and White started dating in February 2012 – months after heseparated from the Respondent.f. By June 2012 they developed a more formal relationship.

g. In August 2012 the Applicant moved into White’s three-bedroom Oakville home.h. They plan to marry and buy a larger home together, most likely in the same

school district in Oakville. In the meantime a dining room has been converted

into a fourth bedroom for Paige.

87. The Respondent denied being jealous about the Applicant being in a new relationship.

a. She testified “I was very relieved that the marriage was finally over after years of

dysfunction.” b. But under cross-examination she acknowledged that in e-mails she sent the

Applicant in December 2012 she referred to White as “your disgusting home -wrecker”; a “tramp”; and “it”.

c. She testified that she “deeply regretted” sending those e-mails. She denied they

were indicative of any anger on her part during the fall of 2012 when access problems heightened.

88. The Respondent said she was simply angry about the insensitive way the Applicantintroduced Paige to a new partner.

a. She said Paige was “devastated” by seeing her father and White act as a couple

during that cottage vacation in August 2012. b. “It was completely wrong. It had a very detrimental effect on her.”

89. The Applicant denied Paige had any negative reaction.



Page: 29

a. He and White both testified they were very cautious about introducing theirrespective children to new partners.

b. They both said they had been dating for a while before Paige was formallyintroduced to White during the summer of 2012.

c. And they were circumspect about displaying any affection in front of the child.

d. Hayes confirmed their evidence that Paige has a wonderful relationship withWhite and her children. She described the interaction between everyone in that

household as “very positive”.

RESTRICTED ACCESS

90. Coincidence or not, immediately after the Respondent learned the Applicant was living

with another woman, the door slammed shut on access.91. The Applicant’s description of September 2012:

a. Until the end of August he was having regular personal and telephone access

including overnights. He was spending almost all of his days off with Paige, andthey had a wonderful relationship with one another. b. But at the beginning of September the Respondent started severely limiting any

contact between the Applicant and the child.c. She unilaterally decided he couldn’t have any overnight visits. d. She unilaterally selected a few days she would allow access.

e. She decided he’d have to go three weeks in September without seeing hisdaughter.

f. After that she offered alternate weekends daytime only.g. As a pre-condition of any access, the Applicant had to confirm in writing ahead of

time that he agreed to her exact pick-up and drop-off times for six or seven hour

visits, at exchange locations which she selected.h. She wouldn’t let him speak to Paige by telephone.

i. He said he was emotionally devastated by the abrupt denial of access. White andBuckley both testified about how upset he was.

j. The Applicant felt it was cruel to shut him out of Paige’s life just as s he was

starting full-time school in senior kindergarten. She had been excited about it,and the Applicant had been looking forward to sharing her experiences.

k. He said out of desperation he started attending her school to say hello to Paigeand see how she was doing.

l. Under cross-examination the Applicant denied attending school frequently or

without reason.m. He testified it was gut-wrenching seeing how excited his five year old daughter

was to see him after long gaps. She was upset and wanted to see him frequently,like she used to.

92. The Respondent’s description of September 2012 was a bit confusing.

a. She said Paige was stressed about starting full-time school.



Page: 30

b. She said Paige enjoyed junior kindergarten the previous year because it was onlytwo to three days a week. She was still able to enjoy time with her mother at

home. She never cried when being dropped off for junior kindergarten.c. But full time school created a big adjustment for Paige. The child cried every day

when she went to school because she missed the Respondent.

d. So the Respondent felt she had to spend as much time as possible with Paige, tocalm and reassure her as she struggled getting used to the school routine.

e. The Respondent was extremely resistant to the suggestion that maybe Paigemissed the Applicant too. Or that maybe the Applicant also had a role to play in

soothing their daughter’s anxieties about school.

93. The Respondent said Paige was still very upset about her father’s girlfriend, and that they

were living together.

a. She said Paige was in constant fear and worry “probably about abandonment”. b. She said it was a very confusing time for the child.

c. “All of a sudden her dad isn’t coming around her home but he has another homeand a new family”. d. The Respondent appeared oblivious to her role in this childhood tragedy: Dad

isn’t coming around because mom won’t let him.

94. At times the Respondent reverted to her old theme that Paige didn’t really miss the

Applicant because he had never been involved in her life (a position I have alreadyrejected):

a. She said she wasn’t trying to decrease access. b. He was suddenly trying to increase access.

c. Paige had always looked to her mother for everything.d. So if Paige was going through anxieties – and the Respondent emphasized she

didn’t cause those anxieties – the Respondent was best able to soothe heremotions.

95. Paige’s senior kindergarten teacher Lawson provided some independent evidence aboutwhat the child was experiencing:

a. Within days of the September school start, Paige started telling Lawson she wasfeeling sad because she was missing her father.

b. Lawson couldn’t recall if Paige asked her to call the Applicant or if the Applicantinitiated contact with the school to ask about Paige.

c. But occasionally the Applicant would come to school to see Paige and take her tolunch. Lawson said this happened perhaps once a week, but not every week. Itdepended on the Applicant’s shifts at work.

d. She said sometimes during his lunch visit with Paige the Applicant would call herand say Paige was still upset and didn’t want to come back to school. He would

ask what her next class was going to be after the lunch break. Lawson said on a



Page: 31

number of occasions she noted that Paige had library or gym after the lunch break, so she told the Applicant it would be alright if he kept her a bit longer.

e. She testified she had no concerns about the Applicant coming to school to takePaige for lunch, or keeping her a bit longer, because the child frequently spoke of

how much she missed the Applicant and wanted to see him.

f. Lawson said eventually this ended, because the school advised both parents itdidn’t want either of them taking Paige out of school because it was creating

confusion.g. Under cross-examination Lawson said sometimes Paige had periods of sadness;

sometimes she had periods of happiness. Sometimes she cried. Sometimes shesaid she needed a hug. “Overall she was a normal little girl.”

96. The Applicant testified the Respondent not only cut off access – she also tried to cut himout of any parental involvement at Paige’s school and in relation to recreational activities.

a. He gave many examples of the Respondent registering Paige under the

Respondent’s surname “Mayerle” even though the child’s formal name wasregistered as “Paige Emily Jackson.” b. He gave various examples of school paperwork where the Respondent did not list

him as an emergency contact person.c. In some instances the Respondent listed her father as an emergency contact

person if the Respondent wasn’t available.

d. The Respondent gave the school an out of date telephone number for theApplicant, and she listed his address as unknown. She made it impossible for the

school to contact him.

LAWYER’S GET INVOLVED

97. Within days of the breakdown in access, the Applicant had his first lawyer DarleneMadott send an introductory letter dated September 12, 2012 to the Respondent. Thethree page letter included the following statements:

a. The Applicant wanted a predictable parenting plan for Paige.

b. Paige requires both parents in order to grow into a healthy individual.c. The Applicant feels the Respondent has recently become restrictive about access

and tried to exclude him from involvement in school issues.d. The Applicant perceives the Respondent has reacted negatively to his entering

into a live-in relationship with another woman. The Respondent should be

reassured that there is no intention or possibility that the Applicant’s new partnerwishes to become Paige’s “mother” or otherwise undermine the mother -daughterrelationship.



Page: 32

e. The Applicant proposed the parties attend mediation, with a view to implementinga parenting plan.

f. Both parties should contact their family physician to ask if she is aware of familymediators with the necessary expertise. A copy of the letter was sent directly to

McMillan.

g. A colour-coded calendar was attached setting out the Applicant’s timesharing proposal for the period September to December 2012. The Applicant had taken a

week off work at Christmas and wanted timesharing negotiated.h. The Respondent was asked to review this proposal with a lawyer.

i. The Applicant wanted Paige’s school registration to be amended to includecontact information for the Applicant.

j. The Applicant requested a copy of Paige’s birth certificate and health card.

k. The Applicant requires documents and personal belongings from the matrimonialhome. Even though he doesn’t need the Respondent’s permission to enter the

home, he wanted to make arrangements ahead of time. He proposed attending thehome on Friday September 21, 2012 “while Paige is at school” to avoid exposing

the child to any tensions.

98. On September 19, 2012 the Respondent’s lawyer Kanata Cowan sent a response to

Madott, advising:

a. The Respondent wishes to negotiate a separation agreement.

b. She is not content to attend mediation at this time.c. The Applicant’s financial disclosure was requested.

d. The Applicant’s proposal for access is not appropriate. e. Mid-week overnight access during the school week is not appropriate.f. The Applicant is already listed on the student information form at school.

g. The Respondent will provide copies of the birth certificate and health card.h. The Respondent is concerned about the deceptive and insensitive manner in

which the Applicant introduced Paige to his new partner.i. The Applicant must provide a proper bed and bedroom for Paige prior to any

overnight access commencing.

j. Until the bed is confirmed, the Applicant can have access on alternate weekendsSaturday and Sunday 12 noon to 7 pm, and Thursday evenings non-overnight.

k. Paige has evening enrollment in swimming Mondays, Sparks Tuesdays, andkarate Wednesdays.

l. The Applicant should reinstate $1,300.00 biweekly payments.

m. The matrimonial home is not jointly owned and the Respondent is not content thatthe Applicant enter the home.

n. The Respondent will leave as many of his belongings as she can on the front porch on September 21, 2012 – the date proposed by the Applicant. But she willneed more time to assemble all of his property. The Applicant will likely have to

hire a moving van, and perhaps this can be done in two weeks.o. Once the Respondent has confirmation the Applicant will be returning Paige

home each evening, she will allow the child to go for visits.



Page: 33

99. The Respondent testified about the lawyers’ letters.

a. She didn’t want lawyers involved. She felt the Applicant was escalating the

conflict.

b. She said the mere fact that the Applicant had a lawyer send her a letter invitingher to get her own lawyer was an act of intimidation. “That’s a threat and that’s

how I perceived it.”c. She said she rejected mediation because she didn’t think sitting in a room across

from the Applicant was going to accomplish anything.d. She said mediation wouldn’t work because the Applicant was being heavy handed

and threatening litigation.

e. She said she never wanted to go to court. This was “his trial”. “His ruthlesslitigation.”

100. Under cross-examination the Respondent testified generally about the Applicant’s

threats.

a. He threatened her numerous times, before and after Paige was born. Before and

after separation. b. Not physical threats. (Hayes confirmed there was never any allegation of

violence or abuse in the home.)

c. But bullying.d. “He always had the upper hand in our relationship.

e. “Everything had to be done his way.” f. She said after separation he threatened that if she didn’t agree to his terms she

could expect to spend thousands of dollars on court proceedings and a trial.

g. She admitted the Applicant had sent her an e-mail dated August 8, 2012 beggingher to be reasonable and not spend thousands of dollars on lawyers. But she

testified he only wrote that note to look good in this court case. She said reallyhe was using legal fees to scare her.

101. Two things were supposed to happen on September 21st, 2012:

a. Lawyers had exchanged letters about the Applicant attending the matrimonialhome to retrieve some of his belongings.

b. Lawyers had exchanged letters about the Applicant having access to Paige

commencing at 5 p.m.c. But neither of those things happened.

102. The Applicant testified that day he drove to the matrimonial home with his step-father Buckley to pick up belongings. He said the Respondent met him outside; became

irate with him; raised her voice; called him a “fucking piece of shit”; and told him to “getthe fuck off my property.” He said she was so angry she was “frothing at the mouth”.



Page: 34

103. The Respondent admitted the Applicant didn’t get his stuff. She blamed a breakdown in communication.

a. Her lawyer’s letter of September 19th invited him to attend September 21st to

retrieve belongings.

b. But the Respondent said she never received confirmation the Applicant was goingto attend.

c. Her lawyer hadn’t asked for confirmation. But without confirmation she presumed he wasn’t coming.

104. She testified the Applicant and Buckley pulled into her drive-way on the Fridaymorning, just as she and Paige were going to leave in her car with the dogs. She gave

confusing answers as to why Paige was home with her on a school day.

a. She initially testified that Paige was home because she was sick. b. When she was reminded that she had told Hayes that Paige had been home on a

professional development day, the Applicant changed her description: Paigewasn’t sick. c. But she wasn’t on a professional development day either (school records showed

it was a regular school day and Paige was absent).d. She testified “I don’t believe she was physically ill, but she wanted a day off.”

She again explained Paige was having a hard time adjusting to attending senior

kindergarten all day, five days a week.e. She then amended her answer further: “She might have been sick too, I don’t

recall.” f. She didn’t explain why she would be taking Paige out in her vehicle with the

dogs, if she was sick.

g. Ultimately the Respondent said “I don’t recall what she was feeling thatmorning.”

h. She denied the suggestion that she was trying to leave with Paige, before theApplicant arrived, to prevent him from picking up his belongings, and to preventhim from having access.

105. She described her confrontation with the Applicant:

a. She said the Applicant arrived in a van she didn’t recognize. Buckley remained inthe van at the foot of her long driveway.

b. She admitted they got into a heated exchange. She denied “frothing at themouth”.

c. She said the Applicant told her he would ruin her; he would take Paige away fromher; and White would become Paige’s mother.

d. She said after he made those threats, she got her back up.

e. “Any time he threatens me I take it very seriously.” f. She said she offered to give him anything he needed urgently, but he declined.



Page: 35

g. She said she told him to send a moving van and he agreed. She would pack up his belongings.

106. The Applicant denied making any of those threats alleged.

107. The Respondent testified until September 2012 she treated the Applicant with

“kid gloves”. But after his lawyer’s letter and his threat to take Paige away, the kidgloves came off.

108. Buckley testified about the incident:

a. He remained inside the vehicle with the windows open. It was parked close towhere the Applicant and the Respondent met in the driveway.

b. He could hear their voices and their tone. But not exactly what they were saying.

c. Buckley said the Respondent became extremely animated. She was agitated. Shestarted screaming and shouting.

d. He said the Applicant appeared to be trying to placate the situation and remaincalm. But the Respondent was loud and showing extreme anger.

109. The Respondent testified a bout why the Applicant didn’t get his scheduled accesslater that day:

a. He had shown up in the morning to pick up belongings. They had this big fight.She told him to get off her property.

b. He wasn’t supposed to have access until 5 p.m. c. She wasn’t going to give him the child early, even though Paige was out of school

and hadn’t had a formal visit in almost three weeks. d. The Applicant didn’t come back at the 5 p.m. designated pick -up time. So she felt

it was his own fault that he didn’t get access that day.

e. He finally got a daytime visit on Sunday September 23rd.f. She denied that she was acting vindictively, but admitted she was angry about the

Applicant’s threats. g. She admitted that in an e-mail she sent the following day she told the Applicant:

“Do not address me by my given name ever.”

110. One last point about the escalating conflict in September 2012:

a. The Respondent refused to allow the Applicant to retrieve his furniture or even setfoot in the matrimonial home (even though there was no order or agreement

regarding exclusive possession). b. She unilaterally decided he would have to pay movers to attend. She would

decide what items to release to the movers.c. The Applicant complied with that directive.d. Both the Applicant and Buckley testified that 75% of the items retrieved by the

movers was junk which immediately went either to the dump or the SalvationArmy. Included were photographs after their wedding – the Respondent used

scissors to carefully cut out her face.



Page: 36

e. The Applicant said the Respondent kept the good stuff. The Respondent insistedshe was fair.

f. Neither side sought to include chattels in the equalization calculation. Novaluations were provided. So I won’t spend time on this issue.

g. But the Respondent’s approach to chattels mirrored her sense of control and

entitlement in relation to Paige.h. She got to decide everything.

MORE ACCESS PROBLEMS

111. I received a great deal of evidence about access problems between September2012 and February 2013 when the first temporary order was issued.

112. The parties communicated by e-mail. Dozens and dozens of e-mails.113. The Applicant’s e-mails followed a consistent theme:

a. Requests for more time with Paige.

b. Requests for telephone access.c. Requests for information about the child.

114. The Respondent’s e-mails were equally consistent:

a. Rigid statements of what she would allow the Applicant.

b. Warnings that if the Applicant didn’t commit to her terms in writing prior to eachvisit, access would not occur.

c. Bitter comments that really the Applicant didn’t deserve any access.

115. The Applicant testified Paige was devastated by how little she saw him. He said

during each visit she cried and begged him to extend visits.

a. In contrast, the Respondent said Paige often asked not to have to visit theApplicant.

b. She said she sometimes had to force the child to go, and access wasn’t really

beneficial.

116. The Applicant said the Respondent unfairly denied overnight access.

a. The Respondent said she repeatedly offered he could have overnights as soon as

he could prove he had a bed for Paige at White’s residence. b. She denied that he had arranged a bed by October 2012.

c. The Applicant proposed overnights at his mother’s home, since the Respondentknew Paige had a bed there. The Respondent rejected that proposal. She said shedidn’t trust that Paige would really end up sleeping at the paternal grandmother’s

residence.



Page: 37

117. The Applicant testified the Respondent’s restrictive access schedule included longgaps which were very upsetting for both Paige and the Applicant.

a. He said to bridge the gaps, periodically he dropped by the school to see Paige. He

either took her to lunch or volunteered in her class. (The school confirmed Paige

liked it when each of her parents volunteered.) b. He denied attending excessively. He said he didn’t keep count and couldn’t

comment on the Respondent’s tally that he attended school at least 26 times between September 2012 and June 2013.

c. He admitted on October 31, 2012 he took Paige out for lunch and kept her into theafternoon causing her to miss a Halloween party. He said whenever he kept Paigeafter the lunch break, he did it with the approval of her teacher Lawson who was

concerned about how sad Paige was. He said he was unaware that there was aHalloween party that day.

d. He admitted that she similarly missed a class Christmas party on the afternoon ofDecember 21, 2012. Again he said he was unaware of the party.

e. The Applicant said he was denied a Thanksgiving 2012 visit. The Respondentacknowledged she likely celebrated with her family.

118. The Applicant also complained of bizarre behaviour by the Respondent.

a. He and White both testified that around the end of December 2012 Paige started

arriving for visits reeking of mothballs. b. They said the smell of mothballs on her hair and clothing was overwhelming.

c. White said it was so bad she would have to wash the child’s jacket at the beginning of visits.

d. They said this continued until the end of February when it suddenly stopped.

e. They presumed the Respondent was deliberately making Paige smell bad tosomehow spoil the visits.

f. The Respondent denied that any of this happened.

119. The Applicant testified the Respondent unilaterally selected an access exchange

location in a poorly lit park.

a. He said she would attend inexplicably wearing sunglasses even though theexchanges were often after dark.

b. He said the Respondent’s mysterious and hostile behaviour made the exchanges

extremely stressful and confusing for Paige.c. The Respondent denied these allegations as well.

120. The Applicant testified the Respondent routinely withheld Paige’s belongings totry to spoil visits.

a. For example, for a November 2012 visit the Respondent knew the Applicant was

going to take Paige to watch the Santa Claus parade in downtown Toronto.



Page: 38

b. Despite cold weather the Respondent sent the child without a winter coat. TheApplicant had to arrange to purchase a coat so Paige would be warm enough

watching the parade.c. The Respondent denied this allegation. She said Paige wore her normal winter

jacket and was dressed properly for the weather.

121. The Applicant’s fiancé White gave detailed evidence about the Santa Claus

parade.

a. White went early to get a spot on the parade route for her own children. b. When the Applicant and Paige joined them on the street, Paige was wrapped up

inside the Applicant’s winter coat. It was a cold day but Paige had no jacket, no

mittens, no hat. No warm clothing.c. White testified she immediately took Paige to the Bay store in downtown Toronto

and purchased a winter jacket and mitts for the child.

122.

The Applicant and White provided very detailed evidence about this and otheroccasions when the Respondent failed to send adequate clothing or provisions for Paige.In relation to the Santa Claus parade, for example, the Respondent provided little more

than a general denial. I accept the evidence of the Applicant and White that theRespondent sent Paige for access without adequate clothing.

123. The parties testified about a similar allegation this past Easter.

a. The Applicant and White said the Respondent delivered Paige to the access

exchange location without a coat despite cold wintery conditions. They said itwas actually snowing that night and as soon as they got the child into the car theyhad to turn up the heater because she was shivering.

b. The Respondent denied Paige was inappropriately dressed. She insisted theweather had been mild during the days leading up to the access exchange. She

said even if she had known it was going to snow the following day, she stillwouldn’t have dressed Paige differently because the Applicant has made it clearhe has his own winter clothes which he prefers for Paige.

CHRISTMAS 2012

124. Even though the parties had no difficulty dealing with their first Christmas afterseparation in 2011, by 2012 Christmas access became a major issue.

125. The Respondent was cross-examined about how discussions unfolded:

a. She said she sent an e-mail well in advance of the holiday, trying to opendiscussions about Christmas access.

b. But on December 2nd she sent him an e-mail which stated “You are such an ass

hole” (which prompted a nasty exchange about whether “asshole” was one wordor two).



Page: 39

c. As Christmas approached, the lawyers worked out a tentative access schedulewhich included daytime access on December 25 and 26.

d. But on December 22nd the Applicant sent her a further e-mail inquiring aboutChristmas access. The Respondent said it was too late to have any further

discussions because her lawyer had made it known to the Applicant’s lawyer that

she would be unavailable over the Christmas break.e. The Respondent testified that because it was December 22nd and nothing had

been firmed up – and because it was too late – on December 24th she sent him ane-mail reverting to an earlier proposal. She would allow him a daytime visit on

December 26 and 29. But nothing on December 25.f. Regarding her decision to retract her agreement that the Applicant could have a

Christmas Day visit, the Respondent testified: “I felt that was the best I could do

under the very stressful circumstances the Applicant had created.” g. Under cross-examination the Respondent admitted she could have been more

flexible. But she was angry that the Applicant had threatened a Christmas accessmotion which never materialized. She felt he deliberately delayed resolution until

her lawyer was no longer available.h. She testified she didn’t feel her last minute decision to deny Christmas Day accessadded to Paige’s stress. She said she was motivated by the child’s best interest

and made sure Paige enjoyed the same Christmas celebration she always had – inher own home, with her mother and the maternal family.

126. Despite the Respondent’s insistence that she was at all times motivated solely byPaige’s well-being, a couple of Christmas 2012 e-mails reveal that some unresolved adult

issues were still very much in play.

127. On December 24, 2012 at 8:35 p.m. the Applicant e-mailed the Respondent:

“I’ve tried calling today numerous times to say Merry Christmas to Paige but youwon’t answer. Can you please assist Paige in calling me.”

128. On December 25, 2012 at 9:55 a.m. the Applicant e-mailed the Respondent:

“Thanks Eileen,

Thank you for not letting me see Paige on Christmas and not answer the phone soI can at least wish her a Merry Christmas.

Merry Christmas!”

129. On December 25, 2012 at 11:34 a.m. the Applicant e-mailed the Respondent:

“There seems to be no bounds to your cruelty.

UNDER PROTEST, I promise to return Paige at 7 pm Dec 26th.”



Page: 40

130. On December 26, 2012 at 10:05 a.m. the Respondent e-mailed the Applicant:

“Cruel…you can’t see beyond your own selfish desires, everything and everyoneis here for one reason, and one reason only: to serve you. You are a liar, a cheat,a user and as much as I wish I had never laid eyes you (sic) so I could erase thelast 19 years of my life, it’s gone, it no longer exists, it’s dead anyway, I really

wish I had never met you for what’s not gone, for my child, for her future; youhave nothing to offer her, absolutely nothing, her existence is all about you, yes,even Paige is here to serve you – that’s your reality and that is what’s cruel…youlove her? You don’t even know where to begin.

“The most important thing a father can do for his children is to love theirmother” – Theodore Hesburgh (italics in original)

My family and I loved you with open arms and open hearts, something you knownothing about; love. You betrayed us in the name of: you, your own selfishdesires. It’s astonishing and also very sad how you really do believe that theworld revolves around you, you always have, nobody else matters, nobody. But,

I suppose I should not be that surprised given your family and friends, those whoyou choose to surround yourself with, your mentors, they’re all about themselvesalso; abortion, abandonment, adultery, numerous affairs, lies, physical fighting,law suits, verbal abuse, stealing, excessive smoking, illegal drugs, alcoholism,mental, physical, sexual, and emotional abuse, and stopping at virtually nothingto get what you want. No, I guess it’s not surprising that you are a lost cause,hopeless. Live your life as you will, but you are not a part of my family; stopharassing us.”

131. The Respondent insisted the Applicant was the one causing problems and she hadgood reason not to trust him.

a. For example, she said he kept Paige overnight after his December 29, 2012 visit,

even though he had earlier agreed in writing that he would return her before bedtime.

b. She was fearful because of his previous threats to take Paige.

c. The Applicant said he requested Respondent's permission for some extra timeover the Christmas break. But when she didn’t consent he kept the child for a

single overnight anyway.d. He returned Paige the next day.

132. The Respondent said the same thing happened on his January 12, 2013 weekendvisit – but with more serious consequences.

a. He was supposed to return Paige Saturday night. b. But Paige became ill after he picked her up. So ill that he called the Respondent

and advised she was too sick to travel.c. He kept the Respondent informed by e-mail about how the child was doing but he

refused to return her.



Page: 41

d. The Respondent said when Paige was returned to her on Monday January 14,2013, she immediately took her to McMillan.

e. She said Paige was diagnosed with a stomach virus and prescribed antibiotics.f. In court documents and in her representations to Hayes, the Respondent cited this

as an example of medical neglect by the Applicant. He should have taken their

daughter to the doctor. Instead, she had to do it.

133. Except, after cross-examination the Respondent finally admitted that’s not how ithappened at all.

a. Initially during cross-examination she stuck to her story: Paige got sick. TheApplicant didn’t do anything about it. So the Respondent took the child to the

doctor. b. But she couldn’t explain why there was no notation of a January 14, 2013

doctor’s visit in McMillan’s records. c. She also had some difficulty explaining why there was no record of a prescription

being filled on that date.d. She agreed she generally filled prescriptions through the Applicant’s Manulifecoverage. But the Manulife statement didn’t show a prescription on that date.

She said sometimes she doesn’t use her regular pharmacy, and doesn’t bother tosubmit receipts for reimbursement.

e. She denied the suggestion that she was exaggerating Paige being seriously ill on

January 14, to make the Applicant look bad for not taking her to a doctor.

134. During prolonged cross-examination on the issue, the Respondent was adamant:

a. Paige got sick during that weekend’s access.

b. The Applicant’s response was inadequate. c. She remembered the weekend well.

d. She remembered taking Paige to McKinnon.e. She remembered the stomach virus and filling the prescription for antibiotics.f. She insisted her recollection of events was correct and the Applicant’s

recollection was wrong.

135. That was on October 20, 2015 – the Respondent’s fifth day on the witness stand. 136. But at the outset of October 23, 2015 – the Respondent’s eighth day on the stand

– the Respondent started the day with a request that she be allowed to make a correction:

a. She had checked her records.

b. Everything she said about taking Paige to the doctor and getting a prescription onJanuary 14, 2013 – all of that was wrong. It never happened.

c. She must have confused it with another time she took Paige to the doctor.

137. That led to further cross-examination, with the Applicant’s lawyer suggesting the

Respondent’s “correction” was actually a transparent effort to try to bail out of a lie.



Page: 42

a. October 20, 2015 wasn’t the first time the Respondent stated that on January 14,

2013 she took Paige to the doctor. b. In an e-mail exchange on January 14, 2013 the Applicant asked how Paige was

feeling and the Respondent advised him that evening that she had taken Paige to

the doctor.c. She later repeated this allegation – about having to take Paige to the doctor

January 14, 2013 because the Applicant hadn’t attended to her health during hisweekend visit – to others involved in this case.

d. The Respondent had difficulty reconciling these inconsistencies.e. She denied lying to the Applicant on January 14, 2013 when she told him she took

Paige to the doctor.

f. To add to the confusion, at the end she testif ied “I can’t tell you at this pointwhether I went or not.”

138. The Respondent’s request to correct her evidence arose on the morning of

October 23, 2015 – just before McMillan was going to testify. Presumably the familydoctor would have confirmed that there was no appointment on January 14, 2013 even ifthe Respondent hadn’t corrected her evidence.

139. As a matter of final irony – even though the Respondent was completely unclearabout what she ended up doing on January 14, 2013 – she still insisted that the Applicantdid the wrong thing that weekend. She said just because Paige wasn’t sick enough to go

to the doctor on the Monday, the Applicant still should have taken her to the doctor onthe weekend.

140. I have difficulty accepting the Respondent’s position that she just got her datesmixed up at trial.

a. Quite conceivably, a person testifying on October 20, 2015 might be mixed upabout whether they took a child to a doctor on January 14, 2013.

b. But the Respondent sent the Applicant an e-mail on January 14, 2013 advising shehad taken Paige to the doctor on January 14, 2013.

c. She must have known as she typed the e-mail that she was typing a falsehood.

d. And yet she kept repeating that lie – in court documents and to the assessor – because it was a lie that made the Applicant look neglectful. A lie that made the

Respondent look like the more reliable parent.

EXCHANGES: EMOTIONALITY

141. On January 11, 2013 the Application was commenced. On February 8, 2013 a

consent temporary order granted the Applicant access on alternate weekends Friday 6 p.m. to Sunday 7 p.m., and Thursdays 4:30 p.m. to 7:00 p.m.

142. The Applicant testified after the temporary access order was in place the

Respondent made access exchanges needlessly difficult and emotional:



Page: 43

a. When he arrived at the exchange parking lot to pick Paige up, the Respondentwould be crying and pretty soon Paige would be crying.

b. The Respondent would hold on to Paige for seven or eight minutes at the side ofher car for a prolonged and emotional farewell – even if it was only going to be a

dinner visit of a few hours.

c. He said sometimes the crying and sobbing and drama would continue for as muchas ten minutes.

d. The Applicant said all of this unnecessary drama made Paige very sad and meantthat visits would generally get off to a needlessly unpleasant start.

e. He said after Paige was in his care it would take a while to calm her down.Eventually she would settle and they would have an enjoyable visit.

f. Sometimes Paige would express worry about the Respondent at the beginning of

visits. She said things like “Mommy says she’s going to miss me” and “Mommysays she’s going to die without me.”

g. He testified Paige has reported the Respondent making upsetting statements likethat even recently, just before the trial.

h. He disputed the suggestion that the Respondent was trying to comfort Paige because the child was upset about going for a visit.i. He suggested the Respondent should simply make the transfer quick with no long

emotional goodbyes.

143. The Respondent denied being overly emotional at exchanges. She said she would

merely console Paige when she went for access.144. White testified she was present for many exchanges. She confirmed the

Applicant’s evidence:

a. The Respondent would become emotional when it was time to release Paige to the

Applicant. b. She would cry and embrace the child for five to seven minutes.

c. She would whisper in Paige’s ear and the child would become increasingly upset. d. White denied the suggestion that the Respondent needed to spend time to console

Paige and convince her to go to the Applicant.

e. White said Paige would be happy to see the Applicant and anxious to go to him.But the Respondent would hold the child back with an extended and upsetting

goodbye.

145. This issue of uncontrolled emotionality by the Respondent – inappropriate

statements and behaviour which were emotionally upsetting to Paige – was identified as arecurring and significant problem by many witnesses.

146.

Senior Kindergarten teacher Lawson – and other teachers – had ongoing concernsabout the Respondent upsetting Paige during morning school drop-off throughunnecessarily long, overly emotional goodbyes. The problem arose from the very first

day of school in September 2012.147. Lawson testified the school has a policy to establish boundaries – in a sensitive

way – when parents drop young children off for school in the morning:



Page: 44

a. On the first day of school they organize a “Brave Wave” where parents are lined

up on one side at the edge of the school grounds, and children are lined up on theother side of the playground.

b. They wave goodbye to each other. The children then enter the school and the

parents leave.c. This is intended to clarify the school’s expectations: Parents are to say goodbye

at the edge of the playground. Children go onto the playground where theymingle and play with one another. When the school bell rings, the children all

enter and go to their classrooms.d. The school tried to enforce a policy that parents were not to enter the playground

area, because teachers monitoring the playground would not necessarily be able to

recognize if an adult on the playground was a parent. So for security reasons theywanted to keep any adults off the playground.

148. Lawson testified that even though this expectation was clearly communicated to

all parents and students – including the Respondent and Paige – the Respondent did notfollow this routine.

a. Lawson said in the first few months of senior kindergarten it is not uncommon forchildren to experience separation anxiety. With most children this subsides and isno longer a problem. But with Paige it did not subside.

b. At the beginning of the year the Respondent would come into the schoolenclosure and remain with Paige.

c. When the school bell rang, the Respondent would hug Paige, whisper somethingto her – and then Paige would cry and wouldn’t want to go into the school.

d. Lawson said if Paige got in line on her own she seemed fine. But then the

Respondent would approach the child while she was standing in line with otherchildren. The Respondent would whisper something to her. Paige would get

upset and start crying.e. She said most of the times when the Respondent dropped her off, Paige would be

upset. It would take a while to calm her down

f. Lawson said she was concerned about Paige’s wellbeing. She felt theRespondent’s behaviour was creating stress the child really didn’t need.

g. Lawson said this routine continued from September until November or December2012.

h. After that, the Respondent started accompanying Paige into the school when the

morning bell rang.i. The Respondent would bring Paige to the classroom door, and either try to enter

the classroom with Paige, or hug her and whisper something to her – at which point Paige would again start crying.

j. Lawson said this pattern continued until about February 2013 when the

Respondent was asked by a social worker not to accompany Paige to theclassroom.



Page: 45

149. When asked, under cross-examination whether it might be possible that theRespondent was simply trying to comfort Paige by saying something like “I love you,

have a good day”, Lawson said they specifically asked the Respondent to stop doing this because she was upsetting the child – not comforting her. Paige wouldn’t be upset or

start crying until after the mother whispered to her.

150.

Lawson contrasted the Respondent’s prolonged upsetting goodbyes with theApplicant’s behaviour when he dropped Paige off (when access was eventually

expanded).

a. When the Applicant dropped her off at the school, Paige would get a little bitupset.

b. The Applicant would say “well it’s time for me to go” and Paige would be fine

with it and wouldn’t have an issue.

151. Other witnesses from the school gave similar evidence about the Respondent’semotionality during drop-offs creating serious problems for Paige.

152.

Teaching assistant Bernadette Mioc testified she noticed the problem on her veryfirst morning at work in February 2013.

a. She saw the Respondent in the hallway, bringing Paige to the classroom. b. She soon learned that staff had been trying to discourage the Respondent from

actually walking Paige into the classroom.

c. The Respondent was crying.d. Paige wasn’t crying initially.

e. The Respondent remained in the hallway and allowed Paige to walk in on herown.

f. Paige was very sad and after the Respondent left the child started crying.

g. Mioc said she tried to comfort Paige after the Respondent left her in tears. Shespoke to Paige and explained that she understood Paige was sad. She reassured

her that the school day would be over soon and Paige would then be able to gohome.

h. Mioc testified she found such an emotional and stressful goodbye to be “strange”

given the fact that it was February – well into the school year. She said suchissues of separation anxiety usually resolved themselves early in the school year.

i. She testified she subsequently saw similar instances of the Respondent cryingduring morning drop offs “a lot of times.” She said Paige would react by becoming sad and crying too.

153. School social worker Sarah Buist testified about an occasion in late February or

early March 2013. She was at Guy Brown as students were arriving for class. Sheobserved the Respondent dropping Paige off in the school hallway.

a. She said the overall scene was quite chaotic and hectic, with multiple parents inthe hallway.

b. She saw Paige taken to her classroom by the Respondent.



Page: 46

c. Paige was very clingy to her mother. There were long goodbyes exchanged between them; lots of hugs; lots of cuddles.

d. Paige appeared distressed that the Respondent was leaving.e. Under cross-examination Buist said it was not unusual for children in junior

kindergarten and sometimes even senior kindergarten to experience difficulties

separating from their parents at school.f. But Buist thought it was surprising that Paige was still experiencing so much

distress saying goodbye to her mother more than half way through seniorkindergarten.

g. She wasn’t placing blame on the mother. She said it was not a parent’s fault for achild to be crying during the morning school drop off.

h. But she identified it as an undesirable and stressful situation which needed to be

addressed.

154. The Applicant described an incident at Paige’s school on September 23, 2013:

a. He had dropped Paige off at school in the morning, following a weekend visit.He stood on the paved parking area to watch as she went into the school building. b. He observed that when the bell rang and she entered the building with friends,

suddenly the Respondent popped out of a school doorway, knelt beside Paige andstarted talking to her.

c. He observed that Paige immediately broke down crying.

d. He said he didn’t want to cause any conflict in front of Paige so he left.e. He was later advised by Paige’s teacher Lawson that Paige was upset until the

first nutrition break in the morning, and that school officials instructed theRespondent to leave the building and not enter the building to approach the child.

155. The Respondent testified about concerns that her “goodbyes” at school wereexcessive and inappropriate:

a. She said from the beginning of senior kindergarten Paige would often cry at thestart of the school day.

b. The Respondent said she tried to implement some techniques she had learned.She actually tried to calm Paige down even before they arrived at school.

Sometimes she calmed her the night before.c. But sometimes Paige was clingy and there was nothing the Respondent could do.d. She said it was “obtuse” for people to make quick judgments at the moment the

Respondent was saying goodbye to Paige, without knowing how hard she had been working to console and encourage the child.

156. The Respondent testified about entering the school when she dropped Paige off inthe mornings:

a. She said sometimes Paige would be so resistant or anxious about going into

school that the Respondent felt the best strategy was to wait until just before the



Page: 47

morning bell rang, and then walk Paige directly to her class, so ther e’d be no timefor the child to experience “last minute butterflies”.

b. She said usually it worked smoothly and she would drop Paige off at herclassroom door – just as she said a number of other parents did.

c. She said sometimes she would misjudge the time, and end up still in school when

the final bell went and the school doors were locked. In that event she’d have to backtrack and exit the school through the front office door.

d. She said often Paige would cry as she dropped her off at the classroom.

157. Grade two teacher Stickney testified she observed the Respondent dropping Paigeoff at school during the 2014-2015 school year.

a. She had no noteworthy concerns. b. The child didn’t cry when being dropped off.

c. The goodbyes were normal, from what Stickney saw.

EXCHANGES: STALKING

158. The Applicant testified that even after the prolonged access exchanges ended, the

Respondent continued to spoil visits – and upset Paige – by stalking them.

a. He said at times when he drove away from the access exchange location, the

Respondent would follow in her car, driving close behind. b. At times she would hold up a stuffed animal while sitting behind the steering

wheel and wave it at Paige as she sat in the Applicant’s car. c. On one occasion she followed the Applicant to his mother’s home. d. On another occasion she followed him to a drug store, where she used her car to

block the Applicant’s car in. She sat staring while the Applicant and the childwent into the store. The Applicant said the child was very alarmed.

e. One time she followed his car to a Fortino’s grocery store where she pulled upabout one inch behind him as he parked. Another motorist ended up honking ather for halting her car in an awkward position, and the Respondent became upset.

f. Sometimes the Applicant would change routes to get away from any roads theRespondent was likely to travel. But the Respondent would deviate from her

normal route and follow.g. One time the Respondent had trouble keeping up to the Applicant’s car, and

deliberately drove through a red light so the Applicant and Paige wouldn’t get

away.h. On one occasion as he turned his car around to try to get away from her, she drove

past and mouthed the words “You Fucking Asshole.” i. The Applicant produced an e-mail he sent the Respondent on May 17, 2013

asking her to stop following them. He sent the e-mail after an occasion when

White and her two children were in the Applicant’s car as the Respondentfollowed. He said not only Paige but also the White’s children got quite upset

about being followed.



Page: 48

j. The Applicant testified his lawyer also sent a letter formally asking theRespondent to stop this behaviour, but the problem continued.

k. The Applicant testified that regularly being followed like that not only upset Paigeat the commencement of the visit with her father – but it was also a dangerous

practice.

159. White testified she observed the same stalking behavior by the Respondent after

the Applicant picked Paige up for access. She gave detailed evidence about:

a. Being followed after access commenced, through the spring and summer of 2013. b. Seeing the Respondent driving directly behind, bouncing a stuffed toy on the

dashboard to get Paige’s attention.

c. The Respondent blocking traffic in a mall when she pulled up behind theApplicant’s vehicle while White stepped out to use a bank machine.

d. Witnessing the Respondent “blow through a red light” to keep up with them. e. Hearing the Respondent scream at the Applicant that he was an “asshole” after he

tried to take evasive action.f. Observing Paige become anxious and make statements like “Mommy’s followingus again.”

160. The Respondent denied following or stalking the Applicant following exchanges:

a. She said she generally allowed the Applicant to drive away first, so there could beno allegation of following.

b. She said one time she held back but then the Applicant took an unexpected turn,so they ended up travelling the same route. She was on her way to visit a friend, but she pulled off onto a side street so the Applicant wouldn’t see where she was

going.c. She denied ever going through a red light trying to keep up with the Applicant.

d. She denied yelling or swearing at him.e. She denied driving right up to the Applicant’s bumper, or blocking traffic in a

Fortino’s parking lot.

f. She acknowledged waving a teddy bear at Paige, but she said this was a longstanding pattern where she and the child would each wave some fluffy toy animal

as they were saying goodbye.

161. I accept the evidence of the Applicant and White about the Respondent being

overly emotional and having difficulty saying goodbye to Paige at access exchanges.This evidence is entirely consistent with the evidence of multiple school sources that the

Respondent has had long-standing similar problems saying goodbye to Paige at school. Iwill review additional examples of this below.

162. For similar reasons I accept the evidence of the Applicant and White that for an

extended period of time the Respondent engaged in the upsetting – and dangerous – practice of following in her car after delivering Paige for access.



Page: 49

a. On all of these issues, the evidence of the Applicant and White was detailed. TheRespondent’s denials were simplistic and implausible.

b. The evidence of tortuously upsetting goodbyes was corroborated by teachers.c. The evidence of Paige expressing worry about how her mother will cope without

her, was confirmed by teachers and social workers.

d. The evidence of the Respondent following in her car is consistent with otherobsessive behaviour, also discussed below.

EXCHANGES: PHOTOGRAPHY

163. The Applicant testified the Respondent added further tension by routinely photographing access exchanges.

a. He said during the first few months of 2014 the Respondent would regularly step

out of her car, have an exaggerated smile, and use her cell phone to take pictures. b. He said Paige would remark “Mommy’s taking pictures”. Later Paige would

describe to the Applicant some of the pictures the Respondent showed her. Paigeonce said “Mommy showed me a picture of (White’s) feet.” c. The Applicant and White both testified Paige became very stressed and upset by

the Respondent’s actions.d. The Respondent testified she was simply taking pictures inside her car to create a

date-stamped photograph to guard against accusations that she hadn’t shown up

on time.e. The Applicant disputed that explanation. He said she was taking pictures long

after disputes about access times had been resolved. And she was pointing thecamera at them.

f. CAS worker Alison Grice testified that during an April 10, 2014 interview Paige

told her the Respondent takes pictures during exchanges on her cell phone. Paigesaid she doesn’t know why. Paige told Grice it’s not good for her mother to take

pictures because the person might get hurt feelings. g. Hayes only had brief evidence on this topic, but it was consistent with the

Applicant’s version. Hayes testified Paige had a recollection of the Respondent

taking pictures of the Applicant (and the Applicant’s mother) during exchanges.

164. I accept the evidence of the Applicant, White, Hayes and Grice on this topic. Ifind that for at least a few months the Respondent was routinely using her cell phone totake pictures during access exchanges.

a. It is difficult to understand how any parent could consider such behaviour to be

innocent or helpful. b. Paige was already stressed about so many things.c. By conspicuously taking pictures the Respondent was simply ensuring that the

Applicant’s visits got off to an even worse start. d. Is that what she had in mind?



Page: 50

BIRTHDAYS

165. The Applicant testified the Respondent would undermine access by remindingPaige about all the fun activities she would miss when she went for visits with her father.

He alleged on one occasion the Respondent literally tore up a party invitation directly in

front of the child, to dramatize that she was going to lose out because of the Applicant’saccess. The Respondent denied this ever happened.

166. But the Respondent admitted she blamed the Applicant for the fact that Paigemissed her friend Sophie’s birthday party.

a. The Respondent testified that on two occasions in January 2013 the Applicantaccused her of fabricating a claim that Paige had been invited to friends’ birthday

parties. b. She said when she received an invitation for Paige to attend her friend Sophie’s

birthday party on February 10, 2013, she decided not to even inform theApplicant about the party, because it fell on his weekend and the Respondent

didn’t want any more trouble. c. The Respondent testified Paige wanted to attend the party and asked her mother ifshe could take her.

d. The Respondent said she told Paige that “there were rules and I had to fo llow therules”. She said Paige understood she would have to miss the party because of thecourt order that the Applicant was to have access.

167. When Paige went for her visit she mentioned Sophie’s birthday party to the

Applicant. He then immediately e-mailed the Respondent on the morning of the party,asking for details so he could take their daughter.

a. The Respondent declined to give him any information about the party. b. She testified she was going to be attending the party to help Sophie’s mother, so

she didn’t want the Applicant coming around. c. She also testified that Sophie’s mother – and almost all the parents of Paige’s

friends – didn’t want the Applicant coming around their homes. She said it was

because “they’ve seen what he’s done to my life.” But the Respondent’s friendChantel Danis testified she has never heard other parents express anything

negative about the Applicant. Danis could think of no reason why the Applicantwould not be welcome to bring Paige to a child’s residence for a birthday party.

d. The Respondent agreed under cross-examination that she could have sent a reply

e-mail suggesting that the Applicant drop Paige off in front of Sophie’s house.That way Paige could enjoy the party and the parties wouldn’t have any direct

contact.e. She testified “I could have, but I didn’t think it would work.”

168. Instead, the Respondent sent the Applicant an e-mail a 1:41 p.m. on the afternoonof Sophie’s party. That e-mail included the following statements:



Page: 51

a. “Stop harassing me.” b. “As you know, although it did not interest you in the least, because of you, Paige

has missed many activities, events and invitations, in fact you have falselyaccused me of “making up” invitations.”

c. “This weekend is no different, it is entirely you who is to blame for this fact of

Paige’s life, fair or unfair, her best interests or not, none of that’s relevant becauseit’s all about you, there is certainly nothing “fair” about what you have done.”

d. “Your sudden awareness to the moral and ethical aspect of your conduct is yourown battle, surely you won’t hold me responsible for your guilty conscience

also.”e. “We have already given a gift for Sophie’s birthday, and have made other

arrangements, as we have done for all the other occasions as our lives continue to

revolve around you.” f. “Once again, I look forward to hearing from your creative lawyer regarding this

completely unnecessary correspondence.”

169.

I cannot help but conclude the Respondent could have handled this so much better.

a. Paige wanted to go to Sophie’s party. b. The Applicant wanted to take her to Sophie’s party. c. If the Respondent truly had Paige’s best interests in mind, she could easily have

made it happen.d. There was no need to stress a five year old by telling her about court orders and

blaming “access” for missing out on fun.

170. The Respondent’s motive was transparent:

a. Punish the Applicant.

b. Manipulate the child.c. Remind Paige that good things happen when she’s with her mother – not with her

father.

171. Sadly, that same self-centered mindset came to ruin Paige’s own b irthday party,

just a few months later.

a. In June 2013 Paige’s sixth birthday fell on the Applicant’s access weekend.

b. The Applicant booked a surprise birthday party at Adventure Playland inBurlington.

c. He e-mailed the parents of about 15 of Paige’s classmates and friends, andfollowed up with invitations delivered at school.

d. He testified that many parents didn’t respond; some parents accepted and then

cancelled; and ultimately only about three of Paige’s friends showed up for thesurprise party.



Page: 52

e. The Applicant said Paige was devastated by the low turnout. She was sad because she concluded that nobody came to her party because nobody liked her.

f. However, one of the mothers approached the Applicant and explained that hardlyanybody showed up for the party because of a note the Respondent had sent all of

the parents.

g. It turned out the Respondent had arranged her own birthday party for Paige on adifferent day. The Respondent wanted children to attend her party, not his.

172. The Applicant was cross-examined about these competing birthday parties.

a. He acknowledged that he only advised the Respondent of his party five daysahead of time.

b. He said the Respondent knew Paige’s birthday was going to be on his access day. c. She could have advised him if she was planning a different party on another day.

d. There was no need for her to contact parents behind his back to discourage themfrom having their children attend the birthday party he had arranged.

e. He said in the end, the only one who suffered was Paige.

173. Senior kindergarten teacher Lawson testified about the incident:

a. She said there was no protocol at school concerning birthday party invitations. b. She would distribute such invitations in the “important bags” which would go

home with all children in senior kindergarten.c. She recalled at the Applicant’s request she distributed invitations for Paige’s

birthday party to all of her classmates, through the important bags.d. She subsequently received another set of birthday invitations which the

Respondent had submitted for distribution to the class.

e. Lawson contacted the Respondent to make sure she was aware that birthdayinvitations had already been sent out by the Applicant. She asked if the

Respondent still wanted her invitations sent out.f. Lawson said it became apparent that the Respondent did not know of the

Applicant’s birthday party.

g. The Respondent asked her to proceed with the invitations, so the following dayLawson sent them out to all the children.

174. Catherine White testified about Paige’s June 2013 birthday party.

a. She confirmed the Applicant’s evidence that only two or three classmates showedup.

b. She said Paige was upset.c. She said Paige almost seemed to be consoling the Applicant about the fact that the

party he had tried to set up was not very successful.

d. White said she wasn’t aware that the Respondent also had a party for Paige. e. She said wouldn’t have seen a problem with Paige having two birthday parties.



Page: 53

175. The Respondent testified about the conflicting birthday parties.

a. She said in June 2012 the Applicant had attended and participated in a fancyMadagascar themed birthday party at the Respondent’s home. So he knew how

much effort she put into organizing birthday celebrations for Paige.

b. She said in 2013 she spent an extended period organizing an equally fancy birthday party for June 22 – the first weekend Paige would be with her, after

spending her actual birthday with the Applicant. The birthday party was themedafter another children’s movie, “Brave”.

c. The Respondent said she presumed that either Paige had mentioned this to theApplicant, or at the very least he should have anticipated that in 2013 theRespondent had some sort of big birthday party planned.

d. She admitted she never told the Applicant about the birthday party she was planning. But, maintaining a “tit for tat” pattern throughout her cross-

examination, she noted that he also hadn’t notified her about the birthday party he was planning.

e. She said she received an e-mail from the Applicant on June 11, 2013 advising herof his June 16 party. But she said she had already tried to send her invitations outon June 10th.

f. She said teacher Lawson told her at the end of a school day that she hadn’tdistributed the Respondent’s invitations because she had already distributed theApplicant’s invitations. Lawson wanted to double check with the Respondent

about whether she still wanted her invitations distributed.g. The Respondent said she felt Lawson had inappropriately taken sides. She asked

Lawson to distribute her invitations as well.

176. The Respondent testified when she learned of the Applicant’s party she tried to

straighten out any confusion among parents by including the following note with theinvitation to her own “Brave” birthday party:

“Dear parents:

If this invitation comes as a surprise and/or is confusing, please contact me so that Imay have the opportunity to explain.

Briefly, Paige is very excited about her “Brave” party as she and I have been planningit for some time. It was brought to my attention by some parents with whom I am

personal friends, that invitations for a party have already been sent out. Theyrecognized that the invitations were not from me. Neither Paige nor I know anything

about this other party. Not knowing what to do or how to handle this, my dear friendsurged me to follow through with our party on the 22nd

because it is the party that Paigeis expecting, and the party that they had been planning to attend. I hope this helps toclarify at least a little.

Thank you very, very much for your understand of this unusual, difficult, andawkward situation. I was at a loss as to the best way to handle this; it has come as acomplete surprise to me.”



Page: 54

177. The Respondent disputed the suggestion that it might have been more helpful to

contact the Applicant as soon as she learned about the competing parties, rather thansimply send this letter behind his back.

a. She said it didn’t cross her mind that the Applicant hadn’t known she was planning a party – even though she never told him.

b. She said she knew the Applicant was acting in bad faith, so there was no pointeven trying to talk to him.

c. She said he only notified her of his party by e-mail on June 11 to “cover histracks.”

d. “He swooped in and tried to sabotage my party by booking a party before mine,

and sending invitations out before I did.” e. “I didn’t think it was appropriate that he tried to destroy a birthday party for Paige

that she cared very deeply about.” f. She insisted that even though Paige’s birthday fell on the Sunday of his access

weekend, he had no right to book a party without contacting her first.g. She said the Applicant made it worse by inviting all of the children in Paige’sclass – “including the boys”– because she and Paige had been planning an “all

girls” Brave birthday party.

178. The Respondent testified she never intended to discourage anyone from attending

the Applicant’s party.

a. She was simply trying to clarify things for people who might be confused aboutgetting invitations for two separate birthday parties for one child.

b. She said she had “no negative intention whatsoever.”

c. She assumed no responsibility for the fact that very few children attended the party the Applicant arranged for Paige.

179. During cross-examination she became quite angry and combative when it wassuggested Paige would have been much better off if the Respondent has simply conveyed

a different message in her letter to parents.180. For example, since the Respondent kept insisting during her testimony that there

was no reason why Paige couldn’t have two birthday parties, the Applicant’s counselsuggested she might have written something like:

“Paige’s father and I are each planning exciting birthday parties for her. We’d loveit if your child could attend both parties. You need not bring gifts to either party.”

181. The Respondent explained she was just trying to clarify the matter without goingthrough the embarrassment of telling people Paige’s parents were separated.

182. The Respondent denied the suggestion that saying “Neither Paige nor I knowanything about this other party” was misleading or malicious.

a. She admitted she knew more about the party than she was letting on.



Page: 55

b. She knew it was the Applicant – not some mystery person – who was throwingthe party during a scheduled access weekend.

c. She said she didn’t intend to alarm parents or convey the impression ofimpr opriety or disapproval in relation to the Applicant’s party.

d. She said she wasn’t trying to send the message that the Applicant’s party was less

valuable or less worthy than her party.e. “I tried to handle it the best I could. I tried not to put any negative spin on

anyone.”

183. The Respondent completely disowned any responsibility for the fact that almostno children attended the surprise birthday party, and Paige ended up being quite upsetand disappointed.

a. She said she didn’t know how many children attended.

b. She said she could imagine that Paige might have been disappointed by a lowturnout.

c. But no matter how sad Paige might have been that her party – on her actualbirthday – was a bust, there was nothing the Respondent could or should havedone differently.

d. She insisted the entire mess – and any upset Paige experienced – was completelythe Applicant’s fault.

e. During cross-examination she kept emphasizing that he was the one who tried to

sabotage her party. “But it didn’t work!”

184. The Respondent maintained a double standard.

a. He should have known to check with her . But she had no responsibility to check

with him. b. She was acting in good faith, trying to make her daughter happy with a nice party.

But he only wanted to use a party as an opportunity to hurt the Respondent.

185. I find that in many ways this birthday party competition symbolized the overall

conflict between these parties.

a. The Respondent clearly resented the Applicant being able to enjoy a specialoccasion with Paige.

b. She resented it so much that she embarked on a deliberate campaign to subvert the

Applicant’s special occasion – without regard to the collateral damage she wouldcause to her own daughter.

JUNE 2013 ASSESSMENT STARTS

186. The Applicant testified the competition over Paige’s birthday was only one of theways conflict escalated in June 2013 just as Hayes’ started work on the custody

assessment.



Page: 56

187. On May 28, 2013, following a contested motion, Justice G .E. Taylor granted atemporary order which further expanded the Applicant’s access:

a. Alternate weekends Friday after school until Monday morning, exchanges at

Paige’s school.

b. If the Applicant was working days or nights, he would have Tuesday after schooluntil 7:00 p.m.

c. If the Applicant was off work, he would have Wednesday after school untilThursday morning.

d. The Applicant was entitled to substitute other weekdays for these Tuesday andWednesday provisions if his shift schedule requires it.

e. There were other provisions for Father’s Day and two non-consecutive weeks

during July and August.f. Reasonable telephone access.

188. The Applicant testified after the expanded access order the Respondent started

telephoning Paige during access.

a. Each time the child would get off the phone crying and saying that she misses her

mother; she’s worried about her mother; and her mother won’t be able to sleep. b. She would become sad after those phone calls and not act like herself.c. This telephone interaction with the Respondent would affect the child’s entire

day.d. The Applicant testified he discussed this problem with Hayes who ultimately told

him that if the phone calls were causing distress for the child, the Applicantneeded to do what was best for the child.

e. So he said there was a short period – a matter of a few months – when he didn’t

allow the Respondent to have telephone access to Paige during his weekend visits,to avoid having the child become upset.

189. The Applicant testified he allows Paige to call the Applicant but the child usuallysays she doesn’t want to speak to her mother – despite the fact that Paige verbalizes that

she misses the Respondent.190. White testified Paige was allowed to telephone her mother during access at the

Applicant’s, but there were problems:

a. After Paige got off the phone, the child would become upset and say things like:

“Mommy misses me.” “Mommy can’t sleep without me in bed.” “Mommywants me to come home.”

b. By 2014 these phone conversations with the Respondent would upset Paige somuch that after she got off the phone she would become distraught and startcrying.

c. White said when Paige became upset after ending her phone calls with theRespondent, the Applicant would try to console her and would offer that she



Page: 57

could call her mother again if she wanted. But Paige wouldn’t want to call again,and said it would only upset her more.

d. Paige would continue to make statements like “Mommy says she’s going to diewithout me.”

191.

White said at times during those phone calls she could hear Paige trying toconsole the Respondent, saying things like: “It’s ok, I won’t be there kicking you”.

“Kicking” referred to the fact that at the Respondent’s home mother and daughter slepttogether in the same bed.

a. The Respondent testified Paige found it comforting to sleep with her mother, because of their close bond.

b. Hayes testified Paige told her it was more about the Respondent requesting thatshe sleep with her -- rather than the child wanting to sleep with the mother.

c. Paige said it also made her feel safe.d. Paige told Hayes she has no difficulty sleeping in her own bed at the Applicant’s

residence. She said she likes her bed and bedroom at his home.

192. Hayes said there is varying literature on family sleeping arrangements.

a. She said there is general consensus that children are better off if they have someindependence so they can self-soothe.

b. She said Paige was able to show that independence sleeping in her own bed at theApplicant’s home.

RECREATIONAL ACTIVITIES

193. Also in June 2013, things came to a head at a children’s soccer game in relation tothe Applicant’s complaint that the Respondent was excluding him from any of Paige’s

recreational activities.

a. Since the date of separation the Respondent has registered Paige in a number of

extra-curricular or recreational activities, but by her own admission she has shutthe Applicant out of any participation.

b. The Respondent signed Paige up for swimming, but wouldn’t tell the Applicantwhere or when. During a drive Paige pointed out the location to the Applicant.He said when he later went in to inquire, he was told there was a note on the file

that no information was to be released to him. The Respondent denied givingsuch instruction, but acknowledged she registered Paige under the name Mayerle.

c. The Respondent enrolled Paige in karate but wouldn’t say where. The Applicantsaid Paige enjoyed it and wanted him to come to watch, but the Respondentrefused. The Respondent complained the Applicant’s alternate weekend access

meant Paige had to miss karate every second weekend. But she refused to allowthe Applicant to take Paige to karate on his weekends. She said it was a Mayerle

family activity which included Paige’s cousins. She had her brother attend for a



Page: 58

Father’s Day karate event, instead of the Applicant. She agreed Paige might likehaving the Applicant present to observe her progress. But she said “the

opportunity didn’t present itself due to the ruthless nature of the Applicant’slitigation.”

d. The Respondent arranged piano lessons for herself and Paige together . She also

signed them up for joint French lessons. She said learning activities with herdaughter “worked brilliantly” for Paige. They taught each other and it

strengthened their relationship. The Applicant testified it was unfortunate that helearned after the fact that Paige had been missing half her Saturday piano lessons

because of the access schedule. He said he had a keyboard and Paige could have practiced in his home. But Paige admitted to the Applicant and White that shewas told by the Respondent to keep the piano lessons a secret

e. CAS worker Alison Grice testified that during an April 10, 2014 interview Paigetold her “don’t tell dad about piano.” Paige says it makes her feel sad, and she

doesn’t know why. f. The Respondent enrolled Paige in other activities like ballet, acrobatics, dance

and art. But she excluded the Applicant from all of them.

SOCCER

194. The Applicant testified that soccer was another activity the Respondent tried tomonopolize:

a. During the summer of 2013 the Applicant knew Paige was happy playing soccer,

but the Respondent wouldn’t tell him where or when. b. The Respondent investigated soccer for girls in Paige’s age group, and after

driving around he eventually spotted his daughter playing on a soccer league

field.c. He said when he approached Paige was “super excited” to see him, but the

Respondent pulled the child away and said “This is my time asshole.”

195. Under cross examination the Applicant admitted that sometimes he would attend

to watch Paige play soccer even if it wasn’t on his access night.

a. He said he would just go up and say hello to his daughter. b. She would be happy to see him and they would kick the ball back and forth

briefly.

c. He said that even though he wasn’t trying to encroach on the Respondent’s timeor be provocative, tensions “definitely escalated” when he attended the soccer

field on non-access nights.

196. I heard a lot of evidence about a particularly nasty -- and completely avoidable --

soccer incident in June 2013.197. The Applicant’s version:



Page: 59

a. At Paige’s request the Applicant brought his mother Vivien to watch the child play soccer.

b. But because the Respondent dislikes Vivien, the Respondent pulled the childaside, whispered something to her which made her cry, and then led the child off

the soccer field for the rest of the evening.

198. The Respondent’s version:

a. The Applicant arrived during warm-up and tried to monopolize the ball and lure

Paige away. b. She said he arrived “with his entourage.” “I believe he was just trying to cause

problems.”

c. As she knelt beside Paige to tie her soccer shoe, the Respondent noticed theApplicant’s mother across the field.

d. The Respondent said she instantly became “nervous, agitated and worried aboutsomething happening.”

e. She admitted at that point Vivien hadn’t actually said anything and wasn’t evennear her. But the Respondent made the decision to leave with Paige.f. “My stomach turned. I was afraid. I made a split second decision I needed to

leave the soccer field right then and there.” g. She testified that when she finished tying Paige’s shoe she took the child, and

asked her friend Sarah Dalrymple to walk with them to her car.

h. She said Paige asked why they were going to the car. She replied that she wantedto show Sarah something.

i. She denied “pulling Paige off the field” and denied the child was crying.

199. The Respondent said even though she was trying to avoid a confrontation, that’s

exactly what happened.

a. She testified Vivien came racing across the field, shouting and approachingaggressively.

b. She couldn’t recall what Vivien was saying because she wasn’t listening. But

Vivien was shouting nasty things.c. She testified Dalrymple tried to defend her and told Vivien she was acting

inappropriately in front of the child. Vivien and Dalrymple exchanged words.d. The Respondent described it as “a horrible scene and I just wanted to get out of

there.”

e. She denied Paige was crying as she led her toward the parking lot, because at that point Paige didn’t realize they were actually leaving.

f. The Respondent said by the time they reached her car she herself was “probably a bit teary if not crying, and Paige was crying.”

g. She said she felt sick to her stomach and very afraid.

h. The Respondent said as she and Paige drove home she had to pull over and theRespondent was sick to her stomach.



Page: 60

i. She said Paige was very helpful and tried to comfort her. “She was comfortingme as much as I was comforting her.”

200. The Respondent clearly stated she decided to leave the soccer game because of

her concern about her own interaction with the Applicant’s mother. She had difficulty

explaining why she couldn’t have left Paige to play soccer:

a. “I needed to leave. Paige had to come with me because she’s my daughter.” b. She said she couldn’t leave Paige with the Applicant because she hadn’t discussed

such arrangements with him, and she couldn’t.

201. In a written summary to Hayes during the assessment, the Respondent painted a

more accusatory picture.

a. “Davis forced his way into our practice time together and took Paige from me andour friends.” During her testimony she didn’t say he “forced” anything. She said

he arrived, started monopolizing the ball during practice and “lured” Paige away. b. “Davis’ mother accosted me and Hayley’s mom Sarah while Paige was walkingwith us.” The Respondent didn’t tell Hayes that whatever confrontation arose

was triggered by the Respondent’s unilateral and unexpected decision to startwalking Paige off the soccer field before the game began.

c. “Vivien shouted profanities from across the field as she aggressively approached

me, Sarah and Paige.” During her testimony she said the Vivien came racingacross the field after the Respondent started leading Paige away. She testified

Vivien was shouting. But she specifically testified she couldn’t recall whatVivien was saying because she wasn’t listening.

d. “She continued to yell profanities directly in our faces while Davis and his partner

stood by doing nothing ( both police officers).” Again, in her testimony theRespondent said she couldn’t remember what the grandmother was yelling.

e. “Sarah and I sheltered Paige as we negotiated our way out of Vivien’s path.”During her testimony, the Respondent said nothing about “sheltering” Paige.

202. The Applicant’s fiancé White testified that she, her children, the Applicant, andhis mother and step-father all went to watch the soccer game. Paige had been asking

them for a while to come.

a. As they started opening up their lawn chairs, the Applicant approached Paige and

she was excited to see him. b. White said she then noticed the Respondent take Paige by the arm and lead her to

the side of the field.c. The Respondent squatted and said something to Paige, at which point the child

burst into tears.

d. White said there was then some sort of interaction between the Respondent andVivien.

e. The only thing White heard was Vivien saying “What are you doing?”



Page: 61

f. White said Vivien returned quite upset, saying that the Respondent stated in frontof Paige: “You’re not her grandmother.”

g. White said this was the second time she’d gone to watch Paige play soccer. Afterthe incident, she never went back.

203.

White testified Paige subsequently told her that after the incident her mother toldher:

a. That Nanna (Vivien) swore at the Respondent. But Paige told White that she

knew that didn’t happen. b. That the Applicant and White are both police officers and they should have

arrested Nanna.

204. White testified she didn’t hear the paternal grandmother swear.

205. Buck ley’s version:

a. He and his wife Vivien had gone to watch Paige play soccer. b. At the beginning the Applicant went onto the field to help Paige warm up.c. Buckley said he then saw the Respondent come out and take Paige by the arm and

start to lead her away.d. Buckley said he saw Paige’s “face kind of collapse.” She was obviously really

upset.

e. Buckley testified he then left the area to retrieve something from a car, at theApplicant’s request.

f. As Buckley was heading back onto the soccer field from the parking lot he sawthe Respondent and Paige were walking off the field. Vivien was walking besidethem, and there was a verbal exchange going on between the Respondent and

Vivien.g. Buckley said his wife appeared to be “confounded”. He heard her say something

like “I can’t believe you’re taking my granddaughter away from the game.” h. He said the Respondent replied; “Well you’re not her grandmother”. i. He said the Respondent and Paige kept walking away and he didn’t hear anything

else.

206. Buckley testified after that incident he continued to come to watch Paige playsoccer. But he disguised himself by wearing a baseball cap and sitting with the opposingteam, so the Respondent wouldn’t see him there and get upset.

207. The Respondent’s friend Sarah Dalrymple testified:

a. Her daughter Hayley and Paige were on the same soccer team. b. Dalrymple and Hayley were already on the field getting ready. The Respondent

and Paige arrived moments later.

c. She said the Respondent noticed that the Applicant and his family were present onthe sidelines.



Page: 62

d. The Respondent told her she felt very uncomfortable with them present and askedDalrymple to accompany her and Paige to her car.

e. While they were walking toward the car, Vivien came across the field quickly andstarted yelling at the Respondent.

f. She hear d Vivien call the Respondent a “fucking bitch” in front of Paige.

g. Dalrymple said she told Vivien her behaviour was inappropriate. Dalrymplesaid Vivien then became verbally harsh with her.

h. She said she heard Vivien yelling “You’re taking my granddaughter away.” Shecouldn’t recall “the rest of the swearing.”

i. She said the Respondent was upset and continued to walk to her car with Paige.

208. Dalrymple was cross-examined about the soccer incident:

a. She acknowledged that no one had approached the Respondent prior to her

decision to leave the soccer field with Paige. b. She said at that point Paige was not upset.

c. She said it would have been obvious that they were leaving the soccer field because the Respondent was carrying all Paige’s belongings. d. She couldn’t recall if Paige was upset about leaving the soccer field.

e. She said Paige started crying when Vivien started yelling.

209. Dalrymple testified she has seen the Applicant attend other soccer games and

never noticed any problems.210. During a January 7, 2014 interview Paige told CAS worker Alison Grice about a

time when the Applicant and “Nanna” attended Paige’s soccer game. Paige said:

a. The Respondent doesn’t like the Applicant coming to soccer.

b. Nanna was yelling swear words at the soccer game.c. The Respondent made Nanna leave and Paige didn’t know why.

211. Notably Grice testified that during a subsequent interview on April 10, 2014Paige discussed the same soccer incident – except she gave the impression that she never

heard Nanna swearing.

a. She said the Respondent “thinks Nanna said swear words.” b. She said the Respondent told her that Nanna said swear words in front of her and

other six year olds.

c. Paige didn’t know why her mother thinks Nanna was swearing.

212.

Hayes testified about Paige’s perception of the soccer incident:

a. Her father showed up and wanted to play soccer with them and kick the ball

around. b. Her mother wouldn’t let him.



Page: 63

213. Having heard all of this evidence, it is hard to understand why Paige didn’t get to play soccer that evening.

a. Paige wanted to play soccer. Lots of people had gathered to watch her play

soccer.

b. Things were uneventful until the Respondent had some sort of panic attack whenshe saw the Applicant’s mother on the sidelines.

c. The Respondent created her own crisis. Nobody was misbehaving. TheApplicant’s mother wasn’t anywhere near her when the Respondent suddenly

decided the situation was intolerable.d. If the Respondent felt uncomfortable, she had the option of exiting the soccer

field but leaving Paige to enjoy the game. There were lots of caring adults who

could have watched Paige. Even the Respondent’s close friend Dalrymple. e. Instead, the Respondent made a dramatic decision to pull Paige out of the game

before it started. And things escalated terribly.f. It sounds like the Applicant’s mother confronted the Respondent once she was

leading Paige away from the game. It’s unclear exactly what she said, andnotably she didn’t testify.g. But it’s hard to understand why this had to end up with mother and daughter

crying; mother being so upset that she had to pull over at the side of the road tovomit; and six year old daughter having to comfort mother.

214. Notably, the Respondent blamed the Applicant and his mother for the soccerfiasco. She cited the incident as an example of why she has deliberately excluded the

Applicant from participating in any of Paige’s activities. She explained her rationale:

a. Her priority is to give Paige a wonderful childhood. This involves Paige being

involved in numerous activities. b. She testified that she has arranged all activities for Paige and the Applicant has

done nothing. She disagreed that he was unable to schedule activities because ofrestrictions she imposed on the amount of access he could have.

c. “I give my daughter a life. I adapt. I make sure she has a life. She has had a

great life and that’s because of me.” d. She doesn’t include the Applicant in activities she arranges for Paige because

there is too much conflict.e. She said she gave the Applicant a chance by allowing him to attend soccer in

2013. She called it a test. But she said the Applicant created all sorts of

problems, so she wasn’t going to allow him to spoil anything else. f. Under cross-examination she admitted she had been excluding the Applicant from

Paige’s events even prior to the 2013 soccer “test”. g. She said she has tried to be cooperative but the Applicant insists on pursuing this

“ruthless litigation”. As a result, they can’t get along, and they can’t be in the

same place at the same time. So they’ll each have to arrange their own activitiesfor Paige.

h. She won’t attend his activities. She doesn’t want him to attend hers.



Page: 64

i. She admitted she wasn’t sure how to handle ongoing activities which span both oftheir times if weekends or even weeks are alternated between them.

215. The Applicant disagreed the Respondent has ever given him a chance to be

involved in Paige’s activities. He said he fears that if she gets the sole custody order she

seeks, she will continue with her campaign to shut him out of his daughter’s life.

a. He cited other examples of problems relating to soccer. b. Even if he was taking Paige to soccer on his access days, the Respondent refused

to give him her soccer uniform. The Respondent insisted she would bring herequipment to the game – and take it back to her home afterward.

c. He described an occasion when the Respondent showed up late with the

equipment. Paige had to miss her game. (The Respondent testified she wasrunning late but he knew she was coming and should have waited.)

216. The Applicant testified about a problem involving a child’s program named

Sparks:

a. On September 27, 2013 the Respondent sent an e-mail to the Applicant advising

that she had enrolled Paige in Sparks on Tuesday nights. b. But the May 28, 2013 temporary order said Paige was to be with the Applicant

Tuesdays after school until 7:00 p.m.

c. The Respondent hadn’t consulted the Applicant, but now asked that he returnPaige early at 6:15 p.m. on Tuesday nights.

d. When the Applicant offered to deliver Paige directly to Sparks, the Respondentinsisted that it was a Girl Guides activity and only females were allowed.

e. October 1, 2013 was the first night. Even though the Applicant doubted the

Respondent’s statement that fathers weren’t allowed to even deliver daughters tothe program, he complied with the Respondent’s instructions because he didn’t

want Paige to miss out on the event.f. The same thing happened October 8, 2013: He returned Paige to the Respondent

at 6:15 p.m. so she could attend Sparks.

g. But on October 15, 2013 the Respondent didn’t show up at the requested 6:15 p.m. exchange time.

h. So the Applicant drove Paige to the Sparks program – only to be informed by theSparks leader that Paige was no longer enrolled in the program.

i. The Respondent had withdrawn Paige after the October 1st initial session. She

didn’t take Paige to Sparks on October 8th even though she still picked the childup at 6:15 p.m.

j. The Respondent never advised the Applicant about any of this.k. And as with most activities, the Respondent had registered Paige under the

surname Mayerle.

217. Under cross-examination the Applicant denied ever being opposed to Paige

attending Sparks.



Page: 65

a. If Sparks occurred on his access night, he was willing to cut his visit short. He

simply wanted to deliver Paige to Sparks, and perhaps drop in and watch for a fewminutes.

b. He said he wasn’t trying to interfere with any parental involvement the

Respondent had in Sparks.c. He said there would be no conflict if he dropped Paige off at Sparks, because he

and the Respondent wouldn’t have to interact.

218. The Respondent explained her position on Sparks:

a. Paige first attended Sparks in the fall of 2012. The season is similar to the school

year. b. The Respondent made inquiries about becoming a Sparks leader, because the

Respondent and her own mother had a long history with Girl Guides.c. After registering the child for Sparks on Tuesday nights – the Applicant’s access

night -- the Respondent e-mailed the Applicant asking him to return Paige at 6:15 p.m. Tuesdays so the Respondent could take her to Sparks.d. The Applicant refused, offering to take Paige directly to Sparks for the 6:30 p.m.

start time.e. The Respondent said she explained to the Applicant that Girl Guides had a policy

which did not allow parents to participate – unless they were a leader.

f. When the Applicant insisted he would take Paige, the Respondent withdrew thechild from Sparks.

g. The Respondent had not, at that point, become a leader. She abandoned herapplication.

219. The Respondent was cross-examined about Sparks:

a. She agreed Paige really enjoyed Sparks. b. She disagreed that the Applicant was trying to find a solution so that Paige could

still attend Sparks.

c. She said “He was saying yes but on his terms.” Asked whether she was sayingPaige could only go to Sparks on her terms she replied “Yes, I guess you’re right

in a way.” d. She emphasized that she was going to be a leader in Sparks and the Applicant was

not. So she should be there and he shouldn’t.

e. She was asked why the Applicant couldn’t simply drop Paige off for Sparks, andthe Respondent could still be a leader. She said in other circumstances the

Applicant’s request would be very reasonable. “But regardless of how it shouldwork out between two civilized people, it won’t work out because we can’t getalong in our high conflict situation.”

f. At one point she alleged the Applicant was asking to “participate” in Sparks. Shelater agreed that in an e-mail he merely asked to watch his daughter “participate.”



Page: 66

220. The Respondent was questioned about whether she continued to pick Paige upearly for Sparks – even though the child was no longer attending.

a. She took Paige to the first session October 1st.

b. After receiving correspondence from the Applicant’s lawyer advising that the

father wanted to take Paige to Sparks, on October 7, 2013 the Respondent wroteto the organization withdrawing the child from the activity.

c. But on October 8, 2013 the Applicant was still e-mailing the Respondent askingfor details about Sparks. He sent her an e-mail reluctantly agreeing he would

again drop Paige off at 6:15 p.m. at their exchange location, to allow theRespondent to take the child to Sparks.

d. The Respondent vaguely denied the Applicant’s evidence that she picked Paige

up on October 8, 2013 at 6:15 p.m. – even though she knew (and he didn’t) thatPaige wouldn’t be going to Sparks that night.

e. She said “I don’t recall showing up at 6:15 p.m.” She thought it was more likelythe normal 7:00 p.m. exchange.

f. The Applicant was adamant: He dropped Paige off at 6:15 p.m. on both October1st and October 8, to facilitate Sparks.

221. Under cross-examination the Respondent said she couldn’t understand why theApplicant would have gone to Sparks on October 15, 2013 looking for Paige.

a. She was certain the Applicant was aware prior to October 15th that she had pulledPaige out of Sparks.

b. She couldn’t recall if she actually told him.c. But she said her lawyer notified his lawyer in a letter dated October 8, 2013.

222. Even though her lawyer’s letter didn’t even mention the word “Sparks”, theRespondent still insisted that the following paragraph should have made it clear to the

Applicant that Paige would no longer be attending Sparks on Tuesday nights:

“Typically Ms. Mayerle has made alternate arrangements given that as of May28, 2013 Tuesdays have become Mr. Jackson’s designated day to visit withPaige.”

223. Sparks leader Monique Alderman’s evidence included the following:

a. The Respondent signed Paige up for Tuesday night Sparks.

b. Paige only attended for two or three sessions in the first half of October.

c. The Respondent brought Paige in the first day.d. The Applicant brought her in the second day.

e. Alderman didn’t notice anything unusual about either parent or the child. Paigehad a good relationship with both of them. They both tried to reassure the young

child. Paige appeared happy with each of them.



Page: 67

f. Alderman said even though it was a Girl Guides program, there was no reason afather couldn’t drop off a daughter and remain present to observe and reassure his

daughter. That’s what the Applicant did and there were no problems with this. g. The Respondent had signed up to be a volunteer in Sparks, but Paige stopped

attending before the Respondent’s application was processed.

h. Alderman testified she met the Applicant again on a subsequent Tuesday inOctober when he arrived looking for Paige, but the child hadn’t been brought in.

At that point Alderman hadn’t been notified that on October 7, 2013 theRespondent had sent an e-mail withdrawing Paige from Sparks.

i. Alderman said the Applicant explained the parents were separated and he wassupposed to have Paige Tuesday nights. Alderman told him she had noinformation about why Paige wasn’t present.

j. She expressed no concerns about her interaction with the Applicant when he camelooking for his daughter.

224. Despite insisting that Paige loved going to Sparks, under cross-examination the

Respondent couldn’t remember how Paige reacted when she learned she wouldn’t begoing to Sparks anymore.

a. She couldn’t recall if she actually told Paige she was being pulled out of thisactivity she liked so much. “Perhaps I left it up to him to tell her.”

b. The Respondent testified her hands were tied. Tuesday nights belonged to the

Applicant, according to the temporary order. She had to abide by the court order.If that meant that Paige had to miss Sparks, there was nothing the Respondent

could do about it.c. She said it was an important lesson for the child: “Not everything can be ideal

and perfect. That’s part of growing and learning.”

225.

The Respondent insisted this was another example of why the Applicant shouldn’t

be involved in Paige’s activities. She testified:

a. The Applicant ruined Sparks for Paige.

b. She had no obligation to consult with him prior to registering the child for Sparks.c. She had no obligation to consult with him prior to withdrawing the child from

Sparks.d. Whenever the Applicant has tried to involve himself in Paige’s activities there

have been problems.

e. Whenever the Applicant hasn’t been involved, she and Paige have an excellenttime.

226. Notably, while the Respondent testified at great length about why she didn’t wantthe Applicant coming anywhere near Sparks, there was no evidence that Paige would

have been opposed or upset by her father dropping her off.227. I find that all of this could have been avoided – and Paige could have enjoyed

Sparks – if the Respondent hadn’t been so rigid and controlling.



Page: 68

228. Hayes testified about Paige’s extra-curricular activities.

a. She said to predict future parental behaviour we often consider what parentingopportunities the parties have had thus far – and how they have used them.

b. The Applicant has consistently sought more opportunity to be involved in Paige’s

activities. He has been denied those opportunities by the Respondent. Hayes saidthere is no reason to believe the Applicant’s involvement in those activities would

not be in the best interests of the child.c. Conversely, the Respondent has had the opportunity of controlling all of Paige’s

activities. She used that opportunity to select wonderful programs. But she alsoused that opportunity to shut the Applicant out of Paige’s life.

d. Hayes said it is in Paige’s best interest that the Applicant be equally involved in

the child’s recreational activities. Paige wants him there. He wants to be there. e. But because of the high level of contact between the parents, they should not be

present for her activities at the same time – except for special occasions like“final” games.

f. Neither needs to have exclusive authority over a particular activity. They canalternate attendance.

229. Under cross-examination by the Respondent’s lawyer, Hayes was asked whetherthe Respondent was actually showing good judgment in keeping the Applicant away fromPaige’s activities – because Hayes herself said both parents shouldn’t attend activities at

the same time.

a. Hayes disagreed that the Respondent’s unilateral decisions were good for Paige. b. She said neither Paige nor the Applicant were well-served by the lack of

facilitation of information by the Respondent. By the deliberately withholding

information.c. Hayes said both parents should have the opportunity to be equally involved in

Paige’s life.d. The assessor testified the Respondent struggled with the idea that Paige should

spend any more than alternate weekends with the Respondent.

STILL MORE ACCESS PROBLEMS

230. The Applicant testified conflict seemed to escalate during 2013 while Hayes wasconducting her assessment:

231. The May 28, 2013 temporary order allowed him certain vacation weeks duringJuly and August.

a. But he testified that the Respondent then booked her vacation time to selectivelycancel any other time the Applicant would have with Paige.

b. As a result there was a 25 day gap when he didn’t see Paige during the summer of2013.

c. He had similar problems during the summers of 2014 and 2015.



Page: 69

d. The Respondent admitted the Applicant went long periods during summerswithout seeing Paige.

e. But she testified that she didn’t create the situation, nor was she obliged to rectifyit.

f. “I’m not the one making up the court order.”

232. On Friday August 21, 2013 Paige was with the Respondent, but the Applicant had

to pick her up at 9:00 a.m. to take her to a meeting with Hayes.

a. The Applicant asked the Respondent if Paige could remain with him after themeeting, since his weekend access started at 5:00 p.m. that day.

b. The Respondent refused the request, insisting that Paige be returned immediately

after the meeting. The Applicant could then pick her up again at 5:00 p.m.c. Under cross-examination the Respondent admitted the Applicant made a

reasonable request.d. But “I happen to love my daughter and I wanted to spend time with her.”

233. He said if he had Paige for a weeknight dinner visit, the Respondent woulddeliberately overfeed the child ahead of time. He said she even fed Paige a full meal

before sending her for Thanksgiving dinner with the Applicant. The Respondent deniedall of this.

234. The Respondent had her own complaints about the Applicant.

235. He expected mid-week access to change weekly based on his employmentschedule.

a. But even though he knew his employment schedule one year in advance, hewouldn’t provide his calendar of proposed access dates until just before each

month started – and sometimes a few days after the month had started. b. His lack of notice made it difficult for her to plan.

HALLOWEEN 2013

236. The Applicant testified about access problems at Halloween in 2013.

a. Halloween fell on a Thursday. The Applicant was entitled to alternate weekends plus a mid-week overnight. On that particular week the mid-week visit was onthe Thursday. This meant Halloween would be the commencement of a four-day

visit. b. Paige was happy she would be trick or treating with the Applicant, because in

2012 she didn’t see the Applicant at all for Halloween. The Applicant bought hera costume and she was excited.

c. At school on October 31st the Applicant and the Respondent each attended a

Halloween parade in which all the children showed their costumes. After the parade was over, all the parents left. The Applicant intended to return at the end

of the school day to pick Paige up.



Page: 70

d. But when the Applicant returned, he saw the Respondent exiting the schoolholding Paige by the hand, with Paige’s teacher following them.

e. Paige was upset. She was crying. It was a cold and windy day, and Paige had no jacket on.

f. The Respondent walked Paige up to the Applicant and told him Paige had

something to tell him.g. Paige was very upset and stated: “Daddy I want to go trick or treating with my

friends” h. The Applicant said he knew the Respondent had pressured the child into making

the statement, because she had been so excited about her plans with the father justa few hours earlier.

i. But he said he saw that she was extremely stressed, and he didn’t want her being

caught in the middle – again. j. He said the Respondent wouldn’t let go of Paige.

k. The Respondent started crying. This made Paige cry even more.l. The Respondent let go of Paige but then pulled her back again.

m. Finally the Respondent’s friend Chantel Danis approached and reassured Paigethat she would have fun having two Halloweens.n. Paige was then released and went with the Applicant.

o. He said she was still crying and upset when she got into his car, but calmed downalmost immediately.

p. He said she settled quickly and they ended up having the enjoyable time they had

been planning.

237. The Respondent testified about that Halloween:

a. She acknowledged the court order probably gave the Applicant the right to have

Paige with him that Halloween. b. But the Respondent wanted Paige to participate in Halloween plans with friends

in her own neighbourhood.c. On October 31st she and the Applicant each attended Paige’s Halloween parade at

school.

d. The Respondent said afterward Paige wanted to go home with her. But theApplicant insisted Paige had to go with him because it was his access day.

e. The Respondent said she had to cancel a Halloween party she had planned forPaige.

238. The Respondent’s friend Chantel Danis testified about her observations after theHalloween parade:

a. It was the Applicant’s day to take Paige home, but Paige didn’t want to go withhim.

b. Paige was upset and clinging to the Respondent.c. The Respondent didn’t want to let go. She was trying to console Paige.

d. Danis also tried to console Paige.



Page: 71

e. She said the Applicant was waiting patiently.f. Eventually Danis removed Paige from the Respondent and handed her to the

Applicant.g. She said at first, as a young child, Paige didn’t want to go. “But that’s normal.”

239.

Hayes testified about her discussions with Paige concerning Halloween 2013.

a. She was excited and looking forward to spending Halloween with her father. b. She knew she was going to be missing some Halloween activity organized by her

mother, but she was still excited to be going with her father.

240. The Applicant testified about an incident earlier in October 2013 when Paige

became ill during a weekend visit.

a. Her symptoms appeared to be worsening and he was concerned she might have pneumonia.

b. He dropped her off at school Monday morning while arranging an appointmentwith her doctor.c. He then re-attended the school and took her to her family physician Kim

McMillan.d. He testified he felt the child was still in his care at that time, and he intended to

notify the Respondent of these developments later.

e. The school informed the Applicant it was obliged to notify the Respondent.f. McMillan ended up examining Paige and confirming she didn’t have pneumonia,

just some congestion. The Applicant was given a prescription for the child.g. When the Applicant and Paige left the doctor’s office, the Respondent was

waiting outside in the parking lot. She immediately took control of the child and

took her back into the doctor’s office.

241. The Applicant was cross examined about this incident:

a. He denied he had been sneaky, trying to hide the illness from the Respondent.

b. He insisted that when the Respondent confronted him outside of McMillan’soffice she snatched Paige out of his arms and ripped the prescription out of his

hand.c. He said he didn’t resist because Paige was sick and already stressed out, and he

wanted to reduce the conflict.

242. The Respondent testified about the October 19, 2013 incident.

a. She received a phone call from principal Rizzo advising the Applicant had takenPaige to the doctor.

b. She was concerned because she hadn’t been notified by the Applicant that Paigewas ill.



Page: 72

c. She decided to meet the Applicant at McMillan’s office so they could attendtogether. But just as she arrived the Applicant and Paige wer e exiting the doctor’s

building.d. They had a brief discussion which she described as entirely civil.

e. The Applicant suggested that she might as well be the one to take Paige back to

school. He then suggested since the child would be with her, she might as welltake and fill the prescription McMillan had given.

f. The Respondent said she agreed, and took both Paige and the prescription.g. She said ultimately she decided it was so late in the day there was no point

returning to Paige to school.h. She denied grabbing either Paige or the prescription out of the Applicant’s hands.

She said they had a quiet, calm discussion on the street. Nobody acted up.

Nobody was upset.i. Asked why she had to take Paige back in to see the doctor, the Respondent stated:

“I didn’t have to, I chose to.” j. She admitted she had no reason to believe the Applicant had mishandled the

situation, or that Paige was more ill than the Applicant had reported.k. But she took Paige back in because she wanted to get more information fromMcMillan.

243. Hayes ex pressed concern about the negative messages the Respondent’s behaviour conveyed to the child:

a. That her parents couldn’t get their act together and communicate about something

as important as taking Paige to a doctor when she was sick. b. That her mother felt her father wasn’t capable of caring for Paige and that the

mother is better equipped to make important decisions.

c. Hayes described this as “a sure indication to any child that the parents did nottrust one another to manage the child’s healthcare.”

d. Hayes resisted the suggestion that Paige might have perceived herself as “lucky”that both parents care enough to want to take her to the doctor.

e. She said in a high conflict situation like this, Paige would not perceive it as a

good thing if both parents were present and quarrelling about her appropriate care.

244. Hayes testified that based on all of her investigation and contact with collaterals – including McMillan herself – there is no basis for any concern that the Applicant wouldnot always care for Paige in an appropriate manner. She said:

a. Paige was sick. The Applicant took the child to the doctor. The doctor diagnosed

the problem and prescribed medication. That should have been the end of thematter.

b. The Respondent’s decision to immediately walk Paige back into the doctor’s

office to go through everything over again was motivated entirely by the Respondent’s needs – not the child’s needs.



Page: 73

MID-WEEK ACCESS

245. The parties had ongoing disputes regarding mid-week access:

a. The May 28, 2013 temporary order allowed the Applicant to switch his

Wednesday overnights to another day depending on his work schedule. b. The Respondent complained he didn’t give enough notice about what days he

wanted, and the constantly changing schedule was confusing for Paige.c. She also complained he’d tack his midweek day on to a weekend to create a

longer visit. She said Paige didn’t like longer visits, because she missed beingaway from the mother, her home and her dogs.

d. Hayes agreed the Respondent was entitled to advance notice.

e. But Hayes said Paige wasn’t really confused because she was too young to followthe schedule anyway.

f. Hayes said it didn’t matter to Paige what days she saw the Applicant, or whetherweekends were extended. Paige just wanted to see her father.

TELEPHONE ACCESS

246. Both parties complained they had trouble reaching Paige by telephone.247. The Applicant testified if he calls (either to talk to Paige or discuss something

with the Respondent) he generally gets either a fax machine, voice mail, or endless

ringing. He’d leave a message for Paige to call back but she rarely does.248. He said if he happened to establish contact, the Respondent would respond with

name-calling; bitter recriminations about their failed marriage; and she would label him aterrible father.

249. The Respondent testified that for most of the past 36 months she has had virtually

no telephone contact with Paige when she has been with the Applicant because hewouldn’t answer her calls. She said in the last few months the situation has improved a

bit.250. Under cross-examination the Respondent denied interfering with or preventing

the Applicant from having telephone access with Paige.

a. She admitted that Paige complained to teachers that the mother wouldn’t answer

the telephone when the father called. b. She said the Applicant told Paige to tell people that was happening, even though it

wasn’t true.

c. She said the Applicant would telephone at times he knew the Respondent andPaige weren’t home. He would leave a message.

d. The Respondent would later ask Paige if she wanted to return the call to herfather. Paige would say “no”. She left it to the child.

DISCLOSURE MEETING NOV 21/13



Page: 74

251. Hayes testified about a disclosure meeting she had with the parents and theirlawyers on November 21, 2013.

a. She advised them that clearly both of them love Paige very much.

b. However, she warned that the conflict between them cannot continue as it was

having a detrimental effect on Paige.c. She said both parties have to address the behaviours they are exhibiting in front of

Paige. The child was sharing a lot of information she shouldn’t have received, from both parents.

d. She also recommended that there needed to be a more predictable schedule.e. She advised them Paige was unhappy that the Applicant had been excluded from

the child’s activities.

f. She noted that the conflict between the parents appeared to intensify after thecourt case commenced.

252. But after Hayes made her recommendations at the November 2013 disclosure

meeting, things got worse.

a. Conflictual behaviour between the parties worsened.

b. There was an escalation in Paige’s emotional reaction to what was going on in hersurroundings.

c. Hayes said it became quite obvious that the parents had not implemented any of

the strategies she had recommended.d. She said there was no sign the parties had the capacity to cooperatively make

decisions for Paige in a timely and effective manner.

253. After Hayes’ November 2013 disclosure meeting, the Respondent’s lawyer sent

the Applicant’s lawyer a “custody/access proposal.” It was not identified as a formalOffer to Settle under the Rules. The contents of the proposal were not disclosed in court.

But Hayes was cross-examined about the distribution of the document.

a. The proposal was included in her file as one of the many documents received

from the parents. b. She acknowledged that even though it was the Respondent’s proposal, she likely

received it from the Applicant. She said that didn’t make any difference. c. She didn’t appear to have much recollection of the document. d. She said it wasn’t improper for an assessor to be advised of a parent’s proposal on

custody/access issues.e. She said proposals and options are canvassed throughout the assessment process.

“We often ask for proposals.” f. She said learning that the Respondent disagreed with her initial recommendations

wouldn’t have affected her final recommendations.

g. Hayes said she accepts the fact that parents in custody disputes have different perspectives as to the best interests of the child. She would never disfavour a

parent simply because they don’t agree with her .



Page: 75

CHRISTMAS SCHOOL CELEBRATION 2013

254. An incident at a Christmas school celebration on December 17, 2013

demonstrates just how much things got worse.

255.

The Applicant’s description:

a. The Applicant and the Respondent had each attended the classroom event for parents.

b. Paige and the other children were showing their desks and recent artwork. Theysang some Christmas carols.

c. He said Paige was showing her work in her classroom. She wanted to show it to

both parents but the Respondent kept leading her by the hand, monopolizing hertime, and keeping her away from the Applicant.

d. The Applicant said he kept his distance to spare the child from being stressed.e. Paige knew that when class ended she was supposed to go home with the

Applicant according to the access schedule. She had known this for some time,and she was fine with it.f. But as the Christmas celebration wound down, the Respondent knelt down and

whispered something into Paige’s ear. At that point she started crying. g. He said he couldn’t hear what the Respondent told Paige. But he disputed the

suggestion that the Respondent was replying to something Paige said. He said he

had been watching Paige and he was quite sure she didn’t initiate any discussionwith the Respondent leading to her bursting into tears.

h. Paige then approached the Applicant and said she didn’t want to go with him. i. The Applicant said he tried to calm and encourage the child. He was having some

success comforting her, but the Respondent was holding Paige and wouldn’t let

her go. j. She finally calmed down and he managed to lead her out of the school. Once they

were off on their own, she was fine.k. Under cross-examination he disputed the suggestion that the Respondent had

nothing to do with Paige becoming upset and that the Respondent was actually

trying to calm Paige down.l. He said the Respondent was becoming emotional and prolonging Paige’s anguish

by refusing to let go and say goodbye.

256. The Respondent’s description:

a. The concert took place on the last hour of a Tuesday. Paige had been with the

Applicant the previous weekend, so she had spent a lot of time with him. b. When the Respondent arrived at the school, Paige came running and gave her a

giant hug. The child grabbed her hand and took her to her classroom.

c. The Applicant and many other parents were also present as the children performed some songs and a skit in the classroom.



Page: 76

d. As parents went out into the hallway for hot chocolate, Paige asked both theApplicant and the Respondent to come to her desk and look at her work.

e. The Respondent testified that Paige made a remark which stuck: “Now you guysdon’t fight, ok? I want you both to come and look at my desk.” The Respondent

testified: “I will never forget that remark. I feel very ashamed.”

f. She said they stood by her desk and didn’t fight. g. The Applicant and Paige went into the hallway to get hot chocolate and then

returned to the classroom.h. Paige started walking around the classroom showing things to the Respondent.

The Applicant watched from across the room.i. As things started to wrap up, Paige’s friend Abby came over and asked if they

could play after school. Paige was interested, but the Respondent said she

crouched down and explained they couldn’t play tonight because Paige was goingto the Applicant’s house after school. Maybe tomorrow.

j. The Respondent said both girls were disappointed, but seemed ok.k. She said later as the Respondent was encouraging Paige to get ready to leave, the

child again asked if she could go play with Abby. The Respondent told her no.This time Paige became more upset and cried.l. The Respondent said she crouched down and again tried to console Paige. She

said she expected the Applicant to come over to help, but he didn’t. m. She testified “everything had gone beautifully up until now.” n. The Respondent testified the bell then ran. She grabbed Paige’s hand and led her

to her locker.

257. The Respondent testified at that point she was feeling pressured and could sensethe situation was going to worsen.

a. “At this point I was beginning to panic. I was beginning to feel paranoid aboutwhat was going to happen next.”

b. “As much as I wanted to comfort Paige, I just wanted to get out of there.” c. She said her face was red and burning.d. She knew everyone was watching.

e. She said she felt angry.f. She felt she shouldn’t be feeling this way as a grown woman. But she wasn’t

getting any help from the Applicant.g. “I know that I’m being set up again.”

258. The Respondent explained how things ended:

a. She said goodbye to Paige in the hallway. b. She testified that she said goodbye “in a way I don’t regret but not in a way I

would have wanted.”

c. “I didn’t’ like leaving my daughter crying in the hallway.” d. She said another parent she is friends with came up to console her and she left the

school.



Page: 77

e. The Respondent categorically denied that she cried at any point during that schoolcelebration.

259. Grade one teacher Cosentino described the incident which occurred in her

classroom:

a. Both parents attended a Christmas celebration in which each classroom sang

songs and did a presentation. Hot chocolate was served in the corridor. b. The event occurred at the end of the school day, between about 2:30 pm and 2:55

p.m.c. But earlier in the day Paige told Cosentino she was feeling sick. She was worried

that “mommy and daddy were both going to be there and they were going to

argue or fight.” d. The Christmas event was on a “transition day” -- Paige had been brought to

school by the Respondent, but was scheduled to leave school with the Applicant.e. Cosentino said she observed the Respondent holding Paige by the hand and

leading her around the room, keeping her away from everyone else. She said theApplicant was not far away.f. She testified that even though she had to deal with a lot of children and visiting

parents, she started paying more attention to Paige’s situation because from thechild’s facial expression it was clear Paige was becoming most upset andanguished.

g. At the end of the celebration, when it was time for everyone to leave, theRespondent started becoming very emotional and crying. This was either in the

door to the classroom or just outside in the corridor.h. The Respondent became very emotional, bent down, and said something into

Paige’s ear.

i. The Respondent was crying and Paige started crying. j. Cosentino testified this was followed by a prolonged dramatic goodbye which the

teacher described as a “big scene.”k. The Respondent was crying, hugging Paige and saying goodbye. Paige was

crying and hugging and saying goodbye. But even though the Respondent kept

saying goodbye she wasn’t letting go of the child.l. Paige was becoming increasingly upset,

m. It created an awkward scene for other students and parents.n. It also attracted the attention of the school principal and vice-principal who were

in the corridor mingling with parents.

o. The Respondent was asked not to create a scene like this.

260.

Cosentino was cross-examined about the incident:

a. She recalled Paige was complaining about feeling sick that day. She didn’t recall

if the child had the flu.



Page: 79

q. But the Respondent came back again reaching for Paige. Paige again started tocry.

r. Another parent (a friend of the Respondent’s) took the Respondent by the arm andtried to guide her away. But the Respondent kept reaching back to Paige with her

arm stretched out to her.

s. Paige saw that the Respondent was crying, so Paige started crying too.t. The Respondent finally left, but she was still crying.

u. Henson said after a few minutes the Applicant and Paige got ready to leave.Paige calmed down and was smiling and talking to her father as they left.

262. The Respondent’s friend Chantel Danis was present at the Christmas celebrationand testified about her observations:

a. She said it was same sort of situation as at Halloween.

b. Paige was supposed to leave school with the Applicant, but she didn’t want toleave the Respondent’s side.

c. Paige was getting more and more upset and was crying, saying “I don’t want togo.” d. Danis said the Respondent was also upset. She had tears on her face. Danis said

it was understandab le. “I’d be crying too.” e. Danis said she was trying to help the Respondent let go.f. She said the Applicant was standing down the hallway. He wasn’t helping and he

wasn’t interfering.

263. The school was so distressed by the mother’s behaviour it contacted CAS. TheApplicant requested they delay their investigation until after the Christmas break, forPaige’s sake.

264. During a January 10, 2014 interview the Respondent told CAS worker Griceabout the Christmas school celebration:

a. It was to be the Applicant’s night with Paige after school let out. b. Paige wanted to show the Respondent around the class.

c. The Respondent said she tried stepping away from Paige so the child could spendmore time with the Applicant.

d. Paige wanted the Respondent to tell the Applicant that she wanted to go homewith the Respondent.

e. The Respondent told Paige she couldn’t do that.

f. The Respondent felt the Applicant should have provided some comfort for Paige but instead he moved away.

g. The Respondent felt everyone was watching her.h. The Respondent denied to Grice that she cried during the school event.i. The Respondent said she told Paige they should go to her locker.

j. A teacher intervened and offered to help Paige get readyk. The Respondent said she gave Paige a kiss and said “see you tonight.” Then she

left.



Page: 80

265. I find this incident to be most troubling, particularly considering:

a. It was a grade one Christmas celebration. Sadly, Paige was correct to predict

trouble.

b. It occurred less than one month after Hayes’ disclosure meeting, during which theassessor tried to encourage the parties to shield Paige from any further parental

conflict.

266. I accept the Applicant’s version of events, as confirmed by his witnessesCosentino and Hensen. Indeed, even the Respondent’s friend Danis confirmed theRespondent cried in front of Paige, even though the Respondent categorically denied this

ever happened.267. The Applicant, Cosentino and Hensen were absolutely clear and consistent

despite vigorous cross-examination about the incident.268. In contrast, the Respondent became emotional even testifying about how she

wasn’t emotional on the day in question.

a. Her testimony was somewhat rambling and imprecise.

b. She appeared consumed by anger toward the Applicant.c. Clearly, she felt he was responsible for everything that went wrong that day.d. And her description of suddenly beginning to panic; feeling paranoid; feeling

everyone was watching; feeling angry as her face was red and burning – all of thatis troublingly reminiscent of the sense of panic she described when she made the

split second decision to remove Paige from the soccer field earlier in the year.e. I find that the Respondent’s inability to control her emotions – and her

possessiveness toward Paige – was getting worse as of December 2013. And

Paige was being adversely affected.

CHRISTMAS PHONE MESSAGE

269. Even more troubling was a pre-Christmas telephone message Paige left for theApplicant.

a. As previously mentioned, in 2012 at the very last moment the Respondent denied

the Applicant a Christmas Day visit. b. Pursuant to the May 28, 2013 temporary order, in 2013 the Applicant was to have

access from 4:00 p.m. on December 24 until 12 noon December 25; and from

4:00 p.m. on January 1, 2014 until 12:00 noon on January 2nd.c. On December 23, 2013 Paige left a telephone message for the Applicant saying

she didn’t want to go.

d. A recording of that message was played in court a couple of times:



Page: 81

“Daddy I just don’t want to go on Christmas Eve. I want to stay home becauseI’m because I’m gonna see you for a long time and, and…and…aaaand, I wantto be home and I don’t want and because I miss you for a long time and someother time and so a different day and you’re not going to be there becauseyou’re going to be at work, nightshift, so you’re not going to be there. Bye,

Daddy. Oh, wait wait wait and Bye.”

270. The Respondent was cross-examined about Paige’s phone message. Sheexplained:

a. Paige was six years old.

b. She told the Respondent she wanted to stay home with her mother on ChristmasDay.

c. However, the court order said the Applicant was to have access on Christmas

Day.d. “I told her, Paige if you want to tell your dad something you can call him, but I’m

not going to call for you. I have rules to follow and I have to follow those rules.If you want to tell your dad something you’re going to have to tell him yourself.”

e. She denied influencing what Paige wanted to say to the Applicant.

f. She admitted she helped Paige initiate the call. She remained present as Paige leftthe message.

g. “The only thing I was doing there was allowing my daughter to assert herself.” h. “I have rules to follow. I have a court order to follow. Regardless of what Paige

wants I can’t violate that court order.”

i. “If she wanted to make a call to clarify access, I wasn’t going to stop her.”

271. In the voice message, the child speaks slowly and sounds unsure of herself. But

then at the end she suddenly becomes much more animated, shouts “wait, wait, wait” andthen sounds more spontaneous as she enthusiastically says goodbye. The Respondent

admitted she was in the process of hanging up the phone because she thought Paige wasfinished, when Paige suddenly wanted to say more.

272. The Respondent apparently made no effort to conceal from the child herdisapproval of the Applicant’s Christmas access entitlement. But she denied puttingPaige in the middle, or pressuring her to make the phone call.

a. “She didn’t have to do it. She wanted to do it.”

b. “I told her I wasn’t going to do it.

273.

The Respondent’s glib distancing of herself from this sad phone messagehighlights a fundamental concern about her sense of parental responsibility.

a. Parents are supposed to provide support for young children. b. Not seek support.c. They are there to provide reassurance. Confidence. Peace of mind.

d. Not seek an ally. Not manipulate the child into doing their bidding.



Page: 82

274. Throughout this bitter separation the Respondent has needlessly drawn Paige into

the adult conflict.

a. She has used the child as an excuse -- claiming it’s Paige who wants less access,

even though it’s obvious this is the mother’s agenda. b. She has used the child as a foot soldier – implanting the notion that a bad thing

called a court order ties the mother’s hands. And that only Paige herself has theability to step up and solve adult problems.

275. Parents have a responsibility to be selfless.

a. To make their child feel good about a situation -- even if the parent feels terrible. b. To put a positive spin on things.

c. To shield their child from unpleasantness and worry.d. To provide optimism that everything’s under control. Everything’s going to be

ok.

276. Six year old Paige never should have left that pre-Christmas phone message for

her father.

a. She shouldn’t have wanted to.

b. She shouldn’t have perceived it was an option. c. She shouldn’t have had someone dial the phone for her and let her do it. While

they watched .

277. I note the Respondent testified this wasn’t an isolated incident.

a. She said on several occasions she felt powerless to challenge access times the

Applicant was entitled to pursuant to temporary orders. b. On a number of occasions she told Paige that there was nothing she could do

about it.

c. She told Paige that if she wanted anything changed she would have to talk to herfather.

d. The Respondent appeared to have no insight as to the pressure this placed onPaige.

278. When the Applicant finally got access over the Christmas break, there were more problems. White testified about an incident relating to the Respondent’s birthday on

December 28, 2013:

a. Paige was with the Applicant, but he had the child call the Respondent to wish her

a happy birthday. b. Paige was on the phone with the Respondent a few minutes.

c. When she got off the phone Paige started sobbing. Her crying was out of control.



Page: 83

d. She became so upset that the Applicant took her to the bathroom where shevomited.

e. Paige said “Mommy says she can’t be apart from me”, “Mommy misses me” andother similar statements.

279.

The Applicant said Paige quoted the Respondent as saying “I can’t live withoutyou. I’m going to die without you.” The Respondent also said “Hide your homework in

your locker so it doesn’t go to your father’s.” (This relates to another problem I willdiscuss below.)

2014

280. Hayes acknowledged that during the period between the disclosure meeting in November 2013 and formally reopening the assessment in January 2014, she received a

series of e-mails from the Applicant setting out all sorts of concerns about theRespondent.

a. She said this was not unusual. Parents often try to continue to communicate withher even after she has completed her work.

b. She said she didn’t respond to any of the Applicant’s e-mails, and didn’t act onthe contents, because the investigative phase of her assessment was over, and sheintended to finalize her report.

c. She only re-activated her file after fresh concerns arose at CAS and at school.And after both parties executed documents consenting to her reopening the file.

d. She was concerned about Paige’s situation deteriorating. The child wasvomiting, experiencing dry heaves and headaches.

e. Looking back on the Applicant’s e-mails, she said they didn’t influence her final

recommendations.f. She said the flurry of e-mails from the Applicant basically set out more examples

of themes or complaints he had already identified.g. She didn’t regard it as manipulation, and certainly wasn’t influenced by the

Applicant’s e-mails. “Every parent who comes in r e-hashes and tries to press

their view of things.”

281. Predictable parenting disputes continued throughout 2014:

a. In March the Applicant asked if he could see Paige on his birthday. The

Respondent agreed – but only if he gave up one of his regular access days as atrade.

b. They had a dispute over timesharing at Easter.c. In June the Applicant kept Paige overnight when the Respondent didn’t think he

should have. She called the police.

d. During the summer the Applicant again complained about long gaps when theRespondent wouldn’t allow him to see Paige.

e. There were disputes over Thanksgiving and Halloween.



Page: 84

f. The Applicant said he got about five days of access over the Christmas school break – after lots of “battling”.

COUNSELLING – SARAH BUIST

282.

I received considerable evidence about various efforts to arrange counselling forPaige.

283. In December 2012 senior kindergarten teacher Lawson suggested Paige could benefit from seeing school social worker Sarah Buist because the child was very sad.

a. Both parents agreed. b. Unfortunately it took a while for Buist to become involved.

c. Buist was assigned to the file in January 2013.d. Buist testified reports from Lawson and the resource teacher suggested Paige was

showing signs of being distressed in the classroom. She was crying a lot.e. Buist described the school as “on high alert” for the regular conflicts on this file.

284. Buist had a private meeting with Paige on April 11, 2013.

a. It wasn’t an interview. She let Paige talk and draw a picture. b. Paige spoke of both parents; the Applicant’s fiancé; and the fiancé’s two children.c. Paige said at the Applicant’s home she sleeps in her own bed, but in the

Respondent’s home she sleeps in bed with her mother. Buist testified that she hadno concerns about a young child sleeping in a parent’s bed.

d. Paige spoke of fighting between her parents.e. She appeared to be happy and content.f. There was nothing unusual or inappropriate about her mannerisms.

g. She didn’t appear apprehensive about speaking with Buist. Her behaviourappeared “within the range of normal” r egarding interactions with a social worker

she had never met.

285. But on April 15, 2013 the Respondent sent an e-mail to Buist asking her to

discontinue any work with Paige. She did not send the Applicant a copy of that e-mail.

a. The Respondent testified there was so much delay, by the time Buist met Paigethe child was no longer having problems.

b. As well, Paige was seeing her family doctor for counselling, and the

custody/access assessment was about to get underway.c. The Respondent said she concluded there was no need for Buist to continue. The

urgency had passed, and others were going to be helping Paige.d. She admitted she didn’t consult with the Applicant about her decision to terminate

counselling with Buist.

286. On April 15, 2013 Buist sent an e-mail recommending that Paige would benefit

from talk/play/art therapy.



Page: 85

a. The Respondent didn’t set up the recommended therapy.

b. She said she anticipated the issue might come up in the pending custodyassessment.

287.

Buist said she was surprised and disappointed by the Respondent’s decision toabruptly end the social worker’s involvement just after she had a single meeting with the

child.

a. She disagreed that Paige was no longer having problems. b. “Here was a kid who was exhibiting signs of emotional distress.” c. She said Paige was really caught in the middle between her parents.

288. Hayes agreed with the Applicant: Terminating Buist just as she was getting

started wasn’t a good decision for Paige. 289. Despite the Respondent telling Buist in April 2013 that “others were going to be

helping Paige”, no further counselling was arranged for the balance of the year.

COUNSELLING – DR. ANITA RAMANI

290. Once CAS became involved at the beginning of January 2014 they recommendedcounselling for Paige.

a. The Respondent wanted her family physician McMillan to provide the

counselling. b. The Applicant objected to McMillan. CAS worker Alison Grice and custody

assessor Hayes agreed with him.

c. Hayes said Paige needed a counsellor independent of either parent (and possiblywith more specialized qualifications). She said Paige needed someone she could

trust. “The appearance to the child should be that the counsellor is someoneindependent of her parent.”

d. Complication arose finding a counsellor who was covered by the Applicant’s

employee assistance plan.e. Even though the Respondent had previously been accused of being resistant to

counselling, she now alleged the Applicant was stalling. He denied it, andMcMillan testified she saw no sign of the Applicant trying to delay the process.

f. Eventually the parties retained Dr. Anita Ramani, a child psychologist who

became involved on the express understanding that she would provide counsellingfor Paige – but she would not be a witness in court.

g. Ramani did not testify, although I received reports from various witnesses aboutthe child psychologist’s services and comments.

291. The Applicant and the Respondent disagreed on how often Paige needed to seeRamani.



Page: 86

a. Paige initially saw the psychologist from April 2014 to July 2014. TheRespondent understood the child had been discharged and that was likely the end

of her involvement. b. In October 2014 the Applicant started sessions with Ramani again because he felt

Paige was still under tremendous stress. The Respondent complained this was

being done without her knowledge, and she questioned the need.c. Ramani continued to see Paige until the spring of 2015 when – once again – the

Respondent perceived the child was discharged.d. But the Applicant said it was merely a summer break and that Ramani said come

back in the fall if Paige needs more help.

292. The Applicant testified even as of the fall 2015 trial Paige was still experiencing

serious emotional problems, and needs to see Ramani again.

a. He was asked by the Respondent’s counsel what it would take to convince himPaige no longer requires counselling.

b. The Applicant said he would be satisfied she doesn’t need counselling when she’snot crying on his shoulder saying “I hate my life.”

293. Asked whether she thought Paige needed more counselling, the Respondent wasnon-committal.

a. She said she’d have to consult with her physician McMillan. b. Asked whether she had an opinion as a mother, the Respondent answered: “I

would have to think about that. Right now this morning she seems fine.” c. She agreed Paige is still dealing with stress.d. But she said Paige “has been given some valuable tools to deal with her

reality….This reality has not let up for her.” e. For the moment, she said the child “hasn’t demonstrated that she needs more

counselling or would benefit from it.”

294. The Respondent admitted that overall Ramani’s involvement has been helpful.

But she said there were problems:

a. Sometimes Paige wasn’t happy about going to see Ramani. b. Paige complained she had told Ramani things in confidence but Ramani betrayed

her by telling the Applicant.

c. The Respondent quoted Paige as saying Ramani lied to her that she would keepthings secret. “She told daddy and I got in trouble.”

d. She testified she tried to explain to Paige that Ramani was there to help her andsometimes she needed to discuss things with Paige’s parents.

e. The Respondent said she explained Paige’s sense of betrayal to Ramani, and that

the psychologist “did a super job of repairing the damage.” f. Ramani told CAS worker Anderson that Paige doesn’t want to go to counselling

any more.



Page: 87

295. Hayes testified about her discussions with Ramani in June 2014, at which point

Ramani had conducted nine sessions with Paige.296. Ramani told Hayes the parents described Paige’s problems differently.

a. During intake the Respondent told Ramani that Paige had constant worry andstr ess, as the child didn’t want to go to the Applicant’s home.

b. The Respondent told Ramani Paige is fearful and anxious about going to theApplicant’s home.

c. The Respondent said that as a result Paige was struggling with sleep issues.d. Ramani said the Applicant shared his concerns about why Paige was crying.

297. Ramani told Hayes that Paige’s mood and behaviour was different depending onwhich parent brought her to counselling.

a. Ramani said when Paige was brought by the Respondent, she appeared upset for

the first five or ten minutes and said she misses the Respondent when she goes tothe Applicant’s home. After the initial minutes in session, Paige’s mood wouldchange and she would speak positively about both of her parents.

b. But when the Applicant brought Paige to sessions, she appeared “bright, shinyand happy.”

298. Hayes agreed with Ramani’s suggestion that Paige may benefit from having psycho-educational testing.

299. Ramani told Hayes she had Paige make up a small STOP SIGN out ofconstruction paper.

a. Paige was to carry it with her. b. If one of her parents was saying something that was upsetting her, Paige was to

hold up the STOP SIGN to get them to stop saying bad things.c. Paige reported to Ramani that she used the stop sign once with her mother, but

then she was unsure where the stop sign went.

300. I heard a lot of evidence about that STOP SIGN.

a. The Applicant testified he saw Paige with the STOP SIGN during her first visitafter Ramani came up with the idea. But after that the sign disappeared. Paige

told him the Respondent got rid of it. b. White testified Paige showed her the STOP SIGN once. Then it went missing for

about a year.c. The Respondent testified she thought the STOP SIGN was a great idea. She

denied taking the sign away or hiding it. She said it was always in Paige’s

backpack. Perhaps Paige forgot about it.d. The Applicant and White both testified they were quite familiar with the contents

of Paige’s backpack. There was no possibility the STOP SIGN was in there.



Page: 88

e. CAS worker Grice testified Paige told her Ramani made a STOP SIGN so Paigecan put it up if her mother says bad things about her father.

f. CAS worker Pearce testified on August 5, 2014 the Respondent told her sheallows Paige to take the STOP SIGN to the Applicant’s residence. But Pearce

also testified that on August 22, 2014 Paige told her the Respondent hides the

STOP SIGN so that the Applicant can’t have it. g. CAS worker Kathryn Anderson testified Paige told her Ramani gave Paige a

STOP SIGN so she could use it when people talk to her about things that shedoesn’t want to talk about.

h. Paige told Anderson the Respondent hides the STOP SIGN at her house so shecan’t use it. But the Respondent told Anderson the STOP SIGN was always inthe back pack. The Respondent denied hiding it.

i. Hayes testified she understood Paige used the STOP SIGN once, and “thensomething happened to it.”

301. Ramani also gave Paige a “Worry Book” – an age-appropriate book dealing with

how children should respond when things worry them. Three pages of the Worry Bookwere produced in court.

a. On the third page there was a space for the child to draw a picture of what makesthem worry.

b. Paige drew a colour picture of a mother, a father, a child, and a car.

c. The Applicant said it represented access exchange times.d. The facial expressions showed that all of the parties were unhappy.

e. The mother was crying and tears had been drawn on her face.f. (During subsequent cross-examination the Respondent was evasive commenting

on that picture. Even though the picture clearly showed tears coming from the

female figure, the Respondent stated “we don’t know what those pictures weredealing with.” She again insisted that she doesn’t cry in front of Paige.)

302. CAS worker Kathryn Anderson testified about a telephone conversation withRamani on January 22, 2015:

a. Ramani meets with Paige about her confidence. Her social skills.

b. Paige wants to talk about her friends and standing up to bullies. She doesn’t wantto talk about her parents.

c. Paige wants to stop talking about family problems.

d. Paige’s major worry is that she will say something wrong and then she will be introuble at the other parent’s house.

e. Last week Paige was concerned about the mother not being her friend any more, but doesn’t feel that she is scared of her mother or that the mother would doanything to her.

f. Paige feels caught in the middle and has learned to problem solve the issuesherself.



Page: 89

g. Ramani questioned the purpose of the Applicant calling the CAS into thesituation. Ramani said she feels the father is looking for some kind of validation

that they are unable to give him.h. Ramani feels both parents have Paige’s best interests at heart.

303.

Anderson testified about her telephone conversation with Ramani on March 10,2015.

a. Ramani believes Paige is apprehensive about problems arising, and even if there

are not problems between her parents, Paige still worries. She worries because ofthe history of conflict.

b. Ramani feels Paige worries that she has to please her father.

c. Ramani said because the parents can’t communicate, it creates large conflicts. d. Ramani said repeated interviews by CAS could be potentially emotionally

damaging.

CHILDREN’S AID SOCIETY

304. I heard a great deal of evidence about the involvement of the Hamilton Children’s

Aid Society (CAS).305. As stated, in December 2013 Paige’s school contacted CAS expressing concern

about the Respondent’s behaviour toward the child (culminating at the Christmas

concert). This resulted in CAS providing various services for the family betweenDecember 2013 and May 2015. But no child protection file was ever initiated by CAS.

CAR SEAT

306. Even before the call from the school, in October 2013 the Respondent called CASafter Paige reported that the Applicant drove her to school without a car seat.

a. She quoted the child as saying “Daddy did something really dangerous.” b. She wanted a child protection agency to document the event, because she said it

wasn’t something she could approach the Applicant about personally. CAS neverfollowed up with the Applicant.

c. The Respondent said she was unaware of any previous occasion when theApplicant failed to use a proper child car seat. But she was concerned it mighthappen again.

d. The Applicant said it happened once when a car seat got left in the wrong vehicle.He immediately went out and bought car seats for every vehicle.

e. Hayes quoted the Applicant as denying it had ever happened. During cross-examination the Applicant denied lying to Hayes. He said perhaps shemisunderstood when he emphasized that he always uses a car seat – except on that

single occasion.f. At the time, CAS merely took a report from the Respondent. The Applicant was

not contacted about the car seat.



Page: 90

g. CAS worker Alison Grice testified that during the subsequent investigation shemet everyone, interviewed collaterals, and concluded there were no safety issues.

Paige is physically safe in the care of either parent.

TYLENOL

307. More recently, the Respondent made another complaint to CAS about the

Applicant. Again, CAS never followed up on it or contacted him. The Applicant onlylearned about it through CAS disclosure provided to his lawyer in preparation for this

trial. The Applicant testified about this unfounded allegation of safety problems in hishome:

a. Sometime in the spring of 2015 the Respondent contacted CAS to report that twomonths earlier Paige had access to a bottle of Tylenol while at the Applicant’s

home. b. The Applicant testified he had no understanding about why this complaint was

made, or why the Respondent would have waited two months if she felt there wasa legitimate safety concern in his house. She had never discussed the matter withhim, and he had no idea how she even got the idea.

c. In any event, he confirmed that there are no safety concerns in his home. Anymedications are kept in a location where Paige could never access them.

d. About two weeks after contacting CAS, in April 2015 the Respondent sent the

Applicant an e-mail generally warning him about protecting children fromdangerous substances in the home.

e. The Applicant testified that neither the expressions of concern nor the timing ofevents made any sense.

308. The Respondent was cross-examined about her complaint to CAS.

a. She testified there were actually two incidents. b. In February 2015 Paige told her that at the Applicant’s residence she went looking

for Tylenol because she had a headache. She found some but didn’t take any.

c. The Respondent testified Paige subsequently told her that on April 22, 2015 shewent looking for Tylenol while at the Applicant’s residence. She found some

Tylenol on her own. This time she took it without telling the Applicant.d. Paige told the Respondent that on both occasions she didn’t want to tell the

Applicant she had a headache, because he makes such a big fuss when she has a

headache.

309.

The Respondent testified she told CAS about Paige taking Tylenol in April, butshe didn’t mention anything about the child finding Tylenol in February.

a. The Respondent said she didn’t intend to initiate a complaint. But coincidentallyCAS called and asked how things were going. So she told them about her then-

seven-year-old daughter’s unsupervised use of Tylenol.



Page: 91

b. There was no suggestion Paige had taken an inappropriate dose of Tylenol. Shehas been given Tylenol in the past.

c. But the Respondent said she felt Paige being able to access drugs like Tylenol inthe Applicant’s home was a child protection issue.

d. She said CAS never spoke to Paige about it.

310. The Respondent admitted she took no action in response to Paige’s initial

comment about access to Tylenol in February 2015.

a. She said she thought at that point CAS was closing its file. She really didn’t thinkthere was any point stirring things up.

b. She said she warned Paige in February that she should never again access Tylenol

at the Applicant’s house. She trusted her daughter would obey that rule. c. She didn’t say anything to the Applicant in February because they can’t

communicate. She anticipated any expression of concern on her part wouldtrigger an automatic harsh reaction.

311. However, in addition to contacting CAS about the April incident she also sent ane-mail to the Applicant on April 29, 2015 which stated:

“I have done some reading and learned that kids at Paige’s age, in discoveringtheir independence, may choose to access household chemicals or drugs thatcould be harmful to them. For Paige’s safety, kindly make sure that all drugsand chemicals at your residence are locked up and stored securely.”

312. The next day the Applicant responded with a longer e-mail which basically said:

a. He didn’t know what the Respondent was talking about.

b. He always makes sure his home is child-proofed.

313. The Respondent was cross-examined about why she sent such a vague e-mail, noteven mentioning that she had received two separate reports from Paige about Tylenol.

a. She said when Paige actually took a Tylenol in April 2015, she knew she had toapproach the Applicant about it.

b. But she wanted to reassure Paige that she would communicate with the Applicantin a non-confrontational way, to lessen the likelihood that Paige would be

punished by the Applicant for revealing what had happened in his house.c. So she sat down with Paige and together they drafted an e-mail which wasn’t

accusatory, but simply reminded the Applicant that dangerous things should bestored safely away from children.

d. She denied the suggestion that if she was really concerned in April she would

have been more explicit in her e-mail to the Applicant.e. She denied that it would have been helpful to specifically identify a concern about

Tylenol, so that the Applicant would better understand the specific risk he should

guard against.



Page: 92

f. She didn’t think there was anything wrong with having Paige help draft her e-mailto the Applicant. She said Paige was entitled to reassurance that there would be

no repercussions if the Respondent raised the Tylenol issue with the Applicant.

314. The Respondent blamed the Applicant for the fact that she was not able to

privately discuss this safety issue with him, without drawing Paige into the adultdiscussion.

a. “Dealing with the Applicant has been very, very difficult for a very long time.”

b. “Where you could normally call another parent and say ‘hey this is whathappened’ and not expect any recourse – that’s not the case with me and him.”

c. Repeatedly during her evidence she blamed his “ruthless litigation” and “his trial”

for their inability to co-parent.d. “I’m not trying to cause this three-ring circus. I’m trying to remove myself and

my daughter from it.”

315.

Ironically, on October 2, 2014 -- months before her Tylenol complaint – theRespondent e-mailed the Applicant advising him she left prescription ear drops in Paige’s backpack for a mild ear infection. The Applicant responded by e-mail: “I think it would

be safer to keep the medicine in the office out of reach.” The Respondent was cross-examined about this:

a. She acknowledged that she sent Paige to school with prescription ear drops. b. She sent them in her backpack. She didn’t know of any school policy against

sending medications with children. She didn’t know of any policy requiring parents to send medications to the school office for safe keeping.

c. She said unlike the Tylenol situation she reported to CAS, here there was no

protection issue because the medication was in the form of ear drops, and Paigeknew not to ingest them.

d. Under cross-examination she acknowledged that sending medications to schoolmight pose a risk to other children who might not know what they were.

316. The Respondent’s bottom line:

a. She didn’t endanger Paige with ear drops. b. He endangered Paige with Tylenol.

317. Once again, the manner in which the Respondent handled the Tylenol issue raisesmore questions about her parental judgment than his safety standards.

a. If she really thought there was a danger in the Applicant’s home – in February orApril – she should have immediately and clearly notified the Applicant.

b. I reject the Respondent’s claim that she wanted to send a non-inflammatory e-mail to avoid any sort of backlash by the Applicant.



Page: 93

c. The exhibit briefs in this trial probably include hundreds of often acrimonious e-mails between the parties. It is hard to believe that anyone hesitated for even a

moment to worry about sparing the other party’s feelings. d. The e-mail she actually sent on April 29, 2015 was so generic it said nothing. It

didn’t reduce any risk to Paige because the Applicant could never have figured

out that she was hinting he should put his Tylenol away.

318. But the real concern about the Respondent’s e-mail to the Applicant is that she satdown and drafted it with Paige.

a. As with the pre-Christmas phone call, what subtle message was she giving thechild? It’s us against him?

b. This was – by definition – an adult issue. One adult reminding another adult tokeep drugs safely away from a child.

c. If then-seven-year-old Paige was mature enough to help write that message to herfather – then the message didn’t need to be written. Paige would have known to

stay away from the medicine cabinet.d. If on the other hand seven-year-old Paige still needed to be protected – as all seven year olds still need to be protected – then this young, immature child should

have been kept out of the adult discussion. Completely.e. The reality is that this wasn’t about Tylenol. f. This was about the Respondent seizing yet another opportunity to demonstrate to

Paige how incompetent her father is; how superior her mother is; and how theyhave to work as a team against him.

CAS WITNESSES

319. The Respondent alleged the entire CAS investigation was slanted against her because of the Applicant’s frequent and malicious complaints; and his manipulative

techniques.320. She claimed the Applicant’s real motive was to have CAS apprehend Paige from

the mother’s care.

a. The Applicant denied this.

b. None of the CAS witnesses perceived the Applicant was requesting or hoping thatPaige would be apprehended.

c. Grice recalled telling him that the child’s immediate safety was not at risk, and

that the issues were generally related to parenting, custody and access. She felt heunderstood this.

d. Kathryn Anderson said the Applicant didn’t convey any expectation or request asto what CAS would be doing.

321. The Respondent claimed the Applicant complained to CAS so frequently, aboutso many irrelevant things, that Society workers should have recognized that he was acting

in bad faith.



Page: 94

a. Her lawyer suggested between December 2013 and May 2015 the Applicant

contacted the agency 161 times. b. The Applicant didn’t think that total was accurate. But he denied contacting CAS

excessively or needlessly.

c. Grice testified she received more communications from the Applicant than theRespondent. But she couldn’t draw any adverse inference from the number of

communications. She said she didn’t fault him for being too persistent. d. Grice said that like many parents, the Applicant had a hard time understanding

that the Society’s mandate was very limited – only to deal with child protectionconcerns. She said he had a great deal of information he wanted to provide inrelation to the broader custody-access dispute. She didn’t fault him for being a

concerned parent and passing on more information than the Society needed.e. Grice said while the Applicant may have sent her 14 to 16 e-mails over a six

month period, in April 2015 the Respondent gave her an 11 page typed memosetting out numerous concerns about the Applicant. Grice never felt her

investigation was affected by any imbalance in information from either parent.f. Pearce also testified the Applicant contacted them frequently, and expressed manyserious concerns and allegations about the Respondent.

g. Grice, Pearce and Anderson all agreed it wasn’t unusual for a parent to callfrequently, or want to talk about custody/access issues which were beyond theSociety’s child protection mandate.

h. Hayes testified she didn’t know how many times the Applicant contacted CAS.But she said she could draw no conclusions about the Applicant merely from

knowing the number of times he communicated with the agency. She said CASwould be in a better position to decide if they felt he was contacting theminappropriately or for strategic reasons.

322.

The Respondent claimed the Applicant used his experience and status as a police

officer to manipulate and intimidate CAS workers and others.

a. The Applicant denied this.

b. Grice denied the Applicant was attempting to manipulate her or win her over. Shedidn’t feel he was malicious or acting in bad faith.

c. Pearce testified she never had the sense the Applicant was misleading her ortrying to manipulate her or the system. She said both parents had their perceptions. It was not improper for them to tell CAS what they were feeling and

what they were worried about. She said both parents were equally loving towardPaige and equally cooperative with the social worker’s investigation.

d. Anderson acknowledged that on a couple of occasions the Applicant analogizedthe CAS investigation to work he does as a police officer. She said she told himthey operated in different systems with different considerations. She couldn’t say

whether he might have hoped to use his status as a police officer to influence her.But she said in any event, she was not influenced or intimidated in any way by the

fact that he is a policeman.



Page: 95

323. The Respondent claimed CAS workers used a double standard. That they noted

negative behaviour by her, but ignored identical behaviour by the Applicant. None of theCAS workers felt there was any basis to this complaint.

324.

She claimed CAS kept opening and closing her file, but old inaccurateinformation about her kept repeating and building on itself.

a. The Applicant denied ever giving either CAS or the assessor false or misleading

information. b. Pearce testified some of what the Applicant told her was relevant. Some wasn’t.

Some of what he told her may have been more accurate. Some less accurate. But

she felt all of his information truthfully represented his perspective as a parentworried about a child.

c. But Hayes noted that at least some of the Applicant’s concerns about theRespondent turned out to be justified . “The emotional concerns were verified by

CAS.”

BRUISING

325. The Applicant testified about the only time he contacted CAS to express concernsabout the Respondent:

a. On Easter weekend 2014 when he picked Paige up he immediately noticed that

she was acting strangely. She was aloof. She played on her own, at times under adining room table. She seemed stressed and just wasn’t herself.

b. That night when he gave her a bath he noticed her legs were covered in bruises.

c. He said the bruising on the shins looked typical of the kinds of minor injurieschildren can get.

d. But when he asked Paige about a bruise which looked like three finger marks onher thigh, he said she “went robotic” and said she didn’t remember.

e. He said this was very uncharacteristic for Paige because she could usually easily

explain any bruising.f. But this time she became stressed and teared up when he inquired.

g. He testified that he tried to reassure her that if something had happened, sheshould tell him.

h. She said “I don’t remember” and started crying.

i. He said he dropped the subject to avoid stressing his daughter. j. He said the next morning Paige was aloof.

k. He said later in the morning he went into the garage of his home to do something, but soon after he was alerted by his fiancé White that he should go and see Paige because she was upset.

l. He went to see her and found that she had locked herself in a bathroom. She wascrying and called herself a “bad girl”

m. When he was able to speak to her she made a number of troubling statements.



Page: 96

n. “Mommy tells me to say things to this lady.” o. “I have to tell her that daddy doesn’t love me. That daddy says mom’s trying to

ruin my life. That daddy doesn’t care about me.” p. She also said she had lied to a lady she described as brown with black hair. The

Applicant presumed she meant child psychologist Ramani.

q. The Applicant said he contacted CAS the next day and was asked to bring Paigein so they could speak to her privately.

r. After the worker spoke to Paige, she told the Applicant that as soon as the workerasked about the bruises, Paige threw up.

s. He testified that CAS referred the issue to a child abuse specialist at McMasterUniversity Medical Center, and that photographs of the bruises were taken.

t. However he said nothing more came of the issue.

u. He never reported anything else to the Society.

326. The Applicant was cross-examined about this:

a. He said he didn’t know what caused the bruising. b. He was not attributing the bruising to the Respondent.c. He was simply concerned about the combination of (a) very bad bruising and (b) a

teary, panicky response from the child when he asked about it. He had no ideawhat had happened, but felt more investigation was required.

d. He admitted he and the Respondent never used physical discipline while they

were together.e. He acknowledged he was unaware of any previous physical discipline by the

Respondent.f. He disputed the suggestion that he was responsible for her upset by forcing her

into an intrusive CAS investigation.

g. He said it would have been negligent of him if he didn’t look into the matter of aserious, suspicious injury to his daughter.

327. The Respondent testified about the CAS investigation of bruising on Paige.

a. She didn’t notice any bruising. b. She said Grice referred to the “invisib le bruises.”

328. The Respondent blamed the Applicant for maliciously making the bruisingallegation without regard to the devastating emotional impact on Paige. The

Respondent’s testimony was emotional:

a. Paige was horrified by the experience. b. She was humiliated.c. Her pants were pulled down.

d. She knew exactly why she was there.e. “She’ll never forget that her dad brought her to some agency to accuse her mother

of hurting her physically. That’s what’s troubling me the most.”



Page: 97

f. “She’ll never forget that.” g. “That sort of thing is something Paige will never forget.”

h. It was quite understandable Paige vomited at the CAS office.i. “Paige had a horrible day and a horrible visit with her father.”

329.

Grade one teacher Cosentino testified about a bruising incident which she foundunusual.

a. She testified that children in grade one frequently get minor bumps and bruises,

and they can get very excited about minor cuts or injuries. b. She recalled on one occasion she saw Paige with a bruise and she casually asked

what happened.

c. Cosentino said Paige suddenly got very nervous and didn’t want to answer, so theteacher backed off.

d. Eventually Paige approached her and initiated discussion about the bruise. Shesaid it was nothing. She fell off her bike.

e. Then she said that she wasn’t supposed to tell the teacher what had happened. f. Cosentino testified that as soon as a child says they are afraid to tell hersomething that happened, that’s a red flag for her.

330. Cosentino was cross-examined about the bruising incident:

a. She couldn’t recall where the bruise was. b. She couldn’t recall if she ended up calling CAS about this.

c. She wasn’t necessarily concerned about the bruising itself. Her concern was thechild’s reaction when asked about the bruising. She described it as an oddreaction.

d. She found the child’s statement: “Mommy said not to say it happened at herhouse” to be concerning.

e. Cosentino testified she wasn’t alleging the Respondent had caused the bruise. f. She was simply focussing on the fact that the child was being suspiciously

evasive and emotional when the topic of the bruise came up.

331. CAS worker Grice testified about her interview with Paige about the bruising.

a. She said Paige couldn’t remember how she got the bruises. b. Nonetheless Grice concluded the child had suffered normal, non-suspicious

bruises.c. She did not question the Applicant’s motive in raising the issue. It was

understandable that he would follow up when she couldn’t explain to him thesource of the bruising -- - particularly if she reacted strangely when asked about it.

d. Grice said it wasn’t the Applicant’s idea to bring Paige to the CAS office to be

examined. Grice immediately asked him to bring Paige in, because wheneverthey receive a report of bruising they have to see the bruising within 12 hours.



Page: 98

e. Grice testified as soon as Paige arrived at the CAS office she verbalized that shefelt sick after school. During the interview Paige announced she was going to be

sick, and then threw up in a garbage can.f. Grice didn’t think the Applicant’s questioning of the child caused her to throw up

during Grice’s private interview with Paige.

g. She didn’t have the impression the Applicant was constantly questioning Paige. h. Grice said she was unaware of any other allegations of physical abuse.

i. She said Paige made it clear she had never been hurt by either parent.

332. CAS worker Pearce testified that during her July 14, 2014 interview with theApplicant, he did not allege that the Respondent was physically abusive to the child.

333. White testified about the bruising incident.

a. She said she really wasn’t too concerned about the bruises themselves, but she

was quite concerned about Paige’s reaction when she was casually asked aboutthe bruises.

b. White said Paige’s eyes went blank and she started crying.

334. Principal Rizzo didn’t recall the Applicant ever alleging that the Respondent was

physically abusing Paige. She saw no signs of physical abuse.335. Hayes was cross-examined about the Applicant reporting bruising to CAS.

a. She understood CAS characterized it as a “suspicious bruising” investigation asopposed to an allegation of physical abuse.

b. In any event, she understood CAS concluded there was no verification of anyinappropriate behaviour.

c. Hayes said she didn’t conclude the Applicant was making a false allegation

against the Respondent.d. She noted it was an isolated incident, and there were no allegations of physical

abuse – by either parent --on other occasions. She said if there were a pattern ofallegations that couldn’t be verified, that would be more concerning.

e. She said making one allegation which wasn’t verified didn’t really cause her to be

suspicious of the Applicant, particularly since the Applicant’s overriding concernsabout emotional abuse were verified.

336. On this issue I cannot fault either parent.

a. I accept the Applicant’s explanation that he saw unusual bruising. Mainly he wasconcerned about the child’s suspicious reaction when asked about it.

b. By the same token I fully understand the Respondent perceived she was beingfalsely accused of physically abusing her daughter.

c. I accept the Society’s conclusion that these were normal, non-suspicious bruises.

d. I accept the Respondent’s evidence that she has never physically abused Paige.e. I accept the Applicant’s evidence that he wasn’t accusing her.

f. I accept Hayes’ conclusion that there was no bad faith involved. Just bad luck.



Page: 99

g. These parties didn’t need more reasons to mistrust one another. Unfortunately,the damage is done.

CAS CLOSED FILE

337.

CAS sent final reporting letters to the parents on May 8, 2015 stating:

a. The most recent concerns about emotional harm were not verified. b. Conflict continues, largely exacerbated by the parents’ inability to communicate

with one another.c. Professionals involved with Paige report she is coping well and she is continuing

to be well supported through counselling with Ramani.

d. The parties were urged to consider using a parenting co-ordinator.e. The Society takes no position regarding the custody/access proceedings.

BABY TEETH

338. But despite the involvement of counsellors and CAS workers, conflict betweenthe parties persisted.

339. The Applicant gave two example of how something as simple as losing a babytooth created needless stress for Paige. The first incident occurred in January 2014:

a. Paige had a tooth which had been extremely loose for quite a while. She wasapprehensive about it actually coming out.

b. The Applicant said as soon as he examined it gently, touching it with a Kleenex,the tooth came right out.

c. He said at first Paige started laughing about how easily it came out.

d. But then she became stressed and started crying.e. She said the Respondent would be mad that she lost her tooth at the Applicant’s

residence.f. She said “If I lose my tooth here the tooth fairy is not going to come.” g. The Applicant reassured Paige that she didn’t have to worry. He said the tooth

fairy and Easter bunny would always find her wherever she was.

340. A similar situation arose in July 2014.

a. Paige was playing in a swimming pool when suddenly she noticed that a baby

tooth had fallen out. b. The Applicant retrieved the tooth from the pool. But he said his daughter became

extremely stressed that the tooth had fallen out at his residence rather than at theRespondent’s residence.

c. She kept asking if there was any way she could put the tooth back into her mouth

so that the Respondent wouldn’t know it had fallen out at the Applicant’s home.Again, she was apprehensive about the Respondent’s disappointment.

d. She asked “Daddy can I tape it back into my mouth?”



Page: 100

e. The Applicant said he again calmed her down and reassured her that the toothfairy would come visit that night.

341. White testified about the first tooth incident in January 2014:

a. Paige had a wiggly tooth b. When the Applicant touched it to examine it, he and Paige were both surprised

that it came out.c. White said initially Paige was surprised and excited.

d. Then she completely broke down.e. She started saying she was supposed to lose her tooth at her mother’s home. f. She said important things are supposed to happen at her mommy’s.

342. White testified about the second tooth incident in July 2014:

a. Paige was splashing in the pool.

b. She came up out of the water and suddenly she was distraught. “She freaked out,holding her mouth.” c. She started crying hysterically, saying that her tooth had fallen out.

d. Paige said things like “Please can I get some tape. I need some tape or some glueto put it back in my mouth. Mommy’s going to be mad.”

e. White said Paige cried on and off all day about it.

343. The Respondent testified about Paige losing teeth.

a. She said she has never expressed any view to Paige about whether it made anydifference if her baby teeth fell out at the Respondent’s home or elsewhere.

b. She said rather than the Respondent having a preference, it might be Paige herselfwho has a preference: Because the tooth fairy at the Applicant’s house only

leaves $2.00 wher eas the tooth fairy at the Respondent’s house leaves $5.00.

344. CAS worker Julie-Ann Pearce testified about lost teeth:

a. During a meeting on August 5, 2014 the Respondent told her she had no concerns

about where Paige lost her teeth. b. The Applicant told Pear ce that when Paige worried about the Respondent’s

reaction if her baby teeth fell out at the Applicant’s house, the Applicant said he

just tried to divert to another topic. Pearce told him to continue that strategy.

345.

Pearce gave additional evidence touching on this and other topics.346. The CAS worker testified that during her private meeting with Paige on August

22, 2014 she had the child do a drawing exercise known as “3 Houses” – drawing

pictures of 3 houses, each with “Good things”, “Worries”, or “Wishes” 347. The Good Things included:



Page: 102

f. Pearce said these immediate responses by the child about good things, worriesand wishes, cause her to worry about the child’s level of awareness of the conflict,

and how she is processing that information.

351. Pearce testified she had no concerns about Paige’s truthfulness or spontaneity.

a. Her meeting with Paige on August 22, 2014 was in a relaxed and reassuring

setting: a park. b. Pearce had on a previous occasion met the child and played Lego with her, to

build rapport.c. She had developed a very comfortable, open level of communication with the

child.

d. They interacted well.e. Paige’s “words came out very fluidly” and she did not appear nervous or self -

conscious.

352.

I accept the evidence of the Applicant, White and Pearce:

a. I find that the Respondent told Paige that her baby teeth should fall out at the

Respondent’s residence. b. I find this was part of a broader and persistent effort by the Respondent to make

Paige perceive that all important and good things should happen at the

Respondent’s home. That the Applicant isn’t equally entitled to share in her life.

353. I also find that CAS worker Pearce confirmed the evidence of the Applicant,White, Grice, Anderson and Hayes in relation to the STOP SIGN.

a. Ramani created the STOP SIGN as an important tool for the Paige to stop adultsfrom saying upsetting things.

b. The STOP SIGN was primarily directed at the Respondent. Paige made it clearthe Respondent was making negative and upsetting statements much more thanthe Applicant.

c. I find that the Respondent took the STOP SIGN away from Paige because shedidn’t want the child having the ability to resist or draw attention to the

Respondent’s negativism. d. I find that this is consistent with the Respondent’s general resistance to

counselling for Paige.

e. The Respondent doesn’t want anyone interfering with what she says and doeswith her daughter.

MANIPULATION OF CHILD

354. Each party accused the other of making inappropriate comments to Paige, andgenerally attempting to manipulate the child’s allegiances.



Page: 103

355. The Applicant testified CAS reopened its file in the fall of 2014 because theRespondent was telling Paige things like:

a. Police officers kill people and you shouldn’t go to the police (the Applicant is a

police officer).

b. The Applicant’s mother was not really her grandmother and she needed to becareful around her.

c. She shouldn’t talk to the Children’s Aid Society woman or her counsellorRamani.

d. “Mommy says we are best friends and best friends should not be apart.”

356. The Applicant said the Respondent tried to subvert the custody assessment by

telling Paige things like:

a. “Michelle Hayes is no use.” b. “Michelle Hayes is going to take you away from me.”

357. The Applicant testified in the recent past Paige has been upset to the point ofvomiting because the Respondent has been scaring her about this custody trial, saying

things like:

a. “The trial is coming up and you may never see me again.”

b. “The judge will make it so you’ll never see mommy again”.c. “The Judge will make it so you don’t see your friends again.”

358. The Applicant testified sometimes Paige would ask him “Why is mommy doingthis?”

a. She was referring to all of the Respondent’s bizarre behaviours and statements,

and her constant negativity toward the Applicant. b. The Applicant testified he didn’t want to say anything bad about the Respondent,

but wanted Paige to feel she was allowed to talk about the subject, since she had

raised it.c. He said he would answer: “What do you think?” But Paige didn’t have an

answer.

359. The Applicant denied the Respondent’s allegation that he “interrogates” Paige.

But he admitted at one point a CAS worker said he needed to “lay off questioning” Paige.He said he backed off and left it for Paige to approach him if she wanted to talk about

something.360. The Respondent denied making most of the derogatory statements attributed to

her.

a. She told CAS worker Anderson on January 19, 2015 that she doesn’t speak

negatively about the Applicant anymore.



Page: 104

b. She admitted there were times when she slipped up in the past and might havesaid some nasty things.

c. The Respondent told Anderson she felt the Applicant was coaching the child.d. She testified that she had to consider the possibility that Paige was starting to

manipulate both parents by pitting them against one another.

e. But she said some of the statements attributed to her were so malicious that theymust have been fabricated or implanted by the Applicant.

361. Hayes testified the Respondent said she never made negative statements about the

Applicant to Paige. She denied telling Paige that her father doesn’t love her. 362. For her part, the Respondent said Paige has frequently quoted the Applicant as

saying negative things about the mother. Among the alleged statements:

a. “Mommy is trying to give you a bad life.”

b. “Mommy is trying to make you hate me.” c. “Don’t listen to mommy.”

d. “Mommy doesn’t feed you good food.” e. “Paige be careful what mommy says.” f. “Mommy’s trying to teach you how to lie.”

363. Under cross examination, the Applicant categorically denied making suchstatements. White denied ever hearing him speak like that.

AUDIO RECORDING

364. The Applicant alleged the Respondent went beyond denigration. He said she useda tape recorder to formally coach Paige about what to tell people:

a. He reported Paige telling him the Respondent would record her while instructing

her about what to tell people. b. If Paige didn’t repeat the script properly the Respondent would stop the recording

and instruct Paige as to the correct way she should say things.

c. Paige told him the Respondent would repeatedly tell her precisely what to say – and then she would add: “But I don’t want to put words in your mouth.”

d. The Applicant testified Paige told him the Respondent would also coach her aboutwhat to write in her school journal.

365. The Respondent admitted she frequently tape recorded her daughter. She sawnothing wrong with it.

a. She testified that after many visits with the Applicant, Paige returned andspontaneously told her about upsetting things which happened during access.

b. So she decided to audio record Paige when she returned from visits.c. She said she did it so she could later review the tapes and clarify in her own mind

exactly what Paige was alleging.



Page: 105

d. She wanted to write down Paige’s statements after each visit because she wantedto create “a data base”

e. She also wanted to review her own responses.f. She wanted to be able to tell CAS what Paige was saying and how the Respondent

was replying.

g. She denied ever telling CAS that she also videotaped Paige. That neverhappened.

366. The Respondent said she felt everyone was pointing the finger at her, whenever

Paige showed any signs of stress or unhappiness.

a. She said as she assembled the information from the recordings into her database,

it became clear to her that Paige was having problems when she was with the Applicant , not when she was with her.

b. She admitted she was also making the recordings and assembling her database in preparation for trial.

c. She said she tried to do everything possible to avoid a trial, but she had no doubtthat the Applicant would insist that the matter proceed to trial. She said shewanted to assemble as much information as she could, to defend herself at trial.

367. The Respondent was questioned about influencing things Paige said.

a. She admitted Paige was aware she was being recorded. b. She didn’t think Paige was self -conscious about it, because the Respondent used

to tape record her “numerous times for numerous different reasons” includingmusic and singing.

c. In fact, she said eventually she discontinued post-access audio taping, because

Paige started making a joke out of it.d. The Respondent said the only instruction she ever gave Paige was to tell the truth

to people.

368. When the Respondent was asked about surreptitiously recording other people, she

was vague and evasive:

a. She admitted she surreptitiously recorded an unspecified number of people, butshe didn’t identify who, and she couldn’t remember when she started.

b. She said she couldn’t remember if she had recorded any teachers. She “may

have” recorded Cosentino. c. She didn’t know how many recordings she had made. During the trial her lawyer

said there were a lot.d. She never disclosed to anyone (including the Applicant’s lawyer) the existence of

any of these tapes.

e. She said she had no intention of using any of the tapes as evidence – except theexistence of the tapes was revealed only after the Res pondent’s lawyer attempted

to use one of the tapes during cross examination of CAS worker Pearce.



Page: 106

f. The Respondent said she was “unable to find any other method of defence againstthose lies.”

369. The Respondent became a particularly uncooperative and resistant witness while

being questioned on this topic. She said she tape recorded people “Because of the

ruthless litigation I find myself in the midst of.”

370. CAS worker Julie-Ann Pearce testified she specifically asked the Respondentabout recording people.

a. Dur ing a meeting on August 5, 2014 the Respondent told her she doesn’t audio orvideo record during access exchanges.

b. More generally, the Respondent told Pearce she did not audio tape the child.c. Pearce said she made a point of saying that if such recording occurred during

exchanges it would not be in the child’s best interests.d. And Pearce clarified to the Respondent that her concern would be no different

whether recordings were audio or video.e. Pearce said the Respondent was clear: She did not audio tape Paige.

371. Under cross-examination Pearce acknowledged the child was connected andcomfortable with each parent. But she said Paige remained uncomfortable about theRespondent’s inappropriate statements and behaviour -- such as recording her.

372. CAS worker Alison Grice testified about a private interview she had with Paigeon April 10, 2014.

a. Paige told Grice the Respondent tape recorded her. b. She said she thought her mother did this because her mother thought her father

lies.c. Paige said the tape recording made her “feel uncomfortable”.

d. She also reported the Respondent didn’t say nice things about the Applicant. e. Paige said she didn’t talk about her father in front of her mother because she

didn’t want her mother to say bad things.

f. She denied that the father did these things.g. Paige also told Grice the Respondent took pictures of the Applicant and White

when he dropped off the child. Paige stated she thought this was wrong.h. She also stated that the Respondent asked her not to speak about piano lessons at

the Applicant’s home, and not to take her school journal to his home.

i. Paige told Grice it made her sad when the Respondent spoke negatively about theApplicant.

373. This wasn’t the only allegation of people electronically recording other people. 374. The Respondent’s friend Chantel Danis testified she saw the Applicant’s fiancé

White videotaping as the Respondent picked Paige up from school one afternoon.



Page: 107

a. Danis testified she happened to be at the school on October 7, 2013 and noticed awoman wearing a black hoody as if to conceal her face. She couldn’t get a good

look at her. b. Because it appeared the woman was videotaping the Respondent, Danis said she

quickly took two photographs of the woman on her child’s i-pod.

c. During examination in chief, she said she was “90% sure” the woman was theApplicant’s fiancée Catherine White.

d. Under cross-examination she quickly admitted maybe it wasn’t White.e. The two pictures themselves were of no assistance. They looked like blurry

snapshots of Big Foot. You could barely make out that it was a person, let aloneidentify the gender, facial features, or what they were doing.

f. Notably, Catherine White not only denied – categorically – ever taking pictures or

videos of anyone at Paige’s school. White also produced detailed cell phonerecords confirming she was in Toronto (where she works) at the precise time she

was accused of videoing the Respondent in Waterdown.g. At one point during the trial, the Respondent’s lawyer actually withdrew this

weak allegation. Inexplicably, she later resurrected it.

375. Notably, Danis herself was also accused of taking pictures of the Applicant and

Paige on the school yard.

a. Teacher Cosentino and Vice-Principal Henson both testified it looked like Danis

was standing on a hill holding her cell phone up as if pointing a camera. b. Danis denied taking pictures. She said she was merely holding her cell phone up

in the air, texting her husband.

376. I make no finding as to whether Danis did or didn’t take cell phone pictures at

school.377.

I absolutely reject the allegation that White was seen videotaping the Respondent

and Paige at school.

a. The Respondent had virtually no evidence that it happened.

b. More to the point, the Applicant and White actually produced cell phone records prior to trial irrefutably proving it couldn’t have ha ppened.

c. The fact that we wasted time even dealing with this allegation helps explain whythis ended up being a 36 day trial.

378. My biggest concern is the Respondent’s electronic recording of Paige duringexchanges and particularly after she returned from visits with her father.

a. Surreptitious or secret recording of children and parties in family litigation is badenough. It destroys the trust family court strives to rebuild, so that parties can

learn to act together in the best interests of the child. Sheidaei-Gandovani v. Makramati, 2014 ONCJ 82 (OCJ); Hameed v. Hameed, 2006 ONCJ 274 (OCJ).



Page: 108

b. Photographing access exchanges is equally destructive. It puts the child in themiddle. It exacerbates tensions and creates a heightened sense of potential or

imminent conflict. It clearly demonstrates that the parent holding the camera isfocussing more on the litigation than the emotional well-being of the child.

Guadalaxara v. Viau, 2014 ONSC 545 (SCJ); Luke v. Luke, 2014 ONSC 422

(SCJ).

379. But the Respondent’s decision to systematically audio record Paige after shereturned from each visit, reinforces fundamental concerns about the mother’s parental

judgment. About her instinct to include rather than shield Paige from adult discussion.

a. Throughout her testimony, the Respondent seized every opportunity to mention

what an enlightened parent she is. How much reading and research she has done.How much thought she puts in to raising her daughter. How selfless, sensitive

and attuned she is. b. How could such a good parent do such a bad thing?

c. How could she not have noticed what CAS worker Grice discovered in a singleconversation?d. What most of us would have guessed without ever meeting the child.

e. That tape recording Paige after every visit with her father made this little girl feel“uncomfortable”.

380. Between the prolonged, dramatic goodbyes before visits, and the conspicuousrecorded debriefings immediately afterward , what message was the Respondent

conveying? What message has she been conveying to this stressed out child for the pastfour years?

a. That contact with her father is something to worry about. b. That only her mother will protect her. Only her mother knows what’s best.

c. That if they stick together, mother and daughter will get through this horriblesituation the father has created.

381. It’s little wonder the Applicant and White testified Paige would get progressivelymore upset – to the point of soiling herself -- as the time approached for the child to

return to the Respondent’s home. I suspect the Respondent’s projected paranoia wasmore damaging to Paige than any potential harm while in the Applicant’s care.

WORDS IN HER MOUTH

382.

The Respondent insisted she used the tape recording sessions to listen to Paige – not tell her what to say. But other witnesses were clear that the Respondent was coachingand pressuring her daughter.

383. For example, Paige’s grade one teacher Cosentino testified about a June 2014entry in the child’s agenda.



Page: 109

a. There had been ongoing concerns about the Respondent not allowing homeworkor other documents to go to the Applicant’s home.

b. There was an entry in the agenda concerning a journal which had gone missing.c. Cosentino testified early in the school day Paige made sure the teacher read the

entry:

d. “I TOLD YOU I ALREADY DID MY JOURNAL AT HOME. NO, MY BOOKIS AT DADDY’S HOUSE HE CAN’T FIND IT.”

384. Cosentino testified that based on her familiarity with the then-six-year- old child’s

vocabulary and writing skills, she immediately concluded that Paige had been told whatto write. But Cosentino knew how easily Paige became stressed, so she elected to keepher suspicions to herself.

385. But Cosentino said soon after, Paige appeared to have some sort of emotional breakdown:

a. Paige broke down in class and started crying.

b. She was banging her fist against her thighs and saying “I’m sorry” over and overagain.c. Cosentino testified she tried to console the child and calm her down. Based on

advice from a counsellor, Cosentino had developed a technique whereby if Paige became stressed she would allow the child to sit quietly and draw pictures toexpress herself.

d. During all of this, the child started apologizing to the teacher.e. Paige said: “Madam I trust you. I like school. I like you as my teacher. But

mommy tells me that you’re a bad teacher and I shouldn’t trust you.” f. Paige then explained that her mother had instructed her to write the note in the

agenda, and that Paige was to make sure the teacher saw the note.

g. Paige didn’t say why.

386. The Respondent was cross-examined about the note Paige wrote in the agenda.

a. She admitted she was present when Paige wrote the note.

b. But she had no explanation as to why Paige told Cosentino that her mother madeher write the note.

c. She speculated that Paige might have been worried about her father’s reaction ifshe revealed that he was the one who lost her book.

d. She said Paige wrote the note entirely of her own volition.

e. “She was very angry when she wrote it.” f. “I didn’t stop her. It is her prerogative.”

g. She said Paige was trying to convey a message to whoever was asking her whereher book was. Paige was trying to say that the book was at her father’s residenceand her father had misplaced it.

387. Cosentino testified about another occasion when Paige was upset about being told

by the Respondent to lie.



Page: 110

a. Paige told Cosentino she got in trouble about homework.

b. She said after picking her up for the weekend the Applicant asked if she hadhomework.

c. She told him she didn’t have homework.

d. She knew she had deliberately left her red folio with homework back at school.e. She knew she was lying to the Applicant and it upset her.

f. She lied to the Applicant because the Respondent had told her not to takehomework to the Applicant’s home.

g. She didn’t want to contravene her mother’s instructions, and she didn’t want to lieto her father.

h. She felt terrible when the Applicant discovered that she really did have

homework, and she had to admit she had lied to him.i. Cosentino summarized it: “She was caught between a rock and a hard place.”

MEDICAL ISSUES

388. The parties have had significant conflict over Paige’s medical care.

a. The Applicant testified that prior to separation he was actively involved attendingPaige’s doctor’s appointments.

b. He said following separation he was only able to attend one appointment because

the Respondent shut him out of medical issues and refused to inform him aboutappointments.

c. The Respondent testified prior to separation she assumed primary responsibilityfor Paige’s health care – and everything else in Paige’s life.

d. She said after separation she didn’t notify the Applicant about Paige’s medical

appointments because he wasn’t in their lives, and he showed no interest in thechild.

e. McMillan didn’t go along with the Respondent’s “showed no interest” allegation. f. McMillan testified the Applicant was always regularly involved as a parent,

although probably the Respondent brought Paige in for more appointments prior

to separation.g. Throughout her evidence McMillan repeated that these are equally loving, equally

interested, equally capable parents.h. It’s the “equally” that the Respondent seems to have trouble with.

389. The exact number of appointments attended by the Applicant is less relevant.There are more basic questions:

a. Was he actively involved in Paige’s life prior to separation? Yes. b. Was his involvement in Paige’s life reduced by the Respondent after separation?

Yes.c. Did he want to be more involved – equally involved – in Paige’s medical care?

Yes.



Page: 111

d. Is he equally capable and dedicated to ensuring Paige’s medical well-being? Yes.

390. Parenting between separated parties is not supposed to be a competition or turfwar.

a. Sometimes at the interim stage, parents involved in a custody dispute perceivethey need to establish as many domains of “exclusive authority” as possible. Like

badges to be piled up in support of the inevitable “status quo” arguments. b. But “exclusive authority” stops looking impressive once it becomes apparent that

the “uninvolved” parent was actually prevented from being involved.c. Suddenly the “status quo” stops looking so good.

391. I heard evidence of several instances in which the Respondent presumptively tookthe position that as soon as a health issue arose in Paige’s life, only the mother could

handle it. There were also several instances in which it was clear that the Respondentwas only paying lip-service to the idea of keeping the Applicant informed.

392.

For example, the Respondent presented a series of e-mails to demonstrate that shekept the Applicant informed about Paige having an ear ache:

a. The first e-mail in the chain she presented at trial was dated May 3, 2013 at 4:40 p.m. It stated: “I have just tried to phone you to inform you that Paige is sick.She was diagnosed with an ear infection on Wednesday.”

b. But under cross-examination the Respondent admitted she hadn’t produced thecomplete chain of e-mails.

c. She acknowledged that the chain actually started with an e-mail from the Applicant on that same day May 3, 2013 – but almost an hour earlier at 3:41 p.m.

d. The Applicant’s e-mail started: “Paige told me yesterday that she has an ear

infection and was taking medication…”e. The Respondent denied being selective about producing e-mails.

f. She denied trying to take credit for informing the Applicant about the earinfection -- whereas in fact she only “informed” him after he sent her an e-mailasking “why didn’t you inform me?”

g. When asked why she hadn’t actually informed the Applicant about the earinfection on the day Paige got sick, the Respondent answered “Maybe I had other

things to do.”

393. A similar situation arose in August 2015, about a month prior to the scheduled

commencement of this trial.

a. The Applicant testified that when he picked Paige up for access, the childmentioned that earlier in the day the Respondent had taken her to the dentist “tohave dirt removed.” (Apparently she had a cavity and got a filling. )

b. Part way through the visit Paige mentioned that while she was at the dentist’soffice she fainted.



Page: 112

c. The Applicant testified he was concerned that when he picked Paige up theRespondent hadn’t mentioned the dental visit or fainting.

d. He felt it would have been helpful to know that she had dental work, so that hecould select an appropriate meal.

e. More to the point, if he knew she had fainted he would have known to pay special

attention to any unusual symptoms she might be experiencing over the ensuinghours.

f. The Applicant testified that later in the evening – after he had returned Paige tothe Respondent -- she sent him an e-mail advising him about Paige fainting. She

said she hadn’t wanted to alarm him.

394. The Respondent testified about this incident:

a. She had taken Paige for some dental work.

b. The child was actually finished with the dentist when she fainted while still in theoffice.

c. The dentist picked Paige up, moved her to a dental chair, and monitored her forabout 30 minutes. She was fine.d. The Respondent then took the child to her parents’ home nearby. Her tooth was

fine and she had some lunch.e. The Applicant picked Paige up later that day for a non-overnight visit.

395. The Respondent was cross-examined:

a. She admitted when she dropped Paige off to the Applicant, she told him nothingabout Paige fainting at the dentist’s office – or even that she had taken Paige tothe dentist.

b. Asked if she should have mentioned the fainting during the access exchange, shesaid “we don’t speak at pick up”.

c. Asked whether she might have said something like: “Paige fainted, keep an eyeon her”, the Respondent replied: “No, I wouldn’t even think of talking to Mr.Jackson at an exchange.”

d. After being reminded that parents should share important medical informationabout a child even if they don’t like each other, the Respondent stated: “I could

have told him in person, but I chose not to.”

396. The Respondent said the only reason she eventually sent an e-mail was because

she herself has a history of fainting, and she didn’t want the Applicant to be alarmed ifPaige fainted.

a. But notably, the Respondent never said anything about a “family history offainting” in her e-mail.

b. This was another instance in which the Respondent claimed credit for sharinginformation about Paige – even though she didn’t convey the information until

after it was of no use to the Applicant.



Page: 113

397. The Applicant testified on her next visit Paige told him the Respondent got angry

with her for disclosing the fainting incident. She had been told not to tell the Applicantanything about it.

CHILD’S SURNAME

398. One of the most emotional areas of conflict related to the child’s surname. 399. As stated, the child’s legal name is Paige Emily Jackson.

400. But the Applicant testified that since separation the Respondent has substitutedher surname for his:

a. He said she registered Paige at school and recreational activities under hersurname Mayerle.

b. She labelled all of her belongings with Mayerle.c. Sometimes she used both Mayerle and Jackson.

401. The Applicant said this is a constant reminder to Paige about the ongoing conflict between her parents, and it is very confusing for her. She doesn’t know how to answer

when someone asks about her name.402. Senior kindergarten teacher Lawson recalled conversations she had with Paige

concerning the child’s surname.

a. Paige said her mother said the child’s last name was Mayerle.

b. Paige wasn’t sure whether she should use Jackson or Mayerle. c. Lawson said Paige appeared to be “upset, but more confused” by this uncertainty

about her proper name.

403.

Grade one teacher Cosentino testified that Paige’s surname became an issue for

the child.

a. Initially, Paige would only write her first name on her work – typical of most

young children who only write their first name. b. Then there was a period when the child started writing her name “Paige Mayerle”.

Cosentino said it was unusual for children to write both their first and last names.c. But other children started remarking on the fact that on attendance lists Paige’s

last name was identified as “Jackson”.

d. Paige then said to Cosentino: “Mommy says my last name is Mayerle and I haveto write Mayerle on everything.”

e. Cosentino didn’t want to add to her stress, so she told Paige that she could writeany name she wanted.

f. The teacher described Paige as confused and stressed out over the whole issue of

her surname.

404. Assessor Hayes commented on the issue:



Page: 114

a. Hayes testified Paige had seen both Jackson and Mayerle used. She had no

insight about which name she should use. b. Hayes expressed concern that not even being sure about her own name was

destabilizing for the child – and Paige’s anxiety would be reinforced by the

frequency with which she’d have to routinely write her name at school. c. The name issue was a constant reminder that her parents really couldn’t agree on

anything. And that whatever name she chose to use, she would please one of her parents.

d. Determination of her name was not only a parents’ issue. It was very much achild’s issue. Paige had a right to have this fundamental issue in her life settled.

405. Grade two teacher Stickney couldn’t recall whether Paige made any comments toher about having two surnames. She said usually Paige simply wrote her first name on

documents, without mentioning a last name.406. The Respondent testified about the surname issue.

a. She said she enrolled Paige at school under the name Jackson, and has neverchanged it.

b. She admitted that on some school forms she has included Mayerle in addition toJackson.

c. She said some of Paige’s clothes were hand me downs from her cousins who had

already labelled the items with Mayerle.d. She said when the Applicant started asking that some items like backpacks only

go to his residence, she labelled certain items Mayerle to clarify whose home theyshould be returned to.

e. Generally she said she has not deleted Jackson, but has simply added Mayerle.

407.

The Respondent testified she would like Paige’s name changed to add Mayerle as

part of her formal surname: “Paige Emily Mayerle Jackson”. She would prefer that it not be hyphenated. She said Paige wants Mayerle as part of her name so that she feelsequally connected with both sides of her family. The Applicant is opposed to any name

change.

408. The Respondent was cross-examined about the first page of the child’s grade twoagenda:

a. The contact information page was filled in by the Respondent. b. As with the grade one agenda, the Respondent and other people were listed as

emergency contact people. The Respondent did not mention the Applicant’sname or information.

c. The child’s name was identified as “Paige Mayerle”. The Respondent wrote that

name in and the child signed “Paige Mayerle” below. There was no mention ofPaige’s legal surname Jackson.

d. The Respondent said it was Paige’s decision to use Mayerle.



Page: 116

“STOP, STRANGER, POLICE”

414. And even something as simple as haircuts exposed the child to unnecessarydrama.

415. The Applicant testified:

a. During March break 2014 he took Paige to get about three inches trimmed

because the child said she desperately wanted a haircut. He admitted he didn’tdiscuss the matter with the Respondent because he felt it would be an

unproductive discussion. b. He said in April or May 2015 he again took Paige in for a haircut because on a

couple of occasions the Respondent had crudely cut the girls bangs and they

looked terrible.c. He said Paige was quite content to go for this haircut, and he presented

photographs showing how happy she was sitting in the hair salon chair.d. But Paige told him that after the 2014 haircut, the Respondent told her that “If

daddy tries to cut your hair, drop to the floor and do your “STOP, STRANGER,POLICE” cry.e. The Applicant explained “STOP, STRANGER, POLICE” was a street-proofing

technique, whereby children are warned that if anyone tries to do anything bad tothem, they should fall to the ground, kick their feet, shout for attention, and createa commotion.

416. White testified about haircuts.

a. She said in May 2015 Paige had been begging to get a shorter haircut, so theApplicant took the child to get a haircut.

b. White said Paige loved getting a haircut.

417. Stickney testified about a May 4, 2015 log entry she made about Paige’scomments regarding haircuts.

a. “Paige said she was worried about haircuts cuz mom was being mean about it,saying she normally cuts it so why would daddy do it.”

b. Under questioning, Stickney explained Paige came up to her in class and said shehad a haircut.

c. Stickney said her hair looked very nice.

d. Paige didn’t seem upset about the haircut, but she was worried that her motherdisapproved of the Applicant arranging a haircut for her.

418. The Respondent testified about haircuts:

a. She has asked the Applicant not to give Paige haircuts, but he has done it anyway. b. Paige sometimes says she wants short hair, but whenever the Applicant has

arranged a haircut for her, she has returned quite dissatisfied by it.



Page: 117

c. The Respondent said she and Paige always had a nice routine of getting theirhaircuts together, and she thought this should continue.

d. The Respondent could not explain why Paige would have told Stickney that hermother was being mean about her haircut.

419.

On a very basic level, the inability of the parents to agree on something as simpleas haircuts is merely one more example that communication and goodwill is non-existent

between these parties.420. But the Respondent’s reaction when the Applicant arranged haircuts was telling:

a. Rather than communicate her disapproval to the Applicant, she once again madethe child a participant in the discord.

b. Rather than reassure her daughter that the mother would take care of it, theRespondent gave Paige frightening instructions about how she should take care of

it.c. “STOP, STRANGER, POLICE!” Was that really necessary?

d. What message was the Respondent reinforcing to the child?e. That she should be ready in case her father tries to harm her?f. That she should physically resist her father and scream for help from strangers?

g. That her father is one of those bad people she was street-proofed against?

421. As an aside, I accept the evidence that there was nothing wrong with the haircuts

and the child was not upset with the Applicant.422. But no bad haircut could ever match the harm to Paige caused by the

Respondent’s hysterical reaction.

SCHOOL ISSUES

423.

Throughout her evidence – and since the date of separation – the Respondent has

insisted that her parenting skills are superior and Paige is more closely connected to herthan the Applicant.

424. But no other witness – not even the ones she called – agreed with either of those

characterizations.425. The evidence of the Applicant; White; the teachers and principals; the CAS

workers; the assessor – even the Respondent’s own family doctor – was that Paige loves both parents equally. And both are equally good parents.

426. And yet the Respondent’s claim to parental superiority and entitlement was

particularly pronounced when it came to Paige’s school issues. 427. I heard a great deal of evidence about ongoing – sometimes daily – school and

education-related problems.

a. I will not review that evidence in the same level detail applied thus far. I have

already mentioned some of it briefly. b. Days of evidence from multiple witnesses dealt with broad patterns of behaviour.



Page: 118

c. In some cases there might have been disagreement as to how many times something happened. But I found there could be no doubt about what has been

going on at Guy Brown Elementary School since September 2012.d. Some of my earlier factual and credibility determinations will add perspective to

my findings in relation to these school issues:

428. I find that the Respondent made consistent and deliberate efforts to marginalize

and exclude the Applicant from parental involvement at Paige’s school.

a. On school forms she named herself and members of her own family as emergencycontact people. She excluded the Applicant, or provided out of date contactinformation about him.

b. She regularly identified the child using her own surname Mayerle, often omittingany reference to the child’s legal sur name Jackson.

c. The Respondent took steps to control all paperwork.d. School principal Rizzo testified about an incident on September 4, 2013 when an

important information package was given to Paige and the child ended up givingit to the Applicant rather than the Respondent. Rizzo said the Respondent cameinto the office “shouting and crying” that the package of information hadn’t been

sent to her.e. The Respondent withheld important notices and information from the Applicant,

to prevent him from knowing about school issues and events.

f. She delayed sending him notices so that by the time he received them it was toolate for him to participate in the event.

g. She physically altered or tampered with some documents he received. Forexample, in October 2014 the Respondent forwarded to the Applicant a letterfrom the school about problems Paige was having with reading. The letter as

issued by the school included at the bottom a handwritten request by the teacherinviting both parents to come in to the school to work on strategies to assist Paige

with her reading. But when the Respondent photocopied the letter for theApplicant, she covered over the invitation to come in. The Applicant onlydiscovered later that the teacher had wanted to see both parents.

h. She also altered or tampered with documents so that it would appear to teachersthat the Applicant was not actively involved as a parent.

429. I find that the Respondent made consistent and deliberate efforts to exclude theApplicant from any involvement in Paige’s academic progress.

a. Starting in grade one Paige had an agenda. It was a vital daily communication

link between the child, the parents and the teachers. It was to go home with Paigenightly, be signed by a parent, and returned the next day. Morning classroomtime would be devoted to reviewing agendas and confirming parental

involvement. If Paige had her agenda and it had proper entries, she would get asticker. All the children liked getting stickers.



Page: 119

b. Despite the Respondent’s denials, the evidence was overwhelming that sheroutinely withheld the agenda from going to the Applicant’s house on transition

days. She would bring Paige to school without her agenda if the child wasdestined to go to the Applicant’s home at the end of the day. Sometimes the

agenda would just go missing during the day.

c. The ramifications for Paige and the Applicant were enormous. Without theagenda, the Applicant wouldn’t know about homework or school projects and

activities. And without the agenda, it was more difficult for the Applicant tocommunicate with teachers.

d. I find that on one occasion the Applicant tore a page out of the agenda, because ateacher had written an unfavourable remark about her. The original copy of thatyear’s agenda mysteriously disappeared. But the Respondent produced what she

said was a scanned copy of the entire document. There were indications anotherof the entries had been modified by the Respondent. But without the original

copy for examination, it was difficult to verify.e. It was only after recommendations by both the Children’s Aid Society and the

section 30 assessor that the Applicant was finally able to gain more access to theagenda.f. The Respondent also withheld other important books and documents from going

to the Applicant.g. CAS worker Alison Grice testified during an April 10, 2014 interview Paige told

her she is supposed to leave her school journal and not bring it to her father.

Paige told Grice she didn’t know why she was not allowed to bring it to herfather.

h. And the Respondent frequently insisted that homework was not to go to theApplicant’s home – it was only to be done at the Respondent’s home.

i. I find that this was part of the Respondent’s overall “Paige’s important things can

only happen at my home” policy.

430. But the Respondent wasn’t just hurting the Applicant. She was hurting the child.

a. Vice Principal Hensen said there was a real concern about Paige keeping up with

her homework. She needed consistent assistance from both parents. It wouldhave been preferable that her homework make its way to both households.

b. Rizzo testified even after the Respondent asked what she could do to help Paigeacademically, the problem of homework and books not going to the Applicant’shome continued.

c. Grade one teacher Cosentino emphasized that the best way for non-francophonechildren like Paige to succeed in her French immersion program was through

homework assignments, and consistent parental support in the home. But with theRespondent deliberately withholding homework from going to the Applicant’sresidence, Paige was constantly placed at a disadvantage compared to other

children. And her stress was amplified by the embarrassment that the otherchildren had their proper materials; the other children had done their homework;

the other children were doing better.



Page: 121

consistent with the Respondent’s repeated efforts to exclude the Applicant fromanything fun in Paige’s life.

b. On two occasions the Applicant pre-paid for grilled cheese sandwiches for Paigeas a special treat (like a pizza day). But the Applicant said the Respondent packed

a regular lunch for the child anyway, and instructed her not to eat the sandwiches

ordered by the Applicant. The Respondent denied subverting the Applicant’sluncheon treat and said it was Paige’s decision what to eat for lunch. I accept the

Applicant’s evidence that the Respondent frustrated his ability to provide Paigewith treats.

433. Throughout her testimony the Respondent denied withholding the agenda, otherdocuments, or homework from the Applicant.

a. She denied tampering with documents or deliberately sending the Applicant

misleading or late notifications. b. She said sometimes Paige simply forgot things, or elected on her own not to share

information or homework with the Applicant.c. She complained teachers were too quick to accept the Applicant’s version ofthings. She felt school staff had become allied with the Applicant and were

taking his side.d. She insisted that she has never tried to shut the Applicant out of any parental

involvement on school issues.

434. I did not find the Respondent’s various explanations and denials to be credible.

There were simply too many witnesses and too many examples of the Respondent tryingto monopolize Paige’s school life. But perhaps the most telling evidence is a letter theRespondent sent Lawson on September 4, 2013, at the beginning of grade one (before

Lawson was replaced, at the Respondent’s request):

“I hope you had an enjoyable summer.

Please find enclosed payment for Paige’s personal agenda $5.00.

I write this in hopes of preventing any awkwardness such as what wasexperienced last year. I am Paige’s mother and custodial parent, as such; I askthat you please inform me of any occasion that Paige is taken off school property.When I leave Paige at school, I need to know that that is where she is, in case of asituation where I need to unexpectedly pick her up before 2:55 p.m.

Additionally, please ensure that all of Paige’s belongings are returned to me eachday after school at the designated pick-up area just off the playground, regardlessof whether or not Paige will be visiting with her father (and he has perhaps madearrangements to pick her up else where). This includes: her eye glasses, back

pack, personal agenda, home work, classroom work, correspondence, calendars,notices, lunch bag, extra clothing, etc. I will ensure that her things are dealt withand returned to the school each morning. Currently, Paige visits with her fatherafter school on Tuesday’s, some Friday’s and the occasional Wednesday.



Page: 122

Thank you in advance, very much for your assistance concerning thisdisconcerting state of affairs.”

(underlining in original )

435.

Two things to note:

a. The Respondent referred to herself as the “custodial parent” even though there hasnever been any temporary order or determination that she has custody.

b. At trial the Respondent offered no explanation about why she sent this letter if –

as she testified – she wasn’t insisting everything had to go to her house.

436. I find that the Respondent went to great lengths not only to restrict school work – but also to restrict the clothing and belongings Paige was allowed to take to theApplicant’s residence.

a. There were repeated instances when the Respondent took steps to ensure thatPaige went to the Applicant’s home wearing inadequate clothing. TheRespondent denied this but the Applicant, White and several school witnessesconfirmed it.

b. Sometimes on “transition days” she would deliver Paige to school wearing clothesor shoes which were too small or otherwise unsuitable. (A teacher made a note of

this in her agenda.)c. On the very first transition day after the May 28, 2013 temporary order, the

Respondent went to school in the middle of the day; pulled Paige out of class;

undressed her from good clothes; and dressed her in not-so-good clothes just before the Applicant came and picked her up.

d. The Respondent denied sending Paige in inadequate clothing for the weather. ButCosentino recalled a cold winter day in 2013 when Paige’s winter coat had gonemissing from her locker. Cosentino saw that the Applicant had to wrap his own

coat around Paige to keep her warm as he led her to his car.e. Cosentino testified that if Paige was scheduled to go to the Applicant at the end of

the day, the Respondent would send her to school in running shoes which weretoo small, so her feet got sore. But on non-transition days, the Respondent wouldsend Paige to school in regular shoes; sometimes new shoes. Hensen testified

about the same problem. Eventually Cosentino sent a note to the Respondentexpressing concern about the too-small shoes, and the Respondent stopped

sending them.

f. And in a twist, White testified about a day in March 2015 when the Respondentsent Paige to school in normal clothes. Except it was “Beach Day” and the

children were supposed to come to school in beach wear or Hawaiian clothes.When the Applicant picked Paige up at the end of the day, she complained that

the Respondent told her she couldn’t dress up for Beach Day, because she wasgoing to the Applicant’s house after school. Paige was disappointed to miss out.



Page: 123

437. There was a recurring problem with the Respondent not sending Paige to schoolwith her eyeglasses on transition days.

a. Various witnesses said Paige would get headaches without her glasses.

b. But the Respondent insisted Paige does not get headaches when she doesn’t wear

her eyeglasses. She said the eyeglasses are corrective and they are working. Shesaid Paige has no difficulty going for periods without wearing her glasses.

c. The Respondent denied withholding her glasses.d. Cosentino testified about a transition day when she asked Paige “Where are your

glasses”, and the child replied that her mom said she didn’t need them. ButCosentino said Paige was getting such headaches that the school had to call andask the Respondent to bring the glasses in.

e. Cosentino said on a couple of other occasions Paige stumbled about explainingwhy she didn’t have her glasses, and said “I’m supposed to say I forgot them.” –

when in fact the Respondent had deliberately withheld the glasses.f. Rizzo testified about the same problem.

g. White testified during an exchange at a parking lot, she witnessed the Respondenttake Paige’s glasses off, and then release the child to go with the Applicant.

438. I accept the evidence of the Applicant and various school witnesses that theRespondent attended at Paige’s school – outside and inside – at inappropriate times andfor inappropriate reasons.

439. She sometimes attended at the end of the day even though the Applicant wasscheduled to pick Paige up.

a. That created needless stress and tension for everyone. b. The Respondent claimed she would sometimes attend at the Applicant’s pick -up

times because she had concerns about whether the Applicant would be reliableand show up. School witnesses testified there had never been any problem about

the Applicant’s reliability.c. The Respondent admitted if the Applicant had an overnight visit, sometimes she

would attend school in the morning as the Applicant dropped Paige off. She said

she just wanted to say hello. That’s likely why she dropped by during theApplicant’s after school pick -ups.

d. Hayes testified that having both parents attend was confusing and distressing forPaige. She said Paige wanted to be with both of them, but didn’t know how to problem solve and didn’t have the skills to sort it out. All Paige could do was

wait for one of her parents to sort out the conflict. And her parents have beencompletely unsuccessful sorting out the conflict.

e. Hayes was asked by the Respondent’s lawyer whether it was “a big deal” if themother happened to stop by the school once or twice to say hello to her daughter.The assessor’s emphatic answer: “Yes, if there’s a lot of conflict that the child is

exposed to, it is a big deal.”



Page: 124

440. But when it comes to the R espondent and Paige there’s no such thing as a simple“hello” or “goodbye”.

a. I have already reviewed long-standing problems about the Respondent being

unable to regulate her emotions during school drop offs; during access exchanges;

and at the class Christmas celebration in 2013. b. I heard evidence of other times when Paige was distressed by contact with the

Respondent at school.c. Cosentino said Paige witnessed the Respondent crying at school several times.

For example on October 7, 2013 the Respondent attended the classroom areatowards the end of the day. Paige saw her mother and went into the hallway.Paige returned crying and upset. The Respondent was also seen crying in the

hallway.

441. The Respondent is likely correct that she was coping with separation anxiety. Butit was hers, not the child’s.

442.

I accept the evidence of various school witnesses that there was an ongoing problem of the Respondent entering the school during instructional hours.

a. I heard numerous accounts of incidents where the Respondent was seen in schoolwhen she shouldn’t have been there, tampering with Paige’s clothing or belongings.

b. She was seen at Paige’s locker. c. She was seen in the classroom.

d. Sometimes she would be removing items.e. Sometimes she would be replacing items.f. The Respondent generally denied these allegations, but I accept the evidence of

Lawson, Cosentino, Mioc, Hensen and Rizzo.g. There were other occasions when items appeared or disappeared. Even though no

one had seen the Respondent doing it, there was really no other logicalexplanation.

h. Cosentino noted that sometimes things would disappear in the middle of the day.

They couldn’t be found anywhere, including the lost and found. And then thenext morning the “missing” item would be brought to school by Paige from the

Respondent’s house. i. Henson testified every one to two weeks something of Paige’s would go missing

– often items she had in her locker at the start of the day, and they vanished by the

time Paige was supposed to be picked up by the Applicant. j. Rizzo produced a summary of school records which summarized incidents of the

Respondent attending the school inappropriately.

443. The Respondent admitted at Halloween 2013 she attended in the middle of the

day and removed Paige’s costume after a Halloween parade.



Page: 125

a. The Respondent said she did it at Paige’s request, because the child expressedconcern about the costume being damaged if she took it to the Applicant’s home.

b. But Hayes testified parents can’t simply say they’re complying with a child’srequest.

c. Hayes said the child might have many reasons for making a request, including the

possibility that the child was simply telling the parent what they wanted to hear.d. She said both parents have an obligation to encourage co-parenting and trusting

by Paige. They should redirect the child if she makes a request inconsistent withco-parenting.

e. Hayes said in relation to Halloween 2013, even if Paige asked her mother to pickup the costume, the mother could have responded “your costume won’t get ruinedgoing to your father’s house. Don’t worry, it will be fine.”

444. Rizzo testified after the problem with the Respondent at school following the

Halloween parade, Rizzo sent the Respondent an e-mail the same afternoon:

“I noticed today after the parade you visited the classroom and took with you Paige’sagenda and her backpack/coat. At the end of the day you returned, went to theclassroom, collected Paige, and then walked her outside to meet Davis.

I must remind you that the protocol for pick up as we agreed earlier this year, is tomeet Paige on the blacktop at the back of the school and that only the parent who is

picking Paige up is to be present at that time. I also understood that you were notgoing to be collecting Paige’s belongings but leaving them with her to t ake to herfather’s home on these occasions – as this is disruptive to Paige.

I trust these protocols will be follows and I will not need to mention it again.”

445.

But the school continued to have problems with the Respondent. So on January27, 2014 Rizzo sent a letter to the Respondent on school stationary. She said the letterwas necessary because informal communications and warnings were not effective instopping the Respondent’s behaviour.

“As the Principal of Guy B. Brown School it is my responsibility to ensure that our building is a safe and inviting environment where learning can flourish. I am writingto you today because some of your conduct has been interfering with themaintenance of this environment. Specifically, entering the school, attending theoffice, and then visiting the classroom, or locker area (often to remove personalitems belonging to your daughter), outside your daughter’s classroom.

This conduct has been observed to coincide directly with emotional outbursts/upsetfrom your daughter, and is disruptive to the instructional climate of the classroom.

This is a formal letter of direction, that under no circumstances are you to attend theclassroom without direct instruction to do so either by our office admin team or theclassroom teacher (e.g., for an interview). Should you fail to abide by this directionI will have no alternative but to issue a No Trespass Order under the Trespass to



Page: 127

interest is that Paige not be burdened with the Respondent’s sadness when sheshould be anticipating time with the Applicant.

d. Paige needs to feel a sense of ownership over her belongings and her schoolenvironment.

e. This will only be accomplished by each parent respecting the jurisdiction of the

school and the need for Paige to have independence in her days.

COMMUNICATION

450. Both parties provided the same pessimistic description of communication betweenthem.

a. They cannot communicate face to face or by telephone. Even for the sake of thechild.

b. They each claim the other has made disparaging and provocative remarks during previous personal encounters.

c. They communicate primarily through e-mail. But many of the exchanges arehostile and unproductive. Each blames the other for this.d. The Applicant complains the Respondent wouldn’t even give him her cell phone

number. She said she only uses it for work, and feared the Applicant would use itto try to talk to Paige.

e. They each claim they have made efforts to create dialogue and encourage co-

parenting. But without success.f. The Applicant acknowledges the Respondent is a good mother.

g. But Hayes testified she couldn’t recall the Respondent reporting any parentingstrengths of the Applicant.

h. They both say they have very different parenting styles.

i. The Respondent says the Applicant is fulfilling some sort of “family legacy.” Hehad a horrible childhood. So he’s going to give Paige a horrible childhood. The

Applicant denied this, and Hayes didn’t think much of the theory either.

451. While both parties must share responsibility for the overall breakdown in

communication, the Respondent’s bitterness and mistrust toward the Applicant is sointense that she is unable to respond to even simple inquiries, without being provocative.

A recent example of this arose during the first week of school, when the Applicant sentthe Respondent an e-mail which included two paragraphs:

“Paige has told me that her name was called out today as a “bus student” and shewas given a purple ribbon for the school bus but doesn’t know if this is an error as

she didn’t know she signed up for busing. Have you signed Paige up for busing?Can you please advise?

Also, could you please let me know at this point, which half of Thanksgiving youwould like so we can make plans.”



Page: 129

e. “I may have been going through some low grade depression or grief response.” f. She said she was prescribed Cipralex before the litigation started.

g. She said she initially took it to make sure she was able to properly manage thechild “now that I was a single mother and my husband had left to pursue his own

interests.”

h. She said she now takes it to deal with stress and anxiety associated with “Mr.Jackson’s litigation.”

458. The Respondent was categorical:

a. She has never had any mental health issues. b. Her doctor has confirmed she does not currently have any mental health issues.

c. She never will have mental health issues.

459. The Respondent recounted the amount of stress she has had to endure during thecourse of this litigation:

a. 18 months of scrutiny by CAS including four separate file openings. b. In 36 months an average of three letters per month from the Applicant’s

respective lawyers.c. A section 30 assessment that was supposed to take three months – and ended up

taking more than a year.

460. She said despite the pressures and attacks, she has maintained focus on Paige:

a. “Whatever he throws at me, I don’t care.” b. “I’m raising a really really great girl by myself.”

461.

McMillan gave the following evidence in relation to the Respondent who has

been her patient since 1993:

a. She was initially placed on medication to bolster her mood. The medication

worked well. The dose was lowered. McMillan has provided counselling for theRespondent as part of her family practice.

b. The Respondent has no major mental illness.c. She has good insight.d. The Respondent has no mental health issue which would in any way negatively

impact on her ability to parent Paige.e. She described the Respondent as having “a little bit of a low mood”, but she was

not depressed.f. The Respondent is an excellent mother.g. McMillan admitted she has received much more information about the parties’

separation from the Respondent. She said the Applicant elected not to maintainthe same level of contact with her, so she didn’t get his perspective on the marital

issues.



Page: 130

h. She said the Respondent asked to be tested for Sexually Transmitted Diseasessometime after September 2012, when the Respondent said she learned the

Applicant was in a relationship with another woman.i. McMillan described the Respondent as “shocked” about the Applicant’s new

relationship. The Respondent had previously reported experiencing some panic,

anxiety, sleep issues and trouble eating, when it became apparent their maritalrelationship was over.

462. Hayes testified about the Respondent’s mental health:

a. She believes the Respondent has mental health issues. b. She referred to the Respondent experiencing dysthymia which McMillan

described in her testimony as a “glass half empty type of person.” Hayes preferred describing her as “struggling with ongoing low mood.”

c. Hayes expressed concern that McMillan was evaluating and treating theRespondent’s mental health based entirely on self -reporting – without knowing

the additional concerns about the Respondent’s behaviour as raised by Paige’sschool and others in the community.d. Hayes said it’s good the Respondent seeks help from her physician in times of

need.e. But said during the assessment it became apparent that the Respondent may need

additional supports in working through the difficult issues related to separation

and divorce.f. Hayes said the Respondent’s behaviours negatively impact not only her

relationship with Paige, and also Paige’s relationship with the Applicant. Her behaviours “triangulate Paige in the conflict between her parents.”

g. Hayes said it was “imperative” that the Respondent seek counseling from a

qualified professional so that she may develop appropriate coping mechanismsand insight into the impact of her behaviour on Paige. She needs to establish

appropriate boundaries in her relationship with her daughter.h. Hayes testified she feels the Respondent should get counselling from someone

with more expertise than McMillan.

EMOTIONAL IMPACT ON CHILD

463. After hearing about so many serious problems, the obvious question is: How isPaige handling all of this?

a. The Applicant has consistently said there’s a big problem.

b. The Respondent has consistently said the Applicant is the problem.

464. The Applicant testified that Paige has been devastated by the Respondent’s

persistent campaign to exclude him from his daughter’s life. He described Paige’semotional health as “a mess”.



Page: 131

a. He said at first Paige was quite happy when she was finally able to go forovernight visits pursuant to the February 2013 temporary order.

b. But he said as months went on -- and particularly after a May 28, 2013 temporaryorder expanded access further -- Paige started becoming withdrawn and more

emotionally upset during visits.

c. Her moods would fluctuate. She’d be happy. And then she’d become sick,lethargic and lacking in energy.

d. Sometimes he would be able to cheer her up and she’d be fine again. Other timesshe’d want to be alone and play under a table.

e. Sometimes he would put her on the phone to talk to the Respondent, hoping thatmight help. But usually Paige would be even more upset after those phoneconversations. He didn’t know what the Respondent said to her, but Paige would

then refuse to get on the phone with her again. He recalled one time after Paigespoke to the Respondent by telephone, Paige then became withdrawn and started

avoiding him.f. By the Sunday of weekend visits she would start asking questions about

arrangements for returning to the Respondent, and whether she had school thenext day. She would become increasingly upset and sometimes soiled herself.g. She would also complain of terrible headaches. He always kept Tylenol in the car

for her.h. He attributed the stress to the Respondent’s constant efforts to undermine access

and make Paige feel bad about enjoying her relationship with him.

465. The Applicant said a conversation with Paige in January 2013 made him realize

he had to take more effective action through court proceedings, as the Respondent wasemotionally damaging Paige.

a. He said Paige was at his home sitting at the dinner table having supper when“suddenly she started balling her eyes out”. He said she was crying so hard she

was having trouble catching her breath. b. When he asked what was wrong, she said “Mommy says you don’t love me.” c. When he asked what she thought, Paige replied “I think you love me.” He said he

reassured her “yes I love you more than anything.” d. But Paige kept repeating that mom says dad doesn’t love her and that dad left her

for a new family.

466. He testified that in early 2013 she started vomiting and experiencing dry heaves

when she became distressed.

a. She would become so stressed by the Respondent’s emotional goodbyes duringaccess exchanges that she sometimes vomited in the parking lot and in his car.

b. Under cross-examination he rejected the suggestion that perhaps Paige was

simply car sick. He said after access exchanges moved to the school, Paige wouldstart throwing up on the school playground as soon as access was to start, even

before she got to his car.



Page: 132

c. He described various other instances when Paige would become distressed andvomited. He said the frequency has fluctuated, but the problem still continues.

467. He testified earlier this year he noticed some new and troubling behaviour:

a. Paige arrived for access with a terrible headache. He gave her Tylenol and let herlay on a couch where she fell asleep watching TV.

b. While she was asleep he went into her bedroom where he observed that Paige hadsmeared red lipstick all over her Barbie House and her Barbie dolls.

c. He said it was extremely odd and uncharacteristic behaviour. He expressed worrythat it was another sign of the emotional turmoil she is experiencing.

468. Under cross-examination, the Applicant denied the suggestion that he hasexaggerated Paige’s problems.

a. He said she is under extreme pressure.

b. He said as recently as his last access weekend before testifying in September2015, Paige was crying on his couch saying “I can’t take this pressure.” c. He said her emotional situation was probably worst in 2013 and 2014.

d. He said “as sad as it sounds I think she is learning to live with this.”

469. He also denied that Paige has a wild imagination and that she’s fabricating

statements and behaviours she attributes to the Respondent.470. The Applicant became emotional testifying about a request by Paige:

a. He said at one point Paige told him: “I wish you and mommy would go to a parkand say sorry to each other.”

b. To try to respond to Paige’s heartfelt suggestion, he sent an e-mail to theRespondent saying he was sorry that he hadn’t been the husband the Respondent

wanted him to be.c. In the e-mail he asked whether, for Paige’s sake, the Respondent would be willing

to meet so that he could say sorry and they could apologize.

d. He wanted them both to be able to report back to Paige that they had met and saidsorry to one another.

e. He testified that the Respondent replied that she was willing to meet with him ifhe was willing to terminate the litigation and settle the case.

f. He said she missed the point of the e-mail – that they should jointly try to reassure

Paige that they were going to stop fighting.

471.

The Applicant said Paige’s physical appearance deteriorated. She developed darkcircles under her eyes, her hair was greasy, and she looked unhealthy. Notably theteachers, social workers and assessor were all cross-examined about this. Not a single

witness corroborated any concerns about Paige’s physical appearance. 472. The Applicant testified he tried to reduce the level of stress Paige was exposed to:



Page: 133

a. During transitions he would try to make it quick and happy. b. If Paige wanted to talk about issues, then he would try to listen and ask his

daughter about her feelings.

473. The Respondent disagreed with the Applicant’s description of Paige being a

troubled little girl. She said any problems in the child’s life originate from the Applicant.When she’s home with the Respondent, Paige is fine.

a. She described Paige as a very happy child who enjoys life and her many friends.

b. The Respondent testified Paige never gets in trouble at her home. She is a veryrespectful child.

c. In contrast Paige complains that she constantly gets in trouble at the Applicant’s

home. That’s one of the reasons she doesn’t like going for visits. She hates being put in the corner as punishment. It never happens at the Respondent’s house. But

at the Applicant’s she is put in the corner. d. The Respondent absolutely disputed the Applicant’s suggestion that Paige says

things like “I hate my life.” She said Paige never hates her life at theRespondent’s home. She never appears to be withdrawn or upset when she iswith the Respondent.

e. She disputed the allegation that Paige is soiling herself at the Applicant’s home.She said Paige was aware of this allegation, and told the Respondent it simplywasn’t true.

f. The Respondent said Paige only expresses stress or negativity in relation to howthe Applicant treats her. She gets upset with the Applicant and is then told that

she’s not allowed to cry at his home. Paige told the Respondent that one time sheaccidently hurt her knee at the Applicant’s home. Paige said she was relieved thatshe could use the hurt knee as an excuse to cry, without getting in trouble.

g. (CAS worker Alison Grice testified during an April 10, 2014 interview Paige toldher “At daddy’s house the rules are not to cry.” Her father said “Go to your room.

No one wants to hear you cry.” Paige told Grice she cries because sometimes shemisses her mother while at her father’s home.)

h. The Respondent gave many examples of derogatory statements the Applicant

made to Paige, causing the child great anxiety. The Applicant causes Paige to“worry, worry, worry.”

i. She said Paige doesn’t really enjoy going for visits because she “doesn’t fit inover there” (referring to the Applicant’s house with White).

j. Paige also finds the access schedule confusing and disruptive. It’s stressful

because she never knows where she’s going to be and when.k. She said Paige has repeatedly stated she doesn’t want to go for visits so

frequently. It’s stressful for the child when she feels people aren’t listening.l. The Respondent testified Paige doesn’t trust the Applicant; she doesn’t trust

teachers; and she went through a stage where she didn’t trust her counsellor

Ramani.m. The Respondent said Paige only trusts her and McMillan.



Page: 134

474. The Respondent and Catherine White each testified about problems Paigeexperienced in April 2014. The Respondent described what Paige reported to her:

a. On the ride to the Applicant’s home White asked Paige if she had any homework.

b. Paige automatically replied no because at that point there was little homework.

c. White then saw that Paige was carrying a journal and asked about it. Paige hadforgotten she had the journal with her.

d. Paige told the Respondent she was then accused of lying about not havinghomework.

e. When they arrived at the Applicant’s residence she was sent to the Applicant’s bedroom and told to sit and think about what she had done.

f. The Respondent said Paige was quite upset by the Applicant’s harsh treatment

and accusations.

475. The Respondent testified that later that same month Paige spent the first half ofEaster weekend with the Applicant. Paige told her the following:

a. She got in trouble at the Applicant’s home. b. Again she was told to go to his bedroom. He slammed the door.

c. When he left her, she locked herself in a bathroom.d. She kept saying to herself “I’ve been a bad girl, I’m a liar.” e. White came and spoke to her through the bathroom door, asking if she was ok.

f. White then returned and told Paige that the Applicant was downstairs crying, and perhaps Paige should go see him.

g. The Respondent testified that whatever happened that night, Paige told her shedidn’t want to go back to the Applicant’s home.

476. The Respondent testified Paige complains the Applicant frequently takes her behind closed doors for “private talks” she is not allowed to discuss with anyone else.

But when she returns to the Respondent, she tells her all about the private talks and howunhappy they make her.

477. The Applicant denied the “private talks” and said Paige had no reluctance to come

to his home.478. White testified that on a number of occasions, at the start of visits Paige would

say she didn’t have any homework.

a. But later White or the Applicant would discover homework which she had

forgotten to remove from her backpack. b. Paige would become upset because she knew she wasn’t supposed to take

homework to the Applicant’s home.c. She didn’t like lying to the Applicant and White about homework. d. But she also didn’t want to get in trouble with the Respondent.

479. White testified about her direct observations of the Easter 2014 incident, which

she described as particularly disturbing:



Page: 135

a. The Applicant was to have Easter weekend and he picked Paige up on Good

Friday. b. On Saturday morning Paige “poo’d herself again”. She called the Applicant for

help.

c. Paige then locked herself in White’s en suite bathroom. d. White heard Paige talking to herself and crying. “I’m such a bad girl. I’m such a

bad girl.” e. White said she was confused and thought Paige was upset because she had soiled

her pants. But Paige continued:f. “I’m such a bad girl. I lied.” g. Paige said she had been talking to “a brown lady with black hair” (Ramani).

h. “Mommy told me to tell her that daddy doesn’t love me, that daddy doesn’t carefor me.”

i. “Mommy told me to tell her that daddy says that mommy is trying to make youhave a bad life”

j. Paige was really angry at herself and kept saying “I hate my life” over and overagain.k. Paige came out of the bathroom, but continued to have what White described as

“the worst melt-down”. l. Paige made more statements about mommy instructing her to lie to teachers and

the brown lady.

m. White said it took a long time for Paige to settle. The child kept repeating “I’m a bad girl for lying.”

480. There’s a common theme to these overlapping versions: By all accounts, Paigewas extremely stressed and unhappy.

481. The Respondent was cross-examined about making negative statements about theApplicant to Paige.

a. She said she has said both good and bad things about the Applicant to Paige. b. She has tried to show her daughter that there is no reason she can’t feel

comfortable talking about someone she is not living with.c. The Respondent said when Paige has complained about the Applicant, they have

had “lengthy, lengthy conversations” about him. d. She said when Paige says negative things about her father, sometimes the

Respondent will agree with her. She said she tells Paige “it is a learning

experience, and this is why God tells people to forgive.” e. The Respondent admitted she told Paige her father is a “jerk”.

f. She admitted she may have called him a “loser”.g. She denied calling him a “cheater”.

482. While the Respondent insisted Paige is doing relatively well, most of the otherwitnesses didn’t agree.



Page: 136

483. Catherine White confirmed much of the Applicant’s evidence about problemsPaige is experiencing.

a. She said Paige started vomiting regularly in early 2013. When she came for

visits, within a few hours she would become upset, start crying, and vomiting.

She would have dry heaves. Then she would settle down. b. White said things seemed to settle down in the middle of 2013.

c. But the vomiting started up again toward the end of the year, when tensionsintensified after the custody assessor convened a disclosure meeting with the

parents and their lawyers.d. White testified that in 2014 Paige was vomiting so regularly that she and the

Applicant had to store bags in both of their vehicles, so that they would be

prepared.e. She said Paige still vomits from stressful situations, like when the Respondent

sends her for visits without proper clothing or school work.f. She described the little girl as a complete emotional wreck.

484. White testified that in August 2014 Paige started talking about things theRespondent had told her:

a. “Mommy says I can’t trust the teachers.” b. “Mommy says I can’t tell the teachers anything.”

c. “Mommy says not to tell the CAS girls.” d. “Mommy says daddy’s a loser .

e. “Mommy says daddy’s a jerk .f. “Mommy says we’re best friends, and friends shouldn’t be apart. g. “Mommy said Daddy’s trying to take all her money.”

485.

White testified that as the scheduled September 2015 trial date approached, Paige

made statements clearly indicating the Respondent was scaring her with talk about thetrial.

a. Toward the end of August Paige said the Respondent told her the trial would becoming up soon.

b. Paige quoted the Respondent as saying: “There’s going to be someone who willdecide if you never see mom again or never see dad again.”

c. She also told White the Respondent showed her some documents on a computer

screen. Paige couldn’t read the words. But the Respondent pointed to Paige’sname and said it was a letter from daddy’s lawyer.

d. (CAS worker Alison Grice testified Paige told her on April 10, 2014 that hermother writes stuff to her father on the computer and Paige can’t read it. Shedoesn’t know what the words say.)

e. The Respondent told Paige she shouldn’t have told daddy that she fainted at thedentist’s office.



Page: 137

f. White said Paige got so upset talking about the trial that she ended up vomiting ina grocery store.

486. White testified she has tried to help Paige deal with stress.

a. She tries everything she can to calm the child. b. She doesn’t question her.

c. She and the Applicant try to make Paige happy; to reassure her; to keepeverything as calm and relaxed as possible.

487. Senior kindergarten teacher Annette Lawson testified Paige often appeared to beconfused and sad.

a. Paige told Lawson she knows that the Applicant calls her house and the

Respondent refuses to answer the phone. She asked Lawson why her motherwould do this.

b. Paige expressed sadness about not being able to talk to the Applicant by phone.This led to requests by Paige that the school call the Applicant so that Paige couldtalk to him.

c. Paige said she missed the Applicant and she was confused by what her motherwas doing.

d. Lawson testified Paige complained about not feeling well more often than other

children. Sometimes she vomited. More often, she had headaches.e. Lawson would tell Paige she could stay in for recess if that would help. If Paige

continued to vomit Lawson would offer to call the Respondent. She couldn’trecall how often she had to make this call.

488. Early childhood educator Bernadette Mioc described Paige as “more happy thansad”. But sometimes she was quite sad. Mioc couldn’t recall observing headaches or

vomiting.489. Grade one teacher Patrycia Cosentino had a lot to say about Paige’s emotional

health:

a. Concerns arose fairly early in the 2013-2014 school year.

b. Paige was very stressed out.c. She often needed extra time to finish assignments.d. Or she needed quiet time to settle her emotions.

e. Sometimes she would be so emotional she just wanted to be by herself.f. Sometimes she was so upset it affected her interaction with classmates.

g. Cosentino said based on advice from Hayes, when Paige became very stressed oremotional, the teacher would try to take her to a quiet environment and allow herto draw out her feelings.



Page: 138

490. Cosentino testified about Paige on “transition days” -- when Paige would bedropped off in the morning by the Respondent and picked up at the end of the day by the

Applicant.

a. Generally on transition days Paige would become stressed out at school.

b. She would get very nervous and emotional.c. She would need help packing her backpack at the end of the day.

d. She would have trouble doing things she could normally do without difficulty.e. She would get headaches.

f. Sometimes she would vomit.g. She knew that if she was going to throw up, she should go to the washroom. But

sometimes she couldn’t make it that far so she would vomit in the classroom

garbage can.h. Cosentino recalled at least three specific occasions of Paige vomiting like that, but

she said it was her understanding that it had happened on other occasions. Shesaid this vomiting was stress related, and not as a result of some illness like the

flu.i. She couldn’t recall the specific number of times Paige had a headache, but shesaid it was frequently.

j. Sometimes it would take Paige a long time to get ready to leave school at the endof the day – either because she was vomiting; feeling unwell; or generally havingdifficulty packing her belongings.

k. After a while, if all of the other children had exited the school and the Applicantwas still waiting, he would come in to the school to find out if Paige was alright.

Cosentino said she had no concerns about the Applicant coming in like that afterschool had been dismissed, because it was understandable that he was concernedhis daughter had not come out of the school building.

l. Under cross-examination Cosentino admitted Paige didn’t experience stress andvomiting on every transition day. But she described it as a pattern.

m. She also admitted she may have seen Paige cry at school even on days when shewasn’t going to be going to see the Applicant.

491. Cosentino testified about statements Paige made to her about things theRespondent had told her.

a. Paige told the teacher “mommy was her best friend.” b. Cosentino said Paige appeared upset because she was scheduled to sleep over at

the Applicant’s residence.c. Paige said “Mommy said best friends tell each other everything. Best friends

should be together all the time. If I don’t’ sleep with mommy something is goingto happen to mommy.”

d. “Best friends should never be separated.”

492. Cosentino testified Paige made comments about her mother instructing her about

what to tell people.



Page: 139

a. She recalled Paige said something about being at home; the Respondent telling

her to say a phrase; and the Respondent then recording how the child said it. b. Cosentino said Paige appeared stressed about this and wanted to talk to her about

it.

c. She testified Paige was very stressed about the idea of lying.d. Paige said she trusted Cosentino.

493. Cosentino testified there were times when Paige would make a statement and then

become anxious about what she had just said.

a. She said Paige would say something, stop, and then take a moment to think about

it. b. She would then change what she said.

c. Sometimes she would correct herself with a word that Cosentino felt wasunnatural for a six year olds vocabulary.

d. These “corrections” would generally relate to issues relating to the parentalconflict.e. For example, Paige would say “I should be with mommy”. She would then take a

moment and refine the statement: “Actually I want to be with mommy.”

494. Cosentino said Paige appeared stressed about having two separate homes.

a. As part of a school assignment she was supposed to draw a family tree.

b. She wanted to include all members on both sides of her family.c. But she didn’t want to write them on the same page.

495. Cosentino testified Paige appeared preoccupied with worry about the timesharingschedule between her parents:

a. She would tell Cosentino she was with her father “so long, and not with hermother”.

b. Paige apparently perceived that she was spending more time with her father thanher mother.

c. Cosentino would then go over a calendar with her and count out the days witheach parent.

d. Once Paige saw the actual distribution of days – and once she realized she was

actually spending more days with her mother – she calmed down and stoppedworrying about the access schedule.

e. Cosentino said Paige wasn’t expressing unhappiness about being with her father.But she kept getting it in her mind that she was spending more time with herfather than her mother, and this was stressing her.

f. Cosentino testified that once she clarified the times – and after telling Paige to be brave and do breathing exercises – Paige calmed down.



Page: 140

g. The teacher couldn’t recall Paige ever talking about not wanting to get in troubleat the Applicant’s house.

496. Under cross-examination, Cosentino denied putting words into the child’s mouth.

a. She agreed six year olds can have a wild imagination. b. She recalled Paige asking “You’re not going to tell mommy or daddy this?”

497. Grade two teacher Michelle Stickney took over from Cosentino a couple of weeks

into the school year.498. She testified about a log she maintained. The first entry was actually prepared by

Cosentino, who reviewed it with her as part of a briefing:

“Paige said: I’m feeling stressed because mommy and daddy are fighting a lot and Ido not know who to believe. I shouldn’t spread this but mommy said daddy is a jerkand if I’m friends with him she won’t be my friend. She doesn’t want me to tellanyone. Mommy said you are a bad teacher and that makes me upset.”

499. Stickney testified throughout the 2014-2015 school year there were concernsabout how Paige was feeling.

a. She said there could have been a number of contributing factors, as with all

students. b. Some of her upset might have related to peer interactions. She didn’t have more

peer conflicts than other children, but she was quite sensitive to peer arguments.

c. Other times Paige would say she was feeling upset about something going on athome.

d. She was sometimes quiet and withdrawn. Stickney said children can be

withdrawn for a number of reasons.e. Paige complained of headaches – probably more than the other children – but

Stickney never saw her vomit.f. Stickney testified she didn’t notice any connection between transition days and

Paige’s emotional responses. g. Paige expressed concern to Stickney that school resources were not making it to

the Applicant’s residence.

500. Stickney testified about one of her log entries dated May 12, 2015. She quoted

Paige as telling the teacher: “My mom said the reading program is stupid and you don’teven read with me. I wanted you to know.” Stickey said the remark took her by surprise.

She had no idea why the Respondent would make such a critical statement.501. Vice Principal Audrey Henson testified about an incident on June 25, 2014, at the

end of the school year.

a. Paige came to her office crying. In fact it was the second time that day Paige hadcome to the office crying.



Page: 141

b. Paige said she was going to be picked up by the Applicant and she was going tomiss the Respondent.

c. Henson brought her into her office to comfort her.d. Henson then showed Paige a calendar and showed Paige that she was only going

to be at the Applicant’s house for “one sleep”.

e. Henson testified Paige was then reassured and calmed down.f. Henson explained that this situation had arisen on previous occasions. Paige

would become upset because she perceived that she was going to be with theApplicant for a long time. As soon as an adult showed her a calendar and showed

her that she wouldn’t be away from the Respondent for as many “sleeps” as Paige perceived, the child would calm down.

g. Henson noted that Paige said she was quite happy to go to either daddy’s house or

mommy’s house. Henson observed Paige to be very happy when either parent picked her up.

h. But periodically Paige would become preoccupied with an inaccurate worry thatshe was spending a disproportionate amount of time with the Applicant. As soon

as she was reassured about what the schedule really looked like, she was fine.

502. Henson testified they had further discussions and Paige told her she was tired of

going back and forth between her parents’ two homes.

a. Henson said she tried to reassure Paige that she was handling the situation well

and that everything would be ok. b. She testified that Paige then said: “Yes but mommy told me that daddy will take

me away forever and Daddy told me that wouldn’t happen.” c. Henson asked “Do you trust daddy?” d. Paige said yes.

e. Henson responded “Then it will be ok”. f. She said after that Paige was alright.

g. Henson testified that was the only time she heard Paige say anything about theRespondent expressing fear she would never see the child again.

503. Hensen testified that both from her own observations and from informationreceived from school staff, Paige exhibited a lot of stress-related behaviour.

a. Henson would generally interact with Paige on the playground, in the hallway, orwhen the child came to the office complaining about headaches.

b. Henson said sometimes she would see Paige very happy, and at other times verysad.

c. She was concerned that Paige could go from happy to unhappy within fiveminutes.

d. She saw Paige cry.

e. Sometimes the child just had an anxious and unhappy facial expression.



Page: 142

f. She was aware of three occasions when Paige vomited at school, and fouroccasions when she had severe headaches. She didn’t know if there were other

episodes of physical symptoms.g. Henson observed that on transition days Paige showed signs of anxiety. Those

were the days she had headaches or dry heaves.

h. She said for a period around January 2014 Paige was coming to the office quitefrequently regarding headaches.

i. Hensen said Paige displayed anxiety problems throughout the school year.

504. Principal Kelly Rizzo testified about multiple reports from school staff – and theApplicant – that Paige was exhibiting signs of stress and vomiting. Especially ontransition days.

505. Rizzo testified about Paige’s use of a toy Bunny during show and tell.

a. Paige appropriately used the bunny as a medium to speak to her class. b. But her presentation had to be cut short when Paige started using the bunny to

explain to the class the details about the ongoing conflict between her parents.

506. CAS worker Julie-Ann Pearce testified both parents were creating stress for

Paige:

a. Both parents were contributing to the custody/access battle.

b. Paige was being caught in the middle.c. The situation was causing emotional harm to the child.

d. Both parents were responsible for what she was experiencing.

507. During a January 7, 2014 interview Paige told CAS worker Alison Grice about

things the Applicant told her:

a. She said he told her the Respondent is lying and also that the Respondent ismaking her have a bad life. This makes her sad.

b. When she cries the Applicant tells her to stop.

508. During the same interview Paige said the Respondent told her “Catherine is not

your mother”. 509. Grice interviewed Paige at school on April 10, 2014. Among the child’s

statements:

a. Her parents don’t get along “too much”.

b. Her parents don’t talk in person because they fight. She doesn’t know why. c. Her parents do not talk to one another during pick up or drop off because they

fight. They fight because they split up.

d. When she gets home her mother asks about her time there and says “that musthave been fun.”



Page: 143

e. She doesn’t like to talk to her mother about her father because her mother “maysay bad things” like “Your dad doesn’t care about you.” Paige said this makes her

feel sad.f. Her father doesn’t ask about her mother and doesn’t want to say anything mean.

g. Her mother doesn’t ask about what happens at her father’s “too often”. It has

happened in the past. She doesn’t remember. h. Her mother does not get along with the Applicant’s mother.

510. On April 22, 2014 Paige told Grice her mother makes her worried. Paige said her

mother says her f ather has said bad things and that her father doesn’t care about her. ButPaige said her father doesn’t say bad things.

511. Grice agreed with Pearce that Paige is caught in the middle of the conflict.

512. On January 19, 2015 Paige told CAS worker Anderson:

a. She had a really good time with both parents over Christmas. She likes spendingtime with both of them.

b. She wanted to see her cousins over Christmas but her mother told her she couldn’t because her father is a jerk. She asked her father and her father said the motherwas lying because she wants him “to get in trouble with people like you”

(pointing to Anderson).c. A while ago her mother called her father a jerk and said that he’s a cheater. d. She has fun at each parent’s house.

e. When asked who says bad things about the other one more? Paige replied“mommy does”.

f. Paige said she would tell things to Ramani. Ramani would ask the mother if whatPaige said was true. The mother would say it didn’t happen. The mother lied toRamani. The mother would get mad at Paige.

g. Paige couldn’t answer what the mother does when she gets mad. She is justworried that the mother will get mad at her because she used to get mad at her.

There was another lady that tried to help that would come talk to her “like you”(referring to Anderson). The other lady tried to help but her mother said that shewas useless and just made things worse. Paige thinks that the other lady helped.

She doesn’t agree with her mother about the other lady. (Anderson wasn’t sure ifthe “other lady” was Michelle Hayes.)

h. Paige said she had new glasses which she brings to her father’s house sometimes.Her mother wrote that her last name is Mayerle but it’s not, it’s Jackson.

i. She wants to spend time with both her parents but wants her mother to not say bad

things about her father. j. She is worried that her mother will get mad if her father marries Catherine. She

knows that they are getting married.

513. McMillan gave the following evidence in relation to the child:

a. She reviewed her history of care for Paige since birth.



Page: 144

b. In conjunction with providing medical care for the child, McMillan also providedsome counselling for the child – until the Applicant requested that she not do

counselling.c. She said Paige enjoyed coming in to talk to her and was very communicative.

d. McMillan described various occasions when Paige’s symptoms included

complaints of some headaches or nausea. McMillan didn’t feel Paige had serioushealth problems, nor could she comment on the extent to which Paige’s symptoms

were stress related. She said “when kids go to school they get sick a lot the firstcouple of years.”

e. McMillan recalled Paige being unhappy with Ramani “for lying to her” bydisclosing to the Applicant certain things the child said.

f. McMillan recalled Paige saying she got in trouble at the Applicant’s residence.

But the doctor said the child was not reporting serious trouble like hitting.“Nothing abusive.” The “trouble” was along the lines of having to go to her room

to think about what she said.g. McMillan clarified: “really what she was saying was not a big deal. She was

saying she was getting in trouble sometimes.” h. McMillan said she told Paige to always tell the truth.i. She said she saw absolutely no sign of Paige fearing the Respondent.

j. McMillan admitted the Respondent was present in the room with Paige when shemade statements about getting in trouble with the Applicant. But McMillan saidshe observed no sign of any coaching or influence by the Respondent.

k. She described Paige as a very polite, respectful, “happy go lucky” child. l. McMillan said she has never noticed anything inappropriate about hygiene or

physical care issues. The child has always been clean, appropriately dressed, andmet her milestones.

m. She said she was surprised by the number of complaints to CAS and the nature of

those complaints. “It seemed like calls to CAS were about things you wouldn’tnormally expect CAS to be called about. To me that was like someone trying to

stir up trouble.” She was under the impression only the Applicant had calledCAS. She didn’t think she was aware that the Respondent had also made reportsto CAS.

CHILD’S RELATIONSHIPS

514. Fortunately, at least some determinations in this trial were easy.515. All 20 witnesses used the same sorts of adjectives to describe Paige:

a. Delightful

b. Caringc. Lovingd. Kind

e. Consideratef. Sympathetic

g. Bright



Page: 145

h. Wittyi. Fun

j. Pleasantk. Sensitive

l. Sweet

m. Adorablen. Outgoing

o. Popular p. Usually happy.

q. But sometimes very sad.

516. As well, Paige’s relationships are also pretty straightforward.

517. The evidence of every witness – except the Respondent – was that Paige isequally connected; equally bonded; equally everything with both parents.

518. McMillan gave the following evidence in relation to both the Applicant and theRespondent:

a. “They are both perfectly fine parents.” b. “I have nothing to say that either one of them would be a bad parent.”

c. She said “there were absolutely no red flags” about mothering or fathering issues. d. They have both been actively involved in Paige’s medical care. e. Prior to separation both parties frequently attended Paige’s many routine doctor’s

appointments.f. Paige appears to have a loving relationship with both parents.

g. The child shows good bonding with both parents.h. McMillan observed nothing troubling or inappropriate with respect to the child’s

interaction with either parent.

i. McMillan testified she was under the impression the parties had co-parented foran extended period after separation.

j. She understood the Applicant was seeing Paige regularly after separation.k. She said she had the impression the Respondent “didn’t know what way things

were going.” The Respondent wasn’t sure whether there was a chance of

reconciliation or not.

519. Despite the unequivocal evidence of all of the witnesses, the Respondent keptinsisting that she and the Applicant weren’t equal in the child’s life.

a. That they didn’t have the same history of caregiving. b. That they didn’t have the same parenting skills, insight and commitment.

c. That the Respondent was the primary caregiver both before and after separation. d. That she and Paige are more closely bonded to one another. e. That Paige has always looked to the Respondent for everything…and that this

should continue.



Page: 146

520. This concept of parental superiority and entitlement permeates everything theRespondent has done since separation. It was palpable during her testimony. And it is

perhaps the main reason we ended up having a 36 day trial. 521. Similarly, the evidence is clear that Paige has a great relationship with everyone

else in her life. Including the Applicant’s fiancé White and her two children.

522.

Hayes described Paige’s interaction with White’s daughter Claire and son Tyler.

a. Despite the significant age difference, Paige has a very positive relationship with both teenagers.

b. Claire and Tyler are very positive and caring toward Paige.c. Paige sort of looks up to Claire.d. Tyler is a sweet, thoughtful boy who was very patient with Paige.

e. Claire and Tyler have a nice, conflict-free relationship as siblings.f. She had no concerns about Paige’s interaction with Tyler. “Not at all.”

THE ASSESSMENT

523. In paragraph 14 of this judgment I summarized the assessor’s recommendations. 524. In her written assessment and in her evidence at trial Hayes referred to interviews

collaterals who also testified at this trial, including:

a. Kelly Rizzo

b. Sarah Buistc. Dr. Kim McMillan

d. Alison Gricee. Patrycia Cosentinof. Audrey Henson

g. Catherine Whiteh. David Buckley

525. The information she received from these witnesses was consistent with theirevidence at trial.

526. Much of the cross-examination by the Respondent’s lawyer attacked Hayes’methodology in conducting her assessment and preparing her recommendations.

527. Hayes testified that looking back at the work she did on the file, she had noconcerns or doubts about her methodology.

a. She made a point of allocating equal time to interviewing each parent. b. She conducted appropriate observation visits with each parent in their residence.

She didn’t feel there was a need for a second observation visit in either household, because what she saw in each household was entirely positive.

c. She explained her differing approach to personal and collateral witnesses.

d. While the Applicant’s list of collateral witnesses was a bit longer, it was becausean assessor has to interview all of the members of each party’s household. The

Applicant’s partner and her children had to be interviewed, because they regularly



Page: 147

interact with Paige. In contrast, the Respondent is not in a new relationship, sothere were no other members of her household to interview.

e. She denied that an imbalance in the number of collaterals would tip the scale infavour of the parent with more supporters.

f. She said she placed less weight on information provided by close personal

collaterals like the Applicant’s fiancé, mother and step-father – because it was predictable that they would report positively about the person they are connected

with.g. She reviewed court documents and temporary orders. She didn’t list them in her

typed report “mainly because of the volume of material.” h. She said she used information received from collaterals to challenge both parties.

528. Hayes summarized her first interview with Paige on August 20, 2013.

a. Before leaving the child for the private interview, the Respondent asked Paige forseveral hugs and kisses.

b. Paige explained that her mother and father had an argument and her father left thehome so that she did not have to leave her own bedroom.c. She said her mother rarely speaks about her father, but when she does, her mother

says negative things that make Paige feel sad.d. Paige said her mother told the maternal grandparents that her father “stole” her

hat – but Paige indicated that she simply forgot to bring the hat home.

e. Paige said she does not see her father very often. She indicated that there was“not enough time for daddy”.

f. Sometimes she feels sad when she leaves her father, but she is happy to see hermother.

g. She also felt sad when leaving her mother – although she said she is sad because

her mother is sad.h. She said she recently went camping with her father and her mother told her that

she cried because Paige was gone so long.i. Paige said she did not understand why her parents could not “just go to the

parking lot and just say sorry”. Hayes said Paige made this common-sense

suggestion several times. j. Of her father, Paige said: “I’m his girl and he loves me a lot.”

k. She said sometimes her father would ask her mother for a visit and her motherwould say no.

l. Paige said her parents rarely speak to one another during the transitions, but when

they did communicate she witnessed arguments.m. Paige said her mother thinks that White “stole daddy and mommy doesn’t like

her.” n. Paige said her maternal grandparents are trying to get her to be with her mother

more often.

o. Paige said she misses soccer on occasion but she is not aware of the reason. Sherecalled at one of her games her father arrived with White, Claire, Tyler and her

grandmother. Paige said her father wanted to kick the ball around with her but



Page: 148

her mother got in the way. Then an argument occurred between her grandmotherand her mother, and her mother made her grandmother leave the soccer field.

p. Paige said she is not supposed to tell her father about swimming, Sparks andkarate. She said that she was trying to tell her father anyway because he wants to

watch her too. And she wanted him to watch her events.

q. Paige said she cried a lot in school in the previous year when she was in seniorkindergarten, because she missed her mother and father. But she was feeling

more confident now because she is “bigger and stronger”, starting grade one. r. She was happy that she was going to have Lawson as her teacher for grade one

because she liked her (Hayes knew that early in grade one Paige was switched outof Lawson’s class. Hayes didn’t know that the switch was at the Respondent’srequest.)

s. She likes learning in French.t. Paige reported doing enjoyable activities with each parent.

u. She said consequences for misbehaviour are not excessive in either parent’shome.

529. Hayes summarized her second private interview with Paige on August 23, 2013.She was brought to the office by her father.

a. Paige said she was brought by her mother to the parking lot (the exchangelocation) so that she could come to the meeting with her father.

b. She said her parents did not speak that morning during the exchange and itseemed as if they do not like each other. This made her sad.

c. Paige also recalled that her mother told her that her father did not care about her.She said that when she told her father this, he said he loves her very much.

d. Paige said one time when she was with her father, her mother followed the car

half way to her paternal grandparent’s house.

530. Hayes summarized her third interview with Paige on October 15, 2013. This timethey met at her school.

a. She said likes having sleepovers with her father. b. She knows when her visits are occurring as her mother informs her.

c. Paige said there has been a lot of confusion around who is picking her up fromschool. Both of her parents were showing up some days and she was unsure withwhom to go.

d. She said there have been times when she has slept over at her father’s home andwhen he takes her to school in the morning the mother is also at school waiting

for her.e. She thought that her mother attends the school at these times to either say

goodbye or hello.

f. Paige relayed other examples of times that she was supposed to go with her fatherand she either saw her mother at school or her mother took her home instead.



Page: 149

g. Paige recalled a time that her father dropped her off at school and her mother wasin the hallway waiting for her. She said that “mommy was sad and she missed

me. She had a cry in her eyes.” (Hayes testified school staff had similar concernsabout the Respondent’s emotional presentation when she attended at the school.)

h. She confirmed that she views her mother as “sad” but not her father. She added

that “mommy does miss me a lot” and asked if the assessor could make “mommynot so sad.”

i. Paige said her mother wants to sleep with her because “she loves me so much.”

531. Hayes summarized her final interview with Paige on February 10, 2014.

a. She spoke of what a good Christmas she had.

b. She said her parents were not getting along very well. They don’t speak to oneanother, and she recalled her father had asked her to give her mother notes in the

past.c. Paige said her mother did not want her school agenda to go to her father, so her

teacher made her a new one.d. She confirmed that she felt sad at times, and she misses her mother when shevisits her father for a long time.

e. Paige reported that her mother feels sad when Paige goes to her father’s home.f. She recalled that her mother said “I miss you when I’m sleeping and I feel like

I’m going to die.”

g. Paige also recalled her father telling her “Your mommy’s trying to give you a badlife.”

h. She did not feel as though either parent told her what to say to the assessor. Buther mother told her “Michelle Hayes wasn’t a help.” Paige said she did not believe that to be true.

i. Paige reiterated that she thought the conflict would be solved if her parents justtold one another they were sorry.

j. She sad that her parents’ refusal to apologize made her both “mad and sad.” k. She said she had to miss a birthday party for a friend because she was with her

father that day. Her father didn’t receive an invitation. She said she wanted to go

to that birthday party and was sad because all of her friends were there withouther.

532. Hayes was cross-examined about her consideration of Paige’s views and preferences.

a. She said Paige was six years old when the assessment was conducted.

b. She said an assessor doesn’t generally ask six year olds specific questions aboutviews and preferences.

c. She said she developed an excellent rapport with Paige. They communicated well

and freely. Paige had no reluctance to share information with her.



Page: 150

d. During the course of general discussions, Paige told Hayes that her father didn’tthink he was seeing her enough – but Paige herself also felt she wasn’t seeing him

enough.e. Hayes testified with a child of this age, views and wishes command consideration,

but they are not the sole determining factor in making parenting plan

recommendations.f. She said she makes recommendations based on the best interests of the child.

533. Hayes testified she and Ramani both observed a difference between how Paige

actually interacted with the Applicant, and how their relationship was described.

a. Ramani told Hayes that when the Respondent brought Paige in, the Respondent

would report that Paige was worried and fearful about going to visit with theApplicant. But Ramani didn’t o bserve any anxiety or fear when the child was

with her father. b. Hayes and Ramani both observed occasions when the child verbalized that she’d

rather stay with the mother than go with the father. But when Paige was actuallywith her father, there was no sign of any anxiety or reluctance to be with him.

534. Hayes testified that “messaging” is an important consideration in high conflictcustody disputes.

a. She said you have to look beyond the particular words or actions a parent selectsduring a specific interaction with a child.

b. You have to look at it from the child’s perspective.c. How will the child interpret what is being said?d. How will the child’s feelings, beliefs and expectations be influenced?

535.

Hayes expressed concern about some of the Respondent’s messaging to Paige.

She cited an example:

a. During a weekend visit with the Applicant, his fiancé White and White’s daughter

Claire apparently applied nail polish to some of Paige’s fingernails. b. When Paige returned home, the Respondent told her that it was “poison” on her

fingers. She immediately removed the nail polish.c. Paige told the assessor she believed the nail polish was poisonous.d. Hayes said the issue from an assessor’s perspective was not whether children

should or should not use nail polish.e. If the Respondent really thought it was best to remove the nail polish as quickly

as possible, she could have done so without creating a sense of alarm.f. Hayes said the issue was messaging.g. By referring to the nail polish as “poison”, it could increase Paige’s anxiety about

whether the Applicant or someone living in his home might be harming her.h. Perhaps the broader message: You’re unsafe with dad. But mom will protect you.



Page: 151

536. As I have commented at several points during my review of the evidence, I cameto develop serious concerns about the Respondent’s pattern of negative and strategic

messaging.537. Hayes was cross-examined about parental alienation.

a. She said she was not identifying parental alienation in this case. b. But she said if the Respondent’s manipulative behaviour continued, it was

possible for Paige to be alienated from the Applicant.

538. Hayes testified that her initial recommendation was for parallel parenting:

a. Each parent would have sole decision making authority in certain areas.

b. They would parent “side by side.” c. The idea was that with the right supports in place, it would be possible to

minimize conflict.d. She also recommended the parties engage the services of a parenting co-ordinator,

and that each parent should get counselling.

539. Hayes was cross-examined about the transition in her recommendations from the

disclosure meeting to the final report:

a. She said her recommendations changed as a result of continued behaviour

reported by the school and CAS in January 2014. b. Up until that point the conflict was not causing vomiting and headaches.

c. After the disclosure meeting, the relationship between the parties deteriorated, andthe school was reporting additional concerns about the Respondent and her presentation at school.

540.

Hayes testified that when she saw parental conflicts increase and Paige’s

emotional response worsen after the November disclosure meeting, she reconsidered her position, and decided that parallel parenting was not viable.

541. Hayes explained why she didn’t convene a second disclosure meeting:

a. There is no requirement by any of the bodies governing assessors that theyconvene any disclosure meeting.

b. In this case, Hayes thought the initial disclosure meeting would be productive.

c. But after seeing how problems worsened after the first disclosure meeting – andhow the parties’ positions hadn’t changed – she didn’t feel a second disclosure

meeting would serve any purpose.

542. Hayes testified the success of her recommendations will likely depend on the

Respondent’s ability to control her emotional responses and messaging to Paige.



Page: 152

a. Communication problems make joint custody or parallel parenting impossible.That’s not likely to change.

b. As a result the Applicant should have final decision making authority.c. She feels a parenting co-ordinator would help with non-custodial decisions like

co-ordinating recreational activities.

d. But in most respects these parents are equally matched. They are both equallycapable. Paige loves them equally.

e. Equal time should work.f. The only uncertainty is whether the Respondent will recognize the damage she is

doing to Paige by failing to regulate her emotions; and control her negativitytoward the Applicant.

g. If her inappropriate messaging to the child continues, further terms or restrictions

on the Respondent may have to be considered.

THE EVIDENCE: PROPERTY

543.

I will address property and equalization before returning to the analysis of parenting – because those financial issues will have a practical impact on certain parenting options.

THE HOUSE

544. The second largest issue in this trial related to the property at 37 Mill Street Southin Waterdown, which eventually became the matrimonial home.

545. The parties started living together in 1997.546. In November 1998 – before they married -- the house was purchased.

a. The Respondent paid the entire $58,000.00 down payment from her investments. b. The Applicant contributed no cash because he had no savings.

c. At that point the Respondent had a better work history and a higher income.

547. The Applicant claims he still made a contribution toward the acquisition of the

property.

a. They used his mother as the real estate agent when they submitted the offer to purchase.

b. His mother waived her real estate commission of around $9,000.00. The

Applicant says this saved them money.c. The Respondent denied that his mother’s involvement saved them any money.

d. She argued real estate commission is paid by the vendor. They were the purchasers. Waiving the commission wouldn’t have made any difference to the purchasers.

e. The Applicant is not very sophisticated financially. He wasn’t sure how hismother’s waiving the commission saved them money. But he thought his

mother’s action resulted in their paying a lower purchase price.



Page: 153

f. The Respondent disagreed. She said the purchase price remained the samewhether his mother waived her commission or not.

g. The Applicant’s mother did not testify at the trial, so I heard no additionalevidence to clarify this issue.

h. With the Applicant being so imprecise about how his mother helped, and with the

Respondent’s evidence on this topic being uncontradicted, I must accept her position that the Applicant did not make a quantifiable monetary contribution to

the acquisition of the house.i. Having said that, it is still unclear why the Applicant’s mother would have waived

her entire $9,000.00 commission on the transaction. She must have thought shewas benefitting someone.

548. By agreement between both parties, when the house was purchased it wasregistered in joint names. The Applicant’s explanation:

a. Beyond the down payment, the balance of the purchase price was financed by

way of mortgage of about $150,000.00 to $160,000.00. b. Both parties were named on the mortgage and both made a financial commitmentto the lending institut ion.

c. The Applicant acknowledged that prior to the purchase in 1998 the Respondenthad the better income and savings. That allowed her to make the down payment.

d. But at about the same time they bought the house in 1998 the Applicant

commenced his employment with the Toronto Police Service. That meant theirfinancial prospects were in the process of reversing. Soon he would be earning

more, and contributing very significantly toward building equity in their home.e. He described the Respondent as knowledgeable about financial planning. He

accepted her strategy that they should pay off their mortgage as quickly as

possible. As a result they jointly selected a mortgage which gave them prepayment options. From the outset they made a joint commitment to pay off

the mortgage as quickly as possible.

549. The Respondent’s explanation about why the house was registered in both names:

a. After they started living together, the Respondent went looking at houses with her

own agent, without the Applicant’s participation. b. After she found a house she liked, the Applicant came along to take a look at it.c. At that point the Applicant suggested they should use his mother as an agent in

submitting an offer.d. The Respondent testified she reluctantly agreed, because she didn’t want his

mother being angry at the Applicant; and she didn’t want the Applicant beingangry at her. So she gave in “to keep the peace.”

e. The parties then pretended they had become aware of the property through an

open house. They then re-attended with the Applicant’s mother to inspect thehouse again and submit an offer.



Page: 154

f. The Respondent testified the Applicant’s mother wanted the Applicant’s name ontitle.

g. The Respondent said her own lawyer recommended to her that she not place theApplicant’s name on title.

h. But the Respondent testified it was a “pretty tricky” and “uncomfortable”

situation.i. She asked her lawyer if the Applicant’s name could later be removed from title.

The lawyer said yes, and recommended that the Respondent proceed in thatfashion.

j. The Respondent testified that she and the Applicant had a verbal agreement thatthe property would initially be registered in both names. But then later after hismother was no longer involved, they would transfer title into only the

Respondent’s name. His mother wouldn’t need to know about it. k. She testified he kept telling her “This is your house. I will never take it from

you.” She said she was shocked when he changed his mind.

550.

The Applicant disputed the Respondent’s suggestion that it was ever exclusively“her house”, or that he was on title “in name only”. He disputed that there was anyagreement in 1998 that title would eventually revert solely to the Respondent.

551. Whatever their agreement or understanding about title, from the outset theycontributed to the property jointly.

a. The Applicant testified the Respondent didn’t want the parties to share a joint bank account. So the Applicant would write cheques to the Respondent, and she

would apply those funds primarily toward the mortgage. b. He said he generally gave her about two-thirds of his take home pay for the

mortgage. The remainder of his pay went for other living expenses such as

groceries, car expenses, and food at work.c. As his income with the Toronto Police Service increased, his contributions toward

the house and all family expenses also increased.d. He produced copies of numerous cheques written to the Respondent over the

years.

e. He produced a spreadsheet summarizing that between 1998 and 2011 his payments to the Respondent totalled $275,000.00. He said in addition he was

regularly paying other family expenses directly.f. He said he also made significant direct contribution to the maintenance and repair

of the home. The Respondent testified he exaggerated the work he did on the

house.

552.

The Respondent didn’t dispute that the Applicant made significant payments.

a. But she insisted he was only paying “rent” (even though he produced copies of

numerous cheques and ledgers labelled “mortgage”). b. The Respondent said she used his rent payments to contribute to her mortgage.



Page: 155

c. She insisted there was never any expectation he was acquiring any actualownership or equity in the house.

d. She said the $275,000.00 he paid into her bank account was intermingled with hermoney, and a lot of things other than the house were also paid out of that account.

e. She did not dispute that his funds – his “rent “– made it possible for her to pay off

the mortgage early in 2007.f. As well, she did not dispute that even after the mortgage was paid off, the

Applicant continued to contribute about two-thirds of his pay cheque into her bank account.

553. The Applicant discounted the “rent” label as nonsense.

a. He said he complied with her request that she handle all the money – through her bank account – because she was good with money, and he wasn’t.

b. But he said financially it was always a joint effort.c. It was their money going into the account. And pretty soon he was earning more

than she was. He was contributing more to the account (and to the mortgage) thanshe was.d. They both prioritized paying off their home as quickly as possible.

e. But for the majority of the time they were making accelerated payments on themortgage, he was the primary breadwinner. He became the primary source of thefunds used to pay off the mortgage.

554. Again, a reminder about the timeline:

a. In 1997 they started living together. b. In 1998 the house was purchased and placed in joint names. They started paying

off the mortgage, fast.c. On April 22, 2004 they were married. This house became a matrimonial home.

At that point there was significant equity.d. In 2007 the mortgage was paid off.

555. But in December 1999, the parties transferred title of the house into theRespondent’s name. At trial they gave completely different explanations as to why that

happened.556. The Applicant gave a very specific explanation:

a. During the course of his employment with the Toronto Police Service, a superiorofficer warned him that his duties might expose him to civil liability.

b. His superior officer recommended it might be best to transfer his home into hiswife’s name, to protect the asset in the event of a civil action.

c. The Applicant said he accepted that advice. He said the Respondent understood

the rationale and agreed. So they transferred the house into the Respondent’sname.



Page: 156

d. He said concern about protecting the asset from a future law suit was the onlyreason they transferred title.

e. He denied that there had ever been any other agreement or rationale fortransferring the house from joint names to the Respondent’s name alone.

f. He said it was never his expectation or understanding that he would lose his

interest or equity in the house.g. He certainly didn’t intend to gift his share of the house to the Respondent.

h. He testified that fortunately no one has ever commenced any civil claim againsthim.

557. The Applicant’s step-father Buckley testified about the house transfer:

a. He recalled the Applicant advising him that he wanted to transfer the house intothe Respondent’s name alone.

b. The Applicant explained that he had been advised by people at work that becauseof the type of work he did and the potential for lawsuits, it would be best to put

the house in his wife’s name “to make it safe from lawsuits.” c. Buckley said he and the Applicant’s wife were against the idea. He said he“didn’t think it was prudent” to put the house in the Respondent’s name.

d. But he said he didn’t know much about the law, so he didn’t try too hard to talkthe Applicant out of it. He said the Applicant proceeded because he seemedconcerned about protecting the asset from lawsuits.

558. The Respondent’s evidence about the December 1999 transfer of title was very

brief.

a. She said they had agreed in 1998 that eventually they would transfer the house

into her name. b. She said in December 1999 they proceeded with that agreement.

c. She didn’t explain why the topic came up in December 1999. d. She gave no evidence about any specific discussion or agreements between them

in December 1999.

e. She agreed with the Applicant that they simply had a lawyer transfer the housefrom joint names into her name alone.

f. She did not comment on – and she did not deny – the very specific evidence from both the Applicant and Buckley about putting the house into the Respondent’sname to protect the asset in case the Applicant got sued at work.

g. She acknowledged that their financial and cash flow arrangement remainedidentical both before and after the house was transferred into her name alone.

h. She acknowledged at the point the Applicant had been contributing money whichwent into her account and then went toward the mortgage. They had alreadystarted paying the mortgage down aggressively.

i. She gave no evidence as to the mortgage balance or increased equity as ofDecember 1999.



Page: 157

j. She did not dispute that the Applicant continued to write “mortgage” on hischeques and ledger statements even after December 1999.

k. Nonetheless she insisted he only ever paid rent during the approximately 13 yearsthey lived in that house.

559.

The Applicant testified he was surprised and confused by the Respondent’sstatements about the matrimonial home after separation.

a. The Applicant testified in July 2012 he told the Respondent they needed to deal

with the house. They could sell it or she could buy him out. She responded thathe is not entitled to get a cent.

b. In August 2012 – when relations between them were dramatically souring – the

Respondent proposed to the Applicant that she knew someone who wanted to“trade houses” with her.

c. The Applicant responded he couldn’t agree to the confusing proposal be cause hefeared he might lose his interest in the home. He again suggested it was time to

formally resolve all of their issues including the matrimonial home.d. The Respondent replied: “There’s nothing to deal with. You don’t get a cent fromthe house.”

e. She explained that it was her house; he had only been paying rent as a tenant inher house; she had put the down payment on the house; so he was entitled tonothing.

560. The Respondent became combative during cross-examination on financial issues.

561. She testified about why she doesn’t think the Applicant should derive any benefitfrom the post-separation increase in the value of the matrimonial home.

a. It’s her house. b. He hasn’t lived there since separation.

c. He hasn’t contributed anything to household expenses since separation.d. He hasn’t paid taxes, insurance, utilities, maintenance, or any repairs.

562. The Respondent was cross-examined about her current plans in relation to thehouse.

a. Asked if she intends to sell the Waterdown house, she said “I don’t know whatmy immediate future holds.”

b. She acknowledged that if the court order results in her owing the Applicant a lotof money “sale might be the only option.”

c. She said she has no current plan to relocate to Ancaster, where she grew up andwhere her elderly parents reside. But she couldn’t rule out the possibility. “I’mafraid I can’t give you that assurance that I’m not moving to Ancaster. I don’t

know what my future holds.”

HOUSE ANALYSIS



Page: 158

563. The essence of the Applicant’s position is that he wants half the current value of

the former matrimonial home.

a. The parties agree that on the date of separation, July 24, 2011, the mortgage-free

property was registered in the Respondent’s name alone and worth $376,000.00. b. They also agree the current value is $485,000.00.

c. If we simply calculate equalization based upon registered ownership, $376,000.00would be added to the Respondent’s net family property. Subject to other

potential adjustments like notional costs of disposition (which weren’t claimed),the Applicant would receive half the value of the $376,000.00 built in to theoverall equalization payment.

d. To establish entitlement to half the post-separation increase, the Applicant’s primary argument is that the registered ownership of the property does not reflect

the actual or beneficial ownership. He says really they jointly owned the propertyall along.

e. Before marriage.f. During marriage.g. On the date of separation.

h. And if he was a one-half owner on the date of separation…then he’s still a one-half owner. Entitled to half the current equity.

i. And entitled to all of the other rights of co-ownership – including the right to

compel and participate in the sale of the property.

564. The Respondent counters the Applicant never had any ownership in the home.

a. Ironically, she agrees with him that you can’t always go on the basis of registered

title. b. She says we should look past the registration of title in 1998 just as he says we

should look past the registration of title in 1999.c. She feels he’s lucky equalization will let him share the value of the house as of

the date of separation. In her view, asking to share any value which arose after

separation is pressing his luck.

565. Although much of the narrative concerning this house unfolded in 1998 and 1999 – while the parties were unmarried – once they married on April 22, 2004 the property became their matrimonial home. Their property claims were advanced under the Family

Law Act .566. As the Ontario Court of Appeal recently noted in Korman v. Korman, 2015

ONCA 578, a case with interesting parallels:

a. Section 10(1) of the Act authorizes a court to determine questions of title between

spouses. b. This includes considering whether legal title actually reflects beneficial

ownership.



Page: 160

d. The mere placing of property in another person’s name without considerationcreates a presumption of a resulting trust. Lazier v Mackey 2012

CarswellOnt8151 (SCJ).e. Resulting trusts generally arise where property is purchased by one person (the

beneficial owner) and placed in the name of another (the legal owner) without

consideration passing between the two of them. The law considers the legalowner as holding the property in trust for the beneficial owner who paid for it.

f. Equity presumes that the transferor intended the recipient to hold title on aresulting trust (in trust for the transferor) rather than presuming that the transferor

intended to make a gift to the title holder. Pecore (supra). Galla v. Galla, 2015ONSC 37.

g. Equity presumes bargains, not gifts. Pecore (supra).

h. The presumption of a resulting trust is based on presumptions about the intentionof the transferor.

i. But the presumption of resulting trust is rebuttable by the transferee (the legal titleholder) if it can be shown that the transferor intended to make a gift. The actual

intention of the transferor is the governing consideration. It is the intention of thetransferor alone that counts. Pecore (supra); Schwartz v. Schwartz, 2012 ONCA239 (Ont. C.A.).

j. Where a transfer is challenged, the presumption allocates the legal burden of proof. Where a transfer is made for no consideration, the onus is placed on thetransferee to demonstrate that a gift was intended.

k. In Kerr the Supreme Court confirmed that a traditional resulting trust may arise inthe domestic context where there has been a financial contribution to the initial

acquisition of a property and a subsequent gratuitous transfer of title to the property.

l. The intention of the transferor to make a voluntary and gratuitous transfer is an

essential ingredient of a legally valid gift. McNamee v. McNamee, 2011 ONCA553.

570. The Applicant appears to argue that this wasn’t a resulting trust situation. In thealternative, any presumptions have been rebutted.

571. He submits the R espondent didn’t gratuitously gift him anything.

a. She didn’t have any interest in this or any other house before the Waterdown property was acquired in both names.

b. They jointly agreed upon the house which was going to be their home.

c. They both signed the paperwork in relation to the purchase and completion of thetransaction.

d. They both contributed and facilitated the acquisition of the property – in differentways.

e. She owned savings which she applied to the down payment. Without question,

that was fundamental to the acquisition of the property.f. At best, only half that $58,000.00 was a benefit to the Applicant, because the

Respondent remained a joint owner.



Page: 161

g. But the Respondent’s advancing of the down payment was only one component ofthe method and plan by which the house was purchased.

h. Acquiring the house was contingent on other mutual expectations andcommitments which existed contemporaneously. Expectations and commitments

that both parties followed through on.

i. They both arranged the balance of the purchase price by way of the mortgage. j. They knew they’d be counting on both incomes.

k. From the outset they both made regular contributions to the property.l. The Applicant had a new and promising job with the Toronto Police Service

which made acquiring the house affordable. Soon his growing income wouldallow him to consistently increase his share of the mortgage and carrying costs.

m. They both agreed to increase their monthly payments to discharge the mortgage as

quickly as possible.

572. The Applicant’s evidence was specific and credible.

a. From the outset they knew they would be contributing to their new house indifferent ways, at different stages. b. Short term: she’d come up with the down payment. They’d both come up with

the financing.c. Long term: They’d both pay off the house. He’d likely pay more than her. d. And that’s the plan they followed from day one.

573. I do not accept the Respondent’s position that her disproportionate contribution of

the down payment meant that – irrespective of joint title – she was and always would be the sole beneficial owner of the property.

a. Her evidence about why she agreed to joint title in 1998 was vague and simplistic. b. Her evidence about an oral agreement that title would eventually revert to her

made little sense.c. By her own admission, registering the house in joint names was not a unilateral

decision on her part.

d. Fundamentally, the acquisition of the home and registration of title jointlyentailed mutual consideration. She did certain things that he benefitted from, and

he did certain things that she benefitted from.

574. My assessment of the Respondent’s credibility on this issue must be viewed in the

context of my assessment of her credibility throughout the 36 day trial.

a. The Respondent is very angry and spiteful toward the Applicant. b. She has a huge sense of her own entitlement – and an even bigger sense of his

disentitlement .

c. From at least the moment she found out the Applicant had a girlfriend – and evenat trial – she made no effort to mask her fundamental belief that she’s entitled to

everything; he’s entitled to nothing. And that applies not only to financial issues.



Page: 162

d. There were quite a number of instances in which I concluded she was not beinghonest. Not with the Applicant and others in Paige’s life. And not on the witness

stand.e. The Respondent is a very intelligent and determined woman. She has not used

those strengths wisely.

f. I do not accept her premise – however she legally characterizes it – that they bothagreed he would never get anything from the house. And that registering the

house in joint names meant nothing.g. It defies logic that by fronting the Applicant’s half of the down payment, the

Respondent would always be entitled to everything – no matter how many tens ofthousands of dollars the Applicant put into the mortgage he had committed to. Ido not accept that this was the agreement in November 1998.

575. There have been similar cases in which courts have determined that a joint tenant

cannot claim sole beneficial ownership just because they advanced all or most of a down payment. Morris v. Donegan, 2015 ONSC 3360 (SCJ); Fias v. Souto, 2015 ONSC 880

(SCJ); Stannett v. Green, [2014] O.J. No. 47; Wilson v. Clarke, 2013 ONSC 724 (SCJ); Kowalski v. Kowalski, [1997] O.J. No. 4050. In Gaunt v. Woudenberg, [2005] O.J. No.19687/02 a resulting trust was found where the male unmarried partner contributed the

entire $64,000.00 down payment and the property was registered in joint names. But inGaunt there was no common intention of joint ownership or that each would have a beneficial interest; the female’s income was minimal and irrelevant to the decision to

purchase; by mutual agreement she never made any financial contribution; and therelationship lasted only three years. In contrast, I find that in this case the intention of the

parties – including specifically the intention of the Respondent – was that the purchase of37 Mill Street South, Waterdown would involve and require the joint participation of both parties.

576. Accordingly, I find that pursuant to the registration of title in November 1998, theApplicant and the Respondent were the actual co-owners of the property.

577. That bring us to 1999 and another resulting trust analysis in relation to the samehouse:

a. The Applicant says he and the Respondent agreed to transfer title from jointnames into her name alone – solely to insulate the property from potential

creditors as a result of the litigation risks associated with being a Toronto policeofficer.

b. The Applicant was very specific about the timing and purpose. His step-father

Buckley gave corroborating evidence.c. Notably, the Respondent did not comment on or deny any of the Applicant’s

evidence about this key transaction.d. She simply said the 1999 transfer to her name was the fulfillment of the 1998

agreement that she was really always the sole beneficial owner.

578. The Respondent appears to argue that the 1999 transfer from joint names to her

name doesn’t trigger a resulting trust analysis, because the Applicant didn’t really have



Page: 163

any ownership to convey. She seems to characterize the 1999 conveyance as a pre- planned correction of her deliberate 1998 misrepresentation as to ownership. That’s very

convoluted.579. I accept the Applicant’s evidence that his – their – sole motive for transferring the

house into the Respondent’s name was to pr otect the property from potential lawsuits

related to his work. At the time he had no actual creditors or lawsuits pending.

a. There was no consideration for this unilateral transfer. b. I accept that the Applicant never intended to gift his half of the house to the

Respondent.c. I find that by December 1999 he was already making a significant contribution

toward building equity in the jointly owned property. If there could have been

any doubt about the equity and logic of his being named as a co-owner in 1998, by 1999 that doubt would have disappeared.

d. I find that the Respondent offered no evidence to rebut the presumption of aresulting trust when the property was registered in her name alone.

580. As noted in Korman, any motivation to shield the property from the husband’s potential creditors does not in itself rebut the presumption of a resulting trust. While

evidence that someone intended to fully evade creditors can be evidence that theyintended to gift their entire interest in the property, the intention of the parties is aquestion of fact to be determined from all of the evidence. Nussbaum v. Nussbaum,

(2004) 9 R.F.L. (6th) 455.581. The trend in the case law is that the presumption of a resulting trust is rebutted

when the purpose of the transfer is to defeat existing or “real” creditors, but the resultingtrust claim is allowed where there are no creditors or merely the uncertain specter ofcreditors

582. And in a case with some parallels, in Launchbury v. Launchbury, 12 R.F.L. (6th)393 the Ontario Court of Appeal upheld a ruling that a husband was still a beneficial

owner of property he had conveyed into the wife’s name to avoid potential creditors.

a. The court noted there was no suggestion that any creditor or potential creditor was

prejudiced by the property being registered in the appellant's name. b. There was also evidence that the decision to put the property in the wife’s name

was for a legitimate purpose: because of the dangerous work that the Respondenthad done as a police officer in the anti-gang squad.

583. As a result, I find that as of December 1999, the Applicant continued to be a beneficial owner with respect to one half of the equity in the Waterdown property.

a. That one-half beneficial ownership was never changed by any subsequent eventor transaction.

b. That one-half beneficial ownership remained in place as of both the date ofmarriage and the date of separation.

c. It remains in place today.



Page: 165

2) If so, will monetary damages suffice to address the unjust enrichment, keeping inmind bars to recovery and special ties to the property that cannot be remedied by

money?3) If the answer to question 2 is yes, should the monetary damages be quantified on a

fee-for service basis or a joint family venture basis?; and,

4) If, and only if monetary damages are insufficient, is there a sufficient nexus to a property that warrants impressing it with a constructive trust interest?

591. In my view, if unjust enrichment is the proper approach, the facts would support

such a claim.

a. If the Waterdown house really is and always was owned by the Respondent, she

derived a huge financial enrichment by the Applicant; he experienced acorresponding deprivation; and there was an absence of juristic reason.

b. Given the magnitude of the Applicant’s contribution to the property -- and giventhe fact that it represented his “stake” in the appreciating real estate market – I do

not believe a monetary award would be sufficient. There is definitely a sufficientnexus with the property to warrant impressing a constructive trust interest.c. I am not satisfied that any potential unjust enrichment would be adequately

compensated by the equalization calculation.

592. As I say, my summary of the unjust enrichment analysis is brief because the facts

have otherwise been canvassed extensively – and because I do not believe it should bethe prevailing analysis in any event.

593. But no matter what the ap proach, the Respondent’s position that the Applicantshould be entitled to no beneficial ownership despite his huge financial contributions, is both unrealistic and unfair.

EQUALIZATION

594. That determination as to beneficial ownership of the house resolves one of thetwo equalization issues I was left with:

a. Whether the value of the house is attributed entirely to the Respondent, or

whether the value is shared equally on the net family property statement. b. My beneficial ownership determination means the value will be listed equally.

The house ceases to be an equalization issue.

595. The other issue related to the Applicant’s pension, the value of which was agreed

to be $164,324.67 less a tax liability of $37,794.67.

a. If his pension is divided at source the Respondent owes him $55,415.00 as an

equalization payment. The Applicant favours this approach. b. If his pension is included in the equalization payment, the Applicant owes the

Respondent $7,849.17. The Respondent favours this approach.



Page: 166

c. (These calculations would be subject to pre-judgment interest and a smalladjustment claimed by the Respondent for post-separation expenditures like

parking tickets.)

596. Section 10.1(4) of the Family Law Act sets out some of the considerations the

court must take into account in dealing with pension as part of equalizat ion.

10.1(4) SameIn determining whether to order the immediate transfer of a lump sum out of a pension planand in determining the amount to be transferred, the court may cons ider the following matters

and such other matters as the court considers appropriate:1. The nature of the assets available to each spouse at the time of the hearing.2. The proportion of a spouse's net family property that consists of the imputed value, for

family law purpos es, of his or her interest in the pens ion plan.3. The liquidity of the lump sum in the hands of the spouse to whom it would be transferred.4. Any contingent tax liabilities in respect of the lump sum that would be transferred.

5. The resources available to each spouse to meet his or her needs in retirement and thedesirability of maintaining those resources.

597. Pension values are still factored in to the equalization calculation. Section 10.1merely creates options as to how equalization is to be satisfied.

a. There is no presumption or statutory onus under s.10.1 of the Family Law Act thatan equalization payment will be made by a transfer of a lump sum out of a

pension plan. VanderWal v. VanderWal, 2015 ONSC 384 (SCJ). b. Section 10.1 merely creates another way for an equalization payment to be made.

There is no presumption, one way or the other, that it is the right way. VanderWal (supra).

c. Each case depends on its own facts.

d. The pension holder should not be able to automatically force the other party toaccept a deferred payment of a share in his pension, to ease his own liquidity

position. Tupholme v. Tupholme, 2013 CarswellOnt 9734 (SCJ).e. A transfer of a lump sum from a pension plan may be appropriate, for example,

where a cash payment would leave the payor with no liquid assets. Nadendla v.

Nadendla, 2014 ONSC 3796.

598. I find that a lump sum transfer of the pension would undermine some of the otherobjectives which need to be promoted.

a. These parties still have a young child and they are going to have cash flow

problems. b. As I will discuss more fully below, there is a significant possibility thematrimonial home is going to have to be sold.

c. The Respondent may have to purchase suitable – but less expensive --

accommodation for the significant periods when Paige is going to be with her.d. If she is able to retain the current home, the financial challenges will be even

greater.

https://nextcanada.westlaw.com/Link/Document/FullText?findType=Y&pubNum=6407&serNum=2031089054&originationContext=document&transitionType=Document&contextData=(sc.Search)


http://www.mailoutinteractive.com/Industry/Redirect.aspx?u=1128866&q=832242762&lm=58706540&r=655392&qz=3279dddb40a5d807e418ed79b7da8809








Page: 167

e. The Applicant will also likely participate in the purchase of largeraccommodation with his fiancé.

f. Dividing the pension by way of a lump sum transfer will mean the Respondentimmediately owes the Applicant an equalization payment of more than

$55,000.00. That could significantly impact on the type of residence – and

location – she can afford. And as I will touch on below, location may have practical implicat ions with respect to timesharing.

g. In contrast, if the pension is simply included in the equalization payment, theApplicant would only have to write the Respondent a very small cheque. Both

parties would come out of the relationship with roughly the same amount of cashfrom the mortgage free home. Placing them in a position of equal liquidity is veryimportant as they both try to rebuild their lives.

h. Spousal sup port is also interwoven with this determination. The Respondent’sentitlement is acknowledged, but quantum and duration are in dispute. The

Applicant will seek to lower spousal payments because of his child-relatedobligations. He will also seek a time-limitation on spousal support. This will

heighten the Respondent’s need to be able to access all of her resources andentitlements now.

CUSTODY ANALYSIS

599. I make the following findings in relation to parenting.

600. Prior to separation both parents were actively and beneficially involved in Paige’slife.

a. There were periods when the Respondent spent more time with the child – because at times the Applicant was employed and she wasn’t.

b. But qualitatively they were equally familiar, equally skilled, equally committedwith respect to Paige’s physical and emotional needs.

c. They were equally loving and equally bonded to the child.

601. For about the first year of separation, between July 26, 2011 and late summer

2012 the Respondent was the primary caregiver for Paige, and the Applicant had regular, beneficial involvement in the child’s life.

a. The Respondent made good, child-focussed decisions. b. For the most part (particularly early on) the Respondent was flexible and

reasonable with respect to access.c. During this transitional period the Respondent appears to have perceived –

accurately or not – that there was at least a possibility of reconciliation.d. As a result, the Respondent was motivated to maintain good relations with the

Applicant. Paige benefitted from that amicable parenting arrangement.

e. And the Respondent had no reason to feel threatened or insecure. At that pointthe Applicant had voluntarily moved out. She was still in the house with the



Page: 168

child. She was still receiving significant direct financial assistance from theApplicant.

602. But by the end of August 2012 that goodwill quickly vanished, and a cold war set

in -- with disastrous consequences for Paige.

a. At precisely the moment the Respondent learned of the Applicant’s involvement

and cohabitation with Catherine White, she effectively cut him off as a father.Completely.

b. This was no coincidence.c. I agree with the Respondent that the Applicant could have introduced Paige to his

new living arrangement – and the cottage vacation – in a more sensitive manner.

That was a minor complaint which could have been addressed in a rational andadult manner.

d. But the Respondent’s aggressive overreaction betrayed her true motivations.Jealousy. Anger. And fear.

e. The Applicant had decided to move on without her. And now he wanted to takehis half of the assets with him.f. The Respondent vowed to punish him for his betrayal; for threatening her world.

g. And Paige got caught in the cross-fire.

603. What happened in September 2012…and October…and the months and years that

followed…was nothing less than emotional child abuse.

a. The Respondent embarked on a campaign to eradicate the Applicant from Paige’slife in every possible way.

b. She cut off direct access in September 2012. At a time when, by her own

admission, Paige was experiencing age-appropriate anxieties about starting full-time senior kindergarten. If ever there was a month when Paige needed the

emotional support of both parents, it was September 2012.c. In the weeks and months that followed, the Respondent begrudgingly allowed the

Applicant the bare minimum in terms of contact with his daughter.

d. Temporary orders eventually stabilized access times.e. But the Respondent continued to undermine the child’s enjoyment of time with

her father by creating unpleasant and sometimes bizarre problems at exchangetimes.

604. Most troubling was the persistent psychological campaign the Respondentembarked on. The subtle but destructive “messages” to the child which Michelle Hayes

warned about.

a. That good things, important things, only happen at the mother’s house. Never at

the father’s. b. That her experiences with her father will always be second class. Without her

good clothes. Without her homework. Full of anxiety and worry.



Page: 169

c. That Paige is going to miss out on fun things when she spends time with herfather.

d. That her real life is with her mother. She should always hurry back to her real home.

e. That she can’t trust her father. She can’t trust Catherine White or her children.

f. That her father wants to ruin everything. He wants to take her away. He wants totake away mommy’s house and money. Her mother makes sacrifices. Her father

is selfish.g. That her father is mean and making her mother unhappy.

h. That her father has moved on with his new family, so it’s really just mother anddaughter. They have to stick together.

i. That her mother loves her more than anyone. More than her father loves her.

j. That her mother will protect her. Her father won’t. k. That her mother will make sure she gets anything she wants. Despite her father

trying to stand in the way of her happiness.l. That they’re best friend. Special friends. They should never be apart. Her

mother cries when they’re apart. m. That Paige shouldn’t want to be with her father. It will make her mother sad. Hedoesn’t deserve anything.

n. That the mother is fighting hard to protect Paige, but her hands are tied becausethe father has court orders. The mother can’t do it alone. It’s up to Paige todemonstrate solidarity by standing up to her father. They’re a team against him.

o. That the father wants to take her away forever. And a judge might do it. Sheshould be worried.

p. That Paige can’t trust anyone because everyone’s against the mother. So Paigeneeds to keep secrets. Tell lies if necessary. Because the teachers and socialworkers and counsellors are all on the father’s side. They don’t understand.

605.

Since September 2012 the Respondent appears to have succumbed to a “perfect

storm” of unbridled, destructive emotions:

a. Intense anger and resentment toward a former partner.

b. An obsessive, smothering, possessiveness toward their young child.c. Paranoia and panic. Vice principal Hensen gave a September 2013 example. The

Respondent came to school to pick Paige up, but discovered Paige had alreadygone home with the Applicant. From Hensen’s perspective it was one of manymiscommunications between the parents. But Hensen testified the Respondent

became distraught and expressed fear that she may never see her daughter again.

606.

The Respondent’s behaviour and manipulations have been so extreme andmisguided as to raise concern about her emotional or psychological well-being.

a. McMillan says she has no major mental illness. Nothing to interfere with parenting.



Page: 170

b. McMillan described the Respondent as a “glass half empty” sort of person. Just a bit of a low mood.

c. But Hayes cautioned this may be an understatement, particularly sinceMcMillan’s opinion is based entirely on self -reporting. And the Respondent has

refused to disclose her mental health records.

d. I share Hayes’ concern that the Respondent may need to ge t more intensive professional help – and likely from someone with more specialized credentials.

e. But whatever her problem – and whatever she chooses to do about it – the mindgames she has been playing with her daughter cannot be allowed to continue.

607. The parenting issues before me are governed by section 16 of the Divorce Act .

16(1) Order for custodyA court of competent jurisdiction may, on application by either or both spouses or by anyother person, make an order respecting the cus tody of or the access to, or the cus tody of and

access to, any or all children of the marriage.16(2) Interim order for custody

Where an application is made under subsection (1), the court may, on application by either or both spous es or by any other person, make an interim order respecting the custody of or theaccess to, or the custody of and access to, any or all children of the marriage pendingdetermination of the application under subsection (1).

16(3) Application by other personA person, other than a spouse, may not make an application under subsection (1) or (2)without leave of the court.

16(4) Joint custody or accessThe court may make an order under this section granting custody of, or access to, any or allchildren of the marriage to any one or more persons .

16(5) AccessUnless the court orders otherwise, a spouse who is granted access to a child of the marriagehas the right to make inquiries, and to be given information, as to the health, education and

welfare of the child.16(6) Terms and conditionsThe court may make an order under this section for a definite or indefinite period or until the

happening of a specified event and may impose such other terms, conditions or restrictions inconnection therewith as it thinks fit and just.16(7) Order respecting change of residence

Without limiting the generality of subsection (6), the court may include in an order under thissection a term requiring any person who has custody of a child of the marriage and whointends to change the place of residence of that child to notify, at least thirty days before the

change or within such other period before the change as the court may specify, any personwho is granted acces s to that child of the change, the t ime at which the change will be madeand the new place of residence of the child.

16(8) FactorsIn making an order under this section, the court shall take into consideration only the best

interests of the child of the marriage as determined by reference to the condition, means,needs and other circumstances of the child.16(9) Past conductIn making an order under this section, the court shall not take into consideration the past

conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child.16(10) Maximum contact



Page: 171

In making an order under this section, the court shall give effect to the principle that a childof the marriage should have as much contact with each spouse as is consistent with the best

interests of the child and, for that purpose, shall take into consideration the willingnes s of the person for whom cus tody is sought to facilitate such contact.

608. It is useful as well to consider the provisions of section 24 of the Children’s Law

Reform Act , which sets out some specific criteria for the court to consider in determiningthe best interests of the child.

24(1) Merits of application for custody or access

The merits of an application under this Part in respect of custody of or access to a child shall be determined on the bas is of the best interests of the child, in accordance with subsections(2), (3) and (4).

24(2) Best interests of childThe court shall cons ider all the child's needs and circumstances, including,(a) the love, affection and emotional ties between the child and,

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

(b) the child's views and preferences, if they can reasonably be ascertained;(c) the length of time the child has lived in a s table home environment;(d) the ability and willingness of each person applying for custody of the child to provide the

child with guidance and education, the necessaries of life and any special needs of the child;(e) the plan proposed by each person applying for custody of or access to the child for thechild's care and upbringing;

(f) the permanence and stability of the family unit with which it is proposed that the childwill live;(g) the ability of each person applying for custody of or access to the child to act as a parent;

and(h) the relationship by blood or through an adoption order between the child and each personwho is a party to the application.

24(3) Past conduct

A person's past conduct shall be considered only,(a) in accordance with subs ection (4); or

(b) if the court is satisfied that the conduct is otherwise relevant to the person's ability to actas a parent.24(4) Violence and abuse

In assessing a person's ability to act as a parent, the court shall consider whether the personhas at any time committed violence or abuse against,(a) his or her spous e;

(b) a parent of the child to whom the application relates;(c) a member of the person's household; or(d) any child.

24(5) SameFor the purposes of subsection (4), anything done in self-defence or to protect another personshall not be considered violence or abuse.

609. Both statutes confirm that the sole criterion is the best interests of the child. Theinterests of parents are entirely secondary. Gordon v. Goertz , [1996] 2 S.C.R. 27;

Clayson-Martin v Martin, 2015 ONCA 596.610. That’s worth re-stating, particularly after a long, acrimonious trial which focussed

so extensively on adult behaviour . Some of it quite troubling.

http://canada.westlaw.com/find/default.wl?rs=WLCA12.10&pbc=49014CC7&vr=2.0&findtype=Y&rp=%2ffind%2fdefault.wl&sv=Split&fn=_top&ordoc=2029280730&mt=FamilyPro&serialnum=1996444357&db=6407




Page: 172

611. Custody trials are not about attributing blame or commendation. Not about punishment or reward.

612. Any assessment of the best interests of the child must take into account all of therelevant circumstances as to the needs of the child. Any reference to behaviour of the

parents must be in relation to each parent’s ability to meet the child’s needs. The

emphasis must be placed on the interests of the child, and not on the interests or rights ofthe parents. Gordon v. Goert z , [1996] 2 S.C.R. 27, at para. 49; Perron v. Perron, 2012

ONCA 811. 613. Custody has been described as a “bundle of rights and obligations” including the

right to physical care and control of the child; to determine the child’s residence; todiscipline the child; and to make decisions about the child’s education, religion, medicalcare and general health and activities (Young v. Young (1993), 1993 CanLII 34 (SCC), 49

R.F.L. (3d) 117 (S.C.C.); Chou v. Chou , 2005 CanLII 11195 (ON SC), [2005] O.J. No.1374 (S.C.J.); Harsant v. Portnoi, 1990 CanLII 6703 (ON SC), [1990] O.J. No. 1144, 74

O.R. (2d) 33 (H.C.J.)); Izyuk v Langley, 2015 ONSC 2409 (SCJ).614. An award of sole custody to one parent grants decision-making rights to that

parent, generally to the exclusion of the other parent’s ability to interfere or impose theirown preferences. ( Kruger v. Kruger, (1979), 11 R.F.L. (2d) 117 (Ont. C.A.)). The term“joint custody” is used to describe situations where both parents are given full decision -

making authority and responsibility in all areas respecting the child. Izyuk (supra). 615. Joint custody is not an option in this case:

a. Neither party requested it. b. Both parties agreed they have no effective communication with one another.

c. This is a high conflict case.d. The parties have no ability to set aside their differences for the sake of the child.e. There is no history of functioning co-parenting.

f. In such circumstances, joint custody is simply inappropriate as it would not servethe best interests of the child. De Melo v De Melo, 2015 ONCA 598 (Ont. C.A.);

Kaplanis v. Kaplani s, 10 R.F.L. (6th) 373 (Ont. C.A.)

616. Similarly, I have ruled out parallel parenting – an option which has attracted more

favour in recent years, as courts struggle to craft parenting arrangements specificallysuited to each family’s needs and capabilities. As with joint custody, the parallel

parenting label can entail a broad range of interpretations. Among them:

a. “Divided parallel parenting”, where each parent is given separate, defined areas of

parental decision making, independent of the other. Hensel v. Hensel, (2007), 46R.F.L. (6th) 343 (SCJ); Izyuk v. Bilousov, 2011 ONSC 6451 (SCJ).

b. “Full parallel parenting”, where both parents are given the right to make majordecisions respecting the child in all major areas of parental authority while thechild is with them, without the consent of the other parent. Mol v. Mol, 1997

CarswellOnt 3693; Ursic v. Ursic, (2006), 32 R.F.L. (6th) 23 (Ont. C.A.).



http://www.canlii.org/en/ca/scc/doc/1993/1993canlii34/1993canlii34.html

http://www.canlii.org/en/on/onsc/doc/2005/2005canlii11195/2005canlii11195.html



http://canada.westlaw.com/find/default.wl?rs=WLCA12.04&pbc=DC1D7A43&vr=2.0&findtype=Y&rp=%2ffind%2fdefault.wl&sv=Split&fn=_top&ordoc=0374134593&mt=FamilyPro&serialnum=2006112650&db=6407











http://www.canlii.org/en/ca/scc/doc/1993/1993canlii34/1993canlii34.html




Page: 173

617. Hayes testified that at her disclosure meeting with the parties and counsel in November 2013 she indicated she would be recommending parallel parenting.

a. At the time she expressed hope that despite the obvious conflict, if each parent

was given their own spheres of decision-making authority, necessary decision-

making could occur uneventfully. Hayes hoped that with the passage of time, the parties would learn to trust one another and find incentives to cooperate.

b. However, after Hayes saw how badly parental conflict worsened after thatdisclosure meeting – and how many more problems the Respondent created –

Hayes abandoned any hope that Paige might be well-served in a parallel parentingarrangement.

c. Hayes stated there is “a myriad of evidence” to suggest the parents would not be

successful in a parallel parenting regime or a joint custody scenario.d. She said Paige’s emotional decline indicates the Respondent needs to work

towards better managing her own emotions, which might ultimately allow her to participate in joint decision making with the Applicant. But Hayes said until that

happens, the Applicant should be responsible for decision making.

618. I agree with Hayes.

a. The level of conflict – and the inclination to litigate – is so high on this file, thatPaige needs a regime in which necessary decision-making will occur efficiently

and unequivocally. b. The Respondent’s abuse of past decision-making authority, and her inability to

prioritize the child’s well-being over her own emotional needs, leaves me unableto identify any area of decision making she could be entrusted with.

619. I am not bound by the mutual request of the parties that one of them should beawarded sole custody. Indeed, as the Court of Appeal recently noted in M. v. F., (supra)

the court is not required to make a custody designation.620. But here I agree with the parties that a custody designation – a sole custody

designation – is essential to Paige’s best interests. On too many occasions the lack of

structure and clear authority has led to mischief, ineffectual parenting, missedopportunities, confusion, frustration, contradiction, and paralysis with respect to

important decisions.621. It is important to note that while a custody designation typically entails a

combination of both “decision-making authority” and “primary residence”, in many cases

– including this case – the child’s best interests are best served by treating decision-making and timesharing as separate issues.

622.

I will first address custody in the context of decision-making authority.623. In so many different ways I have made a point of describing the Applicant and

Respondent as “equal”.

a. Equal from the child’s perspective, in terms of love and emotional attachment.



Page: 174

b. Equal as described by third parties. The common theme from witnesses was thatPaige is a wonderful little girl who loves her mother and father equally.

c. Indeed, equal in their ability to meet the child’s b asic physical and instrumentalneeds.

624.

But they are not equal in terms of parental judgment, fairness, or the ability to putthe child’s needs ahead of their own.

a. The evidence is overwhelming.

b. From the outset the Respondent seized control of the child – and then proceededto abuse that control.

c. The Respondent consistently made selfish, hurtful decisions, transparently

motivated to punish and marginalize the Applicant.d. She displayed alarming disregard and lack of insight with respect to the emotional

needs of this young child.e. These weren’t just errors in judgment.

f. The Respondent was overt, manipulative, scheming, deceitful and oblivious to theneedless family suffering she perpetuated for at least the last three years.

625. When the Respondent testified about future decision making she spoke ingeneralities.

a. She said she hoped the parties would both be able to realize that decisions had to be made which were suitable for Paige.

b. She speculated that when the pressure of this litigation is removed “maybe itwon’t be quite so challenging.”

c. She said she believed her track record shows that she has been inclusive and

cooperative.d. She said if she gets custody she would continue to keep the Applicant informed of

any medical occurrences.e. She would continue to involve him in Paige’s school issues.

626. The most frightening aspect of the Respondent’s evidence: She still doesn’tthink she’s done anything wrong.

a. On the witness stand she denied parental mistakes or any ulterior motive. b. She had an excuse for almost everything.

c. She insisted she was the victim. Of his ruthless litigation.

627.

In contrast, at every stage the Applicant appeared to be genuinely interested inavoiding conflict, working cooperatively, and making the best possible decisions forPaige.

a. He never claimed to be a better parent.

b. He never sought to be more than equally involved in his daughter’s life.



Page: 175

c. He proposed mediation as soon as conflict arose. Maybe it wouldn’t haveworked. But I heard no evidence to justify the Respondent’s knee-jerk rejection.

d. In describing ongoing problems and issues in Paige’s life, the Applicantdemonstrated insight, sensitivity and fair-mindedness.

e. Repeatedly, the Applicant made concessions – sacrifices – for the sake of the

child.

628. I have considered section 16(10) of the Divorce Act , which requires the Court toconsider the concept of maximum contact with each spouse, to the extent that maximum

contact is consistent with the best interests of the child. Furthermore, the Court isrequired to take into consideration the willingness of the person for whom custody issought to facilitate such contact. This section is applicable in several respects.

a. I find that the Applicant has always shown a willingness to facilitate contact

between mother and child. b. In contrast, the Respondent has demonstrated on multiple occasions that she has

no insight or recognition with respect to the importance of both parents in Paige’slife. Far from facilitating access, the Respondent has consistently undermined andinterfered with father-daughter contact. Looking forward, the court must promote

maximum contact with both parents – including the Respondent – while at thesame time ensuring that the child is no longer exposed to negative and alienating behaviours by the Respondent.

c. I am confident the Applicant will promote the Respondent in Paige’s life. d. In contrast, if the Respondent were to be granted custody, it’s pretty clear we

would end up with more of the same. And in this case, the status quo is definitelynot something we want to perpetuate.

629. Hayes testified that in recommending that the Applicant have sole custody, shefelt he should have decision-making authority for topics like religion, major medical

issues, education, and perhaps arranging a psycho-educational assessment for Paige. Asit happens, religion does not appear to be an issue. The Applicant appears to be contentthat the Respondent should still be able to take Paige to her church when the child is with

her.630. In her report, apart from recommending sole decision-making to the Applicant,

Michelle Hayes also strongly urged the parties to retain a parenting co-ordinator.

a. She said the goal would be to assist the parties in learning to work collaboratively

in making decisions for Paige rather than the Applicant immediately invokingfinal decision making rights.

b. She said a parenting co-ordinator could assist the parties with logistical issues likeorganizing activities, or adjustments to timesharing.

c. She did not recommend a parenting co-ordinator for major custodial decisions.

She confirmed those should be left to the Applicant.d. The Applicant has consistently agreed to the involvement of a parenting co-

ordinator.



Page: 176

e. But as with mediation, the Respondent has generally been opposed.f. CAS worker Anderson testified the Respondent told her she was not prepared to

use a parenting co-ordinator.g. On the first day of trial, in response to my request for confirmation of each party’s

position, the Respondent’s lawyer started out saying the mother would “think

about” using a parenting co-ordinator. After further inquiry, the Respondent saidyes to a parenting co-ordinator. But her lack of enthusiasm was obvious.

h. The court has no authority to force people to retain a parenting co-ordinator.Such orders can only be made on consent.

i. But given the Respondent’s lack of enthusiasm -- and mutual uncertainty aboutwhether they can afford a parenting co-ordinator after this long trial -- I see no point in making such an order. If the parties eventually agree on a parenting co-

ordinator, they can arrange it themselves.

631. The harder issue – by far the hardest issue – is what to do about timesharing.632. The Applicant described his timesharing proposal.

a. He has always maintained that Paige should see both parents equally. b. But with all the tension and with the Respondent abusing her time with Paige, he

believes her time should be decreased until she gets some professional help.c. He is proposing that currently the Respondent should have access on alternate

weekends.

d. He acknowledges it is very important for Paige to have a mother in her life.e. But Paige’s level of anxiety and the constant conflicts created by the Respondent

have caused him to doubt whether Paige can safely be placed with the Respondenthalf of the time.

f. Ultimately, as his second choice he said he could live with equal time – as

recommended by Michelle Hayes.g. But whatever the schedule, he’s worried the Respondent will continue to use any

time she gets to keep poisoning Paige against him.

633. The Applicant testified he is fully able to assume primary care of Paige.

a. He has an extensive family support network.

b. If he’s at work, his fiancée Catherine White is usually available to care for Paige.c. In the alternative his mother and White’s mother can help. d. White’s older child has a car and can also assist with transportation.

e. White testified she has a lot of scheduling flexibility at work, so she could helpthe Applicant with pick-ups or drop-offs if he needed help. But she said with his

schedule he would rarely need her help.

634. The Respondent’s position was less clear.



Page: 177

a. She said she preferred primary residence with her. The Applicant could havealternate weekends from Friday to Wednesday, which she felt coincided with his

shift schedule. b. But she was also prepared to agree to equal time on a week about basis.

c. Ideally, she would prefer shorter, more frequent visits, to avoid long blocks of

time away from either parent.d. But she acknowledged Hayes’ concerns about the amount of conflict associated

with exchanges between the parties. She agreed those exchanges should beminimized.

e. As well, since she and the Applicant have such very different parenting styles,she thinks it’s easier for Paige if she spends longer periods in each household soshe can become fully immersed in each parenting environment.

635. Michelle Hayes recommended equal time sharing.

a. She said Paige is equally attached to both parents, and she clearly articulated a

desire to spend more time with the Applicant. b. She said given all of the transitional difficulties during the time of the assessment,it was clear that Paige would benefit from a predictable schedule that would

minimize the contact the parents have with one another.c. But as part of her overall recommendation, Hayes also said the Respondent needs

to get control of her emotions. If she keeps saying and doing things which upset

Paige, her level of contact with the child may need to be reduced.

636. To complicate matters further, even if equal time prevails, the parties couldn’tagree on what it should look like.

637. Hayes recommended a schedule proposed by the Applicant to reflect his shift

schedule as a policeman. Dubbed “8-8-8-8-5-5”, the schedule would mean Paige wouldspend:

a. 8 days with her father. b. 8 days with her mother.

c. 8 days with her father.d. 8 days with her mother.

e. 5 days with her father.f. 5 days with her mother.

638. The Applicant said it would allow Paige to be with him on his days off.639. Hayes admitted 8-8-8-8-5-5 wasn’t perfect, but said it would maximize the time

Paige spends with a parent as opposed to an alternate caregiver.640. The Respondent said eight days away from either parent is too long, and the

schedule is too confusing. She also said Paige’s schedule should get priority over the

Applicant’s work schedule. If he wants to see his daughter more, maybe the Applicantshould change his work commitments.



Page: 178

641. I agree with Hayes that the Respondent is off base suggesting the Applicantshould simply change his employment. Showing financial responsibility is a plus, not a

minus, when it comes to parenting.642. But I agree with the Respondent about 8-8-8-8-5-5. The gaps are too long for a

young child. And with the transition day changing every week, the schedule is difficult

to follow; almost impossible to plan around.643. If equal time is to prevail, week about (alternating week) format is likely the best

option.

a. The Applicant proposed transition days on Thursdays after school, to avoidconflict over professional developments days which often fall on Fridays.

b. The Respondent proposed transitions occur at the end of school on Fridays, so

that each parent would have a solid Monday-to-Friday block with the child. Shesaid Paige’s school routine is organized on a Monday to Friday schedule. And

transferring households on Fridays after school would allow the child to use theweekend as a “buffer” between two different parents and two different routines.

c. In some ways, the selection of the transition day might seem a bit arbitrary. But Iam inclined to favour the Respondent’s Friday proposal. An added consideration:she testified that she might be able to accept out-of-town assignments at work if

she could be available Monday to Friday on certain weeks.

644. Both parties agreed exchanges should occur at school whenever possible to

minimize their interaction with one another.

a. The Applicant proposed they use a formal drop-off center when school is not insession. He referred to a center in Burlington he located through an internetsearch. He didn’t know anything about it other than what he read on the web

page. b. The Respondent proposed that when school is not in session they should continue

the current pattern: They both drive to a parking lot. Paige exits one vehicle andenters the other. She denied that she gets emotional or creates problems duringexchanges.

c. I agree with the Applicant that a neutral setting is required to monitor anddiscourage inappropriate behaviour and excessive emotionality by the

Respondent, during exchanges.

645. Now that we know what equal time might look like we still have to deal with two

fundamental questions:

1) Is equal time logistically feasible?2) Is equal time in the best interests of Paige?

646. The “logistically feasible” question is largely geographic, and involvesconsideration of where each party is going to be living and where Paige is going to be

attending school.



Page: 180

c. Hayes felt it was desirable to provide at least one predictable element in her life, particularly since the school appears to be fully supportive of Paige’s family

difficulties.d. Under cross-examination she admitted it was not “essential” that Paige remain in

the same school.

e. Hayes and the Respondent both acknowledged Paige would likely be able to adaptto a new school if necessary.

f. But Hayes said if Paige doesn’t have to move to a different school, why introducean unnecessary change?

654. On the surface, the Respondent’s proposal of Paige continuing at Guy Brown iscompelling:

a. Paige is now in her fourth year of full-time attendance at this school.

b. She likes it there.c. She likes the teachers.

d. She has many friends.e. Michelle Hayes recommended that if possible Paige should remain at Guy BrownSchool because it has been an important source of stability and happiness during

an extended period of family discord.f. All of these are very important “child- focussed” considerations.

655. But as it happens, even if Paige remains at Guy Brown School it will not bewithout significant complications.

a. The Applicant testified the Respondent has “poisoned” the environment for himas a parent at Guy Brown. He testified the Respondent has drawn other parents

into their family dispute, and that these other parents – many of them strangers tohim – are now openly hostile. He recommended Paige needs a fresh start.

b. Without acknowledging responsibility, the Respondent confirmed that many ofthe parents of Paige’s friends want nothing to do with the Applicant because they“know what he’s like.” Presumably they know because the Respondent told them.

But she denied Guy Brown School was a “poisonous” environment. Certainly notfrom Paige’s perspective.

c. School witnesses also confirmed incidents of other parents electing to becomeinvolved in this family’s business. Approaching staff to advocate on behalf of theRespondent.

656. Indeed, if Paige continues at Guy Brown it may be just as awkward for the

Respondent.

a. During the trial she openly alleged teachers and principals took the Applicant’s

side and treated her unfairly. At times she seemed to be hinting at some sort ofconspiracy.



Page: 181

b. Her lawyer was quite aggressive in cross-examining the school principal, vice- principal, and four teachers.

c. There’s nothing wrong with counsel challenging witnesses. And I have no reasonto anticipate any of the school staff would be anything less than professional in

the future.

d. But the reality is that the Respondent is a very sensitive person, prone toemotional responses. Undoubtedly she perceived that all of those school

personnel were testifying against her. And as it happens, I believed all of thoseschool staff. I didn’t believe the Res pondent.

e. I must consider the adult human dynamics which are likely to unfold – for boththe Applicant and the Respondent – if Paige continues at Guy Brown School infuture years.

657. But there are more fundamental questions about whether Guy Brown School is a

realistic option.

a. The Respondent’s proposal that Paige remain at her current school is predicatedon her assumption that she will be able to continue to reside in the formermatrimonial home in Waterdown.

b. Even if she had been successful in arguing that the mortgage-free house was hersalone, and that the Applicant should not share in the post-separation increase invalue – by her own figures she still would have owed him an equalization

payment of about $176,000.00.c. At trial she offered no evidence about how she would be in a position to satisfy

that obligation, and still retain the house.d. She doesn’t have nearly enough in savings. e. She didn’t identify any other sources of funding.

f. She appears to have made no inquiries about borrowing money or the extent ofavailable mortgage funding.

g. She offered no plan or assurance that she will have the ability to retain theWaterdown home.

h. Indeed, under cross-examination she specifically stated that she didn’t know what

her residential plans might be.i. She didn’t know if she would be able to remain in Waterdown.

j. The closest she came to predicting her future situation was to loosely speculatethat she might end up going bankrupt.

658. Understandably, her lawyer argued that it was impossible for the Respondent toarrange financing until she knew how this trial was going to turn out.

a. Would she get sole custody? b. Would she get full child support?

c. Would she get spousal support without income being imputed to her?d. Would she have to share the post-separation increase in the value of the house

with the Applicant?



Page: 182

659. Those were legitimate uncertainties from the Respondent’s perspective.

a. But the Respondent didn’t even offer evidence of how she might be able to retain

the house in her best case scenario.

b. And as it happens, now the Respondent is going to have to share half the current equity in the house with the Applicant.

c. If the Respondent wants to buy out the house, she’s going to have to pay theApplicant a lot more than $176,000.00.

d. And she won’t be receiving nearly as much in combined child and spousalsupport as she appeared to be counting on.

660. As a sign of the Respondent’s uncertainty about her own plans, in summarizingthe relief she was requesting at trial, she did not specifically seek an order that Paige

continue to attend Guy Brown School.

a. She requested that as part of her sole custody order Paige “shall attend schoolclosest to the Respondent’s residence.” b. She was non-committal about where that residence might be.

661. With the Respondent attacking the Applicant’s Oakville school proposal asdisruptive for the child, it was incumbent on the Respondent to offer some evidence that

her own plan would be less disruptive. That she had a financially viable plan to retain herresidence – or at least a residence in Waterdown – so that Paige could continue to attend

Guy Brown School.662. The Respondent provided no such reassurance.663. Hayes testified that ideally the parties will live in close proximity, but her

recommendation of equal time sharing schedule doesn’t hinge on proximity. She notedthe parents already live in different cities. She said geographic considerations will be

relevant if they affect the availability of the parties to each transport the child to and fromschool.

664. Paige is currently well into grade three in French immersion at Guy Brown.

Barring some serious new issue arising, there’s no reason her school or program shouldchange for the balance of this school year.

665. Thereafter, as custodial parent, the Applicant should have the discretion todetermine the selection of both the school and program.

a. I anticipate the Applicant will transfer Paige to school in Oakville as ofSeptember 2016.

b. Paige is struggling in French immersion. I anticipate the Applicant will consultteachers to get an update about whether transferring to the English stream would be appropriate.

c. I have full confidence the Applicant will make appropriate, child-focussededucational decisions. He has always shown interest and good judgment.



Page: 183

666. The Respondent should certainly be consulted and informed as discussions onthese topics arise. But I specifically exclude the Respondent from having any custodial

decision making authority – in relation to education or anything else.

a. She prevented the Applicant from helping Paige with homework – even when

Paige desperately needed academic support from both households. b. She insisted Paige be transferred out of Lawson’s class in grade one because she

felt Lawson was taking the Applicant’s side. She disregarded the fact that Paigereally liked Lawson as a teacher; she was doing well in her class; and the school

had decided Lawson was academically the right fit.c. She hid or tampered with important school documents and materials such as

Paige’s agenda, causing the child significant anxiety.

d. The Respondent consistently attempted to take control of educational issues, andthen use that control for selfish purposes.

667. Getting back to “Is equal time logistica lly feasible?”

a. If Paige is going to be attending school in Oakville as of September 2016, theviability of an equal time arrangement will largely depend on the distance

between Paige’s new school and the Respondent’s eventual residence. b. If the Respondent remains in Waterdown (in the current residence or elsewhere) it

may be possible for her to transport Paige to and from school during her 50% of

the time. The Applicant currently does that sort of driving. It’s a bit of adistance, but it’s possible (although not desirable from Paige’s perspective, on a

long term basis).c. If she moves any farther away from Oakville – to or near her parents’ home in

Ancaster, for example – there will soon be a tipping point at which daily

commutes for the child are simply excessive.

668. The “Is equal time logistically feasible?” question will likely be determined by theRespondent’s eventual housing plans. As stated, she testified she doesn’t know those plans yet.

669. The second question – “Is equal time in the best interests of Paige?” – will alsolargely depend on some decisions the Respondent is going to have to make.

670. Here’s the issue, as plainly as I can state it:

a. Paige undoubtedly wants equal time with both parents.

b. The evidence causes me no concern about any amount of time the Applicantspends with the child.

c. But the evidence about the Respondent’s entrenched mindset and attitude raisesenormous concerns.

d. If the Respondent intends to squander and mis-use future time with Paige, with

more alienation and destructive messages, then equal time is too much time.e. The Respondent needs to clearly understand she’s at a turning point:



Page: 185

a. Paige is already a very stressed little girl. Emotionally vulnerable.

b. Her default position is to love her mother. To love both parents.c. Somehow – perversely – that innocence has been betrayed.

d. For years she’s been subjected to the Respondent’s relentless and cruel

competition for her loyalty and exclusive affection. That’s the problem we needto eradicate.

e. But a sudden or dramatic reduction in mother-daughter contact will only add anew layer of emotional upset, for a child already conditioned to worry.

f. The sad irony is that children who have been subjected to manipulative oralienating behaviour by a parent can’t help but become especially aligned withthat parent . And emotionally vulnerable to any abrupt disentanglement of that

unhealthy relationship.g. For this reason, I have crafted an access regime intended to curtail the

Respondent’s undesirable behaviour, while minimizing any discernible change ofroutine from the child’s perspective.

h. But the Respondent would be wise not to misinterpret this court’s expression ofcaution.i. If the emotional abuse continues, swift and decisive intervention may be the only

option. Even if it causes short- term upset for Paige.

678. The Respondent’s access to Paige shall be broken down into at least two phases:

a. Until Paige commences school in Oakville in September 2016, the Respondent

shall have access on alternating weeks, with transitions to occur at the end of theschool day on Friday (or 5 p.m. Friday if school is not in session).

b. After school commences in September 2016, the presumption shall be that when

school is in session the Respondent shall have access on alternating weekends,Friday after school until Monday before school, together with a weekly visit from

Wednesday after school until Thursday before school. When school is not insession, alternating weeks would still prevail.

679. It is vitally important that both parties understand the rationale for this approach – and why I have characterized the September 2016 transition as a “presumption.”

a. Despite significant concerns about the Respondent’s damaging negativity towardthe Applicant, we cannot lose sight of the fact that in many, many ways the

Respondent is an excellent mother. b. This isn’t just a case of how do we balance “the good with the bad.”

c. It’s more a case of how do we balance “the terrific with the terrible.” d. There are logistical reasons why equal time sharing makes sense for at least the

balance of this school year.

e. And I want to give the Respondent that time to prove herself. To change. Tomuster the discipline and professional assistance she needs, to overcome

inclination toward emotionality and negativity.



Page: 186

f. One last chance to stop misbehaving .

680. Undoubtedly, the Respondent will be disappointed by her loss of custody. Thatchapter is now closed. Hopefully the Respondent will take it as a sobering warning about

the consequences of obsessive and exclusionary parental behaviour.

681.

But as I have stated, the Respondent is at a turning point. She can still make this a“win-win” situation. For herself. And most importantly for Paige.

a. If the Respondent completely ceases any negativity or undermining behaviour

toward the Applicant, I would be inclined to continue equal time-sharing beyondSeptember 2016 (subject to any logistical issues which might arise, depending onhow far the Respondent resides from Paige’s school in Oakville).

b. If there is no sign of improvement in the Respondent’s attitude and emotionallyharmful behaviour, she should presume her school-year access will be reduced to

alternate weekends and Wednesday overnights.c. If the Respondent’s poisonous behaviour worsens following this order, and

Paige’s emotional health declines further, the Respondent may end up with evenless than alternate weekends.d. If urgent problems arise, I will deal with them quickly.

682. How will we decide if things have improved? For sure, we won’t have another36 day trial.

a. We are dealing with a high conflict, highly litigious couple. And a young child

being emotionally savaged by parents fighting to “protect” her. b. Once parents fall into this special category of relentless litigators, as a court

system we have an obligation to do everything possible to stop them in their

tracks.c. Discouraging future litigation may require comprehensive but rigid orders with

little room for flexibility. That’s not the preferred option. But sometimes theonly way to stop parents from arguing is to leave them with nothing to argueabout.

683. With this in mind, I will narrowly define the process by which residual or future

issues are to be addressed.

a. I will remain seized of this file with respect to any issue arising during the next

three years. The administrative benefits, efficiency and consistency associatedwith a judge seizing himself after such a lengthy trial by far outweigh any

discomfort either or both parties may experience. Gallicano v. Faber 2015ONCA 290 (Ont. C.A.).

b. The onus will be on the party seeking to deviate from the presumed access

transition scheduled for September 2016.c. Any such request will be determined by way of motion, based on written

materials. But before any affidavits are served counsel for the parties should



Page: 189

689. The Respondent admitted child care would be available to facilitate full-timeemployment.

a. She admitted she was able to return to work for 10 months after her maternity

leave because she had daycare available. She said it worked out fine.

b. She did not dispute the Applicant’s evidence that on September 15, 2014 he e -mailed her advising Guy Brown offered before and after school child care. He

tried to sign the child up.c. When he suggested daycare might help her get back into the workforce, she e-

mailed back asking if he needed help with child care -- because she didn’t.d. “I said thank you but I’m not interested.”

690. The Respondent testified that she has decided not to pursue more employment (orhours) than she currently has, because of her commitment to Paige.

a. She feels she already has too little time with her daughter.

b. She wants to be available to take Paige to school in the morning; pick her up atthe end of the day; and attend school during the day if anything comes up thatPaige needs her.

c. She wants to be available to volunteer at Paige’s school during the day. d. She wants to be available after Paige finishes school, to interact with her and take

her to all of her various recreational activities.

e. “My obligation is first and foremost to my child. To give her an excellentchildhood.”

f. She acknowledged she has an obligation to contribute financially for Paige. Butshe disagreed she had an obligation to earn $60,000.00 if she was capable ofdoing so.

g. She admitted that if she didn’t have a daughter to raise “perhaps I might becapable of earning $60,000.00”

691. The Respondent’s income – and her potential income – are relevant:

a. In relation to her own claim for spousal support. b. And in relation to the Applicant’s claim that she should be making a reasonable

financial contribution toward the support of their child.

692. Both the Child Support Guidelines and the Spousal Support Advisory Guidelines

come into play.693. The purpose of the Child Support Guidelines is to establish a fair standard of

support that ensures that children continue to benefit from the financial means of bothspouses after separation, using a methodology that strives to achieve objectivity,efficiency and consistency. Tillmanns v.Tillmanns, 2014 ONSC 6773 (SCJ);

Obodoechina v. Ayetor , [2013] O.J. No. 6066; Lee v. Lee, 1998 CanLII 18000 (NL CA); Milford v. Catherwood, 2014 ONCJ 276 (OCJ).

http://www.canlii.org/en/on/laws/regu/o-reg-391-97/latest/o-reg-391-97.html


http://www.canlii.org/en/nl/nlca/doc/1998/1998canlii18000/1998canlii18000.html

http://www.canlii.org/en/nl/nlca/doc/1998/1998canlii18000/1998canlii18000.html




Page: 190

694. Both parents have an absolute responsibility to support their children to the extentthat they are able to do so. They cannot avoid that obligation by a self-induced reduction

of income. Tillmanns (supra); Thompson v. Gilchrist , 2012 ONSC 4137 (SCJ); DePacev. Michienzi, 2000 CanLII 22560 (SCJ); [2000] O.J. No. 453; Sos-Porritt v. Porritt,

2015 ONCJ 477 (OCJ)

695.

Section 19(1) of the Federal Child Support Guidelines, permits the court toimpute such income to a spouse for the purposes of child support as the court considers

appropriate in the circumstances.696. Imputing income is one method by which the court gives effect to the joint and

ongoing obligation of parents to support their children. Drygala v. Pauli, 2002 CanLII41868 (ON CA), [2002] O.J. No. 3731, (2002), 61 O.R. (3d) 711 (Ont. C.A.); Tillmanns(supra); Stewart v. Turner, 2014 ONCJ 464 (OCJ); G.T.B. v. Z.B.B., 2014 ONCJ 382

(OCJ).697. The court can impute such amount of income to a parent as it considers

appropriate in the circumstances. The list of circumstances in section 19(1) is by way ofexample only and is not a closed list. Bak v. Dobell, 2007 ONCA 304 (CanLII), [2007]

O.J. No. 1489 (Ont. C.A.); A. (G.) v. B. (K.), 2014 ONSC 3913 (SCJ).698. Income may be imputed when the spouse is intentionally under-employed orunemployed, other than where the under-employment or unemployment is required by

the needs of any child or by the reasonable educational or health needs of the parent orspouse.

699. In Drygala v. Pauli, (supra) the Ontario Court of Appeal set out three questions to

be determined:

1) Is the spouse intentionally underemployed or unemployed?2) If so, is this required by virtue of his or her reasonable educational needs, or the

needs of the child of the marriage, or arising from reasonable medical needs?

3) If the answer to #2 is “no”, then the court must decide whether to exercise itsdiscretion to impute income and, if so, in what amount.

700. The test in Drygala for imputing income for child support purposes appliesequally to claims for spousal support. Niranchan v. Nadarajah, 2015 ONCJ 149 (OCJ)

Rilli v. Rilli, [2006] O.J. No. 2142; Crowe v. McIntyre, 2014 ONSC 7106 (SCJ).701. The onus is on the party seeking to impute income to establish that the other party

is intentionally underemployed or unemployed. The person requesting an imputation ofincome must establish an evidentiary basis upon which this finding can be made. Homsiv. Zaya, 2009 ONCA 322 (CanLII), [2009] O.J. No. 1552. (C.A.); Banning v.

Bobrowski, [2007] O.J. No. 3927 (SCJ).702. If the court is not satisfied that the support payer is intentionally underemployed,

the inquiry ends there. But once intentional underemployment is established the onusshifts to the pay or to show one of the exceptions ofreasonableness. Drygala (supra); Rilli v. Rilli, 2006 CanLII 34451 (ON SC), [2006] O.J.

No. 4142 (SCJ); Bekker v. Bekker , 2008 CanLII 864 (ON SC) , 2008 CarswellOnt173(SCJ); Millford (supra).

http://www.canlii.org/en/on/onsc/doc/2012/2012onsc4137/2012onsc4137.html


http://www.canlii.org/en/on/onca/doc/2002/2002canlii41868/2002canlii41868.html


http://www.canlii.org/en/on/laws/regu/o-reg-391-97/latest/o-reg-391-97.html#sec19subsec1_smooth

http://www.canlii.org/en/on/onca/doc/2007/2007onca304/2007onca304.html








http://www.canlii.org/en/on/laws/regu/o-reg-391-97/latest/o-reg-391-97.html#sec19subsec1_smooth




http://www.canlii.org/en/on/onsc/doc/2012/2012onsc4137/2012onsc4137.html



Page: 191

703. A parent is intentionally underemployed if that parent chooses to earn less than heor she is capable of earning having regard to all of the circumstances.

Drygala (supra); Tillmanns (supra); Smith v. Smith, 2012 ONSC 1116 (SCJ).704. There is a duty on the part of the payor to actively seek out reasonable

employment opportunities that will maximize their income potential so as to meet the

needs of their dependants. Thompson v. Thompson 2013 ONSC 5500(SCJ); Smith (supra).

705. A parent cannot avoid child support obligations by a self-induced reduction ofincome. Weir v. Therrien, 2001 CanLII 28136 (ON SC), [2001] O.J. No. 2612, 20 R.F.L.

(5th) 199, (SCJ); Kerr v. Erland, 2014 ONSC 3555 (SCJ); Le Page v. Porter, 2000CanLII 22516 (ON SC), [2000] O.J. No. 2574 (SCJ); Hanson v. Hanson , 1999 CanLII6307 (BC SC), [2000] W.D.F.L. 119, [1999] B.C.J. No. 2532 (BC SC); Trottier v.

Prud’homme , 2012 ONCJ 641 (OCJ); Thompson v. Gilchrist, 2012 ONSC 4137(SCJ); Aboagye v. Sakyi, 2012 ONCJ 56 (OCJ).

706. If a court finds a payor is intentionally underemployed or unemployed, the courtcan impute such amount of income to the parent as it considers appropriate in the

circumstances. Courts have a significant degree of discretion when imputingincome. Menegaldo v. Menegaldo, 2012 ONSC 2915 (SCJ).707. But the court cannot arbitrarily allocate an imputed income. There must be a

rational basis for the amount selected and it must be grounded in the evidence. Drygala (supra).

708. When imputing income based on intentional under-employment or

unemployment, a court must consider what is reasonable in the circumstances. Beck v. Beckett, 2011 ONCA 559 (C.A.).

709. Imputation of income on the basis of intentional under-employment orunemployment requires a consideration of such factors as the age, education, experience,skills and health of the person to whom income will be imputed, as well as the

availability of job opportunities: D.D. v. H.D., 2015 ONCA 409 (C.A.); Drygala (supra).710.

The court must consider the amount of income the party could earn if he or she

worked to capacity. Lawson v. Lawson, 2006 CanLII 26573 (C.A.). 711. There is no need to find a specific intent to evade child support obligations before

income is imputed. The payor is intentionally under-employed if he or she chooses to

earn less than what he or she is capable of earning. The court must look at whether theact is voluntary and reasonable. Drygala (supra); Gonzalez v. Garcia, 2015 ONCJ 146

(OCJ)712. The absence of a reasonable job search will also usually leave the court with no

choice but to find that the payor is intentionally under-employed or unemployed.

Filippetto v. Timpano, 2008 CanLII 3962 [2008] O.J. No. 417, (SCJ); Gonzalez v.Garcia (supra).

713.

Parents can take jobs which generate less money as long as the decision isreasonable. But a support payor cannot select a job merely because it suits his or her purposes. When an employment decision results in a significant reduction of child

support, it needs to be justified in a compelling way. Riel v. Holland, 2003 CanLII 3433(ON CA), [2003] O.J. No. 3901 (C.A.); Rilli (supra); G.T.B. v. Z.B.B., 2014 ONCJ 382

(OCJ).





http://www.canlii.org/en/bc/bcsc/doc/1999/1999canlii6307/1999canlii6307.html


















Page: 192

714. Income may be imputed where there is an obvious motive to avoid support; wherea parent is simply lazy or self-centred; where a parent is content or resigned to continue

to receive minimal income because he or she has been able to reduce living expenses; andwhere a parent elects to languish in underemployment because his or her needs are being

otherwise met by receiving support from another family member or a new

partner. Tillmanns (supra); Stewart (supra).715. All of these principles have a common theme: reasonableness. Parents are

required to act responsibly when making financial decisions that may affect the level ofchild support available. They must not arrange their financial affairs so as to prefer their

own interests over those of their children. Tillmanns (supra); Stewart (supra).716. I find that this is an appropriate case to impute income to the Respondent.

a. By her own evidence, she is a very intelligent, talented, well-educated person withan excellent employment history and marketable skills.

b. There is no doubt that she came to be fully dependent on the Applicant, directly asa result of her decision not to return to the workforce after her involuntary layoff

in June 2009.c. Despite the Applicant’s vague evidence that he didn’t want her to stay out of theworkforce, the reality is that both parties acquiesced to this arrangement – and as

a police officer commuting to another city for shiftwork, the Applicant realizedcertain advantages having a stay-at-home spouse for their young child.

d. As of the date of separation in June 2011 she was unemployed with no immediate

job prospects, and ongoing household and custodial responsibilities.e. I accept that it was probably reasonable that the Respondent deferred any

consideration of returning to the workforce for perhaps the first year afterseparation.

f. As previously noted, it is clear that around the end of August 2012 the

Respondent had a dramatically negative reaction to her discovery that theApplicant had entered into a relationship with another woman. It follows that

until the summer of 2012 there was some understandable uncertainty or confusionin the Respondent’s mind about whether reconciliation might occur. Dependentspouses always need a certain amount of time after separation to size up their

situation and start exploring financial or employment options.g. The Respondent found employment in January 2013 – only a few months after it

became clear to her the marriage was definitely over. Again, I regard the timing of the Respondent’s job-search efforts as reasonably diligent.

717. I conclude however that since January 2013 the Respondent has beenintentionally under-employed.

a. She had no difficulty finding the same type of work she held before. Work she issuited to.

b. By her own admission she only sought out part-time employment.c. She has never investigated or looked for anything more than half-time hours,

either with this employer or anyone else.



Page: 193

d. She has never looked into the possibility of generating a higher income, evenworking less than full-time hours.

e. She has rejected full-time employment outright.f. This is one of those rare cases where the support claimant has candidly stated to

the court: “I know I could work more and generate more income, but I don’t want

to.”

718. This finding of intentional under-employment satisfies the first part of the three- part test set out in Drygala.

719. The second question: Is her under-employment required by virtue of the needs ofthe child of the marriage? The Respondent says yes. I say no.

a. Again, some context is required. b. Paige was four years old when the parties separated in June 2011. Not yet even

into part-time junior kindergarten. At that point mother and daughter were usedto being with one another on a full-time basis (although Paige had previously

gone to both day care and pre-school).c. It is arguable that for that first year following separation, the Respondent feltPaige needed her home on a full-time basis.

d. But as stated, by September 2012 everything was different.e. Paige was in full-time school.f. There was before-and-after-school daycare available at Guy Brown to facilitate

the Respondent’s return to the workforce. g. The Respondent made the right decision finding a job in January 2013.

h. There is simply no justification for her decision to seek only part-timeemployment, when full-time employment would most likely have been available.

720. The Respondent says Paige needs her to be constantly available. But that self-serving perception is really part of the sad pathology of this case.

a. Mother and daughter love one another. Just as father and daughter love oneanother.

b. But Paige is not a special needs child. She is not inseparable from either parent.c. And she is now eight years old. Old enough, mature enough, and well-balanced

enough to understand that mommy has to work, just as daddy has to work.d. While the Respondent may be obsessed with Paige, that obsession is not

reciprocated. Nor should it be encouraged.

e. And while it is nice, from a child’s perspective, to have a parent always availablewhen school is not in session – that’s a luxury few modern families (let alone

single parents) can afford.f. I heard no evidence whatsoever which would suggest that the Respondent’s

decision to work less than full-time hours is connected to any reasonable needs of

the child.g. Not to be forgotten: The Respondent’s sense of single-handed parental

responsibility is entirely self-created. This long trial has been primarily about the



Page: 194

fact that the Respondent insists on doing everything in Paige’s life. She wants theApplicant involved as little as possible.

h. It’s hard to insist “I want to do everything” and then complain “Look ateverything I have to do.”

i. Paige has two parents. They can share parental responsibilities. And they can

both hold full-time jobs.

721. Alternatively, the Respondent argues she can’t work more hours because shewants to be available for Paige full-time.

a. That may be her preference. b. It’s likely the preference of many parents who wish they could stay home with

their children if they could afford to.c. But indulging that preference is inconsistent with the Respondent’s parental

responsibility to make a reasonable financial contribution toward her child, inaccordance with her means.

d. And turning down reasonable, available, well-paying employment runs counter tosome of the fundamental responsibilities of a spousal support claimant.

722. The final part of the Drygala analysis requires the court to determine whether toexercise its discretion to impute income, and if so in what amount.

a. I have no difficulty concluding that income should be imputed. Both in relationto child support and spousal support.

b. Even without this financially crippling trial, these parties were just getting by.c. They have been trying to maintain a relatively nice lifestyle in suburbia, but I saw

no sign of waste or largesse in either budget.

d. As separated spouses – connected by child and spousal support obligations – financial reality simply requires that both of them maximize their earning

capacity.

723. As for the amount of income to be imputed, I rely on the Respondent’s own

evidence:

a. She is basically working half-time. This will generate about $30,000.00 income. b. If she works full-time, it will generate about $60,000.00 income.c. She hasn’t sought out more hours or full-time work. But she acknowledged it is

likely available. Indeed, when advocating for a Friday transition day in a weekabout schedule, she said her employment opportunities would be maximized if

she were to be available on a predictable Monday to Friday basis. She said potential travel assignments at her workplace often entail Monday to Friday postings.

d. She’s had four and a half years since separation. More than three years since sheknew for sure that there was no possibility of reconciliation, so she’d better start

making a life on her own.



Page: 195

e. The Respondent has been getting child and spousal support all this time (initiallywithout an order and without tax liability). There is no claim for any retroactive

adjustment, so I need not dwell on the exact timetable by which the Respondent’sincome should have increased.

f. Even if she was allowed a period of time to transition from complete

unemployment to full-time work, she has now had more than enough time to getthere.

g. I reject the Respondent’s argument that her income unavoidably went down this past year because of all the time she spent preparing for this 36 day trial.

Speaking plainly, the volumes of time-consuming material she prepared didn’thelp her case.

724. I find that all support issues should be determined based upon the Respondenthaving an imputed income of $60,000.00 commencing January 1, 2016.

725. The determination of the Respondent’s income is an integral part of the analysisof her claim for spousal support. As stated, the Applicant acknowledges entitlement.

Only quantum and duration are in dispute.726. As set out in section 15.2(6) of the Divorce Act, a spousal support determinationshould, among other things:

(a) recognize any economic advantages or disadvantages to the spousesarising from the marriage or its breakdown;

(b) apportion between the spouses any financial consequences arisingfrom the care of any child of the marriage over and above any

obligation for the support of any child of the marriage;(c) relieve any economic hardship of the spouses arising from the

breakdown of the marriage; and

(d) in so far as practicable, promote the economic self-sufficiency ofeach spouse within a reasonable period of time.

727. No one objective is of overriding importance in all cases. Moge v. Moge, [1992]3 S.C.R. 813; Bracklow v. Bracklow, [1999] 1 S.C.R. 420. All factors must be

considered in light of the objectives. The weight to be given to each objective will varyfrom case to case.

728. There are three conceptual models upon which entitlement to spousal support mayarise:

a. Compensatory support. This primarily relates to the first two objectives of theAct. It focusses on the advantages and disadvantages flowing from the

marriage or its breakdown. Moge (supra). b. Non-compensatory support. This primarily relates to the third and fourth

objectives. It focusses on need. Bracklow (supra).

c. Contractual Support.

729. The third basis is not relevant here.



Page: 196

730. The court is not required to select and apply only one conceptual model ofentitlement over the other. In many cases, entitlement may be established on more than

one ground. Chutter v Chutter , 2008 BCCA 507 (CanLII). 731. The application of these principles makes the determination of spousal support

highly individual and discretionary. Bracklow (supra). The Divorce Act endorses no

single theory of spousal support and must retain flexibility to allow judges to respondappropriately to the diverse forms that marital relationships can take.

732. The purpose of compensatory support is to share the economic advantages anddisadvantages that accrued because of the marriage and its subsequent breakdown. To

redress the economic consequences of the marriage on the parties. Moge (supra).733. A spouse confers an economic advantage on his or her partner if he or she

assumes responsibility that the other spouse would otherwise assume, or directly

contributes to the partner's career or provides a career enhancement opportunity: Caratunv. Caratun , (1992), 42 R.F.L. (3d) 113 (C.A.),

734. In many cases a spouse suffers economic hardship on an ongoing basis becausehis or her childcare responsibilities limit past and/or future employment or lifestyle

options. Moge (supra). Where there are dependent children, the primary rationale forspousal support is usually compensatory. Graves v. Defelice, 2015 ONCJ 162.735. As outlined in Moge, supra, the principle underlying the compensatory model of

spousal support is, in part, that a spouse who foregoes educational and employmentopportunities to care for the children and maintain the household may very well enhancethe earning potential of the other spouse in pursuing his or her economic goals

736. A court will presume economic disadvantage following the breakdown of a long-term traditional marriage: Tremblay v. Tremblay , (1999), 1 R.F.L. (5th) 177 (C.A.)

737. While in some cases the division of property may address all or most of theobjectives of spousal support and thereby eliminate or reduce the need for such an award,that is not necessarily the case, particularly where the conceptual basis for support is

predominantly compensatory. Chutter (supra); Underwood v. Underwood , (1995), 11R.F.L. (4th) 361 (Ont. Div. Ct.).

738. “Need is not measured solely to ensure a subsistence existence, but rather should be assessed through the lens of viewing marriage as an economic partnership”. Gray v.Gray, 2014 ONCA 659 (Ont. C.A.).

739. In determining need, we are guided by the principle that the recipient spouse isentitled to maintain the standard of living that (s)he was accustomed to just prior to the

time of separation. Marinangeli v. Marinangeli, (2003) 66 O.R. (3d) 40 (C.A.).740. The Respondent’s entitlement to spousal support is based on both compensatory

and non-compensatory principles.

a. Compensatory because the Respondent interrupted her career path andemployment history for child and family responsibilities. Her assumption of rolesand responsibilities facilitated the progression of the Applicant’s employment,which included a higher and more secure salary; pension and other benefits; andseniority.

b. Non-compensatory because as of the date of separation the Respondent wasunemployed with no source of income. When the relationship ended she was

dependent on the Applicant and in need of ongoing support. Her employment

http://www.canlii.org/en/bc/bcca/doc/2008/2008bcca507/2008bcca507.html



http://www.canlii.org/en/ca/laws/stat/rsc-1985-c-3-2nd-supp/latest/rsc-1985-c-3-2nd-supp.html



















Page: 197

options and ability to re-gain self-sufficiency have been limited by pre and post-separation responsibilities.

741. In Fisher v. Fisher, (2008), 2008 ONCA 11 (CanLII), 88 O.R. (3d) 241, the Courtof Appeal noted that, while a judge may depart from the Spousal Support Advisory

Guidelines (SSAG’s), he or she should provide reasons for doing so.742.

The SSAG’s are neither legislated, nor binding. However they are a useful toolwith which to measure the quantum and duration of spousal support. Gray (supra).

743. In this case, I see no reason to depart from the Spousal Support AdvisoryGuidelines.

744. The Guidelines use the length of the relationship to categorize cohabitation:

a. A short-term cohabitation is one of less than five years;

b. A medium-term cohabitation is from five to nineteen years;c. A long-term cohabitation is twenty years or longer.

745. Where entitlement is established, short-term marriages will usually result inlimited-term support, designed to enable the recipient to either achieve self-sufficiency or

adjust to a lower standard of living.746. In contrast, in long term marriages spousal support awards should generally be

indefinite.

a. “Indefinite” support does not necessarily mean “permanent” support. Or even

support that will continue indefinitely at the level set by the Guideline formula.Rather, “indefinite” support means ongoing support which will be subject to

variation in the event of a material change in circumstances. Reisman v. Reisman, 2014 ONCA 109

b. According to Moge (supra) limited term support should be rarely awarded in

marriages of long duration. Where limited-term support is awarded after a longterm marriage, particularly one with children, the term must be long enough to

satisfy the objectives of the Divorce Act . Racco v Racco, 2014 ONCA 330(C.A.).

747. But at 14 years of combined unmarried and married cohabitation, theRespondent’s claim for support must be considered within the context of a medium term

relationship.

a. That places this case in a difficult middle category where the court must carefully

assess all of the factors in determining whether support is to be time-limited orindefinite.

b. The Guidelines are a complete package. Quantum is related to duration, andquantum and duration are related to floors and ceilings and exceptions under theGuidelines. Djekic v. Zai, 2015 ONCA 25 (C.A.).

c. The Guidelines say that a medium-term marriage becomes a long-term one(giving rise to indefinite support) if the parties' years of marriage, plus the age of





Page: 199

753. Restructuring under the Guidelines can be used in at least three different ways:

a. To front-end load awards by increasing the amount beyond the formula's rangefor shorter duration;

b. To extend duration beyond the formulas range by lowering the monthly amount;

andc. To formulate a lump sum payment by combining amount and duration. (Neither

party proposed a lump sum payment in this case.)

754. Taking all of these considerations into account, I believe a fair approach is toselect a level of support toward the higher end of the Guideline range, for a significantadditional period – but on a time-limited basis.

755. For all of these reasons, I find that a spousal support order in the sum of $700.00 per month for maximum of five years commencing January 1, 2016 would fairly balance

all of the factors and priorities to be considered.

a. The amount is between the mid and high number set out by the Guidelines. b. The duration would mean the Respondent will have received spousal support for atotal of nine and a half years from the date of separation.

756. This order may still leave the parties with a disparity of incomes after spousalsupport ends.

a. But disparity of income in itself does not create an entitlement to spousal support.

Otherwise spousal support cases would simply be decided based on ability to pay. b. The order is intended to provide the Respondent with a significant period of

transitional support, to compensate for the breakdown of the relationship and the

adjustment in lifestyle.

757. I am unable to pre-determine all of the support implications if access changes inSeptember.

a. If equal time sharing ends, the set-off approach to child support may have to bereplaced with full guideline support payable by the Respondent.

b. The Respondent’s imputed income of $60,000.00 wouldn’t change. c. But any change to child support would also likely impact on quantum spousal

support.

d. These are also issues that can be dealt with by motion if necessary.e. But hopefully parenting dynamics will improve and equal time will be able to

continue indefinitely.f. And even if support has to be changed, with the income levels now ascertained,

hopefully the parties will be able to utilize the Child Support Guidelines and

Spousal Support Advisory Guidelines to work out some reasonable numbers.



Page: 200

OTHER FINANCIAL ADJUSTMENTS

758. The Respondent claimed $1,920.64 in retroactive adjustments for insurance and

car repairs the Applicant didn’t pay; and as reimbursement for fines and toll chargeswhich he incurred but she had to pay to renew registration of her vehicle.

a. This was a reduced amount. The Respondent initially claimed about $3,000.00,

but the evidence eventually confirmed some of her claims were for expenseswhich arose prior to separation.

b. The Applicant admitted he owes perhaps $500.00 mainly for the fines.

c. There was confusion about who paid what insurance, and whether certain chequeswere cashed.

d. There was added confusion because for a period after separation they each drovethe vehicle registered in the other party’s name. There were disagreements about

who should have been responsible for repairs.e. The onus is on the Respondent to prove these claims.f. She has not established entitlement to reimbursement for some car repairs. But

the Applicant’s estimate of his contribution toward some insurance expenses islow.

g. I find that a reasonable compromise figure is $1,200.00 to be reimbursed by the

Applicant.

CONCLUDING COMMENTS

759. This was the worst type of custody case.

a. The evidence focussed on the bad rather than the good.

b. On who shouldn’t get custody, rather than who should .c. We spent 36 days debating which parent we have to guard against.d. Rather than focussing on how we protect and reassure a little girl who didn’t want

her parents to be doing any of this.e. That could have been a brief, pleasant and productive discussion.

760. There’s no doubt the Respondent will be deeply disappointed with the result. 761. But I’m disappointed too. As judges, we all are.

762. Somehow, no matter how hard we try, we don’t seem to be getting the messageout to separating parents:

a. Nasty doesn’t work. b. Withholding the child doesn’t work.

c. Sarcastic e-mails don’t work. d. Bad-mouthing the other parent doesn’t work.

e. Twisting the child’s life to create a new status quo….doesn’t work.



Page: 201

f. Selfish decisions which may be emotionally satisfying in the short term, never look good in a courtroom.

763. In the classic Christmas movie “It’s a Wonderful Life” there’s an extended

fantasy sequence where Jimmy Stewart anguishes over had badly things would have

turned out if he’d made a reckless, impulsive decision. 764. Perhaps family court should fund an instructional movie about this type of

custody battle. “It’s a Terrible Life.” There could be a fantasy sequence about howhappy a child might have been. If only….

THE ORDER

765. The divorce application shall be severed to proceed by affidavit when the partiesare ready.

766. The Applicant shall have sole custody of the child Paige Emily Jackson born June16, 2007.

767.

The child shall not be referred to, formally or informally, by any other name. Norshall any other name be added to any registration documents relating to the child.768. The Applicant shall have sole and final decision making authority with respect to

all issues in the child’s life, with the exception that the Respondent shall be allowed tohave the child attend the Respondent’s church during times when the child wouldotherwise be with the Respondent. The Applicant shall notify the Respondent of all

decisions as soon as they are made.769. The Applicant shall have the authority to select the child’s school and educational

program.770. The Applicant shall have the authority to select any professionals or service

providers to be involved in the child’s life including her doctor, dentist, and any

counsellors, tutors, etc. He shall have sole authority to determine the need for such professional involvement. Except for emergency medical treatment, the Respondent shall

not be permitted to take the child to any other health care provider or counsellor, withoutthe consent of the Applicant.

771. If any counselling is arranged for Paige, both parents shall be equally involved in

the process (although not together), subject to any determination by the counsellor.772. The Applicant shall keep the Respondent informed in writing as to the particulars

of any professionals, educational institutions, or recreational associations involved in thechild’s life.

773. The Applicant shall notify the Respondent in writing prior to any medical or

professional appointment for Paige (as soon as the appointment is booked) and providefull particulars immediately after the child has attended for the appointment.

774.

Both parties shall be entitled to receive copies of all medical, dental, school andother reports related to the child. Both parties shall be entitled to communicate directlywith the child's teachers, caregivers, physicians, dentists, and other health care providers

concerning the general well-being of the child. Both parties shall be listed on alldocuments pertaining to the child and shall be entitled to attend any of the child's

scheduled appointments. Both parties shall execute consents or authorizations to all



Page: 202

persons, including teachers, doctors, dentists and others involved with the child to speakfully and openly with both parties.

775. The Applicant shall consult with the Respondent prior to implementing any non-emergency decisions in the child’s life. The consultation shall occur as soon as the

Applicant becomes aware of the issue and if possible at least 30 days prior to the date on

which a decision has to be made. The Respondent shall be entitled to make inquiries and provide feedback and suggestions. However, after consultation has occurred, the

Applicant shall have the final decision making authority.776. Both parents shall be listed as contact persons with all medical, educational,

recreational and social agencies involved with Paige.777. In the event of a serious illness, accident or other misfortune involving the child,

the party then having the child in their care shall immediately and promptly notify the

other party.778. The Applicant and the Respondent shall each have authority to arrange

emergency medical treatment for the child. If such an emergency situation arises, the party with care of Paige shall make all reasonable efforts to contact the other party

immediately, to allow that party to attend the emergency medical treatment facility.779. During any period of illness by Paige or recovery, each party shall have generousand reasonable contact with the child, consistent with the conditions of this order and the

welfare and happiness of the child.780. If the child is sick, the transition from one parent's care to the other parent's care is

to proceed unless the child is too sick to travel between the parties' homes as per the

determination of the child's doctor.781. The parties shall keep one another informed of their residential telephone

numbers, their residential address, and their e-mail address.782. The Applicant shall provide the Respondent with 90 days advance notice of any

intention to relocate the ordinary residence of the child outside of the Region of Halton.

783. The parties shall communicate primarily by way of e-mail. For anything of a timesensitive or urgent nature, the parties shall call or text and a response shall be provided as

soon as the parent receives that communication. Each party shall check their e-mailaccount at least once a day. Each party shall respond to e-mailed inquiries within 24hours of receipt (except during vacations). E-mail communications shall be brief, civil

and relate only to parenting or financial issues. Neither party shall allow the child to seeany e-mails exchanged between the parties.

784. Insofar as Paige has been negatively impacted by the high level of conflict between the parties, both parties shall ensure that Paige is shielded from any negativity,conflict, or excessive displays of emotion by the parent.

785. Neither party shall allow any person to make negative or disparaging comments toPaige about the other parent or members of their family or household. They shall at all

times encourage the child to have a positive and respectful relationship with the other parent.

786. The parents shall not communicate about issues or non-emergency arrangements

when Paige is present or nearby. They shall not convey messages or documents usingPaige as an intermediary. They shall not encourage the child to make requests or

proposals on their behalf.



Page: 203

787. The parties shall not question Paige (or comment to the child) about the other parent's personal life and activities.

788. Neither party shall video or audio record the child for the purpose of recordingstatements or discussions about the other parent, or parenting issues.

789. Subject to specific provisions for vacations or special occasions, the Respondent

shall have access to Paige on the following core schedule:

a. Commencing immediately and continuing until September 1, 2016, theRespondent shall have access to Paige on alternate weeks, with the transition to

take place at school at the end of the school day on Friday. When school is not insession, the transition shall take place on Friday at 5 p.m., at a location selected by the Applicant. The location may be either a public setting or a child care

facility. Any cost associated with the latter shall be paid two-thirds by theApplicant and one-third by the Respondent.

b. After September 1, 2016, when school is in session the Respondent shall haveaccess on alternate weekends from Friday at the end of the school day until

Monday morning before school, with transitions to occur at school. If school isnot in session, exchanges shall be Friday at 5 p.m. and Monday at 9 a.m., with theexchange location to be determined as in the preceding paragraph. Subject to

some other specific holiday provision set out herein, if a statutory holiday or professional development day falls on the Friday or Monday adjacent to theRespondent’s weekend, her weekend shall be extended by 24 hours. In addition,

the Respondent shall have a weekly visit from Wednesday at the end of school (or5 p.m. if school is not in session) until Thursday at the beginning of school (or 9

a.m. if school is not in session). When school is not in session the week-aboutschedule shall continue.

c. There shall be a presumption that the aforementioned September 1, 2016

modification of access shall be implemented.d. However, the Respondent may seek to rebut that presumption and request a

continuation of the week-about schedule beyond September 1, 2016 if she cansatisfy the court about two issues:

i. That Paige would not be subject to an unreasonably long daily commute toand from school (depending on the location of her school in relation to the

Respondent’s residence at the time). ii. That the Respondent has been able to demonstrate that she is no longer

exposing Paige to excessive emotionality, or any negativism toward the

Applicant and members of his household; and that in fact the Respondentis promoting a positive, trusting and respectful relationship between Paige

and the Applicant.

e. Similarly, the Applicant may seek to rebut the presumed September 1, 2016

access modification, if he can establish that there has been no improvement in theRespondent’s negativism toward him, and that there has been no improvement in

the child’s emotional health and stress level.



Page: 204

f. If either party seeks to rebut the presumed September 1, 2016 access modificationand propose a different schedule, they shall notify the other party in writing of

their position. The issue shall be determined by way of motion before me.Before any affidavits are served, counsel for the parties should arrange a 60

minute appearance before me, with the parties present, to organize what materials

are to be filed and how the matter is to proceed. Both parties should presume that professional evidence will be required. As well, any emergencies may be

returned to my attention by way of motion on short notice.

790. The core access schedule shall be subject to the following specific provisions:

a. At Christmas, in odd numbered years the Respondent shall have Paige from

December 24 at 9:00 a.m. to December 25 at 2 p.m. and the Applicant shall havethe child from December 25 at 2:00 p.m. until December 26 at 7:00 p.m. In even

numbered years this shall be reversed. b. At Easter, in odd numbered years the Respondent shall have Paige from the

Thursday after school until Saturday 7:00 p.m. and the Applicant shall have thechild from Saturday 7:00 p.m. until Tuesday before school. In even numberedyears this shall be reversed.

c. In odd numbered years the Respondent shall have the entire March school breakfrom Friday after school until the Monday morning when school resumes. Ineven numbered years this shall be reversed. However, if this results in a party

missing a full week that they would otherwise have had with Paige, that partyshall have an overnight visit on the Thursday before and the Tuesday after the

March break, with exchanges at school.d. Paige shall always be with the Respondent on Mother’s Day, and with the

Applicant on Father’s Day, from 9:00 a.m. until 7:00 p.m.

e. On Paige’s birthday the child shall be with the Respondent in odd years and withthe Applicant in even years, including an overnight into the following morning.

The other parent shall have the child overnight on the previous day.f. Each party shall be entitled to have the child with them on their own birthday,

unless the child is on an out of town vacation with the other parent pursuant to the

provisions of this order.g. At Halloween, the child shall spend odd numbered years with the Respondent and

even numbered years with the Applicant, including an overnight into thefollowing morning.

h. At Thanksgiving, in odd numbered years the child shall be with the Respondent

from Sunday 10:00 a.m. until Monday 10:00 a.m. and with the Applicant fromMonday 10 a.m. until Tuesday beginning of school. In even numbered years this

shall be reversed.

791. During any access exchange which does not occur at Paige’s school or at a

children’s facility, the parties shall have minimal interaction with o ne another; they shallnot use the occasion to communicate about parenting issues; they shall facilitate the

exchange quickly and in a positive manner; they shall not photograph or record one



Page: 205

another or the child; and during the period following the access exchange they shallrespect one another’s privacy and avoid contact with one another.

792. Each party shall encourage and facilitate the child to initiate regular contact withthe other parent, by telephone or electronically. As a minimum (and not including

vacations spent away from home) if one of the parties will have Paige in their care for

two or more overnights in a row, that parent shall ensure that Paige initiates a telephonecall to the other parent on the evening of every second overnight at 7:00 p.m.

793. The parent who had care of Paige prior to the commencement of a school dayshall continue to have authority over the child until the end of the school day. This shall

determine which parent should first be contacted by the school, in the event of an issuearising at school on that day.

794. Except for purposes of morning drop-off or afternoon pick-up, neither party shall

attend at the school without checking in at the school office. Neither party shall attend atthe school at a time when the other parent is known to be dropping-off or picking-up the

child. Both parties may attend school events open to the public. But the parent, whowould otherwise have care of the child at the time, shall continue to have responsibility

for the child during the school event. If the Applicant is personally unavailable, otheradult members of his family and household may assist with transporting Paige.795. The parties shall share selection of extra-curricular activities for Paige in the

following manner.

a. Each year they will take turns selecting activities.

b. In even numbered years the Applicant shall select first, and make a selection byJanuary 30th. The Respondent shall select second by March 31. The Applicant

third by May 31. And the Respondent fourth by July 31. If a party misses adeadline for selection of an activity, the other party may proceed with theirselection (but unless the parties agree otherwise, neither party shall be entitled to

select more than two activities per year).c. In odd numbered years the pattern shall be reversed.

d. Selections may be for an activity which takes place during any portion of the year.A selection may not overlap or conflict with the schedule for a previously selectedactivity.

e. The party selecting the activity shall pay two-thirds of the cost; the other partyshall pay one-third.

f. Until September 1, 2016 the activities shall be selected in the Region of Halton orthe area of Hamilton known as Waterdown. After September 1, 2016 theactivities shall be selected in the Region of Halton.

g. Only the parent who has physical care of the child during the extracurricularactivity shall attend the event. However, for school or religious events, playoffs

or final competitions and presentations, both parents may attend. The parent whohas Paige in their physical care shall be responsible for preparation of the child forthe activity.

h. Both parents shall make their best efforts to ensure that the child attends mostactivity commitments during the time the child is in their care. If the parent has

difficulty arranging transportation in relation to the event, but does not otherwise



Page: 206

have plans involving the child, that parent shall offer the other parent theopportunity to transport the child to the activity.

i. These terms set out a basic framework for extracurricular activities. The partiesmay agree to make other arrangements.

j. Apart from these provisions, neither party shall make any scheduling

commitments for the child which encroaches on the other party’s time with thechild.

796. Paige may travel within Canada for vacation purposes with either parent, which

travel will not require the consent of the other party. However, the parents shall notifyone another in advance, in writing, whenever Paige will be sleeping away from that party's ordinary residence for more than two nights in a row.

797. Either party proposing international travel involving the child shall provide theother party with full particulars at least 45 days prior to the intended travel, including the

exact itinerary, destinations, accommodations, and methods of communication.798. The parent travelling with the child shall ensure that Paige initiates a telephone

call (or Skype call) to the non-travelling parent at a pre-arranged time, at least once everythree days of the trip.799. If either parent plans a vacation without Paige, that parent will give the other

parent a telephone number where he or she can be reached in case of emergency or ifPaige wishes to contact the travelling parent.

800. Both parties shall cooperate in obtaining a passport and any other documents

required by Paige.801. The parties shall provide one another with copies of all relevant child related

documents such as the OHIP card, birth certificate, SIN documents, etc. In evennumbered years the Applicant shall retain physical possession of the original documents.In odd numbered years the Respondent shall retain physical possession of the original

documents. However, any party travelling out of Canada with the child (as provided forherein) shall be entitled to have the child's original documents for the duration of the trip.

802. Neither parent shall make any permanent or long-lasting change to the child’s physical appearance (such as piercings; tattoos; hair dying) without the prior writtenconsent of the other parent. If the parties cannot agree in advance with respect to

ordinary cosmetic and grooming issues such as haircuts, in even numbered years theseissues shall be determined by the Applicant, and in odd numbered years these shall be

determined by the Respondent.803. To minimize what Paige must travel with, both parents shall have sufficient

clothing for her and these items shall not travel back and forth. However, outer wear such

as winter coats and boots shall travel back and forth between households.804. Paige shall be allowed to take her preferred belongings between households.

805.

There shall be a determination that the Applicant and the Respondent are jointlythe beneficial owners of the former matrimonial home at 37 Mill Street South,Waterdown, Ontario. If she so desires, the Respondent shall have 30 days from the date

of this order to make a proposal to buy out the Applicant’s interest in the property. If the parties do not reach such an agreement, the property shall be listed for sale and (subject

to any other financial adjustments relating to this order) net proceeds of sale shall be



Page: 207

divided equally between the parties. The Applicant shall immediately be entitled toregister documentation in relation to this property, confirming that the property is a

matrimonial home and/or confirming the provisions of this order.806. The Applicant shall pay to the Respondent the sum of $7,849.17 as an

equalization of net family property, to be paid at the same time as disposition of the

matrimonial home. This includes consideration of the Applicant’s employment pension.The Respondent shall have no further entitlement in relation to the pension.

807. The Applicant shall pay to the Respondent the sum of $1,200.00 as an adjustmentfor insurance and fines, to be paid at the same time as disposition of the matrimonial

home.808. Any home videos or photographs of Paige up to the date of separation shall be

divided equally between the parties, such that each party shall be entitled to one complete

set of all videos and photographs. Each party shall be entitled to an equal number oforiginals and copies. The cost of making a second set shall be divided equally between

the parties. These arrangements are to be completed by June 30, 2016.809. For purposes of determining child and spousal support, the Applicant’s income is

determined as $100,350.00 and the Respondent shall have income imputed to her in thesum of $60,000.00 per year, effective January 1, 2016.810. Commencing January 1, 2016 the Applicant shall pay to the Respondent net child

support in the sum of $324.00 per month, based upon a week about timesharing schedule.Child support shall be subject to variation if the week about schedule changes.

811. Commencing January 1, 2016 the Applicant shall pay to the Respondent spousal

support in the sum of $700.00 per month, with entitlement to spousal support not tocontinue beyond December 31, 2020.

812. The parties shall provide one another with copies of their tax returns (as filed) andnotices of assessment (as received) by June 30th annually.

813. There shall be no retroactive adjustment of support, nor shall there be any further

division or redistribution of chattels.814.

The Applicant and the Respondent shall both maintain for the child such health

care coverage as may be available to them through employment, and they shall providefull particulars of any coverage available or in place.

815. The Applicant shall maintain for the Respondent such health care coverage as

may be available through his employment for so long as he is required to pay spousalsupport.

816. Both parties shall designate the child Paige as the sole beneficiary of anyinsurance on their lives for so long as she remains a dependent child.

817. The Applicant’s obligation to pay spousal support as set out herein shall remain a

charge binding upon his estate.818. The parties shall provide one another with written confirmation of compliance

with the health care coverage and life insurance provisions herein, annually by June 30 th .819. I will remain seized of any issues arising in relation to Paige or support for a

period of three years.

820. Support Deduction Order to issue.821. If any issues or clarifications other than costs need to be addressed, counsel

should arrange a time to see me in court.



Page: 208

822. If only costs remain to be addressed, counsel should file written submissions onthe following timelines:

a. The party seeking costs shall serve and file submissions within 25 days. (If the

parties cannot agree who goes first, then the Applicant shall go first.)

b. Responding submissions shall be served and filed within 15 days thereafter.c. Any reply submissions shall be served and filed within 10 days thereafter.

d. Counsel may not agree among themselves to extend those timelines.

Pazaratz, J.

Released: January 5, 2016



CITATION: Jackson v. Mayerle, 2016 ONSC 72

COURT FILE NO.: F67/13

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

DAVIS JACKSON

Applicant

-and-



half million custody battle

Documents