Half Million Custody Battle

CITATION: Jackson v.
Mayerle, 2016 ONSC 72

COURT FILE NO.: F67/13
DATE: 2016-01-05
SUPERIOR COURT OF JUSTICE

BETWEEN:
DAVIS JACKSON
Applicant
and
EILEEN MAYERLE
Respondent
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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 cant get along or communicate with one another. Not at all.
2. Not such a tough set of facts, really. Nothing we dont 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 their
daughters future -- for a needlessly destructive three-year court battle?
6. For the sake of the child?
2016 ONSC 72 (CanLII)
ONTARIO
Page: 2
7. Not a chance.
8. Custody trials are supposed to be about children. But 36 days that speaks volumes
about the parents.
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.
b.
c.
d.
The Applicant and the Respondent met in 1993 at their place of employment.
At the time the Respondent was still married.
They started dating in 1995.
They started living together in 1997. The Respondent had been renting the upper
level of a house. The Applicant moved in.
e. In 1998 they bought a house in Waterdown which eventually became their
matrimonial 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 mothers residence leaving Paige primarily in the Respondents care.
j. The Applicant now lives in Oakville with his fianc. The Respondent and Paige
still live in the former matrimonial home.
11. The Applicants 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. Hes currently a member of the Emergency Task Force (a S.W.A.T. team).
12. The Respondents 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.
BACKGROUND
d. Between 1988 and 1989 she worked for about a year with a small local knitwear
company.
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 havent gone
to school for. That was just one of them.
g. Between December 1993 and August 1998 she worked at Basic Technologies as a
control detailer. Thats 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 she
obtained a college certificate in electro-technology.
j. In August 1998 the Respondent left Basic Technologies for a more senior position
at 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 Engage
Automation 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 her
own 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-time
employment 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 also
live with equal time-sharing. But each of them still wants final decision making
authority.
Page: 3
d. Decision making is really what this case is all about. Including decisions about
whether Paige should change schools or programs. And whether the childs name
should be changed to include the Respondents surname.
e. Theres 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, meaning
Paige would spend either eight or five days in a row with each parent, depending
on the Applicants employment shift schedule.
14. The Applicants position on custody basically adopts the recommendations of social
worker Michelle Hayes who prepared a custody assessment pursuant to section 30 of the
Childrens 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 the
following 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 to
make a recommendation that she return to the English speaking stream of
education in the Hamilton-Wentworth District School Board.
c. Timesharing should rotate on a schedule that maximizes time between Paige and
each 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, the
schedule 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 and
return her to school on Tuesday morning. The regular schedule should continue
thereafter. In odd numbered years the schedule should alternate.
h. The parties should alternate the March break each year from the Friday school
concludes 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 up
would then occur one day earlier after school and/or drop off at school would
extend one day further.
Page: 4
j.
k.
l.
m.
n.
o.
p.
q.
r.
The parents should alternate Halloween each year, beginning in even-numbered

years with the Respondent.
The child should spend Mothers Day and Fathers Day with that respective
parent regardless of the access schedule, from 9:00 a.m. until 7:00 p.m.
During the summer months the regular access schedule should continue.
At Christmas, the regular access schedule should prevail, aside from the
celebration of the Christmas Eve, Christmas Day and Boxing Day. In odd
numbered years the Respondent should have December 24 from 9:00 a.m. until
December 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 the
schedule should alternate.
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 the
schedule should attend the school at the exchange time. Any exchanges outside
of the school year should be made at the McDonalds parking lot in Waterdown.
Paiges 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 with
the name Paige Jackson, whether formal or informal documents.
Paige should be allowed to enjoy recreational activities such as swimming, Sparks
and karate. The parents should register Paige in extra-curricular activities that
occur on their own access time. If the activity falls on both parents time, the
activity must be agreed upon. The parties should utilize the Parenting Coordinator 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 playoffs
in 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 the
child for the activity.
The Applicant and the Respondent should engage in individual counselling in
order to gain perspective and make positive parenting changes to overcome all the
identified challenges they each face in parenting Paige.
The child should have open telephone contact with both parents, facilitated and
encouraged 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. Its in the Respondents 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: 5
Page: 6
a. Determination of ownership of the home will affect whether its value is attributed
to one party or shared equally on the net family property statement.
b. The second largest asset is the Applicants employment pension whose value has
been agreed upon. Should a portion of his pension be transferred to the
Respondent 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 evidence
which 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 that
the final court order include provision for sharing such expenses in the future.
The Respondent doubts a formula will help because the parties wont likely be
able 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 Respondents 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 theres no reason the Respondent cant 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 theres a
material change in circumstances. But she admits shes not anticipating any
changes. She has no plans to seek full-time employment perhaps not until Paige
turns 18.
20. Among the minor residual issues, the Respondent seeks $1,920.64 in post-separation
adjustments, 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 the
two dramatically diverging narratives advanced by the parties in relation to parenting
issues.
17. Equalization is also an issue.
Page: 7
a. The early years of the relationship were good. But by the time Paige was born in
June 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 -- by
virtue 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 mothers residence because he didnt want Paige disrupted or disturbed.
e. Between July 2011 and August 2012 the Applicant had regular access on a
flexible schedule, including overnight visits at his mothers 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 the
Applicant had taken Paige for a week-long vacation at his girlfriends cottage.
She also learned the Applicant had moved into his girlfriends home in Oakville.
g. In the Applicants 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 became
dictatorial about how often he could see his daughter and even how he could
retrieve his belongings from the home.
j. The Applicant says Paige was emotionally devastated by the Respondents
spiteful 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 Paiges life. She
refused to allow proper clothing, school work, or necessary information to get to
the Applicants home. At every opportunity she reinforced to the young child a
subtle message that her life would be good at the mothers residence; bad at the
fathers residence. If she spent time with her father she would miss out.
n. The Respondent embarked on a psychological campaign to convince Paige that
mother and daughter were indispensable to one another. She used guilt and
emotional blackmail to pressure the young child to align herself only with the
mother.
o. The Applicant says the child has suffered tremendous emotional distress as a
result of years of manipulation and alienation by the Respondent.
p. He acknowledges Paige loves both parents equally. Ideally, she needs to spend
time with both parents equally.
22. The Applicant fathers theme:
Page: 8
23. Not surprisingly, the Respondents 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 and
different viewpoints on different issues. With the passage of time she realized
the 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 Applicants 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 and
manipulating 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 the
freedom he had apparently wanted. He dropped in and out of Paiges life as much
or as little as he wished. Up to three weeks would go by between visits. The
Applicant 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 hed come to the home, stay overnight, and the three of
them 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 prepared
to either save or end the relationship but she needed clarity from the Applicant.
What did he really want?
q. But the Applicants main concern is that for most of the past four years the
Respondent has abused any control she has had over Paige. She has taken every
possible opportunity to extinguish or marginalize the father from the childs 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.
m. She admits she was surprised at the revelation during the summer of 2012 that he
was 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
girlfriends cottage for a week in August. Paige returned from that vacation quite
confused about daddy suddenly sleeping in bed with another woman. The
Respondent insists her reaction has nothing to do with jealousy. This was simply
no way to introduce a then-five-year-old child to a new partner. It was insensitive
and epitomized the Applicants selfishness and poor parental judgment. Even the
Applicant knew it was wrong, because he had promised the Respondent his
girlfriend wouldnt 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 the
Applicants time or involvement with his daughter.
q. But for the first five years of Paiges life the Respondent did everything. The
Applicant did virtually nothing. Thats what Paige was used to. Paige was
thriving with that arrangement.
r. If for whatever reason the Applicant suddenly wanted to be a father, the
Respondent was fine with that. But he couldnt just barge in and disrupt patterns
the child was used to.
s. In September 2012 the Applicant insisted everything had to be his way. Right
away. When the Respondent stood up to him for the sake of the child he
vowed that he would take Paige away forever, and that his girlfriend would be her
new mother.
t. The Respondent admits thats when she became less conciliatory. He decided to
get a lawyer involved an act which she found intimidating. So she decided to
let 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 sensitive
child.
v. She questions the Applicants motives and parenting skills. She says the
Applicant had a horrible, abusive childhood. She fears he is now trying to
perpetuate his tragic family legacy by ignoring Paiges emotional needs just
as his own emotional needs were trampled as a child.
w. She says Paige loves the Applicant but often doesnt 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 childs preferences.
y. She denies allegations she misbehaved at her daughters school. The Respondent
feels she was the unsuspecting victim of a smear campaign which turned teachers
and CAS workers against her.
Page: 9
Page: 10
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 Applicants
narrative is more credible and accurate than the Respondents.
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 crossexamination. I will address specific credibility issues as I review the evidence. But
generally:
a. He was a calm, soft spoken and cooperative witness.
b. He remained child-focussed, and periodically became emotional when describing
difficult situations experienced by Paige or significant periods when access was
interrupted.
c. He was a responsive witness and specifically answered each question as it was put
to 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 his
evidence was consistent.
f. On financial issues his evidence was less precise. He openly acknowledged hes
not 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 overstatement. But despite the volume of serious allegations, there was little sign of
fabrication 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 evidence
completely.
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 Guy
Brown Elementary School in Waterdown where Paige attends.
b. She is a French Immersion teacher. Paige is in a French Immersion program.
z. Overall, the Respondent feels everyone is focussing on the negatives. No one is

willing to acknowledge what a wonderful job she is doing.
aa. Im raising a really, really great girl by myself.
c. Lawson was Paiges teacher in senior kindergarten which commenced September

2012 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 Lawsons 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 Respondents request.
f. The Respondent testified that even though Paige was quite comfortable with
Lawson, the Respondent felt Lawson had become too involved in the familys
conflict 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 childs life.
a.
b.
c.
d.
She testified in a quiet, factual, balanced manner.

She had a very good memory.
Her evidence was balanced.
She appeared to go out of her way to be fair to both parents. In her dealings with
them 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 childs situation.
h. Her testimony stood up to scrutiny. None of her evidence was even slightly
undermined in cross-examination.
i. Despite the Respondents allegation that this teacher was taking the Applicants
side, 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 early
childhood educator for 25 years, and was assigned to Paiges 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 Paige
and for the Respondent. Her empathy showed.
g. Her evidence overlapped and was consistent with Lawsons testimony.
Page: 11
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h. And as with Lawson, Miocs evidence stood up completely during crossexamination.
31. Paiges 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 Childrens 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 consistent
with other witnesses.
WITNESS #5 MICHELLE STICKNEY
32. Michelle Stickney was called as a witness by the Applicant. She was Paiges grade two
teacher for the September 2014 to June 2015 school year. She has been teaching at Guy
Brown 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 she
seemed 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 didnt 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.
b.
c.
d.
She has been a school social worker for the past 10 years.
She has bachelor of social work and masters in social work degrees.
At various times she has been assigned to Guy Brown School.
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 Paiges situation.
c. Her evidence was not undermined through cross-examination.
WITNESS #4 PATRYCIA COSENTINO
Page: 13
WITNESS #7 AUDREY HENSEN
a.
b.
c.
d.
e.
Hensen was very, very thorough.

She provided a lot of information about problems Paige was experiencing.
Her evidence was supported by her notes, but she also had a good memory.
She gave precise answers.
She was careful not to accuse either parent or assign blame. She simply laid out
some 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 her
evidence 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 Childrens Aid Society (CAS) employees
called to testify for the Applicant.
a. CAS never initiated a protection file.
b. In December 2013 CAS became involved after receiving a call from Paiges
teacher Cosentino expressing concern about the Respondents interaction with the
child 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 Paiges family. Several times the file was being closed, new
concerns arose, and the file was reopened.
37. Grice was an intake worker assigned to Paiges file between December 2013 and June
2014. 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 observations
concerning Paige and the parents. Subject to some specific concerns about
accuracy, I found that information to be relevant and quite helpful.
b. But the notes of all three workers and the CAS records generally included a
great deal of repetition of hearsay information from teachers or other workers.
35. Audrey Hensen was called as a witness for the Applicant. She was Vice Principal at Guy
Brown for the 2013-2014 school year when Paige was in grade one.
c. Indeed, the file management system at CAS appears to mandate uncritical

repetition of old information through a computer process known as autopopulation. Old comments automatically show up as background information as
new reports are typed. One early piece of erroneous information could get
perpetuatedforever.
d. One of the Respondents 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 was
misbehaving, because they had been told she was misbehaving.
e. As a result, while I am mindful that background information is often relevant to
explain the context in which professionals performed their tasks, with all
witnesses 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 Paiges case in May 2014. Her involvement ended in midAugust 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 quite
unfairly characterized the Respondent as uncooperative about scheduling an
appointment.
c. She was also too quick to draw a negative inference from the fact that the
Respondent appeared to be nervous when they first met. Id be more surprised if
a parent being interviewed by a (second) CAS worker wasnt nervous.
d. For these and similar reasons I found Pearce was just too tough on the
Respondent. 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 Pearces 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 and
unbiased.
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 her
dealings with the then-seven-year-old child.
d. I accept Pearces evidence about her interview with Paige (the details of which I
will discuss below).
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WITNESS #10 KATHRYN ANDERSON
a.
b.
c.
d.
I had no reservations about her evidence about her direct observations.

She was a good witness. She carefully reviewed her notes to ensure accuracy.
Her testimony was balanced. She tried to be fair to both parties.
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 childrens
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 Applicants next witness Holly
Dunk entered with witness box with a mission.
a. Dunk operated the Monkey Pit daycare center where Paige attended between
August 2008 and May 2009 during the approximately one year the Respondent
worked, 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 Paiges life.
d. During rudimentary cross-examination, she quickly scaled it down to he was
actively involved as a father.
e. Given the fact that the Respondent was claiming the Applicant did nothing,
Dunks evidence was relevant. But marginally so.
WITNESS #13 DAVID BUCKLEY
44. The Applicants step-father David Buckley testified on his behalf.
a. Until age eight the Applicant was raised by his grandparents.
41. Kathryn Anderson was called as a witness for the Applicant. She was a family services
worker with CAS and was involved with Paiges file from January to May 2015.
Page: 16
45. Buckley was a plain-spoken, spontaneous witness. He made no effort to mask his
feelings.
a. In several instances he was quite sure about what happened, but wasnt really sure
about 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. Thats 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 of
her current situation. I need not weigh his evidence on this topic. By the
Respondents 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 Respondents
personality and parenting skills. Im going to ignore those comments. Its only
human nature that in prolonged custody battles, extended family members will
develop a certain amount of animosity.
e. The advantage of a no-nonsense witness unafraid to say what he honestly thinks is
thathes telling you what he honestly thinks. Thats more than we get from a
lot of witnesses.
f. In that context, while I will disregard some of what Buckley said about the
Respondent, I find that he was a credible witness on the topics of (a) the
Applicants relationship with Paige; (b) a September 21, 2012 interaction between
the parties; and (c) chattels.
WITNESS #14 CATHERINE WHITE
46. The Applicants fiance Catherine White testified on his behalf.
a. It goes without saying that a partys 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 intense
cross-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 Paiges situation.
f. I detected no sign of White wanting to meddle or usurp the Respondents role in
Paige life.
b. Buckley married the Applicants mother in 1978. Thats when the Applicant
came to live with them.
c. Buckley testified he always had a strong relationship with the Applicant like a
father.
d. He admitted he and the Applicants mother Vivien had marital problems. But
theyre still together.
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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 getting
too 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 Paiges
Waterdown school. That evidence might have enhanced his custody claim.
d. But White testified that while she was aware of the Applicants interest in
moving closer to Waterdown she couldnt consider relocating outside of her
current school catchment area in Oakville, because she cant disrupt her sons
special education program at his current school.
e. It would have been easy for White to vaguely endorse the Applicants we might
move 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 didnt 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 general
comments:
a.
b.
c.
d.
The Respondent is a very intelligent, articulate and passionate woman.

Throughout her testimony there was no such thing as a short answer.
Her responses were thoughtful and thorough -- but often self-aggrandizing.
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 the
question.
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 his
failings.
i. At times during her testimony she became visibly emotional -- raising questions
about her claimed ability to shield Paige from her unhappiness and resentment
toward the Applicant.
j. She was careful with words. But also coy and evasive. At times shrewd.
47. A specific indicator of Whites candor arose:
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49. Perhaps the most notable aspect of the Respondents testimony was her rigid sense of
infallibility.
a.
b.
c.
d.
She was always right.

Everything she did was right.
She knew best on every topic.
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. I
am 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. Perhaps
obsessively 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 in
family medicine.
b. The Respondent has been her patient since 1993.
c. For many years she was also the Applicants physician, although that ended a
couple of years after separation.
d. McMillan has always been Paiges 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.
k. She adhered faithfully and conspicuously to a self-serving narrative whereby

everything 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 anyone
questioning her judgment or motive.
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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 Paiges 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 dont hang out
together.
d. She said she recognized the Applicant, but hadnt 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
55. McMillans testimony was of particular assistance in refuting some of the major themes
advanced by each party.
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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 clinical
investigations for the Office of the Childrens Lawyer pursuant to section 112 of
the Courts of Justice Act.
c. The Respondents counsel cross-examined Hayes extensively about her
methodology. 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 childs
feelings, experiences, and overall situation.
e. Hayes was a strong witness who provided comprehensive, balanced and insightful
information about Paige and her parents.
f. None of her evidence was undermined during questioning.
63. I denied a request by the Respondents 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 consider
all relevant evidence or issues; that the assessors methodology was specifically
flawed; 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 the
court 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 no
suggestions as to the appropriate disposition of this case. At best she would be
speculating that maybe the assessor got it wrong. Maybe.
d. In M. v. F., 2015 ONCA 277 the Ontario Court of Appeal recently confirmed that
critique 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).
60. By agreement between counsel, custody assessor Michelle Hayes was to be the last
witness 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:
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Critique evidence is rarely appropriate. It generally has little probative value, adds
expense, 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 out
of 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 administrations
involvement in parenting issues concerning Paige. She admitted other documents
and 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 Respondents 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 Paiges
birth on June 16, 2007.
a.
b.
c.
d.
The early years were good.

They both discovered they had very different personalities and priorities.
Their relationship developed problems.
But they both wanted children. Thats why they married on April 22, 2004.
f.
Page: 22
e. They both persevered through fertility problems and a miscarriage.
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, eventually
reaching $100,000.00.
d. The Respondents 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 after
focussing 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 balance
came 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 Respondents name.
They disagree about why that happened.
e. The Applicant remained on the mortgage.
f. The Respondent was astute financially. The Applicant wasnt.
g. The Respondent controlled the finances through her own account. She didnt
want 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, midway through her pregnancy. The Applicant testified this was a turning point in their
relationship and in the Respondents 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 their
family physician Dr. Kim McMillan for help, and the Respondent went on
medication.
67. Financially, the Respondent started out stronger.
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e. He said whenever he was home he had to assume care of Paige because the
Respondent seemed detached from the child, or preoccupied with other things.
a. She testified they were both equally upset when their dogs died. They both
grieved and slowly came to terms with it.
b. She absolutely denied any difficulty bonding to Paige, or any distraction
interfering 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 Respondents description of her mental health during this period.
a. McMillan testified the Respondents emotional responses at the time were quite
understandable and moderate.
b. McMillan said there has never been any indication that the Respondent has mental
health 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 this
represented a significant loss for the Respondent, and there was a protracted
period of grief. But it did not diminish the Respondents ability or commitment to
care 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 for
Paige quite adequately while he went to work. Paige reached all her milestones
and didnt 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 Respondents care.
g. Upon separation, the Applicant had no qualms about leaving Paige with the
Respondent. And during that first year after separation while the parties were
still getting along the Applicant had no complaints about the Respondents
parenting.
h. Given the fact that the Applicants primary complaint is that the Respondent now
insists on having too much involvement in Paiges life, I cannot accept that there
was 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 a
completely disinterested and uninvolved parent, both before and after separation.
70. The Respondent called his allegations distortion and fabrication.
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 the
commitment 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 Paiges 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 separation
agreement.
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 Applicants 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 getting
married.
b. She felt their marriage had been decaying prior to the birth of Paige.
c. She admitted she wasnt 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.
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a. The Applicant kept giving the Respondent money out of each pay cheque, so
there were no immediate cash flow issues.
b. They didnt fight about Paige. The Applicant said he saw the child frequently.
The Respondent said visits were rare. Whatever the schedule, they didnt quarrel
about it.
c. The Respondent said she felt good mentally.
McMillan prescribed some
medication 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 or
function.
d. The Respondent said McMillan also referred her to numerous texts about
separation 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 her
that the Applicant was moving on with another woman.
a. She said for one full year after moving out in July 2011, the Applicant kept giving
her 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 he
would 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 accept
either 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 mothers
home.
c. He thought it was great for Paige that sometimes the three of them did things
together. And that the Respondent didnt mind him coming by the house to visit
the child. But he was visiting the child.
76. Both parties testified the first year of separation went relatively well.
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79. Its hard to know what each of them was thinking. It sounds like the Respondent was
more hopeful of reconciliation than shes prepared to acknowledge.
80. But looking at it from the perspective of what Paige experienced during the first year of
separation, I find:
a. The parties were getting along relatively well.
b. Paige was having regular, enjoyable, and beneficial contact with the Applicant.
c. Its a shame that changed.
PROBLEMS EMERGE
81. The Applicant testified that by late spring 2012 the Respondent started becoming more
restrictive and interfering with his contact with the child:
a. The Respondent had never liked the Applicants mother. She started resenting the
amount of time Paige spent in the paternal grandparents home. She disapproved
when the Applicant starting setting up a comfortable environment for the child in
his mothers home (purchasing a bed; clothes; toys for the child to feel like she
had 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 couldnt
see his daughter.
d. Communication between them became more strained.
e. On Fathers Day 2012 the Respondent advised the Applicant that Paige would be
spending the day visiting the maternal grandfather. She allowed the Applicant a
one hour visit. He felt this was unfair.
82. The Respondent insisted any gaps in access were the Applicants choice.
a. She didnt deny making her own plans for Paige on Fathers Day. But she said the
Applicant 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 Respondents unilateral action
because he wanted very strongly to spend the whole of the first Fathers 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 Toronto
Police Service.
d. He agreed that occasionally he and the Respondent were sexually intimate. But
he didnt think either of them had any realistic expectation of reconciliation.
a. The Applicant requested access to Paige during his one week vacation periods in
each of July and August 2012.
b. He said the Respondent refused the request, stating she had already registered
Paige 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 wouldnt 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 being
rented by his girlfriend and her family.
a. The Respondent said he could have Paige for the week but only if he promised
that his girlfriend would not be present.
b. The Applicant admitted he lied to the Respondent and promised the girlfriend
wouldnt be at the cottage.
c. He testified that he regretted the lie, but felt he had no choice because otherwise
he wouldnt be able to see Paige. He said he had no money or other vacation
options.
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 virtually
cut 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 with
a 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 thats why she wanted clarification of the Applicants intentions.
c. She said all of that uncertainty disappeared when Paige returned from the August
2012 week at the cottage, and revealed White and her family had been there the
whole 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
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the Respondent had been under the impression the Applicant had moved to a
friends basement apartment.
e. At that point the Respondent told him she didnt want to continue to have any sort
of relationship with him.
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 havent 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.
Whites mother also resides with them.
e. The Applicant and White started dating in February 2012 months after he
separated from the Respondent.
f. By June 2012 they developed a more formal relationship.
g. In August 2012 the Applicant moved into Whites 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 homewrecker; 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 Applicant
introduced 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.
APPLICANTS NEW RELATIONSHIP
a. He and White both testified they were very cautious about introducing their
respective children to new partners.
b. They both said they had been dating for a while before Paige was formally
introduced 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 with
White 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 Applicants 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, and
they 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 couldnt have any overnight visits.
d. She unilaterally selected a few days she would allow access.
e. She decided hed have to go three weeks in September without seeing his
daughter.
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 wouldnt let him speak to Paige by telephone.
i. He said he was emotionally devastated by the abrupt denial of access. White and
Buckley both testified about how upset he was.
j. The Applicant felt it was cruel to shut him out of Paiges life just as she 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 Paige
and 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 Respondents description of September 2012 was a bit confusing.
a. She said Paige was stressed about starting full-time school.
Page: 29
b. She said Paige enjoyed junior kindergarten the previous year because it was only
two 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, to
calm and reassure her as she struggled getting used to the school routine.
e. The Respondent was extremely resistant to the suggestion that maybe Paige
missed the Applicant too. Or that maybe the Applicant also had a role to play in
soothing their daughters anxieties about school.
93. The Respondent said Paige was still very upset about her fathers 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 isnt coming around her home but he has another home
and a new family.
d. The Respondent appeared oblivious to her role in this childhood tragedy: Dad
isnt coming around because mom wont let him.
94. At times the Respondent reverted to her old theme that Paige didnt really miss the
Applicant because he had never been involved in her life (a position I have already
rejected):
a.
b.
c.
d.
She said she wasnt trying to decrease access.

He was suddenly trying to increase access.
Paige had always looked to her mother for everything.
So if Paige was going through anxieties and the Respondent emphasized she
didnt cause those anxieties the Respondent was best able to soothe her
emotions.
95. Paiges senior kindergarten teacher Lawson provided some independent evidence about
what the child was experiencing:
a. Within days of the September school start, Paige started telling Lawson she was
feeling sad because she was missing her father.
b. Lawson couldnt recall if Paige asked her to call the Applicant or if the Applicant
initiated contact with the school to ask about Paige.
c. But occasionally the Applicant would come to school to see Paige and take her to
lunch. Lawson said this happened perhaps once a week, but not every week. It
depended on the Applicants shifts at work.
d. She said sometimes during his lunch visit with Paige the Applicant would call her
and say Paige was still upset and didnt 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: 30
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 take
Paige 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 it
didnt 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 she
said 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 him
out of any parental involvement at Paiges school and in relation to recreational activities.
a. He gave many examples of the Respondent registering Paige under the
Respondents surname Mayerle even though the childs formal name was
registered 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 wasnt available.
d. The Respondent gave the school an out of date telephone number for the
Applicant, and she listed his address as unknown. She made it impossible for the
school to contact him.
LAWYERS GET INVOLVED

97. Within days of the breakdown in access, the Applicant had his first lawyer Darlene
Madott send an introductory letter dated September 12, 2012 to the Respondent. The
three 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 Applicants new partner
wishes to become Paiges mother or otherwise undermine the mother-daughter
relationship.
Page: 31
e. The Applicant proposed the parties attend mediation, with a view to implementing
a parenting plan.
f. Both parties should contact their family physician to ask if she is aware of family
mediators with the necessary expertise. A copy of the letter was sent directly to
McMillan.
g. A colour-coded calendar was attached setting out the Applicants 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 Paiges school registration to be amended to include
contact information for the Applicant.
j. The Applicant requested a copy of Paiges birth certificate and health card.
k. The Applicant requires documents and personal belongings from the matrimonial
home. Even though he doesnt need the Respondents permission to enter the
home, he wanted to make arrangements ahead of time. He proposed attending the
home on Friday September 21, 2012 while Paige is at school to avoid exposing
the child to any tensions.
98. On September 19, 2012 the Respondents lawyer Kanata Cowan sent a response to
Madott, advising:
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
k.
l.
m.
n.
o.
The Respondent wishes to negotiate a separation agreement.

She is not content to attend mediation at this time.
The Applicants financial disclosure was requested.
The Applicants proposal for access is not appropriate.
Mid-week overnight access during the school week is not appropriate.
The Applicant is already listed on the student information form at school.
The Respondent will provide copies of the birth certificate and health card.
The Respondent is concerned about the deceptive and insensitive manner in
which the Applicant introduced Paige to his new partner.
The Applicant must provide a proper bed and bedroom for Paige prior to any
overnight access commencing.
Until the bed is confirmed, the Applicant can have access on alternate weekends
Saturday and Sunday 12 noon to 7 pm, and Thursday evenings non-overnight.
Paige has evening enrollment in swimming Mondays, Sparks Tuesdays, and
karate Wednesdays.
The Applicant should reinstate $1,300.00 biweekly payments.
The matrimonial home is not jointly owned and the Respondent is not content that
the Applicant enter the home.
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 will
need 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.
Once the Respondent has confirmation the Applicant will be returning Paige
home each evening, she will allow the child to go for visits.
Page: 32
Page: 33
a. She didnt 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 inviting
her to get her own lawyer was an act of intimidation. Thats a threat and thats
how I perceived it.
c. She said she rejected mediation because she didnt think sitting in a room across
from the Applicant was going to accomplish anything.
d. She said mediation wouldnt 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 ruthless
litigation.
100.
Under cross-examination the Respondent testified generally about the Applicants
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 didnt 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 begging
her 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 really
he 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 matrimonial
home 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 stepfather 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 get
the fuck off my property. He said she was so angry she was frothing at the mouth.
99. The Respondent testified about the lawyers letters.
Page: 34
She blamed a
a. Her lawyers 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 going
to attend.
c. Her lawyer hadnt asked for confirmation.
But without confirmation she
presumed he wasnt coming.
104.
She testified the Applicant and Buckley pulled into her drive-way on the Friday
morning, 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: Paige
wasnt sick.
c. But she wasnt on a professional development day either (school records showed
it was a regular school day and Paige was absent).
d. She testified I dont 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 dont
recall.
f. She didnt explain why she would be taking Paige out in her vehicle with the
dogs, if she was sick.
g. Ultimately the Respondent said I dont recall what she was feeling that
morning.
h. She denied the suggestion that she was trying to leave with Paige, before the
Applicant arrived, to prevent him from picking up his belongings, and to prevent
him from having access.
105.
She described her confrontation with the Applicant:

a. She said the Applicant arrived in a van she didnt recognize. Buckley remained in
the van at the foot of her long driveway.
b. She admitted they got into a heated exchange. She denied frothing at the
mouth.
c. She said the Applicant told her he would ruin her; he would take Paige away from
her; and White would become Paiges 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.
103.
The Respondent admitted the Applicant didnt get his stuff.
breakdown in communication.
Page: 35
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 lawyers letter and his threat to take Paige away, the kid
gloves came off.
108.
Buckley testified about the incident:
a. He remained inside the vehicle with the windows open. It was parked close to
where 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. She
started screaming and shouting.
d. He said the Applicant appeared to be trying to placate the situation and remain
calm. But the Respondent was loud and showing extreme anger.
109.
The Respondent testified about why the Applicant didnt get his scheduled access
later 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 wasnt supposed to have access until 5 p.m.
c. She wasnt going to give him the child early, even though Paige was out of school
and hadnt had a formal visit in almost three weeks.
d. The Applicant didnt come back at the 5 p.m. designated pick-up time. So she felt
it was his own fault that he didnt 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
Applicants 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 set
foot 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 Salvation
Army. Included were photographs after their wedding the Respondent used
scissors to carefully cut out her face.
g. She said she told him to send a moving van and he agreed. She would pack up his
belongings.
e. The Applicant said the Respondent kept the good stuff. The Respondent insisted
she was fair.
f. Neither side sought to include chattels in the equalization calculation. No
valuations were provided. So I wont spend time on this issue.
g. But the Respondents 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 September
2012 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 Applicants 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 Respondents e-mails were equally consistent:

a. Rigid statements of what she would allow the Applicant.
b. Warnings that if the Applicant didnt commit to her terms in writing prior to each
visit, access would not occur.
c. Bitter comments that really the Applicant didnt 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 the
Applicant.
b. She said she sometimes had to force the child to go, and access wasnt 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 Whites residence.
b. She denied that he had arranged a bed by October 2012.
c. The Applicant proposed overnights at his mothers home, since the Respondent
knew Paige had a bed there. The Respondent rejected that proposal. She said she
didnt trust that Paige would really end up sleeping at the paternal grandmothers
residence.
Page: 36
Page: 37
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 didnt keep count and couldnt
comment on the Respondents 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 the
afternoon causing her to miss a Halloween party. He said whenever he kept Paige
after 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 a
Halloween party that day.
d. He admitted that she similarly missed a class Christmas party on the afternoon of
December 21, 2012. Again he said he was unaware of the party.
e. The Applicant said he was denied a Thanksgiving 2012 visit. The Respondent
acknowledged 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 childs 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 to
somehow 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 the
exchanges were often after dark.
b. He said the Respondents 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 Paiges belongings to
try 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.
117.
The Applicant testified the Respondents restrictive access schedule included long
gaps which were very upsetting for both Paige and the Applicant.
Page: 38
121.
The Applicants fianc 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 Applicants 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 other
occasions 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 the
Respondent 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 it
was actually snowing that night and as soon as they got the child into the car they
had to turn up the heater because she was shivering.
b. The Respondent denied Paige was inappropriately dressed. She insisted the
weather 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 still
wouldnt have dressed Paige differently because the Applicant has made it clear
he 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 after
separation 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 open
discussions 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 word
or two).
b. Despite cold weather the Respondent sent the child without a winter coat. The
Applicant 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.
c. As Christmas approached, the lawyers worked out a tentative access schedule

which included daytime access on December 25 and 26.
d. But on December 22nd the Applicant sent her a further e-mail inquiring about
Christmas access. The Respondent said it was too late to have any further
discussions because her lawyer had made it known to the Applicants 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 an
e-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 access
motion which never materialized. She felt he deliberately delayed resolution until
her lawyer was no longer available.
h. She testified she didnt feel her last minute decision to deny Christmas Day access
added to Paiges stress. She said she was motivated by the childs best interest
and made sure Paige enjoyed the same Christmas celebration she always had in
her own home, with her mother and the maternal family.
126.
Despite the Respondents insistence that she was at all times motivated solely by
Paiges 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:
Ive tried calling today numerous times to say Merry Christmas to Paige but you
wont 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 so
I 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: 39
Page: 40
On December 26, 2012 at 10:05 a.m. the Respondent e-mailed the Applicant:
Cruelyou cant see beyond your own selfish desires, everything and everyone
is 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 the
last 19 years of my life, its gone, it no longer exists, its dead anyway, I really
wish I had never met you for whats not gone, for my child, for her future; you
have nothing to offer her, absolutely nothing, her existence is all about you, yes,
even Paige is here to serve you thats your reality and that is whats cruelyou
love her? You dont even know where to begin.
The most important thing a father can do for his children is to love their
mother Theodore Hesburgh (italics in original)
My family and I loved you with open arms and open hearts, something you know
nothing about; love. You betrayed us in the name of: you, your own selfish
desires. Its astonishing and also very sad how you really do believe that the
world 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 who
you choose to surround yourself with, your mentors, theyre all about themselves
also; 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 nothing
to get what you want. No, I guess its not surprising that you are a lost cause,
hopeless. Live your life as you will, but you are not a part of my family; stop
harassing us.
131.
The Respondent insisted the Applicant was the one causing problems and she had
good reason not to trust him.
a. For example, she said he kept Paige overnight after his December 29,
even though he had earlier agreed in writing that he would return
bedtime.
b. She was fearful because of his previous threats to take Paige.
c. The Applicant said he requested Respondent's permission for some
over the Christmas break. But when she didnt consent he kept the
single overnight anyway.
d. He returned Paige the next day.
2012 visit,
her before
extra time
child for a
132.
The Respondent said the same thing happened on his January 12, 2013 weekend
visit 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.
130.
Page: 41
133.
Except, after cross-examination the Respondent finally admitted thats not how it
happened at all.
a. Initially during cross-examination she stuck to her story: Paige got sick. The
Applicant didnt do anything about it. So the Respondent took the child to the
doctor.
b. But she couldnt explain why there was no notation of a January 14, 2013
doctors visit in McMillans 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 Applicants Manulife
coverage. But the Manulife statement didnt show a prescription on that date.
She said sometimes she doesnt use her regular pharmacy, and doesnt bother to
submit 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.
b.
c.
d.
e.
f.
Paige got sick during that weekends access.

The Applicants response was inadequate.
She remembered the weekend well.
She remembered taking Paige to McKinnon.
She remembered the stomach virus and filling the prescription for antibiotics.
She insisted her recollection of events was correct and the Applicants
recollection was wrong.
135.
That was on October 20, 2015 the Respondents fifth day on the witness stand.
136.
But at the outset of October 23, 2015 the Respondents 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 on
January 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 Applicants lawyer suggesting the
Respondents correction was actually a transparent effort to try to bail out of a lie.
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.
a. October 20, 2015 wasnt 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 hadnt attended to her health during his
weekend 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 testified I cant tell you at this point
whether I went or not.
138.
The Respondents request to correct her evidence arose on the morning of
October 23, 2015 just before McMillan was going to testify. Presumably the family
doctor would have confirmed that there was no appointment on January 14, 2013 even if
the Respondent hadnt corrected her evidence.
139.
As a matter of final irony even though the Respondent was completely unclear
about what she ended up doing on January 14, 2013 she still insisted that the Applicant
did the wrong thing that weekend. She said just because Paige wasnt sick enough to go
to the doctor on the Monday, the Applicant still should have taken her to the doctor on
the weekend.
140.
I have difficulty accepting the Respondents position that she just got her dates
mixed up at trial.
a. Quite conceivably, a person testifying on October 20, 2015 might be mixed up
about 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 she
had 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: 42
a. When he arrived at the exchange parking lot to pick Paige up, the Respondent
would 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 of
her 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 much
as ten minutes.
d. The Applicant said all of this unnecessary drama made Paige very sad and meant
that 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 shes going to miss me and Mommy
says shes going to die without me.
g. He testified Paige has reported the Respondent making upsetting statements like
that 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
Applicants 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 Paiges 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 a
recurring and significant problem by many witnesses.
146.
Senior Kindergarten teacher Lawson and other teachers had ongoing concerns
about the Respondent upsetting Paige during morning school drop-off through
unnecessarily 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: 43
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 the
other 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 schools expectations: Parents are to say goodbye
at the edge of the playground. Children go onto the playground where they
mingle 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 they
wanted 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 not
follow this routine.
a. Lawson said in the first few months of senior kindergarten it is not uncommon for
children to experience separation anxiety. With most children this subsides and is
no longer a problem. But with Paige it did not subside.
b. At the beginning of the year the Respondent would come into the school
enclosure and remain with Paige.
c. When the school bell rang, the Respondent would hug Paige, whisper something
to her and then Paige would cry and wouldnt 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 other
children. 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 Paiges wellbeing.
She felt the
Respondents behaviour was creating stress the child really didnt need.
g. Lawson said this routine continued from September until November or December
2012.
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 the
classroom.
Page: 44
149.
When asked, under cross-examination whether it might be possible that the
Respondent 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 wouldnt be upset or
start crying until after the mother whispered to her.
150.
Lawson contrasted the Respondents prolonged upsetting goodbyes with the
Applicants 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 bit
upset.
b. The Applicant would say well its time for me to go and Paige would be fine
with it and wouldnt have an issue.
151.
Other witnesses from the school gave similar evidence about the Respondents
emotionality during drop-offs creating serious problems for Paige.
152.
Teaching assistant Bernadette Mioc testified she noticed the problem on her very
first 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 wasnt crying initially.
e. The Respondent remained in the hallway and allowed Paige to walk in on her
own.
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. She
spoke 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 go
home.
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 such
issues of separation anxiety usually resolved themselves early in the school year.
i. She testified she subsequently saw similar instances of the Respondent crying
during 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. She
observed the Respondent dropping Paige off in the school hallway.
a. She said the overall scene was quite chaotic and hectic, with multiple parents in
the hallway.
b. She saw Paige taken to her classroom by the Respondent.
Page: 45
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 senior
kindergarten.
g. She wasnt placing blame on the mother. She said it was not a parents fault for a
child 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 Paiges 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 and
started talking to her.
c. He observed that Paige immediately broke down crying.
d. He said he didnt want to cause any conflict in front of Paige so he left.
e. He was later advised by Paiges teacher Lawson that Paige was upset until the
first nutrition break in the morning, and that school officials instructed the
Respondent to leave the building and not enter the building to approach the child.
155.
The Respondent testified about concerns that her goodbyes at school were
excessive and inappropriate:
a. She said from the beginning of senior kindergarten Paige would often cry at the
start 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 in
the 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: 46
morning bell rang, and then walk Paige directly to her class, so thered be no time
for the child to experience last minute butterflies.
b. She said usually it worked smoothly and she would drop Paige off at her
classroom 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 shed 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 Paige
off at school during the 2014-2015 school year.
a. She had no noteworthy concerns.
b. The child didnt 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 Applicants car.
c. On one occasion she followed the Applicant to his mothers home.
d. On another occasion she followed him to a drug store, where she used her car to
block the Applicants car in. She sat staring while the Applicant and the child
went into the store. The Applicant said the child was very alarmed.
e. One time she followed his car to a Fortinos grocery store where she pulled up
about one inch behind him as he parked. Another motorist ended up honking at
her 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 the
Respondent 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 Applicants car, and
deliberately drove through a red light so the Applicant and Paige wouldnt 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 Applicants car as the Respondent
followed. He said not only Paige but also the Whites children got quite upset
about being followed.
Page: 47
Page: 48
The Applicant testified his lawyer also sent a letter formally asking the
Respondent to stop this behaviour, but the problem continued.
k. The Applicant testified that regularly being followed like that not only upset Paige
at 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 Paiges attention.
c. The Respondent blocking traffic in a mall when she pulled up behind the
Applicants 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 Mommys following
us 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 be
no 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 wouldnt 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 Applicants bumper, or blocking traffic in a
Fortinos parking lot.
f. She acknowledged waving a teddy bear at Paige, but she said this was a long
standing 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. I
will 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.
j.
a. On all of these issues, the evidence of the Applicant and White was detailed. The
Respondents 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 other
obsessive 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 Mommys taking pictures. Later Paige would
describe to the Applicant some of the pictures the Respondent showed her. Paige
once said Mommy showed me a picture of (Whites) feet.
c. The Applicant and White both testified Paige became very stressed and upset by
the Respondents 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 hadnt 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 the
camera 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. Paige
said she doesnt know why. Paige told Grice its 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
Applicants version. Hayes testified Paige had a recollection of the Respondent
taking pictures of the Applicant (and the Applicants mother) during exchanges.
164.
I accept the evidence of the Applicant, White, Hayes and Grice on this topic. I
find that for at least a few months the Respondent was routinely using her cell phone to
take 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
Applicants visits got off to an even worse start.
d. Is that what she had in mind?
Page: 49
Page: 50
165.
The Applicant testified the Respondent would undermine access by reminding
Paige 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 Applicants
access. The Respondent denied this ever happened.
166.
But the Respondent admitted she blamed the Applicant for the fact that Paige
missed her friend Sophies birthday party.
a. The Respondent testified that on two occasions in January 2013 the Applicant
accused 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 Sophies
birthday party on February 10, 2013, she decided not to even inform the
Applicant about the party, because it fell on his weekend and the Respondent
didnt want any more trouble.
c. The Respondent testified Paige wanted to attend the party and asked her mother if
she could take her.
d. The Respondent said she told Paige that there were rules and I had to follow the
rules. She said Paige understood she would have to miss the party because of the
court order that the Applicant was to have access.
167.
When Paige went for her visit she mentioned Sophies 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 Sophies mother, so
she didnt want the Applicant coming around.
c. She also testified that Sophies mother and almost all the parents of Paiges
friends didnt want the Applicant coming around their homes. She said it was
because theyve seen what hes done to my life. But the Respondents friend
Chantel Danis testified she has never heard other parents express anything
negative about the Applicant. Danis could think of no reason why the Applicant
would not be welcome to bring Paige to a childs 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 Sophies house.
That way Paige could enjoy the party and the parties wouldnt have any direct
contact.
e. She testified I could have, but I didnt think it would work.
168.
Instead, the Respondent sent the Applicant an e-mail a 1:41 p.m. on the afternoon
of Sophies party. That e-mail included the following statements:
BIRTHDAYS
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 falsely
accused me of making up invitations.
c. This weekend is no different, it is entirely you who is to blame for this fact of
Paiges life, fair or unfair, her best interests or not, none of thats relevant because
its 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 your
own battle, surely you wont hold me responsible for your guilty conscience
also.
e. We have already given a gift for Sophies 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 Sophies party.
b. The Applicant wanted to take her to Sophies party.
c. If the Respondent truly had Paiges 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 Respondents motive was transparent:

a. Punish the Applicant.
b. Manipulate the child.
c. Remind Paige that good things happen when shes with her mother not with her
father.
171.
Sadly, that same self-centered mindset came to ruin Paiges own birthday party,
just a few months later.
a. In June 2013 Paiges sixth birthday fell on the Applicants access weekend.
b. The Applicant booked a surprise birthday party at Adventure Playland in
Burlington.
c. He e-mailed the parents of about 15 of Paiges classmates and friends, and
followed up with invitations delivered at school.
d. He testified that many parents didnt respond; some parents accepted and then
cancelled; and ultimately only about three of Paiges friends showed up for the
surprise party.
Page: 51
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 hardly
anybody 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 a
different 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 days
ahead of time.
b. He said the Respondent knew Paiges 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 them
from 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 Applicants request she distributed invitations for Paiges
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 birthday
invitations 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
Applicants birthday party.
g. The Respondent asked her to proceed with the invitations, so the following day
Lawson sent them out to all the children.
174.
Catherine White testified about Paiges June 2013 birthday party.

a. She confirmed the Applicants evidence that only two or three classmates showed
up.
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 wasnt aware that the Respondent also had a party for Paige.
e. She said wouldnt have seen a problem with Paige having two birthday parties.
Page: 52
Page: 53
The Respondent testified about the conflicting birthday parties.
a. She said in June 2012 the Applicant had attended and participated in a fancy
Madagascar themed birthday party at the Respondents 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 themed
after another childrens movie, Brave.
c. The Respondent said she presumed that either Paige had mentioned this to the
Applicant, or at the very least he should have anticipated that in 2013 the
Respondent 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 crossexamination, she noted that he also hadnt 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 her
of his June 16 party. But she said she had already tried to send her invitations out
on June 10th.
f. She said teacher Lawson told her at the end of a school day that she hadnt
distributed the Respondents invitations because she had already distributed the
Applicants 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 Applicants party she tried to
straighten out any confusion among parents by including the following note with the
invitation to her own Brave birthday party:
Dear parents:
If this invitation comes as a surprise and/or is confusing, please contact me so that I
may have the opportunity to explain.
Briefly, Paige is very excited about her Brave party as she and I have been planning
it 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. They
recognized 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 friends
urged me to follow through with our party on the 22nd because it is the party that Paige
is expecting, and the party that they had been planning to attend. I hope this helps to
clarify at least a little.
Thank you very, very much for your understand of this unusual, difficult, and
awkward situation. I was at a loss as to the best way to handle this; it has come as a
complete surprise to me.
175.
Page: 54
a. She said it didnt cross her mind that the Applicant hadnt 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 point
even trying to talk to him.
c. She said he only notified her of his party by e-mail on June 11 to cover his
tracks.
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 didnt 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 Paiges 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 Paiges
class 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 Applicants party.
a. She was simply trying to clarify things for people who might be confused about
getting 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 was
suggested 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 couldnt have two birthday parties, the Applicants counsel
suggested she might have written something like:
Paiges father and I are each planning exciting birthday parties for her. Wed love
it 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 going
through the embarrassment of telling people Paiges parents were separated.
182.
The Respondent denied the suggestion that saying Neither Paige nor I know
anything about this other party was misleading or malicious.
a. She admitted she knew more about the party than she was letting on.
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 than
simply send this letter behind his back.
b. She knew it was the Applicant not some mystery person who was throwing
the party during a scheduled access weekend.
c. She said she didnt intend to alarm parents or convey the impression of
impropriety or disapproval in relation to the Applicants party.
d. She said she wasnt trying to send the message that the Applicants 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 almost
no children attended the surprise birthday party, and Paige ended up being quite upset
and disappointed.
a. She said she didnt know how many children attended.
b. She said she could imagine that Paige might have been disappointed by a low
turnout.
c. But no matter how sad Paige might have been that her party on her actual
birthday was a bust, there was nothing the Respondent could or should have
done differently.
d. She insisted the entire mess and any upset Paige experienced was completely
the Applicants fault.
e. During cross-examination she kept emphasizing that he was the one who tried to
sabotage her party. But it didnt 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 special
occasion with Paige.
b. She resented it so much that she embarked on a deliberate campaign to subvert the
Applicants special occasion without regard to the collateral damage she would
cause to her own daughter.
JUNE 2013 ASSESSMENT STARTS
186.
The Applicant testified the competition over Paiges birthday was only one of the
ways conflict escalated in June 2013 just as Hayes started work on the custody
assessment.
Page: 55
Page: 56
a. Alternate weekends Friday after school until Monday morning, exchanges at

Paiges school.
b. If the Applicant was working days or nights, he would have Tuesday after school
until 7:00 p.m.
c. If the Applicant was off work, he would have Wednesday after school until
Thursday morning.
d. The Applicant was entitled to substitute other weekdays for these Tuesday and
Wednesday provisions if his shift schedule requires it.
e. There were other provisions for Fathers 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; shes worried about her mother; and her mother wont 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 childs 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 Applicant
needed 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 didnt
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 usually
says she doesnt 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
Applicants, but there were problems:
a. After Paige got off the phone, the child would become upset and say things like:
Mommy misses me. Mommy cant sleep without me in bed. Mommy
wants me to come home.
b. By 2014 these phone conversations with the Respondent would upset Paige so
much that after she got off the phone she would become distraught and start
crying.
c. White said when Paige became upset after ending her phone calls with the
Respondent, the Applicant would try to console her and would offer that she
187.
On May 28, 2013, following a contested motion, Justice G .E. Taylor granted a
temporary order which further expanded the Applicants access:
Page: 57
191.
White said at times during those phone calls she could hear Paige trying to
console the Respondent, saying things like: Its ok, I wont be there kicking you.
Kicking referred to the fact that at the Respondents home mother and daughter slept
together 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 that
she 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 Applicants
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 some
independence so they can self-soothe.
b. She said Paige was able to show that independence sleeping in her own bed at the
Applicants home.
RECREATIONAL ACTIVITIES
193.
Also in June 2013, things came to a head at a childrens soccer game in relation to
the Applicants complaint that the Respondent was excluding him from any of Paiges
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 shut
the Applicant out of any participation.
b. The Respondent signed Paige up for swimming, but wouldnt tell the Applicant
where 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 giving
such instruction, but acknowledged she registered Paige under the name Mayerle.
c. The Respondent enrolled Paige in karate but wouldnt say where. The Applicant
said Paige enjoyed it and wanted him to come to watch, but the Respondent
refused. The Respondent complained the Applicants alternate weekend access
meant Paige had to miss karate every second weekend. But she refused to allow
the Applicant to take Paige to karate on his weekends. She said it was a Mayerle
family activity which included Paiges cousins. She had her brother attend for a
could call her mother again if she wanted. But Paige wouldnt want to call again,
and said it would only upset her more.
d. Paige would continue to make statements like Mommy says shes going to die
without me.
Fathers Day karate event, instead of the Applicant. She agreed Paige might like
having the Applicant present to observe her progress.
But she said the
opportunity didnt present itself due to the ruthless nature of the Applicants
litigation.
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 her
daughter worked brilliantly for Paige.
They taught each other and it
strengthened their relationship. The Applicant testified it was unfortunate that he
learned 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 she
was told by the Respondent to keep the piano lessons a secret
e. CAS worker Alison Grice testified that during an April 10, 2014 interview Paige
told her dont tell dad about piano. Paige says it makes her feel sad, and she
doesnt 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 to
monopolize:
a. During the summer of 2013 the Applicant knew Paige was happy playing soccer,
but the Respondent wouldnt tell him where or when.
b. The Respondent investigated soccer for girls in Paiges 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 wasnt 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 wasnt trying to encroach on the Respondents time
or 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 Applicants version:
Page: 58
Page: 59
198.
The Respondents 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 the
Applicants mother across the field.
d. The Respondent said she instantly became nervous, agitated and worried about
something happening.
e. She admitted at that point Vivien hadnt actually said anything and wasnt even
near 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 Paiges 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 wanted
to 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, thats
exactly what happened.
a. She testified Vivien came racing across the field, shouting and approaching
aggressively.
b. She couldnt recall what Vivien was saying because she wasnt 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 didnt 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 the
Respondent was sick to her stomach.
a. At Paiges request the Applicant brought his mother Vivien to watch the child
play soccer.
b. But because the Respondent dislikes Vivien, the Respondent pulled the child
aside, whispered something to her which made her cry, and then led the child off
the soccer field for the rest of the evening.
Page: 60
i.
She said Paige was very helpful and tried to comfort her. She was comforting
me as much as I was comforting her.
a. I needed to leave. Paige had to come with me because shes my daughter.

b. She said she couldnt leave Paige with the Applicant because she hadnt discussed
such arrangements with him, and she couldnt.
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 and
our friends. During her testimony she didnt say he forced anything. She said
he arrived, started monopolizing the ball during practice and lured Paige away.
b. Davis mother accosted me and Hayleys mom Sarah while Paige was walking
with us. The Respondent didnt tell Hayes that whatever confrontation arose
was triggered by the Respondents unilateral and unexpected decision to start
walking 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 racing
across the field after the Respondent started leading Paige away. She testified
Vivien was shouting. But she specifically testified she couldnt recall what
Vivien was saying because she wasnt 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 the
Respondent said she couldnt remember what the grandmother was yelling.
e. Sarah and I sheltered Paige as we negotiated our way out of Viviens path.
During her testimony, the Respondent said nothing about sheltering Paige.
202.
The Applicants fianc White testified that she, her children, the Applicant, and
his 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 and
Vivien.
e. The only thing White heard was Vivien saying What are you doing?
200.
The Respondent clearly stated she decided to leave the soccer game because of
her concern about her own interaction with the Applicants mother. She had difficulty
explaining why she couldnt have left Paige to play soccer:
Page: 61
f.
White said Vivien returned quite upset, saying that the Respondent stated in front
of Paige: Youre not her grandmother.
g. White said this was the second time shed gone to watch Paige play soccer. After
the incident, she never went back.
White testified Paige subsequently told her that after the incident her mother told
a. That Nanna (Vivien) swore at the Respondent. But Paige told White that she
knew that didnt happen.
b. That the Applicant and White are both police officers and they should have
arrested Nanna.
204.
205.
White testified she didnt hear the paternal grandmother swear.

Buckleys 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 Paiges face kind of collapse. She was obviously really
upset.
e. Buckley testified he then left the area to retrieve something from a car, at the
Applicants request.
f. As Buckley was heading back onto the soccer field from the parking lot he saw
the Respondent and Paige were walking off the field. Vivien was walking beside
them, 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 cant believe youre taking my granddaughter away from the game.
h. He said the Respondent replied; Well youre not her grandmother.
i. He said the Respondent and Paige kept walking away and he didnt hear anything
else.
206.
Buckley testified after that incident he continued to come to watch Paige play
soccer. But he disguised himself by wearing a baseball cap and sitting with the opposing
team, so the Respondent wouldnt see him there and get upset.
207.
The Respondents 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 on
the sidelines.
203.
her:
d. The Respondent told her she felt very uncomfortable with them present and asked
Dalrymple to accompany her and Paige to her car.
e. While they were walking toward the car, Vivien came across the field quickly and
started yelling at the Respondent.
f. She heard Vivien call the Respondent a fucking bitch in front of Paige.
g. Dalrymple said she told Vivien her behaviour was inappropriate.
Dalrymple
said Vivien then became verbally harsh with her.
h. She said she heard Vivien yelling Youre taking my granddaughter away. She
couldnt 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 Paiges belongings.
d. She couldnt 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 Paiges soccer game. Paige said:
a. The Respondent doesnt like the Applicant coming to soccer.
b. Nanna was yelling swear words at the soccer game.
c. The Respondent made Nanna leave and Paige didnt know why.
211.
Notably Grice testified that during a subsequent interview on April 10, 2014
Paige 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 didnt know why her mother thinks Nanna was swearing.
212.
Hayes testified about Paiges 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 wouldnt let him.
Page: 62
Page: 63
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 when
she saw the Applicants mother on the sidelines.
c. The Respondent created her own crisis. Nobody was misbehaving. The
Applicants mother wasnt 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 Respondents 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 Applicants mother confronted the Respondent once she was
leading Paige away from the game. Its unclear exactly what she said, and
notably she didnt testify.
g. But its 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 to
vomit; and six year old daughter having to comfort mother.
214.
Notably, the Respondent blamed the Applicant and his mother for the soccer
fiasco. She cited the incident as an example of why she has deliberately excluded the
Applicant from participating in any of Paiges 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 of
restrictions 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 thats because of me.
d. She doesnt 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 wasnt going to allow him to spoil anything else.
f. Under cross-examination she admitted she had been excluding the Applicant from
Paiges 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 cant get along, and they cant be in the
same place at the same time. So theyll each have to arrange their own activities
for Paige.
h. She wont attend his activities. She doesnt want him to attend hers.
213.
Having heard all of this evidence, it is hard to understand why Paige didnt get to
play soccer that evening.
Page: 64
i.
She admitted she wasnt sure how to handle ongoing activities which span both of
their times if weekends or even weeks are alternated between them.
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 her
equipment 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 was
running late but he knew she was coming and should have waited.)
216.
The Applicant testified about a problem involving a childs 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 hadnt consulted the Applicant, but now asked that he return
Paige early at 6:15 p.m. on Tuesday nights.
d. When the Applicant offered to deliver Paige directly to Sparks, the Respondent
insisted 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
Respondents statement that fathers werent allowed to even deliver daughters to
the program, he complied with the Respondents instructions because he didnt
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 didnt 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 the
Sparks leader that Paige was no longer enrolled in the program.
i. The Respondent had withdrawn Paige after the October 1st initial session. She
didnt take Paige to Sparks on October 8th even though she still picked the child
up 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.
215.
The Applicant disagreed the Respondent has ever given him a chance to be
involved in Paiges 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 daughters life.
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 few
minutes.
b. He said he wasnt 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 wouldnt 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 Applicants 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 the
child from Sparks.
g. The Respondent had not, at that point, become a leader. She abandoned her
application.
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 saying
Paige could only go to Sparks on her terms she replied Yes, I guess youre 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 shouldnt.
e. She was asked why the Applicant couldnt simply drop Paige off for Sparks, and
the Respondent could still be a leader. She said in other circumstances the
Applicants request would be very reasonable. But regardless of how it should
work out between two civilized people, it wont work out because we cant get
along in our high conflict situation.
f. At one point she alleged the Applicant was asking to participate in Sparks. She
later agreed that in an e-mail he merely asked to watch his daughter participate.
Page: 65
Page: 66
a. She took Paige to the first session October 1st.

b. After receiving correspondence from the Applicants lawyer advising that the
father wanted to take Paige to Sparks, on October 7, 2013 the Respondent wrote
to the organization withdrawing the child from the activity.
c. But on October 8, 2013 the Applicant was still e-mailing the Respondent asking
for 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 the
Respondent to take the child to Sparks.
d. The Respondent vaguely denied the Applicants evidence that she picked Paige
up on October 8, 2013 at 6:15 p.m. even though she knew (and he didnt) that
Paige wouldnt be going to Sparks that night.
e. She said I dont recall showing up at 6:15 p.m. She thought it was more likely
the normal 7:00 p.m. exchange.
f. The Applicant was adamant: He dropped Paige off at 6:15 p.m. on both October
1st and October 8, to facilitate Sparks.
221.
Under cross-examination the Respondent said she couldnt understand why the
Applicant 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 pulled
Paige out of Sparks.
b. She couldnt 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 lawyers letter didnt even mention the word Sparks, the
Respondent 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 May
28, 2013 Tuesdays have become Mr. Jacksons designated day to visit with
Paige.
Sparks leader Monique Aldermans evidence included the following:
223.
a.
b.
c.
d.
e.
The Respondent signed Paige up for Tuesday night Sparks.

Paige only attended for two or three sessions in the first half of October.
The Respondent brought Paige in the first day.
The Applicant brought her in the second day.
Alderman didnt notice anything unusual about either parent or the child. Paige
had a good relationship with both of them. They both tried to reassure the young
child. Paige appeared happy with each of them.
220.
The Respondent was questioned about whether she continued to pick Paige up
early for Sparks even though the child was no longer attending.
Page: 67
Alderman said even though it was a Girl Guides program, there was no reason a
father couldnt drop off a daughter and remain present to observe and reassure his
daughter. Thats 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 Respondents application was processed.
h. Alderman testified she met the Applicant again on a subsequent Tuesday in
October when he arrived looking for Paige, but the child hadnt been brought in.
At that point Alderman hadnt been notified that on October 7, 2013 the
Respondent had sent an e-mail withdrawing Paige from Sparks.
i. Alderman said the Applicant explained the parents were separated and he was
supposed to have Paige Tuesday nights. Alderman told him she had no
information about why Paige wasnt present.
j. She expressed no concerns about her interaction with the Applicant when he came
looking for his daughter.
224.
Despite insisting that Paige loved going to Sparks, under cross-examination the
Respondent couldnt remember how Paige reacted when she learned she wouldnt be
going to Sparks anymore.
a. She couldnt recall if she actually told Paige she was being pulled out of this
activity 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. Thats part of growing and learning.
225.
The Respondent insisted this was another example of why the Applicant shouldnt
be involved in Paiges 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 Paiges activities there
have been problems.
e. Whenever the Applicant hasnt been involved, she and Paige have an excellent
time.
226.
Notably, while the Respondent testified at great length about why she didnt want
the 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 hadnt been so rigid and controlling.
f.
Page: 68
Hayes testified about Paiges extra-curricular activities.
a. She said to predict future parental behaviour we often consider what parenting
opportunities the parties have had thus far and how they have used them.
b. The Applicant has consistently sought more opportunity to be involved in Paiges
activities. He has been denied those opportunities by the Respondent. Hayes said
there is no reason to believe the Applicants 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 Paiges
activities. She used that opportunity to select wonderful programs. But she also
used that opportunity to shut the Applicant out of Paiges life.
d. Hayes said it is in Paiges best interest that the Applicant be equally involved in
the childs 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 can
alternate attendance.
229.
Under cross-examination by the Respondents lawyer, Hayes was asked whether
the Respondent was actually showing good judgment in keeping the Applicant away from
Paiges activities because Hayes herself said both parents shouldnt attend activities at
the same time.
a. Hayes disagreed that the Respondents 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
Paiges 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 was
conducting her assessment:
231.
The May 28, 2013 temporary order allowed him certain vacation weeks during
July and August.
a. But he testified that the Respondent then booked her vacation time to selectively
cancel any other time the Applicant would have with Paige.
b. As a result there was a 25 day gap when he didnt see Paige during the summer of
2013.
c. He had similar problems during the summers of 2014 and 2015.
228.
Page: 69
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 the
meeting, 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 would
deliberately 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 denied
all of this.
234.
The Respondent had her own complaints about the Applicant.
235.
He expected mid-week access to change weekly based on his employment
schedule.
a. But even though he knew his employment schedule one year in advance, he
wouldnt 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 on
the 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 didnt see the Applicant at all for Halloween. The Applicant bought her
a 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.
d. The Respondent admitted the Applicant went long periods during summers
without seeing Paige.
e. But she testified that she didnt create the situation, nor was she obliged to rectify
it.
f. Im not the one making up the court order.
d. But when the Applicant returned, he saw the Respondent exiting the school
holding Paige by the hand, with Paiges 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 just
a few hours earlier.
i. But he said he saw that she was extremely stressed, and he didnt want her being
caught in the middle again.
j. He said the Respondent wouldnt 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 Respondents friend Chantel Danis approached and reassured Paige
that 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 down
almost 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 Paiges Halloween parade at
school.
d. The Respondent said afterward Paige wanted to go home with her. But the
Applicant 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 for
Paige.
238.
The Respondents friend Chantel Danis testified about her observations after the
Halloween parade:
a. It was the Applicants day to take Paige home, but Paige didnt want to go with
him.
b. Paige was upset and clinging to the Respondent.
c. The Respondent didnt want to let go. She was trying to console Paige.
d. Danis also tried to console Paige.
Page: 70
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 didnt want to go. But thats normal.
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 appointment
with 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 didnt have pneumonia,
just some congestion. The Applicant was given a prescription for the child.
g. When the Applicant and Paige left the doctors office, the Respondent was
waiting outside in the parking lot. She immediately took control of the child and
took her back into the doctors 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 McMillans
office she snatched Paige out of his arms and ripped the prescription out of his
hand.
c. He said he didnt 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 taken
Paige to the doctor.
b. She was concerned because she hadnt been notified by the Applicant that Paige
was ill.
239.
c. She decided to meet the Applicant at McMillans office so they could attend
together. But just as she arrived the Applicant and Paige were exiting the doctors
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 well
take 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 Applicants 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 didnt 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 from
McMillan.
243.
Hayes expressed concern about the negative messages the Respondents
behaviour conveyed to the child:
a. That her parents couldnt 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 wasnt 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 not
trust one another to manage the childs 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 would
not 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 the
matter.
b. The Respondents decision to immediately walk Paige back into the doctors
office to go through everything over again was motivated entirely by the
Respondents needs not the childs needs.
Page: 72
Page: 73
MID-WEEK ACCESS
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 didnt give enough notice about what days he
wanted, and the constantly changing schedule was confusing for Paige.
c. She also complained hed tack his midweek day on to a weekend to create a
longer visit. She said Paige didnt like longer visits, because she missed being
away from the mother, her home and her dogs.
d. Hayes agreed the Respondent was entitled to advance notice.
e. But Hayes said Paige wasnt really confused because she was too young to follow
the schedule anyway.
f. Hayes said it didnt matter to Paige what days she saw the Applicant, or whether
weekends 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. Hed 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 a
terrible 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 he
wouldnt 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 wouldnt answer
the telephone when the father called.
b. She said the Applicant told Paige to tell people that was happening, even though it
wasnt true.
c. She said the Applicant would telephone at times he knew the Respondent and
Paige werent home. He would leave a message.
d. The Respondent would later ask Paige if she wanted to return the call to her
father. Paige would say no. She left it to the child.
DISCLOSURE MEETING NOV 21/13
245.
Page: 74
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 shouldnt 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 childs activities.
f. She noted that the conflict between the parents appeared to intensify after the
court 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 Paiges emotional reaction to what was going on in her
surroundings.
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 Respondents lawyer sent
the Applicants lawyer a custody/access proposal. It was not identified as a formal
Offer 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 Respondents proposal, she likely
received it from the Applicant. She said that didnt make any difference.
c. She didnt appear to have much recollection of the document.
d. She said it wasnt improper for an assessor to be advised of a parents 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
wouldnt 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 dont agree with her.
251.
Hayes testified about a disclosure meeting she had with the parents and their
lawyers on November 21, 2013.
Page: 75
CHRISTMAS SCHOOL CELEBRATION 2013
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. They
sang 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 her
time, 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 Paiges ear. At that point she started crying.
g. He said he couldnt 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 didnt initiate any discussion
with the Respondent leading to her bursting into tears.
h. Paige then approached the Applicant and said she didnt 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 wouldnt 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 Paiges anguish
by refusing to let go and say goodbye.
256.
The Respondents 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.
254.
An incident at a Christmas school celebration on December 17, 2013
demonstrates just how much things got worse.
255.
The Applicants description:
d. As parents went out into the hallway for hot chocolate, Paige asked both the
Applicant 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 guys
dont 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 didnt 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, Paiges 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 couldnt play tonight because Paige was going
to the Applicants 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 didnt.
m. She testified everything had gone beautifully up until now.
n. The Respondent testified the bell then ran. She grabbed Paiges hand and led her
to her locker.
257.
The Respondent testified at that point she was feeling pressured and could sense
the situation was going to worsen.
a. At this point I was beginning to panic. I was beginning to feel paranoid about
what 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 shouldnt be feeling this way as a grown woman. But she wasnt
getting any help from the Applicant.
g. I know that Im 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 dont regret but not in a way I
would have wanted.
c. I didnt 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: 76
Page: 77
e. The Respondent categorically denied that she cried at any point during that school
celebration.
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 the
Applicant 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 Paiges situation because from the
childs facial expression it was clear Paige was becoming most upset and
anguished.
g. At the end of the celebration, when it was time for everyone to leave, the
Respondent 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
Paiges 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 wasnt 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 didnt recall
if the child had the flu.
259.
Grade one teacher Cosentino described the incident which occurred in her
classroom:
b. She admitted she didnt hear what the Respondent said to Paige when the child
started crying. She didnt know what conversation might have occurred earlier
between the Respondent and Paige.
c. When asked whether the Respondent might have been trying to comfort Paige,
Cosentino stated that based on Paiges facial expression and outburst of tears, it
appeared that the Respondents whispering into Paiges ear was upsetting. Not
comforting.
261.
Vice-Principal Hensen gave a very detailed description of the events at a
classroom Christmas celebration in 2013.
a. Paige and her classmates were putting on a presentation for parents. Afterwards,
everyone was invited to gather in the hallway for hot chocolate.
b. Henson said by that point in the school year she was well aware of the ongoing
tensions involving Paiges parents. By December nothing had improved.
c. After the presentation, parents were milling around the classroom. Henson was
greeting people in the hallway.
d. Paige was showing the work on her desk to both the Applicant and the
Respondent. She would look from her right to her left, as she spoke to one parent
on each side of her.
e. Henson said after a few minutes the Respondent bent down very close to the level
Paige was standing at. The Respondents back was to the Applicant, and he was
about two to three feet away just standing and waiting.
f. The Respondent and Paige appeared to be discussing the work on her desk.
g. Then the Respondent and Paige walked out of the classroom and into the hallway,
to get hot chocolate. Under cross-examination, Henson was absolutely certain it
was the Respondent and not the Applicant who took the child to get hot chocolate.
h. After that it was time for everyone to go home. Cosentino instructed students to
get their belongings.
i. The Respondent went into the classroom with Paige and a classmate friend. They
were talking in the classroom while the Applicant was waiting outside by the
lockers.
j. Paige had been brought to school by the Respondent that day, but she was
scheduled to leave school with the Applicant.
k. As the Respondent knelt down and spoke to Paige, Henson heard her say to the
child: Youll have to ask daddy.
l. Paige then went to the Applicant and asked if she could go home with mommy.
m. Henson said the Applicant responded: No, were going to dinner and then you
can go to mommy.
n. The Respondent took Paige into her arms, and the child started to cry.
o. Cosentino tried to diffuse the situation by encouraging the children to pack up and
get ready.
p. Henson said the Respondent started to walk away. Paige appeared to calm down
and seemed ready and happy to go with the Applicant.
Page: 78
q. But the Respondent came back again reaching for Paige. Paige again started to
cry.
r. Another parent (a friend of the Respondents) took the Respondent by the arm and
tried 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 Respondents friend Chantel Danis was present at the Christmas celebration
and 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 didnt want to
leave the Respondents side.
c. Paige was getting more and more upset and was crying, saying I dont want to
go.
d. Danis said the Respondent was also upset. She had tears on her face. Danis said
it was understandable. Id 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 wasnt helping and he
wasnt interfering.
263.
The school was so distressed by the mothers behaviour it contacted CAS. The
Applicant requested they delay their investigation until after the Christmas break, for
Paiges sake.
264.
During a January 10, 2014 interview the Respondent told CAS worker Grice
about the Christmas school celebration:
a. It was to be the Applicants 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 spend
more time with the Applicant.
d. Paige wanted the Respondent to tell the Applicant that she wanted to go home
with the Respondent.
e. The Respondent told Paige she couldnt 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 ready
k. The Respondent said she gave Paige a kiss and said see you tonight. Then she
left.
Page: 79
Page: 80
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 the
assessor tried to encourage the parties to shield Paige from any further parental
conflict.
266.
I accept the Applicants version of events, as confirmed by his witnesses
Cosentino and Hensen. Indeed, even the Respondents friend Danis confirmed the
Respondent 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
wasnt emotional on the day in question.
a.
b.
c.
d.
Her testimony was somewhat rambling and imprecise.

She appeared consumed by anger toward the Applicant.
Clearly, she felt he was responsible for everything that went wrong that day.
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 that
is 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 Respondents 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 the
Applicant.
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 didnt want to go.
d. A recording of that message was played in court a couple of times:
265.
Daddy I just dont want to go on Christmas Eve. I want to stay home because
Im because Im gonna see you for a long time and, andandaaaand, I want
to be home and I dont want and because I miss you for a long time and some
other time and so a different day and youre not going to be there because
youre going to be at work, nightshift, so youre not going to be there. Bye,
Daddy. Oh, wait wait wait and Bye.
270.
The Respondent was cross-examined about Paiges phone message.
explained:
She
a. Paige was six years old.

b. She told the Respondent she wanted to stay home with her mother on Christmas
Day.
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 Im
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 youre 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 left
the 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 cant violate that court order.
i. If she wanted to make a call to clarify access, I wasnt 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 and
then 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 was
finished, when Paige suddenly wanted to say more.
272.
The Respondent apparently made no effort to conceal from the child her
disapproval of the Applicants Christmas access entitlement. But she denied putting
Paige in the middle, or pressuring her to make the phone call.
a. She didnt have to do it. She wanted to do it.
b. I told her I wasnt going to do it.
273.
The Respondents glib distancing of herself from this sad phone message
highlights a fundamental concern about her sense of parental responsibility.
a.
b.
c.
d.
Parents are supposed to provide support for young children.

Not seek support.
They are there to provide reassurance. Confidence. Peace of mind.
Not seek an ally. Not manipulate the child into doing their bidding.
Page: 81
Page: 82
a. She has used the child as an excuse -- claiming its Paige who wants less access,
even though its obvious this is the mothers agenda.
b. She has used the child as a foot soldier implanting the notion that a bad thing
called a court order ties the mothers hands. And that only Paige herself has the
ability to step up and solve adult problems.
275.
Parents have a responsibility to be selfless.

a.
b.
c.
d.
To make their child feel good about a situation -- even if the parent feels terrible.
To put a positive spin on things.
To shield their child from unpleasantness and worry.
To provide optimism that everythings under control. Everythings going to be
ok.
276.
Six year old Paige never should have left that pre-Christmas phone message for
her father.
a. She shouldnt have wanted to.
b. She shouldnt have perceived it was an option.
c. She shouldnt have had someone dial the phone for her and let her do it. While
they watched.
277.
I note the Respondent testified this wasnt 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 her
father.
d. The Respondent appeared to have no insight as to the pressure this placed on
Paige.
278.
When the Applicant finally got access over the Christmas break, there were more
problems. White testified about an incident relating to the Respondents 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.
274.
Throughout this bitter separation the Respondent has needlessly drawn Paige into
the adult conflict.
Page: 83
279.
The Applicant said Paige quoted the Respondent as saying I cant live without
you. Im going to die without you. The Respondent also said Hide your homework in
your locker so it doesnt go to your fathers. (This relates to another problem I will
discuss 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 the
Respondent.
a. She said this was not unusual. Parents often try to continue to communicate with
her even after she has completed her work.
b. She said she didnt respond to any of the Applicants e-mails, and didnt act on
the contents, because the investigative phase of her assessment was over, and she
intended 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 Paiges situation deteriorating.
The child was
vomiting, experiencing dry heaves and headaches.
e. Looking back on the Applicants e-mails, she said they didnt 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 didnt regard it as manipulation, and certainly wasnt influenced by the
Applicants e-mails. Every parent who comes in re-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 a
trade.
b. They had a dispute over timesharing at Easter.
c. In June the Applicant kept Paige overnight when the Respondent didnt think he
should have. She called the police.
d. During the summer the Applicant again complained about long gaps when the
Respondent wouldnt allow him to see Paige.
e. There were disputes over Thanksgiving and Halloween.
d. She became so upset that the Applicant took her to the bathroom where she
vomited.
e. Paige said Mommy says she cant be apart from me, Mommy misses me and
other similar statements.
Page: 84
f.
The Applicant said he got about five days of access over the Christmas school
break after lots of battling.
282.
I received considerable evidence about various efforts to arrange counselling for
Paige.
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.
b.
c.
d.
Both parents agreed.

Unfortunately it took a while for Buist to become involved.
Buist was assigned to the file in January 2013.
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 wasnt an interview. She let Paige talk and draw a picture.
b. Paige spoke of both parents; the Applicants fianc; and the fiancs two children.
c. Paige said at the Applicants home she sleeps in her own bed, but in the
Respondents home she sleeps in bed with her mother. Buist testified that she had
no concerns about a young child sleeping in a parents 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 didnt appear apprehensive about speaking with Buist. Her behaviour
appeared within the range of normal regarding 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 Paige
the 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 didnt 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.
COUNSELLING SARAH BUIST
Page: 85
287.
Buist said she was surprised and disappointed by the Respondents decision to
abruptly end the social workers 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 wasnt 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 recommended
counselling 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 possibly
with more specialized qualifications). She said Paige needed someone she could
trust. The appearance to the child should be that the counsellor is someone
independent of her parent.
d. Complication arose finding a counsellor who was covered by the Applicants
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, and
McMillan 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 counselling
for Paige but she would not be a witness in court.
g. Ramani did not testify, although I received reports from various witnesses about
the child psychologists services and comments.
291.
The Applicant and the Respondent disagreed on how often Paige needed to see
Ramani.
a. The Respondent didnt set up the recommended therapy.

b. She said she anticipated the issue might come up in the pending custody
assessment.
a. Paige initially saw the psychologist from April 2014 to July 2014.
The
Respondent 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 Respondents counsel what it would take to convince him
Paige no longer requires counselling.
b. The Applicant said he would be satisfied she doesnt need counselling when shes
not crying on his shoulder saying I hate my life.
293.
Asked whether she thought Paige needed more counselling, the Respondent was
non-committal.
a. She said shed 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 hasnt demonstrated that she needs more
counselling or would benefit from it.
294.
The Respondent admitted that overall Ramanis involvement has been helpful.
But she said there were problems:
a. Sometimes Paige wasnt 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 keep
things 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 and
sometimes she needed to discuss things with Paiges parents.
e. The Respondent said she explained Paiges 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 doesnt want to go to counselling
any more.
Page: 86
Page: 87
a. During intake the Respondent told Ramani that Paige had constant worry and
stress, as the child didnt want to go to the Applicants home.
b. The Respondent told Ramani Paige is fearful and anxious about going to the
Applicants 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 Paiges mood and behaviour was different depending on
which 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 to
the Applicants home. After the initial minutes in session, Paiges mood would
change and she would speak positively about both of her parents.
b. But when the Applicant brought Paige to sessions, she appeared bright, shiny
and happy.
298.
Hayes agreed with Ramanis suggestion that Paige may benefit from having
psycho-educational testing.
299.
Ramani told Hayes she had Paige make up a small STOP SIGN out of
construction 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 visit
after 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 Paiges
backpack. Perhaps Paige forgot about it.
d. The Applicant and White both testified they were quite familiar with the contents
of Paiges backpack. There was no possibility the STOP SIGN was in there.
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 Paiges problems differently.
e. CAS worker Grice testified Paige told her Ramani made a STOP SIGN so Paige
can 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 she
allows Paige to take the STOP SIGN to the Applicants residence. But Pearce
also testified that on August 22, 2014 Paige told her the Respondent hides the
STOP SIGN so that the Applicant cant 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 she
doesnt want to talk about.
h. Paige told Anderson the Respondent hides the STOP SIGN at her house so she
cant use it. But the Respondent told Anderson the STOP SIGN was always in
the back pack. The Respondent denied hiding it.
i. Hayes testified she understood Paige used the STOP SIGN once, and then
something 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 Book
were produced in court.
a. On the third page there was a space for the child to draw a picture of what makes
them 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 dont know what those pictures were
dealing with. She again insisted that she doesnt cry in front of Paige.)
302.
CAS worker Kathryn Anderson testified about a telephone conversation with
Ramani 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 doesnt want
to talk about her parents.
c. Paige wants to stop talking about family problems.
d. Paiges major worry is that she will say something wrong and then she will be in
trouble at the other parents house.
e. Last week Paige was concerned about the mother not being her friend any more,
but doesnt feel that she is scared of her mother or that the mother would do
anything to her.
f. Paige feels caught in the middle and has learned to problem solve the issues
herself.
Page: 88
Page: 89
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 of
the history of conflict.
b. Ramani feels Paige worries that she has to please her father.
c. Ramani said because the parents cant communicate, it creates large conflicts.
d. Ramani said repeated interviews by CAS could be potentially emotionally
damaging.
CHILDRENS AID SOCIETY
304.
I heard a great deal of evidence about the involvement of the Hamilton Childrens
Aid Society (CAS).
305.
As stated, in December 2013 Paiges school contacted CAS expressing concern
about the Respondents behaviour toward the child (culminating at the Christmas
concert). This resulted in CAS providing various services for the family between
December 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 CAS
after 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
wasnt something she could approach the Applicant about personally. CAS never
followed up with the Applicant.
c. The Respondent said she was unaware of any previous occasion when the
Applicant failed to use a proper child car seat. But she was concerned it might
happen 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 crossexamination the Applicant denied lying to Hayes.
He said perhaps she
misunderstood 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.
g. Ramani questioned the purpose of the Applicant calling the CAS into the
situation. 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 Paiges best interests at heart.
Page: 90
g. CAS worker Alison Grice testified that during the subsequent investigation she
met everyone, interviewed collaterals, and concluded there were no safety issues.
Paige is physically safe in the care of either parent.
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 only
learned 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 his
home:
a. Sometime in the spring of 2015 the Respondent contacted CAS to report that two
months earlier Paige had access to a bottle of Tylenol while at the Applicants
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 was
a legitimate safety concern in his house. She had never discussed the matter with
him, 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. Any
medications 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 from
dangerous substances in the home.
e. The Applicant testified that neither the expressions of concern nor the timing of
events 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 Applicants residence she went looking
for Tylenol because she had a headache. She found some but didnt take any.
c. The Respondent testified Paige subsequently told her that on April 22, 2015 she
went looking for Tylenol while at the Applicants 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 didnt 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, but
she didnt mention anything about the child finding Tylenol in February.
a. The Respondent said she didnt intend to initiate a complaint. But coincidentally
CAS called and asked how things were going. So she told them about her thenseven-year-old daughters unsupervised use of Tylenol.
TYLENOL
Page: 91
310.
The Respondent admitted she took no action in response to Paiges initial
comment about access to Tylenol in February 2015.
a. She said she thought at that point CAS was closing its file. She really didnt think
there was any point stirring things up.
b. She said she warned Paige in February that she should never again access Tylenol
at the Applicants house. She trusted her daughter would obey that rule.
c. She didnt say anything to the Applicant in February because they cant
communicate. She anticipated any expression of concern on her part would
trigger an automatic harsh reaction.
311.
However, in addition to contacting CAS about the April incident she also sent an
e-mail to the Applicant on April 29, 2015 which stated:
I have done some reading and learned that kids at Paiges age, in discovering
their independence, may choose to access household chemicals or drugs that
could be harmful to them. For Paiges safety, kindly make sure that all drugs
and 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 didnt 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, not
even 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 to
approach the Applicant about it.
b. But she wanted to reassure Paige that she would communicate with the Applicant
in 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 wasnt
accusatory, but simply reminded the Applicant that dangerous things should be
stored 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.
b. There was no suggestion Paige had taken an inappropriate dose of Tylenol. She
has been given Tylenol in the past.
c. But the Respondent said she felt Paige being able to access drugs like Tylenol in
the Applicants home was a child protection issue.
d. She said CAS never spoke to Paige about it.
Page: 92
She didnt think there was anything wrong with having Paige help draft her e-mail
to 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 adult
discussion.
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 what
happened and not expect any recourse thats 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. Im not trying to cause this three-ring circus. Im trying to remove myself and
my daughter from it.
315.
Ironically, on October 2, 2014 -- months before her Tylenol complaint the
Respondent e-mailed the Applicant advising him she left prescription ear drops in Paiges
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 crossexamined about this:
a. She acknowledged that she sent Paige to school with prescription ear drops.
b. She sent them in her backpack. She didnt know of any school policy against
sending medications with children. She didnt 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 Paige
knew not to ingest them.
d. Under cross-examination she acknowledged that sending medications to school
might pose a risk to other children who might not know what they were.
316.
The Respondents bottom line:

a. She didnt endanger Paige with ear drops.
b. He endangered Paige with Tylenol.
317.
Once again, the manner in which the Respondent handled the Tylenol issue raises
more questions about her parental judgment than his safety standards.
a. If she really thought there was a danger in the Applicants home in February or
April she should have immediately and clearly notified the Applicant.
b. I reject the Respondents claim that she wanted to send a non-inflammatory email to avoid any sort of backlash by the Applicant.
f.
Page: 93
318.
But the real concern about the Respondents e-mail to the Applicant is that she sat
down and drafted it with Paige.
a. As with the pre-Christmas phone call, what subtle message was she giving the
child? Its us against him?
b. This was by definition an adult issue. One adult reminding another adult to
keep drugs safely away from a child.
c. If then-seven-year-old Paige was mature enough to help write that message to her
father then the message didnt 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 wasnt 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 they
have to work as a team against him.
CAS WITNESSES
319.
The Respondent alleged the entire CAS investigation was slanted against her
because of the Applicants frequent and malicious complaints; and his manipulative
techniques.
320.
She claimed the Applicants real motive was to have CAS apprehend Paige from
the mothers care.
a. The Applicant denied this.
b. None of the CAS witnesses perceived the Applicant was requesting or hoping that
Paige would be apprehended.
c. Grice recalled telling him that the childs immediate safety was not at risk, and
that the issues were generally related to parenting, custody and access. She felt he
understood this.
d. Kathryn Anderson said the Applicant didnt convey any expectation or request as
to what CAS would be doing.
321.
The Respondent claimed the Applicant complained to CAS so frequently, about
so many irrelevant things, that Society workers should have recognized that he was acting
in bad faith.
c. The exhibit briefs in this trial probably include hundreds of often acrimonious emails between the parties. It is hard to believe that anyone hesitated for even a
moment to worry about sparing the other partys feelings.
d. The e-mail she actually sent on April 29, 2015 was so generic it said nothing. It
didnt reduce any risk to Paige because the Applicant could never have figured
out that she was hinting he should put his Tylenol away.
a. Her lawyer suggested between December 2013 and May 2015 the Applicant
contacted the agency 161 times.
b. The Applicant didnt think that total was accurate. But he denied contacting CAS
excessively or needlessly.
c. Grice testified she received more communications from the Applicant than the
Respondent. But she couldnt draw any adverse inference from the number of
communications. She said she didnt fault him for being too persistent.
d. Grice said that like many parents, the Applicant had a hard time understanding
that the Societys mandate was very limited only to deal with child protection
concerns. She said he had a great deal of information he wanted to provide in
relation to the broader custody-access dispute. She didnt 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 memo
setting 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 many
serious concerns and allegations about the Respondent.
g. Grice, Pearce and Anderson all agreed it wasnt unusual for a parent to call
frequently, or want to talk about custody/access issues which were beyond the
Societys child protection mandate.
h. Hayes testified she didnt 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 CAS
would be in a better position to decide if they felt he was contacting them
inappropriately 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. She
didnt feel he was malicious or acting in bad faith.
c. Pearce testified she never had the sense the Applicant was misleading her or
trying 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 toward
Paige and equally cooperative with the social workers investigation.
d. Anderson acknowledged that on a couple of occasions the Applicant analogized
the CAS investigation to work he does as a police officer. She said she told him
they operated in different systems with different considerations. She couldnt 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: 94
Page: 95
324.
She claimed CAS kept opening and closing her file, but old inaccurate
information 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 wasnt.
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 parent
worried about a child.
c. But Hayes noted that at least some of the Applicants concerns about the
Respondent 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 concerns
about 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 a
dining room table. She seemed stressed and just wasnt 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 injuries
children can get.
d. But when he asked Paige about a bruise which looked like three finger marks on
her thigh, he said she went robotic and said she didnt 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, she
should tell him.
h. She said I dont 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 fianc 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 was
crying and called herself a bad girl
m. When he was able to speak to her she made a number of troubling statements.
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 the
CAS workers felt there was any basis to this complaint.
n. Mommy tells me to say things to this lady.

o. I have to tell her that daddy doesnt love me. That daddy says moms trying to
ruin my life. That daddy doesnt 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 Paige
in so they could speak to her privately.
r. After the worker spoke to Paige, she told the Applicant that as soon as the worker
asked about the bruises, Paige threw up.
s. He testified that CAS referred the issue to a child abuse specialist at McMaster
University 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 didnt 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 idea
what 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 didnt look into the matter of a
serious, suspicious injury to his daughter.
327.
The Respondent testified about the CAS investigation of bruising on Paige.

a. She didnt notice any bruising.
b. She said Grice referred to the invisible bruises.
328.
The Respondent blamed the Applicant for maliciously making the bruising
allegation without regard to the devastating emotional impact on Paige.
The
Respondents testimony was emotional:
a.
b.
c.
d.
e.
Paige was horrified by the experience.

She was humiliated.
Her pants were pulled down.
She knew exactly why she was there.
Shell never forget that her dad brought her to some agency to accuse her mother
of hurting her physically. Thats whats troubling me the most.
Page: 96
Page: 97
Shell never forget that.
That sort of thing is something Paige will never forget.
It was quite understandable Paige vomited at the CAS office.
Paige had a horrible day and a horrible visit with her father.
329.
Grade one teacher Cosentino testified about a bruising incident which she found
unusual.
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 didnt want to answer, so the
teacher backed off.
d. Eventually Paige approached her and initiated discussion about the bruise. She
said it was nothing. She fell off her bike.
e. Then she said that she wasnt supposed to tell the teacher what had happened.
f. Cosentino testified that as soon as a child says they are afraid to tell her
something that happened, thats a red flag for her.
330.
Cosentino was cross-examined about the bruising incident:

a. She couldnt recall where the bruise was.
b. She couldnt recall if she ended up calling CAS about this.
c. She wasnt necessarily concerned about the bruising itself. Her concern was the
childs reaction when asked about the bruising. She described it as an odd
reaction.
d. She found the childs statement: Mommy said not to say it happened at her
house to be concerning.
e. Cosentino testified she wasnt 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 couldnt remember how she got the bruises.
b. Nonetheless Grice concluded the child had suffered normal, non-suspicious
bruises.
c. She did not question the Applicants motive in raising the issue. It was
understandable that he would follow up when she couldnt explain to him the
source of the bruising --- particularly if she reacted strangely when asked about it.
d. Grice said it wasnt the Applicants idea to bring Paige to the CAS office to be
examined. Grice immediately asked him to bring Paige in, because whenever
they receive a report of bruising they have to see the bruising within 12 hours.
f.
g.
h.
i.
e. Grice testified as soon as Paige arrived at the CAS office she verbalized that she
felt sick after school. During the interview Paige announced she was going to be
sick, and then threw up in a garbage can.
f. Grice didnt think the Applicants questioning of the child caused her to throw up
during Grices private interview with Paige.
g. She didnt 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 the
Applicant, 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 wasnt too concerned about the bruises themselves, but she
was quite concerned about Paiges reaction when she was casually asked about
the bruises.
b. White said Paiges eyes went blank and she started crying.
334.
Principal Rizzo didnt 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 as
opposed to an allegation of physical abuse.
b. In any event, she understood CAS concluded there was no verification of any
inappropriate behaviour.
c. Hayes said she didnt 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 of
allegations that couldnt be verified, that would be more concerning.
e. She said making one allegation which wasnt verified didnt really cause her to be
suspicious of the Applicant, particularly since the Applicants overriding concerns
about emotional abuse were verified.
336.
On this issue I cannot fault either parent.

a. I accept the Applicants explanation that he saw unusual bruising. Mainly he was
concerned about the childs suspicious reaction when asked about it.
b. By the same token I fully understand the Respondent perceived she was being
falsely accused of physically abusing her daughter.
c. I accept the Societys conclusion that these were normal, non-suspicious bruises.
d. I accept the Respondents evidence that she has never physically abused Paige.
e. I accept the Applicants evidence that he wasnt accusing her.
f. I accept Hayes conclusion that there was no bad faith involved. Just bad luck.
Page: 98
Page: 99
g. These parties didnt need more reasons to mistrust one another. Unfortunately,
the damage is done.
CAS CLOSED FILE
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 between
the parties persisted.
339.
The Applicant gave two example of how something as simple as losing a baby
tooth 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 was
apprehensive 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 Applicants
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 didnt 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 the
Respondents residence.
c. She kept asking if there was any way she could put the tooth back into her mouth
so that the Respondent wouldnt know it had fallen out at the Applicants home.
Again, she was apprehensive about the Respondents disappointment.
d. She asked Daddy can I tape it back into my mouth?
337.
Page: 100
e. The Applicant said he again calmed her down and reassured her that the tooth
fairy would come visit that night.
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 mothers home.
f. She said important things are supposed to happen at her mommys.
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 glue
to put it back in my mouth. Mommys 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 any
difference if her baby teeth fell out at the Respondents home or elsewhere.
b. She said rather than the Respondent having a preference, it might be Paige herself
who has a preference: Because the tooth fairy at the Applicants house only
leaves $2.00 whereas the tooth fairy at the Respondents 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 Pearce that when Paige worried about the Respondents
reaction if her baby teeth fell out at the Applicants 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:
341.
Page: 101
348.
Playing with mom.

Going to see her grandparents.
Going swimming.
Playing at the park.
Hugging dad.
Playing with Barbies.
The Worries included:
a. When mom and dad fight when theyre together, Paige can hear it.
b. Her mother wants Paiges teeth to fall out at her mothers home, but daddy says
not to worry about this
c. Catherine Whites son Tyler bugs her sometimes.
d. The mother hides the stop sign so that the father cant have it.
349.
The wishes included:

a. Wishing she could fly.
b. Wishing her mother would not say bad things about her father. Her mother says
dads a loser and a jerk. Her mother tells her not to tell anyone.
c. That Tyler would stop picking on her.
d. Mom and dad (dont) fight about No, I want Paige.
e. Tons of cute toys.
350.
Pearce interpreted Paiges 3 Houses drawings and comments:

a. She was concerned about the level of conflict between the parents which Paige
was witnessing.
b. She was concerned about how aware Paige was of what was going on.
c. She was concerned that Paige had received a clear message that the Respondent
wanted the childs baby teeth to fall out in the Respondents home. Paiges
statement was consistent with the Applicants version of events.
It was
inconsistent with the Respondents denial to Pearce that she really had no view
about where baby teeth should fall out.
d. She was concerned about Paiges comment that mom hides the STOP SIGN.
Again, this was consistent with the Applicants statements, and inconsistent with
the Respondents very specific denial to Pearce. The social worker was
concerned that the stop sign had been recommended by Ramani, and it was one of
the few tools this young child had to try to shield herself from upsetting
statements.
e. Pearce was concerned about Paige wishing the Respondent would stop saying bad
things about the Applicant, and being able to give a very specific example.
Again, this is consistent with the Applicants allegation of denigrating statements
and inconsistent with the Respondents insistence that she has never spoken
negatively about the Respondent.
a.
b.
c.
d.
e.
f.
Page: 102
f.
Pearce testified she had no concerns about Paiges 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. Paiges words came out very fluidly and she did not appear nervous or selfconscious.
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
Respondents 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
Respondents home. That the Applicant isnt 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 adults
from saying upsetting things.
b. The STOP SIGN was primarily directed at the Respondent. Paige made it clear
the Respondent was making negative and upsetting statements much more than
the Applicant.
c. I find that the Respondent took the STOP SIGN away from Paige because she
didnt want the child having the ability to resist or draw attention to the
Respondents negativism.
d. I find that this is consistent with the Respondents general resistance to
counselling for Paige.
e. The Respondent doesnt want anyone interfering with what she says and does
with her daughter.
MANIPULATION OF CHILD
354.
Each party accused the other of making inappropriate comments to Paige, and
generally attempting to manipulate the childs allegiances.
351.
Pearce said these immediate responses by the child about good things, worries
and wishes, cause her to worry about the childs level of awareness of the conflict,
and how she is processing that information.
Page: 103
a. Police officers kill people and you shouldnt go to the police (the Applicant is a
police officer).
b. The Applicants mother was not really her grandmother and she needed to be
careful around her.
c. She shouldnt talk to the Childrens Aid Society woman or her counsellor
Ramani.
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 of
vomiting 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 youll never see mommy again.
c. The Judge will make it so you dont see your friends again.
358.
The Applicant testified sometimes Paige would ask him Why is mommy doing
this?
a. She was referring to all of the Respondents bizarre behaviours and statements,
and her constant negativity toward the Applicant.
b. The Applicant testified he didnt 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 didnt have an
answer.
359.
The Applicant denied the Respondents 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 doesnt speak
negatively about the Applicant anymore.
355.
The Applicant testified CAS reopened its file in the fall of 2014 because the
Respondent was telling Paige things like:
b. She admitted there were times when she slipped up in the past and might have
said 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 they
must 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 doesnt 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.
b.
c.
d.
e.
f.
Mommy is trying to give you a bad life.

Mommy is trying to make you hate me.
Dont listen to mommy.
Mommy doesnt feed you good food.
Paige be careful what mommy says.
Mommys trying to teach you how to lie.
363.
Under cross examination, the Applicant categorically denied making such
statements. White denied ever hearing him speak like that.
AUDIO RECORDING
364.
The Applicant alleged the Respondent went beyond denigration. He said she used
a 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 didnt 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 dont want to put words in your mouth.
d. The Applicant testified Paige told him the Respondent would also coach her about
what to write in her school journal.
365.
The Respondent admitted she frequently tape recorded her daughter.
nothing wrong with it.
She saw
a. She testified that after many visits with the Applicant, Paige returned and
spontaneously 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: 104
d. She wanted to write down Paiges statements after each visit because she wanted
to 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 never
happened.
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 doubt
that the Applicant would insist that the matter proceed to trial. She said she
wanted 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 didnt think Paige was self-conscious about it, because the Respondent used
to tape record her numerous times for numerous different reasons including
music 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, but
she didnt identify who, and she couldnt remember when she started.
b. She said she couldnt remember if she had recorded any teachers. She may
have recorded Cosentino.
c. She didnt 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 Applicants lawyer) the existence of
any of these tapes.
e. She said she had no intention of using any of the tapes as evidence except the
existence of the tapes was revealed only after the Respondents lawyer attempted
to use one of the tapes during cross examination of CAS worker Pearce.
Page: 105
Page: 106
f.
The Respondent said she was unable to find any other method of defence against
those lies.
370.
CAS worker Julie-Ann Pearce testified she specifically asked the Respondent
about recording people.
a. During a meeting on August 5, 2014 the Respondent told her she doesnt audio or
video 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 childs 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 and
comfortable with each parent. But she said Paige remained uncomfortable about the
Respondents inappropriate statements and behaviour -- such as recording her.
372.
CAS worker Alison Grice testified about a private interview she had with Paige
on 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 didnt say nice things about the Applicant.
e. Paige said she didnt talk about her father in front of her mother because she
didnt 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 Applicants 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 the
Applicant.
373.
This wasnt the only allegation of people electronically recording other people.
374.
The Respondents friend Chantel Danis testified she saw the Applicants fianc
White videotaping as the Respondent picked Paige up from school one afternoon.
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.
a. Danis testified she happened to be at the school on October 7, 2013 and noticed a
woman wearing a black hoody as if to conceal her face. She couldnt 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 childs i-pod.
c. During examination in chief, she said she was 90% sure the woman was the
Applicants fiance Catherine White.
d. Under cross-examination she quickly admitted maybe it wasnt 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 alone
identify 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 Paiges school. White also produced detailed cell phone
records 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 Respondents 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 didnt 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 couldnt have happened.
c. The fact that we wasted time even dealing with this allegation helps explain why
this ended up being a 36 day trial.
378.
My biggest concern is the Respondents electronic recording of Paige during
exchanges and particularly after she returned from visits with her father.
a. Surreptitious or secret recording of children and parties in family litigation is bad
enough. 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: 107
Page: 108
379.
But the Respondents decision to systematically audio record Paige after she
returned from each visit, reinforces fundamental concerns about the mothers 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 single
conversation?
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 conspicuous
recorded debriefings immediately afterward, what message was the Respondent
conveying? What message has she been conveying to this stressed out child for the past
four years?
a. That contact with her father is something to worry about.
b. That only her mother will protect her. Only her mother knows whats best.
c. That if they stick together, mother and daughter will get through this horrible
situation the father has created.
381.
Its little wonder the Applicant and White testified Paige would get progressively
more upset to the point of soiling herself -- as the time approached for the child to
return to the Respondents home. I suspect the Respondents projected paranoia was
more damaging to Paige than any potential harm while in the Applicants 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 coaching
and pressuring her daughter.
383.
For example, Paiges grade one teacher Cosentino testified about a June 2014
entry in the childs agenda.
b. Photographing access exchanges is equally destructive. It puts the child in the

middle. It exacerbates tensions and creates a heightened sense of potential or
imminent conflict. It clearly demonstrates that the parent holding the camera is
focussing 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).
a. There had been ongoing concerns about the Respondent not allowing homework
or other documents to go to the Applicants 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 BOOK
IS AT DADDYS HOUSE HE CANT FIND IT.
384.
Cosentino testified that based on her familiarity with the then-six-year-old childs
vocabulary and writing skills, she immediately concluded that Paige had been told what
to write. But Cosentino knew how easily Paige became stressed, so she elected to keep
her 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 Im sorry over and over
again.
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 to
express 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 youre a bad teacher and I shouldnt 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 didnt 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 made
her write the note.
c. She speculated that Paige might have been worried about her fathers reaction if
she 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 didnt stop her. It is her prerogative.
g. She said Paige was trying to convey a message to whoever was asking her where
her book was. Paige was trying to say that the book was at her fathers residence
and her father had misplaced it.
387.
Cosentino testified about another occasion when Paige was upset about being told
by the Respondent to lie.
Page: 109
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 had
homework.
c. She told him she didnt 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 take
homework to the Applicants home.
g. She didnt want to contravene her mothers instructions, and she didnt want to lie
to 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 Paiges medical care.
a. The Applicant testified that prior to separation he was actively involved attending
Paiges doctors 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 about
appointments.
c. The Respondent testified prior to separation she assumed primary responsibility
for Paiges health care and everything else in Paiges life.
d. She said after separation she didnt notify the Applicant about Paiges medical
appointments because he wasnt in their lives, and he showed no interest in the
child.
e. McMillan didnt go along with the Respondents 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. Its 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 Paiges life prior to separation? Yes.
b. Was his involvement in Paiges life reduced by the Respondent after separation?
Yes.
c. Did he want to be more involved equally involved in Paiges medical care?
Yes.
Page: 110
Page: 111
d. Is he equally capable and dedicated to ensuring Paiges medical well-being? Yes.
Parenting between separated parties is not supposed to be a competition or turf
a. Sometimes at the interim stage, parents involved in a custody dispute perceive

they 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 took
the position that as soon as a health issue arose in Paiges life, only the mother could
handle it. There were also several instances in which it was clear that the Respondent
was 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 she
kept 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 hadnt produced the
complete 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 Applicants 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 ear
infection -- whereas in fact she only informed him after he sent her an e-mail
asking why didnt you inform me?
g. When asked why she hadnt actually informed the Applicant about the ear
infection 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 child
mentioned that earlier in the day the Respondent had taken her to the dentist to
have 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 dentists
office she fainted.
390.
war.
c. The Applicant testified he was concerned that when he picked Paige up the
Respondent hadnt mentioned the dental visit or fainting.
d. He felt it would have been helpful to know that she had dental work, so that he
could 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 ensuing
hours.
f. The Applicant testified that later in the evening after he had returned Paige to
the Respondent -- she sent him an e-mail advising him about Paige fainting. She
said she hadnt 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 the
office.
c. The dentist picked Paige up, moved her to a dental chair, and monitored her for
about 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 nothing
about Paige fainting at the dentists office or even that she had taken Paige to
the dentist.
b. Asked if she should have mentioned the fainting during the access exchange, she
said we dont speak at pick up.
c. Asked whether she might have said something like: Paige fainted, keep an eye
on her, the Respondent replied: No, I wouldnt even think of talking to Mr.
Jackson at an exchange.
d. After being reminded that parents should share important medical information
about a child even if they dont 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 didnt want the Applicant to be alarmed if
Paige fainted.
a. But notably, the Respondent never said anything about a family history of
fainting in her e-mail.
b. This was another instance in which the Respondent claimed credit for sharing
information about Paige even though she didnt convey the information until
after it was of no use to the Applicant.
Page: 112
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 Applicant
anything about it.
398.
One of the most emotional areas of conflict related to the childs surname.
399.
As stated, the childs legal name is Paige Emily Jackson.
400.
But the Applicant testified that since separation the Respondent has substituted
her surname for his:
a. He said she registered Paige at school and recreational activities under her
surname 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 doesnt know how to answer
when someone asks about her name.
402.
Senior kindergarten teacher Lawson recalled conversations she had with Paige
concerning the childs surname.
a. Paige said her mother said the childs last name was Mayerle.
b. Paige wasnt 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 Paiges 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 Paiges
last name was identified as Jackson.
d. Paige then said to Cosentino: Mommy says my last name is Mayerle and I have
to write Mayerle on everything.
e. Cosentino didnt want to add to her stress, so she told Paige that she could write
any 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:
CHILDS SURNAME
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 Paiges anxiety would be reinforced by the
frequency with which shed have to routinely write her name at school.
c. The name issue was a constant reminder that her parents really couldnt 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 a
childs issue. Paige had a right to have this fundamental issue in her life settled.
405.
Grade two teacher Stickney couldnt recall whether Paige made any comments to
her 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 never
changed it.
b. She admitted that on some school forms she has included Mayerle in addition to
Jackson.
c. She said some of Paiges 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 they
should be returned to.
e. Generally she said she has not deleted Jackson, but has simply added Mayerle.
407.
The Respondent testified she would like Paiges 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 feels
equally 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 childs grade two
agenda:
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 Applicants
name or information.
c. The childs name was identified as Paige Mayerle. The Respondent wrote that
name in and the child signed Paige Mayerle below. There was no mention of
Paiges legal surname Jackson.
d. The Respondent said it was Paiges decision to use Mayerle.
Page: 114
Page: 115
e. That is something she did on her own and shes free to do that.
The name change issue is always sensitive with parents.
a. There is often no right or wrong answer.
b. The debate often focuses on whether amending the name would amount to
adding or taking away.
c. Whether the child would be better off. Or worse off.
410.
But unilateral changes particularly in the midst of high conflict custody disputes
never serve children well.
411.
I accept the legitimacy and symbolism of the Respondent wanting Paige to have
some enduring connection with the Mayerle name.
412.
But I also find that she handled the situation poorly.
a. She shouldnt have acted unilaterally.
b. Despite her claim that she wasnt trying to replace the Applicants name Paiges
legal name -- on many occasions that appears to be precisely what she was doing.
c. Through cross-examination she reluctantly admitted the Mayerle name
substitution was more pervasive than she first let on.
d. As on many issues, when she was cornered about why something inappropriate
happened, she said it was Paiges idea.
e. Worst of all, she appeared oblivious to the fact that what she was doing was
making the child unhappy.
413.
In other circumstances I might try to find a way to include the mothers surname,
even as a middle name. Thats often a fairly benign compromise.
a. But here, the Respondents obsessive behaviour and mindset have made this a big
issue that needs to go away.
b. The Respondent has identified Paige as Mayerle -- not to promote maternal
heritage -- but as part of her effort to dominate every aspect of the childs life, and
erase any connection between Paige and her father.
c. This has caused stress and confusion for the child.
d. The issue of a name change must be determined based upon the best interests of
the child.
e. Paige is acutely aware and sensitized to this issue. She needs to stop worrying
about what to call herself.
f. Adding Mayerle as any part of Paiges name would simply create more
opportunities for the Respondent to substitute or prioritize her name over the
Applicants.
g. And it could easily create situations in which Paige feels pressured to use
different parts of her name, depending on which parent she is with.
h. That emotional tug of war cannot be allowed to continue.
409.
Page: 116
STOP, STRANGER, POLICE
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 didnt
discuss 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 to
them, they should fall to the ground, kick their feet, shout for attention, and create
a commotion.
416.
White testified about haircuts.

a. She said in May 2015 Paige had been begging to get a shorter haircut, so the
Applicant 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 Paiges
comments 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 she
had a haircut.
c. Stickney said her hair looked very nice.
d. Paige didnt seem upset about the haircut, but she was worried that her mother
disapproved 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.
414.
And even something as simple as haircuts exposed the child to unnecessary
drama.
415.
The Applicant testified:
Page: 117
419.
On a very basic level, the inability of the parents to agree on something as simple
as haircuts is merely one more example that communication and goodwill is non-existent
between these parties.
420.
But the Respondents reaction when the Applicant arranged haircuts was telling:
a. Rather than communicate her disapproval to the Applicant, she once again made
the child a participant in the discord.
b. Rather than reassure her daughter that the mother would take care of it, the
Respondent 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
Respondents 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 her
than 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 Respondents own family doctor was that Paige loves
both parents equally. And both are equally good parents.
426.
And yet the Respondents claim to parental superiority and entitlement was
particularly pronounced when it came to Paiges 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.
c. The Respondent said she and Paige always had a nice routine of getting their
haircuts together, and she thought this should continue.
d. The Respondent could not explain why Paige would have told Stickney that her
mother was being mean about her haircut.
Page: 118
428.
I find that the Respondent made consistent and deliberate efforts to marginalize
and exclude the Applicant from parental involvement at Paiges school.
a. On school forms she named herself and members of her own family as emergency
contact people. She excluded the Applicant, or provided out of date contact
information about him.
b. She regularly identified the child using her own surname Mayerle, often omitting
any reference to the childs legal surname 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 giving
it to the Applicant rather than the Respondent. Rizzo said the Respondent came
into the office shouting and crying that the package of information hadnt 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 too
late for him to participate in the event.
g. She physically altered or tampered with some documents he received. For
example, in October 2014 the Respondent forwarded to the Applicant a letter
from 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 teacher
inviting 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 the
Applicant, she covered over the invitation to come in. The Applicant only
discovered later that the teacher had wanted to see both parents.
h. She also altered or tampered with documents so that it would appear to teachers
that the Applicant was not actively involved as a parent.
429.
I find that the Respondent made consistent and deliberate efforts to exclude the
Applicant from any involvement in Paiges 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 Paige
nightly, be signed by a parent, and returned the next day. Morning classroom
time would be devoted to reviewing agendas and confirming parental
involvement. If Paige had her agenda and it had proper entries, she would get a
sticker. All the children liked getting stickers.
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:
b. Despite the Respondents denials, the evidence was overwhelming that she
routinely withheld the agenda from going to the Applicants house on transition
days. She would bring Paige to school without her agenda if the child was
destined to go to the Applicants 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 the
agenda, the Applicant wouldnt know about homework or school projects and
activities. And without the agenda, it was more difficult for the Applicant to
communicate with teachers.
d. I find that on one occasion the Applicant tore a page out of the agenda, because a
teacher had written an unfavourable remark about her. The original copy of that
years agenda mysteriously disappeared. But the Respondent produced what she
said was a scanned copy of the entire document. There were indications another
of 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 Childrens Aid Society and the
section 30 assessor that the Applicant was finally able to gain more access to the
agenda.
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 didnt know why she was not allowed to bring it to her
father.
h. And the Respondent frequently insisted that homework was not to go to the
Applicants home it was only to be done at the Respondents home.
i. I find that this was part of the Respondents overall Paiges important things can
only happen at my home policy.
430.
But the Respondent wasnt 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 would
have 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 Paige
academically, the problem of homework and books not going to the Applicants
home continued.
c. Grade one teacher Cosentino emphasized that the best way for non-francophone
children like Paige to succeed in her French immersion program was through
homework assignments, and consistent parental support in the home. But with the
Respondent deliberately withholding homework from going to the Applicants
residence, Paige was constantly placed at a disadvantage compared to other
children. And her stress was amplified by the embarrassment that the other
children had their proper materials; the other children had done their homework;
the other children were doing better.
Page: 119
d. Paige has been described as a struggling student. Having just started grade three,
she is one year behind in both English reading and French reading. There is
considerable doubt about whether she should remain in a French immersion
program. The Applicant feels that between her academic struggles and her
overall stress she has too much on her plate. Some of her teachers tend to
agree, even though the Respondent says Paige wants to stay in French immersion.
A decision about whether she would be better off switching to the English stream
will have to be made soon. But the parties disagree about what should be done.
e. Hayes said Paiges ongoing anxiety could most certainly impact on her
performance at school.
f. Cosentino testified that she would sometimes ask Paige about why she didnt take
her homework to her fathers residence. Initially Paige would claim that she left
it someplace. Then she would explain that her mother had told her not to take her
homework to her fathers home.
g. I heard from various teachers who tried to compensate for the Respondents
behaviour by e-mailing homework directly to the Applicant, or creating a makeshift duplicate agenda so hed stay in the loop.
h. But as much as teachers tried to help, the Respondent found ways to reaffirm that
she was in control. For example, senior kindergarten teacher Lawson testified
about e-mailing homework to the Applicant. Paige properly completed the
homework at the Applicants residence. But the Respondent later made her copy
out the same homework at the mothers home -- because thats where homework
was to be done.
i. Grade two teacher Michelle Stickney had very few complaints about the
Respondent.
But even she testified about ongoing complaints that certain
educational materials were not being sent to the Applicants home.
j. The Respondent repeatedly refused to allow Paiges backpack to travel to the
Applicants home. She would send Paige to school with her materials in a plastic
grocery bag instead. The Applicant then purchased a backpack of his own for
Paige to retain at school on those days she was travelling to his home. But the
Respondent got into a confrontation with school staff because she attended at
school to remove the Applicants backpack and take it to her residence.
431.
The Respondent also insisted that original copies of Paiges school work and art
should be released to her and not the Applicant. She said it was because she was creating
a Memory Book for Paige.
432.
The Applicant also complained the Respondent repeatedly frustrated his ability to
enjoy Paiges special events at school.
a. In February 2015 the Applicant attended a skate day for Paige. Paige told her
teacher Stickney she had been sick the night before, worrying about the Applicant
coming to the skating party. Paige told Stickney that according to the Respondent
Dads couldnt go to the skating, only moms. Paige was upset the whole day
because of this. I accept the Applicant and Stickneys evidence that Paige was
upset by the Respondents statement that the Applicant shouldnt be there. This is
Page: 120
consistent with the Respondents repeated efforts to exclude the Applicant from
anything fun in Paiges life.
b. On two occasions the Applicant pre-paid for grilled cheese sandwiches for Paige
as 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 Applicants
luncheon treat and said it was Paiges decision what to eat for lunch. I accept the
Applicants evidence that the Respondent frustrated his ability to provide Paige
with treats.
433.
Throughout her testimony the Respondent denied withholding the agenda, other
documents, 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 Applicants version of
things. 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 Respondents various explanations and denials to be credible.
There were simply too many witnesses and too many examples of the Respondent trying
to monopolize Paiges school life. But perhaps the most telling evidence is a letter the
Respondent sent Lawson on September 4, 2013, at the beginning of grade one (before
Lawson was replaced, at the Respondents request):
I hope you had an enjoyable summer.
Please find enclosed payment for Paiges personal agenda $5.00.
I write this in hopes of preventing any awkwardness such as what was
experienced last year. I am Paiges mother and custodial parent, as such; I ask
that 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 a
situation where I need to unexpectedly pick her up before 2:55 p.m.
Additionally, please ensure that all of Paiges belongings are returned to me each
day after school at the designated pick-up area just off the playground, regardless
of whether or not Paige will be visiting with her father (and he has perhaps made
arrangements 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 with
and returned to the school each morning. Currently, Paige visits with her father
after school on Tuesdays, some Fridays and the occasional Wednesday.
Page: 121
Page: 122
Thank you in advance, very much for your assistance concerning this
disconcerting state of affairs.
435.
Two things to note:

a. The Respondent referred to herself as the custodial parent even though there has
never 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 wasnt 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 the
Applicants residence.
a. There were repeated instances when the Respondent took steps to ensure that
Paige went to the Applicants home wearing inadequate clothing.
The
Respondent denied this but the Applicant, White and several school witnesses
confirmed it.
b. Sometimes on transition days she would deliver Paige to school wearing clothes
or 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. But
Cosentino recalled a cold winter day in 2013 when Paiges winter coat had gone
missing 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 were
too small, so her feet got sore. But on non-transition days, the Respondent would
send Paige to school in regular shoes; sometimes new shoes. Hensen testified
about the same problem.
Eventually Cosentino sent a note to the Respondent
expressing 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 Respondent
sent 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 couldnt dress up for Beach Day, because she was
going to the Applicants house after school. Paige was disappointed to miss out.
(underlining in original)
Page: 123
a. Various witnesses said Paige would get headaches without her glasses.
b. But the Respondent insisted Paige does not get headaches when she doesnt wear
her eyeglasses. She said the eyeglasses are corrective and they are working. She
said 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 didnt need them. But
Cosentino said Paige was getting such headaches that the school had to call and
ask the Respondent to bring the glasses in.
e. Cosentino said on a couple of other occasions Paige stumbled about explaining
why she didnt have her glasses, and said Im 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 Respondent
take Paiges 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 the
Respondent attended at Paiges school outside and inside at inappropriate times and
for inappropriate reasons.
439.
She sometimes attended at the end of the day even though the Applicant was
scheduled to pick Paige up.
a. That created needless stress and tension for everyone.
b. The Respondent claimed she would sometimes attend at the Applicants pick-up
times because she had concerns about whether the Applicant would be reliable
and show up. School witnesses testified there had never been any problem about
the Applicants 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. Thats likely why she dropped by during the
Applicants after school pick-ups.
d. Hayes testified that having both parents attend was confusing and distressing for
Paige. She said Paige wanted to be with both of them, but didnt know how to
problem solve and didnt 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 been
completely unsuccessful sorting out the conflict.
e. Hayes was asked by the Respondents lawyer whether it was a big deal if the
mother happened to stop by the school once or twice to say hello to her daughter.
The assessors emphatic answer: Yes, if theres a lot of conflict that the child is
exposed to, it is a big deal.
437.
There was a recurring problem with the Respondent not sending Paige to school
with her eyeglasses on transition days.
Page: 124
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 area
towards 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. But
it was hers, not the childs.
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 school
when she shouldnt have been there, tampering with Paiges clothing or
belongings.
b. She was seen at Paiges 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 logical
explanation.
h. Cosentino noted that sometimes things would disappear in the middle of the day.
They couldnt be found anywhere, including the lost and found. And then the
next morning the missing item would be brought to school by Paige from the
Respondents house.
i. Henson testified every one to two weeks something of Paiges 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 Paiges costume after a Halloween parade.
440.
But when it comes to the Respondent and Paige theres no such thing as a simple
hello or goodbye.
a. The Respondent said she did it at Paiges request, because the child expressed
concern about the costume being damaged if she took it to the Applicants home.
b. But Hayes testified parents cant simply say theyre complying with a childs
request.
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 with
co-parenting.
e. Hayes said in relation to Halloween 2013, even if Paige asked her mother to pick
up the costume, the mother could have responded your costume wont get ruined
going to your fathers house. Dont 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 Paiges
agenda and her backpack/coat. At the end of the day you returned, went to the
classroom, 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 to
meet 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 not
going to be collecting Paiges belongings but leaving them with her to take to her
fathers 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 January
27, 2014 Rizzo sent a letter to the Respondent on school stationary. She said the letter
was necessary because informal communications and warnings were not effective in
stopping the Respondents 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 writing
to you today because some of your conduct has been interfering with the
maintenance of this environment. Specifically, entering the school, attending the
office, and then visiting the classroom, or locker area (often to remove personal
items belonging to your daughter), outside your daughters classroom.
This conduct has been observed to coincide directly with emotional outbursts/upset
from 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 the
classroom without direct instruction to do so either by our office admin team or the
classroom teacher (e.g., for an interview). Should you fail to abide by this direction
I will have no alternative but to issue a No Trespass Order under the Trespass to
Page: 125
Page: 126
Property Act. R.S.O. 1990, c T.21, s1 (2) which will prohibit you from attending the
school for any reason.
446.
Rizzo testified that after the letter was sent, school officials met with the
Respondent and her lawyer:
a.
b.
c.
d.
The Respondent made a commitment to follow the schools protocols.

The warning letter was withdrawn.
The school never issued a trespass letter.
Rizzo couldnt recall any allegation of the Respondent attending the school
inappropriately, after this agreement was worked out.
447.
The Respondent characterized the letter from the school as a mistake.
insisted she had done nothing wrong.
She
448.
The Respondent alleged the Applicant had formed alliances with Paiges various
teachers, and that they took his side against her.
a. The Respondent seemed to be alleging teachers sided with the Applicant either
because he gave them gifts, or because they were influenced by his status as a
policeman.
b. But the teachers seemed surprised by the suggestion of excessive gifts. They said
perhaps the Applicant gave them the kinds of token gifts teachers get from all
parents at Christmas. And none of them seemed influenced by his line of work.
c. Rizzo testified the Applicant came to school in uniform once when Paige was in
grade one. He was an invited guest speaker to explain to children the role of a
police officer. She said that was the only time he ever appeared in uniform. She
never felt he tried to gain advantage through his employment.
d. I reject any suggestion of bias by any of the staff at Guy Brown School.
e. Speaking plainly, I think the school showed extreme tolerance and dedication to
Paige.
449.
In her final report, Hayes made the following comments about Guy Brown
Elementary School:
a. The school has attempted to manage a conflictual situation with the resources at
their disposal, and this appears to benefit Paige as she is fond of her teacher.
b. The Respondent needs to acknowledge she is fulfilling her own emotional needs
by attending the school during the Applicants time with Paige. This places Paige
in an impossible situation where she feels the need to empathize and react in a
caregiving way to the Respondents sadness related to separation.
c. Hayes suggested the parents role to a child should always be to minimize their
own emotion to facilitate the best interests of the child. In this case, the best
I trust this direction is clear and will not require any further clarification.
Page: 127
COMMUNICATION
450.
Both parties provided the same pessimistic description of communication between
them.
a. They cannot communicate face to face or by telephone. Even for the sake of the
child.
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 are
hostile and unproductive. Each blames the other for this.
d. The Applicant complains the Respondent wouldnt even give him her cell phone
number. She said she only uses it for work, and feared the Applicant would use it
to try to talk to Paige.
e. They each claim they have made efforts to create dialogue and encourage coparenting. But without success.
f. The Applicant acknowledges the Respondent is a good mother.
g. But Hayes testified she couldnt recall the Respondent reporting any parenting
strengths 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. He
had a horrible childhood. So hes going to give Paige a horrible childhood. The
Applicant denied this, and Hayes didnt think much of the theory either.
451.
While both parties must share responsibility for the overall breakdown in
communication, the Respondents bitterness and mistrust toward the Applicant is so
intense 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 sent
the Respondent an e-mail which included two paragraphs:
Paige has told me that her name was called out today as a bus student and she
was given a purple ribbon for the school bus but doesnt know if this is an error as
she didnt 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 you
would like so we can make plans.
interest is that Paige not be burdened with the Respondents sadness when she
should be anticipating time with the Applicant.
d. Paige needs to feel a sense of ownership over her belongings and her school
environment.
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.
Page: 128
452.
On September 11, 2015 the Applicant sent a reminder e-mail asking for a
response to the two questions. The Respondent then e-mailed back:
There is not much point in discussing Thanksgiving.
453.
She testified that while the Applicants e-mail sounded like a straightforward
inquiry, he was actually engaging in trickery.
Hes just writing e-mails for the
purpose of looking a certain way for this trial. She said I responded the best way I
could.
454.
In her report, Hayes concluded:
a. There was no evidence presented throughout the assessment that the parties will
be able to communicate effectively without even the nuances of conflict.
b. There should be no expectation of such collaboration in the future.
c. She said it was unlikely the relationship would ever shift enough for these parents
to be able to cooperatively co-parent Paige without the assistance of a
professional.
d. Based on the evidence at trial, I agree with her conclusion.
PARENTS MENTAL HEALTH
455.
There were no allegations of any mental health issues in relation to the Applicant.
456.
In contrast the Respondents mental health was a source of continuing discussion
and testimony.
a. The Applicant feels the Respondent has had significant psychological problems
since before Paige was born.
b. He feels her emotionality, possessiveness and hostile behaviour stems from her
continuing depression.
c. In contrast, the Respondent denies any relevant mental health issues.
d. She feels the Applicant has smeared her reputation with teachers, CAS workers,
and the assessor, by maliciously going around telling people that she is mentally
ill.
457.
The Respondent was cross-examined about her mental health:

a. She acknowledged she refused to produce her own medical records.
b. She said health wise, I was perfectly fine.
c. She said emotionally she was not 100% following separation because my
marriage had just fallen apart on a weekends notice.
d. She said she may have discussed things like panic attacks, not eating, not
sleeping, and digestive issues with McMillan, whom she was seeing frequently.
I dont know what youre up to now: I bring Paige to school and I pick Paige up
from school on every day that she is in my care. I have no knowledge or input as to
how or if Paige gets to and from school when she is in the care of others.
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 the
child 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.
Jacksons 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 the
course 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 Applicants
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 dont care.
b. Im 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 the
Respondent 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 maintain
the same level of contact with her, so she didnt get his perspective on the marital
issues.
Page: 129
h. She said the Respondent asked to be tested for Sexually Transmitted Diseases
sometime 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 Applicants new
relationship. The Respondent had previously reported experiencing some panic,
anxiety, sleep issues and trouble eating, when it became apparent their marital
relationship was over.
462.
Hayes testified about the Respondents 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 the
Respondents mental health based entirely on self-reporting without knowing
the additional concerns about the Respondents behaviour as raised by Paiges
school and others in the community.
d. Hayes said its 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 Respondents behaviours negatively impact not only her
relationship with Paige, and also Paiges 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 mechanisms
and 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 is
Paige handling all of this?
a. The Applicant has consistently said theres 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 Respondents
persistent campaign to exclude him from his daughters life. He described Paiges
emotional health as a mess.
Page: 130
a. He said at first Paige was quite happy when she was finally able to go for
overnight visits pursuant to the February 2013 temporary order.
b. But he said as months went on -- and particularly after a May 28, 2013 temporary
order expanded access further -- Paige started becoming withdrawn and more
emotionally upset during visits.
c. Her moods would fluctuate. Shed be happy. And then shed become sick,
lethargic and lacking in energy.
d. Sometimes he would be able to cheer her up and shed be fine again. Other times
shed want to be alone and play under a table.
e. Sometimes he would put her on the phone to talk to the Respondent, hoping that
might help. But usually Paige would be even more upset after those phone
conversations. He didnt 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 Paige
spoke 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 the
next 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 Respondents 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 was
emotionally 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 dont 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 doesnt 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 Respondents emotional goodbyes during
access 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 would
start throwing up on the school playground as soon as access was to start, even
before she got to his car.
Page: 131
Page: 132
c. He described various other instances when Paige would become distressed and
vomited. He said the frequency has fluctuated, but the problem still continues.
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 her
lay on a couch where she fell asleep watching TV.
b. While she was asleep he went into her bedroom where he observed that Paige had
smeared red lipstick all over her Barbie House and her Barbie dolls.
c. He said it was extremely odd and uncharacteristic behaviour. He expressed worry
that it was another sign of the emotional turmoil she is experiencing.
468.
Under cross-examination, the Applicant denied the suggestion that he has
exaggerated Paiges problems.
a. He said she is under extreme pressure.
b. He said as recently as his last access weekend before testifying in September
2015, Paige was crying on his couch saying I cant 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 shes 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 park
and say sorry to each other.
b. To try to respond to Paiges heartfelt suggestion, he sent an e-mail to the
Respondent saying he was sorry that he hadnt been the husband the Respondent
wanted him to be.
c. In the e-mail he asked whether, for Paiges 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 said
sorry to one another.
e. He testified that the Respondent replied that she was willing to meet with him if
he 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 Paiges physical appearance deteriorated. She developed dark
circles under her eyes, her hair was greasy, and she looked unhealthy. Notably the
teachers, social workers and assessor were all cross-examined about this. Not a single
witness corroborated any concerns about Paiges physical appearance.
472.
The Applicant testified he tried to reduce the level of stress Paige was exposed to:
467.
Page: 133
473.
The Respondent disagreed with the Applicants description of Paige being a
troubled little girl. She said any problems in the childs life originate from the Applicant.
When shes 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 very
respectful child.
c. In contrast Paige complains that she constantly gets in trouble at the Applicants
home. Thats one of the reasons she doesnt like going for visits. She hates being
put in the corner as punishment. It never happens at the Respondents house. But
at the Applicants she is put in the corner.
d. The Respondent absolutely disputed the Applicants suggestion that Paige says
things like I hate my life. She said Paige never hates her life at the
Respondents home. She never appears to be withdrawn or upset when she is
with the Respondent.
e. She disputed the allegation that Paige is soiling herself at the Applicants home.
She said Paige was aware of this allegation, and told the Respondent it simply
wasnt true.
f. The Respondent said Paige only expresses stress or negativity in relation to how
the Applicant treats her. She gets upset with the Applicant and is then told that
shes not allowed to cry at his home. Paige told the Respondent that one time she
accidently hurt her knee at the Applicants home. Paige said she was relieved that
she 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 told
her At daddys 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 she
misses her mother while at her fathers 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 doesnt really enjoy going for visits because she doesnt fit in
over there (referring to the Applicants house with White).
j. Paige also finds the access schedule confusing and disruptive. Its stressful
because she never knows where shes going to be and when.
k. She said Paige has repeatedly stated she doesnt want to go for visits so
frequently. Its stressful for the child when she feels people arent listening.
l. The Respondent testified Paige doesnt trust the Applicant; she doesnt trust
teachers; and she went through a stage where she didnt trust her counsellor
Ramani.
m. The Respondent said Paige only trusts her and McMillan.
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.
Page: 134
a. On the ride to the Applicants 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 had
forgotten she had the journal with her.
d. Paige told the Respondent she was then accused of lying about not having
homework.
e. When they arrived at the Applicants residence she was sent to the Applicants
bedroom and told to sit and think about what she had done.
f. The Respondent said Paige was quite upset by the Applicants harsh treatment
and accusations.
475.
The Respondent testified that later that same month Paige spent the first half of
Easter weekend with the Applicant. Paige told her the following:
She got in trouble at the Applicants home.
Again she was told to go to his bedroom. He slammed the door.
When he left her, she locked herself in a bathroom.
She kept saying to herself Ive been a bad girl, Im a liar.
White came and spoke to her through the bathroom door, asking if she was ok.
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 she
didnt want to go back to the Applicants home.
a.
b.
c.
d.
e.
f.
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 how
unhappy 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 didnt 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 wasnt supposed to take
homework to the Applicants home.
c. She didnt like lying to the Applicant and White about homework.
d. But she also didnt 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:
474.
The Respondent and Catherine White each testified about problems Paige
experienced in April 2014. The Respondent described what Paige reported to her:
a. The Applicant was to have Easter weekend and he picked Paige up on Good
Friday.
b. On Saturday morning Paige pood herself again. She called the Applicant for
help.
c. Paige then locked herself in Whites en suite bathroom.
d. White heard Paige talking to herself and crying. Im such a bad girl. Im 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. Im 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 doesnt love me, that daddy doesnt care
for me.
i. Mommy told me to tell her that daddy says that mommy is trying to make you
have a bad life
j. Paige was really angry at herself and kept saying I hate my life over and over
again.
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 Im a
bad girl for lying.
480.
Theres a common theme to these overlapping versions: By all accounts, Paige
was extremely stressed and unhappy.
481.
The Respondent was cross-examined about making negative statements about the
Applicant 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 cant 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 other
witnesses didnt agree.
Page: 135
Page: 136
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 tensions
intensified 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 the
Respondent had told her:
a.
b.
c.
d.
e.
f.
g.
Mommy
Mommy
Mommy
Mommy
Mommy
Mommy
Mommy
says I cant trust the teachers.

says I cant tell the teachers anything.
says not to tell the CAS girls.
says daddys a loser.
says daddys a jerk.
says were best friends, and friends shouldnt be apart.
said Daddys 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 the
trial.
a. Toward the end of August Paige said the Respondent told her the trial would be
coming up soon.
b. Paige quoted the Respondent as saying: Theres going to be someone who will
decide 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 couldnt read the words. But the Respondent pointed to Paiges
name and said it was a letter from daddys lawyer.
d. (CAS worker Alison Grice testified Paige told her on April 10, 2014 that her
mother writes stuff to her father on the computer and Paige cant read it. She
doesnt know what the words say.)
e. The Respondent told Paige she shouldnt have told daddy that she fainted at the
dentists office.
483.
Catherine White confirmed much of the Applicants evidence about problems
Paige is experiencing.
Page: 137
f.
White testified she has tried to help Paige deal with stress.
a. She tries everything she can to calm the child.
b. She doesnt question her.
c. She and the Applicant try to make Paige happy; to reassure her; to keep
everything as calm and relaxed as possible.
487.
Senior kindergarten teacher Annette Lawson testified Paige often appeared to be
confused 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 mother
would 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 could
talk to him.
c. Paige said she missed the Applicant and she was confused by what her mother
was 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 couldnt
recall how often she had to make this call.
488.
Early childhood educator Bernadette Mioc described Paige as more happy than
sad. But sometimes she was quite sad. Mioc couldnt recall observing headaches or
vomiting.
489.
Grade one teacher Patrycia Cosentino had a lot to say about Paiges emotional
health:
a.
b.
c.
d.
e.
f.
g.
Concerns arose fairly early in the 2013-2014 school year.

Paige was very stressed out.
She often needed extra time to finish assignments.
Or she needed quiet time to settle her emotions.
Sometimes she would be so emotional she just wanted to be by herself.
Sometimes she was so upset it affected her interaction with classmates.
Cosentino said based on advice from Hayes, when Paige became very stressed or
emotional, the teacher would try to take her to a quiet environment and allow her
to draw out her feelings.
486.
White said Paige got so upset talking about the trial that she ended up vomiting in
a grocery store.
Page: 138
a.
b.
c.
d.
e.
f.
g.
Generally on transition days Paige would become stressed out at school.

She would get very nervous and emotional.
She would need help packing her backpack at the end of the day.
She would have trouble doing things she could normally do without difficulty.
She would get headaches.
Sometimes she would vomit.
She knew that if she was going to throw up, she should go to the washroom. But
sometimes she couldnt 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. She
said this vomiting was stress related, and not as a result of some illness like the
flu.
i. She couldnt recall the specific number of times Paige had a headache, but she
said it was frequently.
j. Sometimes it would take Paige a long time to get ready to leave school at the end
of the day either because she was vomiting; feeling unwell; or generally having
difficulty packing her belongings.
k. After a while, if all of the other children had exited the school and the Applicant
was 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 after
school had been dismissed, because it was understandable that he was concerned
his daughter had not come out of the school building.
l. Under cross-examination Cosentino admitted Paige didnt experience stress and
vomiting 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 she
wasnt going to be going to see the Applicant.
491.
Cosentino testified about statements Paige made to her about things the
Respondent 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 Applicants residence.
c. Paige said Mommy said best friends tell each other everything. Best friends
should be together all the time. If I dont sleep with mommy something is going
to 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.
490.
Cosentino testified about Paige on transition days -- when Paige would be
dropped off in the morning by the Respondent and picked up at the end of the day by the
Applicant.
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 was
unnatural for a six year olds vocabulary.
d. These corrections would generally relate to issues relating to the parental
conflict.
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 didnt want to write them on the same page.
495.
Cosentino testified Paige appeared preoccupied with worry about the timesharing
schedule between her parents:
a. She would tell Cosentino she was with her father so long, and not with her
mother.
b. Paige apparently perceived that she was spending more time with her father than
her mother.
c. Cosentino would then go over a calendar with her and count out the days with
each 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 stopped
worrying about the access schedule.
e. Cosentino said Paige wasnt expressing unhappiness about being with her father.
But she kept getting it in her mind that she was spending more time with her
father 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: 139
Page: 140
g. The teacher couldnt recall Paige ever talking about not wanting to get in trouble
at the Applicants house.
Under cross-examination, Cosentino denied putting words into the childs mouth.
a. She agreed six year olds can have a wild imagination.
b. She recalled Paige asking Youre 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: Im feeling stressed because mommy and daddy are fighting a lot and I
do not know who to believe. I shouldnt spread this but mommy said daddy is a jerk
and if Im friends with him she wont be my friend. She doesnt want me to tell
anyone. Mommy said you are a bad teacher and that makes me upset.
499.
Stickney testified throughout the 2014-2015 school year there were concerns
about 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 didnt 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 at
home.
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 didnt notice any connection between transition days and
Paiges emotional responses.
g. Paige expressed concern to Stickney that school resources were not making it to
the Applicants 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 dont
even 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 had
come to the office crying.
496.
b. Paige said she was going to be picked up by the Applicant and she was going to
miss 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 Applicants 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 the
Applicant for a long time. As soon as an adult showed her a calendar and showed
her that she wouldnt 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 daddys house or
mommys 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 that
she 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 wouldnt 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 the
Respondent expressing fear she would never see the child again.
503.
Hensen testified that both from her own observations and from information
received from school staff, Paige exhibited a lot of stress-related behaviour.
a. Henson would generally interact with Paige on the playground, in the hallway, or
when the child came to the office complaining about headaches.
b. Henson said sometimes she would see Paige very happy, and at other times very
sad.
c. She was concerned that Paige could go from happy to unhappy within five
minutes.
d. She saw Paige cry.
e. Sometimes the child just had an anxious and unhappy facial expression.
Page: 141
Page: 142
She was aware of three occasions when Paige vomited at school, and four
occasions when she had severe headaches. She didnt 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 quite
frequently 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 the
Applicant that Paige was exhibiting signs of stress and vomiting. Especially on
transition days.
505.
Rizzo testified about Paiges 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.
b.
c.
d.
Both parents were contributing to the custody/access battle.

Paige was being caught in the middle.
The situation was causing emotional harm to the child.
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 is
making 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 childs
statements:
a. Her parents dont get along too much.
b. Her parents dont talk in person because they fight. She doesnt 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 must
have been fun.
f.
e. She doesnt like to talk to her mother about her father because her mother may
say bad things like Your dad doesnt care about you. Paige said this makes her
feel sad.
f. Her father doesnt ask about her mother and doesnt want to say anything mean.
g. Her mother doesnt ask about what happens at her fathers too often. It has
happened in the past. She doesnt remember.
h. Her mother does not get along with the Applicants mother.
510.
On April 22, 2014 Paige told Grice her mother makes her worried. Paige said her
mother says her father has said bad things and that her father doesnt care about her. But
Paige said her father doesnt 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 spending
time with both of them.
b. She wanted to see her cousins over Christmas but her mother told her she couldnt
because her father is a jerk. She asked her father and her father said the mother
was 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 hes a cheater.
d. She has fun at each parents 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 what
Paige said was true. The mother would say it didnt happen. The mother lied to
Ramani. The mother would get mad at Paige.
g. Paige couldnt answer what the mother does when she gets mad. She is just
worried 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 she
was useless and just made things worse. Paige thinks that the other lady helped.
She doesnt agree with her mother about the other lady. (Anderson wasnt sure if
the other lady was Michelle Hayes.)
h. Paige said she had new glasses which she brings to her fathers house sometimes.
Her mother wrote that her last name is Mayerle but its not, its 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: 143
b. In conjunction with providing medical care for the child, McMillan also provided
some 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 Paiges symptoms included
complaints of some headaches or nausea. McMillan didnt feel Paige had serious
health problems, nor could she comment on the extent to which Paiges symptoms
were stress related. She said when kids go to school they get sick a lot the first
couple of years.
e. McMillan recalled Paige being unhappy with Ramani for lying to her by
disclosing to the Applicant certain things the child said.
f. McMillan recalled Paige saying she got in trouble at the Applicants 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 she
made statements about getting in trouble with the Applicant. But McMillan said
she 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, and
met 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 wouldnt
normally 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 called
CAS. She didnt think she was aware that the Respondent had also made reports
to CAS.
CHILDS RELATIONSHIPS
514.
515.
Fortunately, at least some determinations in this trial were easy.

All 20 witnesses used the same sorts of adjectives to describe Paige:
a.
b.
c.
d.
e.
f.
g.
Delightful
Caring
Loving
Kind
Considerate
Sympathetic
Bright
Page: 144
h.
i.
j.
k.
l.
m.
n.
o.
p.
q.
Witty
Fun
Pleasant
Sensitive
Sweet
Adorable
Outgoing
Popular
Usually happy.
But sometimes very sad.
516.
As well, Paiges relationships are also pretty straightforward.
517.
The evidence of every witness except the Respondent was that Paige is
equally connected; equally bonded; equally everything with both parents.
518.
McMillan gave the following evidence in relation to both the Applicant and the
Respondent:
They are both perfectly fine parents.
I have nothing to say that either one of them would be a bad parent.
She said there were absolutely no red flags about mothering or fathering issues.
They have both been actively involved in Paiges medical care.
Prior to separation both parties frequently attended Paiges many routine doctors
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 childs
interaction with either parent.
i. McMillan testified she was under the impression the parties had co-parented for
an extended period after separation.
j. She understood the Applicant was seeing Paige regularly after separation.
k. She said she had the impression the Respondent didnt know what way things
were going. The Respondent wasnt sure whether there was a chance of
reconciliation or not.
a.
b.
c.
d.
e.
519.
Despite the unequivocal evidence of all of the witnesses, the Respondent kept
insisting that she and the Applicant werent equal in the childs life.
a.
b.
c.
d.
e.
That they didnt have the same history of caregiving.

That they didnt have the same parenting skills, insight and commitment.
That the Respondent was the primary caregiver both before and after separation.
That she and Paige are more closely bonded to one another.
That Paige has always looked to the Respondent for everythingand that this
should continue.
Page: 145
Page: 146
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 Paiges interaction with Tyler. Not at all.
THE ASSESSMENT
523.
In paragraph 14 of this judgment I summarized the assessors 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.
b.
c.
d.
e.
f.
g.
h.
Kelly Rizzo
Sarah Buist
Dr. Kim McMillan
Alison Grice
Patrycia Cosentino
Audrey Henson
Catherine White
David Buckley
525.
The information she received from these witnesses was consistent with their
evidence at trial.
526.
Much of the cross-examination by the Respondents 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 no
concerns 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 didnt 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 Applicants list of collateral witnesses was a bit longer, it was because
an assessor has to interview all of the members of each partys household. The
Applicants partner and her children had to be interviewed, because they regularly
520.
This concept of parental superiority and entitlement permeates everything the
Respondent 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 Applicants fianc White and her two children.
522.
Hayes described Paiges interaction with Whites daughter Claire and son Tyler.
interact with Paige. In contrast, the Respondent is not in a new relationship, so

there were no other members of her household to interview.
e. She denied that an imbalance in the number of collaterals would tip the scale in
favour of the parent with more supporters.
f. She said she placed less weight on information provided by close personal
collaterals like the Applicants fianc, 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 didnt 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 for
several hugs and kisses.
b. Paige explained that her mother and father had an argument and her father left the
home 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 her
mother.
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: Im his girl and he loves me a lot.
k. She said sometimes her father would ask her mother for a visit and her mother
would 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 doesnt 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. She
recalled 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: 147
p.
q.
r.
s.
t.
u.
her mother got in the way. Then an argument occurred between her grandmother
and her mother, and her mother made her grandmother leave the soccer field.
Paige said she is not supposed to tell her father about swimming, Sparks and
karate. 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.
Paige said she cried a lot in school in the previous year when she was in senior
kindergarten, because she missed her mother and father. But she was feeling
more confident now because she is bigger and stronger, starting grade one.
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 out
of Lawsons class. Hayes didnt know that the switch was at the Respondents
request.)
She likes learning in French.
Paige reported doing enjoyable activities with each parent.
She said consequences for misbehaviour are not excessive in either parents
home.
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 exchange
location) 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 it
seemed 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 grandparents house.
530.
Hayes summarized her third interview with Paige on October 15, 2013. This time
they 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 from
school. Both of her parents were showing up some days and she was unsure with
whom to go.
d. She said there have been times when she has slept over at her fathers home and
when 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 father
and she either saw her mother at school or her mother took her home instead.
Page: 148
g. Paige recalled a time that her father dropped her off at school and her mother was
in 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 concerns
about the Respondents 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 mommy
not 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 dont speak to one
another, 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 she
visits her father for a long time.
e. Paige reported that her mother feels sad when Paige goes to her fathers home.
f. She recalled that her mother said I miss you when Im sleeping and I feel like
Im going to die.
g. Paige also recalled her father telling her Your mommys trying to give you a bad
life.
h. She did not feel as though either parent told her what to say to the assessor. But
her mother told her Michelle Hayes wasnt 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 just
told 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 didnt receive an invitation. She said she wanted to go
to that birthday party and was sad because all of her friends were there without
her.
532.
Hayes was cross-examined about her consideration of Paiges views and
preferences.
a. She said Paige was six years old when the assessment was conducted.
b. She said an assessor doesnt generally ask six year olds specific questions about
views 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: 149
d. During the course of general discussions, Paige told Hayes that her father didnt
think he was seeing her enough but Paige herself also felt she wasnt 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 the
Applicant. But Ramani didnt observe any anxiety or fear when the child was
with her father.
b. Hayes and Ramani both observed occasions when the child verbalized that shed
rather stay with the mother than go with the father. But when Paige was actually
with 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 conflict
custody disputes.
a. She said you have to look beyond the particular words or actions a parent selects
during a specific interaction with a child.
b. You have to look at it from the childs perspective.
c. How will the child interpret what is being said?
d. How will the childs feelings, beliefs and expectations be influenced?
535.
Hayes expressed concern about some of the Respondents messaging to Paige.
She cited an example:
a. During a weekend visit with the Applicant, his fianc White and Whites daughter
Claire apparently applied nail polish to some of Paiges 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 assessors 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 Paiges anxiety about
whether the Applicant or someone living in his home might be harming her.
h. Perhaps the broader message: Youre unsafe with dad. But mom will protect you.
Page: 150
Page: 151
a. She said she was not identifying parental alienation in this case.
b. But she said if the Respondents 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, and
the school was reporting additional concerns about the Respondent and her
presentation at school.
540.
Hayes testified that when she saw parental conflicts increase and Paiges
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 didnt convene a second disclosure meeting:

a. There is no requirement by any of the bodies governing assessors that they
convene 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 and
how the parties positions hadnt changed she didnt feel a second disclosure
meeting would serve any purpose.
542.
Hayes testified the success of her recommendations will likely depend on the
Respondents ability to control her emotional responses and messaging to Paige.
536.
As I have commented at several points during my review of the evidence, I came
to develop serious concerns about the Respondents pattern of negative and strategic
messaging.
537.
Hayes was cross-examined about parental alienation.
a. Communication problems make joint custody or parallel parenting impossible.

Thats 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 equally
capable. 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 negativity
toward 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 South
in 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 mothers involvement saved them any money.
d. She argued real estate commission is paid by the vendor. They were the
purchasers. Waiving the commission wouldnt have made any difference to the
purchasers.
e. The Applicant is not very sophisticated financially. He wasnt sure how his
mothers waiving the commission saved them money.
But he thought his
mothers action resulted in their paying a lower purchase price.
Page: 152
Page: 153
The Respondent disagreed. She said the purchase price remained the same
whether his mother waived her commission or not.
g. The Applicants mother did not testify at the trial, so I heard no additional
evidence to clarify this issue.
h. With the Applicant being so imprecise about how his mother helped, and with the
Respondents 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 Applicants mother would have waived
her entire $9,000.00 commission on the transaction. She must have thought she
was benefitting someone.
548.
By agreement between both parties, when the house was purchased it was
registered in joint names. The Applicants 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 commitment
to the lending institution.
c. The Applicant acknowledged that prior to the purchase in 1998 the Respondent
had 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 their
financial 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 Respondents 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 Applicants 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 didnt want his
mother being angry at the Applicant; and she didnt want the Applicant being
angry 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 Applicants mother to inspect the
house again and submit an offer.
f.
Page: 154
The Respondent testified the Applicants mother wanted the Applicants name on
title.
g. The Respondent said her own lawyer recommended to her that she not place the
Applicants name on title.
h. But the Respondent testified it was a pretty tricky and uncomfortable
situation.
i. She asked her lawyer if the Applicants name could later be removed from title.
The lawyer said yes, and recommended that the Respondent proceed in that
fashion.
j. The Respondent testified that she and the Applicant had a verbal agreement that
the property would initially be registered in both names. But then later after his
mother was no longer involved, they would transfer title into only the
Respondents name. His mother wouldnt 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 Respondents suggestion
her house, or that he was on title in name only. He
agreement in 1998 that title would eventually revert solely to
551.
Whatever their agreement or understanding about
contributed to the property jointly.
that it was ever exclusively

disputed that there was any
the Respondent.
title, from the outset they
a. The Applicant testified the Respondent didnt 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 didnt 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.
f.
c. She insisted there was never any expectation he was acquiring any actual
ownership or equity in the house.
d. She said the $275,000.00 he paid into her bank account was intermingled with her
money, 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 wasnt.
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) than
she 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 the
mortgage, he was the primary breadwinner. He became the primary source of the
funds 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 the
Respondents 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 superior
officer 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 his
wifes 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 Respondents
name.
Page: 155
d. He said concern about protecting the asset from a future law suit was the only
reason they transferred title.
e. He denied that there had ever been any other agreement or rationale for
transferring the house from joint names to the Respondents 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 didnt intend to gift his share of the house to the Respondent.
h. He testified that fortunately no one has ever commenced any civil claim against
him.
The Applicants step-father Buckley testified about the house transfer:
557.
a. He recalled the Applicant advising him that he wanted to transfer the house into
the Respondents name alone.
b. The Applicant explained that he had been advised by people at work that because
of the type of work he did and the potential for lawsuits, it would be best to put
the house in his wifes name to make it safe from lawsuits.
c. Buckley said he and the Applicants wife were against the idea. He said he
didnt think it was prudent to put the house in the Respondents name.
d. But he said he didnt know much about the law, so he didnt try too hard to talk
the Applicant out of it. He said the Applicant proceeded because he seemed
concerned about protecting the asset from lawsuits.
558.
brief.
The Respondents evidence about the December 1999 transfer of title was very
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 didnt 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 house
from 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 Respondents
name to protect the asset in case the Applicant got sued at work.
g. She acknowledged that their financial and cash flow arrangement remained
identical both before and after the house was transferred into her name alone.
h. She acknowledged at the point the Applicant had been contributing money which
went into her account and then went toward the mortgage. They had already
started paying the mortgage down aggressively.
i. She gave no evidence as to the mortgage balance or increased equity as of
December 1999.
Page: 156
Page: 157
She did not dispute that the Applicant continued to write mortgage on his
cheques and ledger statements even after December 1999.
k. Nonetheless she insisted he only ever paid rent during the approximately 13 years
they lived in that house.
559.
The Applicant testified he was surprised and confused by the Respondents
statements 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 that
he 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 couldnt agree to the confusing proposal because he
feared 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: Theres nothing to deal with. You dont get a cent from
the house.
e. She explained that it was her house; he had only been paying rent as a tenant in
her house; she had put the down payment on the house; so he was entitled to
nothing.
560.
The Respondent became combative during cross-examination on financial issues.
561.
She testified about why she doesnt think the Applicant should derive any benefit
from the post-separation increase in the value of the matrimonial home.
a.
b.
c.
d.
Its her house.

He hasnt lived there since separation.
He hasnt contributed anything to household expenses since separation.
He hasnt paid taxes, insurance, utilities, maintenance, or any repairs.
562.
The Respondent was cross-examined about her current plans in relation to the
house.
a. Asked if she intends to sell the Waterdown house, she said I dont know what
my immediate future holds.
b. She acknowledged that if the court order results in her owing the Applicant a lot
of money sale might be the only option.
c. She said she has no current plan to relocate to Ancaster, where she grew up and
where her elderly parents reside. But she couldnt rule out the possibility. Im
afraid I cant give you that assurance that Im not moving to Ancaster. I dont
know what my future holds.
HOUSE ANALYSIS
j.
Page: 158
a. The parties agree that on the date of separation, July 24, 2011, the mortgage-free
property was registered in the Respondents 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, $376,000.00
would be added to the Respondents net family property. Subject to other
potential adjustments like notional costs of disposition (which werent claimed),
the Applicant would receive half the value of the $376,000.00 built in to the
overall equalization payment.
d. To establish entitlement to half the post-separation increase, the Applicants
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 property
all 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 separationthen hes still a onehalf 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 cant 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 hes 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.
563.
The essence of the Applicants position is that he wants half the current value of
the former matrimonial home.
Page: 159
567.
As in Korman, the analysis of the house issue in this case became complicated
perhaps sidetracked because counsel seemed unclear about whether the claims before
the court are founded in unjust enrichment or resulting trust.
a. The Respondent says the Applicant was never an owner; his claim to the increase
in the value of the home after separation is based on unjust enrichment; and the
claim lacks merit.
b. The Applicant says he was always an owner; he explains why he put the house in
the Respondents name; and then submits his post-separation entitlements are
based upon constructive trust which is a remedy for unjust enrichment.
568.
The starting point is the November 1998 purchase of the Waterdown home.
a.
b.
c.
d.
The Respondent contributed the down payment.

But the house was registered in joint names (as was the mortgage).
The Respondent says we should ignore that registration of joint ownership.
She argues that because she contributed all the money needed to close the
transaction, from the outset she was really the sole owner of the home.
e. In her view the Applicant never had any actual ownership interest as of day one.
f. She vaguely described agreeing to register the property in joint names just to keep
the Applicants mother happy. The Applicant denied this. And the Respondent
certainly didnt elaborate about discussions, intentions or her rationale.
g. The Respondent alleged there was an express oral agreement between the parties
that the property would be initially registered jointly. And then later in some
unspecified circumstance title would be corrected into the Respondent alone.
The Applicant denied any such agreement.
569.
That concept I registered the house half in his name but really its all mine
sounds more like a resulting trust argument.
a. The presumption of resulting trust is the general rule for gratuitous transfers.
Wright v. Holmstrom 2015 ONSC 1906 (SCJ).
b. The leading resulting trust cases are Pecore v. Pecore 2007 SCC 17 (in the nonfamily case context) and Kerr v. Baranow 2011 SCC 10 (in the family context).
c. A resulting trust arises when title to property is in one partys name, but that
party, because he or she is a fiduciary or gave no value for the property, is under
an obligation to return it to the original title owner. Pecore (supra).
c. Before property can be equalized a court must first determine the net family
property of each spouse. Martin v. Sansome, 2014 ONCA 14; Rawluk v.
Rawluk, [1990] 1 S.C.R. 70.
d. This exercise requires first that all questions of title be settled.
e. In other words, property entitlements must be determined before they can be
equalized.
d. The mere placing of property in another persons name without consideration

creates 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 legal
owner 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 a
resulting 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, 2015
ONSC 37.
g. Equity presumes bargains, not gifts. Pecore (supra).
h. The presumption of a resulting trust is based on presumptions about the intention
of the transferor.
i. But the presumption of resulting trust is rebuttable by the transferee (the legal title
holder) 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 the
transferor alone that counts. Pecore (supra); Schwartz v. Schwartz, 2012 ONCA
239 (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 the
transferee to demonstrate that a gift was intended.
k. In Kerr the Supreme Court confirmed that a traditional resulting trust may arise in
the 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 ONCA
553.
570.
The Applicant appears to argue that this wasnt a resulting trust situation. In the
alternative, any presumptions have been rebutted.
571.
He submits the Respondent didnt gratuitously gift him anything.
a. She didnt 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 the
transaction.
d. They both contributed and facilitated the acquisition of the property in different
ways.
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: 160
g. But the Respondents advancing of the down payment was only one component of
the method and plan by which the house was purchased.
h. Acquiring the house was contingent on other mutual expectations and
commitments 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 theyd 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 would
allow 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 Applicants evidence was specific and credible.

a. From the outset they knew they would be contributing to their new house in
different ways, at different stages.
b. Short term: shed come up with the down payment. Theyd both come up with
the financing.
c. Long term: Theyd both pay off the house. Hed likely pay more than her.
d. And thats the plan they followed from day one.
573.
I do not accept the Respondents 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 jointly
entailed mutual consideration. She did certain things that he benefitted from, and
he did certain things that she benefitted from.
574.
My assessment of the Respondents 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 even
at trial she made no effort to mask her fundamental belief that shes entitled to
everything; hes entitled to nothing. And that applies not only to financial issues.
Page: 161
d. There were quite a number of instances in which I concluded she was not being
honest. Not with the Applicant and others in Paiges 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 both
agreed 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 Applicants half of the down payment, the
Respondent would always be entitled to everything no matter how many tens of
thousands of dollars the Applicant put into the mortgage he had committed to. I
do 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 in
Gaunt there was no common intention of joint ownership or that each would have a
beneficial interest; the females income was minimal and irrelevant to the decision to
purchase; by mutual agreement she never made any financial contribution; and the
relationship 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 of
37 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, the
Applicant 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 same
house:
a. The Applicant says he and the Respondent agreed to transfer title from joint
names into her name alone solely to insulate the property from potential
creditors as a result of the litigation risks associated with being a Toronto police
officer.
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 Applicants
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 doesnt trigger a resulting trust analysis, because the Applicant didnt really have
Page: 162
Page: 163
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 a
resulting trust when the property was registered in her name alone.
580.
As noted in Korman, any motivation to shield the property from the husbands
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 they
intended to gift their entire interest in the property, the intention of the parties is a
question 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 resulting
trust claim is allowed where there are no creditors or merely the uncertain specter of
creditors
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 wifes 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 wifes name
was for a legitimate purpose: because of the dangerous work that the Respondent
had done as a police officer in the anti-ga ng 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 event
or transaction.
b. That one-half beneficial ownership remained in place as of both the date of
marriage and the date of separation.
c. It remains in place today.
any ownership to convey. She seems to characterize the 1999 conveyance as a preplanned correction of her deliberate 1998 misrepresentation as to ownership. Thats very
convoluted.
579.
I accept the Applicants evidence that his their sole motive for transferring the
house into the Respondents name was to protect the property from potential lawsuits
related to his work. At the time he had no actual creditors or lawsuits pending.
Page: 164
As the Court of Appeal stated in Korman at paragraph 40:

The determination that the husband is a beneficial owner of a one-half interest in
the matrimonial home is dispositive of his entitlement to share in any post-separation
increase in the value of the property: he is placed in the same position as a joint
owner on title, thereby becoming entitled to a one-half interest in the value of the
matrimonial home whenever that value crystalizes.The value of the matrimonial
home at v-day is thus irrelevant since, for the purpose of equalization, a one-half
interest in the property is placed on each side of the parties property ledgers,
requiring no further equalizing exercise.
585.
While the Court of Appeal in Korman determined that the husbands one-half
entitlement would be reduced by any unpaid share in post-separation expenses and
upkeep, the Respondent gave no evidence of any such claim or calculation.
586.
As noted, during submissions both counsel were somewhat imprecise as to the
legal pathway they were proposing to determine interest in the matrimonial home.
a. In Korman, the Court of Appeal noted that at trial counsel argued unjust
enrichment when really it was a resulting trust case.
b. The same confusion arose in Barrett v. Barrett, 2014 ONSC 857 a case relied on
by the Respondent. In Barrett the husband was unsuccessful claiming a share of
the post-separation increase in the value of a home. But while counsel in Barrett
based their claim on unjust enrichment, it really was more of a resulting trust case.
c. The confusion appears to be common and understandable.
587.
Since counsel focussed on unjust enrichment principles specifically in relation to
the house, I would add that if my resulting trust analysis is incorrect and if unjust
enrichment is the correct approach in my view the outcome would be no different.
588.
For unmarried couples, unjust enrichment is the primary vehicle to address
property claims. Kerr (supra).
Married spouses should usually rely on equalization
rather than unjust enrichment.
589.
But here we have a hybrid of relevant events arising during significant periods of
both unmarried and married cohabitation.
a. The key determinations in relation to the house arose prior to marriage.
b. Accordingly, it is arguable that an unjust enrichment analysis might be
appropriate with respect to this specific property issue.
590.
In Martin v Sansome, 2014 ONCA 14 the Ontario Court of Appeal summarized
the questions the court must ask in analyzing an unjust enrichment claim:
1) Have the elements of unjust enrichment been made out?
corresponding deprivation; and the absence of a juristic reason).
(Enrichment; a
584.
2) If so, will monetary damages suffice to address the unjust enrichment, keeping in
mind 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 a
corresponding deprivation; and there was an absence of juristic reason.
b. Given the magnitude of the Applicants contribution to the property -- and given
the 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 sufficient
nexus 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 be
the prevailing analysis in any event.
593.
But no matter what the approach, the Respondents position that the Applicant
should 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 the
two 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 Applicants 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: 165
Page: 166
c. (These calculations would be subject to pre-judgment interest and a small
adjustment claimed by the Respondent for post-separation expenditures like
parking tickets.)
10.1(4) Same
In determining whether to order the immediate transfer of a lump sum out of a pension plan
and in determining the amount to be transferred, the court may consider 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 purposes, of his or her interest in the pension 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 the
desirability of maintaining those resources.
597.
Pension values are still factored in to the equalization calculation.
merely creates options as to how equalization is to be satisfied.
Section 10.1
a. There is no presumption or statutory onus under s.10.1 of the Family Law Act that
an 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 to
accept 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 other
objectives 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 the
matrimonial 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.
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 equalization.
e. The Applicant will also likely participate in the purchase of larger

accommodation with his fianc.
f. Dividing the pension by way of a lump sum transfer will mean the Respondent
immediately 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 implications with respect to timesharing.
g. In contrast, if the pension is simply included in the equalization payment, the
Applicant 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 cash
from the mortgage free home. Placing them in a position of equal liquidity is very
important as they both try to rebuild their lives.
h. Spousal support is also interwoven with this determination. The Respondents
entitlement is acknowledged, but quantum and duration are in dispute. The
Applicant will seek to lower spousal payments because of his child-related
obligations. He will also seek a time-limitation on spousal support. This will
heighten the Respondents need to be able to access all of her resources and
entitlements now.
CUSTODY ANALYSIS
599.
600.
life.
I make the following findings in relation to parenting.

Prior to separation both parents were actively and beneficially involved in Paiges
a. There were periods when the Respondent spent more time with the child
because at times the Applicant was employed and she wasnt.
b. But qualitatively they were equally familiar, equally skilled, equally committed
with respect to Paiges 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 childs 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 point
the Applicant had voluntarily moved out. She was still in the house with the
Page: 167
Page: 168
child. She was still receiving significant direct financial assistance from the
Applicant.
a. At precisely the moment the Respondent learned of the Applicants 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 and
adult manner.
d. But the Respondents 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 take
his 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 2012and Octoberand the months and years that
followedwas nothing less than emotional child abuse.
a. The Respondent embarked on a campaign to eradicate the Applicant from Paiges
life 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 fulltime 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 childs enjoyment of time with
her father by creating unpleasant and sometimes bizarre problems at exchange
times.
604.
Most troubling was the persistent psychological campaign the Respondent
embarked on. The subtle but destructive messages to the child which Michelle Hayes
warned about.
a. That good things, important things, only happen at the mothers house. Never at
the fathers.
b. That her experiences with her father will always be second class. Without her
good clothes. Without her homework. Full of anxiety and worry.
602.
But by the end of August 2012 that goodwill quickly vanished, and a cold war set
in -- with disastrous consequences for Paige.
c. That Paige is going to miss out on fun things when she spends time with her
father.
d. That her real life is with her mother. She should always hurry back to her real
home.
e. That she cant trust her father. She cant trust Catherine White or her children.
f. That her father wants to ruin everything. He wants to take her away. He wants to
take away mommys 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 its really just mother and
daughter. 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 wont.
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 theyre best friend. Special friends. They should never be apart. Her
mother cries when theyre apart.
m. That Paige shouldnt want to be with her father. It will make her mother sad. He
doesnt deserve anything.
n. That the mother is fighting hard to protect Paige, but her hands are tied because
the father has court orders. The mother cant do it alone. Its up to Paige to
demonstrate solidarity by standing up to her father. Theyre a team against him.
o. That the father wants to take her away forever. And a judge might do it. She
should be worried.
p. That Paige cant trust anyone because everyones against the mother. So Paige
needs to keep secrets. Tell lies if necessary. Because the teachers and social
workers and counsellors are all on the fathers side. They dont 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 already
gone home with the Applicant. From Hensens perspective it was one of many
miscommunications between the parents. But Hensen testified the Respondent
became distraught and expressed fear that she may never see her daughter again.
606.
The Respondents behaviour and manipulations have been so extreme and
misguided as to raise concern about her emotional or psychological well-being.
a. McMillan says she has no major mental illness.
parenting.
Nothing to interfere with
Page: 169
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 since
McMillans 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 get 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 mind
games 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 custody
A court of competent jurisdiction may, on application by either or both spouses or by any
other person, make an order respecting the custody of or the access to, or the custody 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 spouses or by any other person, make an interim order respecting the custody of or the
access to, or the custody of and access to, any or all children of the marriage pending
determination of the application under subsection (1).
16(3) Application by other person
A 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 access
The court may make an order under this section granting custody of, or access to, any or all
children of the marriage to any one or more persons.
16(5) Access
Unless the court orders otherwise, a spouse who is granted access to a child of the marriage
has the right to make inquiries, and to be given information, as to the health, education and
welfare of the child.
16(6) Terms and conditions
The 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 in
connection 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 this
section a term requiring any person who has custody of a child of the marriage and who
intends to change the place of residence of that child to no tify, at least thirty days before the
change or within such other period before the change as the court may specify, any person
who is granted access to that child of the change, the time at which the change will be made
and the new place of residence of the child.
16(8) Factors
In 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 conduct
In 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: 170
Page: 171
608.
It is useful as well to consider the provisions of section 24 of the Childrens Law
Reform Act, which sets out some specific criteria for the court to consider in determining
the 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 basis of the best interests of the child, in accorda nce with subsections
(2), (3) and (4).
24(2) Best interests of child
The court shall consider 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 stable 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 the
child's care and upbringing;
(f) the permanence and stability of the family unit with which it is proposed that the child
will 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 person
who is a party to the application.
24(3) Past conduct
A person's past conduct shall be considered only,
(a) in accordance with subsection (4); or
(b) if the court is satisfied that the conduct is otherwise relevant to the person's ability to act
as a parent.
24(4) Violence and abuse
In assessing a person's ability to act as a parent, the court shall con sider whether the person
has at any time committed violence or abuse against,
(a) his or her spouse;
(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) Same
For the purposes of subsection (4), anything done in self-defence or to protect another person
shall not be considered violence or abuse.
609.
Both statutes confirm that the sole criterion is the best interests of the child. The
interests of parents are entirely secondary. Gordon v. Goertz, [1996] 2 S.C.R. 27;
Clayson-Martin v Martin, 2015 ONCA 596.
610.
Thats worth re-stating, particularly after a long, acrimonious trial which focussed
so extensively on adult behaviour. Some of it quite troubling.
In making an order under this section, the court shall give effect to the principle that a child
of 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 willingness of the
person for whom custody is sought to facilitate such contact.
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 the
relevant circumstances as to the needs of the child. Any reference to behaviour of the
parents must be in relation to each parents ability to meet the childs needs. The
emphasis must be placed on the interests of the child, and not on the interests or rights of
the parents. Gordon v. Goertz, [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 childs residence; to
discipline the child; and to make decisions about the childs education, religion, medical
care 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 parents ability to interfere or impose their
own 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 decisionmaking authority and responsibility in all areas respecting the child. Izyuk (supra).
615.
Joint custody is not an option in this case:
a.
b.
c.
d.
e.
f.
Neither party requested it.

Both parties agreed they have no effective communication with one another.
This is a high conflict case.
The parties have no ability to set aside their differences for the sake of the child.
There is no history of functioning co-parenting.
In such circumstances, joint custody is simply inappropriate as it would not serve
the best interests of the child. De Melo v De Melo, 2015 ONCA 598 (Ont. C.A.);
Kaplanis v. Kaplanis, 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 specifically
suited to each familys 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), 46
R.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 major
decisions respecting the child in all major areas of parental authority while the
child 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.).
Page: 172
Page: 173
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 decisionmaking 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 that
disclosure meeting and how many more problems the Respondent created
Hayes abandoned any hope that Paige might be well-served in a parallel parenting
arrangement.
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 Paiges 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, that
Paige needs a regime in which necessary decision-making will occur efficiently
and unequivocally.
b. The Respondents abuse of past decision-making authority, and her inability to
prioritize the childs well-being over her own emotional needs, leaves me unable
to 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 be
awarded 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 Paiges best interests. On too many occasions the lack of
structure and clear authority has led to mischief, ineffectual parenting, missed
opportunities, 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 childs best interests are best served by treating decisionmaking 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 childs perspective, in terms of love and emotional attachment.
617.
Hayes testified that at her disclosure meeting with the parties and counsel in
November 2013 she indicated she would be recommending parallel parenting.
Page: 174
624.
But they are not equal in terms of parental judgment, fairness, or the ability to put
the childs needs ahead of their own.
a. The evidence is overwhelming.
b. From the outset the Respondent seized control of the child and then proceeded
to 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 werent just errors in judgment.
f. The Respondent was overt, manipulative, scheming, deceitful and oblivious to the
needless family suffering she perpetuated for at least the last three years.
625.
When the Respondent testified about future decision making she spoke in
generalities.
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 it
wont 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 Paiges school issues.
626.
The most frightening aspect of the Respondents evidence:
think shes done anything wrong.
She still doesnt
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 in
avoiding conflict, working cooperatively, and making the best possible decisions for
Paige.
a. He never claimed to be a better parent.
b. He never sought to be more than equally involved in his daughters life.
b. Equal as described by third parties. The common theme from witnesses was that
Paige is a wonderful little girl who loves her mother and father equally.
c. Indeed, equal in their ability to meet the childs basic physical and instrumental
needs.
Page: 175
628.
I have considered section 16(10) of the Divorce Act, which requires the Court to
consider 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 is
required to take into consideration the willingness of the person for whom custody is
sought 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 Paiges
life. Far from facilitating access, the Respondent has consistently undermined and
interfered with father-daughter contact. Looking forward, the court must promote
maximum contact with both parents including the Respondent while at the
same 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 Paiges life.
d. In contrast, if the Respondent were to be granted custody, its pretty clear we
would end up with more of the same. And in this case, the status quo is definitely
not something we want to perpetuate.
629.
Hayes testified that in recommending that the Applicant have sole custody, she
felt he should have decision-making authority for topics like religion, major medical
issues, education, and perhaps arranging a psycho-educational assessment for Paige. As
it happens, religion does not appear to be an issue. The Applicant appears to be content
that 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 invoking
final decision making rights.
b. She said a parenting co-ordinator could assist the parties with logistical issues like
organizing 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 coordinator.
c. He proposed mediation as soon as conflict arose. Maybe it wouldnt have

worked. But I heard no evidence to justify the Respondents knee-jerk rejection.
d. In describing ongoing problems and issues in Paiges life, the Applicant
demonstrated insight, sensitivity and fair-mindedness.
e. Repeatedly, the Applicant made concessions sacrifices for the sake of the
child.
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 partys
position, the Respondents lawyer started out saying the mother would think
about using a parenting co-ordinator. After further inquiry, the Respondent said
yes 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 Respondents lack of enthusiasm -- and mutual uncertainty about
whether 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 coordinator, they can arrange it themselves.
The harder issue by far the hardest issue is what to do about timesharing.
The Applicant described his timesharing proposal.
631.
632.
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 Paiges level of anxiety and the constant conflicts created by the Respondent
have caused him to doubt whether Paige can safely be placed with the Respondent
half 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, hes 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.
b.
c.
d.
e.
634.
He has an extensive family support network.

If hes at work, his fiance Catherine White is usually available to care for Paige.
In the alternative his mother and Whites mother can help.
Whites older child has a car and can also assist with transportation.
White testified she has a lot of scheduling flexibility at work, so she could help
the Applicant with pick-ups or drop-offs if he needed help. But she said with his
schedule he would rarely need her help.
The Respondents position was less clear.
Page: 176
a. She said she preferred primary residence with her. The Applicant could have
alternate 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 be
minimized.
e. As well, since she and the Applicant have such very different parenting styles,
she thinks its easier for Paige if she spends longer periods in each household so
she 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 couldnt
agree 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 would
spend:
a.
b.
c.
d.
e.
f.
8 days with
8 days with
8 days with
8 days with
5 days with
5 days with
her father.
her mother.
her father.
her mother.
her father.
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 wasnt 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 Paiges schedule should get priority over the
Applicants work schedule. If he wants to see his daughter more, maybe the Applicant
should change his work commitments.
Page: 177
641.
I agree with Hayes that the Respondent is off base suggesting the Applicant
should 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 avoid
conflict 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. She
said Paiges school routine is organized on a Monday to Friday schedule. And
transferring households on Fridays after school would allow the child to use the
weekend 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 I
am inclined to favour the Respondents 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 in
session. He referred to a center in Burlington he located through an internet
search. He didnt 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 and
enters the other. She denied that she gets emotional or creates problems during
exchanges.
c. I agree with the Applicant that a neutral setting is required to monitor and
discourage 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 involves
consideration of where each party is going to be living and where Paige is going to be
attending school.
Page: 178
Page: 179
647.
There are actually two related educational issues:
648.
Paige is currently in grade three of a French Immersion program at Guy Brown
Elementary School in Waterdown, near the former matrimonial home where the
Respondent lives.
649.
The Respondent proposes that Paige continue in that school and (at least for the
time being) in French Immersion.
a. She said Paige enjoys the school, the teachers and her many friends.
b. It would be best for the child to remain in a comfortable, friendly environment.
c. The Respondent admitted if Paige had to change schools, like any other child she
would have to adapt.
d. But it would be a shame to take her out of a school where shes happy if theres
no good reason to do so.
650.
School principal Rizzo testified that at the end of the 2014-2015 school year
(grade two) the Respondent commented that she didnt like Guy Brown and that it didnt
have good programs.
But Rizzo quoted Paige saying she thought Guy Brown was a
great school and she loved it.
651.
The Applicant proposes that Paige transfer to James W. Hill in Oakville, which he
described as an excellent school only a five minute walk from his home with Catherine
White.
a. He feels Paige should probably switch to an English program because of all of the
academic problems she is experiencing.
b. But he says James W. Hill also has a French Immersion program, as a current or
future option.
c. He admitted Paige has never expressed a desire to change schools.
d. But he said she has certainly expressed that she hates going to school, because of
all of the parental conflicts which have arisen there.
652.
Notably, neither of these parties is francophone. So the issue of English vs.
French is entirely a matter of academic proficiency, as opposed to preservation of
linguistic or cultural heritage. In any event, the question of a childs language of
education must take into account all the factors set out in s. 24(2) of the Children's Law
Reform Act as a whole. Perron v Perron, 2012 ONCA 811 (Ont. C.A.).
653.
Hayes recommended that Paige remain at Guy Brown School unless she needed
to change schools as a result of leaving the French Immersion stream.
a. She said Paige is very well settled in the school.
She likes the teachers and
students.
b. Paige has already had a significant amount of transition and upheaval in her life.
1) What school should Paige attend?

2) Should Paige continue in a French Immersion program?
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 Paiges 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 adapt
to a new school if necessary.
f. But Hayes said if Paige doesnt have to move to a different school, why introduce
an unnecessary change?
654.
On the surface, the Respondents proposal of Paige continuing at Guy Brown is
compelling:
a.
b.
c.
d.
e.
f.
Paige is now in her fourth year of full-time attendance at this school.

She likes it there.
She likes the teachers.
She has many friends.
Michelle Hayes recommended that if possible Paige should remain at Guy Brown
School because it has been an important source of stability and happiness during
an extended period of family discord.
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 be
without significant complications.
a. The Applicant testified the Respondent has poisoned the environment for him
as 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 to
him are now openly hostile. He recommended Paige needs a fresh start.
b. Without acknowledging responsibility, the Respondent confirmed that many of
the parents of Paiges friends want nothing to do with the Applicant because they
know what hes like. Presumably they know because the Respondent told them.
But she denied Guy Brown School was a poisonous environment. Certainly not
from Paiges perspective.
c. School witnesses also confirmed incidents of other parents electing to become
involved in this familys business. Approaching staff to advocate on behalf of the
Respondent.
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 Applicants
side and treated her unfairly. At times she seemed to be hinting at some sort of
conspiracy.
Page: 180
b. Her lawyer was quite aggressive in cross-examining the school principal, viceprincipal, and four teachers.
c. Theres nothing wrong with counsel challenging witnesses. And I have no reason
to 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 to
emotional responses.
Undoubtedly she perceived that all of those school
personnel were testifying against her. And as it happens, I believed all of those
school staff. I didnt believe the Respondent.
e. I must consider the adult human dynamics which are likely to unfold for both
the Applicant and the Respondent if Paige continues at Guy Brown School in
future years.
657.
But there are more fundamental questions about whether Guy Brown School is a
realistic option.
a. The Respondents proposal that Paige remain at her current school is predicated
on her assumption that she will be able to continue to reside in the former
matrimonial home in Waterdown.
b. Even if she had been successful in arguing that the mortgage-free house was hers
alone, and that the Applicant should not share in the post-separation increase in
value 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 doesnt have nearly enough in savings.
e. She didnt identify any other sources of funding.
f. She appears to have made no inquiries about borrowing money or the extent of
available mortgage funding.
g. She offered no plan or assurance that she will have the ability to retain the
Waterdown home.
h. Indeed, under cross-examination she specifically stated that she didnt know what
her residential plans might be.
i. She didnt know if she would be able to remain in Waterdown.
j. The closest she came to predicting her future situation was to loosely speculate
that she might end up going bankrupt.
658.
Understandably, her lawyer argued that it was impossible for the Respondent to
arrange financing until she knew how this trial was going to turn out.
a.
b.
c.
d.
Would she get sole custody?

Would she get full child support?
Would she get spousal support without income being imputed to her?
Would she have to share the post-separation increase in the value of the house
with the Applicant?
Page: 181
Page: 182
Those were legitimate uncertainties from the Respondents perspective.

a. But the Respondent didnt 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, shes going to have to pay the
Applicant a lot more than $176,000.00.
d. And she wont be receiving nearly as much in combined child and spousal
support as she appeared to be counting on.
660.
As a sign of the Respondents uncertainty about her own plans, in summarizing
the 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 school
closest to the Respondents residence.
b. She was non-committal about where that residence might be.
661.
With the Respondent attacking the Applicants Oakville school proposal as
disruptive 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 her
residence 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 doesnt hinge on proximity.
She noted
the 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 from
school.
664.
Paige is currently well into grade three in French immersion at Guy Brown.
Barring some serious new issue arising, theres no reason her school or program should
change for the balance of this school year.
665.
Thereafter, as custodial parent, the Applicant should have the discretion to
determine the selection of both the school and program.
a. I anticipate the Applicant will transfer Paige to school in Oakville as of
September 2016.
b. Paige is struggling in French immersion.
I anticipate the Applicant will consult
teachers 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-focussed
educational decisions. He has always shown interest and good judgment.
659.
Page: 183
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 Lawsons class in grade one because she
felt Lawson was taking the Applicants side. She disregarded the fact that Paige
really 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
Paiges agenda, causing the child significant anxiety.
d. The Respondent consistently attempted to take control of educational issues, and
then use that control for selfish purposes.
667.
Getting back to Is equal time logistically feasible?

a. If Paige is going to be attending school in Oakville as of September 2016, the
viability of an equal time arrangement will largely depend on the distance
between Paiges new school and the Respondents 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. Its a bit of a
distance, but its possible (although not desirable from Paiges 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 the
Respondents eventual housing plans.
As stated, she testified she doesnt know those
plans yet.
669.
The second question Is equal time in the best interests of Paige? will also
largely depend on some decisions the Respondent is going to have to make.
670.
Heres 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 Applicant
spends with the child.
c. But the evidence about the Respondents entrenched mindset and attitude raises
enormous 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 shes at a turning point:
666.
The Respondent should certainly be consulted and informed as discussions on
these topics arise. But I specifically exclude the Respondent from having any custodial
decision making authority in relation to education or anything else.
Page: 184
Her worst case scenario: If she doesnt stop the mind games and manipulation,
her access to Paige is going to be continually cut back until she gets control of
herself.
g. Her best case scenario: She comes to understand that our family court system has
zero tolerance for this type of emotional abuse of children. She does whatever it
takes to get her emotional health under control. She says and does nothing more
to undermine Paiges relationship with the Applicant. And so long as theres no
more misbehaviour, Paige is with her half the time.
h. The problem of course is that the Respondent doesnt recognize that shes doing
anything wrong. And without that recognition, a real change in attitude and
behaviour is unlikely.
671.
So where do we go from here?

a. After a 36 day trial, these parties need as much finality in their lives as possible.
b. But a relatively minor question remains about the Respondents housing plans.
c. And theres huge uncertainty about whether the Respondent is going to change
her attitude and behaviour.
672.
I feel I have sufficient information to make a final custody/access order which
contemplates the aforementioned transitional circumstances.
673.
It is in Paiges best interests that a sole custody determination in favour of the
Applicant be implemented immediately. It will be final, and unaffected by any changes
in the Respondents residence or behaviour.
674.
It is also in Paiges best interests that she complete the balance of grade three at
Guy Brown Elementary School in Waterdown. Changing schools in the middle of the
year would be a needless further disruption in her life. And for much of the remainder of
the school year, the Respondents residence in Waterdown will likely remain available.
675.
The biggest challenge is determining the Respondents access:
a. Based on the Respondents circumstances as they currently exist.
b. And based on the Respondents circumstances as I sincerely hope they come to
exist.
676.
Arguably, my unequivocal finding that the Respondent is emotionally harming
Paige might lead to the logical conclusion that Paiges exposure to the Respondent needs
to be reduced and controlled immediately. That the Respondents access should be
limited to protect the child.
a. Such abrupt intervention might have a salutary effect on the Respondent. Perhaps
cause her to reflect on the situation she has created.
b. At the very least, it would significantly reduce one type of harm experienced by
the child.
677.
But problems and solutions have to be looked at from the childs perspective.
f.
Page: 185
Paige is already a very stressed little girl. Emotionally vulnerable.

Her default position is to love her mother. To love both parents.
Somehow perversely that innocence has been betrayed.
For years shes been subjected to the Respondents relentless and cruel
competition for her loyalty and exclusive affection. Thats the problem we need
to eradicate.
e. But a sudden or dramatic reduction in mother-daughter contact will only add a
new layer of emotional upset, for a child already conditioned to worry.
f. The sad irony is that children who have been subjected to manipulative or
alienating behaviour by a parent cant help but become especially aligned with
that 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
Respondents undesirable behaviour, while minimizing any discernible change of
routine from the childs perspective.
h. But the Respondent would be wise not to misinterpret this courts expression of
caution.
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 Respondents 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 the
school 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 in
session, 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 Respondents damaging negativity toward
the Applicant, we cannot lose sight of the fact that in many, many ways the
Respondent is an excellent mother.
b. This isnt just a case of how do we balance the good with the bad.
c. Its 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. To
muster the discipline and professional assistance she needs, to overcome
inclination toward emotionality and negativity.
a.
b.
c.
d.
Page: 186
One last chance to stop misbehaving.
680.
Undoubtedly, the Respondent will be disappointed by her loss of custody. That
chapter 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 beyond
September 2016 (subject to any logistical issues which might arise, depending on
how far the Respondent resides from Paiges school in Oakville).
b. If there is no sign of improvement in the Respondents attitude and emotionally
harmful behaviour, she should presume her school-year access will be reduced to
alternate weekends and Wednesday overnights.
c. If the Respondents poisonous behaviour worsens following this order, and
Paiges emotional health declines further, the Respondent may end up with even
less than alternate weekends.
d. If urgent problems arise, I will deal with them quickly.
682.
How will we decide if things have improved?
36 day trial.
For sure, we wont have another
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. Thats not the preferred option. But sometimes the
only way to stop parents from arguing is to leave them with nothing to argue
about.
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 associated
with a judge seizing himself after such a lengthy trial by far outweigh any
discomfort either or both parties may experience.
Gallicano v. Faber 2015
ONCA 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
f.
Page: 187
684.
But for clarity:

a. I am hoping there wont be a dispute about a September access transition.
b. I am hoping that during the intervening period the Respondent will get some
professional help, and come to terms with the fact that being nasty isnt working
for her. Being nice will accomplish a lot more.
c. I have specifically ordered equal time-sharing between now and September 2016
to give the Respondent an opportunity to prove herself. To demonstrate if she is
capable of giving Paige permission to love her father.
d. And I am expecting that if the Respondent does what were all hoping shell do -if she changes that the Applicant will acknowledge her good faith efforts, and
agree that perhaps equal time should continue beyond September 2016.
e. Because this isnt just a turning point for the Respondent.
f. Both parties need to reassure Paige that theyve gone to that park and said sorry to
one another and that she can go back to being a carefree little girl who loves
everyone.
SPOUSAL SUPPORT
685.
The Respondent testified about her employment following Paiges birth in June
2007.
a. During the first ten years of the relationship she held secure, full-time
employment.
b. After Paige was born she took a one year maternity leave.
c. She had always wanted to extend her maternity leave with Paige, so she could be
home with the child as long as possible.
d. She said she had misgivings about returning to work in August 2008, but her
employer needed her and she felt obliged to help.
e. She said she was able to return to work on a full-time basis for about 10 months,
until she was laid off in June 2009.
f. Initially she waited to see if the layoff would be temporary or permanent. She
found out it was permanent in February 2010.
g. She testified she had no idea whether she would have returned to work if they had
called her back.
h. She said she had no intention of immediately returning to work after her layoff in
June 2009. She decided to stay home with Paige on a full-time basis.
i. She was unemployed when the parties separated in July 2011.
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.
d. Both parties should presume I will be expecting professional evidence if there is a
dispute about whether things have gotten better or worse.
e. As well, any emergencies may be returned to my attention by way of motion on
short notice. Hopefully that wont be necessary.
Page: 188
She explained her return to work in January 2013.

a. She decided to return to work because her marriage had broken down and her
circumstances were completely different.
b. She didnt seek employment at all during the first year and a half following
separation. The Applicant was still depositing most of his pay into her account.
The house was paid for. She was getting by.
c. Once she looked for work, she had no difficulty finding a part-time job doing the
same work she did before: control detailing.
d. She sought out her current employment with Engage Automation in Guelph
because it allows her to work mostly from home and set her own hours. She only
wanted to work about 20 hours per week.
687.
The Respondent testified she has no intention of seeking full-time employment or
trying to generate anything more than a part-time income.
a. She has never looked into more hours with this employer, even though more work
would likely be available. She said if she took on more hours it would likely
increase the amount of time she would have to work outside of her home.
b. She earns $30.00 per hour. She has never inquired to see if she might find a
higher paying job, even on a part-time job.
c. She has never inquired about any full-time job with any employer.
d. I am very happy with the job I have.
e. She said she has no plans to look for full-time work because her responsibilities
toward Paige prevent her from working full-time.
f. During submissions her lawyer said the Respondent would probably be ready to
seek full-time employment when eight year old Paige turns 18.
688.
The Respondent testified about her income prospects:

a. She said the most she ever earned prior to separation was around $56,000.00 from
full-time employment.
b. She said this past year shes had difficulty working even 20 hours per week
because she is in the middle of very time-consuming litigation.
c. She estimated her income in 2015 will be between $15,000.00 and $17,000.00,
because of all the time she had to spend preparing for the court case.
d. She said even after this court case is over, her responsibilities toward Paige will
prevent her from seeking anything more than part-time hours.
e. She said even if the court orders 50-50 timesharing on a week about basis, she
will still only work about 50 per cent of the time. The weeks she doesnt have
Paige.
f. She said half-time hours will likely generate about $30,000.00 per year. Full-time
employment might generate close to $60,000.00.
686.
Page: 189
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 Applicants evidence that on September 15, 2014 he emailed 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 emailed back asking if he needed help with child care -- because she didnt.
d. I said thank you but Im not interested.
690.
The Respondent testified that she has decided not to pursue more employment (or
hours) 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 at
the end of the day; and attend school during the day if anything comes up that
Paige needs her.
c. She wants to be available to volunteer at Paiges 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 excellent
childhood.
f. She acknowledged she has an obligation to contribute financially for Paige. But
she disagreed she had an obligation to earn $60,000.00 if she was capable of
doing so.
g. She admitted that if she didnt have a daughter to raise perhaps I might be
capable of earning $60,000.00
691.
The Respondents income and her potential income are relevant:

a. In relation to her own claim for spousal support.
b. And in relation to the Applicants 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 both
spouses 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).
689.
The Respondent admitted child care would be available to facilitate full-time
employment.
694.
Both parents have an absolute responsibility to support their children to the extent
that 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); DePace
v. 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 to
impute 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 CanLII
41868 (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 of
example 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 or
unemployed, 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 or
spouse.
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 its
discretion to impute income and, if so, in what amount.
700.
The test in Drygala for imputing income for child support purposes applies
equally 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 of
income must establish an evidentiary basis upon which this finding can be made. Homsi
v. 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 onus
shifts
to
the
pay
or
to
show
one
of
the
exceptions
of
reasonableness. 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 CarswellOnt
173(SCJ); Millford (supra).
Page: 190
703.
A parent is intentionally underemployed if that parent chooses to earn less than he
or 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 of
income. 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, 2000
CanLII 22516 (ON SC), [2000] O.J. No. 2574 (SCJ); Hanson v. Hanson, 1999 CanLII
6307 (BC SC), [2000] W.D.F.L. 119, [1999] B.C.J. No. 2532 (BC SC); Trottier v.
Prudhomme, 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 court
can impute such amount of income to the parent as it considers appropriate in the
circumstances.
Courts have a significant degree of discretion when imputing
income. 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 or
unemployment 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 the
act 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 is
reasonable. 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).
Page: 191
714.
Income may be imputed where there is an obvious motive to avoid support; where
a 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; and
where 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 of
child 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 with
an excellent employment history and marketable skills.
b. There is no doubt that she came to be fully dependent on the Applicant, directly as
a result of her decision not to return to the workforce after her involuntary layoff
in June 2009.
c. Despite the Applicants vague evidence that he didnt want her to stay out of the
workforce, the reality is that both parties acquiesced to this arrangement and as
a police officer commuting to another city for shiftwork, the Applicant realized
certain 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 after
separation.
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 the
Applicant had entered into a relationship with another woman. It follows that
until the summer of 2012 there was some understandable uncertainty or confusion
in the Respondents mind about whether reconciliation might occur. Dependent
spouses 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 Respondents job-search efforts as reasonably diligent.
717.
I conclude however that since January 2013 the Respondent has been
intentionally under-employed.
a. She had no difficulty finding the same type of work she held before. Work she is
suited 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: 192
Page: 193
718.
This finding of intentional under-employment satisfies the first part of the threepart test set out in Drygala.
719.
The second question: Is her under-employment required by virtue of the needs of
the 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 used
to 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 felt
Paige 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 Respondents 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-time
employment, when full-time employment would most likely have been available.
720.
The Respondent says Paige needs her to be constantly available. But that selfserving perception is really part of the sad pathology of this case.
a. Mother and daughter love one another. Just as father and daughter love one
another.
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 childs perspective, to have a parent always available
when school is not in session thats a luxury few modern families (let alone
single parents) can afford.
f. I heard no evidence whatsoever which would suggest that the Respondents
decision to work less than full-time hours is connected to any reasonable needs of
the child.
g. Not to be forgotten:
The Respondents sense of single-handed parental
responsibility is entirely self-created. This long trial has been primarily about the
d. She has never looked into the possibility of generating a higher income, even
working 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 dont want
to.
Page: 194
721.
Alternatively, the Respondent argues she cant work more hours because she
wants to be available for Paige full-time.
a. That may be her preference.
b. Its 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 Respondents parental
responsibility to make a reasonable financial contribution toward her child, in
accordance with her means.
d. And turning down reasonable, available, well-paying employment runs counter to
some of the fundamental responsibilities of a spousal support claimant.
722.
The final part of the Drygala analysis requires the court to determine whether to
exercise its discretion to impute income, and if so in what amount.
a. I have no difficulty concluding that income should be imputed. Both in relation
to 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 Respondents 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 hasnt 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 week
about 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. Shes had four and a half years since separation. More than three years since she
knew for sure that there was no possibility of reconciliation, so shed better start
making a life on her own.
fact that the Respondent insists on doing everything in Paiges life. She wants the
Applicant involved as little as possible.
h. Its hard to insist I want to do everything and then complain Look at
everything I have to do.
i. Paige has two parents. They can share parental responsibilities. And they can
both hold full-time jobs.
e. The Respondent has been getting child and spousal support all this time (initially
without 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 Respondents
income 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 get
there.
g. I reject the Respondents 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 didnt
help her case.
724.
I find that all support issues should be determined based upon the Respondent
having an imputed income of $60,000.00 commencing January 1, 2016.
725.
The determination of the Respondents income is an integral part of the analysis
of 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 determination
should, among other things:
(a)
(b)
(c)
(d)
recognize any economic advantages or disadvantages to the spouses

arising from the marriage or its breakdown;
apportion between the spouses any financial consequences arising
from the care of any child of the marriage over and above any
obligation for the support of any child of the marriage;
relieve any economic hardship of the spouses arising from the
breakdown of the marriage; and
in so far as practicable, promote the economic self-sufficiency of
each 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 vary
from case to case.
728.
There are three conceptual models upon which entitlement to spousal support may
arise:
a. Compensatory support. This primarily relates to the first two objectives of the
Act. 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: 195
730.
The court is not required to select and apply only one conceptual model of
entitlement 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 respond
appropriately to the diverse forms that marital relationships can take.
732.
The purpose of compensatory support is to share the economic advantages and
disadvantages 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: Caratun
v. Caratun, (1992), 42 R.F.L. (3d) 113 (C.A.),
734.
In many cases a spouse suffers economic hardship on an ongoing basis because
his or her childcare responsibilities limit past and/or future employment or lifestyle
options. Moge (supra). Where there are dependent children, the primary rationale for
spousal 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 employment
opportunities to care for the children and maintain the household may very well enhance
the 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 longterm 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 the
objectives 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), 11
R.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 is
entitled 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 Respondents entitlement to spousal support is based on both compensatory
and non-compensatory principles.
a. Compensatory because the Respondent interrupted her career path and
employment history for child and family responsibilities. Her assumption of roles
and responsibilities facilitated the progression of the Applicants employment,
which included a higher and more secure salary; pension and other benefits; and
seniority.
b. Non-compensatory because as of the date of separation the Respondent was
unemployed with no source of income. When the relationship ended she was
dependent on the Applicant and in need of ongoing support. Her employment
Page: 196
Page: 197
741.
In Fisher v. Fisher, (2008), 2008 ONCA 11 (CanLII), 88 O.R. (3d) 241, the Court
of Appeal noted that, while a judge may depart from the Spousal Support Advisory
Guidelines (SSAGs), he or she should provide reasons for doing so.
742.
The SSAGs are neither legislated, nor binding. However they are a useful tool
with 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 Advisory
Guidelines.
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 in
limited-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 long
term 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, the
Respondents 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 or
indefinite.
b. The Guidelines are a complete package. Quantum is related to duration, and
quantum and duration are related to floors and ceilings and exceptions under the
Guidelines. 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
options and ability to re-gain self-sufficiency have been limited by pre and postseparation responsibilities.
Page: 198
the support recipient at the date of separation, equals or exceeds sixty-five. But
that doesnt apply here.
a. Net child support payable by the Applicant to the Respondent in the sum of
$324.00, using the straight set-off calculation proposed by both parties.
b. Low Spousal support zero.
c. Mid Spousal support $275.00
d. High Spousal support $970.00
e. Duration indefinite, with a minimum duration of seven years and a maximum
duration of 14 years from the date of separation.
749.
Counsel for the Applicant proposed time limited spousal support for seven years
from the date of separation, meaning ongoing spousal support for about another two and
a half years.
750.
Counsel for the Respondent proposed open-ended spousal support, or in the
alternative an order that spousal support be reviewable after about seven years from the
current date.
751.
I find that a review order would be least appropriate.
a. Review orders have a useful but very limited role and should be made only where
there is genuine and material uncertainty at the time of the original trial. Leskun v.
Leskun, 2006 SCC 25, [2006] S.C.J. No. 25.
b. Review orders should be the exception and not the norm. They are appropriate
only when a specified uncertainty about a partys circumstances at the time of
trial will become certain within an identifiable timeframe. Fisher (supra);
Greenglass v Greenglass, 2010 ONCA 675 (C.A.).
c. If there is to be a review, the original order should clearly predetermine the facts
which are to subject of review.
d. Otherwise, a review order has the practical effect of becoming a long-term
temporary order. Whenever the review date comes up, the parties will be free to
re-litigate every support related issue.
e. And with a family as litigious as this one, the last thing we should do is build-in
future opportunities to pursue more expansive litigation.
f. There are simply no currently existing uncertainties which would justify a review
order in this case.
752.
The Spousal Support Advisory Guidelines should not be applied too mechanically,
as a software tool or a formula that calculates a specific amount of support for a set
period of time. They must be considered in context and applied in their entirety, including
the specific consideration of any applicable variables and, where necessary, restructuring.
Roseneck v. Gowling, 35 R.F.L. (5th) 177 (C.A.).
748.
I was provided with quite a number of different Divorcemate calculations. Based
on shared custody, with the Applicant having an income of $100,350.00 and the
Respondent having an income of $60,000.00, the print-out suggested:
Page: 199
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 range
for shorter duration;
b. To extend duration beyond the formulas range by lowering the monthly amount;
and
c. 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 to
select a level of support toward the higher end of the Guideline range, for a significant
additional 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 a
total 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 spousal
support 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 in
September.
a. If equal time sharing ends, the set-off approach to child support may have to be
replaced with full guideline support payable by the Respondent.
b. The Respondents imputed income of $60,000.00 wouldnt 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.
753.
Page: 200
758.
The Respondent claimed $1,920.64 in retroactive adjustments for insurance and
car repairs the Applicant didnt pay; and as reimbursement for fines and toll charges
which 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 expenses
which 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 cheques
were cashed.
d. There was added confusion because for a period after separation they each drove
the vehicle registered in the other partys 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 Applicants estimate of his contribution toward some insurance expenses is
low.
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.
b.
c.
d.
The evidence focussed on the bad rather than the good.

On who shouldnt get custody, rather than who should.
We spent 36 days debating which parent we have to guard against.
Rather than focussing on how we protect and reassure a little girl who didnt want
her parents to be doing any of this.
e. That could have been a brief, pleasant and productive discussion.
760.
761.
762.
out to
a.
b.
c.
d.
e.
Theres no doubt the Respondent will be deeply disappointed with the result.
But Im disappointed too. As judges, we all are.
Somehow, no matter how hard we try, we dont seem to be getting the message
separating parents:
Nasty doesnt work.
Withholding the child doesnt work.
Sarcastic e-mails dont work.
Bad-mouthing the other parent doesnt work.
Twisting the childs life to create a new status quo.doesnt work.
OTHER FINANCIAL ADJUSTMENTS
Page: 201
Selfish decisions which may be emotionally satisfying in the short term, never
look good in a courtroom.
763.
In the classic Christmas movie Its a Wonderful Life theres an extended
fantasy sequence where Jimmy Stewart anguishes over had badly things would have
turned out if hed made a reckless, impulsive decision.
764.
Perhaps family court should fund an instructional movie about this type of
custody battle. Its a Terrible Life. There could be a fantasy sequence about how
happy a child might have been. If only.
THE ORDER
765.
The divorce application shall be severed to proceed by affidavit when the parties
are ready.
766.
The Applicant shall have sole custody of the child Paige Emily Jackson born June
16, 2007.
767.
The child shall not be referred to, formally or informally, by any other name. Nor
shall 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 childs life, with the exception that the Respondent shall be allowed to
have the child attend the Respondents church during times when the child would
otherwise 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 childs school and educational
program.
770.
The Applicant shall have the authority to select any professionals or service
providers to be involved in the childs 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, without
the 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 the
childs 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 provide
full particulars immediately after the child has attended for the appointment.
774.
Both parties shall be entitled to receive copies of all medical, dental, school and
other reports related to the child. Both parties shall be entitled to communicate directly
with 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 all
documents 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
f.
persons, including teachers, doctors, dentists and others involved with the child to speak
fully and openly with both parties.
775.
The Applicant shall consult with the Respondent prior to implementing any nonemergency decisions in the childs 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 generous
and 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 time
sensitive 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-mail
account at least once a day. Each party shall respond to e-mailed inquiries within 24
hours 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 see
any 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 to
Paige 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 using
Paige as an intermediary. They shall not encourage the child to make requests or
proposals on their behalf.
Page: 202
Page: 203
a. Commencing immediately and continuing until September 1, 2016, the

Respondent 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 in
session, 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 the
Applicant and one-third by the Respondent.
b. After September 1, 2016, when school is in session the Respondent shall have
access 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 is
not in session, exchanges shall be Friday at 5 p.m. and Monday at 9 a.m., with the
exchange 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 the
Respondents 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 (or
5 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-about
schedule 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 can
satisfy the court about two issues:
i. That Paige would not be subject to an unreasonably long daily commute to
and from school (depending on the location of her school in relation to the
Respondents 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 Respondent
is 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 the
Respondents negativism toward him, and that there has been no improvement in
the childs emotional health and stress level.
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 recording
statements 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:
f.
790.
If either party seeks to rebut the presumed September 1, 2016 access modification
and 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.
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 have
the 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 the
child from Saturday 7:00 p.m. until Tuesday before school. In even numbered
years this shall be reversed.
c. In odd numbered years the Respondent shall have the entire March school break
from Friday after school until the Monday morning when school resumes. In
even 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 party
shall 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 Mothers Day, and with the
Applicant on Fathers Day, from 9:00 a.m. until 7:00 p.m.
e. On Paiges birthday the child shall be with the Respondent in odd years and with
the 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 the
following 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 from
Monday 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 Paiges school or at a
childrens facility, the parties shall have minimal interaction with one another; they shall
not 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: 204
another or the child; and during the period following the access exchange they shall
respect one anothers privacy and avoid contact with one another.
792.
Each party shall encourage and facilitate the child to initiate regular contact with
the 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 telephone
call 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 day
shall 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 issue
arising 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 at
the 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, who
would 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, other
adult 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 by
January 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 a
deadline for selection of an activity, the other party may proceed with their
selection (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 selected
activity.
e. The party selecting the activity shall pay two-thirds of the cost; the other party
shall pay one-third.
f. Until September 1, 2016 the activities shall be selected in the Region of Halton or
the area of Hamilton known as Waterdown. After September 1, 2016 the
activities shall be selected in the Region of Halton.
g. Only the parent who has physical care of the child during the extracurricular
activity shall attend the event. However, for school or religious events, playoffs
or final competitions and presentations, both parents may attend. The parent who
has Paige in their physical care shall be responsible for preparation of the child for
the activity.
h. Both parents shall make their best efforts to ensure that the child attends most
activity 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: 205
i.
j.
have plans involving the child, that parent shall offer the other parent the
opportunity to transport the child to the activity.
These terms set out a basic framework for extracurricular activities. The parties
may agree to make other arrangements.
Apart from these provisions, neither party shall make any scheduling
commitments for the child which encroaches on the other partys time with the
child.
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 notify
one 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 the
other 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 every
three 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 if
Paige 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 even
numbered 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 for
herein) 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 childs
physical appearance (such as piercings; tattoos; hair dying) without the prior written
consent 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 these
issues 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 jointly
the 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 Applicants 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: 206
divided equally between the parties. The Applicant shall immediately be entitled to
register 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 Applicants 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 adjustment
for 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 of
originals 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 Applicants income is
determined as $100,350.00 and the Respondent shall have income imputed to her in the
sum 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 to
continue beyond December 31, 2020.
812.
The parties shall provide one another with copies of their tax returns (as filed) and
notices 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 provide
full 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 spousal
support.
816.
Both parties shall designate the child Paige as the sole beneficiary of any
insurance on their lives for so long as she remains a dependent child.
817.
The Applicants 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: 207
Page: 208
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
822.
If only costs remain to be addressed, counsel should file written submissions on
the following timelines:
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DAVIS JACKSON
Applicant
-andEILEEN MAYERLE
Respondent
REASONS FOR JUDGMENT
The Honourable Mr. Justice Pazaratz
Released: January 5, 2016
CITATION: Jackson v. Mayerle, 2016 ONSC 72

COURT FILE NO.: F67/13

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CITATION: Jackson v.

Mayerle, 2016 ONSC 72

SUPERIOR COURT OF JUSTICE

Melissa Fedsin, Counsel for the Applicant

Kanata Cowan, Counsel for the Respondent

HEARD: Sept 15,16,17,18,22,28,29,30,

THE HONOURABLE MR. JUSTICE PAZARATZ

2016 ONSC 72 (CanLII)

2016 ONSC 72 (CanLII)

2016 ONSC 72 (CanLII)

2016 ONSC 72 (CanLII)

The parents should alternate Halloween each year, beginning in even-numbered

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

2016 ONSC 72 (CanLII)

2016 ONSC 72 (CanLII)

17. Equalization is also an issue.

2016 ONSC 72 (CanLII)

22. The Applicant fathers theme:

23. Not surprisingly, the Respondents theme is quite opposite:

2016 ONSC 72 (CanLII)

2016 ONSC 72 (CanLII)

24. Clearly, the parties see things very differently.

2016 ONSC 72 (CanLII)

z. Overall, the Respondent feels everyone is focussing on the negatives. No one is

c. Lawson was Paiges teacher in senior kindergarten which commenced September

She testified in a quiet, factual, balanced manner.

2016 ONSC 72 (CanLII)

2016 ONSC 72 (CanLII)

WITNESS #4 PATRYCIA COSENTINO

Hensen was very, very thorough.

2016 ONSC 72 (CanLII)

c. Indeed, the file management system at CAS appears to mandate uncritical

2016 ONSC 72 (CanLII)

WITNESS #10 KATHRYN ANDERSON

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

WITNESS #11 MONIQUE ALDERMAN

2016 ONSC 72 (CanLII)

2016 ONSC 72 (CanLII)

The Respondent is a very intelligent, articulate and passionate woman.

2016 ONSC 72 (CanLII)

47. A specific indicator of Whites candor arose:

She was always right.

2016 ONSC 72 (CanLII)

k. She adhered faithfully and conspicuously to a self-serving narrative whereby

2016 ONSC 72 (CanLII)

a. June 2013 Hayes was retained and started work.

2016 ONSC 72 (CanLII)

The early years were good.

2016 ONSC 72 (CanLII)

2016 ONSC 72 (CanLII)

67. Financially, the Respondent started out stronger.

2016 ONSC 72 (CanLII)

70. The Respondent called his allegations distortion and fabrication.

2016 ONSC 72 (CanLII)

2016 ONSC 72 (CanLII)

2016 ONSC 72 (CanLII)

2016 ONSC 72 (CanLII)

2016 ONSC 72 (CanLII)

APPLICANTS NEW RELATIONSHIP

2016 ONSC 72 (CanLII)

She said she wasnt trying to decrease access.

2016 ONSC 72 (CanLII)

LAWYERS GET INVOLVED

2016 ONSC 72 (CanLII)