ONTARIO COURT OF JUSTICE

CITATION: J.P.K. v. S.E., 2017 ONCJ 306

DATE: May 9, 2017

COURT FILE No.: D42475/07

BETWEEN:

J.P.K.

Applicant

— and —

S.E.

Respondent

Before Justice Roselyn Zisman

Heard on March 27 to 3 and April 27, 2017

Reasons for Judgment released on May 9, 2017

Courtney G. Hughes .......................................................................... counsel for the applicant

Joan C. Manafa .............................................................................. counsel for the respondent

Zisman , J.:

Introduction

[1] This Motion to Change was commenced by the Applicant J.P.K. (“father”) for an order varying the final consent order of August 19, 2009. That order provided that the parties would have joint custody of the child N.K. born […], 2005 (“N.” or “the child”), that the child would reside in the primary care of the mother with access to the father on alternate week-ends and one evening a week and another evening on alternate weeks.

[2] The Respondent S.E. (“mother”) also seeks to vary the outstanding order.

[3] Both parties seek an order for sole custody with access to the other parent.

[4] Much of the evidence in this trial focused on the fact that N. has self-identified as gender fluid non-binary. The mother has self-identified as agender, non-binary Transgender. The mother and N. wish neutral pronouns to be used such as “they” and “them”. The Respondent advised the court that the Respondent could be referred to as “the mother”. While respecting the wishes of the mother to use only neutral pronouns where necessary to convey a proper meaning I will use gender pronouns in this decision.

Preliminary issues

[5] Counsel for the mother raised many objections to the admission of the child’s statements contained in the affidavits of the father and his wife. However, during submissions regarding admissibility, counsel agreed that any statements the child allegedly made to either parent or to their respective partners would not being admitted for the truth but for either context or the child’s state of mind. Any statements made to a third party, who would be testifying, would be admitted as meeting the threshold test of reliability as both parents agreed that N. would not testify.

[6] Counsel for the mother also objected to the inclusion of hearsay from third parties in the father’s affidavit. But the hearsay statements that are objected to are from third parties that testified in the trial and therefore were subject to cross-examination. The statements in the father’s affidavit are included to provide context and for background to explain why he had concerns about N. or why he took certain actions.

[7] Both counsel served Requests to Admit. Counsel for the father prepared an Agreed Statement of Fact based on the admitted facts in both of the Requests to Admit. Despite the accuracy of the Statement of Fact, counsel for the mother still objected to its admission. Counsel for the father agreed to delete the one paragraph that mother’s counsel most objected to that related to the Minutes of Settlement that were the basis for the final consent order.

[8] Both parties filed Notices to Admit Medical Reports and Business Records. The records of the Toronto District School Board, the Children’s Aid Society of Toronto, Aisling Discoveries Child and Family Centre (“Aisling”), the medical notes of Dr. Saunderson and Dr. Bonifacio and the report and notes of Ken McCallium, a psychologist were filed. The notes of Tracy Griffiths, the clinical investigator from the Office of the Children's Lawyer that included her discussions with collaterals and police reports were also filed. The affidavits of both the mother and father attached various text messages and email exchanges and neither counsel objected to that evidence being admissible subject to the issue of weight to be attributed.

[9] Angela Bell, the program manager of Aisling testified. She had no personal contact with the parties and filed the records of Aisling. She also filed a treatment report of Deborah Lade who is a child and family therapist. But Ms Lade was not called to testify so that any opinion she expressed or any statements made to her by the mother or the child werenot subject to cross-examination. Accordingly, I am not prepared to put any weight on the contents of that report except to confirm that the mother and her fiancé and the child have attended 6 sessions from January 31 to March 14, 2017 and a further session is scheduled.

Background

[10] The parties were in a relationship from 2004 to 2007. The child N. was born on […], 2005.

[11] Following the end of the relationship, the father commenced an Application. The parties attended mediation and were able to negotiate a settlement that was incorporated into the consent order of August 19, 2009.

[12] The order provided for joint custody, joint decision making, a comprehensive method of consultation and primary residence with the mother. Although the father was granted alternate week-end and week-day access, there were several provisions that stated that the parties agreed to work towards a shared arrangement whereby the child would reside on a week about basis with each parent.

[13] At the time of the separation the father lived with his parents in Mississauga and the mother and child lived in Toronto. From 2009 to 2012 the father lived in Oshawa with W.K. who he then married in 2015. Although the father lived in Oshawa he called the school and attended the child’s school for concerts and parent-teacher meetings but he relied on the mother for information regarding their child.

[14] In 2012, the father moved back to Toronto and became more involved in the child’s schooling.

[15] The child attended G[….] School for Junior and Senior Kindergarten and Grade 1. Due to concerns about N.’s behaviour, both parents worked with the school’s principal to arrange a psycho-educational assessment of the child. The child was assessed with Attention Deficit Hyperactivity Disorder (“ADHD”) and Oppositional Defiance Disorder (“ODD”).

[16] N. then attended G[….] Public School from 2012 to 2014 for Grades 2 and 3 where he was placed in a Behaviour Exceptionality Special Education class.

[17] N. then attended P[….] Elementary School from 2014 to 2016 for Grades 4 and 5. N. continued to be placed in the Behaviour Exceptionality Special Education class.

[18] While attending P[….], N.’s behaviour significantly deteriorated both in the classroom and during school bus rides.

[19] In March 2015, N. told the mother and the school that he wished to be referred to by neutral pronouns. The mother told the school that N. was afraid of how his father might react. As a result, the school social worker Tracy Horwitz and the school principal Katharine Noel made the decision not to include the father in any school meetings or update him with respect to the concerns about the child’s behaviour.

[20] In October 2015 the mother was telling the father that there were issues with the child and the bus driver and as a result N. was missing a few days at school. The mother refused to allow the father to transport the child.

[21] On November 17, 2015 the mother notified the father that N. was involved in an altercation at the school and that the mother would be keeping N. home.

[22] The father contacted the school due to hid concerns about the child’s absences and during the conversation he happened to advise the principal that he had been aware of N.’s gender issues since the summer of 2015. He was invited to attend the school and was updated with respect to the school’s concerns regarding the child’s behaviour.

[23] The father began this Motion to Change in December 2015 after being advised by the school of the many behavioural issues that had arisen since March 2015. By December 16, 2015, the child had already missed 35 days.

[24] On January 16, 2016 the parties consented to the Office of the Children's Lawyer being appointed. A section 112 investigation was completed by Tracy Griffiths that recommended joint custody and that the father’s parenting time remain the same. The report also made recommendations with respect to the parents obtaining supports for the child and for improved communication between the parents. The father filed a dispute and an Addendum to the Report was then prepared that did not change the primary recommendations but added some information and added further recommendations with respect to sharing of information and parent counselling.

[25] Neither parent agrees with the recommendations.

[26] On August 17, 2016 the parents agreed that the child would be seen by Ken McCallion, a psychologist with the mother taking the child to the first appointment and thereafter the parties would alternate taking the child or as the psychologist may recommend. The parties also agreed that the mother would take N. to Aisling and the father would take N. to Families in Transitions.

[27] As of September 2016, N. is attending G[….] School and is in Grade 6. Although he is still placed in a special education class he has been participating in several integrated classes but still at a lower academic level and there have been fewer concerns about his behaviour.

Position of the parties

[28] The father’s position is that he is the parent best able to meet the child’s ongoing behavioural issues, ensure that the child attends school and ensures that N. receives supports both for his behavioural issues and his gender identity issues. It is his position that he will ensure that the child attends consistently for medical appointments and takes his medication as prescribed. He and his wife are good role models for the child and they are able to work co-operatively with the child’s teachers and counsellors. It is the father’s position that the mother has been unable to meet the child’s needs, that the mother is volatile, uses foul language and the mother is unstable and living in a toxic environment.

[29] It is the mother’s position that they have always been the child’s primary parent, has met all of the child’s needs and has advocated with the school and others to ensure the child’s gender identity is respected and protected. It is the mother’s position that the father is an “abuser” and “transphobic” and does not accept that N. is gender fluid.

Relevant Statutory provisions

[30] As this is a Motion to Change a custody order, it is governed by section 24 and 29 of the Children’s Law Reform Act. Section 29 (1) provides as follows:

A court shall not make an order under this Part that varies an order in respect of custody and access made by a court in Ontario unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child, c.C.12, s.29.

[31] There must be a determination that, since the last custody and access order was made, there has been a material change in circumstances. Once that threshold is met, then the court embarks on a fresh inquiry into the best interests of the child, under section 24 of the Children’s Law Reform Act.

[32] Section 24 the Children's Law Reform Act (“CLRA”) sets out that the court must make custody and access orders in the best interests of the child. Section 24 provides follows:

Merits of application for custody or access

24 (1) 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 accordance with subsections (2), (3) and (4).

Best interests of child

(2) 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 upbringing;

(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) any plans proposed 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.

Past Conduct

(3) 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.

Violence and abuse

(4) In assessing a person's ability to act as a parent, the court shall consider 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.

[33] Both parents agree that there has been a material change in circumstances. In this case I agree with that determination as it is abundantly evident that the parties are no longer able to jointly parent. Further, the child’s escalating behavioural difficulties, his gender identity issues and this litigation has demonstrated the lack of any ability by the parents to jointly make decisions about the child.

[34] As the threshold has been met, the court is now required to examine the evidence to determine what custodial arrangements are now in the child’s best interests.

Evidence and discussion regarding the child

[35] N. has had long standing educational challenges and behavioural issues.

[36] As early as junior and senior kindergarten there were concerns about his inability to follow routines and expectations. His behaviours were described as, “aggression often unprovoked includes: hitting, punching, spitting, hitting with objects, throwing rocks, sitting on peers, defiant, non-compliant”.

[37] In Grade1 N. attended a special half day program for behaviour for several months at another school and N. made some improvements but once he returned to his home school his behaviour declined again.

[38] The parents consented to a psychological assessment of N. conducted through the Toronto District School Board (“TDSB”) due to ongoing concerns about N.’s behavioural and emotional adjustment and in order to assist the school staff and parents in determining how best to support his needs.

[39] Dr. Bourque’s report dated 2012 was filed as part of the TDSB’s records. Dr. Bourgue assessed N.’s cognitive and reasoning abilities to be at the high average range but his processing speed and visual motor integration at the low average range. N. also had difficulties with his reading and writing skills. N.’s emotional and behavioural symptoms revealed clinically significant concerns with respect to aggression and conduct problems, hyperactivity, attention and withdrawal. N. also showed symptoms of attention and hyperactivity with elevated scales for impulsivity, conduct disorder and oppositional/defiant disorder. N. was diagnosed with oppositional defiant disorder (“ODD”) which needed to be addressed through behavioural and emotional interventions to reduce the possibility of N.’s behaviour escalating to serious conduct disorder as N. grew older.

[40] Dr. Bourgue recommended that an individual education plan be developed to provide accommodations for N.’s academics and behaviour, that N. be referred to an occupational therapist and a referral to the school social worker to assist the family with contacts to community agencies and services. It was also recommended that N. be seen by a developmental paediatrician for further assessment as to possible ADHD. Finally, it was strongly recommended that the parents consider external services in the community such as Aisling to assist with managing and coping with N.’s oppositional behaviour. Services for child management and social skills training for N. as well as parenting services and consultations for the parents were recommended.

[41] N. was seen by Dr. Saunderson, a paediatrician, initially through the school but she then became N.’s regular doctor. She diagnosed ADHD and N. was put on medication. There are no medications for ODD. With respect to supports, her primary recommendation was for the child to attend Aisling.

[42] The parents jointly attended an Identification, Placement and Review committee (“IPRC”) and agreed to N. being placed in a special education class. N. has continued to be placed in special educational classes in the various schools N. has attended

[43] Based on the TDSB records as of November 2015 the following are some examples of N.’s troubling behaviours:

1) November 11, 2015: swore at teachers and peers, refused to comply with safety instructions(climbing on chairs, desks, crawling on floor), threatened to bring a knife from home and kill the principal;

2) January 27, 2016: swearing, flipping tables and chairs;

3) February 1, 2016: throwing chair around the room, verbally aggressive with teachers and child youth worker;

4) February 8, 2016: threw ball at younger student twice, fist fight with class peer;

5) February 9, 2016: bragging about punching a peer in the eye;

6) February 10, 2016: without provocation wacked a peer in the face and then threatened to murder peer;

7) March 1, 2016: without provocation chased peer with stick and repeatedly hit him over the head; N. told to sit and finish work and then he came up from behind the teacher and stabbed her in the back with his pencil;

8) May 19, 2016: punched a 6 year old in the face after taking offence to comment about N.’s hair and refused to apologize and felt justified;

9) September 19, 2016: peer called N. “she” and N. said “I’m transgender” and then peer called N. “gay”, N. then pushed and punched peer;

10) October 3, 2016: over 4 periods that day non-compliant, yelling and screaming when lost a game that classmates were targeting and bullying N. and yelling would tell mother that staff allowing it and would report if as a hate crime; refused to accept just because lost a game did not mean anyone bullying or targeting N.;

11) October 4, 2016: over 2 periods that day pushing and hitting peer over a game and continuing to try to kick and push that peer when staff tried to intervene; running out of gym through the school and hiding in stairwell;

12) October 28, 2016: flashing his genitals, threatening to kill another student, chasing the student while throwing things and swearing at the student;

13) November 16, 2016: all day non-compliant swearing, screaming, kicking door and lockers, throwing things down the hall;

14) November 25, 2016: during soccer game, a student scored on N. he then threw the ball at the back of the student’s head, when both went to get the ball, N. swearing, yelling and needed to be escorted out of the gym at which time N. kicks the door repeatedly; later he walks up from behind and shoved student who then shoves back and N. then screaming and hit student with back pack;

15) February 16, 2017: swearing at staff when told to get ready for bus and continued to engage with peers;

16) March 1, 2017: refusing to follow through with a task and becoming non-compliant, yelling and attempted to strike (note not clear if teacher or peer).

[44] Ms Noel who was the principal of P[….] Elementary School began to work with N. in April 2015. Although N. was in a behavioural class and all of the students have serious issues, N. would not let things go and would not apologize. She confirmed that the incidents were not out of character and “fairness” was often a trigger for N.

[45] It was the view of Ms Noel that there was a pattern of the mother blaming N.’s behaviour on misgendering even though the incident had nothing to do with gender. Other times the mother would say, “he has ODD, what do you expect?”

[46] N. was referred to see Tracy Horwitz, the school social worker in March 2015. The referral form was signed by the mother and the father’s name was not on it. In their first meeting, Ms Horwitz noted that there were lots of gender themes prevalent in the child’s home life with the mother and that there were lots of stresses on the mother and this was causing stress on the child.

[47] At her end of year report, Ms Horwitz noted that N. had a difficult year with violent outbursts and struggled with the rules and routines in the classroom. She stated that although N. has had challenges in school since a young age and required a small class setting, N.’s behaviour drastically deteriorated in the Spring of 2015. The mother and N. had moved and the loss of grandparents that caused a lot of stress on the mother, as well as the gender identity questions N. was experiencing. Although N. enjoyed the one-on-one meetings with her, N. did not want to discuss the “hard stuff”. Ms Horwitz stated that as N. would be graduating from P[….] and attending an intermediate behavioural class at his new school, N. might require help with transitioning to the new school. She also confirmed that N. self-identified as transgender and would like to continue to be called “they” at the new school. She recommended support through a children’s mental health agency, specifically Aisling and involvement with TDSB’s Gender Identity Group (“GIG”).

[48] It was the view of Ms Horwitz that the mother was enabling the child’s behaviour and not addressing it by making everything a gender issues and thereby giving N. permission to act out.

[49] N. was assessed by Ken McCallion, a registered psychologist, in February 2017. Mr. McCallion testified that he had no expertise in transgender issues. Mr. McCallion assessed that N.’s verbal reasoning and visual-spatial reasoning abilities were in the very high and superior range whereas N.’s working memory and processing speed were well below average. This profile supported a finding of a specific learning disorder affecting N.’s writing expression and mathematical accuracy and calculations. Mr. McCallion noted that N. was barely able to write 2 sentences with grammar and legibility being very poor. He confirmed the diagnosis of ADHD predominately with inattentive presentation. He also provisionally assessed a severe developmental co-ordination disorder for fine motor skills and recommended the parents seek medical advice as to possible other explanations for the delayed fine motor coordination and a possible referral for occupational therapy. He discontinued the prior diagnosis of ODD as in his opinion it labelled a concern without adding any insights or specifics. He recommended the parents present the findings to the IPRC for special accommodation and made other recommendations for the school. Mr. McCallion testified that both parents were relatively consistent with respect to issues around N.’s behavioural issues.

[50] N. and each parent attended several sessions with Mr. McCallion as he felt one on one counselling was not best at this age and that parents are the primary agents for change. It was his view that especially where there are behavioural issues that it is best to work on the interactions with the parents and he recommended that the parents mutually agree, work collaboratively and use a parent co-ordinator. When he testified he had no further appointments scheduled and if a new problem presented he would see the parents and child.

[51] In February 2017 another IPRC meeting was held. It was confirmed that for Grade 6 at B.[….] school, N. would continue to be placed in a special education behavioural program with opportunities for integration.

[52] Vasuki Poopalasingho, N.’s current special education teacher, testified that although N. continues to have outbursts they are less frequent. The last time was just after the March break, when the child youth worker called the parents due to N.’s outburst, non-compliant behaviour and the language used. There is a child youth worker assigned to the class and one on one supports are available as well as space to work alone. N. has a modified educational plan for language and math. There is a difference in the breadth and depth of the program and he is graded at a lower level. Even when N. is integrated into the regular classes the program is still modified. The goal of the special educational program is to support students to be ready for high school as there are no behaviour programs available in high school although there are some supports available.

[53] It was the view of the teacher that there was no bullying in the class but since it is a behaviour class there are disagreements between the students. She also testified that N. was good at educating others in the classroom regarding gender neutral terms and if the wrong term is used, N. is calm and does not really get upset.

Missed school and lateness

[54] Despite the child’s academic and behavioural challenges, the child has missed or been late a considerable amount of time.

[55] In junior kindergarten, the child was late 24 times and absent 10 days despite the fact the mother lived across the road from the school and was not working.

[56] In senior kindergarten, the child was late 25 times and the report card states that, “arriving on time would help N. manage the routine and tasks of senior kindergarten”.

[57] In grade 5, N. missed 86 periods according to the attendance records. Ms Noel, the principal, testified that whether it was 86 days or 43 days this was a lot of school for a child with N.’s behavioural issues to miss.

[58] This school year based on the records filed, N. has already missed 13 days mainly as a result of the mother removing N. to attend various appointments. Despite the appointments only being about an hour, except for the assessment by Mr. McCallion, the mother removes the child from school for mostly the whole day or sometimes a half day. The mother blamed this on the fact that the mother does not have a car. The mother made no effort to schedule the appointments outside of school hours or during times when the child could return to school for half a day. Even if it was possible for N. to return the child to school for half a day the mother did not return N. to school. The mother refused to permit the father to take N. to appointments unless on his access time.

[59] The mother keeps N. home from school for a “brain rest” day and N. also asked the school social worker for a “brain rest” day. It is the father’s evidence that N. stays home and plays video games.

[60] When the mother kept N. out of school from November 17, 2015 to January 5, 2016, due to alleged safety concerns about bullying, the mother refused to attend a case conference to address the issue and refused the father’s offer to drive the child. However, when the father attended that school conference on November 27, 2015, he brought N. to school as N. was in his care that day. N. attended 2 classes while the father was in the meeting and N. expressed no concerns about his safety. N. told the father that he missed school and it was the mother’s idea to keep him away.

Gender Identity issues

[61] N. has identified as gender fluid, non-binary. There are discrepancies in the evidence as to how this came about and what influence, if any, the mother had on this decision.

[62] According to the mother, in the winter of 2015, the mother had quite a few transgender friends and felt it necessary to educate N. At the time they were living with a roommate that was a transwoman and taking medications to stop testosterone and after that roommate moved out, another roommate who identified as gender fluid non-binary transgender moved in. According to the mother, in the Spring 2015, N. informed the mother and the roommate that N. wished to use neutral pronouns and identify as gender neutral.

[63] The mother contacted P[….] Elementary School to advise that N. wished neutral pronouns to be used. N.’s teacher then advised Ms Noel, the principal. Ms Noel testified that up to that time there had been no indication of any gender issues. She spoke to the mother to see what the school could do. At the time she was aware that the mother’s world was “gender non-conforming environment” as were the people close to the mother as the mother had been introduced her to the mother’s roommate who the mother told her was “trans”. Ms Noel made a referral to Tracy Horwitz, the school social worker to support N. regarding self-regulation and gender issues. The school arranged for N.’s class to be educated by the Gender Violence Prevention Group.

[64] Ms Noel testified that around the time of the June 2015 school conference, the mother identified that the mother was non-binary.

[65] According to the mother, during the summer of 2015, the mother changed to gender neutral pronouns and openly identified as agender, non-binary designation under the transgender umbrella.

[66] According to the father, N. did not show any signs of a non-binary gender identity until the mother and group of friends began to identify as such. The father expressed concerns that N. was too young to have come to this decision without the influence of the mother. However, the father deposed that if N. is gender neutral he is supportive and would facilitate any recommendations made by counsellors or professionals.

[67] The father’s concerns were heightened when he discovered, in reading the medical notes of Dr. Saunderson, that in October 2015 the mother wished “to seek medical treatment to postpone puberty” until N. could decide for himself if N. wished to identify as male or female in the future. Dr. Saunderson testified that she did not speak to N. alone and that the mother asked about the treatment but as this is not her area of expertise she made a referral to Dr. Bonifacio who is an expert in the area. Dr. Saunderson did state that she felt it was too early to make such a decision in pre-puberty.

[68] Due to some administrative issues, the referral was not received by Dr. Bonifacio until September 2016.

[69] Dr. Bonifacio was qualified as a paediatrician with expertise in the area of adolescent medicine and gender identity issues. Dr. Bonifacio explained that the term transgender is an umbrella term to express an identification that does not conform to social norms and that gender fluid is a part of transgender. “Gender fluid” is a subjective term that means that a person presents with mixture of presentations from male to female and “gender neutral” is when you have both genders.

[70] The mother and N. came to the first interview on September 29, 2016 and he received information from both of them that the mother and N. both identified as transgender. The mother stated that about 2 years ago, N. wanted to wear high heels and dresses and still does. The mother told him that N. was the subject of gender bullying and that it happens every day. Dr. Bonifacio formed the impression that N. did not identify as male or female. It was the mother’s plan to work with the GIG program and the school.

[71] The father and step-mother attended the next appointment with Dr. Bonifacio alone on November 14, 2016. They expressed their concerns that the mother was influencing N. and that N. had identified as male up to age 5 and liked male things.

[72] On December 1, 2016 Dr. Bonifacio met with N. alone although he could not recall if the mother was in the room. N. told Dr. Bonifacio that he could use the terms “they/them” but was also fine if “he” was used. N. said that he liked “girl things” and that he would marry a girl.

[73] Dr. Bonifacio formed the impression of gender dysphoria, possibly gender neutral. He testified that he was not clear about “the gender piece” as N. had a very basic concept of gender for example, if N. plays with dolls it is feminine.

[74] It was Dr. Bonifacio’s opinion that N. has a clear interest in stereotypical female interests and may feel he needs to use the term “gender neutral” to express how he is feeling as it is harder for males to express interest in feminine features. Dr. Bonifacio was not sure these interests would continue into adolescence or adulthood. He further testified that there were no clear signs that either parent was forcing the child to be one gender or the other. He did agree that N.’s use of the term “gender neutral non-binary” was unusual but he was not aware of what children were taught at school regarding gender terms.

[75] Dr. Bonifacio made a further appointment to see N. in June. When asked why the delay, he explained that N. was not exhibiting any pathological behaviour and it was best to let the child express himself and wait and see what happens. It was best for the parents to let the child function, be happy and do as N. pleased within reason. With respect to bullying, the parents should work with the school and teachers.

[76] Dr. Bonifacio stated that it is best for any feedback or discussion of a plan to be presented to both parents so there are no misunderstandings and there are time considerations but the mother refused to sit in the same room with the father.

Medications

[77] In 2012, Dr. Saunderson prescribed medication to assist in regulating N.’s ADHD. The mother cites as an example of the father’s aggressive litigation that he brought a contempt motion to prohibit the medication from being administered. However, it was the father’s position that as a joint custodial parent he should have been consulted and was concerned about medications being prescribed for such a young child. Once he met with the doctor he gave his consent and the matter was resolved.

[78] The father and step-mother became concerned about the child not receiving his medication when N., who was 7 years old at the time, reported that he was in charge of giving the medications.

[79] The step-mother reported this concern along with other concerns to the children's aid society. Although the mother admitted that the medications were put into a 7 day dispenser that N. accessed, the mother was always present. The society worker assigned to investigate did not verify any child protection concerns did tell the mother that the mother should be dispensing the medications.

[80] The step-mother deposes that on multiple occasions N. told herself and the father that the mother had missed giving the pill for ADHD that day and on one occasion N. told them that the mother missed giving the pill for multiple days because they ran out.

[81] In the TDSB records, there are a few instances where the mother was called and admitted that she forgot to give the child medication that day. The mother refused to bring the medication to school and on one occasion the child youth worker drove to the mother’s home to pick up the medication.

[82] The mother deposes that Ms Noel suggested that if N. did not have his medication it would be better that N. not attend school as it resulted in an inability of N. to focus and caused disruption to the other children in the class.

[83] The mother admitted that due to “human error” at times medications are forgotten. Btu the mother gave other explanations such as at times there was no money to refill the prescription or if the pharmacy ran out of the medication a new prescription needed to be obtained.

[84] Dr. Saunderson testified that she would only give a prescription for 6 months at a time and that regular appointments are necessary and important to monitor the child’s prescription. Dr. Saunderson also testified that to be effective the medication needs to be taken consistently and after breakfast. Both the mother and the father have separate prescriptions but the father does not require refills as often as the mother.

[85] The mother admitted that the child had not been to the doctor for about 2 years, despite the mother assuring the school that she was taking the child to a doctor’s appointment on May 1, 2015. The mother took the child to an annual checkup on June 7, 2013. On July 25, 2013 the step-mother took the child for an appointment for the flu. The father and step-mother took N. for an appointment on May 1, 2015 due to an urination problem and found out that N. had not been seen for 2 years.

[86] The mother blames the father for not telling her about the appointment as the step-mother was the last person to take the child to an appointment. Further, during those 2 years, the mother testified that they were overwhelmed caring for their parents who were dying of cancer and eventually passed away.

[87] It is unknown how or if the mother renewed the child’s prescriptions or how the mother could have been providing the child regularly with medications during this time.

Allegations that parents did not follow through with recommendations for services

[88] Each parent is blaming the other for not following through with community service recommendations or being involved with the school. The father further alleges that the mother has shown an inability to work with the school.

[89] It is not disputed that as early as 2012, Dr. Bourque recommended that the child receive services from Aisling and that the parents attend for some parenting services. The mother submits that the father did absolutely nothing to follow up but does not explain why as the primary parent she did not follow up. However, the mother later told Ms Griffiths during her investigation that the mother had some historical issues with working with Aisling since as a teen the mother’s confidence had been betrayed.

[90] In June 2015, Ms Horwitz suggested the mother contact Aisling as being the best child’s mental health facility in Scarborough. The mother relies on Ms Horwitz’s evidence that at this time she backed off recommending Aisling as the child was meeting with a private psychologist and she did not feel N. was ready for one on one counselling. However, Ms Horwitz was clear in her testimony that the recommendation for Aisling and other community resources had been made to the mother for years.

[91] At the February 5, 2016 IPRC meeting, several suggestions were made for community supports for N. As the mother had insisted on separate meetings, the father emailed the mother with the recommendations that had been made. The mother refused to discuss the recommendations as it was alleged they were not made to the mother directly.

[92] After several months of further delays, the parties consented to the order of August 17, 2016 wherein it was agreed that the responsibility for taking the child to various appointments would be divided. The father would arrange for the child to go to counselling through Families in Transition and the mother would arrange for the child to go to Aisling.

[93] The father attended at Families in Transition but as it was only for family counselling and the mother refused to attend jointly with the father he could not take the child to this service.

[94] The mother agreed that the father and step-mother could take N. for services at Aisling and he arranged an intake appointment at Aisling for August 15, 2016. Shortly, afterwards, the mother revoked consent when the father asked for some additional time to take N. to the appointments instead of the time being taken from his access times.

[95] On August 24th, the father sent the mother a long email outlining the recommended services at Aisling that had been suggested to him and advised the mother to contact Aisling for an intake appointment. The father had been in contact with Aisling to arrange some parent only classes they offered but as the classes conflicted with his access times he advised that he would have to sign up for the next session.

[96] The father assumed the mother had made the intake appointment. But the mother advised him by email in October 2016 that that Aisling had nothing to offer as there were no issues with N. in their home.

[97] The only proof offered that N. was on a waitlist for Aisling was a letter dated November 7, 2016 addressed to the mother. It is alleged that Aisling tried to call the father when the child’s name came up on the waitlist and when there was no response Aisling closed the file. But the closing letter was sent to the mother and not the father and the father denies he was ever contacted. The manager of Aisling testified but the records produced did not have any notes to confirm that the father was ever contacted. In any event, the cancellation only pertained to family counselling for the father and child and the court order only permitted the mother to take the child for counselling at Aisling.

[98] The mother and N. had an intake appointment in January 2017 at Aisling and commenced counselling in February 2017 but the counselling is only addressing bullying issues and there is no input from the father.

[99] The parties attempted to arrange a psychological assessment of the child. The father agreed to pay for the service and the father explained that the mother would have to sign the necessary consents. There were issues with respect to who would take the child and the mother revoking her consent. Finally, the psychologist’s office refused to conduct the assessment due to the mother revoking consent and the high level of conflict. The mother blames the psychologist’s office for being rude to the mother. The father then proposed 6 other names that were rejected by the mother. Then the father proposed a further 2 names of psychologists recommended by the president of the Ontario Psychological Association that the mother were also rejected. Finally the mother offered an alternative psychologist, Ken McCallion that the father agreed to.

[100] It is also alleged that the mother has not attended important school meetings regarding N. The mother did not attend a school meeting on May 29, 2015. She further declined to come to an important school conference on June 9, 2015 where the school wanted to brainstorm about supports to assist N. with self-regulation, safety issues and outside supports. The mother had initially agreed to come, then changed her mind and also declines to even participate by telephone. The mother also refused to allow the children's aid society worker to come to the meeting. At that time, the school had chosen not to notify the father as the mother told them that the father was not aware of N.’s gender issues. At the June 9th meeting, it was again recommended that services from Aisling be accessed.

[101] An important school case conference meeting was scheduled for November 30, 2016. In attendance were representative from special education, caring and safe schools and the gender based violence team, the social worker, teacher, child and youth worker and the principal. The father and step-mother attended but the mother declined to attend or even attend by telephone conference call. The mother told Ms Noel that she was refusing to attend and sit in the same room as her “abuser”. Ms Noel testified that the mother’s statement hit her out of left field as the mother had never before mentioned any issues with attending meetings with the father and had attended meeting with him before this.

[102] The school arranged for the Gender Violence Prevention team to attend the child’s classroom to educate the staff and students. The school also offered on multiple occasions that a member of that team would meet with the mother and even offered for someone to come to her home but the mother refused.

[103] It had been recommended that the parents attend with the child to a GIG group. The father has been taking the child to the group. When asked why the mother was not also taking the child, the mother indicated that the group met downtown, the mother had transportation issues and the group was held on one of the days when there are free laundry facilities in the building.

[104] Ms Noel testified that services has been recommended many, many times to the mother but that there was always an excuse that it was too far, the timing did not work for her or the services such as speech therapy, SNAP, CDI were not agreeable to the mother. It was Ms Noel’s opinion that N. was having such a hard time that it was up to the mother to do whatever was necessary and that the lack of transportation or timing were not good excuses.

[105] In the records of the TDSB and according to the evidence of Ms Noel and Ms Horwitz, the mother was verbally aggressive and had difficulties interacting with the teachers and other school staff.

[106] Between September 2011 and November 2011, when N. was only in senior kindergarten there are about 30 incidents sometimes lasting a whole day where N. was hitting, shoving, pushing, punching and poking other students with a stick. He was throwing tantrums, throwing water, sand and rocks at other students and was verbally aggressive. When his teacher Ms Lloyd met with the mother to discuss these behaviours, the mother said that N. had trouble with transitions, he was bored and it was up to the teachers to make school more interesting. When the teacher called the next day wanting to tell the mother that the staff would be holding N.’s hand due to his biting and pushing that week, the mother responded by saying “ no offence but I have somewhere I need to be right now. I don’t have time for this.” The next day when the mother saw a teacher try to hold N.’s hand she began to scream and accused other children of bullying N. but the teacher observed N. running into a fence and tried to stop N. Ms Lloyd noted that the mother was “extremely loud, aggressive, angry and inappropriate”. The mother deposed that Ms Lloyd did not like her.

[107] The mother makes various complaints about other teachers in N.’s grade 3 and 4 classes and continued to blame N.’s behaviour on the teachers and the school program. What is striking is that nowhere does the mother address N.’s very troublesome behaviour.

[108] Ms Noel testified about an incident on June 4, 2015 when a teacher used the wrong pronoun when referring to N. When Ms Noel tried to explain that the gender prevention violence team was coming to the school and it would take some time for training and to expect some bumps on the road, the mother was angry, verbally aggressive and confrontational. It was in this call that Ms Noel told the mother about the school meeting on June 9th that the mother should attend.

[109] On September 29, 2015 Ms Noel had to call the mother about a meltdown N. had as the teacher was no longer comfortable speaking to the mother. The mother was upset because a teacher had called N. “he”. Ms Horwitz confirmed that it was the mother not N. who was upset and N.’s meltdown had nothing to do with the gender.

[110] Ms Noel described that she had many telephone calls with the mother. At times if the mother was not anxious or stressed she could have good discussions but if the mother was anxious or stressed there would be lots of loud yelling, and it was impossible to have a discussion. Ms Noel described how the mother could shout for up to a half hour before the mother calmed down and she would let the mother rant and spin herself out. Ms Noel would have to hold the telephone receiver away from her ear as the mother was yelling so loudly. Ms Noel testified that she listened to a level of anger that she should not have had to listen to and was accused on several occasions of supporting hate crimes. Of concern was the fact that she could hear that N. was present.

[111] Ms Horwitz testified about an incident on May 25, 2015 when N. had a bad day and hit another student. The mother was upset because the child youth worker and another child had used the wrong pronoun whereas N. was not bothered by this. The mother did not address N.’s behaviour. On two occasions she heard the mother on the phone yelling at teachers and the child youth worker.

[112] Ms Horwitz outlined that she was concerned about the mother’s stress level, the mother’s ability to see N. as his own person, the mother’s own mental health and that the mother is enabling N.’s behaviour since it was not being addressed and the mother makes everything about gender issues so that N. has permission to act out.

[113] There were many concerning issues with respect to N.’s behaviour on the school bus. There were about 30 reports of disturbing behaviour in 2015 such as using foul language, not listening to directions, insulting other students, hitting, making rude and obscene gestures and throwing things. Most of N.’s profanity and aggressive language is directed at the bus drivers. The mother was warned that if the behaviour continued that a ride alone bus would have to be arranged.

[114] The mother did buy N. earphones to wear on the bus to distract him but no other steps were taken by her and the behaviour continued.

[115] There was an incident in October 2015 where N. threatened the bus driver who then reported the incident to the police. The mother responded by threatening to press charges against the bus driver for verbal abuse. The bus driver quit.

[116] In another bus incident in November 2015 the mother went onto the bus confronted the bus driver and was aggressive in front of N. because the driver had tried to use the gender neutral pronoun and failed, then became flustered and called N. “the student” or “the child”, then called N. “he” and then “she”. This new bus driver also wanted to quit.

[117] Ms Horwitz spoke to N. about the incident and N. confirmed that the mother “ lost it” on the driver. N. was not worried when the mother yells, only when the mother spanks or gives time outs. The mother called the bus drivers abusive for misgendering and wanted the bus drivers to be properly trained and that another new driver be put in place. The mother refused to come and speak to Ms Horwitz about this issue. Ms Noel tried to follow up with both the bus company and the superintendent but she testified that there were a shortage of bus drivers. From the documents file, it appears that the bus company was placing the blame on the mother and not on the drivers.

[118] Ms Horwitz spoke to the mother about the various bus incidents and cautioned the mother that N. could get kicked off the bus. The mother was very dramatic and called it a hate crime.

[119] N. told Ms Horwitz that the gender issue is not an issue at school.

[120] The mother told Ms Horwitz that the father put down N.’s clothes and the mother was worried that the father would cut N.’s hair. However, N. reported in October 2015, that it was a long time ago that the father said anything about the clothes N. wore. Also that the father and step-mother’s wedding was nice, no one cut N.’s hair and N. wore a suit which N. liked. N. also reported that when N. spoke to the father about being gender neutral there were no judgements and it went well.

Children’s Aid Society investigations

[121] There were 4 brief investigations and although no child protection risks were verified, the investigations were superficial at best and did reveal some concerns about the mother’s parenting even if they were not significant enough to be a child protection concern.

[122] In April 2011, Ms K., the child’s step-mother, called the children's aid society due to concerns over the last several months based on N. reporting to her that the mother called him “pissy pants” and “son of a bitch” when the child had an accident and that the mother threatened that the child would not see the father. The child also reported that the mother “spanked him in the face” and also on the bum. The child was misbehaving at the home of the father and step-mother by jumping on the couch and when told to stop, the child began to hit himself on the head and face. When asked why he was hitting himself, the child responded that “when I am bad I get hit in the head.” The step-mother also reported concerns about the child’s hygiene and that the child’s jacket smelt of cat urine. She also reported concerns about the child staying home from school as he said there are “mommy days and N. days” and N. plays video games and the mother is on the computer when they stay home.

[123] According to the children's aid society’s case notes, N. was interviewed privately and confirmed that the mother spanks him on the bum when the mother is angry at him and that N. told the father and step-mother because N. does not like it. N. also reported that the mother once said that she would hit N. outside his head but it never happened. N. reported no concerns about the mother. The mother denied the allegations and only confirmed that the child was spanked on the bum but never in anger and over his clothes. The mother denied hitting the child on the face. The mother stated that N. may have heard the expression, “smack you in the face” from the grandmother. The mother initially refused to permit the worker to attend the home but eventually agreed. Although there were no safety concerns, the home was quite cluttered and dirty and had a faint odour of cat urine. There were 3 cats, a hamster and a chinchilla in a small space with clothes everywhere and dishes on the counter and cat litter that needed to be changed. The mother was encouraged to clean a clear space for N. to play and organize the apartment. The worker noted that the mother and child had an affectionate and open relationship. The investigation was closed at intake and the concerns were not verified.

[124] In April 2013, the step-mother called to report concerns that the child who was 7 years old at the time was taking his daily ADHD medications on his own. The step-mother reported that the child said, he wakes himself up while the mother is sleeping, takes his medication, gets dressed, makes his own breakfast and then goes to his grandfather’s apartment that is in the same building and the grandfather walks him to school. The worker called the mother who reported that the child took the pills from a 7 day pill container but the mother was always present and the child goes to his grandfather’s apartment to eat breakfast. The mother reported that the child’s teacher was asking too many questions about N.’s medication and wondered why. The mother did not want any further society involvement.

[125] The worker accepted that the mother’s explanation appeared plausible despite what appear to be some contradictions. The mother testified that the worker did not like the way the medications were being given to N. and that the mother should give the pills directly to the child and the mother agreed to do so. The file was closed.

[126] However, there was no follow up with the teacher to inquire why she was asking about the medication and no interview with the child, the grandfather or the child’s doctor. Dr. Saunderson’s evidence was that the medication was to be given after breakfast. Accordingly, based on the mother’s own statement to the intake worker the child was being given the medication before breakfast contrary to the doctor’s instructions.

[127] In April 2015, an anonymous caller, from the school where N. attended, called the society. It was reported that the child was coming to school with inadequate lunches of a juice box and granola bar. N. reported that he made his own lunches. The caller reported that the child said that the mother was angry and threw a Nintendo DS across the room that hit the child. The screen was broken and a small bruise on the child’s knuckle was observed. The caller also stated that the mother had been aggressive yelling at staff when the mother was called about the child’s behaviour.

[128] A separate referral was made around the same time by Laura Smith, a special needs assistant in the N.’s behavioural class. It was reported that N. was having some problems with a peer and was feeling bullied and upset and N. said he would bring a knife to school and stab the peer. N. then told Ms Smith that he tried to hurt himself on the week-end and the mother and father told him not to talk about it. When asked if it was true, N. refused to give details and only said he tried to kill himself. N. also told Ms Smith that another time the mother was angry, woke him up at 1:00 a.m. picked him up and threw him into the couch but the time and date were not specified.

[129] The police and Mr. Peter Reid, a society worker, jointly interviewed the child on May 1, 2015. The police concluded that they would not be involved further as it was an isolated event and the children's aid society was involved. Mr. Reid testified that the police report that indicated that the children's aid society would be remaining involved due to the child’s behaviour and to offer supports to the mother was in error and that he did not say that the society would continue to work with the family.

[130] According to Mr. Reid’s case note of May 7, 2017, he interviewed both the child and mother. The mother would again not permit the worker to attend at the home due to the home being in disarray due to a pending move.

[131] The mother stated that the child has been grounded from using the Nintendo DS and proceeded to play with it anyways. The mother threw the Nintendo in frustration, N. went to catch it and it hit him. The mother admitted to being frustrated with the child and said she was working with the school social worker. The risk of physical harm was not verified as the mother did not intend to harm the child and it was an isolated event. The mother also admitted that on another occasion, the mother was upset and frustrated and woke up N. as the mother noticed that N. had carved something into the mother’s wooden trunk. N. could not explain his behaviour.

[132] The mother confirmed that the child was making his own lunches and it was the mother’s view that N. was old enough to do so but that the mother supervised. There was no explanation as to the school’s concerns about the quality of those lunches. Mr. Reid did not consider this to be a child protection issue. But as pointed out by the school principal a child with attention deficit issues should not be eating snack foods high in sugar content.

[133] The mother acknowledged the nature of the child’s behaviour at school but said it was not as intense at home. The mother told Mr. Reid that the father communicated to her that the child had tried to harm himself by hitting his head against a wall. The mother discussed this with the child who said it was not serious. The mother said she would pay close attention and monitor the situation. Mr. Reid never followed up with the father regarding this incident.

[134] According to the case note of May 7, 2015 Mr. Reid’s interview with the child was within a short distance of the mother and the worker had difficulty maintaining the child’s attention and focus. The child confirmed that the mother had not thrown the Nintendo at him. The child confirmed that he tried to harm himself but it was not serious.

[135] With respect to services, the mother reported that the mother and child were working closely with the school social worker. Mr. Reid stated that the mother is resourceful and will seek supports and will seek out services in areas where the mother deems it necessary. The mother was opposed to attending at Aisling as the mother had a bad experience when the mother was young.

[136] Mr. Reid’s case note states that the he spoke to the school social worker and the principal and they reported that the mother was working co-operatively with the school, the mother was managing the child’s behaviour and the mother enjoyed a close relationship with Ms Noel and there were no concerns. Ms Noel disagreed that she told this to Mr. Reid. Rather Ms Noel reported that she did not tell Mr. Reid she enjoys a close relationship with the mother but only that they frequently communicate, that the mother does not manage the child’s behaviour but uses strategies that are not successful and she is aware that the mother yells at staff.

[137] When this note was shown to Ms Noel she denied that she ever told Mr. Reid that she had no concerns about the mother’s parenting or treatment of the child. What she did say was that she did not feel N. was in physical danger at home, that she did not comment about parenting and that her main concern was N.’s behaviour challenges that had been a concern since senior kindergarten. Ms Noel also testified that she did not have a close relationship with the mother and she was not working co-operatively the mother. The referral to the social worker was just standard procedure. I found Ms Noel to be a credible witness who recalled her discussion with Mr. Reid quite clearly. On the other hand I found Mr. Reid to be less clear and his notes not to be reliable. Further, it is clear from the evidence that the mother was not seeking out or utilizing services.

[138] The mother told Mr. Reid that she was supporting the child’s gender neutrality and asked that he not advise the father about N. or this investigation. Mr. Reid did not contact the father.

[139] In response to a question from the court, Mr. Reid responded that although the concerns did not qualify as child protection issues, there were concerns but he believed they were being managed.

Allegations of domestic violence

[140] The mother made allegations that the father assaulted her in the past and that as a result the mother is refusing to attend any joint meetings with the father or as the mother stated with “my abuser”. It is the mother’s position that the school and other professionals should arrange separate meetings or the mother will advise the father of the discussion and outcome of any meetings. The father denies all allegations of abuse. It is his position that it is the mother who historically and currently is aggressive and hostile and has altercations with various individuals.

[141] The mother made no reports to the police, children's aid society or doctors about any allegations of domestic violence prior to the commencement of the father’s Motion to Change.

[142] The father always attended at the mother’s home to pick up and drop off the child for access. There were no reports of any issues or altercations during these times.

[143] In the initial court proceedings, the only reference to any issues regarding domestic violence is contained in the mother’s Answer dated October 2007. The mother stated that the parties separated in December 2005 when the father “attempted to physically assault me”. The parties then reconciled in February 2006 and continued to reside together until July 2007. There is no other mention of any verbal or physical violence. The parties voluntarily attended mediation together and in response to a question from the court, the mother confirmed that the mother and father sat in the same room for the mediation.

[144] In the mother’s 35.1 affidavit sworn February 9, 2017 there is no mention of any abuse. However, in the mother’s updated 35.1 affidavit sworn February 18, 2017 the mother added that while the parties resided together the father was physically and emotionally abusive on a regular basis. No specifics were provided.

[145] Tracy Griffiths the clinical investigator testified that the mother did mention some specific incidents of physical violence to her but Ms Griffith was unclear as to why she made no notes with respect to any such disclosures. Her only explanation was that there were no supporting police reports which does not explain her lack of recording.

[146] The mother admitted in cross-examination that until about March of 2015, the parties had attended school events, meetings and appointments together. However, the mother testified that it was uncomfortable doing so.

[147] However the mother also told Peter Reid, the children's aid society worker in May 2015 that the relationship with the father had been improving and they were now able to communicate amicably. The mother did not dispute making this statement.

[148] The only person to corroborate the mother’s allegations of physical and verbal abuse by the father was the mother’s fiancé, T.W.. Mr. T.W. testified that the mother frequently spoke about the abusive relationship with the father. However, in cross-examination he agreed that he had never seen the father being abusive to the mother. Further, he testified that it was his understanding that the mother had been forced to attend mediation with the father when the initial court order was made. He was not aware that the order was on consent, that there was no mention of abuse in initial court documents or that the mother and the father subsequently attended meetings together.

[149] There are no police occurrences reports involving the father. But there are several dated occurrence reports with respect to the mother regarding an altercation between the mother and a neighbour and another incident about the mother sending harassing telephone calls to a former employer.

[150] I find that there is no credible evidence that the father was ever physically or verbally abusive to the mother.

Report of the Office of the Children's Lawyer

[151] I find that the report of the Office of the Children's Lawyer prepared by Tracy Griffiths was unfortunately of little use to the court or the parties. Although there is some useful information from the collaterals, all of whom also testified in this trial, most of that information was not part of the formulation that led to the recommendations.

[152] The report itself is 4 pages long with 1 ½ pages devoted to observations of the child in the home of the father and the mother. The “Discussion” portion of the report is exactly 23 lines long. In that section of the report, Ms Griffiths states that:

Not enough is known about N.’s emotional and gender fluid issues. N. has been referred to Dr. Joey Bonifacio…considered an expert in the area of gender identity. N.’s ADD and ODD, and subsequent behavioral placement are identified, however, N. has not had the opportunity to engage with community based supports…

Mx. E. may be sacrificing her own emotional well-being to focus on N. In the community, Mx. E. presents at times as aggressive and irrational. This behaviour on Mx. E. part is supported by Ms Noel and Ms Horwitz, and several historical police reports. Mx. E. is encouraged to meet with their own General Practitioner to address their stress level.

Mr. K. appears to have become more engaged with N. when he moved back to Toronto. Prior to that, he appeared content with the custody and access arrangements.

Both parents need to demonstrate that they can follow through on their stated commitment to N.’s best interests. Neither parent may be satisfied with the recommendations made by expert professionals, however, the professionals (Doctors, CMH therapists) are neutral and child focused.

[153] Ms Griffiths then recommends a continuation of shared parenting and no change to the current parenting schedule. She makes several recommendations that the parents co-operate with the professionals and the school and follow recommendations made by the school, experts regarding gender identity and therapeutic community supports and that the professionals involve both parents equally in the child’s appointments and subsequent recommendations.

[154] Ms Griffiths made these recommendations despite the collateral information obtained that for years the mother had never co-operated with any suggestions for services. Further, there is no explanation about what recommendations were made that the parents were unhappy with and in particular with respect to the father, as it was known that the mother had not followed recommendations but there was no evidence that the father had not done so. Further, as there was a joint custody order in place that required joint decision making the father could not have arranged for services without the mother’s consent. Also, the father had been kept in the dark from March to November 2015 as to the child’s escalating behavioral issues.

[155] The father filed a dispute to the report. An addendum was then prepared by Ms Griffiths. In the addendum, Ms Griffiths added additional information and made further recommendations.

[156] In the addendum, there is further information about the parties’ communication issues. Ms Griffiths confirms that after the separation and until about a year ago, the parties were able to maintain sufficient communication to support a joint custody order. However, when N. began to identify as gender fluid the mother took on the role of sole decision maker without advising the father as the mother experienced the father as an “abusive transphobe” who is not open to N. being gender fluid. The mother recounted several incidents to Ms Griffiths where the father was physically and verbally abusive and stated no reports were made to the police for fear of retaliation. The mother reported that “they have a constant battle with the health care and education systems, and society as a whole”. The mother perceives herself as the child’s biggest ally and advocate and admits that her personal well-being is being neglected.

[157] Ms Griffiths concludes that:

The parties are unable to communicate without the discussion dissolving into a heated argument. N. has spoken about the effect this communication has on their physical and emotional well-being. However, the parents need to work together in some form that will enable N. to receive the support and therapy that has been recommended for years. There is no medication to support ODD, but behavioural therapy is available in the community. N. has not had the opportunity to engage in any therapy.

[158] Ms Griffiths then reports that the mother’s reason for not engaging in the recommended community supports is that the mother cannot get N. there due to transportation and time issues. The mother then admitted that the mother had experienced professionals to be “liars” who violated the mother’s confidentiality when the mother had been a client. The father told Ms Griffiths that he had a vehicle and there was no impediment to him taking N. to any appointment as long as he was told about them.

[159] With respect to managing the child’s behaviour, Ms Griffith made the following observations:

Mx. E. in their narrative appears to minimize N.’s behavioural issues, or excuse them by saying it’s a result of misgendering. The focus, for Mx. E, appears to have shifted to the gender identity issue rather than the behaviour problems and aggressive, sometimes dangerous incidents that result…..

At this time, there is not enough evidence to point to whether it is as a result of misgendering or behaviour consistent with ODD. More likely, it is the result of no therapeutic intervention for N. N. needs desperately to be seen by a professional specializing in their specific issues, and it is incumbent on the parents to make this happen. Mx. E. needs to put their own history to the side and act in the best interests of their child.

[160] Ms Griffiths then makes further recommendations that the parents have joint custody, the mother provide the father with updated and current contact information and appointment dates with all service providers working with the child through Our Family Wizard, that both parents attend parent counselling for support with issues of co-parenting and managing a child with special needs. She further recommends that the father attend with N. at a gender non-conforming support group.

[161] The father filed a further dispute to this Addendum Report that denied any attempt by him to use the child to pass message as had been reported. The father further pointed out important information that continued to be omitted from both the original report and the addendum. But most importantly the father sought to clarify again how the recommendations were feasible or practical when the mother continued to be adamantly opposed to attending with the father for any programs for the child and when the mother was enabling or empowering N. to be dismissive of the behavioural issues.

[162] In response, the father received a letter dated August 12, 2016 signed by Ms Griffiths’ acting supervisor stating that the father’s two disputes had been thoroughly reviewed and that “we have determined that the report contained no factual errors nor has any additional information been put forward that cause the Office of the Children's Lawyer to change the recommendations of the contents of the report”. It was not clear from Ms Griffiths’ evidence if she had actually seen the father’s dispute to the addendum. Ms Griffiths testified that she had never seen the August 12, 2016 letter despite the fact that the letter was copied to her. Ms Griffiths admitted that the acting supervisor had no knowledge of her investigation. It then remains unclear who made the decision not to further clarify the report.

[163] In cross-examination by father’s counsel Ms Griffiths stated that both parents were impeding therapy for the child and neither parent followed through with supports for the child. She did not provide any evidence on which to base this opinion with respect to the father. She was unaware of the offers made by the father to take the child to therapy or other appointments and seemed to ignore the collateral information she obtained that indicated that the father was always receptive to suggestions and worked well with the school and other professionals.

[164] When cross-examined by father’s counsel, Ms Griffiths stated that she was not aware that the mother would not attend joint meetings with the father or work co-operatively with the father. However, according to Ms Griffiths’ notes of discussions with the collaterals, she spoke to the school principal, Ms Noel who said that she was blindsided when the mother refused to attend a meeting if the father was present since historically they had always attended meetings together. When Ms Noel testified she confirmed she told Ms Griffiths this information and it was true. The only explanation offered by Ms Griffiths was that she understood that collateral information was part of her report and she saw no need to analyse or incorporate comments into her report. This of course does not explain how she could have omitted this consideration when recommending joint custody.

[165] Ms Griffiths agreed that she did not include in her report or in the addendum the further following information and concerns expressed by the collaterals:

a) The mother had pressured the child to wear dresses to school but the child said no;

b) Dr. Saunderson and Katharine Noel both found the father easier to deal with than the mother;

c) There was a concern that the child was missing a great deal of school;

d) There were significant concerns expressed about the mother’s aggression with the school bus drivers; and

e) There was no investigation or discussion with respect to incidents of the child’s self-harm, lack of adequate lunches, self-administering of medication, the mother’s lack of consistency in giving the child medication and incidents of possible physical abuse by the mother.

[166] When questioned as to why a great of information had been omitted from her report, Ms Griffiths testified that there was a lot of information from the school, that she did not read all of the children's aid society notes or read the school behaviour incident reports or the text and emails messages between the parents. She testified that she wanted to focus on the need for a psychiatric assessment of N. that was desperately needed. When it was pointed out that this was not recommended in her report, she replied that it was her intent. It was her opinion tht any disruption in the status quo would not be appropriate until N. was assessed regarding ADHD and ODD and gender identity. Until there was an assessment she felt she could not make a recommendation other than a continuation of the status quo but again nowhere this is stated in the report.

[167] Ms Griffiths testified that the child needed stability, the parents to co-operate and N. needed a proper assessment.

[168] During Ms Griffiths’ examination, I found her to be evasive and defensive. In many instances she tried to justify why information was omitted and I found that she had a great deal of difficulty justifying the rationale for her conclusions.

Child’s views and preferences

[169] The only evidence with respect to the child’s views and preferences that were admitted for the truth are contained in the report of Ms Griffiths. Ms Griffiths had 2 interviews with N. In the first interview N. would not make eye contact with her, would not focus and would not engage in any discussion. In the second interview, N. was able to engage with Ms Griffiths and expressed that N. liked the schedule as it is.

[170] With respect to gender identity, N, stated that the mother brought it up, N. thought about it and agreed. N. prefers that adults use gender neutral pronouns, is fine with peers using male pronouns but prefers gender neutral and was adamant that does not like being referred to with female pronouns. N. said it did not matter if the father used male pronouns.

[171] N. told Ms Griffiths that N. was aware that the parents do not get along, are not friends and N. wants them to be. Although N. has heard the parents fight and gets scared this has not happened in a long time. N. also said that the mother gets upset, then gets angry at N. but the mother doesn’t mean it.

ANALYSIS

[172] The sole issue for the court in every custody and access case is the child’s best interests. Section 24 (2) of the Children's Law Reform Act provides guidance for the court in making determinations with respect to where a child should reside and who should be making decisions about that child.

[173] The Office of the Children's Lawyer report recommended joint custody on the basis that it was in the child’s best interests if the parents could co-operate and ensure that the child received supports from the community through a mental health agency, follow the recommendations by the school and other professionals and attend counselling for support with issues of co-parenting and managing a child with special needs.

[174] However, the question that Ms Griffiths should have asked is whether or not despite the fact that the parties were not communicating or co-operating and despite their differences, would the parents be able to put those differences aside for the sake of the child and co-operate and communicate.

[175] It is abundantly clear that this is not an appropriate case for joint custody. Based on the mother’s actions since this litigation commenced, there is no basis for hoping that there will be effective communication or co-operation or mutual respect between the parties. I focus on the mother’s actions as despite the father’s concerns about the mother’s ability to parent the child, the father has always been agreeable to following the recommendations of professionals, seeking out treatment for the child and he was prepared to attend joint meetings and appointments with the mother. If not for the mother’s unsubstantiated allegations about the father it may have been possible to fashion some type of shared parenting plan as envisioned in the parties’ initial Minutes of Settlement.

[176] Sections 24 (3) and (4) of the Children's Law Reform Act also directs the court to consider a person’s past conduct with respect to any violence or abuse against a spouse, the parent of the child before the court or any child or if the court is satisfied that past conduct is otherwise relevant to a person’s ability to act as a parent. A person’s past conduct is relevant to their ability to act as a parent.

Past conduct

[177] I find that there is no credible evidence that the father was physically or verbally abusive to the mother either during or after their separation. I find that the mother has attempted to use such allegations to justify the mother’s refusal to co-parent with the father since he began this litigation and this has been to the detriment of the child.

[178] I find that there are concerns about the mother’s conduct that are impacting on her ability to act as a parent. The mother’s verbally aggressive behaviour towards various teachers, school staff, principal and school bus drivers are examples of the mother providing a poor role model for this child. N. has exhibited serious verbal aggression and physical aggressive behaviours and instead of showing the child non-aggressive strategies for problem solving, the mother is reacting to situations in the same way the child does thereby giving N. permission to continue to be aggressive and hostile to peers and teachers.

Child’s views and preferences

[179] Although N. expressed to Ms Griffiths that the current schedule should continue, this was based on only one interview with the child. Further, on other occasions the child has been quite protective of the mother when interviewed by children's aid society workers. The strength and independence of these views should have been more thoroughly explored by Ms. Griffiths. But as N. was almost 11 years old when interviewed, N.’s views and preferences are important but not determinative.

Plans of care

[180] The mother and her fiancé propose that N. will continue to reside with them, live in the same residence, be enrolled in a school in the mother’s area, attend medical appointments and counselling as recommended by treating professionals. There would be no physical discipline, proper supervision and compliance with medications for the child. The mother states that there are strong community supports and people to assist. The mother is in receipt of Ontario Works benefits, child tax benefits and child support. The mother did not provide any information about any plans to return to school or to find employment.

[181] As of September 2016, the child is attending B[….] School that only has Grades 6 to 8. This school was the natural feeder school from P[….] where N. previously attended for Grades 4 and 5. The mother did not agree with this placement as the school was further from the mother’s home but the father would not agree to another school and eventually the mother agreed. This school was recommended by Ms Noel, the principal of P[….] Elementary School. Ms Horwitz, the school social worker was able to continue meeting with N. at this new school. However, based on the mother’s plan of care, the proposal would be move N. to a new school closer to the mother’s home.

[182] The plan of the father and his wife is for the child to reside with them, continue in his current school and continue to be enrolled in extracurricular activities. They will arrange for appropriate counselling and ensure the child attends. The father is prepared to follow the recommendations of any professionals and ensure that the child’s medications are administered consistently. The father is currently laid off and his wife is employed full-time. If N. was placed in their care, the father would arrange to remain home as long as necessary to meet N.’s needs.

[183] Except for the school placement, the plans are essentially the same. With respect to co-operating, the father has no issue with attending joint meetings and appointments with the mother whereas, the mother is not prepared to do so. The mother proposes to keep the father informed about the contents and outcomes of any meetings or appointments or he could arrange separate meetings and appointments.

Gender Identity issues

[184] The issue of gender identity is a neutral consideration. The fact of the mother’s gender does not impact on the ability of the mother to act as a custodial parent. The fact that the child has identified as gender neutral is also not factor. There was a great deal of evidence with respect to whether or not the mother influenced the child in coming to the decision to be gender neutral. However, the child’s decision to identify as gender neutral has been made, even if influenced by the mother, what is relevant is which parent is best able to support the child. I am guided by the evidence of Dr. Bonifacio who testified that the parents should just wait and see and let the child function. I find that it is the father who is the parent most likely to just let N. be and explore his gender issues whereas the mother has difficulty letting N. be his own person.

[185] The mother was very adamant that the father is “transphobic” but when pressed in cross-examination for the basis of that opinion, the mother replied, “that is my opinion”. Contrary to that opinion, I find that there is no evidence to support that the father or his wife are transphobic. Ms K testified that they have friends who are transgender. Both the father and Ms K. deposed and testified that they were supportive of N. in whatever decision the child wished with respect to gender. The father is attending the Gender Identity Group with N. and both the father and step-mother met and discussed the issue of gender with Dr. Bonifacio.

[186] N. has indicated a preference to being called with neutral pronouns by adults and is accepting of peers using male pronouns although N.’s preference would be that peers also use neutral pronouns. There were several incidents when a teacher or bus driver used the wrong pronoun but based on the evidence of Ms Noel and Ms Horwitz, the child was not upset but it was the mother who became very upset, hostile and verbally abusive.

[187] There were also incidents when instead of focusing on N.’s escalating behaviour the mother blamed it on “misgendering” and called it a hate crime. But both Ms Noel and Ms Horwitz testified that the incidents had nothing to do with misgendering.

[188] There were two important incidents when this happened. On May 21, 2015, Ms Noel suspended N. from school for one day. Ms Noel was called into the classroom as N. was throwing objects, kicking the classroom door and could not be left alone with fewer than 2 adults. When Ms Noel attempted to intervene, N. hit a student in the face (unprovoked) and kicked her repeatedly. When N. was being removed from the classroom, he bit his child youth worker who momentarily let go of him at which time N. grabbed a sledge hammer, that was used for the school’s community gardening and happened to be on the floor. When Ms Noel called the mother to explain the events that were beyond exceptionality-related mitigators, the mother became engaged, ordered her to use the proper pronouns, was tired of being called by the school and hung up. Later the mother called back stating N. would be sent to school the next day and the mother was filing a human right complaint because N. was being mistreated by issuing a suspension. The mother accused the school of violating N.’s human rights by not using the gender neutral pronoun resulting in N’s behaviour. There was no indication that N.’s anger was in any way related to a gender issue.

[189] On November 17, 2016, N. was involved in a physical altercation at school. The mother alleged that two children in the class assaulted N. and used transphobic language when teachers left the room. The mother also alleged that the school was slow to react to the bullying of N. The mother took the child to the hospital and was given a list of concussion symptoms to look out for. The mother testified that as a result of the injuries N. had to stay home due to a head injury. The school society worker asked the mother to obtain a hospital report as the mother was requesting the child be moved to another school. No report was ever produced by the mother.

[190] The principal further investigated as the mother was dissatisfied with the first investigation. Ms Noel concluded that one student attacked N. and the other student egged him on but did not have a physical role. This was not a “hate crime” and although the student did call N. a “F…B..” this was unfortunately language used regularly in the class by many of the students including N. It was as a result of this incident that the mother refused to return the child to school. The school arranged a case conference on November 30th, to discuss N.’s placement and needs.

[191] It was the opinion of both Ms Horwitz and Ms Noel that the mother was blaming and excusing N.’s behaviour issues on misgendering and not dealing with his actual behaviour issues.

[192] Even in N.’s new school, the mother is again raising the concerns about misgendering. The mother testified that although there are improvement, there is a lot of misgendering going on and N. is already having issues. This is despite the evidence of N.’s teacher that N. is calm regarding the gender issues and there is no bullying going on.

Love, affection and emotional ties

[193] There is no dispute that both parents deeply love N. and that N. loves the parents. There is a close relationship between the mother and child and the father and the child.

[194] Ms K., has assumed the role of step-mother for over four years. She has been involved with N.’s school by going to the school to have lunch with N. when N. was having problems during lunchtime. She has gone on schools trips and is the parent representative on the school council. She has accompanied the father in attending school and doctor’s appointments. N. expressed having a positive relationship with her.

[195] The mother’s fiancé although not previously involved in the child’s school or medical appointments has, since the Office of the Children's Lawyer report, now accompanied the mother on various appointments. N. expressed having a positive relationship with him.

Parenting abilities of each parent

[196] The mother has been the primary custodial parent and it is the mother’s position as such all of the child’s needs have been met and will continue to be met if the child remains in her primary care.

[197] N. has long standing serious behavioural issues and is now in the process of understanding issues with respect to gender identity. N. requires a parent that can closely monitor those needs, work co-operatively with professionals and pursue treatment that is recommended.

[198] I find that there are significant concerns about the mother’s past and future ability to meet the child’s needs for the following reasons:

a) N.’s behavioural issues have been a concern since senior kindergarten and although the parents both agreed to his placement in a special education class, the mother did not comply with the ongoing recommendations for community supports through Aisling and other resources;

b) For years the mother made various excuses for not taking the child to any community resources such as a lack of transportation or not having the time; however, the mother also revealed that the mother does not trust professionals due to the mother’s own experience with mental health professionals;

c) Despite the court order on August 17, 2016 that the mother enrol the child in services through Aisling, the mother significantly delayed in doing so and made it clear that Aisling had nothing to offer. It was not until February 2017 that any counselling began but that counselling is only directed to bullying behaviour and does not include the father;

d) The mother delayed in agreeing to a psychological assessment of the child and had disagreements with 2 psychologists who then refused to be involved and finally only agreeing to a psychologist of the mother’s choice;

e) Despite the mother’s concerns about the school not supporting the child’s gender issues, the mother refused on several occasions to meet with a member of the Gender Based Violence Prevention Team including even refusing an offer to meet in the mother’s home;

f) Despite the school recommending on several occasions that the mother attend the Gender Identify Group with the child, the mother has not done so;

g) The mother will only agree to attend counselling if the mother agrees that it is with respect to an issue that the mother deems relevant, such as alleged gender based bullying; however, none of the teachers, the principal or the school social worker believe that bullying is a significant issue;

h) Due to the mother’s refusal to attend any meetings jointly with the father, the mother did not attend the very important school conference held on November 30, 2016. Although the mother made it clear that the mother would not sit in the same room with “my abuser,” in testimony the mother tried to justify the non-attendance by stating that the principal said the mother did not need to attend. This is contrary to the evidence of both the principal and school social worker who tried to encourage the mother to at least attend on the telephone;

i) The mother for unknown reasons also did not attend school meetings on May 29 and June 9, 2016; the mother has been unavailable to attend at the school when requested although the mother has generally been available by telephone;

j) The mother justified not attending N.’s Grade 5 graduation because the mother did not want to be in the same room as the father without any consideration of the impact on the child of a parent not attending such an important event in a child’s life;

k) In the mother’s care, the child is late or has missed a significant amount of school; the mother keeps the child home from school for “brain rest” days, kept the child out of school from November 2015 to January 2016 because the mother determined that the child was being bullied as a result of gender even though there was no proof of this; and now the child is missing an entire day of school when the mother takes the child to a medical or counselling session even though the appointment is only an hour;

l) The mother has refused to permit the father to take the child to any therapy or appointments; initially the mother stated that this was because the father wanted extra time but then the mother said that the mother preferred to take the child;

m) The mother neglected to ensure the child was seen by his doctor for two years stating that the mother was overwhelmed with caring for her dying parents; this is significant as the child was prescribed medications for ADHD that could not be renewed for more than 6 months without an appointment with the child’s paediatrician;

n) The mother has been inconsistent in ensuring that the child receive his medications; the school has had to call the mother to bring the medications to school which the mother refused to do because of transportation issues or the school advised the mother to keep the child home if the mother did not give the child the medication as the child’s behaviour was uncontrollable; although the mother attributed failure to give the child the medication due to “human error” and various other excuses, there are still school reports that recently this has happened again; although the school reports only document a few times that the mother admitted that the medications were not given to the child, it remains unclear if the child’s unruly behaviour on many other days could be related to the lack of medications that regulate N.’s behaviour;

o) Despite the mother acknowledging that the child was deeply affected by the loss of his maternal grandparents especially his maternal grandfather, the mother never arranged for any type of grief counselling for the child;

p) The mother has a history of verbal altercations with teachers and other school personnel at every school the child has attended and various school bus drivers; although at present the mother has a good relationship with the child’s current teacher I have considered that this is still a fairly new relationship and the matter is before the court at which time most litigants are on their best behaviours;

q) The mother refuses to co-operate with the father on issues that are non-controversial; for example, the mother refused to permit the father to obtain a social insurance number for the child so he could start an RESP; the mother refused to permit the father to obtain a passport for the child for future travel;

r) The mother is a poor role model for the child; the mother has falsely accused the school personnel of hate crimes and shown little or no respect for the school staff yelling at them in the child’s presence; the school behaviour logs show that the child is mimicking the mother’s inappropriate behaviour; For example, recently after losing a game of tag with peers, N. told the children that he was reporting them for “hate crimes”;

s) Although the children's aid society investigations did not verify child protection concerns, there were instances of the mother reacting in anger towards the child because she was stressed; other professionals including the school social worker, the principal and the clinical investigator commented on the mother’s stress level and that the mother should obtain some assistance but there is no evidence that the mother did so;

t) Despite the many efforts made by the TDSB and N.’s teachers to be open and inclusive and arrange for gender education for the school staff and N.’s peers, the mother always reacts negatively and without any understanding that changing to the use of a neutral pronoun takes some time and there may be occasional errors; and

u) The mother has consistently blamed others or made excuses for her own failings without ever taking any responsibility.

[199] I have some concerns about the father not been more pro-active in seeking services for N. The father relied on the mother as the primary residential parent to follow up with services and to keep him advised regarding any concerns with the child. As joint custodial parent, if the mother was not agreeing to services, he had the ability to initiate court proceedings to require the mother to comply or seek an order that he be the sole decision-maker which, of course, he eventually did by initiating this litigation.

[200] The father acknowledged that he should have been more involved with the school and should have followed up with the doctor to ensure that N. was being seen regularly. As soon as the father became aware that the child had not gone to the doctor or became aware of N.’s escalating behaviour issues at school he immediately become proactive with trying to work with the school and arrange for professional assistance and as indicated he initiated this litigation.

[201] I find that the father is best able to meet N.’s special needs for the following reasons:

a) The father has been able to work co-operatively with the school and the child’s doctor; he is perceived by those supports as being receptive, collaborative and easier to deal with than the mother;

b) The father has made himself available and attended every school meeting or medical appointment that he has been advised about;

c) After the court order of August 17, 2016, the father immediately followed up with Aisling and attended for an intake appointment and then advised the mother of the services available; the father was prepared to attend with N. for counselling at Aisling but the mother withdrew consent;

d) After the court order of August 17, 2016, the father attended at Families in Transition but as the program offered required both parents to attend (and the mother refused to attend with him) he could not follow up with that service;

e) The father has been attending with N. at the Gender Identity Group and will be attending another session;

f) The father is supportive of any decision made by N. with respect to gender and will continue to attend with N. for appointments as a