ONTARIO COURT OF JUSTICE
BETWEEN:
JENNIFER BORSOI
Applicant
— AND —
KENNETH MOGG
Respondent
Before: Justice S.V. Khemani
Heard on: August 29, 30 and 31, 2016
Reasons for Judgment released on: January 31, 2017
The applicant Jennifer Borsoi ......................................................... on her own behalf
The respondent Kenneth Mogg ......................................................... on his own behalf
JUSTICE S. V. KHEMANI:
1. Overview and Litigation History
1The applicant in these proceedings is Jennifer Borsoi ("Ms. Borsoi"). The respondent in these proceedings is Kenneth Mogg ("Mr. Mogg"). The parties met in 2007 and started living together in April 2008. Their son, Jacob Mogg ("Jacob") was born on April 25, 2008.
2Ms. Borsoi and Mr. Mogg separated in 2013. Prior to separation, the family was residing in Cambridge, Ontario. Jacob was approximately 5 years old when his parents separated. At the time of trial Jacob was 8 years old.
3This is a decision on an application for custody and child support regarding Jacob. The parties have asked the Court to decide which of their parenting plans is in Jacob's best interests.
4Ms. Borsoi resides in Richmond Hill, Ontario with her common law partner/fiancé Mr. Kevin Davis ("Mr. Davis"). Ms. Borsoi and Mr. Davis have been involved since July 2014. They have been residing together with Jacob as a family since February 2015. Ms. Borsoi has a grade 12 education. She is currently a stay at home parent. She was last employed outside of the home in customer service/retail in 2000. Prior to meeting Mr. Davis, Ms. Borsoi's source of income was Ontario Works. Jacob, therefore, is primarily resident with Ms. Borsoi. In June 2016, Jacob completed grade 2 at Lake Wilcox Public School in Richmond Hill, Ontario.
5Kenneth Mogg resides in Cambridge, Ontario with his wife, Christy Smith and her 3 children, Alexi Smith, Jacob Smith and Lucas Smith. Mr. Mogg has known Ms. Smith since 2012. Their relationship began 4 months after he and Ms. Borsoi separated. Mr. Mogg has a grade 12 education and has been employed as a factory worker with Cambridge Brass since 2000.
6Mr. Mogg has a 10 year old son, Nolan, from a 5 year marital relationship that ended in 2005. Nolan spends time with Mr. Mogg in Cambridge on alternate weekends. Jacob is present for these visits.
7At the present time, the parties have joint custody of Jacob. Jacob has access with Mr. Mogg on alternate weekends from Friday at 6 PM to Sunday at 6.30 PM. This is pursuant to the temporary without prejudice Order made by the Honourable Justice P.W. Dunn on June 17, 2014 as varied by my Order on August 27, 2015.
8The litigation has been ongoing for over two years. The parties experienced a very high level of conflict during this time. This is evidenced by the terms and conditions of the temporary Orders. Clearly, this has been a difficult time for Jacob, his parents, and other extended family members.
9Both parents have attempted to show the Court that they love their son and that his/her parenting plan best meets Jacob's needs given Jacob's age and stage of development.
10The evidence of both parents show that Jacob is a very intelligent, friendly and loving child who is loved dearly. Given the level of conflict, this evidence also satisfies me that Jacob has been impacted by the difficulties the parents have had since their separation.
2. Orders Requested by the Parents
11In her custody application dated March 11, 2014, Ms. Borsoi seeks an Order for sole custody of Jacob.
12In his amended Answer dated March 21, 2016, Mr. Mogg seeks an Order for sole custody and primary residence of Jacob. In the alternative, Mr. Mogg seeks Orders of joint custody and access.
13The parties settled the issue of child support at the start of the trial. Ms. Borsoi and Mr. Mogg agreed that Mr. Mogg's current salary is $60,871.00. They further agreed that if the Court is to make a final child support Order in favour of Ms. Borsoi, then commencing September 1, 2016 and on the first of each month thereafter, Mr. Mogg shall pay $553.00 per month. This Order is the Child Support Guideline amount or the support of one child based on the agreed upon annual income.
14Mr. Mogg has not made a claim for child support against Ms. Borsoi.
3. The Evidence at Trial
The Applicant's Evidence
15Both parties represented themselves at trial. For this reason, the Court allows leeway on some of the evidentiary issues and, in appropriate instances, made efforts to assist the parties in the presentations of their respective cases.
16In her opening statement at trial, Ms. Borsoi outlined her understanding of the situation. She believed that the conflict with Mr. Mogg started when she commenced her application and asked for Mr. Mogg to pay child support. She told that Court that even when he was not paying child support she offered Mr. Mogg increased time with Jacob; however, Mr. Mogg did not want the additional time. She believed that Mr. Mogg became angry with her when she moved back to Mississauga with Jacob after she and Mr. Mogg separated. Ms. Borsoi described Mr. Mogg as being very angry and abusive with her. She also described Mr. Mogg as drinking a lot and hitting her in front of Jacob.
17Ms. Borsoi believed that it was best for Jacob to remain living with her and Mr. Davis, in Richmond Hill. Ms. Borsoi supported flexible and liberal access between Jacob and Mr. Mogg; this included every other weekend; plus additional time at holidays, birthdays and other special occasions.
Ms. Jennifer Borsoi's Evidence
18Ms. Borsoi testified that she is the mother of 4 children. She has 3 sons and 1 daughter. Her children are aged 22, 20, 15 and 8. Jacob is the youngest.
19Ms. Borsoi's eldest sons live in Argentina. One of her sons lives on his own and the other son lives with his paternal grandmother. Ms. Borsoi has contact with her sons through internet and phone calls. Jacob talks to his elder siblings as well.
20Ms. Borsoi's daughter, Esmerelda is 15 years old. She lives with her father in Mississauga. She is a busy teenager with gymnastics and high school. Ms. Borsoi described Esmerelda's father as a great father. They share joint custody of Esmerelda. Esmerelda lived with Ms. Borsoi and Mr. Mogg until Mr. Mogg was abusive towards Ms. Borsoi and.
21Ms. Borsoi described her relationship with Mr. Mogg. She described Mr. Mogg as being abusive to her. They had arguments about him going out partying, drinking, smoking. To her, it seemed that he preferred being with his friends then home with her.
22Ms. Borsoi testified that she was upset because she moved to Cambridge for Mr. Mogg. She moved because she thought he would change. Ms. Borsoi loved Mr. Mogg; they had Jacob and she wanted to raise their son together.
23Ms. Borsoi described the home environment when Esmerelda lived with herself and Mr. Mogg. Esmerelda heard Mr. Mogg call her bad names. He would get angry and throw things when Ms. Borsoi would challenge him. The daughter became affected by this and started sticking up for her mother. Ms. Borsoi told the Court that Mr. Mogg pushed Esmerelda around and called her names.
24Ms. Borsoi told the Court that Jacob did not want to go to his father's wedding. Ms. Borsoi believes that Mr. Mogg forced Jacob to go to the wedding.
25Mr. Mogg asked Ms. Borsoi about Esmerelda's decision to go and live with her father. Ms. Borsoi confirmed that Esmerelda chose to go and live with her father when she was living with the applicant in Mississauga. Mr. Mogg was not living with them at the time.
26Mr. Mogg asked Ms. Borsoi to provide details about her relationship with Mr. Davis. Ms. Borsoi described her relationship with Mr. Davis as stable. She told the Court they had not had been separated since they started their relationship.
27Ms. Borsoi told the Court that she has moved 5 times since 2013. She moved twice to Cambridge; Cambridge to Mississauga; Mississauga to Richmond Hill; Richmond Hill to Mississauga. She has been in Mississauga since July 2016.
28Ms. Borsoi told the Court that Jacob has attended 4 schools to date: 1. Preston Public School, Cambridge, Ontario; 2. Shelter Bay Public School, Mississauga, Ontario; 3. Lake Wilcox, Richmond Hill, Ontario; and 4. Whitehorn Public School, Mississauga, Ontario.
29Ms. Borsoi testified that that they have moved because they have had to move. She did not believe these moves have been an issue for Jacob. She believes that it is best for the family to live in Mississauga with the support of extended family.
30Ms. Borsoi described Jacob as a very open, outgoing and social child who makes friends easily.
31Mr. Borsoi was asked why she left her sons in Argentina. Ms. Borsoi said that she did not leave her children there. She had been in an abusive relationship with their father. She described him as being emotionally abusive, possessive and jealous. She tried to get help, however, the father kept the children from her; he took away her right to speak to the children. Ultimately, she left Argentina for these reasons.
32Mr. Mogg asked Ms. Borsoi if she had ever been reported as being suicidal. She responded she did not have any knowledge of this. Mr. Mogg asked her to review a note from the OCL Clinical Investigator, Ms. Tricia Ryan. In Ms. Ryan's report dated July 29, 2015, there is a note that Ms. Borsoi had been reported by her mother as being a missing suicidal adult. On reviewing the note, Ms. Borsoi advised the Court that she had been treated for depression. She had been traumatized by the abuse she had experienced with her former partner.
33Ms. Borsoi is currently a stay at home parent. She was last employed outside of the home in 2000 in customer service. When she met Mr. Davis her source of income was Ontario Works. At the time, she had also been attending school.
34Ms. Borsoi was asked about her relationship with Mrs. Smith, Mr. Mogg's wife. She described the relationship as being "not positive".
35Ms. Borsoi told the Court that she sleeps with Jacob until he falls asleep or if he has nightmares. She also told the Court that she helps Jacob shower and she currently assists him in wiping his bottom after toileting.
36Ms. Borsoi described herself as loving and nurturing Jacob. She denied babying Jacob. She denied infantilizing Jacob. Ms. Borsoi told the Court that Jacob is encouraged to be independent.
37Mr. Mogg asked Ms. Borsoi to review Ms. Ryan's report dated July 29, 2015 wherein there were concerns around Ms. Borsoi infantilizing Esmerelda. In February 2010 Esmerelda 's school called Family and Children's Services of Waterloo Region to report that Esmerelda was stressed while living at the home with Ms. Borsoi and Mr. Mogg. Esmerelda was asking to live with her father. There were concerns about Esmerelda's needs for independence. There were concerns about Ms. Borsoi's parenting choices with respect to Esmerelda.
38When Ms. Borsoi was asked whether she had complied with the Court's Order of June 17, 2014 in which she was ordered to obtain counselling for Jacob within a period of two months. Ms. Borsoi responded that she had been on a waiting list for several months. Jacob got counselling in Richmond Hall and then Children's Aid Society ("CAS") said to stop the counseling. Ms. Borsoi did not produce any documents to support her evidence. Currently, Jacob is not involved in any counseling.
39Ms. Borsoi was asked questions about access exchanges. She confirmed that there were arguments during access exchanges despite Court Orders.
40Mr. Mogg asked Ms. Borsoi to address Jacob's school absences. Ms. Borsoi did not dispute Jacob's attendance records. Her response to Jacob's absences from school included, kids get sick; and he has missed normal amounts of school for someone who had a concussion.
41Ms. Borsoi was asked about denying Jacob's access to his father. Ms. Borsoi confirmed that she did intervene on the weekend of Mr. Mogg's wedding. She did so because Jacob did not want to go to his father's wedding. She believed that Jacob wanted to visit his father after the wedding. Ms. Borsoi confirmed that Jacob's access on the weekend of Mr. Mogg's wedding had been set up at Court. She maintained that she did not deny access. Jacob did not want to go to his father's wedding and she did not force Jacob.
42Mr. Mogg asked Ms. Borsoi whether she attended for a psychiatric assessment as recommended by Ms. Ryan. Ms. Borsoi confirmed that nothing had been filed with the Court.
43Ms. Borsoi told the Court that Jacob is tired of the "Court stuff" going on. He knows that his parents are in Court. Ms. Borsoi told the Court that Jacob loves his father. He has told his mother that he wishes his daddy would "stop this" in reference to the litigation. She said that Jacob should see his father because he is his father. She has never tried to keep Jacob away from his father. When Jacob is not well he wants to be with his mother. Ms. Borsoi believes that this is understandable, because she is his mother. She would never try to take Jacob away from Mr. Mogg completely unless there was abuse going on.
44Ms. Borsoi said she attempted to resolve things outside of Court. She tried mediation. She believed that Mr. Mogg is motivated by spite and vengeance. Ms. Borsoi said she does not care about child support. She wants Jacob to be normal and happy without any issues surrounding him. She wants Jacob to have a normal relationship with his father and with his brother, Nolan.
45Ms. Borsoi submitted that she worries her son will become depressed or get caught between his parents. She tells Jacob to do what he feels like doing. She wants what is best for Jacob. Ms. Borsoi told that Court that all of the school Jacob has missed has been because of illnesses and a concussion.
46She believes that Jacob's emotions have been affected by the conflict between the parents since they separated in March 2013.
Mr. Kevin Davis's Evidence
47Mr. Davis gave evidence in support of Ms. Borsoi's case.
48Mr. Davis is employed full time as an industrial maintenance mechanic for a pharmaceutical company in Richmond Hill. He has been with this company for nearly 6 years.
49Mr. Davis has been in a relationship with Ms. Borsoi since July 2014. He met Jacob in August 2014. Mr. Davis believes that Ms. Borsoi waited to introduce him to Jacob as she wanted to ensure he was an appropriate person to introduce to her son. They moved in together as a family in February 2015.
50Mr. Davis told the Court that he is actively involved in parenting Jacob. Mr. Davis described concerns about Mr. Mogg not putting Jacob "first" and not spending enough "one on one" time with Jacob. Mr. Davis told the Court that he is unable to provide any personal or direct evidence in relation to Mr. Mogg being a positive role model for Jacob.
51Mr. Davis told that Court that Jacob has expressed a number of times that he loves his father and he loves spending time with his father, however, does not want to live with him. According to Mr. Davis, Jacob wants to continue living with his mother and Mr. Davis.
52Mr. Davis was asked about Jacob's most recent report card. Mr. Davis told the Court that he and Ms. Borsoi were ecstatic. Jacob had done very well in grade two. He had gotten a number of A's and B's. Mr. Davis believed that this boosted Jacob's self-esteem.
53With respect to Jacob's absences from school, Mr. Davis told the Court that he was concerned about Jacob's absences; however he believed that Jacob was adjusting well. He also indicated that he and Jacob's mother had a number of discussions with the school, and they had been told by Vice Principal Barton not to worry about Jacob's absences.
54Mr. Davis told the Court that Jacob had complained to his mother and to him about fights and the use of the "F" word while he was at the father's home. Jacob had also complained about watching inappropriate videos at his father's home. Jacob becomes scared after watching these videos. According to Mr. Davis, these are not things that happen when Jacob is with him and Ms. Borsoi.
55Mr. Davis does not drink or smoke and this created a healthier living environment for Jacob. As the only child in their home, Jacob gets the full attention of both Ms. Borsoi and Mr. Davis.
56Mr. Davis told the Court that Jacob shows affection to Mr. Davis. Mr. Davis has worked hard to build a relationship with Jacob, and that Jacob can come to Mr. Davis for support and love.
57According to Mr. Davis, Jacob had concerns about Christy Smith, Mr. Mogg's wife. Jacob has told Mr. Davis that Christy yells at him and swears at him. These comments were apparently unsolicited comments made by Jacob to Mr. Davis and his mother on the drive home after visits with Mr. Mogg.
58Under cross examination, Mr. Davis was asked about Jacob's missed access visits with his father. Mr. Davis responded that could not provide details of why those visits were missed.
59When asked about Jacob missing large amounts of school, Mr. Davis confirmed that he and Ms. Borsoi were not on vacation or travelling during those times of absence.
60When asked about complaints made by Jacob with respect to Mr. Mogg drinking a lot, Mr. Davis confirmed that these concerns had not been brought to the Court's attention prior to trial.
61With respect to parenting courses completed by Ms. Borsoi and Mr. Davis during this litigation, Mr. Davis confirmed that no proof of completion had been provided to Mr. Mogg or to the Court.
62Mr. Mogg asked Mr. Davis about speaking with Jacob about money issues. Mr. Davis told the Court that, previously, his payday coincided with the day that Jacob went for access to his father's home. He also confirmed that he and Ms. Borsoi did discuss money issues with Jacob. Following involvement by the OCL, he and Ms. Borsoi were told not to discuss these issues in front of Jacob and so they stopped.
63Mr. Davis was asked about his prior involvement with CAS and whether he had a disciplinary role in Jacobs's life.
64Mr. Davis described an incident where his 12-13 year old stepdaughter assaulted her mother. He restrained the stepdaughter until she stopped and police attended. The stepdaughter was charged and there was no further CAS involvement.
65With respect to CAS involvement with Jacob and his mother, Mr. Davis testified that early on in the relationship with Ms. Borsoi, Jacob was jumping on couch. Ms. Borsoi asked Jacob to stop. He did not. As a disciplinary measure, Mr. Davis asked Jacob for his iPod and during the exchange of iPod, Mr. Davis's ring contacted Jacob on the forearm and bruised Jacob. This resulted in CAS becoming involved. Mr. Davis was cautioned by CAS. Since then, there has been no further involvement with CAS.
66Mr. Davis did not dispute that Jacob had missed 51.5 days during the 2014-2015 academic year. Mr. Davis advised that "sometimes things happened" and that Jacob had a number of illnesses and that Jacob had been seen by doctors for his illnesses. When asked if Jacob had been diagnosed with any particular health issues, Mr. Davis responded that the illnesses were not such that they caused 52 consecutive absences, but that they were broken up.
67Mr. Davis was asked to provide an explanation for Jacob's absences from school from January 26, 2015 to February 19, 2015. Mr. Davis told the Court that Ms. Borsoi became ill herself. Mr. Davis took Ms. Borsoi to the hospital on the 29th of January. As Mr. Davis had to continue attending work, it was decided that Ms. Borsoi and Jacob would go and temporarily live with Ms. Borsoi's mother. Mr. Davis was not able to continue to look after Jacob during this time. Mr. Davis explained that he could not do Jacob's daily school drop offs and pick-ups. He was not aware that Ms. Borsoi had withdrawn Jacob from school on February 9, 2015.
68Mr. Davis told the Court that he and Ms. Borsoi had not had any discussions with respect to Jacob staying on with Mr. Davis so that so he could continue at school undisrupted.
69When asked why Jacob had been withdrawn from school, Mr. Davis explained that it was because they were not sure if Ms. Borsoi would be coming back to Richmond Hill. She ultimately was gone for 2 weeks. During this time Mr. Davis called and talked to Jacob 2-3 times. He may have gone to see him, but he was not sure.
70Mr. Davis gave evidence about Jacob's day to day care. Mr. Davis told that Court that Jacob sleeps by himself. Ms. Borsoi sleeps with Jacob until he falls asleep. Ms. Borsoi also continues to physically shower Jacob. Mr. Davis was unsure whether Ms. Borsoi wipes Jacob's bottom after toileting.
71When asked if Ms. Borsoi is "overprotective", Mr. Davis responded that as parent they both nurture Jacob. They also try and teach him to be independent.
72Mr. Davis told the Court that Ms. Borsoi had been listening to Jacob's conversations with Mr. Mogg until the Court asked her to stop.
73On re-examination, Ms. Borsoi asked Mr. Davis to provide additional information about his role in the current parenting arrangement. Mr. Davis told the Court that he has assisted Jacob with his homework; he often has Jacob assist him with handy work around the home; he gives Ms. Borsoi parenting advice; they go grocery shopping together as a family. Generally, they do everything as a family would. When he is not working, he is there 100% as a parent. He is able to spend more time with Jacob when he is not working.
The Respondent's Evidence
74In his opening statement at trial, Mr. Mogg asked the Court to find that it is in Jacob`s best interest to reside with him and his family. He told the Court that his evidence will show that Ms. Borsoi has not been focused on what is best for Jacob. According to Mr. Mogg, Ms. Borsoi has breached, denied and ignored Court Orders and she has failed to follow through with the recommendations of the OCL and CAS He submits that Ms. Borsoi has failed to put Jacob's needs ahead of her own.
75Mr. Mogg submitted that Ms. Borsoi has denied Jacob regular access with him and his family. Ms. Borsoi has involved Jacob in the conflict between the adults. She has moved residences; Jacob has moved schools and Ms. Borsoi has failed to ensure Jacob's consistent attendance at school. For all of these reasons, Mr. Mogg believes that Jacob's primary residence should be with him and he should be given sole custody of Jacob.
Mr. Kenneth Mogg's Evidence
76Mr. Mogg told the Court that he is seeking sole custody and primary residence of Jacob. He said he would be open to exploring joint custody with Ms. Borsoi once she completed a parenting course and after she underwent a psychiatric evaluation.
77Mr. Mogg testified that he initially came to Court because he was being denied access. Mr. Mogg felt as though Ms. Borsoi had taken Jacob away from him; if felt like she had taken his fatherhood from him.
78After the proceedings had commenced, Mr. Mogg learned that Jacob had missed a lot of school. This became a big concern for Mr. Mogg. In Order to try and address the issues, the Court Orders were put into place, recommendations were made by the OCL and by the CAS. There was little to no follow through by Ms. Borsoi. Mr. Mogg felt compelled to amend his pleadings to seek sole custody and primary residence because he did not believe that Ms. Borsoi was able to put Jacob's needs ahead of her own. If she was, she would have followed through with the recommendations of the professionals that have been involved with them. He felt that as a father he had to "step up".
79Mr. Mogg said that Jacob deserved a great education and independence. He needed to learn how to live life, shower himself, sleep by himself, and make his own meals. Jacob liked to make his own toast when he is with Mr. Mogg. Mr. Mogg does not believe that Jacob has been to develop these skills with his mother.
80Mr. Mogg told the Court that he felt as though he had no choice but to bring this matter to trial; he felt that he had to raise these issues and have a judge determine what is best for Jacob.
81Mr. Mogg is both frightened and upset by what he described as Ms. Borsoi's failure to follow through with the recommendations of professionals. He believed the recommendations were an opportunity for Ms. Borsoi to do what was best for Jacob. ; Mr. Mogg testified that he pursued this litigation because he believed he was doing what was best for Jacob. If Mr. Mogg ignored these issues, he would have failed Jacob. He had not intended to upset Ms. Borsoi.
82If Jacob were to be placed in Mr. Mogg's care, he would enroll Jacob in Stewart Avenue Public School in Cambridge and he would ensure that Jacob's medical and dental needs would be met.
83Mr. Mogg told the Court that Mrs. Smith's children, Lukas Smith, 8, Jacob Smith, 11; and Alexia Smith, 15; live full time with him and Mrs. Smith. Mr. Mogg's son, Nolan, spends alternate weekends with him, Mrs. Smith and the children. Sometimes Nolan spends additional time with him. It is a flexible arrangement with Nolan's mother.
84Mr. Mogg described the family home as a townhouse with 4 bedrooms. There are 3 floors in the house. Alexia's bedroom is on the first floor. The master bedroom, Lukas's bedroom and Jacob Smith's bedroom are on the third floor.
85When Jacob comes over, he sleeps with Lukas in his room. In this room there is a dresser, TV, XBOX, bunk bed and shelves with books, movies and games. When Nolan comes over, he sleeps in Jacob Smith's room which also has bunk beds.
86Mr. Mogg was asked by the Court to describe how Jacob would be accommodated on a permanent basis in the Mogg-Smith family home. Mr. Mogg told the Court that Jacob would move into Lukas's room. This would be a temporary arrangement as he and Mrs. Smith intended to purchase a larger home in April 2017. They had planned on doing so sooner; however, they used the money they had saved for lawyers and the litigation. This was money Mrs. Smith had received as a result of an inheritance. Until they are able to buy, they will rent a larger home.
87Mr. Mogg was asked by the Court to describe what an average day for Jacob would look like. Mr. Mogg said that Jacob would attend the same school as Lukas and Jacob Smith. At present, the children wake up at around 7 AM, they brush their teeth, get ready for school, come downstairs for breakfast following which Lukas and Jacob Smith catch the bus to school at 8:10. In addition to Jacob knowing Lukas and Jacob Smith at school, Jacob also has friends he has made in the neighborhood.
88The boys return home from school at approximately 3:15 PM. Alexia is home by then. She sees the boys off the bus. Mr. Mogg usually gets home from work by about 3:30 PM. Sometimes he takes the kids to a skate park, or they ride their bikes or play hockey outside the house. Mr. Mogg is usually involved in whatever activity is chosen. After dinner, the children do their homework; if they do not have homework, they have time to play outside until about 7:30 or 8 PM, following which they come in, have some down time to watch tv, or play video games. 9 PM is bath followed by bed time.
89When asked about what he would do to support access between Jacob and Ms. Borsoi, Mr. Mogg told the Court that because he has been denied access and has experienced what that feels like, he would never withhold access. Mr. Mogg believes that scheduled access visits would be best for Jacob. Also, Mr. Mogg would suggest pick-ups and drop offs at a halfway point.
90Mr. Mogg is aware that being moved from his mother's home would be a major change for Jacob. To assist Jacob with transitioning to his new routine, Mr. Mogg would initially support visits between Jacob and Ms. Borsoi every weekend. Then, in approximately 3 months, he would reduce visits to 3 weekends a month, and eventually they would move to a schedule of access every other weekend. Mr. Mogg also supported virtual access through Skype, telephone, Face Time, etc. Mr. Mogg believed this transition plan would be best for Jacob.
91Mr. Mogg was asked about exclusive time with Jacob. Mr. Mogg told the Court that he was able to spend some alone time with Jacob when he drove Jacob back after visits. Usually it is just Jacob and him for those times. Jacob likes the country. There is one hill that they drive down that gives Jacob "butterflies". During these drives, Jacob shared a lot of stories with his father. He also spent time alone with Jacob throwing around a football or playing road hockey. Mr. Mogg was not sure why alone time with Jacob would be an issue for Jacob.
92Mr. Mogg told the Court he had informed Stewart Avenue Public School of Jacob's potential enrollment.
93Mr. Mogg had also obtained information from the Family Counselling Centre of Cambridge about their services. Mr. Mogg believed that they may be able to provide valuable support to Jacob and himself with both individual counselling as well as family counselling to support adjustments Jacob and the family may require if Jacob comes to reside with Mr. Mogg, Ms. Smith and their children.
94Mr. Mogg also told the Court that Dr. Klomfass, Jacob's regular family doctor, is located in Cambridge. Jacob's health care needs, therefore, would be met.
95Under cross examination, Ms. Borsoi asked Mr. Mogg whether he and his wife smoke. He responded that both he and Mrs. Smith smoke.
96Mr. Mogg was asked how many times he had taken Jacob to Church or Sunday School during his access. Mr. Mogg responded that he has never taken Jacob to Sunday school. He has taken Jacob to Church a few times.
97Mr. Mogg was asked how many heated arguments he has had with Mrs. Smith in front of the children. Mr. Mogg responded that he had not had any such arguments. Ms. Borsoi asked whether Mr. Mogg had taken both Nolan and Jacob out of the house with him for a whole weekend because of a fight with Mrs. Smith. Mr. Mogg responded that he had not.
98Ms. Borsoi asked Mr. Mogg whether he had uncles and cousins who are alcoholics. Mr. Mogg confirmed that there is alcoholism in his family. Mr. Mogg confirmed that an uncle on his mother's side is an alcoholic. Mr. Mogg also confirmed that his father was an alcoholic.
99Mrs. Borsoi asked Mr. Mogg how old he was when his father was arrested for molesting a group of his school friends. Mr. Mogg told the Court that he was in grade 6, and approximately 11 years old at the time. Ms. Borsoi asked Mr. Mogg additional questions about his age and his brother's age when they each experienced trauma from either their father or their father's friends sexually interfering or attempting to sexually interfere with them. Mr. Mogg was unsure of the time line. He recalls his brother hiding him and further describes this as being a "black out period" for him.
100Ms. Borsoi asked Mr. Mogg if he had observed the impact on her of her former husband keeping her sons from her. Mr. Mogg confirmed that he had. Ms. Borsoi asked Mr. Mogg why, knowing this, he is trying to take Jacob away from her. Mr. Mogg responded that he is not trying to take Jacob away from her. He repeated that he started the Court process because he was not able to see Jacob for access and so he went to get Orders to ensure access. Once the litigation had started and the OCL became involved, he learned of the many other issues that have been raised with the Court. Mr. Mogg told the Court that he had hoped that Ms. Borsoi would have done the things that the OCL, the CAS and the Court had asked her to do. But she did not.
101Ms. Borsoi asked Mr. Mogg about an incident where he struck Ms. Borsoi in front of Jacob. Mr. Mogg denied any such incident occurring.
102Mr. Mogg told the Court about efforts he had made with respect to obtaining counselling services for Jacob. Mr. Mogg's employer pays for counselling services. He has gathered information from Cambridge Counseling; they will be able to provide support for Jacob and the family to assist with the transition. Individual and family counselling are available. Mr. Mogg believed that it would be good for their family to do some family counselling.
103Mr. Mogg confirmed that he had attended a workshop. He did not attend the 4 week parenting after separation course that had been recommended by the OCL. He determined that the course was the same material as the workshop, but provided for more individual support and work. Mr. Mogg filed a Certificate of Achievement for successfully completing K-W Counselling Services Parenting Education Seminar "Strategies for Separated Parents". This certificate is dated November 7, 2015, and was filed as Exhibit "C" in this trial.
Ms. Sandra Takyl's Evidence
104Ms. Sandra Takyl is the Vice Principal at David Leeder Middle School in Mississauga, Ontario. She was formerly the Vice Principal at Shelter Bay Public School in Mississauga, Ontario. She was Jacob's Vice Principal at Shelter Bay Public School during the 2013 – 2014 school years. Jacob attended Shelter Bay Public School from junior kindergarten to grade 1. Ms. Takyl provided school records and attendance records for Jacob.
105Mr. Mogg asked Ms. Takyl about the days missed by Jacob during the 2013 – 2014 school years. Ms. Takyl referred to an Attendance Summary dated May 2, 2014 filed at Tab 3 of the Respondent`s Document Brief. This Attendance Summary is not disputed by the applicant.
106According to this summary, Jacob had a total of 45 AM absences; he had a total of 36 PM absences and Jacob missed 40.5 days of school. Also, there were 40.00 "lates" noted on this summary.
107Ms. Takyl told the Court that the school administration did not receive any information about any medical illness or condition impacting Jacob's ability to attend school.
108Ms. Takyl told that the Court that, generally speaking, attendance comes to her attention in one of two ways. One, the office attendant brings it to her attention as a result of the "safe arrival protocol". Every morning all students are accounted for. When a parent does not call, then efforts are made by administration to verify the child is at home. The second way attendance is brought to her attention is through the classroom teacher.
109If a child's attendance is brought to her attention, then the protocol is that the school contacts the child's parent and lets the parent know that there are supports available with respect to attendance. Attempts are made to develop a relationship with the parent. If this does not resolve the issue, then the school social worker is contacted as there may be other issues.
110With respect to Jacob, Ms. Takyl testified that the school did reach out to Ms. Borsoi to discuss Jacobs attendance. A referral was made to the school social worker because Jacobs absences were significant. Unfortunately, intervention was unsuccessful and minimal meetings were held because it was difficult for staff to get in touch with Ms. Borsoi. When Ms. Takyl tried to review Jacob's absences with Ms. Borsoi, Ms. Borsoi did not react in a way that was focused on Jacob. Ms. Borsoi would become upset with school officials as she was often woken up by telephone calls from the school. She also became upset about the school's contact with Mr. Mogg. The school administration became caught in the confusion about Jacob`s custody status. In their school records, both Ms. Borsoi and Mr. Mogg had custody of Jacob, so they felt as though they were complying with the custody Order when contacting both parents about Jacob's school attendance.
111Ms. Borsoi would become upset because Jacob resided with her and yet the school would still contact Mr. Mogg. The school assured Ms. Borsoi that she was not seen as a bad mother. They advised her that they wanted to support Jacob's consistent attendance.
112Ms. Takyl talked about the importance of consistent attendance. She told the Court that consistent attendance generally ensures a student's progress. Routine and structure are important for children's social and academic development, especially for a student like Jacob who shows promise. School records indicate that school officials attempted to discuss these issues with Ms. Borsoi in person and on the telephone.
113Ms. Takyl told the Court about a meeting that took place during school hours at the school office. This was not a planned meeting. Ms. Borsoi, Mr. Davis and Jacob were present for the meeting. Ms. Borsoi was trying to explain that Mr. Mogg should not be contacted about issues related to Jacob. Ms. Takyl described Jacob's demeanor during this meeting. Jacob was observed by Ms. Takyl to put his hand on his mother's side. She recalls he told her to "stop", "relax", "calm down". Ms. Takyl recalls the individual, who was with Ms. Borsoi, Mr. Davis, was supportive of Ms. Takyl. He encouraged Ms. Borsoi to listen to the school officials. Ultimately, Ms. Takyl ended the meeting. She advised Ms. Borsoi that she was not willing to continue with the meeting in Jacob's presence. Ms. Takyl also informed Ms. Borsoi that the school would require a Court Order to withhold the sharing of information with Mr. Mogg.
114Ms. Takyl described her concern with respect to Jacob's frequent absences. She told the Court that Kindergarten and Grade 1 set the foundation for literacy development. Students begin reading at this age. Also, the social impact of being around peers at this age is critical. Key habits are learned at this age. Children learn to arrive at school on time, pack a bag, pack a lunch; this routine sets up habits for secondary, post-secondary, work and life.
115Ms. Takyl described Jacob as a "true learner". Jacob struck Ms. Takyl as someone who enjoys school. She personally observed and evaluated Jacob. On one particular day, the teacher was having difficulty explaining a concept to the students. Jacob stopped the class, raised his hand and said "I can help". Ms. Takyl observed Jacob engage and demonstrate a concept to his peers. Ms. Takyl told the Court it impressed her that Jacob was able to teach the class more effectively than the teacher.
116On a few occasions, Jacob was late to be picked up, so he would wait at the school office where he was observed to engage with the people around him.
117Ms. Takyl told that Court that Jacob appears to work well with many different types of people. As an educational professional, she believes that Jacob's success will be in an environment where his strengths are engaged and he can consistently be around his peers. Ms. Takyl described Jacob "inherently as an intelligent boy".
118Ms. Takyl told the Court that extended absences in grade 1 could result in learning gaps in reading concepts such as sound and letter blends as a result of a lack of practice. Work was sent home for Jacob as a result of his inconsistent attendance. However, she testified that the development of social and good habits and implementation of academic skills is best when a child consistently attends at school.
119Ms. Borsoi was given the opportunity to ask Ms. Takyl further questions. Ms. Borsoi asked Ms. Takyl if the school perceived her as a bad mother. Ms. Takyl responded that Ms. Borsoi was not seen as a bad parent.
120Ms. Takyl also confirmed that any contact between school officials and Ms. Borsoi had been according to school protocol and had been approved by the school principal, Stuart van Oostveen.
Mr. Leon Barton's Evidence
121Mr. Leon Barton is the Principal at Ross Doan Public School, Richmond Hill. He was previously the Vice Principal at Lake Wilcox Public School, Richmond Hill. He told the Court that Jacob has been attending at Lake Wilcox Public school for approximately 1.5 to 2 years.
122Jacob came to Mr. Barton's attention at the beginning of the 2015-2016 academic years, approximately in October, 2015. Jacob was brought to his attention due to concerns about his school attendance. There is a school policy which tracks attendance. He first noticed that Jacob had some cumulative lates, then by November 2015, when there was a pattern of lates, the family was contacted to see if the school could offer support with the attendance issue. By the end of the school year, Jacob had missed a total of 46 days of school and had 11 lates on his record.
123When asked if Jacob had any pre-existing medical issues which may have caused Jacob's absences, Mr. Barton advised that he could not comment on Jacob's medical state as he had not been made aware of any medical issues.
124Mr. Barton told the Court that he attempted to discuss Jacob's attendance issues with Ms. Borsoi. He had several conversations with Ms. Borsoi. An initial conversation between Mr. Barton and Ms. Borsoi had to do with some issues Jacob was having with another student at the school. There was a conflict with another student which was physical in nature. With respect to the absences, Mr. Barton was informed by Ms. Borsoi that Jacob may go to see a doctor.
125On January 27, 2016, as a result of Jacob's absence from school, Mr. Barton attended at Ms. Borsoi's home. This is part of the school policy. First the school tried to contact the family by telephone. They were unsuccessful, so, before calling police to say there was no contact with the family and the child had not attended at school, he personally attended at the home to see if the child and/or parents were at home.
126Mr. Barton told the Court that, while it was difficult to recall exactly what he observed when he attended at the home, he recalled the door being opened by Ms. Borsoi. He was informed that Jacob was not feeling well. He did see Jacob. Mr. Barton was provided with some information about the nature of Jacob's illness, although he could not recall details. He was informed that Jacob would return to school "soon".
127Filed at Tab 2 of the document brief is Jacob's attendance record from Lake Wilcox Public School for the 2015/2016 year. According to this document, Jacob had a total of 51.5 absences and 11 "lates". This was not disputed by Ms. Borsoi.
128Mr. Barton was not able to provide the Court with any explanation for Jacob's absences from school.
129Mr. Barton confirmed that Ms. Borsoi had withdrawn Jacob from Lake Wilcox on February 9, 2016. It was his understanding that Jacob would be transferring to a school in Mississauga.
130Mr. Barton reviewed Jacob's absences from school as per attendance summaries and report cards filed in Mr. Mogg's document brief. Specifically, the following documents were referenced by Mr. Barton:
131At Tab 3 of the document brief is the attendance summary for Jacob while attending Grade 1 at Shelter Bay Public School. As of February 6, 2015, Jacob had been absent 42.5 days and had 14 "lates". This is not disputed by Ms. Borsoi.
132At Tab 3 of the document brief is the attendance summary for Jacob while attending Senior Kindergarten at Shelter Bay Public School. As of June 27, 2014, Jacob had been absent 49 days and had 48 "lates". This is not disputed by Ms. Borsoi.
133At Tab 3 of the document brief is the attendance summary for Jacob while attending Junior Kindergarten at Preston Public School. As of June 27, 2013, Jacob had been absent 29.5 days and he had 8 "lates". This is not disputed by Ms. Borsoi.
134Mr. Barton confirmed that with this number of absences, the school does inquire as to the reason for the child's absences. Mr. Barton told the Court that he made inquiries to Ms. Borsoi in person and on the telephone. This is not disputed by Ms. Borsoi.
135Mr. Barton had a few discussions with Ms. Borsoi. Some of the discussions were with respect to the school's concerns about Jacob experiencing conflict with other students at the school. Some of the discussions were about medical issues relating to Jacob. He was informed by Ms. Borsoi that Jacob had sustained an injury, a possible concussion, as a result of conflict at school. Ms. Borsoi told Mr. Barton that she would like to see Jacob in school as much as possible and that she was working with a doctor to ensure Jacob was well enough to attend school.
136Mr. Barton met with Ms. Borsoi and Mr. Davis at the end of year. He believes this was his final meeting with Ms. Borsoi. At this meeting, they discussed the family's plan to move to the Mississauga area. He learned there was a Court case relating to custody issues. Mr. Barton was provided with some medical documentation at this meeting.
137In cross examination, Ms. Borsoi reviewed Jacob's report cards with Mr. Barton. In particular, Mr. Barton reviewed the Strengths and Next Steps sections in Jacob's grade 2 December 2015 and June 2016 report cards.
138Ms. Borsoi asked Mr. Barton to describe Jacob. Mr. Barton testified that his observations of Jacob were limited as he was not Jacob's classroom teacher. He observed Jacob in the yard and in the hallways. He recalled Jacob playing with other students, working well with his teacher; he observed Jacob being inquisitive and curious and also laughing and smiling. Mr. Barton also observed Jacob as having had conflict with students and working through these issues with Mr. Barton. He recalled Jacob having some concerns about some of his friends pushing him, hurting him, and not playing with him. He believed Jacob saw Mr. Barton as someone he could confide in.
139Mr. Barton said that initially, Jacob had some difficulty communicating his exact feelings. Once Mr. Barton formed a bond with Jacob, Jacob could communicate and advocate for himself. Mr. Barton did not have any issues with Jacob's ability to advocate for himself.
Ms. Janelle Mogg's Evidence
140Mr. Mogg called Janelle Mogg to give evidence in support of his application. Ms. Mogg told the Court that she was married to Mr. Mogg from 2001 to 2005. Their son, Nolan was born on October 15, 2004. Ms. Mogg and Mr. Mogg separated in 2005. Ms. Mogg told the Court that she had not experienced Mr. Mogg to be abusive during their relationship.
141Ms. Mogg described her and Mr. Mogg's ability to co-parent Nolan in positive terms. She told the Court that they had worked hard to get to where they are now. They try to discuss everything openly. In her opinion she and Mr. Mogg had a "very healthy co-parent relationship".
142Ms. Mogg told the Court that the break up was difficult; however, she and Mr. Mogg worked hard to keep their emotions out of their discussions so they could do what was best for Nolan.
143She told the Court that they did not take any courses in co-parenting; they were able to communicate with each other and tried to explain to the other what and why they were trying to accomplish. When things got heated, they would take a break. They did not use a third party to assist them. She recalls Ms. Borsoi not liking Mr. Mogg and Ms. Mogg communicating with one another.
144In describing Mrs. Smith, Mr. Mogg's current wife, Ms. Mogg told the Court that she and Nolan both like Mrs. Smith. If she is unable to get in touch with Mr. Mogg, she contacts Mrs. Smith. Ms. Mogg does not have any concerns with Nolan being left alone with Mrs. Smith. Ms. Mogg told the Court that Nolan is part of a large blended family that includes Mrs. Smith's children. Nolan "adores" Mrs. Smith's children.
145Ms. Mogg told the Court that Nolan is close to "little Jake" [Jacob]. She believes this is because the boys were not able to spend weekends together, at the request of Ms. Borsoi who wanted Mr. Mogg to spend time alone with Jacob.
146Ms. Borsoi asked Ms. Mogg whether when she was with Mr. Mogg he ever "took off" on her and Nolan. Ms. Mogg told the Court that yes, there were times when she and Nolan did not attend an event or left a party early. There were also times when Mr. Mogg would go out with friends and come home late. Ms. Mogg said that she always knew where he was and he would call her as well.
147Ms. Mogg testified that she did not have any concerns about Mr. Mogg using drugs.
148Ms. Borsoi asked Ms. Mogg whether Mr. Mogg was verbally or physically abusive to her. Ms. Mogg said that, as in all arguments, things were said by both of them. Ms. Mogg testified that she did not experience any physical abuse by Mr. Mogg.
149Ms. Mogg was asked about whether she had any concerns about Mr. Mogg's parenting style. Ms. Mogg responded that she did not.
150When asked why she and Mr. Mogg separated, Ms. Mogg told the Court that they were not a good pairing. They did not "mesh" well. There were numerous reasons for their separation. They have, however, been able to co-parent Nolan.
151Ms. Mogg was asked by Ms. Borsoi how she would feel if Nolan was taken away from her. Ms. Mogg responded that she would feel awful and that it would be an extreme adjustment for Nolan and for her
152When asked about Nolan's schedule, Ms. Mogg told the Court that Nolan's primary residence is with her. He spends alternate weekends with his father. This plan has been in place since Nolan was 1; Nolan will be 12 on October 15th, 2016. Nolan is with his father from Fridays at 6 PM to Sundays at 4.30 PM. They have agreed to pick-ups and drop offs at a halfway point. Nolan was an infant when he started having alternate weekend access with Mr. Mogg. This has been consistent since they separated.
153Ms. Mogg told the Court that it took Mr. Mogg and her a few months to figure out how they would parent Nolan and who would make what decisions. She makes decisions about Nolan`s medical needs and his school. They did not have to attend at Court to resolve any of the parenting issues.
Ms. Tricia Ryan's Evidence
154On November 28, 2014, the Honourable Mr. Justice P.W. Dunn, Ontario Court of Justice, requested the involvement of the Office of the Children's Lawyer ("OCL"). The OCL consented to provide services pursuant to section 112 of the Courts of Justice Act on January 27, 2015. On February 25, 2015 this matter was assigned to Tricia Ryan.
155An interim reported ("OCL Interim Report") dated July 29, 2015 was filed with the Court. This report is marked as Exhibit "A" in this trial.
156Ms. Ryan's testified that the file was to be re-opened in January of 2016 to permit Ms. Borsoi time to have a thorough psychological assessment of her cognitive functioning and mental health completed. In the interim, she felt it was least intrusive for Jacob to continue to reside with Ms. Borsoi and so she recommended that arrangement. Ms. Ryan anticipated making final recommendations regarding custody, access and mobility following Ms. Borsoi's attendance for her assessment and completion of Ms. Ryan's investigation and final report.
157Other specific interim recommendations were made by Ms. Ryan. Ms. Ryan made recommendations with respect to specified access between Jacob and Mr. Mogg; she recommended to the parents that Jacob was not to be exposed to conflict on access exchanges.
158Additionally, Ms. Ryan recommended that Ms. Borsoi was to ensure Jacob's attendance at school on a regular basis and on time; if Jacob was absent for more than 2 days of school, Ms. Borsoi was to obtain a doctor's note and provide it to the school.
159Also, the parents were each to attend a course on co-parenting after separation.
160On the consent of parties, recommendations 2-12 of Ms. Ryan's interim report were incorporated into a temporary Court Order on August 27, 2016.
161A final report dated February 23, 2016 was filed with the Court. This report is marked as Exhibit "B" ("OCL Final Report") in this trial.
162Ms. Ryan submitted that she was unable to make final recommendations in this matter due to Ms. Borsoi's failure to follow through with recommendations made by the Ms. Ryan in the OCL Interim Report.
163Ms. Ryan relied upon the OCL Interim Report and the OCL Final Report as her evidence in this matter. Both parties were given leave to ask Ms. Ryan questions about the reports filed.
164Ms. Ryan had 2 private meetings with Jacob. Her evidence was that Jacob was a lovely, outgoing, energetic child who had a sense of humor. He engaged easily in conversation and he was talkative. Ms. Ryan submitted that Jacob was consistent in the information that he provided to her.
165Jacob told Ms. Ryan that he has moved frequently and that he finds the drives between his parents' homes to be "long and boring". He likes the school which he currently attends in Richmond Hill. He also shared that he has seen his parents fight a lot and this is why they separated. Jacob told Ms. Ryan that his parents don't live together any more "because they've been fighting and my mom told me that he's not paying child support, I know my mom needs money from my baby bonus, is sort of ok for money at mom's house, we don't have any sometimes, Kevin gets paid on Fridays, that's the day I go to my dad's".
166Jacob also shared that he has "bad feelings" when his parents fight. He wants to feel normal and for them to be friends. They still fight at access exchanges and sometimes Mr. Davis and Mrs. Smith get involved. He described an incident where his mother pulled him away abruptly when he was having a donut with Ms. Smith and her daughter at Tim Horton's. Jacob told Ms. Ryan that he likes Ms. Smith and her children; however, sometimes he doesn't feel safe with her. He doesn't know why he feels that. Ms. Ryan testified that Jacob did tell her about Mrs. Smith giving him adult medicine on one occasion. He also told her about not letting him cuddle with his father and telling him to "get his ass to bed" one night when he could not fall asleep.
167Jacob looks forward to going to his dad's home and seeing the other children there. He wants to visit his dad for one extra day on the weekends he is with him but remain living primarily with his mother. Jacob enjoyed spending one full week with his dad once when they went up north. It was okay being away from his mom for that length of time. He likes Mr. Davis. He reported feeling safe with him.
168Jacob told Ms. Ryan that he missed so much school because he was sick sometimes and slept in.
169Ms. Ryan described some of the comments made by Jacob as being adult concerns. During her investigation, it became apparent that Jacob had been exposed to the adult conflict as well as to litigation between the parties. Prior to making any final conclusions, she felt that she required additional information. This is why Ms. Ryan recommended a thorough assessment of Ms. Borsoi's psychological and cognitive functioning so the Office of the Children's Lawyer could understand the full circumstances and provide support if it was needed.
170Mr. Mogg asked Ms. Ryan whether she ever received an assessment. Ms. Ryan reported that she reviewed a report received from Dr. Shawn Vasdev, Psychiatrist. In this document it was noted that Ms. Borsoi had been seen on November 25, 2015 for a consultation. Dr. Vasdev reported
171"Based on my assessment today, I do not see evidence of a major depressive episode, bipolar disorder, schizophrenia or substance use. She seems to be managing stress related to an ongoing custody dispute. I do not see an acute need for pharmacotherapy/medications at this time. We discussed general coping strategies such as regular exercise, maintaining structure and routine in her day, and finding pleasurable activities for herself. She may benefit from supportive counselling as she is going through this stressor."
172Ms. Ryan told the Court that the report provided by Dr. Vasdev was not what was contemplated when she made the recommendation for an assessment. Ms. Ryan distinguished what had been provided from what had been requested. Ms. Borsoi had provided Ms. Ryan with a psychiatric consultation. Ms. Ryan had recommended an independent medical assessment which would look at Ms. Borsoi's psychological well-being and cognitive functioning as they applied to her parenting abilities.
173At the time she concluded her interim report, Ms. Ryan was unable to get a full understanding of Jacob's health and why Jacob had been absent from school as much as he had. As such, one of the recommendations made by Ms. Ryan was that Jacob has a regular doctor.
174Ms. Ryan was asked whether Ms. Borsoi and Mr. Mogg had followed through with her interim recommendation that both parents attend for a parenting after separation course. Ms. Ryan advised that Ms. Borsoi had not followed through with this recommendation. Ms. Ryan confirmed that Mr. Mogg had attended the first workshop. He took a 3 hour program. He informed Ms. Ryan that he had withdrawn from the longer program as he felt that it was redundant. His certificate of completion is marked as Exhibit "C" in this trial.
175Mr. Mogg asked Ms. Ryan whether Ms. Borsoi informed her of her intentions to withdraw Jacob from his school in Richmond Hill. Ms. Ryan advised that she was informed by Mr. Barton on February 9, 2016 that Ms. Borsoi was withdrawing Jacob from Lake Wilcox Public School in Richmond Hill and that they would be moving to Mississauga.
176Ms. Ryan testified that on February 10, 2016, Ms. Icy Leung, York Region CAS informed her that she had visited Ms. Borsoi and Jacob in Mississauga. Ms. Borsoi was planning to register Jacob in a school in Mississauga and that Jacob appeared to be adjusting well to the move to Mississauga.
177Ms. Ryan informed the Court that an interview with Ms. Borsoi on January 18, 2016 was not completed because Ms. Borsoi became very angry towards Ms. Ryan and advised she was ill. Ms. Borsoi agreed to reschedule so that she could provide the information required by Ms. Ryan to complete the investigation.
178Ms. Ryan informed Ms. C. Bernard, who was counsel for Ms. Borsoi at the time, of this plan. On January 29, 2016, Ms. Ryan left a message for Ms. Borsoi to contact Ms. Ryan to complete her interview. No response was received by Ms. Ryan.
179On February 2, 2016, Ms. Ryan elicited the support of Ms. Bernard to complete the interview process with Ms. Borsoi. On February 2, 2016, Counsel for both parties were advised by Ms. Ryan that the investigation would be collapsed if Ms. Borsoi failed to contact Ms. Ryan by February 5, 2016.
180On February 8, 2016, Ms. Bernard informed Ms. Ryan that she had left Ms. Borsoi a telephone message, forwarded her an email and sent her a letter by courier requesting that she contact Ms. Ryan to complete her interview. On February 8, 2016, Ms. Borsoi left Ms. Ryan a message saying that she was very sick, but was slowly getting better and was prepared to complete the interview.
181On February 10, 2016, Ms. Ryan left Ms. Borsoi a telephone message offering 2 options to complete her interview, without response.
182Ms. Ryan testified that it has not been possible to complete the OCL investigation as there remained outstanding collateral and personal information from Ms. Borsoi. Ms. Ryan summarized in the OCL Final Report the information that she was able to obtain since the OCL Interim Report was filed on July 29, 2015.
183Ms. Ryan testified that for all the reasons outlined in OCL Final Report dated February 19, 2016, she was unable to make any recommendations on a final basis.
184Ms. Borsoi chose to ask Ms. Ryan questions in cross examination. Ms. Borsoi asked Ms. Ryan whether her lawyer had sent Ms. Ryan information about Dr. Malicki. Ms. Ryan responded that she had noted in the OCL Interim Report that Dr. Malicki is the former physician for Ms. Borsoi and Jacob. He had been her family doctor since 1996, but had not seen her for many years. The information obtained by Ms. Ryan in her interview with Dr. Malicki on March 11, 2015 was summarized at page 16 of the OCL Interim Report. Ms. Ryan relied on that summary. In that summary Ms. Ryan learned that Jacob was seen by Dr. Malicki in April of 2012 for fever and cold symptoms, in 2011 and 2013 for vaccines. Dr. Malicki had no knowledge of Jacob missing a large amount of school.
185Ms. Borsoi asked Ms. Ryan whether Mr. Mogg had shared the history of his family, particularly, his father, with Ms. Ryan during the OCL investigation. Ms. Ryan directed the Court to page 6 of the OCL Interim Report wherein Mr. Mogg informed Ms. Ryan that his father had been incarcerated for molesting children, some of whom were Mr. Mogg's friends. Mr. Mogg's father remarried and he had contact with him on an annual basis. If his children are with him, they are supervised.
186Ms. Borsoi asked Ms. Ryan about information received from Family and Children's Services of the Waterloo Region. Ms. Ryan referred the Court to page 23 of the OCL Interim Report where she summarized the information she received from this agency.
187Ms. Ryan learned that Ms. Borsoi and Mr. Mogg had been investigated by that Agency on receiving a referral from Esmerelda's school on February 26, 2010. It was reported by Esmerelda's father that Ms. Borsoi had slapped, shook, pushed and shoved Esmerelda. Esmerelda was asking to live with her father. Ms. Borsoi had repeatedly cancelled appointments with the CAS worker and failed to provide her new address. Risk of harm was verified by the Agency as Ms. Borsoi had grabbed Esmerelda when she was brushing her teeth; Esmerelda wanted to do it herself. She was approximately 10 years old at the time. A discussion was held with Ms. Borsoi about Esmerelda's need for independence. Ms. Borsoi was showering Esmerelda as well. Ms. Borsoi's anxiety caused her to infantilize Esmerelda. Ms. Borsoi was aware of this and she was cautioned not to shake her daughter. The file was closed at intake.
188Ms. Borsoi asked Ms. Ryan about her contact with Dr. Klomfass and Dr. Salahuddin.
189Ms. Ryan testified that Dr. Klomfass is the family physician for Jacob, Ms. Borsoi and Mr. Mogg. Ms. Ryan testified that Dr. Klomfass had told her that Jacob was seen for several medical appointments from March 2010 to July 2013 for sore throats, flu symptoms and other minor ailments.
190Ms. Ryan testified that Dr. Salahuddin is the former physician for Ms. Borsoi and Jacob at a Walk In Clinic. Ms. Ryan testified that Dr. Salahuddin had told her that Jacob began attending the clinic in July 2010 and was seen for minor ailments such as coughs and colds only. Child protection authorities were involved with the family and requested information regarding Jacob's welfare. Ms. Ryan testified that Dr. Salahuddin had told her that he was unaware that Jacob had missed a large amount of school.
191Ms. Ryan told the Court that the parents were compliant with providing Ms. Ryan with consents and authorizations to speak with collaterals. Initially, Ms. Borsoi was resistant to allow Ms. Ryan to interview Esmerelda; eventually, however, Ms. Ryan was able to do so. Her interview with Esmerelda was summarized at page 18 of the OCL Interim Report.
192The Court asked Ms. Ryan to provide additional details about her two private interviews with Jacob. The first private interview with Jacob took place on June 20, 2015. Ms. Borsoi and Mr. Davis brought Jacob to this meeting. Mr. Mogg brought Jacob to the second private interview with Ms. Ryan which took place on June 26, 2015.
193Ms. Ryan testified that at each interview, Jacob drew pictures of his family for Ms. Ryan. These pictures were marked collectively as Exhibit "D". The first of the two was drawn by Jacob on June 20, 2015. The second of the two pictures was drawn by Jacob on June 26, 2015.
194Ms. Ryan told the Court that Jacob was outgoing, talkative and happy. Ms. Ryan told the Court that Jacob was consistent in the information that he provided to Ms. Ryan. Jacob told Ms. Ryan that he knew that his dad wanted him to live with him in Cambridge. Jacob also knew that he was meeting with Ms. Ryan because his dad and mom are in Court and "all that". He talked about his mom and dad not living together anymore and that when they lived together they "fighted a little bit then". Ms. Ryan asked Jacob if he could tell her about what they fought about and, in response, Jacob started to talk about the crayons he was using to make his picture. He told Ms. Ryan that "you have cool colours". He told Ms. Ryan, "let's see, they fight about a lot of things" and that he would be "watching TV while the fighting was going on".
195He told Ms. Ryan that "I just want it to be normal like my mom and dad are friends". He told Ms. Ryan that it is "like I have two families" and he asked for Ms. Ryan's help in spelling the names for the pictures he drew.
196Jacob was clear that he still wants to live with his mother. He would like more time with his father. He would like to see him for 4 days. He did say that he "barely gets time" with his father. It's both okay and not okay that there are 7 kids at dad's home. He would like to have one day alone with dad and Nolan and he would be okay for the other 3 days to be with everyone. He thinks that his dad would be okay if he didn't want to live with him.
197Ms. Ryan testified that the concerns previously outlined in the interim report prevail and that Ms. Borsoi has not been able to support Jacob.
The Law
198In determining both parents' request for custody in this matter, the Court is guided by Subsection 24(1) of the Children's Law Reform Act (CLRA).
199Each party's past conduct is not relevant unless it is related to that person's ability to parent. Subsection 24(3) of the CLRA.
200The powers of the Court in granting custody of or access to a child, as well as the test to be applied and factors to be considered, are set out in s.28 and s.24 of the Children's Law Reform Act (CLRA), R.S.O. 1990, c.C.12.
4. Analysis and Decision
Merits of Application for Custody or Access
201In determining both parents' request for custody in this matter the Court is guided by Section 24 of the CLRA. This section outlines the features of a best interests analysis. This Court is guided by the factors outlined in section 24(2).
Best Interests of the Child
202(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) the plan proposed by each person applying for custody of or access to the child for the child's care and upbringing;
(f) the permanence and stability of the family unit with which it is proposed that the child will live;
(g) the ability of each person applying for custody of or access to the child to act as a parent; and
(h) the relationship by blood or through an adoption Order between the child and each person who is a party to the application. 2006, c. 1, s. 3 (1) ; 2009, c. 11, s. 10 .
What Plan is in Jacob's Best Interests and Varying the Status Quo?
203The Court has been asked to decide whether it is Jacob's best interests to continue to reside with his mother and have access with his father or whether he should be placed in the primary care and custody of his father and have access with his mother. The former maintains the status quo. I note that Courts are reluctant to change the status quo unless there is clear evidence that the current plan is not meeting the child's needs.
204The Court must ascertain Jacob's best interests from the perspective of the child rather than that of the parents. No one factor in the statutory definition of a child's best interests is given statutory preeminence. In resolving custody disputes, emphasis must be placed on the critical importance of bonding, attachment and stability in the lives of young children.
See: Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27.
Wilson v. Wilson, 2015 ONSC 479.
Barnes v. Parks, 2001 CanLII 241146 (Ont. C.A.).
Wilson v. Wilson, 2015 ONSC 479.
Lusher v. Lusher, 1988 CanLII 1433 (ON CJ), 13 R.F.L. (3d) 201 (Ont. Prov. Ct. – Family).
205I have carefully reviewed the evidence led by both the mother and the father in considering Jacob's needs and circumstances.
206Both parents ask the Court to find that they each dearly love their son. Both parents gave direct evidence in support of this. They also relied on the evidence of extended family members to support the claim. There is no doubt in my mind that both parents love their son. I also find that Jacob is attached and bonded with both his mother and his father. I accept the evidence led by both the mother and the father as well as the evidence provided by Ms. Tricia Ryan.
207Both parents have extended family members who are involved in Jacob's life. Both parents asked this Court to find that Jacob is attached and loved by the extended family members in each parent's home. I accept the evidence provided by Ms. Borsoi, Mr. Davis and Ms. Ryan. On the evidence before me, I am satisfied that Ms. Borsoi's fiancé, Mr. Kevin Davis, is involved in Jacob's life. I find that Mr. Davis cares for Ms. Borsoi. I find that Mr. Davis supports Ms. Borsoi's plan to parent Jacob. I also find that Mr. Davis is deferential to Ms. Borsoi's parenting decisions with respect to Jacob. There is some evidence to support Ms. Borsoi's position that Jacob views Mr. Davis as a part of his life with his mother.
208I also accept that Jacob has a connection with Esmerelda, his step-sister. There is some evidence before the Court that Mr. Davis was previously involved with York CAS and that the Agency had verified physical discipline by Mr. Davis against his former partner's daughter. I also accept Ms. Ryan's evidence that during her interview with Mr. Davis he became visibly upset and that he wanted his upset noted by Ms. Ryan in her report. Ms. Ryan's evidence is that Mr. Davis presented at times as "angry, sarcastic and authoritarian" during her interview with him. Despite this evidence, Ms. Ryan's evidence is that Jacob feels safe with Mr. Davis. I accept that Jacob both likes and feels safe with Mr. Davis.
209I am satisfied that Mr. Mogg's current wife, Mrs. Christy Smith, her children and Nolan, Jacob's half-sibling, are a part of Jacob's life in his father's home. Evidence of Jacob's relationships with Ms. Smith, her children and Nolan was provided by Ms. Tricia Ryan, Ms. Borsoi, Mr. Davis, Mr. Mogg and Mr. Mogg's former spouse, Ms. Janelle Mogg. Mr. Mogg and Ms. Mogg told the Court that Jacob has positive relationships with Ms. Smith, her children and Nolan. Ms. Mogg told the Court that she believes Nolan and Jacob would be even closer if there had not been a change to their access weekends with their father. These changes were at the behest of Ms. Borsoi. Ms. Ryan's evidence is that Jacob likes Ms. Smith and her children, however, he sometimes he does not feel safe with Ms. Smith. Jacob was not able to tell Ms. Ryan why he felt this way, but related those feelings to Ms. Smith giving him "adult medicine" on one occasion, not letting him cuddle with his father and telling him to "get his ass to bad" one night when he could not fall asleep. Ms. Borsoi and Mr. Davis also testified that Jacob had expressed concerns to each of them about Ms. Smith.
210On the totality of the evidence before me, I do not accept that there is cause for concern with respect to Jacob's safety with Ms. Smith. I find that Jacob's statements about Ms. Smith are evidence of his being impacted by the conflict between his mother and his father. I am satisfied that Ms. Smith supports Mr. Mogg's plan for Jacob. I am satisfied that Jacob has positive relationships with Ms. Smith, her children and Nolan. I accept Ms. Ryan's evidence that Jacob looks forward to going to his father's house and seeing the children there.
211With respect to the length of time the current parenting plan has been in place, it is not disputed that Jacob has been primarily resident with his mother since Ms. Borsoi and Mr. Mogg separated in 2013. There is conflicting evidence with respect to the stability of Jacob's life with Ms. Borsoi. There is ample evidence that while living with his mother, Jacob has moved frequently and has changed schools several times. Ms. Borsoi's explanation is that they have moved because they have had to move. Ms. Borsoi testified that Jacob has not been negatively impacted by these moves.
212Ms. Borsoi also testified that Jacob has not been negatively impacted by the number of times he has had to change schools. Also, Mr. Davis has been residing with Jacob and his mother since February 2015. While Jacob has been consistently in the primary care of his mother for the last three years, I do not find that the Ms. Borsoi has provided Jacob with a consistent and stable home environment during this time. Certainly, Jacob has not experienced a consistent and stable academic environment during this time.
213Mr. Mogg has been with Ms. Smith since 2013. They are now married. I find that the home and the family presented by Mr. Mogg has been stable for the past three years.
214There is no evidence before the Court that Jacob has special needs which must be met by the parents.
215On the evidence before me, I find the parents are equally capable of providing for Jacob's physical needs.
216Much of the evidence before the Court relates to the ability and willingness of each parent to provide for Jacob's emotional needs, and to provide Jacob with guidance and education.
217Mr. Mogg's evidence is that Jacob has missed an inordinate amount of school while in his mother's care. Mr. Mogg also testified that Jacob's academic and social growth have been negatively impacted because of his poor attendance. This is corroborated by Jacob's school records, the testimony of school professionals and Ms. Ryan.
218I find that Jacob has missed an unacceptable amount of school. I further find that these absences have had an adverse impact on Jacob both academically and socially. I do not accept Ms. Borsoi's evidence with respect to the reasons behind Jacob's absences. She has not provided reasonable explanations with respect to Jacob's poor attendance. She has failed to provide medical evidence to support Jacob's absences from school. Further, Ms. Borsoi's explanations lead me to conclude that she does not accept that consistent attendance at school is in Jacob's best interests. Mr. Davis's evidence is also problematic in this regard. He accepts Ms. Borsoi's explanations. He too fails to appreciate the importance of consistent school attendance for Jacob's growth and development. On the evidence, I find that, at this time, Ms. Borsoi is not able to meet Jacob's academic needs.
219Pursuant to paragraph 11 of the Temporary Order dated August 27, 2015, Ms. Borsoi was to have a psychological assessment of her cognitive functioning and mental well-being as it relates to her parenting ability concluded by January of 2016. The report was to address what supports, if any, were needed to be in place for Ms. Borsoi to be in a parenting role. A possible option for a psychological assessment was through Markham-Stouffville Health Centre.
220The assessment was ordered so that any gaps in Ms. Borsoi's parenting could be determined and supports put in place, to the ultimate benefit of Jacob. The evidence before the Court is that Ms. Borsoi did not participate in the assessment as she was fearful of what the assessment would reveal. Ms. Borsoi's failure to attend for a fulsome assessment in regards to her functioning is concerning for me.
221There is also evidence of Ms. Borsoi interfering with Jacob's relationship with his father, his father's current wife and children and his brother, Nolan. The evidence is that police enforcement was required to ensure Jacob's attendance at Mr. Mogg's wedding, notwithstanding the existing access Order. This is problematic from the perspective of Ms. Borsoi's ability to meet Jacob's emotional needs.
222Pursuant to paragraph 10 of the Temporary Order dated August 27, 2015, both parents were to attend a co-parenting after separation course such as recommended by York Region CAS.
223Mr. Mogg did complete a course, albeit a shorter course than what had been recommended by Ms. Ryan. Ms. Borsoi did not attend a parenting course.
224Pursuant to paragraph 8 of the Temporary Order dated August 27, 2015, the parties were to use a communication book that will travel with the child to share information pertaining to his well-being.
225The evidence is that Ms. Borsoi refused to use the communication book upon observing that Mrs. Smith had input entries.
226Pursuant to paragraph 9 of the Temporary Order dated August 27, 2015, Ms. Borsoi was to ensure that Jacob attended school on a regular basis and on time. If Jacob was absent for more than 2 days of school, the Applicant was to obtain a doctor's note and provide it to the school.
227The evidence is that Jacob has missed far more than 2 days of school. There is no evidence that Ms. Borsoi provided the school with medical notes verifying Jacob's absences.
The Child's Wishes
228I turn now to Jacob's wishes. Ms. Borsoi, Mr. Davis and Ms. Ryan told the Court that Jacob wishes to reside with his mother and see his father on weekends. Ms. Ryan testified that Jacob would like to visit his dad for one extra day on the weekends and that he was alright spending a full week with his father when they went up north together; and that he was alright being away from his mother for that length of time. I accept the evidence with respect to Jacob's views and preferences.
229Decaen v. Decaen, 2013 ONCA 218 states that in assessing the significance of a child's wishes, the following are relevant: (i) whether both parents are able to provide adequate care; (ii) how clear and unambivalent the wishes are; (iii) how informed the expression is; (iv) the age of the child; (v) the maturity level; (vi) the strength of the wish; (vii) the length of the time the preference has been expressed; (viii) practicalities; (ix) the influence of the parent(s) on the expressed wish or preference; (x) the overall context; and (xi) the circumstances of the preferences from the child's point of view: See Bala, Nicholas; Talwar, Victoria; Harirs, Joanna, "The Voice of Children in Canadian Family Law Cases", (2005), 24 C.F.L.Q. 221.
230Ultimately the weight to be attached to an expression of preference depends on the facts and is a function of age, intelligence, apparent maturity, and the ability of the child to articulate a view. See Stefureak v. Chambers, 2004 CanLII 34521 (ON SC), [2004] O.J. No. 4253 (S.C.J.).
Varying Status Quo: Stability in Parenting
231Courts are reluctant to change existing childcare arrangements that are working to a child's benefit:
232Where the ongoing childcare arrangements are not working to a child's benefit or the other parent offers a markedly superior childcare plan, a Court may change the childcare regime.
233Is there cogent evidence or compelling reason to change the status quo of the child's primary residence with the mother? Has she established a stable home for Jacob?
Is Joint Custody in Jacob's Best Interests?
234Notwithstanding their respective positions in this litigation, the parties consented to an interim Order of joint custody on or about June 17, 2014. Pursuant to this Order, Jacob has been primarily resident with his mother while spending alternate weekends with his father. This has been in place for over 2 years. There is evidence before the Court that access exchanges have been problematic. I also find that there has been interference by Ms. Borsoi in Jacob's relationship with his father and father's family by withholding access and discussion of adult subjects such as the pending, litigation, child support, and living arrangements. Further, the adults have engaged in verbal disputes in front of Jacob and there has been potential for the disputes to become physical in nature. Also, as of the filing of the OCL Final Report, a consistent tool for co-parenting was not being utilized by the parents. Ms. Borsoi refused to use the communication book upon observing that Ms. Smith had input entries.
235It is not enough for the Court to simply acquiesce to what has been in place as a temporary Order. The Court must go on and consider what parenting arrangement would be in Jacob's continuing best interests.
236Jacob is currently 8 years of age. There is no custody Order that could possibly capture all parenting circumstances in a child's life. The only certainty is that there will be events which arise which must be addressed on an ongoing basis. Given Jacob's age, the parents' ability to communicate in a child focused manner is crucial. There is significant evidence before the Court that Jacob has been directly impacted by the hostilities and conflict between the parties and their extended family members. One such example of these hostilities is Mr. Mogg's evidence that he had to resort to police enforcement of the access Order in Order to have Jacob attend at his wedding. Another example is Ms. Mogg's refusal to use the communication book on learning that Ms. Smith had incorporated information into the log. There is also the incident at Tim Horton's which Jacob described to Ms. Ryan. The evidence considered by this Court does not show that Mr. Mogg and Ms. Borsoi have the ability to communicate with one another in without hostilities and in a child focused fashion.
237I conclude, therefore that, at this juncture in the Borsoi-Mogg family history, a joint custodial arrangement is not in Jacob's best interests.
Which Parenting Plan is in Jacob's Best Interests?
238As in most custody and access cases disputes, the parent's individual strengths and weaknesses are the most significant evidence in a Court's evaluation when determining a child's best interests.
239In this case, the Court heard from each parent. In addition, the father filed a trial record and document brief including the child's report cards, school attendance summaries, interim and final reports from the Office of the Children's Lawyer and a certificate of completion of a parenting education seminar.
240The mother did provide oral evidence to the Court. The mother did not file a trial record or document brief. She did not comply with the Order of the Honourable Justice P.J. Clay dated June 24, 2016 wherein she was ordered to produce all her psychiatric and/or psychological reports to the father by July 8, 2016. The mother did not follow through with the recommendations made by Tricia Ryan which were incorporated into a temporary Court Order made on August 27, 2016.
241The Court also heard from other significant individuals in the child's life including teachers and caregivers. These were witnesses called by the father in support of his case and his concerns with respect to Jacob's academic and social development.
242The Court also had the benefit of receiving evidence from Tricia Ryan from the Office of the Children's Lawyer.
243A Children's Lawyer report differs from a full CLRA s. 30 expert assessments. An OCL report is, in its nature, a fact-finding report. The recommendations that result are a starting point, not the last word. See: Ganie v. Ganie, 2015 ONSC 6330.
244In this case, Ms. Ryan was unable to make final recommendations. She has provided the Court with direct evidence and collateral information which she obtained during the course of her investigation.
245The value of the OCL report is that it provided the Court with an objective reflection on Jacob's life as it existed in the real world. It showed the parties in their respective environments over a period; it showed the child in each home with each parent and within each family network. The report also provided a virtual glimpse into each parent's thoughts, plans and concerns in a setting that is more relaxed and less staged than a Courtroom.
246Generally speaking, in a trial setting each party is on their best behavior. Each trying to demonstrate to the Court that he/she is the better parent. In so doing, they usually attempt to be the best versions of themselves. In a trial, good questioning assists the Court in testing the evidence that parties lead. However, in Order to assess parenting from a child's perspective, it is also helpful to have a vision of conduct and behaviours that are less staged and rehearsed. Ms. Ryan's reports provided the Court with this vision.
247The OCL report also provided the Court with information gathered from a number of collaterals that did not testify at trial, but were important to hear from, albeit through Ms. Ryan's reports. I have reviewed the specific collateral information gathered by Ms. Ryan.
248Ms. Ryan was unable to obtain the information to make final recommendations about custody, access and mobility. While Mr. Mogg was cooperative throughout the process. Ms. Borsoi was unresponsive despite several attempts made by both Ms. Ryan and to Ms. Bernard to engage her in the completion of the final report. As a result, Ms. Ryan was not able to obtain all of the collateral information to ascertain what treatment or support, if any, Ms. Borsoi received and if she has benefited from it.
249This, therefore, resulted in Ms. Ryan's conclusion that Ms. Borsoi has not been able to support Jacob. The concerns previously outlined in the Interim Report continue.
Conclusion on Custody and Access
250I have given all of the evidence in this case lengthy and careful consideration.
251Courts make decisions on the totality of the evidence. The question to be answered is, on all of the evidence before the Court, what is best for this child?
252In trying to determine what is best for a child, a Court may consider the following questions: Is the parent empathetic toward the child? Does the parent enjoy and understand the child as an individual or is the parent primarily seeking gratification for his or her own personal needs? Can the parent examine the proposed parenting plan through the child's eyes and reflect what aspects of that plan may cause problems for, or be resisted by the child? Has the parent made changes in his or her life or behaviour to meet the child's needs, or is he or she prepared to do so for the welfare of the child?
253Jacob has been described as a lovely boy who is charismatic, friendly, and articulate and a leader. Given Jacob's age, it is imperative that Jacob have a structure in his life that will address his needs over the next years of his childhood and adolescent life.
254The major concern for this Court is whether each parent is capable of making decisions in Jacob's best interests, and able to place the child's needs above their own needs and interests. This is a significant and relevant consideration for this Court in this matter when considering the issues before this Court.
255The conflict in this matter pertains mainly to the primary residence of Jacob. Jacob has resided with Ms. Borsoi since the parents separated in 2013. Ms. Borsoi moved from Mississauga to Richmond Hill in February 2015. There has been ongoing conflict between the parents since their separation and, most unfortunately, Jacob has been exposed to much of it. There is evidence that Jacob talks openly about "child support" and "Court" and indicates that his mother needs more money from his dad. Jacob mimics the concerns of Ms. Borsoi, particularly those with respect to her concerns with Ms. Smith.
256From the testimony heard in this trial, I also find evidence of Ms. Borsoi's interference with Jacob's relationship with Mr. Mogg and with Mr. Mogg's family.
257Additionally, Jacob has experienced several moves and recently changed residence and schools to live in Richmond Hill. Jacob has missed an exorbitant amount of school which has put him behind socially and academically. Ms. Borsoi reports that he has missed school because he has been ill frequently and also because he has had difficulties adjusting to his parents' separation.
258I find that the parents are not equal in terms of putting Jacob's needs first and being able to make appropriate decisions in Jacob's best interests. At this time, Ms. Borsoi is not able to parent Jacob in a way that meets his academic, social and developmental needs. I find that, in evaluating all of the evidence and despite Jacob's wishes, Jacob's needs would be best addressed in the sole custody of his father. The evidence at trial requires that I remove Jacob from Ms. Borsoi's primary care.
259The Court has concerns about how Ms. Borsoi provided evidence and explained her position at trial.
260Ms. Borsoi does not appear to have insight into how her views and behavior regarding Jacob are not consistently child focused. I cannot ignore Ms. Borsoi's failure to undergo a fulsome assessment. There was a factual basis for the Court's Order for an assessment. The Court was concerned that Jacob's academic, social and developmental needs were not being met in the current parenting arrangement. The assessment would have provided the Court with information about Ms. Borsoi's ability to understand Jacob's needs. Ms. Borsoi told the Court that she did not follow through with this direction as she felt that the assessment might disclose deficits which would potentially create a negative perception of her parenting abilities. What Ms. Borsoi failed to appreciate is that the assessment would have identified the appropriate supports for her and for Jacob. Ms. Borsoi's failure to undergo the assessment demonstrates Ms. Borsoi's inability to place Jacob's needs ahead of her own at this time. The Court is entitled to draw a negative inference from Ms. Borsoi's failure to comply with the Court's Order and I make that negative inference. I determine that Ms. Borsoi is, at this time, unable to place Jacob's needs ahead of her own.
261Jacob has missed an inordinate amount of school. I find that this places him at a disadvantage both academically and socially. Ms. Borsoi has not been able to provide adequate explanation for Jacob's absences. She also seems unable to appreciate the importance of Jacob's school attendance on Jacob's overall development and progress. She has not provided the Court with adequate explanations with respect to Jacob's significant absences.
262When Ms. Borsoi was invited by Jacob's school to explore ways to improve Jacob's attendance, Ms. Borsoi became upset that the school had conveyed these concerns to Mr. Mogg. She further expressed to the school that she was not a bad parent and ought not be perceived as such. Instead of engaging in problem solving with the school, Ms. Borsoi became focused on the school's perception of her as a "bad parent" and the school's sharing of their concerns with Jacob's father. These events took place in front of Jacob.
263Ms. Borsoi's evidence to the Court was that Mr. Mogg's motivation for this litigation is financially driven. Ms. Borsoi believed that Mr. Mogg wished to avoid his child support obligation by seeking sole custody and primary residence. I do not accept this as being accurate. In fact, this is further demonstrative of Ms. Borsoi's inability to see beyond herself.
264I find Mr. Mogg's evidence compelling and supported by the evidence. He initially sought to enforce access with Jacob. He did so in his answer to the application filed by Ms. Borsoi. Mr. Mogg amended his pleadings to seek sole custody and primary residence after he obtained Jacob's school attendance records.
265Neither Mr. Davis nor Ms. Borsoi were forthcoming with evidence around Ms. Borsoi's and Jacob's move to Mississauga from Richmond Hill and the status of Ms. Borsoi's relationship with Mr. Davis during that time. Clearly, Jacob was impacted by this event as he relocated to another community and was forced to change schools.
266Ms. Borsoi and Mr. Davis both tried to convince the Court that they actively and jointly co-parent Jacob. Yet, neither gave the Court a satisfactory response as to why Jacob was forced to move to Mississauga with his mother during this time period or what contact Jacob maintained with Mr. Davis during this time period.
267Further, Mr. Davis did not demonstrate to the Court that he fully appreciates Jacob's poor school attendance as impacting negatively on Jacob's academic and social development.
268Ms. Borsoi's evidence is that she has previously been involved in abusive and unhealthy relationships. Her evidence is that her elder sons' father denied her parenting rights.
269Ms. Borsoi's parenting of Esmerelda was also interrupted. Esmerelda went to reside with her father after concerns were reported to CAS (with respect to Ms. Borsoi. These concerns included infantilizing Esmerelda and being permissive with Esmerelda about school attendance. Esmerelda currently exercises access with Ms. Borsoi.
270Ms. Borsoi is in denial of her ongoing difficulties. I find these difficulties are negatively impacting her ability to place Jacob's best interests as her priority.
271I accept that Jacob feels loved and safe with both of his parents. I also accept that Jacob wants to live primarily with his mother and have some additional time with his father. This Court cannot, however, allow the current parenting arrangement to continue. I have significant concerns about Jacob in this situation. I am left with serious questions about Ms. Borsoi's ability to meet Jacob's needs.
272Ms. Borsoi is strongly encouraged to have a psychological assessment of her mental well-being and cognitive functioning as it relates to her capacity to parent. Jacob will be the one to benefit from Ms. Borsoi following through with an assessment and any recommendations that flow therefrom.
273Based on the foregoing, I conclude that between the parents, Ms. Borsoi is not equipped to make decisions in Jacob's best interests and she has put her own interests ahead of her son's.
274In my view it would be best for Jacob for Mr. Mogg to have sole custody of Jacob and for Jacob to be primarily resident with his father.
275It is this Court's finding that Mr. Mogg presented evidence that supported a plan that is in Jacob's immediate and long term interests.
276Mr. Mogg must recognize that although this Court has decided that he is better suited to plan and decide what is in Jacob's best interests as the sole custody parent, he must be sensitive to Jacob's emotional well-being at all times.
277In addition to considering Jacob's functional needs, his emotional needs are also significant. Mr. Mogg must ensure that Jacob's strong emotional connection with his mother is nurtured and supported during this time of transition and beyond.
278Mr. Mogg has told this Court that he has a distinct appreciation of what it feels like to be excluded from a child's life. He has assured this Court and I accept that he will nurture and facilitate and full and healthy relationship between Jacob and Ms. Borsoi.
279I also accept that Mr. Mogg will take all necessary steps to assist Jacob with the transition into a new community, a new home, a new school and blending into the Mogg – Smith household.
5. Order
The Final Order in this matter is as follows:
1. The Respondent, Kenneth Mogg, shall have sole custody of the child, Jacob Mogg, born April 25, 2008.
2. Jacob shall have his primary residence with the Respondent, Kenneth Mogg.
3. Jacob's primary residence with his father shall commence on Friday February 3, 2017 at 5.30 PM.
4. The Respondent shall inform the Applicant, Jennifer Borsoi, of all major decisions affecting Jacob's health, education, religion, upbringing and extracurricular activities on a timely basis. This information shall be communicated in writing.
5. The parties shall have the same rights to make inquiries and be given information as to Jacob's health, education, religion and welfare.
6. Day to day (non-major) decisions involving Jacob shall be those of the Respondent while the child resides with him and those of the Applicant when the child resides with her.
7. Once Jacob's primary residence with his father has been established, Jacob shall have access with his mother Jennifer Borsoi as follows:
a. Every weekend from Friday after school to Sunday 6.30 PM for a four month period commencing on the weekend of February 10, 2017 to Sunday February 12, 2017 and ending on the weekend of Friday June 23, 2017 to Sunday June 25, 2017.
b. Thereafter, for three out of four weekends, access shall be for the first three consecutive weekends of each month. This shall commence on Friday July 7, 2016.
c. If a statutory holiday or PD day falls on a Monday or a Friday of the Applicant's access weekend, access will extend to include the holiday or PD day with the Applicant to either pick Jacob up on Thursday after school or return him to the Respondent's home by Monday 6.30 PM.
8. The holiday scheduled for Jacob will be as follows [regular access schedule resumes after each of the following holidays schedules ends]:
a. The March break will be divided equally. Jacob will be with the Respondent from after school on the Friday at the beginning of school March break to the Wednesday of the break at 6.30 PM and with the Applicant from Wednesday of the break at 6.30 PM for the duration of the March break to return to school.
b. Easter (religious holiday) Jacob will spend this holiday with his mother in Order to participate in religious activities. Jacob will be picked up on the Thursday after school and dropped of the night before school resumes by 6.30 PM.
c. Mother's Day and Father's Day: Jacob will be with the Applicant on Mother's day from 10 AM to 6.30 PM if Mother's day does not fall on her access weekend. Jacob will be with the Respondent on Father's Day from 10 AM to 6.30 PM if Father's Day does not fall on an access weekend.
d. Jacob will reside with the Applicant in even number years from the last day of school prior to the December school break to December 26 at 1 PM and then from the morning of January 2, to 6.30 PM the night before the first day of school in the new year. Jacob will be with the Respondent for the balance of the December school break in even number years. In odd years, the schedule will alternate.
e. Jacob will reside with parties on a 2 week about basis during his summer school break commencing at 6 PM on the first Friday after the last day of school until 6.30 PM on the Friday prior to Labour Day. Regardless of which parent has the child for the last week of holidays, Jacob shall reside with the Respondent from 10 AM on the Sunday before Labour Day Monday each year unless agreed otherwise agreed upon by the parties.
f. Jacob will spend his birthday with the parent he is residing with on that day.
g. If either the Applicant or the Respondent wish to plan a longer vacation with Jacob than the times outlined above may permit, that parent will submit the vacation plans to the other parent at least 45 days in advance through email.
9. If pick up and drop off for access is not taking place at the school, the Applicant and Respondent shall continue to meet at a halfway point unless the parties agree otherwise.
10. The Respondent shall sign any authorization required so that the Applicant will have full and direct access to all of Jacob's medical and educational information, as well as schedules of his extracurricular activities so that the Applicant can make inquiries with third party health and education professionals and attend Jacob's school and extracurricular events.
11. The parties will communicate in writing regarding day to day parenting decisions and important issues for Jacob via email or any other online tool to which they agree.
12. The parties should share and exchange their cell phone numbers, and update the same as required, to communicate regarding Jacob's needs in addition to the use of email and/or text messages.
13. There will be no restrictions on Jacob calling/Skyping/Face-Timing either parent while he is in the other' parent's care. Both parties shall provide a quiet and private space for Jacob to call and have contact with the other parent. Each parent may call Jacob when he is in the other parent's care between 8 AM and 8 PM.
14. The parties shall ensure that Jacob is not exposed to adult conflict. Neither party will make disparaging remarks about the other or any other significant child or adult in Jacob's life in front of Jacob.
15. The Respondent shall have permission to obtain a passport and other travel documents for the child without the consent of the Applicant.
16. The Respondent shall hold all of Jacob's identification documents, including his birth certificate, health card and passport. The Respondent will provide the Applicant with any documents with any documents she requires to travel with Jacob. The Applicant shall return Jacob's documentation with him at the end of the travel.
17. Neither party shall travel with the child outside of Canada without the written consent of the other party and such consent shall not be unreasonably withheld.
18. I encourage the parties to discuss and resolve the issue of whether or not costs should be awarded in this matter. If the parties are unable to come to an agreement on this issue, it will be decided by me. Mr. Mogg has been successful and is presumptively entitled to an award of costs. Failing an agreement, Mr. Mogg shall serve on Mrs. Borsoi his written submissions, limited to 2 pages in length double-spaced, excluding any offers to settle and a document detailing the specific costs he is seeking by February 17, 2017. Mrs. Borsoi shall serve on Mr. Mogg her written submissions in response, limited to 2 pages in length double-spaced, excluding any offers to settle, by March 3, 2017. Mr. Mogg shall have until March 10, 2017 to serve Mrs. Borsoi with his reply, limited to 1 page in length double-spaced. All submissions, with proof of service, can be submitted to my attention by facsimile transmission to my assistant, Ms. Melissa Speciale, at (905) 456-4829 by March 13, 2017.
Released: January 31, 2017
Justice S.V. Khemani