Court File and Parties

Court File No.: Woodstock D58/13 Date: 2018-05-28 Ontario Court of Justice

Re: Carol Ashley Alexandra Lynn Forler, Applicant And: Denise Lambkin, Lawrence Lambkin, and Brentt Martland, Respondents

Before: Justice S.E.J. Paull

Heard: March 27, 28, 29, April 17, 19, 2018

Reasons for Judgment released: May 28, 2018

Counsel

Grant Rayner — counsel for the applicant James Battin — counsel for the respondents, D. and L. Lambkin Brentt Martland — on his own behalf

PAULL J.:

Introduction

1Before the court is a long-standing and bitter custody dispute that was commenced by the applicant to vary the current order that has her son residing in the care of his paternal grandparents.

2This matter proceeded to trial over 5 days between March 27, 2018 and April 19, 2018.

Positions of the Parties

3The applicant and the respondent Mr. Martland are the parents of Liam born February 18, 2010. The respondents Denise and Lawrence Lambkin are the paternal grandparents.

4The order under review is the final order of August 14, 2013 of MacKenzie J., made pursuant to minutes of settlement, which included joint custody between Ms. Forler and the grandparents, with the child residing in the primary care of the grandparents. Ms. Forler was to have regular access including each Wednesday (from 9 AM to 7 PM), alternate weekends from Friday to Sunday, and on the other weekends on Friday from 3 PM to 7 PM and Sunday from 9 AM to 7 PM.

5With respect to Mr. Martland's access the order stated that he resided with his parents at the time and, as such"access does not require his contact with the child to be specified."

6Ms. Forler commenced a motion to change in June 2015 seeking an order for sole custody with primary residence, with access to the respondents on alternate weekends, a midweek visit, and with other times as agreed. This is the order she sought at trial, although she would have accepted the recommendation of the Office of the Children's Lawyer of shared custody between her and Mr. Martland, had Mr. Martland been in a position to have Liam in his care to that extent.

7Ms. Forler takes this position largely on the basis that she has addressed her historic drug issues, and that the current arrangements are not meeting the needs of Liam and that he is struggling with the number of transitions. She further argues that the grandparents have not diligently sought supports to address Liam's needs and that their hostility towards her has negatively impacted Liam.

8Mr. and Mrs. Lambkin filed a response to the motion to change in June 2015 seeking to maintain the primary residence of Liam in their care and varying Ms. Forler's access by removing the daytime access on Friday and Sunday of the alternate weekends when she does not have overnight access.

9At trial they took the position that the motion to change be dismissed and that the final order be maintained on the basis that there had not been a material change in circumstances.

10They take this position in part on the basis that Ms. Forler's circumstances and her ability to appropriately parent Liam have not improved since the making of the order and, as a result, Liam regularly states to them that he does not wish to see his mother.

11Mr. Martland filed a response supporting the position of his parents in their pleadings. At the time of trial, while he continued to support the primary residency of Liam with his parents, he sought alternate weekend access and a midweek visit for himself, and the same for Ms. Forler (which amounted to a reduction of her access under the current order).

12He takes this position on the basis that Liam is struggling with the current arrangements and often does not want to go to his mother's home. Further, he argues that his circumstances have changed in that he no longer resides with his parents. He now resides with his partner and her three children and seeks a fixed order for his access.

13The Office of the Children's Lawyer was also involved on behalf of Liam and a Report was filed dated April 4, 2016 prepared by clinical investigator, Elly Freund-Bell.

The Law

14The applicant brings this action pursuant to section 29 of the Children's Law Reform Act which reads as follows:

29. Order Varying An Order – a court shall not make an order under this Part that varies an order in respect of custody or access made by a court in Ontario unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child.

15The previous order is presumed to be correct and, as a result, any party seeking to vary an order has the initial burden of establishing that since the making of the order there has been a material change in circumstances that affects or is likely to affect the child. The action fails if the moving party is unable to establish a material change.

16In Gordon v. Goertz, [1996] 2 SCR 27 the court held that the change in circumstances must not have been foreseen or reasonably contemplated by the judge who made the original order. The change must relate to the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child. Change is not enough. The change must have altered the child's needs or ability of the parents to meet the child's needs in a fundamental way. Further, the change should represent a distinct departure from what the court could have reasonably anticipated in making the previous order.

17In L.M.L.P. v. L.S., [2011] SCC 64, the Supreme Court stated that the change must be substantial, continuing and that"if known at the time, would likely have resulted in a different order." The Supreme Court stated that it must limit itself to whatever variation is justified by the material change of circumstances.

18Continued conflict can result in a material change in circumstances if it results in a failure of the order to be in the child's best interests. Litman v. Sherman, 2008 ONCA 485, and Goldman v. Kudelya, 2017 ONCA 300.

19Ongoing conflict and actions running completely counter to the spirit of the custody order can be, in themselves, enough to constitute a material change: Zinck v. Fraser, 2006 NSCA 14, 22 R.F.L. (6th) 334 (N.S.C.A.). Worsening conflict can constitute a material change. Wreggitt v. Belanger; Hackett v. Sever, 2017 ONCJ 193.

20In Hornan, 2007 CarswellMan 421 (Man.Q.B.), the court held that there should only be a limited look at evidence predating the order to understand how it was made to determine the first stage of establishing a material change. However, once material change is shown, the court can engage in a full inquiry, including facts that predate the order. Segal v. Segal (2002), 26 R.F.L. (5th) 433 (Ont. C.A.).

21If a material change in circumstances has been established the court then embarks on a fresh inquiry into the best interests of the child, having regard to section 24 of the CLRA. In this fresh inquiry, both parties bear the evidentiary burden of demonstrating where the best interests of the child lie, and there is no legal presumption in favour of the custodial parent. Bubis v. Jones.

22Any application regarding custody or access must be determined by reference to what is in the best interest of the child pursuant to section 24 of the Act which reads:

24. (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4). 2006, c. 1, s. 3 (1).

Best interests of child

(2) The court shall consider all the child's needs and circumstances, including,

(a) the love, affection and emotional ties between the child and,

(i) each person, including a parent or grandparent, 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) any familial relationship between the child and each person who is a party to the application. 2006, c. 1, s. 3 (1); 2009, c. 11, s. 10; 2016, c. 23, s. 7 (1, 2); 2016, c. 28, s. 2.

Background and Evidence

23It is not disputed that when Liam was born on February 28, 2010 both parents were struggling with serious substance abuse problems. As a result the Oxford CAS apprehended Liam on April 19, 2010. He was returned to his mother's care on June 30, 2010 when she went to reside at Merilac Place in Kitchener, a maternity home for young mothers.

24In spite of Ms. Forler denying drug use at the time, following the birth a drug test of Liam was conducted at the hospital which tested positive for OxyContin and marijuana.

25As a result of continuing concerns the parties and the CAS consented to Liam being placed with the grandparents on August 28, 2010 under the terms of a supervision order. Liam was six months old when he went to reside with his grandparents and he has remained in their care since.

26The protection proceeding was ultimately resolved on status review by the order of Isaacs J. dated August 1, 2012. The order was made pursuant to section 57.1 of the CFSA and a statement of agreed facts, and included joint custody between Ms. Forler and the grandparents with Liam residing in the primary care of the grandparents, with access to Ms. Forler on alternate weekends from Saturday to Sunday, two times per week from 9 AM to 7 PM, and such other times as agreed.

27On August 14, 2013 MacKenzie J. varied the order as noted above to the current order under review.

28At the time of trial Ms. Forler was 28 years old and living in a rented three bedroom semi in Woodstock with her common-law partner of seven years, Mr. Cattrysse, and their two children, Claira age 4 and Emery age 1.

Ms. Forler's Evidence

29Ms. Forler's testimony can be summarized as follows:

1. She acknowledged that Liam was removed from her care because she was addicted to OxyContin.

2. She was involved in the methadone program starting in May 2011 and ending in December 2011.

3. She is currently employed as a cleaner for Robinsons and works the midnight shift during the week.

4. Her partner Mr. Cattrysse works days and they alternate caring for the children as required by their work schedules. When daycare is required she has the support of her mother and her best friend, Jessica Puffer.

5. The current schedule is not working well for Liam in part because it includes too many transitions and he has difficulty with change.

6. She is not aware of what supports are in place for Liam because the grandparents do not communicate with her and there has never been any joint decision-making. She communicates directly with third parties and she attends parent-teacher interviews on her own.

7. She has tried to reach out to the grandparents without success. She believes that they continue to judge her as the person she was eight years ago and hold her responsible for all the issues Liam has.

8. When Liam started attending school she asked to change the schedule for Wednesdays, because the order stipulated 9 AM to 7 PM, however, the grandparents refused.

9. Since October 2017 the access exchanges for Liam occur at Mr. Martland's home, where he lives with his girlfriend. She believes that Liam sleeps at the grandparents but generally spends the rest of his time with her or at Mr. Martland's.

10. Liam struggles behaviourally at school and has issues with aggression and distractibility. Liam has behavioural issues in her home but not to the extent that she and Mr. Cattrysse cannot manage them.

11. She feels she and Mr. Martland can and do communicate effectively when the grandparents are not involved. She would have supported the OCL's recommendation of a 50/50 shared parenting arrangement between her and Mr. Martland, if Mr. Martland had been in a position to do so.

12. Liam has a positive relationship with his sisters and has a strong relationship with Mr. Cattrysse.

13. Liam has missed the last 3 school field trips because consents were not provided by the grandparents and she was not aware of the field trips or given the opportunity to accompany Liam. As a result of Liam's behavioural issues he must be accompanied on any field trips.

14. She acknowledges she had occasionally in or about 2013/14 called Liam a "dork" or gently hit him with a rolled up newspaper, however, not when she was angry as alleged by the grandparents but in a playful way that both she and Liam engaged in.

15. She acknowledged that she and Mr. Cattrysse smoke marijuana occasionally but never in a caregiving role. She does not smoke cigarettes.

16. At the end of her visits with Liam he often will not want to go back to the grandparents and she needs to encourage him to go.

17. She acknowledged that Liam likely says the same thing to his grandparents and Mr. Martland about resisting visits with her, however, it is because he has difficulty transitioning and not because he really does not want to go. Once he arrives at her home he is excited to be there and settles in quickly.

18. If Liam was in her primary care he would continue to attend the same school.

19. She acknowledges receiving a letter in February 2018 from the respondent's alleging that Mr. Cattrysse had been spanking Liam and directing that it stop.

20. She disputes that Mr. Cattrysse spanks Liam and felt that the letter was only sent because she had made a referral to the CAS as a result of the disclosure Liam made to her that he had been assaulted by Mr. Lambkin previously.

Supporting Witnesses for Ms. Forler

30Jennifer Puffer testified on behalf of the applicant and confirmed that she and Ms. Forler are best friends and have known each other for many years. She has three children aged 10, 5, and 2 and they interact frequently with Ms. Forler. She has not observed any major issues in the home and never observed physical conflict or name calling involving Liam, but acknowledged that Liam can be quick to upset.

31When she has been present at the end of a visit she stated that Liam is upset at having to leave his sisters but she has not observed any extreme acting out behaviours. Ms. Puffer did acknowledge in cross-examination that she generally visits with Ms. Forler when Liam is at school.

32Ms. Forler's mother, Constance Frank, gave evidence on her daughter's behalf. She drives a taxi and stops in almost daily to see Ms. Forler and the children, usually in the evenings, and she often babysits for Ms. Forler when required.

33She testified to observing Liam many times in the home and has never observed any serious aggression or "meltdowns", and only minor issues between the siblings that are easily dealt with by talking to them. In cross-examination she acknowledged having the opportunity to observe Liam when it is time to leave and stated that other than sometimes being slow to get going or not being happy about having to leave, there were generally no issues otherwise.

34Mr. Cattrysse testified on behalf of Ms. Forler as follows:

1. He and Ms. Forler have lived together for 7 years and have 2 children together.

2. He has no criminal record and acknowledged smoking marijuana occasionally but never in a caregiving role.

3. He was aware of Ms. Forler's addiction to OxyContin and her involvement in the methadone program before they were together.

4. He has a close relationship with Liam and does a lot of activities with Liam because they both like being active outdoors.

5. He was aware that Liam had behavioural issues at school but he had not observed any extreme behaviours in the home and stated that Liam generally does not put up much of a fuss. When Liam does get excited or worked up he can be calmed down in a few minutes by talking to him.

6. He has been involved with drop offs at the grandparents' home and observed Liam appearing to get angry when he enters their home.

7. He acknowledged spanking Liam on one occasion 6 or 7 months ago but did not recall the specifics. He stated it was a single spank on the backside and that he does not support spanking Liam because it does not work. He talks to Liam and uses timeouts if discipline is required.

8. He acknowledged getting the letter from the grandparents in February 2018 regarding spanking but felt that it was in response to Ms. Forler calling the police when Liam stated that Mr. Lambkin had picked him up by the scruff of the neck and pushed him against the wall.

Evidence of the Grandparents

35Ms. Lambkin and Mr. Lambkin were married in 1997 and have no children together, and Mr. Martland is her child from a previous marriage. She and Mr. Lambkin reside with Liam in a three-bedroom semi they purchased last year, along with Ms. Lambkin's brother Brian Greene.

36Ms. Lambkin testified to the following:

1. Liam has lived with them as a result of CAS intervention since 2010.

2. The current access arrangements are not working for Liam. Liam consistently acts out aggressively and says he does not want to go to access with his mother and they have difficulties getting him to go.

3. Even in 2013 after the final order was made Liam would get upset and say he did not want to go to his mother's house.

4. Liam gets angry with his grandparents when he returns from access and has hit the walls. These angry outbursts last anywhere from ½-1 hour.

5. The difficulties and challenging behaviour of Liam have gotten worse since the making of the order in 2013, and he regularly has "meltdowns" around access with his mother. She feels that forcing him to go to access with his mother in the circumstances is abusive.

6. Since Liam has been in school, Ms. Forler's Wednesday access changed to 4 PM to 7 PM, and she acknowledged refusing to make up the time for Ms. Forler when she requested it.

7. Liam regularly exhibits serious behaviours at school including hitting and aggression, and Liam has been suspended several times. Since September 2017 she estimated that Liam has been suspended three times and been removed from the classroom and sent home a further seven times.

8. She has had several discussions with the school seeking an IEP for Liam but this was refused.

9. In the past she informed Ms. Forler of what plans they had regarding Liam however Ms. Forler does not follow up and she eventually gave up trying to communicate. She cannot contact Ms. Forler as she does not have her phone number and only has Ms. Forler's mother's number. Ms. Forler does not attempt to contact her.

10. Liam had the benefit of an occupational therapist through the school to deal with his sensory issues and behaviours.

11. She feels that many of Liam's issues are related to the environment and treatment Liam receives in Ms. Forler's home. She has repeatedly reported her concerns to CAS about Ms. Forler, but nothing was done.

12. The current arrangements are not working for Liam and he needs to spend less time with Ms. Forler not more.

13. Liam has a positive relationship with Mr. Martland and Liam should transition more toward spending time with him, and that he should have more rights regarding Liam because he has "stepped up".

37When questioned about what measures she has taken to address Liam's worsening behaviour Ms. Lambkin stated they sought counselling at OECYC and utilized services there for several months in 2013/14. This stopped when the court proceeding started because the counsellor"backed off like everyone else" when she became aware of the litigation. She stated that any supports they have attempted to engage for Liam have refused to become involved when they became aware that the matter was in court.

38Ms. Lambkin recalled that in approximately January 2016 they made arrangements for Liam to see Dr. D'Souza, a pediatrician. They went to him once but did not follow up with service. Liam now has an appointment with another pediatrician, Dr. Kerr, on April 24, 2018 to address the issues of Liam's anxiety, aggression, and sensory issues. She stated that Liam exhibits these behaviours at home and school and they are getting worse.

39Mr. Lambkin testified regarding the allegation that in February 2017 he assaulted Liam. Mr. Lambkin stated that he was getting Liam ready for school and that Liam became defiant and refused to go, and went to kick a large china cabinet. He was concerned that Liam would hurt himself and grabbed him by the shoulder and pulled him back then held him against the wall for 5 to 10 seconds to calm him down. He felt his actions were protective of Liam, however, in cross-examination he acknowledged that in hindsight it may have been traumatizing to Liam.

40Mr. Lambkin acknowledged a historic assault charge against Mr. Martland in 2003, when Mr. Martland was 15, which resulted in red marks on Mr. Martland's neck, but he denied hitting him.

41Mr. Lambkin also testified as follows:

1. Mr. Martland deals predominantly with Liam's school but he also shares in this responsibility.

2. He tries to maximize time that Liam has with Mr. Martland, but only if it is healthy, and that they rely on Mr. Martland's girlfriend to"supervise and monitor" his access.

3. He is extremely concerned with how Ms. Forler treats Liam. In the past he has witnessed Ms. Forler call Liam a "dork" and "dink" and feels this is abusive and traumatic to Liam because he takes things seriously.

4. Liam has repeatedly stated that he does not want to go to his mother's, and cries in the car on the way over.

5. He did acknowledge that he has witnessed transitions without issue and that if there is a special occasion Liam may be reluctant to leave Ms. Forler's.

6. He feels strongly that the current access by Ms. Forler is emotionally and psychologically abusive and damaging to Liam.

7. He and Ms. Lambkin communicate very little with Ms. Forler because they do not have her phone number, but he agreed it would be better if they could communicate and try to troubleshoot issues together.

8. Ms. Forler's access should be more restricted because he does not believe her home is a healthy environment. He believes her access should be supervised in some manner, but not by Mr. Cattrysse or her mother because he does not trust them.

9. He stated that Liam does not transition well from access at Ms. Forler's and this disruption lasts approximately 5 minutes before he settles.

10. In cross-examination he said his only goal is to"limit trauma" to Liam caused by Ms. Forler because when he comes home from access with her he"exhibits extreme signs of trauma".

11. He has made numerous efforts to get supports for Liam but no one is prepared to get involved when they become aware that there is litigation.

42Ms. Lambkin's brother Brian Greene testified that he has lived with his sister, Mr. Lambkin, and Liam since approximately August 2017. He testified as follows:

1. He has always observed Liam's grandparents to be caring, loving and supporting of Liam and has never witnessed any physical discipline. He has observed Liam to be comfortable with both his grandparents.

2. He has observed Liam not wanting to go to Ms. Forler's for access on two occasions. The first was in September 2017 when Liam was adamant about not wanting to go. His grandparents insisted he go and he calmed down and eventually went. The second was during Christmas 2017, however, Liam was encouraged to go and settled down and went. He did not recall any other occasions.

Evidence of Mr. Martland

43Mr. Martland testified on his own behalf as follows:

1. He has difficulty getting Liam to go to Ms. Forler's and Liam will throw fits and roll on the floor. Liam does not like change and needs a routine. If there are unexpected changes Liam will have a fit.

2. He acknowledged he is not in a position to have Liam reside with him full time or on a shared custody basis, but he seeks alternate weekends and Thursdays during the week.

3. Currently he has Liam on alternate weekends and Thursdays. He picks Liam up from school every day but Wednesday, when Ms. Forler picks him up, and has Liam until he returns him to his parent's home between 7:30 and 8 PM.

4. For approximately 5 months he has lived with his girlfriend, Ashley Murray and her three children, and Liam gets along well with all of them.

5. He acknowledged smoking marijuana nightly to help him sleep but never while in a caregiving role.

6. He generally gets along well with Ms. Forler and they do not argue in front of Liam. They communicate relatively well and in a civil way. About six months ago he suggested to Ms. Forler that she drop Liam off at his home so he does not have to go to his parent's home to pick him up afterwards.

7. Liam behaves pretty well when in his care but does have occasional meltdowns.

8. He does not agree that Ms. Forler's access needed to be supervised, and acknowledged that Ms. Forler is doing better now than she was when the order was made. However, did not believe it was in Liam's best interest to reside with her full-time.

9. He acknowledged having Ms. Forler's address, cell phone number, her mother's phone number, and Mr. Cattrysse's cell number, and that he was never told by Ms. Forler not to give her number to his parents.

Professional Evidence

44Jennifer Kittmer, an occupational therapist for the Thames Valley Children's Centre testified on behalf of the grandparents. She is employed as a health therapist/consultant in schools and provides occupational therapy as needed.

45Ms. Kittmer confirmed that she was involved with Liam between June 2016 in February 2017 when his school made a referral concerning his difficulty regulating at times and with concerns for his sensory and fine motor skills. She observed Liam in the classroom and consulted with his teachers to develop strategies to assist him in functioning at school. She spoke by phone to Ms. Lambkin and had no contact with Ms. Forler. She confirmed in cross-examination that Ms. Lambkin did not advise her that Ms. Forler had joint custody of Liam, and as a result she had no input from Ms. Forler.

46Allison Cox-Wilson testified on behalf of the grandparents. She has been Liam's grade 2 teacher at Springbank Public School since September 2017. She testified as follows:

1. Academically Liam is strong in math but struggles with literacy.

2. Socially he has few friends because of his behaviours. He is very aggressive at times with other students and teachers and his outbursts involve kicking, throwing and destroying property including chairs, and kicking and tipping desks. He has threatened and has had hands-on other students and as a result his peers are frightened of him.

3. As a result of his behaviour there is a safety plan in place for Liam at school. Since September 2017 his behaviours have required him to leave the classroom at least two times per week and he has been sent home numerous times.

4. As a result of his behaviours the Program Development Team (PDT) through the School Board became involved in November 2017 and several reports were filed confirming the significant concerns noted with Liam's behaviour and his ability to self-regulate. The team met with the grandparents and Mr. Martland on one occasion and with Ms. Forler on a separate occasion.

5. There continues to be significant concerns and frequent outbursts, however, Liam is able to calm somewhat better than at the beginning of the year. However, as of last week he was no longer allowed out in the schoolyard because of his aggressive behaviour.

6. She has spoken to the grandparents about strategies and felt they were receptive. However, one of the recommendations for Liam was for home reading which she felt the grandparents had not followed through with because the reading log has only been filled in a handful of time since the beginning of the year, and most of the time the homework does not come back when required.

7. She has not formally met with the parents or grandparents since the PDT meetings, however, she speaks with Ms. Forler and Mr. Martland frequently when they pick up Liam from school.

8. She observes no difference in Liam's behaviour depending on who picks him up from school.

9. Liam's missed the last three field trips. Liam is not able to go on field trips unsupervised because of his behaviour and the consent forms directed to the grandparents were not signed for the last three trips in spite of numerous reminders she put in Liam's planner.

Office of the Children's Lawyer Report

47On September 28, 2015 an order was made by Carr J. requesting the involvement of the Office of the Children's Lawyer (OCL). The OCL became involved and the matter was assigned to clinical investigator, Elly Freund-Bell on December 17, 2015, and she provided the parties with her written Report dated April 4, 2016.

48Ms. Freund-Bell has a Masters in Social Work, has been on the clinical panel for the OCL for 19 years, and estimated she has been involved in over 400 cases during that time.

49During her investigation she interviewed each of the parents on two occasions and observed Liam in Ms. Forler's home with Mr. Cattrysse and Claira present, and in the grandparents' home with Mr. Martland (where he lived at the time). She met privately with Liam on one occasion.

50She reviewed the court documents and received information from numerous collaterals including:

1. Dr. Fuller, Clinic 461 (methadone clinic).

2. Janet Ionson, parent resource visitor, Oxford County Public Health.

3. Jennifer Schneckenberger, clinical supervisor for Oxford-Elgin Child and Youth Centre (OECYC).

4. Woodstock and Area Community Health Center.

5. Thames Valley District School Board.

6. Children's Aid Society of Oxford County.

7. Woodstock Police Service.

51Ms. Freund-Bell noted the following during her investigation:

1. All the parties agreed transitions were difficult for Liam.

2. The grandparents sought to maintain Liam's primary residence with them and to reduce Ms. Forler's access because there were too many transitions which were difficult for Liam. Mr. Martland shared this position.

3. Ms. Forler acknowledged she and Mr. Martland had been unable to care for Liam when he was a baby and that the grandparents have taken good care of him, but that her relationship with the grandparents was difficult.

4. Ms. Forler was of the view she had addressed the concerns and was stable with her current partner and child, and in a position to resume primary care of Liam.

5. She reviewed information from Oxford County Public Health that confirmed Ms. Forler's involvement with the Healthy Babies Healthy Children program starting in November 2013. The program facilitators noted that Ms. Forler and Mr. Cattrysse were in tune with their child Claira's needs, and that Liam was observed on two occasions with them with no concerns noted. The program spoke very positively about how Ms. Forler was doing with her baby and she was discharged from the program in October 2015.

6. She reviewed information from OECYC. The grandparents attended the walk-in program with Liam on February 4 and April 8, 2013 and again on April 22, 2014 and reported concerns with Liam's behaviour following access with Ms. Forler. A file was opened on April 22, 2014 and in-home services were provided to the grandparents focusing on assisting Liam to regulate his emotions. The program recommended that the grandparents contact Dr. Ismail, a psychiatrist, for Liam but they did not follow through. The file was closed in September 2014.

7. During her investigation the allegation was made that on February 1, 2016 Liam reported that his mother grabbed his neck and pushed him down to the floor where he hit his mouth which left a bruise on his upper lip. The CAS investigated and child protection worker Mary Sue Bernardo reported on March 10, 2016 that the allegations of physical abuse were not verified. However, the Report noted that Ms. Bernardo's major concern was that Liam was"being torn up by the contentious custody/access confrontation" between the grandparents, father and mother.

8. The grandparents advised her during the investigation that generally Mr. Martland makes the rules regarding Liam.

52Ms. Freund-Bell concluded that both parents had matured and attended programs to become better parents and to address their addiction issues, and that there were no concerns about either parent's ability to safely parent Liam. She recommended Ms. Forler and Mr. Martland have joint custody with a 50/50 parenting schedule on a 4/4 or 5/5 day basis, with the grandparents continuing to play a supportive role when needed. She also recommended that none of the parties, their partners, or the grandparents speak negatively about the other in Liam's presence.

Credibility and Weight of OCL Report

53The grandparents filed a dispute of the OCL Report, and their evidence outlined their concerns with the Report as follows:

1. The clinical investigator did not look at all the evidence or fully investigate all the concerns they raised that illustrated that Liam did not want to go to his mother's or that he suffered from a lack of care and emotional abuse when he was there.

2. The clinical investigator refused to investigate their concerns in detail and refused to review their videos of Liam and text messages which they believed substantiated their concerns with Ms. Forler.

3. Mr. Lambkin suggested that Ms. Freund-Bell was prejudiced against them because the first time they met her she asked them why they did not step back and let the parents care for Liam. He felt this question established her bias.

54The Report of the Office of the Children's Lawyer is not an expert report such as might be had under s. 30 of the Children's Law Reform Act. The author of an OCL report is a fact finder. Section 112 of the Courts of Justice Act does give the author of the report, on behalf of the Office of the Children's Lawyer, the power to make recommendations on the resolution of the issues but the recommendations are only a starting point not the last word. Ganie v. Ganie, 2015 ONSC 6330.

55The weight that the court assigns to the clinical investigator's recommendations depends on the nature and extent of the investigation and the facts upon which the assessor based her recommendations. The court needs to examine how the assessment was conducted, including the process used, how many visits there were, and whether the standard assessment guidelines were met, when determining what value if any to place on the assessment and its recommendations. Ganie, supra, para. 20.

56The Court of Appeal in Woodhouse v. Woodhouse confirmed that an assessor's evidence was not determinative of the issues before the court, but was merely one piece of the evidence for the court's consideration. In other words, it is up to the court, not the assessor, to determine the facts.

57With respect to the OCL Report and Ms. Freund-Bell's testimony I have carefully considered the observations that she made during her investigation, and the facts provided to her by collateral sources, which include several professional collaterals whose personal knowledge and impartiality lend credence to the information they provided.

58I found Ms. Freund-Bell's evidence to be clear, convincing, and cogent. She conducted a thorough investigation which included contacting the appropriate collaterals. I find that the evidence that was provided by the parties or on their behalf has not cast substantial doubt on the accuracy of her observations or the information she received from collateral sources.

59I was not persuaded by the grandparents that the OCL investigation did not look at all the evidence or fully investigate the circumstances. They allege that Ms. Freund-Bell did not review their videos of Liam's reactions around access and texts between the parties that they believed supported their position.

60Unfortunately, these allegations regarding the videos and texts were not put to Ms. Freund-Bell during her examination. However, Ms. Freund-Bell noted in her Report that the parties agreed that Liam exhibits significant difficulties in transitioning, and she clearly accepted this as a primary concern and recommended a regime which sought to limit the number of transitions. In this context reviewing videos of Liam during these episodes would not have been of assistance as she accepted that the behaviour was occurring.

61The grandparents did not seek to enter any videos or text messages into evidence at trial that they allege the OCL refused to consider. Only a series of "memes" which Ms. Forler posted on Facebook, which I accept were posted because she thought they were funny in a forum where mothers support each other. The only other document the grandparents filed was a Facebook post by Ms. Forler outlining what she acknowledged was a derogatory comment about Ms. Lambkin. While inappropriate, this was of little assistance to the issues before this court as it was dated June 22, 2013, before the order under review was made which all the parties consented to.

62I also do not accept that Ms. Freund-Bell was biased as alleged by Mr. Lambkin based on the comment she purportedly made when she first met them. Once again this allegation was not put to Ms. Freund-Bell during her examination. However, even if Ms. Freund-Bell did ask why the grandparents did not step back and let the parents care for Liam, I take it as a simple and appropriate question designed to explore the issues that form part of the investigation she was mandated to undertake, and not as evidence of some inherent bias on her part against the grandparents.

63Overall, the parties have not successfully challenged or discredited the factual basis of the OCL Report. I accept the evidence of Ms. Freund-Bell in her testimony and in her Report regarding the circumstances of the parties and Liam at the time. However, the Report was two years old at the time of trial and Ms. Freund-Bell has not had any further contact with the parties or Liam since then.

Statements Made by Liam

64The respondents seek to rely on various statements made by Liam to third parties for the truth of their content. All the parties conceded the necessity and threshold reliability of the statements of Liam, and consented to the statements going in for the truth of their content.

65Specifically the grandparents and Mr. Martland alleged that Liam disclosed an assault by Ms. Forler on February 1, 2016, and they further allege that on February 2, 2018 Liam disclosed to Ms. Lambkin that Mr. Cattrysse was spanking him.

66Mr. and Mrs. Lambkin, and Mr. Martland testified that on February 1, 2016 after Liam had returned home from an access visit at Ms. Forler's, the family was in the living room setting up a board game when Liam spontaneously remarked that the previous day his mother had grabbed him by the neck and pushed him to the ground face first causing his mouth to hit the floor.

67They observed a small abrasion on Liam's inside lip that they had not observed previously. The following day Mr. Lambkin and Mr. Martland took Liam to see a health nurse where Liam repeated the statement. Mr. Lambkin and Mr. Martland then took Liam to the CAS office where interviews were conducted with the police present. Ms. Forler denied the allegations and stated that Liam was having a tantrum and threw himself to the floor and bumped his mouth in the process.

68The allegations were not verified by the CAS and the police confirmed it would not be proceeding with any criminal investigation.

69With respect to the alleged assault by Ms. Forler, I am of the view that the statement of Liam is not sufficiently reliable to establish that the assault occurred. While I accept that the respondents are being truthful that Liam made this statement to them, I am not convinced that his statement is ultimately reliable in establishing that he was assaulted by his mother.

70While the bruise on Liam's lip provides some corroboration of Liam's account, the bruise is equally consistent with the explanation provided by Ms. Forler that Liam was having a tantrum and threw himself to the floor. All the parties agree that Liam at various times has "meltdowns" and has a great difficulty regulating his emotions. This is also consistent with the evidence of his behaviour at school where he continues to exhibit significant dysregulation including aggression towards his peers and staff.

71With respect to the February 2, 2018 disclosure, Ms. Lambkin testified that she and Liam were sitting on the couch after school. It was not a day that Liam had access with his mother, and Liam spontaneously stated that Mr. Cattrysse spanked him and it hurt.

72The position of the respondents is that this comment by Liam supports the proposition that Mr. Cattrysse was continuing to use spanking as a punishment. On the evidence before the court I am not prepared to make that finding. Mr. Cattrysse was candid in his testimony that he had spanked Liam on one occasion several months previously but it had not continued because he acknowledged it was not appropriate or effective.

73The disclosure Liam made to Ms. Lambkin, while spontaneous, was not specific in terms of time, circumstance, or frequency, and as such little weight can be assigned to it in terms of establishing ongoing physical discipline by Mr. Cattrysse.

74I reach the same conclusion with respect to Ms. Forler's allegation that Mr. Lambkin assaulted Liam by holding him by the scruff of the neck against the wall sometime in early 2017. Joanna Ruksc, a child protection worker for Oxford CAS, testified that she investigated the allegation and interviewed Liam in June 2017. Liam confirmed to her that his "Papa" picked him up by the scruff of the neck and put him against the wall, but that it does not happen anymore. Ms. Ruksc did not verify the concern and no further action was taken largely because Liam was not able to provide any context or detail.

75Mr. Lambkin acknowledged the incident and testified that he held Liam for a few seconds against the wall to prevent him from hurting himself when Liam became dysregulated and began kicking a china cabinet. Like Mr. Cattrysse, Mr. Lambkin's explanation was candid that an incident occurred but it was not an assault as alleged.

76I accept Mr. Lambkin's explanation of the event, and I view both this and the incident of Mr. Cattrysse spanking Liam to be isolated incidents that they both acknowledged could and ought to have been handled more effectively. There is no other current evidence to suggest that these are part of a pattern of behaviour on either of their parts.

77The most important concern the court has with the reliability of any statements made by Liam, particularly to his parents and grandparents is that they are made in the context of the high conflict that exists between the parties, particularly the grandparents and Ms. Forler. This issue of the conflict between the parties and the hostility the grandparents exhibit towards Ms. Forler and its impact on Liam's best interests will be outlined further below, however, it has the result of rendering his out-of-court statements highly unreliable in my view.

78The only other evidence this court has from Liam comes from the clinical investigator, Ms. Freund-Bell from her interactions with him in early 2016. During a private interview with Liam at the Woodstock Public Library she noted that he was difficult to focus and was largely unresponsive to questions about his parents' homes. Liam spontaneously told her he does not like his mom because she is mean. Ms. Freund-Bell states in her report that when Liam was asked"what 'mean' meant and he said his daddy said mom is stupid. Liam said he gets mad when he goes from his dad's house to his mom's house."

79Further, during Ms. Freund-Bell's observational visit with Liam at his mother's there was some discussion about Liam getting mad when it is time to go back to his grandparents. Liam stated that his Nana does not want him to stay at his mom's a lot but he would like to stay at his mom's a lot.

80Based on her interactions with Liam and his caregivers Ms. Freund-Bell concluded that Liam was aware of and impacted by the conflict between the grown-ups. Further, Ms. Freund-Bell makes reference in her review of collateral information from the CAS of its investigation into the February 2016 allegation that Ms. Forler had assaulted Liam. The Society worker Mary Sue Bernardo, did not verify the incident, however, noted to Ms. Freund-Bell that her major concern was that Liam was being"torn up by the contentious custody/access confrontation" between the parties.

81Overall, what all the statements by Liam indicate to me, including his repeated comments of not wanting to attend or return from visits, are that he has difficulty transitioning and that he is aware of the acrimony between the grandparents and Ms. Forler which only makes these transitions more difficult for him. They do not, in my view, support the proposition that he does not enjoy his time with all his caregivers, and do not establish that he is being physically or psychologically abused by his mother as alleged by the grandparents.

Assessment of Professional Witnesses

82I accept the evidence of Jennifer Kittmer and Allison Cox-Wilson. Their evidence was clear, convincing, and cogent. There are third-party professionals with no motive to lie, both of whom had the opportunity to make the observations they did.

83Ms. Kittmer is an occupational therapist who worked with Liam through the school year between the spring of 2016 and early 2017. During this time she had numerous contacts with Liam at school and was able to observe his behaviours. Her observations of Liam's behaviour were consistent with those observed by the teacher, Ms. Cox-Wilson, and the parties.

84Similarly, Ms. Cox-Wilson has been Liam's full-time grade 2 teacher since September 2017. In that capacity she has had ample opportunity to observe Liam's behaviour on a day-to-day basis and her observations were entirely consistent with those of Ms. Kittmer.

Analysis

Material Change in Circumstances

85A motion to change custody or access under section 29 requires two distinct stages. Although the findings may be intertwined there must be a material change in circumstances that necessitates a change to the existing order. Secondly, if a material change is found, the court must determine what order will best serve the interests of the child in the changed circumstances.

86With respect to the first stage, there is no doubt on the evidence before the court that there has been a material change in circumstances. It is demonstrable on the evidence that Liam is doing very poorly as a result of the current custody and access arrangements, based on the problematic relationship between his caregivers and the lack of a concerted effort on their part to address his issues.

87All the parties agreed in their testimony, in spite of their positions in this litigation, that the current arrangements are not serving Liam's needs and that he is experiencing significant struggles, particularly around access transitions. This situation is clearly significant and long-standing. Ms. Lambkin stated that the difficulties began immediately after the current order was made in 2013, and that the situation for Liam has only gotten worse since then. Mr. Lambkin went much further in his testimony stating that the current arrangements for access are emotionally and psychologically damaging for Liam and that Ms. Forler's access should be reduced and supervised. Both were strongly of the view that Ms. Forler needed less time with Liam rather than more.

88In spite of the order for joint custody, the evidence of all parties was equally consistent with respect to the nonexistent communication and difficult relationship between Ms. Forler and the grandparents, and that they had no ability to work together even though it was clear that Liam was struggling with both his transitions between homes and with his regulation at school.

89The change in circumstances is also evidenced by the lack of outside supports for Liam that have been put in place by the parties, particularly the grandparents who have Liam in their primary care.

90Ms. Lambkin and Mr. Lambkin stated that they have always advocated for supports for Liam but have been refused when any third party becomes aware of the litigation. Ms. Lambkin testified that she sought supports for Liam through OECYC and had in-home support from Natalie Daniel for several months but that a full assessment was not completed because Ms. Daniel withdrew, like all other supports, when she became aware of this court case.

91However, the Assessment and Treatment Plan from OECYC which was filed in evidence, and the collateral information received by Ms. Freund-Bell from OECYC suggest otherwise. Ms. Freund-Bell received information from OECYC that a file was opened and services provided following the grandparents attendance on April 22, 2014. Support services were provided until the file was closed in September 2014.

92The current order was made on August 14, 2013, and Ms. Forler's motion to change was not issued until June 2015. There was no proceeding after August 2013 until June 2015 and could not have been the reason the services were discontinued as alleged by the grandparents.

93Further, the report from OECYC states that Liam was to be seen by Dr. Ishmal, a psychiatrist, at Woodstock General Hospital. However, Ms. Freund-Bell received information from the program during her investigation in 2016 that the grandparents did not follow through with this.

94When questioned during cross-examination on what resources they had engaged for Liam, Ms. Lambkin acknowledged that OECYC may have suggested a pediatrician but that she could not recall contacting Dr. Ishmal. Ms. Lambkin testified that she took Liam with Natalie Daniel to see a pediatrician named Dr. Mohammed but did not pursue service from him as she did not find it helpful.

95The OECYC report also references that resources regarding FASD and St. Michael's Hospital in Toronto as an option for an FASD assessment were explored with the grandparents. There is no evidence that this was followed through with by the grandparents.

96Ms. Lambkin testified to making other arrangements for Liam to see a pediatrician. She had difficulty recalling specifically when, but thinks it may have been in January 2016 when she took Liam to see Dr. D'Souza. No assessment was completed and they only saw Dr. D'Souza for one consultation because she stated he found out about the court case and refused to continue. Mr. Lambkin testified to this also. However, this was not consistent with further testimony of Ms. Lambkin during cross-examination that it was Dr. D'Souza who refused to see them further because they had missed the second appointment because Mr. Lambkin's father had passed away. She then stated that Dr. D'Souza had recommended a psychologist for Liam but they did not pursue it because the fee was $2500.

97Ms. Lambkin testified that she sought other pediatricians but could not recall the particulars other than that they have repeatedly tried for two years to get support for Liam but have been continually "stonewalled" because of the litigation. She did testify that they now had an appointment for Liam with a pediatrician on April 24, 2018.

98I do not accept that the grandparents have taken all appropriate steps to seek or follow through with supports for Liam that would have been reasonable given their view that Liam was being abused and traumatized by his mother and experiencing increased dysregulation at home and at school as a result. They did not follow through with Dr. Ishmal, Dr. Mohammed, Dr. D'Souza, the psychologist recommended by Dr. D'Souza, testing for FASD, or engage additional supports, and only secured another appointment with a pediatrician in April 2018 during the trial of this matter.

99The grandparents also took the position that Liam's problems at school escalated before and after visits with his mother. The evidence from the teacher and the occupational therapist does not support this finding. Ms. Cox-Wilson and Ms. Kittmer confirmed the behaviours were occurring regularly at school, but they testified to no specifics on timing of when the behaviour was escalated to support the grandparents' contention. Ms. Cox-Wilson stated that Liam was equally excited to see whoever picked him up from school whether it was his mother or father.

100Further, the parties have not been diligent with respect to following through with issues at Liam's school. All the parties did attend meetings with the Program Development Team that was involved in November 2017 to deal with Liam's behavioural issues, however, there was little evidence of further follow-up since that time.

101Ms. Wilson-Cox confirmed she has not formally met with any of the parents or grandparents since those meetings, but speaks to them regularly when they pick Liam up from school. Given Liam's frequent suspensions and the recent decision by the school not to permit Liam into the playground because of his aggression, the parties' responses have been inadequate.

102Further, Ms. Wilson-Cox expressed concern given Liam's struggles with literacy that the grandparents were not following through with the reading log for him. Ms. Lambkin disputed this on the basis that they do complete the reading with Liam but they forget to fill in the log. I do not accept this as Ms. Wilson-Cox also testified that most of the time Liam's homework does not come back when required. Liam also missed the last three field trips because the grandparents did not return the consent forms in spite of numerous reminders she put in his planner.

103However, the parents must also share some of the responsibility for these failings. Ms. Forler and Mr. Martland speak to the teacher regularly when they pick up Liam and he spends significant time with them after school and on weekends and they should both be ensuring that Liam's homework is done and that the reading log is completed when he is with them.

104Liam's caregivers, particularly the grandparents who have Liam in their primary care, have not done all that would be reasonably expected to deal with his academic and behavioural issues.

105Overall, it is clear based on Liam's worsening behaviour, the lack of any concerted response by the caregivers, and the acrimony between the caregivers, that there has been a material change in circumstances that justifies a review of the present arrangements. These unfortunate circumstances have been significant and long-lasting, and are having a material and negative impact on Liam.

Best Interests of the Child

106With respect to which primary residence would be in Liam's best interest, the plans of both Ms. Forler and the grandparents have merit.

107However, when considering Liam's best interests pursuant to s.24 of the CLRA his emotional attachment in connection with his relationship with all the parties (s.24(2)(a)), the length of time he has lived with his grandparents (s.24(2)(c)), the ability and willingness of the parties to provide Liam with guidance, education, and to address his special needs (s.24(2)(d)), and the permanence and stability of each of the homes (s.24(2)(f)), are all highly relevant.

108With respect to the grandparents, Liam has been in their primary care for all but the first several months of his life and I accept that he has a positive relationship with them. I accept the evidence of Ms. Lambkin's brother, Brian Greene, who has lived in their home for the last several months, that he has observed a loving and caring relationship between Liam and his grandparents. This is consistent with the observations of Ms. Freund-Bell and was not disputed by Ms. Forler.

109I am equally convinced that both Ms. Forler and Mr. Martland also have a positive relationship with Liam.

110Mr. Martland's circumstances have changed in that he no longer resides with his parents. The lack of any of specified access for him in the current order was based on him residing there.

111He is currently having access on Thursdays and alternate weekends, although it was unclear on the evidence how many of these were overnight visits. Mr. Martland also generally picks up Liam from school the other days of the week when Ms. Forler is not exercising access. Ms. Lambkin spoke positively of her son's relationship with Liam and suggested that he has "stepped up" and addressed his issues, and that it would be appropriate for him to have more decision-making authority and for Liam to transition toward spending more time with him. Mr. Lambkin testified that Mr. Martland is primarily responsible for Liam's school but that he is also involved. These characterizations were supported by Ms. Freund-Bell and not disputed by Ms. Forler. Ms. Forler supported the OCL recommendation that Liam be in the joint custody of her and Mr. Martland with a shared residential arrangement. It was Mr. Martland who stated he was not in a position to do this.

112Ms. Forler's plan for primary care of Liam would permit him to reside with his two siblings and would not require him to change schools. I accept the evidence of Ms. Forler, which was consistent with the observations of Ms. Freund-Bell, and her mother Connie Franks who attends the home regularly, that Liam has a positive and close relationship with his mother, Mr. Cattrysse, and his siblings.

113I accept Ms. Forler's evidence that Liam settles in quickly when he arrives at her home and that when he does experience dysregulation that she and Mr. Cattrysse are able to deal with it. This is consistent with the observations and collateral information received by Ms. Freund-Bell, who noted no concerns. There was no evidence that Liam presents at school as resistant to go with his mother when she picks him up. Liam's teacher, Ms. Wilson-Cox testified that she observed that Liam reacts equally positively regardless of whether his mother or father pick him up from school.

114Also outlined in the collateral information Ms. Freund-Bell received as part of her investigation, Ms. Forler and Mr. Cattrysse positively engaged with service providers and supports regarding their other child Claira, and the CAS had no concerns or ongoing involvement with them when she prepared her Report. Since that time Ms. Forler and Mr. Cattrysse have had another child, Emery in 2017 and there is no evidence that the CAS has had any concerns with their parenting. I accept that Ms. Forler has addressed the historic concerns and is able to parent Liam safely and appropriately.

115I have not accepted the allegations of the grandparents that Liam suffers physical and emotional abuse and trauma at the hands of Ms. Forler. These allegations are not supported by the evidence. Liam's resistance and behaviour around access are more indicative, in my view, of his sensory issues generally and his difficulties with transitions which are only made worse by the negative relationship between his caregivers.

116While I have not accepted the claims of the grandparents regarding Ms. Forler, their serious allegations, primarily Mr. Lambkin's, establish a level of hostility towards Ms. Forler that reflects an inability by the grandparents to put Liam's needs ahead of their own need to discredit her. This is a significant concern to the court particularly when combined with the grandparents' failure to put sufficient supports in place to address Liam's behavioural challenges.

117While Ms. Forler had negative comments to make about the grandparents, she acknowledged in her testimony at trial and to Ms. Freund-Bell that the grandparents love Liam and took good care of him at a time when she was not able to do so.

118By contrast, the grandparents were unable to say anything positive about Ms. Forler with respect to Liam, or acknowledge that she had made any significant gains since Liam was removed from her care in spite of the positive collateral reports received by Ms. Freund-Bell, and that she is parenting her 2 other children successfully without CAS involvement.

119Not only did the grandparents refute that Ms. Forler had made positive gains, but they also resisted any acknowledgement in their testimony that their attitude towards Ms. Forler could play any part in the difficulties between them, or the behavioural challenges experienced by Liam around access. I agree with the conclusion of Ms. Freund-Bell and the CAS worker Ms. Bernardo, that Liam is aware of the acrimony and that he is being "torn up" by it. In the circumstances of the grandparents' extremely negative attitude towards Ms. Forler it is not surprising that she does not make more of an effort to communicate with them.

120All the parties share in the responsibility for the state of communication between them, but the level of hostility and acrimony is primarily on the part of the grandparents, who have maintained an extremely negative view of Ms. Forler that is not reasonable in the circumstances or supported by the evidence.

121The grandparents testified to concerns for Ms. Forler and Mr. Cattrysse's admitted use of marijuana, but appeared to have no concern for their son's use, which he testified was daily. The parents both acknowledge marijuana use while not in a caregiving role, and while this is not condoned by the court, there is no evidence that their use is in the presence of Liam or that it has any negative impact on their parenting ability. The evidence of occasional marijuana use by Ms. Forler is not helpful for the purpose tendered by the grandparents, that is--to establish that Ms. Forler is not a fit parent, but does reflect the inability of the grandparents to see past Ms. Forler's history, as they are able to do with their son.

122It is clear the grandparents continue to hold Ms. Forler responsible for all the issues experienced by Liam and are not willing or able to move past this position.

123The grandparents, particularly Mr. Lambkin, were strongly of the view that Ms. Forler is abusive to Liam and that Liam's behaviours and aggression are getting worse because of the physical violence, emotional abuse and name-calling they allege exists at Ms. Forler's home. Not only is this portrayal of Ms. Forler inconsistent with the evidence as I have found it, but inconsistent in my view with their own claim of supporting that the current joint custody with liberal and unsupervised access to Ms. Forler be continued. I am unable to reconcile their position with their strongly held view that Liam is not safe in Ms. Forler's care.

124I also have difficulty reconciling the serious concerns with Liam's behaviour and functioning which the grandparents acknowledge, and the limited efforts on their part to put additional supports and programming in place for Liam. Given the level of concern they express for Liam, the limited steps they have taken are not sufficient. If there were concerns with the cost or of Ms. Forler withholding her consent then a motion should have been brought before the court. No motions were brought by the grandparents throughout this lengthy matter to assist them in engaging supports for Liam or to reduce Ms. Forler's access if they believed it was harming him.

125Further, given the position of the grandparents it would have also been reasonable to expect that they would have made additional referrals to the CAS. Ms. Lambkin testified that she made repeated referrals to the CAS and spoke to workers on several occasions but they did nothing. I do not accept this. Apart from the referral made by Ms. Lambkin to the CAS that Ms. Forler assaulted Liam on February 1, 2016 there is no evidence that the grandparents were repeatedly contacting the CAS. The collateral information received by Ms. Freund-Bell from the CAS dated March 2, 2016 does not indicate that any contact with the Society was initiated by the grandparents other than for the February 1, 2016 allegation. The only other evidence of CAS involvement since then was initiated by Ms. Forler in June 2017 when she alleged that Liam was assaulted by Mr. Lambkin. The CAS worker, Joanna Ruksc, who conducted that investigation, did not testify to any other referrals being received about Ms. Forler from any source, including the Lambkins.

126Overall, the parties' inability to communicate and the hostility between the grandparents and Ms. Forler, more so by the grandparents and particularly by Mr. Lambkin, have created a situation where the acrimony between the caregivers has taken priority over Liam's needs. The parties essentially gave up trying to communicate even when they all agreed that Liam was struggling and that his behaviours were worsening. The positions of all the parties reflect more an antipathy between them than an interest in Liam's welfare.

Custody Determination

127With respect to which primary residence would be in the best interests of Liam at this time, I am of the view that a balancing of the factors favours placement of Liam primarily in the care of Ms. Forler with structured access to the respondents in a manner that is designed to limit the transitions to the extent possible in the circumstances.

128I would have seriously considered placing Liam in the shared custody of Ms. Forler and Mr. Martland had Mr. Martland supported this outcome. The evidence was compelling that he has addressed his issues and is able to take a more active part in Liam's life. Further, both Ms. Forler and Mr. Martland confirmed that they have the ability to communicate in a respectful and child focused manner when it has to do with Liam, and that they have not exposed Liam to any disagreements between them.

129While Mr. Martland is only seeking regular and specified access to Liam it is appropriate that he and Ms. Forler communicate with respect to issues related to Liam, and Ms. Forler will be required to keep him advised and to seek his input on major issues. Ms. Forler and Mr. Martland are strongly encouraged to attend meetings and appointments with the school and other support providers for Liam together, and to jointly work towards formulating and implementing a plan to address his behavioural challenges.

Joint Custody Analysis

130With respect to the custodial disposition, the Ontario Court of Appeal in Kaplanis v. Kaplanis, [2005] O.J. No. 275, sets out the following principles in determining whether a joint custody order is appropriate:

1. There must be evidence of historical communication between the parents and appropriate communication between them.

2. It cannot be ordered in the hope that it will improve their communication.

3. Just because both parents are fit does not mean that joint custody should be ordered.

4. The fact that one parent professes an inability to communicate does not preclude an order for joint custody.

5. No matter how detailed the custody order there will always be gaps and unexpected situations, and when they arise they must be able to be addressed on an ongoing basis.

6. The younger the child, the more important communication is.

131Joint custody should not be ordered where there is poor communication and the parties fundamentally disagree on too many issues affecting the child's best interests. Graham v. Butto, 2008 ONCA 260, [Roy v. Roy, 2006), [2006] O.J. No. 1872 (Ont. C.A.).

132Courts do not expect communication between separated parties to be easy or comfortable, or free of conflict. A standard of perfection is not required, and is obviously not achievable. Griffiths v. Griffiths, 2005 ONCJ 235, 2005 CarswellOnt 3209 (OCJ). The issue is whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis. Warcop v. Warcop.

133In paragraph 504 of Izyuk v. Bilousov, 2011 ONSC 6451, 2011 CarswellOnt 12097 (SCJ), the court writes:

In the wrong family circumstances, a joint custody order can perpetuate hostilities, indecision, and power struggles. Children- particularly children already exposed to the upset of family breakdown- look to their parents for love, guidance, stability, protection, and consistency. They need to have confidence that adult decisions will be made quickly, properly and uneventfully.

134Mr. Martland has not sought joint or shared custody and supports the status quo of joint custody between Ms. Forler and his parents. Ultimately, the court must decide if a joint custody order between the grandparents and Ms. Forler is in Liam's best interest or whether another custodial designation will better serve his needs.

135On the evidence before the court I have no confidence that maintaining the joint custody order between Ms. Forler and the grandparents will result in any change in the current relationship between them, or improve the status of supports in place for Liam. They have no history of positive communication, no ability to work together, and the evidence supports the conclusion that to impose joint custody and an expectation that they communicate and work together will only perpetuate the hostility and lead to further inaction rather than support the urgent and concerted effort that is required to address Liam's behavioural challenges.

136I note in particular the reasons of Justice J.C. Murray in the case of Jackson v. Jackson, [2008], 50 RFL (6th) 149, paragraphs 7 - 25 which highlight the toxic effect of parental conflict on children. Numerous studies demonstrate the significant negative impact parental conflict has on children which continues in both the short and long term and is a major source of harm to children.

137Liam is a child with special needs, who has sensory and behavioural issues which impact his ability to regulate his behaviours and makes transitions and changes in routine difficult for him. He needs caregivers who are able to work together in a respectful and supportive way and who will put forth a concerted effort to engage the supports required to assist him.

138Unfortunately this has not been Liam's experience. The acrimony between the caregivers and the lack of any communication and cooperation between them are, regrettably, the norm. It is impacting Liam negatively and I have no confidence that this will change if the current arrangements are maintained. I am mindful that Liam has spent most of his life in the primary care of his grandparents and that this is an important consideration, however, I am not convinced maintaining the status quo is in Liam's best interests.

139Overall, the child's physical, mental and emotional needs, and the appropriate care to meet those needs are best served by an order that he reside in the sole custody of Ms. Forler. Ms. Forler resides in a stable relationship with her partner of seven years, and placement of Liam in her primary care will permit him to remain in his same school and to reside with his siblings. The importance of his relationship with his father and grandparents will be supported by regular and structured access. In addition to the specified access to the grandparents, they will have additional opportunities to spend time with Liam during their son's periods of care.

Child Support

140While the Lambkins and Ms. Forler both had claims for child support in their pleadings, I note that little evidence was tendered and no submissions made concerning the issue of child support during the trial. The document briefs filed by the parties contained numerous documents, including financial documents, which were not proven or otherwise put into evidence. The document briefs filed as Exhibit 3 and 7 were filed for identification purposes only and subject to proof. Any documents not proven, including the financial documents, do not form part of the evidentiary record for this trial. As such I have insufficient evidence upon which to base an order for child support.

Order

141On the basis of all the considerations outlined herein, the order of MacKenzie J. dated August 13, 2013 shall be varied by deleting it in its entirety and replacing it with the following:

Custody and Residence

1. Sole custody and primary residence of Liam with Ms. Forler.

Consultation and Communication

2. Ms. Forler will regularly and actively consult with Mr. Martland on major issues concerning the health, welfare, and education of the child.

3. Mr. Martland shall be listed as an alternative contact with any third party involved in the child's health, welfare, and education.

4. Mr. Martland shall be entitled to communicate and receive information directly from any third party involved in the health, welfare, and education of the child, and Ms. Forler shall keep him updated with the contact information of any third parties involved with the child.

Access by Mr. Martland

5. Access by Mr. Martland shall include the following:

   a. Thursdays after school and overnight to Friday morning, and alternate weekends from Friday after school to Sunday at 7 PM.

   b. If Mother's Day falls on an access weekend, the child shall be returned to the care of Ms. Forler at 10 AM.

   c. On Father's Day, if not an access weekend for Mr. Martland, the child shall be in his care from 10 AM to 7 PM.

   d. In even numbered years the children shall spend Easter weekend with Ms. Forler and Thanksgiving weekend with Mr. Martland, to alternate in odd numbered years.

   e. Each parent to have two non-consecutive one-week periods of uninterrupted time with the child during the summer holidays as agreed between Ms. Forler and Mr. Martland.

   f. Ms. Forler and Mr. Martland will share March break with the regular weekend access continuing with the child being with Ms. Forler in even numbered years from Monday to Friday, and in odd numbered years the child to be with Mr. Martland from Monday to Friday.

   g. For the Christmas holidays commencing in 2018 access between Mr. Martland and the child shall begin at 10 AM on the first day of the school Christmas break until Christmas day at 1 PM in even numbered years and on Christmas Day at 1 PM until January 1 at 5 PM in odd numbered years, with the child being with Ms. Forler on the opposite days each year regardless of the regular access schedule.

   h. Such further and other times as agreed in advance between Ms. Forler and Mr. Martland.

Access by the Grandparents

6. Access by Ms. Lambkin and Mr. Lambkin shall include one weekend per month from Friday at 5 PM to Sunday at 5 PM as follows:

   a. In even numbered months it shall be on the first weekend of the month that Liam would have otherwise been in Mr. Martland's care, and in odd numbered months shall be on the first weekend of the month Liam would otherwise be in Ms. Forler's care.

   b. If the weekend occurs during a period covered by any additional or holiday access outlined herein it shall be moved to the next weekend that the parent on whose weekend access was to have occurred has Liam.

   c. Any other access as agreed by the parties.

Conduct Provisions

7. None of the parties shall use physical discipline on Liam.

8. No party shall speak in a derogatory manner about another party, or their family in the presence of Liam, and shall ensure that he is not exposed to any derogatory language about any other party or their family.

9. Liam shall not be exposed to secondhand smoke of any kind, and the parties shall not permit smoking of any kind in their homes or otherwise in Liam's presence.

Travel

10. Unless otherwise agreed between the parents in writing, both Ms. Forler and Mr. Martland shall be permitted to travel with the child for the purpose of a holiday, not to exceed seven days, provided that the time away falls entirely within that parent's periods of care and control of the child as outlined herein.

11. The travelling parent shall provide a minimum of 30 days written notice of travel plans including detailed itinerary and contact information.

Costs

In all the circumstances of this case I will likely not be inclined to make an order for costs particularly if there is no evidence of an offer to settle that is equal to or exceeded by the order made. If the parties are not able to agree on the issue of costs then written submissions, not to exceed three pages, excluding attachments, may be filed by the applicant by June 8, 2018 and by the respondents by June 22, 2018.

Released: May 28, 2018

Signed: "Justice S.E.J. Paull"