Court File and Parties
Ontario Court of Justice
Between:
A.S. Applicant
— AND —
T.S. Respondent
Before: Justice A.W.J. Sullivan
Heard: August 25th to 28th, 2020
Reasons for Judgment released on: October 30, 2020
Counsel:
- Ms. R. Narang, counsel for the Applicant
- The Respondent Ms. T.S., self-represented
SULLIVAN J.:
Introduction
1This is the decision from a Motion to Change Trial heard August 25th to August 28th, 2020.
2Mr. A.S. commenced a Motion to Change in July 2018 of the March 18, 2014 Order of Justice Dunn regarding sole custody and the access parenting schedule. He seeks sole custody of the parties' children, P.S. age 12, and A.S. age 11. He also seeks a reduction in the time the children spend with their mother Ms. T.S.
3Ms. T.S. filed a Response to Motion to Change asking that the 2014 Order of a week about schedule with equal decision-making and parenting be maintained.
4The main witnesses for Mr. A.S. in addition to himself were his wife K.S. and the maternal grandmother, J.S.
5The Respondent T.S. was her only witness.
6A Voice of the Child (VOC) report was filed, dated November 11, 2019, exhibit 10 and the clinician who interviewed the children, Ms. Kassim-Joseph, testified. Justice Cheung initially ordered this VOC in May 2019. In October 2019 it was reordered as it appears the initial order did not reach the OCL and Ms. T.S. did not submit her intake form which delayed the process.
7Since November 2018 the week about schedule was changed on consent at the initial case conference. It changed from week about to the children being with their mother every Wednesday evening from school to about 7:00 p.m. and every other weekend Friday pick up from school to Sunday at 7:00 p.m. Christmas 2018 holidays were also set for that year.
8In 2019 some summer access was arranged with conditions that if Ms. T.S. could not care for the children she was to advise the father. Also, adjustments were made to every other weekend exchange time and the midweek access days and times.
Principal Evidence of Mr. A.S. Relevant to this Proceeding
9Ms. J.S., the maternal grandmother, testified that she has known the mother, Ms. T.S. since 2007 and that the mother moved into her home about a month after the child P. was born. The family lived together from 2008 to 2011.
10Ms. J.S. had praise for the mother when she first knew her and as well after the parties separated. She stated that as the mother of these grandchildren she loved Ms. T.S. and still does.
11I heard from the parties that the original order was consented to as there existed a commonality of parenting style at the time, good communication and cooperation for the children's needs. The grandmother was supportive of this co-parenting plan.
12I heard how the children are creative and each one has different skills, likes and emotions.
13I heard that the father, his wife K.S. and the children live with the grandmother at her home as does another son's family. The grandmother noticed how the children were doing from visit to visit as they live together, and she has noticed the quality of care of the children with their mom had changed in about 2016/2017 when the children had a week about schedule.
14The grandmother began to see changes in the mother's care for the children in and around 2016. This she observed in both the emotions of the children when they returned from the mother's care and their overall appearance. She also noticed how the child P. was on occasion hungry after visits.
15The grandmother recalled telephoning the mother and offering to care for the children if the mother could not during her time with them. This the grandmother could do as her weekends were free. She offered this as she learned the children were being cared for by either the mother's landlord's family or in one instance a male friend of the mother's. This offer was not accepted.
16Apparently, the grandmother and the mother would run into each other occasionally in the community at the local Walmart where the mother, T.S. had worked in loss prevention security. When cross-examined by the mother, the grandmother confirmed and recalled that the mother gave her a lift home during this time in dispute and did not raise with the mother her concerns for the children in the mother's care.
17The grandmother described the father and stepmother's care routine and activities for the children and based on what she observed this addressed their needs and the children were happy and developing. I also heard that the children love their stepmom, K.S., and baby stepbrother. I read this in the VOC report and from the OCL clinician who testified in this trial.
18Ms. K.S., Mr. A.S.'s wife testified. She and Mr. A.S. met around October 2013 and married in August 2017. They have one child together.
19She recalls meeting Ms. T.S. in 2014 while attending P.'s early school year graduation. At the time she recalled that there existed good communication between the parents and the children were having pleasant times with their mother. She testified that at the time both sides of the family did outings together and true co-parenting existed at the time.
20She has assisted Mr. A.S. in the care of his children and described how she assisted in the daily care routine. She has also accompanied Mr. A.S. with exchanges and has witnessed Ms. T.S. cursing Mr. A.S. in public and in the presence of the children.
21Ms. K.S. testified about the change that occurred with Ms. T.S. in around 2016 with her seemingly being distracted, wanting to attend social events and having new partners and not focusing on the children's needs. This apparently was information that she gleaned from the children.
22She learned from parenting the children that they have expressed reservations to her in wanting to sleep over at their mother's place as she has left them in the past with others, in particular, one or two male friends that the mother had just started seeing or had known as friends, but the children had not spent much time with.
23She gave examples of the harsh communication from Ms. T.S. directed at the father when he had asked the mother questions about events that the children had mentioned or general parenting issues. She recalls these inquiries were met with text messages from the mother cursing the father. She recalled the mother on one occasion meeting the father at his workplace and swearing at him during an exchange of the children.
24Ms. K.S. testified to another example of the mother's harsh communication with them that happened in March 2018 at a local breakfast diner. Apparently, the children wrote a note to their mother about issues that they wanted to talk with her about regarding when they are with her. This note was given to the mother when she arrived at the breakfast spot. Ms. K.S., the father and children were present and had invited the mother for breakfast. Apparently, Ms. T.S. took issue with this note and the approach taken to have this discussion in the restaurant and began swearing at Mr. A.S., with the children present.
25I heard that Ms. K.S. believes that the children are not cared for properly while with the mother and she gave examples around the children's appearances, and homework not being done. She gave a recent example of the child A. video calling her dad from her mom's home while in the bathroom tending to a scraped knee wound she received when she fell off her electric scooter while at her mom's. Ms. K.S. testified that for about 15 minutes A. was alone video chatting with them asking how to wash and attend to the injury with no direct supervision from an adult, until 15 minutes into the chat.
26Ms. T.S. testified that the injury occurred outside of her townhouse garage and that there was another child present, her son and the family dog, all of whom needed to be gathered up. She recalled having sent A. ahead to start cleaning her scraped knee while she collected the other child, her son and dog into the house and then went to assist A. It was not, according to her testimony, that she was not present nor that she did not attend to A.'s injury. She also noted that the children have some independence and wherewithal such that they can for example on this occasion begin the initial stages of cleaning a scraped knee.
27I received no medical evidence about the extent of this injury.
28I heard that on occasion the child A. and her mother have had arguments over A. misplacing items of clothing. On one occasion the mother was rough in her language with A. and A. was hurt by this causing the child to feel she is treated differently by her mother. The OCL social worker who met with A. in the VOC report and testimony spoke of A. feeling distant from her mom and suggested their relationship could benefit from counselling. Ms. T.S. indicated that she would be open to this and the father is supportive of this as well.
29The father, Mr. A.S.'s main testimony for a change to the order centred around the nonexistence in communication between himself and Ms. T.S. for the children's interests and how Ms. T.S. is distracted with her new relationships and lack of care for the children since 2016.
30Mr. A.S. testified in his opinion to the mother's instability with multiple relationships, to her moving apartments some 4 to 5 times and to her varied work hours all of which he suggested has affected the children's relationship with her and her care for them.
31Examples of this was when the mother brought the children to work with her at Walmart where she was working in loss prevention security. On another occasion CAS called him asking that he come to collect them because of improper supervision while Ms. T.S. worked.
32He testified that Ms. T.S. has left the children at night while they slept in the indirect care of her landlord and wife. When she testified, Ms. T.S. did not deny this but explained that she was at the time renting the basement of a home and had a good relationship with the family who owned the home. She recalls that at the time she was picking up extra shifts from 11:00 p.m. to 2:00 a.m. doing security at a local bar and put the children to bed and had an agreement with the landlord's family to look out for them while they slept. Apparently, I heard that during one of these work shifts the police arrived and asked that she return home to care for the children after one of them had called their father. She explained that Mr. A.S. was aware of her need to pick up this work as she had asked him to help look after the children, but he refused.
33On a separate occasion Mr. A.S. entered the mother's apartment having gone there to pick up the children. He recalls coming upon a man not known to him caring for the children and claims this man was assisting the child A. with a shower.
34I heard from Ms. T.S. in cross-examination that over the years she has had the help from friends, some of them male friends care for the children about ten times in total. At no time did she believe that the children were placed in harm's way and she denies that this male friend was bathing her daughter.
35I was not given satisfactory evidence about this male friend other than he was caring for the children. Mr. A.S. suggested this was somehow placing the children in danger. He explained that he called CAS and the police but received little assistance about this.
36I received no evidence from the CAS or the police in this trial.
37Under cross-examination, the mother denied Mr. A.S.'s allegations that the children have witnessed her having sex while visiting her or on vacation with her. She denied excessive drinking or her using drugs while caring for them. She agreed that while at social gatherings with the children other people present might be drinking but she does not in excess.
38Ms. T.S. explained a social media posting of a handgun she recently purchased under licence. This social media posting was testified to initially by the father. She explained how both she and the father had met at college in a Police Foundation program and that she continues to pursue a job in policing. A part of this college training is the use of firearms and shooting. She explained how she and Mr. A.S. had attended shooting ranges together in the past and that she still does. She explained how she stores separately her ammunition and gun in lock boxes and that the gun has a trigger lock. All of these items are not in public view and away from the children in locations not known to them in her townhouse.
39When Ms. T.S. testified, she also admitted to how she has argued and sworn at Mr. A.S. in public with the children present but suggested at times both argued with each other in this manner. On one occasion, outside his workplace during an exchange of the children they both ended up calling the police given the heated exchange that occurred.
40Both parents admitted that significantly they have not been communicating effectively for the past three years regarding the children around anything, the children's health, school and the like. Ms. T.S. admitted to blocking Mr. A.S.'s cellphone calls as she claimed he would send her messages that would set her off and put her in a bad mood just before her time with the children. None of these messages were provided in evidence at this trial. She agreed that the co-parenting that existed when the 2014 consent order was established has evaporated.
41The mother testified that she has worked hard over the last 4 to 5 years to make a loving home for her children. She stated that the children have a very good relationship with her. She testified that the father has not been supportive of her and that he was emotionally and physically abusive to her when they lived together with the maternal grandmother and that the grandmother was aware of this physical abuse.
42This was the first time this allegation was raised in this litigation. It was not information in Ms. T.S.'s pleadings in her Response to Motion to change nor did she question the father and grandmother about this after their direct testimony and therefore both were permitted to be recalled on this issue.
43Mr. A.S., the father, denied being assaultive although he did recall raising his hands in defence during one argument. When the grandmother was recalled and questioned about this she denied knowing or seeing any assault although she admitted to overhearing the parties argue but did not intervene. She did recall the police coming to her home on one occasion because of these arguments and the police talk to each in separate parts of the home.
44Another area of concern for the father was the repeated moves that Ms. T.S. has made over the past several years. These were not denied by Ms. T.S. The father suggested at one point he was not sure where his children were living with their mother and suggested that the children were late and/or missed school when being cared for by their mother. This she denied.
45In the end the evidence on the children's progress reports shows lates but no clear evidence was provided that indicated this occurred only when the children were with their mother, although the father points to improvements on this issue since the week about schedule was changed with the children now spending every other weekend with their mother and midweek Wednesday dinner access.
46Ms. T.S. requests that the old week about schedule be reinstated. She explained that she lives now with Mr. E. and they share a townhouse that she had located. Ms. T.S. testified that she has worked hard to provide this living space to the children who now have their own room and she just got a pet dog that they enjoy.
47She explained that she met Mr. E. and his daughter in June 2019 at a beach. He has an agreement to share the care for his daughter with the child's mom who lives in Vaughan, Ontario. Mr. E. works in the parcel delivery business.
48When questioned, Ms. T.S. recalled introducing her children to Mr. E. after about four months from when she first met him. She testified that her children are comfortable with him. Mr. E. did not testify at this trial.
49Ms. T.S. explained that she is working in Toronto for a social service agency helping marginalized people in the downtown core. Her hours are about 8:00 a.m. to 3:30 p.m. and her employer is understanding if she needs to leave for her children. This job is a recent development.
OCL Voice of the Child Report
50During the course of the trial I warned most of the witnesses whose evidence I have reviewed above, that I would not hear from them on what the children allegedly reported or told them if presented for the truth for me to act upon. These are out of court statements, with no opportunity to be questioned about and raise concerns about the reliability of such statements made to the parties with specific interests in the outcome of this trial.
Is the same to be said of the VOC report?
51In this trial the parties did not raise any of these concerns. I do so as I have the responsibility as the gatekeeper of what evidence is received to assure it meets the required tests or an exception to the hearsay rules of evidence. In borrowing from child protection cases where children's statements were presented, I note the following approach taken in admitting children's statements to social workers trained to interview children.
Children's Lawyer – Clinical Assist
The role of a clinical investigator conducting a clinical assist to counsel for the child is not to express her opinion. They are not qualified as experts and do not conduct an investigation or an assessment. The child's statements and her views and preferences, to the extent that they can be ascertained are admissible. Direct observations are also admissible, but the witness shouldn't be interpreting the child's statements and feelings. Children's Aid Society of Toronto v. C.J.W., 2017 ONCJ 212.
Court admitted child statements to show children's views and preferences about where she wanted to live and how much access she wanted with her father; her feelings about living with her aunt; feelings about her access with the father; feelings about pressure father was placing on her; statements about her stress level, her pride in her school performance and how she was sleeping and eating for state of mind in Children's Aid Society of Toronto v. G.S., 2018 ONCJ 124.
52As noted above the OCL clinician, Ms. Kassim-Joseph, testified about her work in obtaining the children's views regarding the issues in this trial which is how they are parented by their mom and dad and family members and their time with each family.
53I found Ms. Kassim-Joseph balanced and fair in the manner that she testified about her work with the children. She is independent of both parties which brings with it a degree of objectivity that I can overall rely on.
54Her report filed in affidavit form gives me some insight into each child's emotional workings and their likes and dislikes.
55Both parties cross-examined her on this report and how she conducted her work and on the children's statements.
56She used a scale of 1 to 10, 10 being the best rating, when asking for each child's preferences to the issues she was asked to explore with them.
57She testified that both children appeared engaged and did not seem to avoid eye contact with her when answering questions.
58They each understood the questions and took time to answer.
59They both are older children with set opinions, and both are able to express their views.
60The above information and approach have allowed me to accept the statements as set out in the VOC report filed. I note that the information above are answers to some of the same line of questions that the court in Catholic Children's Aid Society of Toronto v. C.G., 2018 ONCJ 193, set out to assist in establishing threshold reliability of such evidence. The court set out the following questions to be asked of the worker providing the children's statements:
a) The experience of the workers.
b) The training of the workers in interviewing children.
c) The workers' practice in note-taking and whether that practice was followed in the child interviews.
d) Were the statements recorded contemporaneously?
e) Did the workers record their questions that they asked the child?
f) Did the workers ask leading questions?
g) Were the child's statements spontaneous or prompted?
h) Did the child provide detailed and coherent statements?
i) Did the child have any motivation to fabricate the statements?
j) Did the timing of any of the statements arouse suspicion about their validity?
k) Were the child's statements consistent over a period of time?
l) Is there evidence corroborating the child's statements?
m) What is the level of maturity of the child?
n) What is the intelligence and level of understanding of the child?
o) Where was the child interviewed? Was there any reason to believe that the location of the interview influenced the child's statements?
p) Were the visits private? Were any other adults nearby during the interview?
q) What is the nature of the workers' relationship with the child? Is the child open and candid with them?
61Ms. Kassim-Joseph's evidence is that P. expressed happiness with his dad and nothing he wished to change. In regard to his mom he rated their relationship 8 out of 10 which isn't too far off the 10 scale but noted he did not like how she was rude with his dad, and at times his sister. He was not sure about her current "boyfriend" and that she seemed more interested in social events when they are together.
62A. noted that she would not change things with her dad or stepmom, all is a 10/10 situation. With her mom she described as seeing her sometimes as family and sometimes as not. She feels a disconnect with her mother and feels her mom is not focused on them and her and would like more one on one time with her. A. had difficulty identifying happy times with her mom as opposed to P. who gave some examples.
63Both children wanted to see changes to the old week about schedule and the current one as well. Both children express being uncomfortable with overnights while the mother's boyfriend was present. They noted meeting several male friends over the past few years whom they never get to know.
64Both children noted to the clinician that they have talked to both parents about these concerns. The children feel their dad has taken this to heart but less so their mother.
65The evidence and report note that both children want more one on one attention from their mom with all three together with no other person or people.
66The report further is sensitive to A.'s needs to find a way to reconcile her differences with her mom through counselling. I heard from Ms. T.S. that she was open to doing this counselling which is positive and should proceed.
67The children have suggested a different access schedule with their mom as a way of mitigating some of their concerns.
68P. has asked for 1 day on every other weekend and each Wednesday.
69A. asked for 1 day per weekend, 3 out of 4 calendar weekends per month with no overnights and each Wednesday.
70The VOC report and Ms. Kassim-Joseph's testimony underlined that the children from all accounts love their mom but want her attention focused on them in a genuine manner when they are together.
Legal Test Regarding Motions to Change
71Under section 29 of the CLRA, the court may change a final custody/access order if there is a material change of circumstances affecting the best interests of the child. This is a two-step process:
a) The moving party must first meet the threshold requirement of demonstrating that, since the last order was made, there has been a material change in circumstances that affects or is likely to affect the child. The previous order is presumed to be correct. The change must have not been foreseen or reasonably contemplated by the judge who made the original order. The change must be to the condition, needs, means or circumstances of the child and the ability of the parent to meet those needs. If this test is not met, the inquiry goes no further.
b) Second, if the threshold is met, the court must embark on a fresh inquiry into the best interests of the child, having regard to all the circumstances in 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. The court should consider the matter afresh without defaulting to the existing arrangement.
See: Gordon v. Goertz, [1996] 2 S.C.R. 27, which has been held to apply to section 29 CLRA cases, see: Allen v. Allen, 38 R.F.L (4th) 96 (Ont. Gen. Div.).
72The requirement of a material change in circumstances means that a change motion cannot be an indirect route of appeal from the original custody order. The court cannot retry the case, substituting its opinion for that of the first judge. It must assume the correctness of the decision and consider only the changed facts since the first order was made. Docherty v. Beckett (1989), 21 R.F.L. (3d) 92 (Ont. C.A.). The court should allow only a limited look at evidence predating the order to understand how it was made in order to determine if a material change in circumstances has been established. Hornan v. Hornan, 2007 CarswellMan (Man. Q.B.).
73Variation of a final order for custody or access is a two-part process. The Ontario Court of Appeal in P. v. G.-P., 2009 ONCA 782, made it clear that a material change must be established first, before any variation or evidence about "best interests" is considered.
74As this court has made clear, jurisdiction to vary a custody and access order is dependent on an explicit finding of a material change in circumstances since the previous order was made. If an applicant fails to meet this threshold requirement, the inquiry can go no further: see Litman v. Sherman (2008), 2008 ONCA 485 , 52 R.F.L. (6th) 239 (Ont. C.A.). The matter is jurisdictional, and a court must make a finding of a material change in circumstances even when, as here, both parties request a variation.
75Once the court determines that there has been a material change in circumstances, the court should then look at all the evidence, including the evidence predating the order from which change is being sought. Segal v. Segal (2002), 26 R.F.L. (5th) 433 (Ont. C.A.).
76The aging of a child does not necessarily constitute a material change in circumstances. The change must have altered the child's needs or the ability of the parent to meet those needs. The last order is presumed to be correct. Wiegers v. Gray, 2008 Sask 10 (CA).
77In order to determine if the conditions for a variation exists, the change of circumstances must be material as opposed to trivial or insignificant: Hickey v. Hickey, [1999] 2 S.C.R. 518.
Discussion and Decision
78On the threshold issue of a material change in the circumstances from the last order that impacts the children, I find that this test has been met.
79Both parents admit that their communication for the sake of the children has evaporated between them both from the date of the last order. See Roloson v. Clyde, 2017 ONSC 3642.
80They are working in silos when it comes to the children. It is not that the children from all accounts have any great significant needs as they appear to be doing well in school and are healthy.
81It is apparent that emotionally the children need that the parents are respectful to each other. This emerged as an important theme in this trial and one that the children are concerned about as they love both parents and do not want either to be hurt or disrespected by the other.
82When I did ask the father what actual decisions were needed to be made for the children's sake that this poor communication affected, he was not able to give any specific examples. The significant change that has occurred since the 2014 order is that the co-parenting approach has disappeared, and Ms. T.S. seems unfocused on her own needs and distracted when it comes to the children. There needs to be an updating of the last order to meet the children's best interest. See Norris v. Morocco, 2020 ONSC 2420.
83Having found that a material change exists, I am asked now to look at the parents' respective plans and the evidence presented that meets the children's best interest in resetting the custody and access order. To do this I turn to the criteria set out in section 24 of the Children's Law Reform Act (CLRA).
Section 24 of the Children's Law Reform Act
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).
a) 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.
84In this regard I find that their evidence and plans differ in meeting the children's best interest as follows:
85Both accuse each other of poor communication. I find that the overall evidence points to Ms. T.S. having the most difficulty in this regard to maintaining a civil, respective tone when asked about events or circumstances while the children were in her care. This goes to the issue of her ability to act as a parent, section 24 (2) (g). She seems to be having difficulties in her ability to temper her anger and differences with the father. Rather than meet or find time later to discuss issues, I find she has had harsh words with the father while the children are present.
86Ms. T.S. was her only witness. She did not present her current partner, Mr. E., with whom she shares a townhouse.
87She did not present a lease for this home that she was proud to explain how she obtained through her hard work and how now this provides the children with their own space and less sharing as was the case before.
88If she had presented some of this evidence, some of the themes and concerns raised in this trial about her choice of partners and several moves could have been addressed. This goes to the stability in her plan, section 24(2) (e) and (f) of the CLRA. This issue of instability is not present in Mr. A.S.'s plan for the children.
89I also heard that the children are concerned about their mother's partners and overnight stays with their mom. They have mentioned that their mom seems to not notice them when they are with her as she seems more focused on other persons or activities.
90The children noted that they have attempted to talk with their mom about these concerns but were rebuffed. Section 24 (2) (b) directs that where possible I should consider the views of the children which I have in this case. The children have voiced positive and close feeling towards their father and stepmother.
91On one specific occasion over breakfast the children had presented a note to their mom regarding some of these issues. The evidence that I accept is she reacted poorly in front of the children. I agree that such a discussion might have been arranged differently but the spirit in which it was arranged was from a positive place.
92Overall, I accept the children's statements. I do have some concern when each speaks of their mother's "poor choices." This I find is a distinctly mature or adult term that is employed when assessing another person's life choices. This I find odd for children even of this age to express to the OCL. I find this is something they must have picked up in overhearing adult chatter in this dispute. Having said this it does not dilute the children's views and feelings that I have outlined above but does give me pause when evaluating their statements in the overall context of the evidence in this trial.
93Mr. A.S. attempted to paint a picture that Ms. T.S. associates with male partners who are a bad influence, charged criminally or have bad intentions towards the children. In addition, he argued that she drinks and takes marijuana excessively and that the children have witnessed sexual activity when cared for by her.
94I find that none of this has been proven in this trial.
95The evidence is that the children are uncomfortable with the boyfriends that their mother has introduced to them. I cannot comment more than this, however, this has made the children uncomfortable. They do not appear to get to know and build a trusting relationship with these male friends and feel their mother is distracted and does not spend quality time with them when these male friends are about. This I accept. It appears that Ms. T.S. has prioritized her relationships over her time and quality time with the children. This they have expressed.
96Ms. T.S. could have had Mr. E., her current partner with whom she lives, testify but he did not. This leaves open the issues of how permanent he is in the lives of the children which is not the same issue in Mr. A.S.'s plan. I heard the children love their stepmother and stepbrother and feel cared for by her. This goes to 24(2) (a) and (e) and (f) of the CLRA.
97There is evidence that I accept that Ms. T.S. has had several moves that impact on the children's stability for school and privacy that is not present with the father's plan. I accept that mother has a new place but this from all accounts is recent.
98I accept that since the order was changed on consent by the parties in November 2018 that the children are not late as often for school when before with the week about schedule this was an issue.
99I also heard evidence of Ms. T.S.'s work schedule impacting the children's care. I heard that on occasion they were brought to her workplace and once CAS called the father to pick up the children because of this issue.
100Ms. T.S. admitted having to leave the children in the indirect care of her landlord's family during the time she was picking up extra shifts to make ends meet. She now has a new job with better hours. This is a recent position and not tested over time. I understand Ms. T.S.'s efforts to support herself and her children taking on extra work, but this cannot be done where the children's care is precarious or their evening routine during the school year inconsistent. This goes to Sections 24(2) (d) and (e) of the CLRA.
101I have no doubt that the children are loved by their mother and have spent enjoyable times with her. I find the evidence is that until recently that the daily heavy lifting that parents must put in for the proper care of their children was missing in Ms. T.S.'s care. This she testified has recently changed and it might very well be, but this change is not tested over time in comparison to that of Mr. A.S.
102Mr. A.S.'s work plan does not impact the children's care and members of his household testified about the children's weekly routine. The father's plan has him and known members of the family, that the children are connected to, caring for them at all times. The father's plan has greater stability or the children that addresses their educational, physical and emotional needs by caregivers that the children are comfortable with and have voiced their connection and love to; 24(2) (a) of the CLRA.
103As for the continued parenting time or access that the children should have between each household, I will maintain every other weekend time with their mother and the Wednesday dinner time. This has been in place since November 2018, some 2 years.
104I have considered the children's position and concerns. The evidence at this point does not support the continuation of the parenting time in the 2014 order which was week about. The evidence supports changing the order on decision-making and establishing a communication protocol between the parents as I have set out below. In the trial I find that some of the father's concerns about the mother's recent parenting are justified and that the week about schedule was not meeting the children's needs.
105I also believe that the mother has taken notice of these issues and has or is in the process of making changes that focus on the children and addresses some of their concerns and feelings. Ms. T.S. is open to counselling to better her relationship with her daughter which should assist her in her general parenting as well.
106The evidence today does not support restricting access only. The children need time with their mother during which she will focus on them in a secure environment. The children can gain, benefit and learn from being with her during some relaxed down time as I am certain they do with their father. When I say this, I have not ignored their voice in the OCL report. I have considered this in the overall evidence I have accepted in this trial and the law pertaining to parenting time and make the following final order.
Order Final
The March 18, 2014 order of Justice Dunn is changed as follows:
Paragraphs 1 to 19 are replaced with the following:
1. The Applicant, A.S. shall have sole custody of the children P.D.S., born [date], 2008, and A.R.S., born [date], 2009.
2. Mr. A.S. shall make the important decisions about the children's education, health issues and religious activities.
3. The Applicant father, Mr. A.S., has the sole right to apply for or renew the Canadian passports for the children of this order and other Government documents for their best interest without the need to obtain the consent of the mother Ms. T.S.
4. The father, Mr. A.S., shall have safe keeping of all of the original documents of the children's passports, birth certificates, OHIP, SIN cards, and inoculation cards. If any of these original documents are in the mother's care at the date of this order, Ms. T.S. will pass these to the father within 14 days of this order.
5. Neither parent shall leave the children alone while in their care and Ms. T.S. shall advise the Applicant father if she cannot care for the children during their time with her and he will arrange to care for them.
6. Neither parent will excessively consume alcohol or marijuana while caring for the children and maintain a smoke-free environment in their homes nor shall they permit the children to be in a location where a third party is doing the above.
7. The Respondent mother, Ms. T.S., shall be able to communicate directly with any service providers who provide service to the child (i.e. doctors, schools) and be able to ask questions and receive information about the children from these service providers, but not make decisions about the children with such service providers. Ms. T.S. may ask to receive email updates from the children's teachers if this method of communication is employed by the school to update the parents on the areas of study and projects the children may have. The mother Ms. T.S. may also ask to participate in person or virtually at any parent/teacher nights to review the children's academic progress.
8. The Applicant father will within 14 days of this order provide the mother with the names and telephone numbers of the children's doctors and school and will provide updates as they may occur. The father will, within 14 days of this order, provide a certified copy of the children's OHIP cards to the Respondent mother and this applies to any renewal.
9. The Applicant father will provide to the children's school and doctors consent in writing to communicate with the mother as set out in this order.
10. In the event of an emergency involving the children, the parent who has care of the children shall provide the other with details of the nature of the emergency and the location where the children are. If the child(ren) is in hospital the parent who does not have the child in his or her care shall have the right to see the child.
11. The children's primary residence will remain with the father in Peel/GTA and if he intends to change this, he will provide the mother with 60 days' advanced notice of any impending move.
12. The mother Ms. T.S. shall provide to the father any change to her address and if this is to change, 60 days' advanced notice shall be provided to the father.
13. The mother and father will cooperate in locating a counselling service for the child A. and her mother. This to be done within the next six months with each parent contributing equally to the cost. Each parent shall contribute to any cost for this counselling service, but each parent's contribution shall not exceed $1,000 per parent.
14. The children and their mother shall have weekly time together as follows:
A. Every other weekend from Friday at 4:00 p.m. to Sunday at 7:00 p.m. If this falls on a holiday Monday long weekend, the children's time with their mother is extended to Monday at 7:00 p.m.;
B. Each Wednesday evening from 4:00 p.m. to 8:30 p.m.;
C. Half of March Break;
D. Half of Christmas/New Year's school break
Regarding arranging C and D above, the parents shall negotiate how these holidays are to be divided at least 2 months in advance. To commence this order, they should follow the rotation from last year, if one existed, or negotiate this for these upcoming holidays.
15. Summer vacation: Both parties may take 14 days uninterrupted vacation days with the children in the summer months of July or August. Each parent is to plan their vacation such that part of the 14 days is attached to their every other weekend with the children. It is understood that the regular every other weekend schedule will be disrupted by these summer vacation. The parents are to advise each other by April 1st of each year in writing of the days they intend to take, with Ms. T.S. having the 1st choice of dates in 2021 and Mr. A.S. having the 1st choice in 2022. The regular weekend schedule is to pick up the first weekend after each vacation period where it left off.
For example, if Ms. T.S. commences her 14 days' vacation and elects to take these consecutively, this time will begin on the first full day a Saturday of every other weekend and run until the end of the day Friday 14 days later. The weekend adjacent to these 14 days would then be Mr. A.S.'s weekend with the children and every other weekend rotation then restarts from here.
16. The parents will adhere to the following communication protocol for the children's welfare.
17. The parties shall abide by these principles in their relationship with each other and their contact with the children:
a. They shall refrain absolutely from denigrating each other or members of each other's household or families in the presence or within earshot of the children.
b. They shall not question the children about the other party's personal life and activities.
c. They shall not video or audio record the children for the purpose of recording statements or discussions about the other party, members of their household or family, or other parenting issues.
d. They shall refrain absolutely from engaging in any disputes with each other in the presence or within earshot of the children and from involving the children in any manner in conflicts which may arise between the parties.
e. They shall not use the children to pass messages or documentation on to each other.
f. They shall encourage the children to have a strong and positive relationship with both parents and shall use all reasonable efforts to foster a meaningful relationship between the children and the other parent.
g. Neither party shall discuss with the children, or with another party in the presence of the children, present or past legal proceedings or issues between the parties related to the present or past legal proceedings, including any financial issues relating to the parties or the children, or regarding conflict between the parties relating to parenting issues.
h. The parties shall communicate about the children by email and/or text. Each party will respond promptly by return email or text to the email or text of the other. The parties shall exchange information about the children, including notice of any scheduled medical or counselling appointments, report cards, behavioural concerns, upcoming activities, and any request for changes in the parenting schedule.
i. All email/texts between the parties regarding the children shall not be deleted, nor shall they be forwarded to third parties other than lawyers or, without the other parent's consent.
j. Emails/texts shall be brief, respectful, related solely to the children, with no reference to either of the parties or their activities. The party shall not email/text each other excessively.
k. The parties shall share all documents such as report cards pertaining to the children by scanning or photographing the document and then sending it to the other parent by email. The parties shall not rely on the children to transport documents between them.
l. If one party requests information or a temporary change by email/text, the other party shall respond within 48 hours. Requests made giving less than 48 hours' notice shall be responded to as soon as possible. In the event of an emergency or truly time sensitive matter, the parties shall call each other. If a reply requires more time than 48 hours, and email/text shall be sent advising that the reply cannot be reasonably given within this time period and advising when the response can be expected.
m. Any discussions between the parties at transition times, activities or other special events where the children are present or nearby shall be limited to brief and cordial interchanges. If one party considers that the discussion is not courteous, he or she shall simply say "I no longer wish to discuss this" and upon one party saying so, both shall immediately discontinue the conversation and shall take up the issue later by email/text.
Costs
107If either party wishes to seek costs, absent an agreement between the parties, they may serve and file written costs submissions (totaling no more than 2 pages) in addition a Costs Outline and signed offer in accordance with the following timetable:
(a) the Appellant shall serve and file his costs submissions within ten (10) business days of the release of these Reasons for Decision; and,
(b) the Respondent shall serve and file her responding costs submissions within ten (10) business days of the receipt of the Appellant's costs submissions.
Released: October 30, 2020
Signed: Justice A.W.J. Sullivan