ONTARIO COURT OF JUSTICE
BETWEEN:
Rita Buffalo
Applicant
— AND —
Dawson Mason
Respondent
— AND —
Sonia Moore
Respondent
Before Justice E. A. Burton
Heard on 3 – 6 March 2025, 22 April 2025
Reasons for Judgment released on 1 May 2025
Mr. Marchak counsel for the applicant
Mr. Van Voort counsel for the respondent Mason
Ms. Moore.................................................................................................... on her own behalf
BURTON J.:
1This is my decision after a trial to decide primary residence, parenting time, and decision-making for the child, Anastasia Ruby Rose Mason, who was born on […], 2020.
Background
2Anastasia’s family background is complicated. Her mother, Sierra Royal, passed away on 4 January 2022. Sierra was raised by the applicant in these proceedings, Rita Buffalo, who is not a blood relation. Sierra’s biological mother is Sonia Moore, one of the respondents in these proceedings, making Sonia Anastasia’s maternal grandmother. Anastasia’s father is Dawson Mason, also a respondent. Anastasia has been living with Ms. Buffalo essentially from birth, originally pursuant to a kinship care agreement, long expired, commencing when Sierra was in custody shortly before her death. Ms. Buffalo and Mr. Mason both commenced court proceedings after Sierra Royal passed away. Ms. Moore was added as a party a few months later.
3For clarity, I will sometimes be referring to people by their first names in this decision. This is not intended to be disrespectful.
Positions of the Parties and Issues for Trial
4Ms. Buffalo and Mr. Mason signed Minutes of Settlement before trial, agreeing that Ms. Buffalo would have primary parenting-time, and that Anastasia’s primary residence would be with her in Thunder Bay. They would share decision-making. The Minutes do not address Ms. Moore’s role, but Ms. Buffalo and Mr. Mason agreed verbally at the outset of trial that she should have time with Anastasia as well.
5By the end of trial, it was Mr. Mason’s position through counsel that Ms. Moore should only have Facetime visits with Anastasia. Ms. Buffalo’s position was that Ms. Moore should have contact appropriate for a grandparent. Both argue that Ms. Moore lacks the stability that Ms. Buffalo can provide, she permits inappropriate people to be around the child, and is uncooperative about disclosing the details of who will be in Anastasia’s presence during visits. Both agree that Ms. Buffalo is perfectly capable of raising Anastasia as she raised Sierra, that she will promote Anastasia’s connection to her culture and Mr. Mason’s family, and that disrupting Anastasia’s life by removing her from the only home she has ever known would be unnecessary and not in her best interests.
6At the start of trial, Ms. Moore’s position was that she would like to spend more time with Anastasia, starting with weekends and moving up to joint parenting-time with Ms. Buffalo. By the end of the trial, Ms. Moore’s position was that Anastasia should reside with Mr. Mason, but she (Ms. Moore) would be her primary caregiver until he is ready to do so. Ms. Moore is worried that she will not be permitted to play a role in Anastasia’s life, based on past history and conflict with Ms. Buffalo. She is also concerned that Ms. Buffalo will not foster Anastasia’s connections with her culture, or her maternal family.
7Child support is not being litigated at this point. Mr. Mason is on Ontario Works while he goes to school and raises two other children, and Ms. Buffalo is not seeking support from Ms. Moore, given the level of involvement she anticipates.
Rita Buffalo’s Evidence
8Rita Buffalo is 64 years old, and resides with her long-time common law partner Peter Dance. Her 34-year old daughter Erin also resides with them, as do Erin’s children part-time, as she has shared custody with their father. Ms. Buffalo is an indigenous woman from the Matachewan First Nation, and also described herself as half-French. She has a dated criminal record.
9Ms. Buffalo came to care for Sierra Royal when Ms. Moore dropped her off as a baby. Ms. Moore recognized that she could not care properly for Sierra, and chose to ask Ms. Buffalo to care for her rather than engage with a child protection agency. Sierra’s two older siblings were also dropped off, and left with Ms. Buffalo for approximately six months before Ms. Moore collected them back. Sierra stayed in her care. Ms. Buffalo believes she got a court order for “full custody”, which was not contested by Ms. Moore. Ms. Moore came back into Sierra’s life when Sierra was about eight, but she continued to be raised by Ms. Buffalo. Ms. Buffalo testified that Sierra and Ms. Moore had rocky relationship, and cited examples.
10Ms. Buffalo testified that Sierra asked her to look after Anastasia if anything should happen to her, rather than have the child go into care, so Ms. Buffalo commenced this court application for custody after Sierra passed. She already had briefly been caring for Anastasia under a care agreement, commenced when Sierra was in custody prior to her death.
11Anastasia is described by Ms. Buffalo and Mr. Dance as being a smart, happy, well-adjusted little kid. She is in SK at school and doing well. She particularly loves her indigenous culture teacher. At home, she likes to read books, play with her toys, play board games, go for walks, play in parks, and run around. Mr. Mason testified as well that she seems to be a happy child, doing well in Ms. Buffalo’s care, with all her needs and wants looked after.
12Ms. Buffalo and Mr. Dance both have health problems. Mr. Dance awaits a kidney transplant, hopefully in the near future. Ms. Buffalo recently suffered from a respiratory virus and was bedridden for three weeks. She was still weak at the time of trial, but recovering. Both testified, however, that they are able to keep up with Anastasia and look after her properly. Erin also helps. Both deny drug or alcohol use in the house, and stated that smoking takes place outside.
13Financially, the Buffalo-Dance household is comfortably able to attend to Anastasia’s needs. They collect disability and old-age pensions, have never missed a rent payment, and have food in the cupboards. They have been in the same home for over 20 years.
14Ms. Buffalo is indigenous, as is Ms. Moore. In fact, they are from nearby communities in the same part of the province. Ms. Buffalo is applying for Anastasia’s long-form birth certificate so that Anastasia can get registered with her band. While Ms. Buffalo is not deeply in tune with her culture’s history and traditions, she reads traditional stories and teachings to Anastasia, and raises her with cultural practices such as keeping her hair long. Anastasia also gets cultural lessons at school. As she gets older, Ms. Buffalo will learn along with her and make sure she gets the knowledge that she should. Ms. Buffalo has not taken Anastasia to any pow-wows, as she (Ms. Buffalo) has a problem with big crowds, but testified that Ms. Moore took her to one, for which Ms. Buffalo was grateful.
15Ms. Buffalo has made efforts to keep Anastasia connected to Mr. Mason. She has taken Anastasia to Timmins to visit in person twice and meet her two half-sisters, and Mr. Mason has come to Thunder Bay twice to visit Anastasia here. When Anastasia is brought to Timmins, Ms. Buffalo and Mr. Mason split the costs. Additionally, two or three times a week, Anastasia has video calls with Mr. Mason and her half-sisters, which the children all seem to enjoy. She has watched Mr. Mason parent Anastasia, and believes he does a competent job of it. She recalled one incident where Anastasia suffered a minor injury at Mr. Mason’s house – she fell off a couch, as kids sometimes do. No medical treatment was deemed necessary. If she had any concerns, she would not leave Anastasia unsupervised.
16Contact with Ms. Moore’s side of the family has not been as frequent, although Ms. Buffalo testified that Ms. Moore’s sister Ramona has had some contact with Anastasia. When asked why Ms. Buffalo has not reached out to other family members on the Moore side, she testified that they live out of town, and she did not have their information, as Ms. Moore has never provided it.
17According to Ms. Buffalo, Ms. Moore herself has had about seven visits with Anastasia of a few hours each. There may have been an overnight or two. There is a court order from 27 September 2022 permitting visits every alternate Monday for an hour and a half, in a public place. The order has not always been followed. Ms. Buffalo testified that she made alternate arrangements with Ms. Moore to give her more time than the order allowed, to be kind to her, but there were issues with Ms. Moore not being able to decide what dates and times she wanted. Ms. Moore testified that Ms. Buffalo was difficult to deal with and would not cooperate in picking dates. There was a significant discrepancy in their evidence as to how many visits Ms. Moore has actually had with Anastasia.
18Ms. Buffalo has several concerns about Ms. Moore having overnights with Anastasia and moving on towards more time with her. She testified that Ms. Moore has not had a stable address, as she has seen her car at multiple addresses, and one house where she apparently lived was empty – she peered in the windows to check. She is also concerned that, when she moves around, Ms. Moore resides with people who may or may not be appropriate to be around Anastasia. Since Ms. Buffalo does not know who they are, she is not content to let Anastasia go there. She also testified as to an incident where Ms. Moore had Anastasia for a few hours and brought her to the hospital without telling Ms. Buffalo first. Ms. Buffalo felt that this was a serious over-reach and very inappropriate behaviour by Ms. Moore, especially since the doctor said Anastasia just had a cold and was fine. There was also testimony about Ms. Moore stating that Anastasia had a sore or itchy bottom, which Ms. Buffalo was not worried about, as she believed it was an allergic reaction to a different shampoo used by Ms. Moore, and a normal childhood complaint. Ms. Buffalo consulted a doctor, who laughed. Another time, Ms. Buffalo testified that Anastasia told her that Ms. Moore had left her alone with a strange man for a while. The man was eventually identified, and nothing happened, but Ms. Buffalo was concerned that it occurred at all, and that Ms. Moore had not told her this man would be present.
19Ms. Buffalo, Ms. Moore, and Mr. Dance all agree that there have been disputes during exchanges, including one where Ms. Buffalo told Ms. Moore’s friend to essentially mind her own business and stay out of this situation. Mr. Dance testified that he has seen disputes between Ms. Buffalo and Ms. Moore “once or twice”, and when asked who the aggressor was, identified Ms. Moore. Mr. Dance and Ms. Moore get along fine, as do Erin and Ms. Moore, but they are not the primary caregivers or contact people.
20It was palpably evident from the testimony and in the courtroom that there is tension between Ms. Buffalo and Ms. Moore. They get under each other’s skin, as was frequently noted during cross-examinations. The topic of Sierra and her unfortunate passing is obviously very sensitive and raw for them both. They are each healing in their own way. The tension is not restricted to the courtroom. Ms. Moore filed copies of messages between them about exchanges of the child, where they are both rigid and demanding with each other. Ms. Buffalo’s insistence on asking who would be around the child was not unreasonable, but neither was Ms. Moore’s insistence on asking to set firm times, and they both dug in their heels.
21Ms. Buffalo was difficult and argumentative while being cross-examined by Ms. Moore, and frequently had to be admonished to listen to the full question, and answer what she was asked. That being said, when she cooled down and listened, she answered the questions fully, and consistently. I did not note any significant inconsistencies in her evidence.
Dawson Mason and Ocean Hardisty’s Evidence
22Mr. Mason attended the trial via zoom, despite having been told to attend in person. His ride from Timmins fell through at the last minute. It is about an 8-10 hour drive, depending on weather etc.
23Mr. Mason is Anastasia’s biological father. Anastasia was born after his relationship with Sierra broke up. He believes he may have commenced a family court proceeding regarding Anastasia when Sierra was in jail, but was fuzzy on the details and dates. He does not recall anyone in particular telling him that Sierra was in jail, he just saw it on Facebook posts and found out about the care agreement afterwards.
24Mr. Mason lives in a 2-bedroom home in Timmins with his partner Ocean Hardisty, their 3-year old daughter Octavia, and another daughter he shares from another relationship. Those two daughters and Anastasia love talking on video calls weekly. He has had four extended in-person visits with Anastasia and looks forward to more. He observes her to be healthy and happy in Ms. Buffalo’s care.
25Mr. Mason supports Ms. Buffalo’s application for primary residence and shared decision-making. Anastasia is only 4 years old, so there have not been a lot of big decisions to make yet, but he and Ms. Buffalo work well together and have been able to figure things out between them. Ms. Buffalo keeps him in the loop almost daily, and he feels he has a good understanding of his daughter’s life. He was opposed to Ms. Buffalo’s plan when the proceedings were initiated, but has come to realize that Anastasia is thriving in a stable, loving environment. He stated several times in his testimony words to the effect of “Making things better for Anastasia is what it’s all about,” “I’m willing to work with anyone to improve Anastasia’s future,” and “We’re all part of her family, she needs every one of us to have a role.”
26Ms. Moore and Mr. Mason have had very little contact in the last few years. Mr. Mason testified that he tried to reach out to Ms. Moore a few times, but since Ms. Moore had blocked him on social media, and she had nothing to do with his daughter’s life, he stopped. He does not have any first-hand knowledge of Ms. Moore’s relationship with Anastasia, or Ms. Buffalo – he only knows what he hears from Ms. Buffalo. He believes Ms. Moore should have time with Anastasia, and he feels he can work with her if they start communicating again. Ms. Hardisty testified that both Mr. Mason and Ms. Buffalo can provide the stability and love that Anastasia needs, but had no direct information to offer about Ms. Moore. She personally observed that Anastasia seems to be very attached to Ms. Buffalo. She also testified that while she has not spent much time with Anastasia, she helps facilitate the phone calls with the girls, and would treat her as her own if Anastasia lived with them.
27Mr. Mason has a recent criminal record. In his testimony, and his 35.1 affidavit, he made reference only to an assault conviction from 2023, but in his actual criminal record check there are also convictions for bail breaches. Those charges involve violence against Ms. Hardisty, but both testified they have reconciled and are working on bettering their relationship.
28Mr. Mason knows that he is of Ojibway heritage, but does not know what band or bands he is affiliated with, and does not have a status card. Ocean Hardisty is of the Moose Cree First Nation and is well-connected with her culture and community. Mr. Mason is not aware of what kinds of community resources might be available to his family, but Ms. Hardisty is.
Sonia Moore’s Evidence
29Ms. Moore represented herself throughout the trial and did a remarkably good job of it. She found it emotionally difficult to testify, but managed to get through the process. She was often difficult, argumentative, and non-responsive in cross-examination, not unlike Ms. Buffalo. Nonetheless, she was able to articulate her concerns and aspirations. She described her own troubled childhood, resulting in her being on her own from the age of 14. Her parents were part of the residential school system and did not know how to parent; nor did she have grandparents in her life. She found school boring and got into trouble. She has a criminal record and has had a difficult past. For a while when she was young, she lived in Ms. Buffalo’s house. Prior to Sierra’s birth, Ms. Moore knew she could not give her the life she wanted to give her. She asked Ms. Buffalo and her then-partner Mr. Royal to raise her, as she did not want to put the baby into care. It was the hardest thing she has ever done, and she regrets it now, despite it likely being the best available option at that time. Her own mother took her other two children from her, who were subsequently taken into foster care.
30Ms. Moore did not grow up knowing her indigenous culture, and has only started to explore and engage since Sierra’s death three years ago. She takes comfort and pride in her heritage and practices. Her father was from Mattagami First Nation, and Ms. Moore herself is a member of Fort Albany band.
31When Sierra died in January of 2022, Ms. Moore recognized that she was not in a position to assume care of Anastasia. She was working as a trucker, based in Alberta and Saskatchewan, and on the road a great deal. Nonetheless, she made arrangements to move to Thunder Bay in relatively short order. First, however, she put herself into a grief treatment program in Manitoba, which ended in late April of 2022. Since that time, she has been based in Thunder Bay.
32Ms. Moore credited Ms. Buffalo in her evidence with doing a good job raising Anastasia so far, but is very concerned that Anastasia will not be properly or sufficiently exposed to cultural teachings while in Ms. Buffalo’s care, and that Ms. Buffalo will not foster connections with Anastasia’s maternal side of the family. In particular, keeping Anastasia in Thunder Bay, when most of her paternal and maternal family is in Timmins, will isolate her from both sides of her biological family. Hearing Ocean Hardisty’s testimony, Ms. Moore believes that Mr. Mason’s home will be more culturally active and appropriate for Anastasia, especially if they can get some help from community resources. Ms. Moore and Mr. Mason have communicated and got along well in the past, and she believes they can do so again. Ms. Moore explained that she had blocked Mr. Mason on social media because she believed that their having contact would make life difficult for him with Ms. Buffalo. Ms. Moore’s position at the end of trial was that Anastasia should be removed from Ms. Buffalo’s care immediately and eventually put into Mr. Mason’s care, even though Mr. Mason has testified that he believes Ms. Buffalo is most capable of caring for her at this point. Ms. Moore proposes that she would be Anastasia’s primary caregiver until Mr. Mason can take her.
33In her testimony and argument, Ms. Moore emphasized several times that Ms. Buffalo did not participate in a healing circle, or attend the sacred fire that Ms. Moore had arranged after Sierra’s death. She believes she cannot deal with Ms. Buffalo until she finishes her healing. Ms. Buffalo testified that she is healing in her own way.
34Ms. Moore is also worried that Ms. Buffalo and Mr. Dance are too old, and in too poor health, to look after an active young child. She is also concerned that they allow Anastasia to witness altercations, such as those that have happened during exchanges.
35According to Ms. Moore, she and Anastasia have had fairly regular visits over the last two and a half years, roughly every two weeks, although she has missed perhaps ten visits altogether. Their visits do not generally follow the schedule set out in the temporary order of September 2022 – they are often longer, and often there are arguments over which days the visits will take place. Regardless, Ms. Moore testified that Anastasia is happy to see her, knows who she is, and the child has her own room, toys and furniture at Ms. Moore’s place. There have only been a very few overnights, including one at a hotel when Ms. Moore was between residences. Ms. Moore has been able to take Anastasia to pow-wows, which they both enjoy. Unfortunately, it appears that scheduling every visit is an ordeal. Ms. Moore’s evidence is in distinct contrast from Ms. Buffalo’s evidence that there have only been 7-10 visits altogether. I prefer Ms. Moore’s evidence on this point – if in fact she was not getting at least the visits outlined in the temporary order of September 2022, we would have heard about it loud and clear in court. I do not find that Ms. Buffalo was being deceitful on this point, she was merely incorrect.
36Ms. Moore produced records of some relevant conversations between herself and Ms. Buffalo about exchanges, however I find Exhibits 5a, b, and c to be unhelpful. Ms. Moore claims Exhibit 5 is an exchange between herself and Mr. Mason about Ms. Buffalo supplying Sierra with drugs. Mr. Mason has no recollection of it, and does not believe that Ms. Buffalo is an abuser or supplier of drugs. Ms. Buffalo also denies the allegations. The exhibits do not identify Ms. Buffalo. They contain bald conclusory statements like “she was the one who got Sierra addicted to drugs.” Taken at their highest, these texts confirm that the people in this conversation believed someone – perhaps Ms. Buffalo – was supplying Sierra with drugs. I can put no weight on that.
37Ms. Moore agreed that she has had several addresses in recent years, but explained that she has not actually moved around that much. Some of her addresses, such as the one on Cumberland, have been for mailing purposes only. She has lived alone at her current address on Victoria Avenue, since October of 2024. She has been reluctant to allow Ms. Buffalo to know her addresses, because they get along so poorly that she is worried about harassment. Ms. Buffalo admitted to peeking into the windows of an address on Johnson Avenue where she believed Ms. Moore resided, for the purpose of seeing if in fact she lived there. Ms. Moore testified that she moved out of her Hodder Avenue address because she was freaked out by someone window-peeping and did not know until this trial that it was Ms. Buffalo. Of note, Ms. Buffalo did not testify about going to the Hodder address, only Johnson Avenue. She agreed she often drives down Victoria Avenue, because it is a major street in that part of town.
38Ms. Moore is an accomplished woman, intelligent and articulate. She has no trouble finding work, anywhere, because she is a hydro-vac operator and has an A-C-Z licence. In her words, “I can drive anything they put me in.” Since these court proceedings have started, she has declined work that would take her from Thunder Bay, and instead has been upgrading her education to perhaps go into social work. She recognizes that if she cannot go back to trucking, due to her commitment to Anastasia, she needs a Plan B. Although she would rather not reside in Thunder Bay, as her extended family lives in Timmins, she is prepared to live wherever Anastasia lives. She will structure her life and work around Anastasia’s needs and schedule. She is also very willing to assist in transporting Anastasia back and forth to Timmins, or assisting in whatever other way she can.
39Ms. Moore argued that whoever raises Anastasia cannot just pick and choose who is involved in her life. When it was suggested that, given the opportunity, she would do exactly that, she answered that she would just like to be part of the discussion. She should not have to beg for things like medical information, she should be kept in the loop because she is the child’s grandmother.
40Much was made of the fact that Ms. Moore has not always identified who is in her company when she has Anastasia. She explained that sometimes she has an Uber driver – she cannot do a records check on a driver, and the driver doesn’t spend any time with the child. She prefers to have a third party, such as a driver, present at exchanges in case there are any problems. Her current regular driver is a man called Mr. Fritz, who Ms. Moore advises has no criminal record, and is a driver for Dilico. On another occasion, she testified that Ms. Buffalo wanted to know who would be in attendance on a visit, when the plan was to go to the city’s Santa Claus parade. Ms. Moore obviously could not identify who would be there or get records checked.
41Ms. Moore’s position on Anastasia’s best interests changed from the beginning to the end of the trial. She now advocates that she should have joint decision-making and parenting time with Mr. Mason, and that Anastasia should be placed into Mr. Mason’s care as soon as he is able to make it happen. Anastasia should be immediately removed from Ms. Buffalo’s care and placed with Ms. Moore, pending an improvement in Mr. Mason’s situation. She believes that Ms. Buffalo should step back and let Anastasia be raised by her blood relatives. Ms. Moore does not have a firm plan as to what that would look like, other than testifying that she would let Anastasia finish her school year in Thunder Bay and then move to Timmins. She is confident, based on her Timmins connections, that she would have no trouble finding a job or a place to live.
Minutes of Settlement
42At the commencement of trial, Ms. Buffalo and Mr. Mason filed Minutes of Settlement, vis-à-vis what those two parties agreed upon. Ms. Moore did not sign the Minutes of Settlement, and indeed the Minutes do not include any role for her in Anastasia’s life.
43The two parties have agreed that neither party would have final decision-making responsibility, but that they would share this responsibility.
44The two parties have agreed that Mr. Mason will have holiday and summer parenting time with the child to be decided between Ms. Buffalo and Mr. Mason.
45The two parties have agreed that Ms. Buffalo and Mr. Mason would agree on travel costs on a 50/50 basis.
46The two parties have agreed that Ms. Buffalo shall have the primary residence of the child in Thunder Bay, Ontario.
47The only holiday that Ms. Buffalo wishes to settle with finality is Christmas, and she agrees that she and Mr. Mason should have alternate years. In his written closing submissions, Mr. Mason reaffirmed the Minutes, and proposed a more detailed holiday schedule.
The Law
Relevant Legislation
48These proceedings are governed by the provincial Children’s Law Reform Act, RSO 1990, c. C-12 (“CLRA”). While a child protection agency was briefly involved when Sierra was incarcerated, there are no outstanding orders or actions, and there are no child protection concerns raised with or by any of the parties. The Court of Appeal stated in M.L. v Dilico Anishnabek Family Care, [2022] OJ No 1324:
63 In the absence of a valid customary care agreement, nothing in either the CYFSA or FLRs precludes the appellants from commencing a proceeding under the CLRA to determine what is in the child’s best interest. Indeed, the right to apply to a court for a parenting order respecting decision-making responsibility and parenting time under s. 21(2) of the CLRA is very broad: “[a]ny person other than the parent of the child, including a grandparent, may apply to a court for a parenting order respecting decision-making responsibility with respect to the child” and the court has the discretion to permit such an application to proceed.
49Section 24 of the CLRA lays out the relevant test for me to apply:
Children’s Law Reform Act (CLRA)
24 (1) In making a parenting order or contact order with respect to a child, the court shall only take into account the best interests of the child in accordance with this section. [emphasis added]
Primary consideration
(2) In determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.
Factors
(3) Factors related to the circumstances of a child include,
(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
(b) the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
(c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;
(d) the history of care of the child;
(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
(f) the child’s cultural, linguistic, religious, and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
(g) any plans for the child’s care;
(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
(i) the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child;
(j) any family violence and its impact on, among other things,
(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate on issues affecting the child; and
(k) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child
50Because Anastasia is an indigenous child, I must also consider An Act Respecting First Nations, Inuit and Metis Children, Youth and Families, SC 2019 c. 24. The Court in M.L. v. Dilico stated at paragraphs 72 and 73
72 A court applying the CLRA will be required to apply the national standards in deciding the appellant’s application.
73 In deciding the appellants’ CLRA application, the court will have to interpret these provisions to incorporate the national standards set out in the federal act and the CYFSA in a manner that harmonizes the legislation.
51This federal act came into force in 2020. It lays out a number of governing principles for courts and legislatures to apply when dealing with indigenous children, regarding the provision of child and family services, or child protection proceedings. The preamble and section 8 of the federal act outline the history and impact of colonialization on indigenous societies and families, and what must be done to try to remediate past injustices. Section 9 lays out the best interest principles relevant to our proceedings.
An Act Respecting First Nations, Inuit and Metis Children, Youth and Families (“the federal act”)
9 (1) This Act is to be interpreted and administered in accordance with the principle of the best interests of the child.
(2) This Act is to be interpreted and administered in accordance with the principle of cultural continuity as reflected in the following concepts:
(a) cultural continuity is essential to the well-being of a child, a family and an Indigenous group, community or people;
(b) the transmission of the languages, cultures, practices, customs, traditions, ceremonies and knowledge of Indigenous peoples is integral to cultural continuity;
(c) a child’s well-being is often promoted when the child resides with members of his or her family and the culture of the Indigenous group, community or people to which he or she belongs is respected;
(d) child and family services provided in relation to an Indigenous child are to be provided in a manner that does not contribute to the assimilation of the Indigenous group, community or people to which the child belongs or to the destruction of the culture of that Indigenous group, community or people; and
(e) the characteristics and challenges of the region in which a child, a family or an Indigenous group, community or people is located are to be considered.
52While section 10 of the federal act specifically addresses the best interests of children in the context of the provision of child and family services, or child protection apprehensions, the factors listed in (2) and (3) must be considered in the CLRA context as well.
(2) When the factors referred to in subsection (3) are being considered, primary consideration must be given to the child’s physical, emotional and psychological safety, security and well-being, as well as to the importance, for that child, of having an ongoing relationship with his or her family and with the Indigenous group, community or people to which he or she belongs and of preserving the child’s connections to his or her culture.
(3) To determine the best interests of an Indigenous child, all factors related to the circumstances of the child must be considered, including
(a) the child’s cultural, linguistic, religious and spiritual upbringing and heritage;
(b) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
(c) the nature and strength of the child’s relationship with his or her parent, the care provider and any member of his or her family who plays an important role in his or her life;
(d) the importance to the child of preserving the child’s cultural identity and connections to the language and territory of the Indigenous group, community or people to which the child belongs;
(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
(f) any plans for the child’s care, including care in accordance with the customs or traditions of the Indigenous group, community or people to which the child belongs;
(g) any family violence and its impact on the child, including whether the child is directly or indirectly exposed to the family violence as well as the physical, emotional and psychological harm or risk of harm to the child; and
(h) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.
16 (1) The placement of an Indigenous child in the context of providing child and family services in relation to the child, to the extent that it is consistent with the best interests of the child, is to occur in the following order of priority:
(a) with one of the child’s parents;
(b) with another adult member of the child’s family;
(c) with an adult who belongs to the same Indigenous group, community or people as the child;
(d) with an adult who belongs to an Indigenous group, community or people other than the one to which the child belongs; or
(e) with any other adult.
16(2.1) The placement of a child under subsection (1) must take into account the customs and traditions of Indigenous peoples such as with regards to customary adoption.
Caselaw
Best Interests – Generally
53This Court must determine what is in the best interests of the Anastasia, not the adults. Most of the relevant caselaw deals with feuding parents, however, it is helpful to analogize to the current situation.
54Anastasia’s best interests are not merely “paramount” – they are the only consideration in this analysis: Gordon v. Goertz,1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27 at para. 28; Mattina v. Mattina, 2018 ONCA 641 The court must ascertain a child’s best interests from the perspective of the child rather than that of the parents – Gordon v. Goertz. All parties bear the evidentiary onus of demonstrating where the best interests of the child lie, and there is no legal presumption in favour of maintaining the existing arrangements. See: Persaud v. Garcia-Persaud, 2009 ONCA 782 (C.A.); A.E. v. A.E., 2021 ONSC 8189 (S.C.J.), at para. 89; K.M. v. J.R., 2022 ONSC 111 (S.C.J.), at para. 71. The starting point to assess a child’s best interests when making a custody or access order is to ensure that the child will be physically and emotionally safe.
55The importance of preserving the child’s relationship with his or her psychological parent has long been recognized, because the relationship children have with their primary caregiver is crucial to their emotional and psychological welfare. See: F. v. N., 2022 SCC 51. The ultimate goal in crafting an appropriate decision-making regime is to promote the child’s “right to grow up within a parenting regime that is co-operative and effective, where decisions are made in a child-focused way and with the least amount of acrimony and stress.” See: McBennett v Danis, 2021 ONSC 3610 at para 96. The reasons of Mr. Justice J.C. Murray in the case of Jackson v. Jackson2008 CanLII 3222 (ON S.C.), [2008], 50 RFL (6th) 149, paragraphs 7 - 25 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. Minimizing conflict is in Anastasia’s best interests.
56The fact that two of the three parties are in agreement with what order should be made is not dispositive of anything. However, the father’s views should carry great weight, especially in light of the emphasis in the federal act of families having the autonomy to make their own decisions. In determining the appropriate decision-making responsibility regime, the court is required to consider all possible frameworks, and not simply those proposed by the parties.
57Naturally, Anastasia’s indigenous heritage is a critical factor in determining her best interest. In N.S. v. R.M., 2021 ONSC 4566, the Divisional Court found that the trial judge did not adequately consider the father’s indigenous heritage in crafting the parenting plan. The court wrote:
36If the father is to have the opportunity to teach the children about their Inuit heritage, he must have the opportunity to meaningfully immerse them in family and community events, and perhaps to travel with them to Labrador, where he is from.
37There is a long and shameful history in Canada of Indigenous children being removed from their Indigenous cultures. We have learned that it is crucial for Indigenous children to have strong connections to their Indigenous culture and identity. These children are not only Indigenous, but there is no question that their francophone roots and identity can easily be fostered in Montreal by the mother. It is necessary that the children also have the opportunity to learn about and embrace their Inuit roots.
38Although the trial judge made a specific order requiring the mother to make accommodation if the father has an Indigenous event in Ottawa so the children can attend with him, she did not consider more directly how the father’s parenting time would allow him to teach the children about their Inuit culture. This interacts with the maximum contact principle, and the children’s best interests, because the father needs meaningful time with the children to be able to teach them about their Inuit culture.
58My colleague Justice Gordon in C.N.L v G.A.M. [2023] OJ No 2500 neatly summed up the analysis of best interests of indigenous children, bearing in mind the federal and provincial legislation. At paragraph 61, Justice Gordon stated:
The best interests test must address the rights of Indigenous children which include the recognition of equality and a unique heritage, culture and language that must be allowed to continue as well as a relationship within an Indigenous community. The Indigenous child is allowed and encouraged to learn and participate in his or her heritage, culture, traditions and language, and to preserve the acquired identity of the community or nation to which he or she belongs. Accordingly, the best interests test takes into consideration the whole of the child in its many complex origins, all of which are important. The legislative changes reflect an attempt to overcome hundreds of years of oppression caused by colonialism, as well as the negative consequences from the residential school program, and work towards meaningful reconciliation.
59This does not mean that the child’s best interests will always result in being placed with the closest relative, or even necessarily an indigenous family. In Tikanagan Child & Family Services v R.M. [2024] OJ NO 3426 my sister Justice Baxter upheld the child being placed with a non-indigenous family. She found that the child would be at risk if placed with the respondents, and that the applicants would do a better job of reintegrating the child with her family and culture.
Grandparents
60Grandparents are not on equal footing with parents with respect to decision-making or time with children. Singh v. Batoolall 2009 CanLII 10681 (ON SC), [2009] O.J. No. 1046 (SCJ), Chapman v. Chapman, 2001 CanLII 24015 (ON CA), 15 RFL (5th) 46 (Ont. C.A.). Grandparents do not have a legal right of access to grandchildren. The test is always best interests, and the courts will give considerable weight to the wishes of the custodial parent. In the case at bar, I place significant weight on Mr. Mason’s wishes. The onus is on the grandparents to show that contact is in the children’s best interests. Where there is real conflict, a child’s best interests will rarely be served by a custody order. Great weight must be given to parental autonomy to determine what is best for their children. Morecroft v. Morecroft (1991) 1991 CanLII 12401 (NB QB), 122 NBR (2d) 271 (NBQB). However, parental wishes are not the exclusive criterion to consider.
61Justice Nelson set out a three-part test for grandparent access in Giansante v. DiChiara 2005 CanLII 26446 (ON SC), [2005] O.J. No. 3184 (SCJ).
One: Does a positive grandparent-grandchild relationship already exist?
Two: Does the parent’s decision imperil this relationship?
Three: Has the parent acted arbitrarily? Deference to parents may not be as strong when one of the parents has died and that parent’s family seeks access.
62In Capone v. Pirri, 2018 ONSC 6541, the court considered that to be a positive relationship, there must exist something more than an occasional pleasant experience with the child. The grandparent and grandchild relationship must consist of a close bond with strong emotional ties, deserving of preservation in order to displace the principle of parental autonomy. The court held that the legal threshold of a positive relationship for the court to consider superseding its deference to a parent is “necessarily a high one”.
63In determining what constitutes a “positive relationship” at all, court summarized following four elements in Torabi v. Patterson, 2016 ONCJ 210:
(a)
There must generally be a substantial pre-existing relationship between the relative and the child. Strong loving ties must exist based on time spent with each other.
(b)
That relationship must be a constructive one for child, in the sense that it is worth preserving. If relations between the parties are too poisoned, a previously positive relationship may not be capable of preservation.
(c)
This determination must include consideration of the child’s age, and time elapsed since the child last saw the relative.
(d)
If the young child has lost a parent, the existence of a strong pre-existing relationship may not be necessary when it is relative of lost parent who applies for access.
64In Ninkovic v. Utjesinovic, 2019 ONSC 558, Justice Madsen drew a parallel with the unavailability of a parent who was in jail to a child having lost a parent, in assessing whether the court should defer to a parent’s decision not to permit contact. Justice Madsen also set out the following factors to consider in engaging with the best interests analysis in the second part of the test at paragraphs 72 to 74 of her decision in Ninkovic:
72In considering, at the second stage, whether access to the grandparent is in the best interests of the child, an important consideration is the extent to which this would cause anxiety and stress for the parent, which in turn could have a deleterious impact on the child. For example in Barber v. Mangal, 2009 ONCJ 631, Justice Brownstone found that the intensity of the conflict between the parents and the grandmother seeking access was such that any access would be extremely stressful for the parents and “given their personalities, there is a very real and substantial risk that such stress would be visited upon the child.” See para. 17. At the same time, animosity does not necessarily preclude an access order. See para. 18.
73See also MacDonald v. MacDonald, CanLII 15444 in which Justice Pazaratz found that the “level of conflict between the applicant and the respondent is so overwhelming that any future contact will invariably result in the children and their family experiencing more upset, commotion, and grief,” and dismissed the grandmother’s request for access to her daughter’s children.
74A further consideration is whether an access order would destabilize the family unit. See Blackburn v. Fortin, 2006 CarswellOnt 3458. In that case, Justice Smith declined to grant access to a grandmother where significant tension existed between the grandmother and mother, the grandmother often imposed unsolicited views on proper child-rearing, and the grandmother had made a heavy handed attempt to change the parents’ decision regarding schooling. The court found that access could destabilize the family unit.
Decision-Making
65In Izyuk v. Bilousov, 2011 ONSC 6451, 2011 CarswellOnt 12097 (S.C.J.) at paragraph 504, the court summarized the perils of a badly-decided joint custody order.
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.
66In Kaplanis v. Kaplanis, 2005 CanLII 1625, the Ontario Court of Appeal stated that for joint decision-making to work between parents, the court must consider the following factors:
There must be evidence of historical communication between the parents and appropriate communication between them.
Joint custody cannot be ordered in the hope that it will improve their communication
Just because both parents are fit does not mean that joint custody should be ordered
The fact that one parent professes an inability to communicate does not preclude an order for joint custody.
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.
The younger the child, the more important communication is.
67In the case of S. (S.) v. K. (S.) 2013 CarswellOnt 10801, 2013 ONCJ 432, (Ont. C.J.) the court wrote that courts should assess the dynamics of a family when determining if a joint custody order is appropriate. Particularly, the court should examine if the granting of such an order is:
a) more or less likely to de-escalate or inflame the parents' conflict;
b) more or less likely to expose the child to parental conflict; and,
c) Whether a parent is seeking the order as a mechanism to inappropriately control the other parent. Parents who seek such orders for the purpose of asserting control over their former spouse and children, tend to be rights-based, overly litigious, unbending and the best interests of their children can be secondary considerations. For such parents, a joint custody order can be a recipe for disaster. It can become a springboard for that parent to assert control and make the lives of their former partner and children much more difficult.
68Evidence as to how an interim parenting order has worked, and in particular, whether the parties have been able to set aside their personal differences and work together in the best interests of the child, will be highly relevant to the ultimate decision regarding the appropriate decision-making regime. See: McBennett v. Danis, 2021 ONSC 3610.
69Parties living far apart creates a barrier to effective communication and joint decision-making. However, this is a hurdle that could be overcome if there is a modicum of trust and respect between the parties. This is essential if the parties are going to be able to effectively make joint decisions about the children. See: R.B.J. v. B.N.R.J., 2020 ONCJ 399.
Analysis
70The CLRA and the federal legislation both require that I consider ALL factors related to the circumstances of the child, and shall give primary consideration to Anastasia’s physical, emotional and psychological safety, security, and well-being. The individual, non-exhaustive factors in both acts largely correspond with each other.
The child’s needs, given the child’s age and stage of development, such as the child’s need for stability
This criterion is met best by the child remaining in Ms. Buffalo’s care. This is the only home Anastasia has ever known. Ms. Buffalo has lived in the same place for twenty years. Anastasia’s father acknowledges that all of Anastasia’s needs are being met. Transitioning her from one house to another, pending eventual placement in a third, is not beneficial
the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
Anastasia is closely bonded to Ms. Buffalo, who has been her primary caregiver for virtually her entire life. The child has obviously had less exposure to Mr. Mason and Ms. Moore, but Ms. Buffalo and Mr. Mason are making concerted efforts to develop and maintain the connection between Anastasia and her father’s side of the family. Ms. Moore seeks the opportunity to do the same
each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;
Mr. Mason and Ms. Buffalo are working together to strengthen this relationship. The relationships between Ms. Moore and the others needs work.
the history of care of the child;
By all accounts, Ms. Buffalo has done an excellent job thus far. Anastasia is happy, healthy, and loved. She is being raised by the woman who raised her mother.
the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
Anastasia is too young to provide input
the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage; AND the importance to the child of preserving the child’s cultural identity and connections to the language and territory of the Indigenous group, community or people to which the child belongs;
All parties agree that this is important. Ms. Buffalo is indigenous and is ensuring that Anastasia is educated about, and participates in, her traditional practices. She is happy to have Ms. Moore play a role in this aspect of Anastasia’s life, such as taking her to pow-wows. In Ms. Buffalo’s care, a strong connection to Mr. Mason and his family will be maintained, with trips to Timmins where Anastasia can visit extended family. A well-crafted order will help strengthen the bond with Ms. Moore and her side of the family as well.
any plans for the child’s care; INCLUDING care in accordance with the customs or traditions of the Indigenous group, community or people to which the child belongs;
I view this and the previous heading through the lens of s. 9 of the federal act, which highlights the important inter-relationship of cultural heritage to the best interests of an indigenous child. Ms. Buffalo and Mr. Mason’s plans reflect the status quo, which provides a stable, loving, capable home for Anastasia. Ms. Moore’s plans are less well-developed, likely as a result of her only recently concluding that the best option for Anastasia would be to be immediately removed from Ms. Buffalo’s care. Both Ms. Buffalo and Ms. Moore plan to ensure that Anastasia is encouraged to learn about and immerse herself in her cultural heritage. They disagree on what that looks like, but agree in principle that it is in Anastasia’s best interests.
the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
Ms. Buffalo is clearly willing and able to continue doing what she has been doing to parent Anastasia. Mr. Mason is not in a position to care for Anastasia full-time and wishes her to remain in Ms. Buffalo’s care. Ms. Moore is very willing, and may be able, but her plans involve a complete disruption of the only life Anastasia knows without a firm substitute.
the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child;
Herein likes the crux of these proceedings. Ms. Buffalo and Ms. Moore cannot communicate or cooperate. Ms. Moore and Mr. Mason may be able to cooperate. Mr. Mason and Ms. Buffalo cooperate well.
any family violence and its impact on, among other things,
(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate on issues affecting the child;
o While Mr. Mason has recently been convicted of family violence against Ms. Hardisty, they have reconciled and are working together to strengthen their family. Ms. Buffalo has observed Anastasia in that home’s environment and has no concerns for her well-being. Ms. Moore commends them for the work they are doing, and also has no concerns about Anastasia’s safety there
any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child.
This is not an issue in the case at bar
71Anastasia is a lucky little girl, in that she has many people who love her, however, she does not need multiple people fighting over decisions about her life. There are two strong-willed women who both believe they know the right path for Anastasia, and have difficulty seeing that the other’s way has merit. I have no doubt that everyone has Anastasia’s best interests at heart, but they do not all agree on what that looks like. Joint decision-making between Ms. Buffalo and Ms. Moore is not feasible, and joint decision-making among three parties is even less likely to succeed. Someone has to be in charge, for Anastasia’s sake, but that does not mean that others should be cut out of her life.
72Ms. Moore and Ms. Buffalo are much alike, in many ways. While testifying, they each became hostile and defensive. Despite being obstreperous, argumentative, and difficult, I do not believe that either woman, or Mr. Mason, was being actively deceitful. These two women have dug in their heels with respect to each other and are unwilling to budge in their views or positions. They are exhausted with each other, believe they are being bullied by each other, and perceive that the other’s position is “my way or the highway.” They are both right, to some extent. It is no mystery why they do not get along. Ms. Buffalo is perfectly capable of raising Anastasia, making good decisions for her, and ensuring she remains connected to her culture and paternal family. Ms. Moore may have different ideas on how Anastasia should be raised, and Mr. Mason may have ideas of his own, but that does not mean that they are better or worse ideas.
73Ms. Moore repeatedly mentioned that Ms. Buffalo walked away from a healing circle, and declined to participate in a sacred fire that Ms. Moore had arranged for Sierra. She cited this as an unwillingness to heal, and a lack of connection to indigenous culture. With respect, however, everyone heals differently – it is not up to Ms. Moore to dictate what Ms. Buffalo should or should not do to grieve or heal. Likewise, there is no “right” way to be indigenous. Every community, every group, and every family has their own ways. Just as Ms. Buffalo should not try to force her beliefs on anyone, Ms. Moore should also refrain.
74Ms. Buffalo is in a unique position to Anastasia. She is not an unrelated caregiver who was selected from a roster by a child protection agency, with no connection to the child or her family. Ms. Moore lived with Ms. Buffalo as a child. Ms. Buffalo was chosen by Ms. Moore to raise Sierra, Anastasia’s mother. She was chosen by Sierra to raise Anastasia and has been her de facto parent for Anastasia’s entire life. She has been chosen by Mr. Mason, Anastasia’s father, to raise his child. Ms. Buffalo is not a blood relation, but she has a generational history with Anastasia’s family, and of all people, is in the best position to give Anastasia personal knowledge of her mother’s life and experiences. Giving up a child must be one of the most brave and difficult decisions in life, yet Ms. Moore, Sierra and Mr. Mason have all made that decision out of love and concern for their children. It is the ultimate act of parental love and responsibility. The court cannot ignore the fact that Anastasia’s parents chose Ms. Buffalo to be her caregiver. She is raising Anastasia in a loving, stable household. She and Mr. Dance are capable of keeping up with her, and encouraging her cultural connections and relationships with extended family.
75Mr. Mason is Anastasia’s closest living relative. He should be the first in line placement. However, he is keenly aware of the limitations of his current situation, and has come to the responsible and mature realization that Anastasia’s best interests lie with Ms. Buffalo. While his opinion is not determinative of what the court should decide, I place great weight on his assessment of the situation and the Minutes he has signed. He is an indigenous man who is making what he believes is the best decision for his family, and absent serious concerns that it is not in the child’s best interests, the court should respect his autonomy to do so. He already knows he can work well with Ms. Buffalo, and has stated his willingness to work with Ms. Moore as well. However, there is no track record of Mr. Mason and Ms. Moore working together, and indeed there was some animosity between them during the trial. It would be devastatingly disruptive to upend Anastasia’s life by removing her from the only home she has known, which is loving and stable, to put her into an untested situation and trust that things will work themselves out (see Kaplanis).
76Ms. Moore is Anastasia’s next-closest adult relative. She has the child’s best interests at heart, as she perceives them to be. She is very focused on ensuring that Anastasia is firmly connected to her heritage and culture, and argues that Ms. Buffalo is not capable of doing that – certainly not to Ms. Moore’s standards, in any event. Ms. Moore has not presented a firm plan of care, most likely because her position changed well into the trial, after hearing Ms. Hardisty’s testimony. Ms. Moore has only lived in her current apartment since October of 2024. Frequent moves by one parent over a short period may constitute a lack of stability and structure contrary to the best interests of the child. See: Madill v. Madill, 2014 ONSC 7227 (Interim Order). She has stated her intention to set down roots wherever Anastasia resides, and work around her needs, whatever they may be.
77I find that there is a real risk that Anastasia will not be able to form a deep relationship with her maternal grandmother and that side of the family without the court’s intervention. Ms. Buffalo has not always kept Mr. Mason or Ms. Moore up to date with important developments, such as Sierra’s incarceration and eventual death. She has been very controlling of Ms. Moore’s access. She seems very willing to engage Anastasia with Mr. Mason’s side of the family, but much less so with Ms. Moore’s. Using the Giansante test, I am satisfied that Ms. Moore meets the test for grandparent access. There is already a positive relationship between her and Anastasia and they do important things together like go to pow-wows. Ms. Moore is the closest maternal blood relative Anastasia has. The relationship between Ms. Moore and Ms. Buffalo is toxic, and they both put Ms. Moore’s relationship with Anastasia at risk. Anastasia can be protected from exposure to the conflict, if the adults abide by a structured schedule and minimize contact with each other. The toxicity, on both sides, endangers the relationship between Anastasia and her maternal family, when the most important link, her mother, is not there to preserve it.
78Because it is clear that Ms. Buffalo and Ms. Moore cannot work cooperatively, I am going to create a schedule of visiting time for Ms. Moore for the next 18 months. It is not necessary to go into such detail with respect to Mr. Mason's parenting time. It can be worked around Ms. Moore’s time. It may be necessary for Ms. Moore to lose some time here and there to accommodate time with Mr. Mason. The parties can also decide whether or not Mr. Mason's time should be immediately adjacent to Ms. Moore's summer visiting time, to accommodate an extended stay in Timmins. They will have to have discussions about this. They can also, I hope, discuss whether the Respondent Moore can be involved in transportation arrangements, and in cultural events. With 18 months of consistently scheduled visits, it is hoped that the parties can carry on without further intervention of the court.
79It is not in Anastasia's interest that Ms. Moore and Ms. Buffalo see any more of each other, or interact with each other, any more than is absolutely necessary. Ms. Moore has expressed concern about Ms. Buffalo coming to her home, and it will be necessary to prevent that from happening. Exchanges will take place in a public place, unless the parties can agree to a peaceful alternative.
Decision
80I have considered the whole of the evidence, and the applicable law, including the interaction of the federal and provincial legislation. I have weighed it all, and made my determination of Anastasia’s best interests, including her physical, emotional and psychological well-being, including the importance of maintaining her connection to her cultural heritage, and come to the following conclusions.
81The primary residence of the child, Anastasia Ruby Rose Mason, who was born on […], 2020, will be with the Applicant, Rita Buffalo, in Thunder Bay
82The Applicant Buffalo, and Respondent Dawson Mason, will have shared decision-making responsibility for the child. Neither party will have final decision-making responsibility.
83As the Applicant Buffalo and Respondent Moore have not demonstrated an ability to communicate, it is in Anastasia’s best interest to have a written schedule of contact with Ms. Moore, as much as can be predicted. This schedule is not intended to be exhaustive or restrictive – if there are other times, events or occasions when Ms. Buffalo and Ms. Moore can agree upon visiting time, they are invited to do so.
o Commencing Tuesday 6 May 2025, the child Anastasia Ruby Rose Mason, DOB […], 2020, will have an in-person visit with the Respondent Moore every Tuesday from after school (or 4:30pm if pick-up at school is not available) until 7pm
o Commencing Friday 20 June 2025, the Respondent Moore will have an overnight visit with the child, from after school (or 4:30pm if pick-up at school is not an option) until 7pm on Saturday 21 June. The Respondent Moore and the child will have a one-overnight visit roughly the third Friday night of every month thereafter. For clarity, I am attaching a schedule of Friday overnights for the next 18 months. Some have been adjusted so as not to include a long weekend, when the child might be travelling to visit the Respondent Mason, and thus they are not always the third week of the month.
o Parenting time with the Respondent Mason will not interfere with the scheduled overnight visits with the Respondent Moore, unless Respondent Moore agrees and a make-up visit is scheduled. Tuesday visits with the Respondent Moore will not interfere with parenting time with the Respondent Mason, and there will not be make-up time.
o The Respondent Moore will be in the company of the child at all times during her visits. The child will not be left unattended with any other person or people.
o When the child is having an overnight visit with the Respondent Moore, the child will enjoy a video visit with the Applicant Buffalo and/or Respondent Mason if the child requests to do so.
o The Respondent Moore will enjoy a video visit with the child at any time, at the child’s request.
o The Respondent Moore will enjoy one week with the child, commencing Friday 15 August 2025 at 4:30pm, until Sunday 24 August 2025 at 4:30pm. She may take the child to visit relatives, but must ensure that the child is not left unattended in the company of any other person or people during that time – the Respondent Moore must be in the child’s presence at all times.
o The Respondent Moore will enjoy one week with the child, commencing Friday 14 August 2026 at 4:30pm, until Sunday 23 August 2026 at 4:30pm. She may take the child to visit relatives, but must ensure that the child is not left unattended in the company of any other person or people during that time – the Respondent Moore must be in the child’s presence at all times.
o If the Respondent Moore is in Timmins during times that the Respondent Mason is exercising parenting time, she is not to contact the child or Respondent Mason, or interfere with that parenting time in any manner, except as expressly invited by the Respondent Mason or initiated by the child.
o The Respondent Moore may enjoy in-person visiting time with the child for any cultural events, as agreed upon with the Applicant
o Other than pick-ups after school, exchanges between the Applicant Buffalo and Respondent Moore will take place at the McDonald’s on Arthur Street, Thunder Bay. Ms. Buffalo will not attend at the property of Ms. Moore's residence, unless it is for consensual pre-arranged pick-up or drop-off of the child.
o The Respondent Moore will be provided with a copy of the child’s end-of-year report card within two weeks of its release
o The Respondent Mason will have full access to the child’s school and medical records
o The Respondents Mason and Moore will be notified within 48 hours of any medical emergency or serious medical event in the life of the child. Should a medical situation arise while the child is in either of their care, the Applicant Buffalo will be immediately notified.
o All parties will refrain from annoying, molesting or harassing the others
o All parties will refrain from making disparaging comments about each other, or permitting anyone else to do so, while the child is in their care.
o All parties will refrain from exposing the child to conflict and adult discussions, including parenting time, visits, and decision-making
o All parties will ensure that the child is not left unsupervised in the company of any person who has been found guilty of any sexual offence, or any offence of violence involving children.
o Under all the circumstances, no child support is ordered to be paid by or to any party.
84Subject to the provisions below, holiday and summer parenting time with the child and her father will be decided between the Applicant Buffalo and Respondent Mason. Travel costs will be shared on a 50-50 basis. Video parenting time with the Respondent Mason will continue to be arranged as desired between those two parties.
85Holiday time with the child will be allocated as indicated below. It largely follows the schedule suggested by the Respondent Mason.
Thanksgiving: Shall be alternated between the Applicant and Respondent Mason, with the Applicant Buffalo having the child in her care in in even numbered years and Respondent Mason having the child in his care in odd numbered years.
In the event that it is not possible for the father or child to travel to enjoy this holiday together, the Applicant Buffalo and Respondent Mason will make other arrangements, such as video time.
The Respondent Moore will have a video visit with the child on Thanksgiving Sunday, for as long as the child wishes, commencing at 1 pm. More access may be determined among the parties.
Easter: In odd-numbered years the Applicant shall have the child in her care for Easter and the respondent Mr. Mason shall have the child in his care for Easter in even-numbered years.
o In the event that it is not possible for the father or child to travel to enjoy this holiday together, the Applicant Buffalo and Respondent Mason will make other arrangements, such as video time.
o In the event that the child is in Thunder Bay for the Easter weekend, the Respondent Moore will have an in-person visit on Easter Monday, from 2pm to 7pm. More access may be determined among the parties.
- Halloween: Shall be discussed between the Applicant Buffalo and Respondent Mason.
o In the event that the child is in Thunder Bay for Halloween, the Respondent Moore may have a 15-minute in-person visit, at the child’s location at 4:30pm to give the child treats and see her costume. More access, such as taking the child trick-or-treating, may be determined among the parties.
- Christmas: The child will be in the care of the Applicant Buffalo in even numbered years. The child will be in the care of the Respondent Mason in odd numbered years.
o In the event that it is not possible for the father or child to travel to enjoy this holiday together, the Applicant Buffalo and Respondent Mason will make other arrangements, such as video time.
o The Respondent Moore will have an in-person visit with Anastasia all day on 27 December, from 8am to 8pm. More access may be determined among the parties. If the child will be travelling over Christmas and will not be in Thunder Bay on 27 December, this Christmas visit with the Respondent Moore will take place on the first Saturday after school closes for the holidays (eg Saturday 20 December 2025).
- New Year’s Eve: The child will be in the care of the Applicant Buffalo in even numbered years. The child will be in the care of the Respondent Mason in odd numbered years.
o In the event that it is not possible for the father or child to travel to enjoy this holiday together, the Applicant Buffalo and Respondent Mason will make other arrangements, such as video time.
Father’s Day: The child will be in the care of the Respondent Mason. In the event that it is not possible for the father or child to travel to enjoy this holiday together, the Applicant Buffalo and Respondent Mason will make other arrangements, such as video time.
Mother’s Day: Shall be discussed among all three parties.
o If the child is present in Thunder Bay, the Respondent Moore will have an in-person visit of two hours, from noon until 2pm. If the child is not in Thunder Bay, they will have a video visit for as long as the child wishes, commencing at noon. More access may be determined among the parties.
- Birthdays: Shall be discussed among all three parties. Every party will have, at least, a video visit with the child on the adult’s birthday, for as long as the child wishes, commencing at 5pm.
o Every party will have, at least, a video visit with the child on her birthday, for as long as the child wishes. The video call for Ms. Moore will take place at 4:30pm
o If the child is in Thunder Bay on her birthday, the Respondent Moore will have a 15-minute visit at the child’s location to deliver presents at 4:30pm. More access may be determined among the parties
Canada Day: Shall be discussed among all three parties.
Family Day: Shall be discussed among all three parties
National Indigenous Person’s Day 21 June: The Respondent Moore will have visiting time with the child from after school (or 4:30pm if pick-up after school is not available) on 20 June until 8pm on 21 June every year.
o If Father’s Day falls on 20, 21 or 22 June, parenting time with the Respondent Mason will take priority over the Respondent Moore’s visiting time.
86It is my fervent desire that with these basic issues and a basic schedule being decided, the parties can move on with the next steps in their respective relationships with each other, for the benefit of Anastasia.
Released: 1 May 2025
Signed: Justice E. A. Burton
SCHEDULE OF OVERNIGHT TIME WITH THE RESPONDENT MOORE
20-21 June 2025
18-19 July 2025
15-24 August 2025
19-20 September 2025
17-18 October 2025
21-22 November 2025
12-13 December 2025 (to allow for Christmas travel the following weekend if needed)
16-17 January 2026
6-7 February 2026
20-21 March 2026
17-18 April 2026
8-9 May 2026 (to allow for Victoria Day travel the following weekend if needed)
5-6 June 2026
17-18 July 2026
14-23 August 2026
18-19 September 2026
23-24 October 2026
20-21 November 2026
11-12 December 2026