Court File and Parties

COURT FILE NO.: F312/17 DATE: June 19, 2019

ONTARIO

SUPERIOR COURT OF JUSTICE

FAMILY COURT

BETWEEN:

Pamela Clare Hutchinson Applicant

Robert Haas for Pamela Clare Hutchinson

- and -

Kaitlyn Ann Ross and David Walter Donald Ross Respondents

Hamoody Hassan for David Walter Donald Ross Kaitlyn Ann Ross in person

HEARD: December 3, 4, 5, 6, 7, 10, 12, 13, 14 of 2018; January 9, 10 of 2019; April 16, 17, 18, 26, 29 of 2019; and May 2, 3, 13 of 2019

TOBIN J.

REASONS FOR JUDGMENT

INTRODUCTION

[1] The central issue in this case concerns the custody of, and access to, the child, Dallas David Ross, born April 26, 2012 (the child).

[2] Pamela Clare Hutchinson, the applicant, is the child’s maternal grandmother (maternal grandmother). The child has resided in her care since January 2017. She has provided a safe and stable home for the child following the breakdown of his parents’ relationship. She wants the court to grant her custody of the child.

[3] Kaitlyn Ann Ross, a respondent, is the child’s mother (mother). She supports the maternal grandmother’s request for an order placing the child in her care and custody.

[4] David Walter Donald Ross, also a respondent, is the child’s father (father). While acknowledging his inability to care for the child immediately following his separation from the mother, he now asserts that he is willing and able to do so. He seeks an order granting him custody of the child. He argues that the child’s placement with the maternal grandmother should end and he should have custody of the child because of his present ability to be a good parent.

FACTS

A. 2007 to 2012 (Birth of the Child)

[5] The mother, who was born June 13, 1986, and the father, who was born February 27, 1986, began their relationship in 2007. They married in 2008 and then resided in St. Thomas. The mother and father had little contact with the maternal grandmother following the marriage. According to the mother, whose evidence I accept on this point, the father felt that the maternal grandmother did not like him, so to avoid conflict, she curtailed her communication with the maternal grandmother.

[6] By the fall of 2010, the parents experienced discord in their marriage. The father was unhappy. The mother wanted to separate. She was fearful of the father’s temper. They eventually listed their home for sale but continued to reside under the same roof. Incidents of conflict occurred. The police were called on November 4, 2010 to help keep the peace while the mother removed personal items from the home. The police were called again on December 10, 2010 as a result of arguments they continued to have. The mother testified, and I accept, that there was abusive behaviour directed toward her by the father: destruction of personal property – he smashed a childhood ornament of the mother’s with a sledgehammer.

[7] They were able to sell their residence, eventually. On January 2, 2011, the mother and father met at their realtor’s office to sign documents finalizing the sale. Sometime after the appointment that day, the father, while driving in his car, saw the mother in her car with another person. He began to follow the mother’s vehicle in his. He then tailgated the mother’s vehicle, then passed it and pulled in front of hers, stopping abruptly, causing the mother to brake to avoid a collision. The father then got out of his car and went over to the mother’s. He opened the mother’s driver’s side door, grabbed her car keys and threw them outside of the car. He then pushed the mother aside and tried to hit her passenger. The father then left and, because he heard the passenger call the police, he went to the police station where he was later charged with assault. He pleaded guilty to this offence. He received a suspended sentence, with 15 months probation. One of the probation terms was that he attend counselling regarding domestic violence and for anger management at Changing Ways.

[8] The maternal grandmother helped the mother following this separation. The mother moved into the maternal grandmother’s home for some time before finding her own apartment.

[9] The parents subsequently reconciled and they resumed cohabitation at the mother’s new residence.

[10] The maternal grandmother and mother became estranged again following this reconciliation. This estrangement lasted until the day the child was born.

B. 2012 Birth of the Child – August 2016

[11] Prior to the birth of the child, both the mother and father were working.

[12] The child was born April 26, 2012. He was described by the mother as a healthy and happy infant. On the day the child was born, the mother invited the maternal grandmother to come visit her grandson. She did and their estrangement ended.

[13] The mother took a one year maternity leave from her employment. The father took a week off from his employment following the child’s birth to help at home.

[14] In early 2013, the parents and child were living in a townhouse. The maternal grandmother and her partner, John Kuipers (Mr. Kuipers), helped the mother and father move to this townhome. They helped them build a fence for the parents’ dog and purchased a washer and dryer for them.

[15] When the parents wanted a night out, which happened approximately every couple of weeks, the maternal grandmother would care for the child.

[16] The paternal grandparents saw the child a couple of times. They cancelled a few visits that had been arranged to see the child. One reason was their not having enough gas money to make the drive. These cancellations angered the father, so he stopped having any contact with his parents for the next two to three years.

[17] In April 2013, the mother returned to her employment on a part-time basis, working odd shifts from 4 p.m. until 10 p.m. two or three times per week. The maternal grandmother helped with childcare when both parents worked.

[18] The mother developed what she described as social anxiety because of the father’s controlling behaviour.

[19] The mother changed employment and began working at a factory in Ingersoll. Her employment required her to work six days each week from Monday to Saturday. Her shift began at 3 p.m. and ended at 11 p.m.

[20] The father also obtained employment that required him to work two weeks on afternoons, followed by two weeks on days.

[21] When both parents were on afternoon shifts, the maternal grandmother would care for the child. The mother would bring the child to the maternal grandmother’s home on Monday morning, where he would stay until the father picked the child up after his shift ended on Friday night. This saw the maternal grandmother care for the child two weeks out of every four. She also had the child in her care quite often on the weekends. This arrangement started in early 2015.

[22] The maternal grandmother’s employment was quite flexible insofar as the hours that she had to work. She was able to work in the evenings.

[23] When the child was in her care, they were together all day. She was supported in this responsibility by her partner, Mr. Kuipers, who was home in the evenings and on the weekends.

[24] In the summer of 2014, the parents wanted to move. The maternal grandmother and they looked for a suitable home for them to live in. Over a number of months, they saw approximately 20 different homes. Finally, they found a home in London they all liked. The maternal grandmother purchased the home for them in November 2014. The parties moved in just before Christmas of that year. The parties rented the home from the maternal grandmother in an amount that was within their budget.

[25] The two out of every four week care arrangement continued until September 2016. In this period, the child developed a close relationship with his maternal grandmother. Her home was suitable to meet the child’s needs. Her flexible work schedule, and the parents’ work schedule, allowed her to spend considerable time with him. The maternal grandmother was also involved with the child’s school. She and Mr. Kuipers would attend school meetings when the parents were not able to.

[26] During this same period, the maternal grandmother and father developed a closer relationship than they had had. The father spoke with the maternal grandmother about his childhood and his relationship with the mother. He spoke about the relationship his parents had while he was growing up – there was conflict and violence – and that he did not want the child to experience that type of behaviour. He also spoke about his childhood mental health problems.

[27] The maternal grandmother saw herself as a confidante of the father. He would communicate with her by text, email and phone. This contact became more regular, if not constant, in 2016 when, again, there were problems in the parents’ relationship.

C. August 2016 to January 2017

[28] By mid-August 2016, the relationship between the father and the mother was most troubled. The mother went out often to avoid being home and engaging in arguments with the father. Her not coming home upset the father. The father did not trust the mother. He read her social media accounts. He logged onto her Facebook account, pretended to be the mother and made posts. He pretended to be the mother while engaging in electronic conversations and texts with her friends. He installed a tracking application on the mother’s cellphone so he could find out where she was at all times. He believed the mother was seeing other people or having an affair.

[29] The child, who was then four years old, was exposed to some of these arguments.

[30] On one occasion in mid-August 2016, when the mother did return home with some friends, the father began smashing things in the home, as well as her car window.

[31] A few days after that incident, the father went to the mother’s place of employment as she was completing a shift. Because he thought the mother was in the car with another person, he jumped on the hood of that car. It turned out that the mother was not in that car. When he did see the mother get into her car, he got into the passenger’s side. He then put a strap from the child’s diaper bag around his neck, wanting to hang himself. He said to the mother he wanted her to help him die. He butted his head against the windshield of the mother’s car hard enough that it broke. After that, he got out of the car and lay in the middle of the road, hoping to be run over.

[32] On September 1, 2016, he attempted suicide by turning on his car in a closed garage. Before losing consciousness, he began to think about his son and turned the car off.

[33] On September 2, 2016, the mother returned home with two friends. The father had been drinking and insisted that she stay home with him. When the mother declined, the father became upset and was yelling. The mother then left. Later that evening, the mother received a call from a neighbor about her dog being outside. When the mother returned, she saw the police at their home, removing the father. The police had been called by a friend of the father. The police report of this incident discloses that the police saw a broken “bottle of alcohol smashed to pieces on the kitchen floor and various items strewn about.” The police officers attending made the determination that the father “was an immediate danger to himself.” The father was taken to and admitted to hospital for a mental health evaluation.

[34] The child had been in the care of the maternal grandmother on these two occasions.

[35] Following his release from hospital, the parties attempted some couples counselling but to no avail.

[36] The father’s supervisor at work gave him an employee assistance program brochure. The father then scheduled an appointment with a counsellor through this program.

[37] On September 15, 2016, the father met with a counsellor referred by the employee assistance program. At this first meeting, the counsellor observed the father to be “emotionally unstable.” She recommended therapy and medication.

[38] After this meeting, the counsellor called the maternal grandmother to advise her to take care of the child. The child was already at the maternal grandmother’s home and she agreed to keep the child with her.

[39] The child stayed in the care of the maternal grandmother until the end of October 2016.

[40] Four days after this initial counselling session, the counsellor contacted the Children's Aid Society of London and Middlesex (the Society) to report on her meeting with the father. In due course, a Society worker began an investigation.

[41] The maternal grandmother observed that, in mid-September 2016, the child “was a different boy.” In the past, he would get up in the morning and right away would want to go outside. But, at that time, he did not want to leave the living room of the maternal grandmother’s home. He did not want to go back to school. By October 2016, the child was being aggressive at school. He would hit, push and bite others. This was a change in his behaviour. While in the care of the maternal grandmother from mid-September to the end of October 2016, she had to go to the school five or six times to pick the child up. As well, his eating habits changed such that he would only eat a few things.

[42] The evidence presented by the mother and father about their attempts to reconcile or not, in this timeframe, was not very clear. Rather, they were able to describe certain incidents that occurred.

[43] At times, the parents continued to reside together in their home.

[44] On September 26, 2016, the police were called to their residence. The parents had been arguing about a message the father saw on the mother’s cellphone. There was a physical struggle over the cellphone and the mother’s car keys. The matter resolved with: (1) the maternal grandmother going to the home, as she had been called by the mother for help; (2) the father giving over the house and car keys to the mother; and (3) the father leaving, intending only to return later that week to retrieve belongings that he was not able to take that day.

[45] The mother was spending time both at her and the maternal grandmother’s home.

[46] The father went to the maternal grandmother’s home a few times to see the child.

[47] As part of her investigation, the Society worker went to the maternal grandmother’s home. She observed a happy child, who was “very attached to [the maternal grandmother] throughout the visit.” Also, as part of the investigation, the Society worker was told by the father that his mental health and his relationship with the mother was “not good and he didn’t want the child around it.” He agreed with the child staying with the maternal grandmother at that time.

[48] The mother started a court case against the father. On October 12, 2016, Grace J. made an order on motion brought by the mother: (1) on an interim interim without prejudice basis maintaining the status quo; and (2) that the father’s access to the child be arranged through, and supervised by the maternal grandmother. The father was assisted by counsel that day.

[49] On October 18, 2016, the mother reported to the Society worker that she had filed for custody, the father had supervised access and that she had no intention of reconciling with him.

[50] The Society closed its file on November 12, 2016 because the mother and the maternal grandmother were “acting protectively” and the father stated “he intends [to continue] with his mental health support.”

[51] Despite all that had happened, the mother and father spoke again. The father convinced the mother to try and reconcile because “wouldn’t it be better,” he said “if the child had two parents?” The mother agreed and, on October 24, 2016, she signed a notice of withdrawal of her case. The notice of withdrawal was filed with the court the next day. On November 8, 2016, the father and his counsel attended Family Court to confirm that the case was not proceeding.

[52] Slowly, they brought the child back into their care.

[53] On November 14, 2016, another incident between the mother and the father took place. This incident also involved the child and the paternal grandmother. It took place at the paternal grandmother’s ninth floor apartment.

[54] With respect to this November 14, 2016 incident, where the evidence of the mother, father and paternal grandmother differ, I accept the evidence of the mother as being more reliable and credible.

[55] On this day, the father sent the mother a text to the effect that he took money from their home that had been given to her. He said that he and the child were at the paternal grandmother’s apartment and if she wanted the money back, she had to go to that apartment to retrieve it.

[56] The father’s evidence was that he took $20 because the child needed lunch money for the next day. The mother said he took $200. The mother wanted to meet the father at a neutral location but he said that she was to come to the paternal grandmother’s home.

[57] The mother did go to the apartment at around 9:30 p.m. When she arrived, the father and paternal grandmother were there. The child was in the paternal grandmother’s bedroom and the door was closed. Either the paternal grandmother or the father took away her keys and phone and the father locked the apartment door. The paternal grandmother began yelling at the mother about her “cheating” on the father. The mother testified, and I accept, that the father also yelled at her and called her names. The mother was crying and scared about what was happening. After this had gone on for a while, the mother thought that if she went outside on the apartment balcony for fresh air, she could recover and, if she saw someone, could request that they call the police. In response to the mother wanting to go outside on the balcony, the paternal grandmother told her she could leave “if you jump off the balcony.” When asked about this in cross-examination, the paternal grandmother said she yelled at the mother: “I gave her tough love.” When asked in cross-examination if she told the mother to leave by the balcony, the paternal grandmother responded “I don’t recall. I may have.” Her recollection was vague and designed to protect the father.

[58] The police were called by either the father or the paternal grandmother. They were dispatched to an “overdose / attempt suicide call.” When they arrived, they found the father attempting to calm down the mother. After interviewing the persons present, the police transported the mother to her house.

[59] I find on the evidence presented that the father and paternal grandmother intentionally set up the mother in an attempt to compromise her and have the police bear witness. I find that this was the paternal grandmother’s attempt at tough love.

[60] While this incident was going on, the child came out of the bedroom a couple of times. He was crying and needed comfort, which the mother and father tried to give.

[61] The next day, the mother called the father about her car, which was at the paternal grandmother’s building. The father insisted that the mother speak to the paternal grandmother when she was there. The paternal grandmother apologized to the mother. The two have not spoken since. But the mother and father did. They wanted to work things out.

[62] The father returned to their home and continued with three further counselling sessions through his employee assistance program. The last session occurred November 26, 2016.

[63] The parents, child and maternal grandmother and Mr. Kuipers went on a weeklong trip to Disney World in early December 2016. The trip, which had been booked much before the difficulties arose, took place without any negative incidents.

[64] Following their return from Disney World, relationship issues between the mother and father arose.

[65] On Christmas Eve 2016, the parties argued. The child was sleeping. During this argument, the father tied a rope around his neck. He threatened to hang himself by jumping over the second floor bannister. The child appeared and saw what was happening. He covered his eyes and was crying. The mother begged the father to stop. All three were crying. The father then took the rope off his neck and both he and the mother tried to comfort the child. The father told the mother not to call the police because, if she did, the child would be taken away. I also accept the mother’s evidence that the father also said “and if they don’t, I will take him from you.”

[66] A reflection of the child’s state of mind at this time was revealed in a statement he made to the effect that, with the walkie-talkie he received for Christmas, he may need to call the police if “mommy and daddy are fighting.”

[67] The parties continued to have arguments that were loud and profane, some of which happened in front of the child.

[68] Throughout the fall and early into 2017, the father sent numerous emails and texts to the mother. In late December or early January, the father deleted all evidence of the communication he had with the mother so that she could not use it against him.

[69] By early January 2017, the parents did take steps to separate.

[70] The parents prepared a separation agreement that provided the child would be in the father’s care three weeks and with the mother one week each month.

[71] The maternal grandmother was asked to witness the agreement. She refused because she disagreed with the childcare plan. When she was contacted about the separation agreement, the parents had already started their three week and one week childcare arrangement. The separation agreement was never signed.

[72] The mother continued to reside in her home and arranged for a male friend to move in. The maternal grandmother thought this was most inappropriate so soon after the father moved out.

[73] The father stayed with friends at their home. When the child was with him at the friends’ home, both he and the child were sleeping, at least some of the time, on a mattress that was on the floor.

[74] The parents were arranging unreliable babysitters through Kijiji. On one occasion, when a Kijiji babysitter did not show up, the maternal grandmother was called for help.

[75] The maternal grandmother was very concerned about the way the parents were looking after the child. Because of her concern, she contacted the Society on January 19, 2017. She also asked the father to stay with her at her home when he had the child for that weekend.

[76] On January 20, 2017, the maternal grandmother picked up the child from school and took him to her home. The father, as previously arranged, came to her home after work that night. The father had agreed to this plan. He knew it was endorsed by the Society. He stayed with the maternal grandmother for a number of days. This arrangement ended when the maternal grandmother became concerned about the father’s odd behaviour. He thought someone was watching him.

[77] The mother also acquiesced to this arrangement.

[78] The maternal grandmother wanted her conversations with the Society workers to remain anonymous “to avoid [the parents] alienating her from their lives” as she was the only stable person in the child’s life. It was that fear that previously stopped her from reporting to the Society.

[79] On January 19 and 20, 2017, the father and maternal grandmother texted one another concerning the care of the child. In these texts: (a) the maternal grandmother was critical of the mother’s motivation for and her behaviour concerning the child, especially having a man move into her home; (b) the two discussed short-term steps that could be taken to protect the child, including having the father and child stay with her; (c) the maternal grandmother informed the father that she was asked to witness the separation agreement by the mother and she told her she would not; and (d) the maternal grandmother said she “would never try to take [the child] from you … He needs you guys. I am old. I may not live long enough to see him grow up in the meantime. I would like to do as much as possible for him.”

[80] The maternal grandmother’s evidence was that, while she did have text conversations with the father similar to what was in the texts produced, she could not be sure if these were the full messages and that they were accurately presented.

[81] I am satisfied that the texts are authentic and were exchanged between the maternal grandmother and father on January 19 and 20, 2017. The maternal grandmother acknowledged text conversations of the nature set out in these texts. As well, these texts are consistent with the maternal grandmother’s evidence that she wanted to keep lines of communication open with both parents. This was her rationale for wanting the extent of her Society contact withheld from the parents.

[82] The child has remained in the care of the maternal grandmother since January 20, 2017.

[83] On February 15, 2017, the child began attending the junior kindergarten school associated with the maternal grandmother’s residence. He has continued going to this school since that time.

LITIGATION HISTORY

[84] The maternal grandmother expressed to the Society worker her wish to seek a custody order during an interview they had on February 16, 2017. The worker referred her to the Family Law Information Centre for legal advice.

[85] On March 3, 2017, the maternal grandmother started this case.

[86] On March 29, 2017, Mitrow J. granted the maternal grandmother interim interim without prejudice custody of the child pursuant to a consent endorsement request signed by all.

[87] On April 12, 2017, McSorley J. granted an order that was based on another consent endorsement request filed by the parties. It provided inter alia:

1. the maternal grandmother have interim interim custody;
2. the mother have reasonable interim interim access on Sundays at times as agreed with the maternal grandmother; and
3. the father was to have interim interim supervised access on alternate Saturdays at Merrymount Children’s Centre (Merrymount). After six visits at Merrymount, it was to deliver a supervised access report.

[88] An order requesting the involvement of the Children’s Lawyer was made by Rady J. on October 18, 2017. The Children’s Lawyer did assign a social worker to complete a Report of the Children’s Lawyer pursuant to s. 112 of the Courts of Justice Act, R.S.O. 1990, c. C.43. This report is dated April 12, 2018 and has been filed with the court, as has the father’s statement of dispute (May 2, 2018) and the Children’s Lawyer response (June 5, 2018).

THE CHILD IN THE CARE OF THE MATERNAL GRANDMOTHER

[89] The child lives with his maternal grandmother and Mr. Kuipers. Their property is a 51 acre hobby farm, with a number of outbuildings and barns. It has five fenced paddocks, a large pond that is used for fishing in the summer and skating when it freezes over in the winter. The maternal grandmother and Mr. Kuipers grow hay and have livestock that includes miniature donkeys. The child helps them with some chores, including caring for the livestock. There is a racetrack on the property that is used for go-karts. The child has toys that include a battery operated jeep and John Deere tractor. The maternal grandmother observes that the child enjoys his time with the animals and helping around the farm. The home in which they reside has the amenities needed to meet the child’s needs. He has his own bedroom, electronic devices and experiential playground with slides and a climber.

[90] The child has behaviour problems that manifest at school as “hands on” behaviour. At school, he is described as a social child, who wants to participate and be with his classmates. Academically, he is progressing in the average range. He is also observed to be, at times, kind and caring with his classmates and teachers. At school and in the maternal grandmother’s home, the child struggles with transitions and can become frustrated. This causes him to be physically aggressive with other students. The maternal grandmother and Mr. Kuipers know very well the child’s emotional needs and how to accommodate and manage them. It is because of this that the maternal grandmother sees very little negative behaviour from the child in her home.

[91] The maternal grandmother and Mr. Kuipers have sought assistance from the Oxford Elgin Support Services to explain the sources of the child’s behaviour. The child has also attended with a play therapist for approximately four months.

[92] At Southwold School, the child benefits from many accommodations and supports he receives. His teachers and other school personnel have spent time considering the child’s needs, so that he may be successful in his education. For example, he is given:

1. preferred seating in his class;
2. gadgets and sensory toys to help him focus;
3. consistent rules and schedules;
4. a lot of warning before transitions;
5. a special cube seat to keep him in his space;
6. a modified recess; and
7. a lot of praise for positive behaviour.

[93] Though the child’s behavioural incidents at school have lessened in frequency, school records disclose that they still occur a few times a month.

[94] The child and Mr. Kuipers are very close. He calls him Grampy. They spend time together outdoors doing activities. The child likes to help him cook. Together, the maternal grandmother and Mr. Kuipers have cared for the child and are willing to do so for the long-term. The maternal grandmother recognizes the responsibilities involved in caring for the child and is willing to accept them.

[95] The maternal grandmother is with the child almost all the time he is not in school. She describes as being “in synch” with him. The child, she testified, is perfect at home if it is “stable and things are repeated and loud noises are avoided.” The maternal grandmother has observed that loud noises make the child distraught. She and Mr. Kuipers have a regular routine they adhere to with the child beginning in the morning when he gets up and continues until he goes to bed at night.

[96] The child looks to the maternal grandmother for comfort and security. In this environment, the child is easy to get along with.

[97] The maternal grandmother’s employment commitments are such that she has the flexibility to care for the child. She works from home and very seldom needs to travel. She also has support from Mr. Kuipers in caring for the child.

FATHER’S ACCESS

[98] It took a number of months after the order of McSorley J. was made before access started. The first visit took place on September 2, 2017. It took that long to complete the intake process and for a spot to become available.

[99] The father faithfully attended all access visits that were scheduled. He found the first couple of supervised visits to be unnatural. He knew he was being watched and “walked on egg shells.” After those visits, he returned to his normal self. He described his interaction with the child as great.

[100] The Children’s Lawyer clinical investigator, Dr. Cris Calley Jones, observed a supervised access visit on February 3, 2018. She was asked what stood out at the visit. She responded that they (the father and child) were not at ease with each other. It was not the same as the maternal grandmother and the child. The clinical investigator observed aggressive undertones to the child’s play that were supported and not intervened in by the father. She had hoped that the father would provide alternative options.

[101] In her report, the clinical investigator stated the following about the visit; It was noted that [the father] followed [the child’s] lead but was overly reliant on [the child] to lead the play. [The father] did not appear comfortable in his attempts to set limits, and both he and his mother laughed at destructive play and at behavior that required correction. [The father] did not respond to [the child’s] physical/ personal space during moments of tickling, poking, or play. (In follow-up discussion regarding the concerns noted, [the father] stated that [the child] was not feeling well that day and it was only a two hour visit.) It is recommended that [the father] participate in a parenting program such as Triple P Positive Parenting available through the Health Unit to develop general parenting skills. [emphasis in original]

[102] In the statement of dispute to the report of the Children’s Lawyer filed on behalf of the father, he disputed the characterization of the play as rough or destructive. Rather, he described it as simply a father playing cars with his son. He also disputed the opinion that the form of play “required correction” and that it was overstated and not consistent with supervision records.

[103] Supervised access continued at Merrymount until early 2019. From the supervised access notes, it appeared that the child and father had no difficulty engaging. A theme that does reoccur in these notes is the child’s somewhat aggressive play and interaction with other children that required the father to intervene, which he most often did.

[104] During the period the trial was adjourned, I ordered that access take place in the father’s home supervised by his partner, Ms. Vanessa Mallot. These visits have been ongoing ever since.

[105] The father and Ms. Mallot both described the visits in their home as positive. The child appeared excited and happy. They both observed that he had been aggressive with their kitten. The child did not exhibit any reservation or caution while in their home.

[106] At my direction, the maternal grandmother and father started a communication journal regarding the visits. The father’s entries were made by Ms. Mallot. In her note of January 2, 2019, the maternal grandmother reported the child had bad dreams and expressed some fear following the first visit. Ms. Mallot replied appropriately, acknowledging the concern and assuring the maternal grandmother that there was nothing that occurred during the visit that apparently precipitated the child’s comments.

[107] Access has continued at the father’s home on alternate Saturdays from 9 a.m. until 3 p.m., with transportation undertaken by him.

THE FATHER’S MENTAL HEALTH

[108] The father recognizes that he experienced serious mental health problems in the months leading up to the parents’ separation. He struggled to regulate his emotions during that period. He took some post-separation steps to address his problem.

[109] On February 11, 2017, the father started attending counselling again through his employee assistance program. He attended four sessions with a counsellor. A review of the counsellor’s notes indicates that the father was to employ strategies to help him self-regulate. The last of the four sessions was April 8, 2017. The focus of the last session appeared to be the court case started by the maternal grandmother. The counsellor identified the then current risk as aggressive behavior and increased the perceived level of risk from “low” to “moderate.”

[110] The father was referred to a psychiatrist, Dr. Lefcoe, by his family doctor. The psychiatric assessment by Dr. Lefcoe took place on September 25, 2017. The reason for the referral, as set out in Dr. Lefcoe’s report, was the father’s anxiety disorder which was not responding to the then currently prescribed medication. The father attributed symptoms of anxiety to his “situation with his wife and son.” He also informed the doctor of a past psychiatric history while in high school. He said his most recent depressive episode lasted from January 2017 to July 2017. The medication he took during that period did not appear to the father to have any perceived benefit. The father also told the psychiatrist that, while he engaged in counselling, he did not like its short term nature.

[111] Dr. Lefcoe’s diagnosis was that the father had a “major depressive disorder in remission.” The course of treatment suggested was medication and a hospital based cognitive behavioural therapy program. The father declined both, the latter because it was not feasible with his shift work.

[112] The father was provided by Dr. Lefcoe with “community resources for self-referral.”

[113] The father did not have any discussions with other healthcare professionals regarding Dr. Lefcoe’s diagnosis because he had “dealt with [his] demons.”

[114] Following his appointment with Dr. Lefcoe, the father continued to struggle with his emotions. He described being upset and crying. But he kept busy at work and tried to move forward.

[115] In his 2017 employment performance evaluation, the father was noted to exceed expectation for productivity, was diligent in his work ethic and assumed responsibility for his actions.

[116] In the Report of the Children’s Lawyer of April 12, 2018, one of the recommendations made by the clinical investigator was that the father “pursue counselling and also follow through with medication and/or a program of Cognitive Behavioral Therapy as recommended by Dr. Lefcoe, prior to unsupervised access.”

[117] The father took up the clinical investigator’s recommendation and again returned to counselling through his employee assistance program. This time his counsellor was Mr. Amir Saeidi, a registered social worker able to provide psychotherapy. Mr. Saeidi was able to provide cognitive behavioral therapy, which he described as a “systemic approach to shift the mindset of the client …”

[118] The father attended three sessions with Mr. Saeidi through his employee assistance program and then four sessions on his own. The first session took place on April 2, 2018 and the last took place on August 13, 2018.

[119] In his first meeting with Mr. Saeidi, the father candidly told him that he “would need a CBT approach counselling [ sic ] as he was advised by his lawyer about his custody matter for his son …” He provided details concerning “his wife cheated twice on him.” Mr. Saeidi’s clinical impressions following the first meeting included the father attending because he felt the clinical investigator and the maternal grandmother’s lawyer “are holding his emotional outburst of 2016 against him today and ask him to attend therapy especially CBT modality.”

[120] The father and counsellor appeared to develop a good rapport. The father reported at the May 8, 2018 session that the counselling sessions significantly improved his self-esteem and ability to deal with the legal proceedings in a calm and collected manner. He could focus on the child’s best interests and “not how badly he [was] being victimized” by the mother. He also noticed that his panic attacks were less frequent. The counsellor observed that the father had made “great gains as evidenced by his demeanor …”

[121] In the note of his final session, Mr. Saeidi again recorded the positive gain the father had made in dealing with his emotions. The note revealed that the father still saw himself as a victim of the mother, maternal grandmother and legal system.

[122] During these seven counselling sessions, the father did not provide information about all his actions toward the mother or in front of the child. Mr. Saeidi was of the view that in time, when a client is ready, this type of information would be provided. Mr. Saeidi also acknowledged in cross-examination that the more he knew, the better it would be and that he is only as good a counsellor as the information provided. He would not be concerned if a client is not honest because psychotherapy is a process and, as it progresses, layers come out when the client is ready.

[123] I accept that the father was able to effectively employ some of the strategies recommended by Mr. Saeidi to regulate his emotions. However, I also accept Mr. Saeidi’s evidence that the therapy sessions had not yet reached a level of openness and trust such that he could work on the fundamental issues facing the father.

[124] On September 11, 2018, the father contacted Mr. Saeidi to request a progress note for his lawyer and to schedule another counselling session. The father was informed by Mr. Saeidi that he was not then continuing with his counselling practice.

[125] The evidence does not disclose that the father has continued with any form of counselling since last working with Mr. Saeidi.

THE FATHER’S CURRENT CIRCUMSTANCES

[126] The father remains employed with the same firm as was the case prior to the parents’ separation. He continues to work the same schedule of alternating two weeks of days, then afternoon shifts, from Monday to Friday. When on day shift, the father leaves home by 5 a.m. and is home by 2:30 p.m. When on afternoons, he leaves around 1 p.m. and is home by 10:30 p.m.

[127] The father remains in contact with his parents but primarily his mother.

[128] The father is in a relationship with Vanessa Mallot (born, May 15, 1987). They started dating in October 2017 and cohabiting in June/July 2018. They live in a house owned by Ms. Mallot, with her son Cameron (born, August 9, 2011). This child has access with his father on alternate weekends and some time during the week.

[129] Ms. Mallot is a student at Fanshawe College, studying computer science. She has two terms left to complete her studies. The current term is a work placement at Canada Life. The final term will be back in class and end before Christmas 2019. She will work part-time at Canada Life during her final term and expects to be hired on a full-time basis following her graduation.

[130] Ms. Mallot does not drive, so most mornings she walks her son to the before school program and continues on to either work or school. She also picks him up at the end of the day from the after school program.

[131] The father and Ms. Mallot appear to have a mature and positive relationship. They are supportive of one another and are able to communicate well. She is aware that his personal problems include depression, attempted suicide and anxiety. In their time together, Ms. Mallot has only seen general anxiety, though at times it can be high but he does address it. She provides some comfort when she detects this anxiety in him.

[132] Ms. Mallot observes that her son and the father have a positive relationship.

LEGAL CONSIDERATIONS

[133] The provisions of the Children's Law Reform Act, R.S.O. 1990, c. C.12 (”the Act ”) relevant to the determination in this case are as follows:

19 The purposes of this Part are, (a) to ensure that applications to the courts in respect of custody of, incidents of custody of, access to and guardianship for children will be determined on the basis of the best interests of the children;

20 (1) Except as otherwise provided in this Part, a child’s parents are equally entitled to custody of the child. Rights and responsibilities (2) A person entitled to custody of a child has the rights and responsibilities of a parent in respect of the person of the child and must exercise those rights and responsibilities in the best interests of the child. Authority to act (3) Where more than one person is entitled to custody of a child, any one of them may exercise the rights and accept the responsibilities of a parent on behalf of them in respect of the child. Where parents separate (4) Where the parents of a child live separate and apart and the child lives with one of them with the consent, implied consent or acquiescence of the other of them, the right of the other to exercise the entitlement of custody and the incidents of custody, but not the entitlement to access, is suspended until a separation agreement or order otherwise provides. Access (5) The entitlement to access to a child includes the right to visit with and be visited by the child and the same right as a parent to make inquiries and to be given information as to the health, education and welfare of the child. Entitlement subject to agreement or order (7) Any entitlement to custody or access or incidents of custody under this section is subject to alteration by an order of the court or by separation agreement. Application for custody or access

21 (1) A parent of a child or any other person, including a grandparent, may apply to a court for an order respecting custody of or access to the child or determining any aspect of the incidents of custody of the child. Police records checks, non-parents 21.1 (1) Every person who applies under section 21 for custody of a child and who is not a parent of the child shall file with the court the results of a recent police records check respecting the person in accordance with the rules of court. Request for report 21.2 (2) Every person who applies under section 21 for custody of a child and who is not a parent of the child shall submit a request, in the form provided by the Ministry of the Attorney General, to every society or other body or person prescribed by the regulations, for a report as to, (a) whether a society has records relating to the person applying for custody; and (b) if there are records and the records indicate that one or more files relating to the person have been opened, the date on which each file was opened and, if the file was closed, the date on which the file was closed. Application by non-parent 21.3 (1) Where an application for custody of a child is made by a person who is not a parent of the child, the clerk of the court shall provide to the court and to the parties information in writing respecting any current or previous family proceedings involving the child or any person who is a party to the application and who is not a parent of the child. Merits of application for custody or access

24 (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4). Best interests of child (2) The court shall consider all the child’s needs and circumstances, including, (a) the love, affection and emotional ties between the child and, (i) each person, 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. Past conduct (3) A person’s past conduct shall be considered only, (a) in accordance with subsection (4); or (b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent. Violence and abuse (4) In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against, (a) his or her spouse; (b) a parent of the child to whom the application relates; (c) a member of the person’s household; or (d) any child. Same (5) For the purposes of subsection (4), anything done in self-defence or to protect another person shall not be considered violence or abuse.

[134] It is clear that the Act requires custody and access be decided on the basis of the best interests of the child. It is the sole consideration.

[135] The determination of best interests under the Act requires that the court consider all of the child’s needs and circumstances including the factors set out at ss. 24(2). It follows from this that the determination must be from the child’s perspective: Gordon v. Goertz, [1996] 2 S.C.R. 27, at paras. 69 and 143.

[136] There are no presumptions to rebut, or which regulate, the determination of best interests. This means that a parent is not presumptively entitled to custody of their child in preference to a claim made by a third party.

[137] While there are no presumptions in favour of a parent, in a contest with a third party, parental claims are entitled to serious consideration and should not lightly be set aside: K.(K.) v. L.(G.), [1985] 1 S.C.R. 87, at para. 29 and Rodriguez v. Guignard, 2013 ONSC 146, at para. 97. However, if on a consideration of all relevant factors, the best interests of the child favour a third party, a parental claim cannot prevail.

[138] Under the Act, consideration of a party as a biological parent of the child is one of a number of factors the court must consider in determining the child’s best interest: McGlade v. Henry, 2015 ONSC 3036, at para. 260 and Sui v. Law, 2009 ONCA 61, at para. 3.

[139] In Khan v. Kong, [2007] O.J. No. 5340 (ON SC), affirmed 2009 ONCA 21, Nelson J. addressed the importance of biology in a best interest analysis at paras. 232, 233 and 239 as follows:

232 There is no presumption of law respecting parental rights in custody disputes. The welfare of the child, which is to be considered in its broadest aspect, is the paramount consideration in determining custody. The benefit of a child's bond to a biological parent is a question of fact to be determined in each case and is encompassed as a factor in the best interest test. The right of a biological parent is thus a secondary consideration to the best interests of the child.

233 The Court of Appeal in Moores v. Feldstein, supra, stated it thus at para 48:

[It] is the duty of the court to view all the circumstances relevant to what is in the interest of the child, including a consideration as to whether the evidence disclosed that the child would benefit from the tie of a child to its mother.

239 The love and care which may be provided by biological parents, however, has become an important factor to be considered in assessing the child's best interests. As Wilson J. further stated in R. (A.N.) v. W. (L.J.), supra:

It (the child's tie with its natural parent) is obviously very relevant in a determination as to what is in the child's best interests. But it is the parental tie as a meaningful and positive force in the life of the child and not in the life of the parent that the court has to be concerned about (p. 185).

[140] In Vanderhoek v. Stark, [1999] O.J. 4479 (ON SC), Aston J. held, at para. 7:

7 I do not accept the proposition that there is any legal presumption in favour of the parent or any heavier onus or burden of proof on the grandparents. Notions of onus or presumption in custody cases have been expressly rejected in cases such as Carter v. Brooks (1990), 30 R.F.L. (3d) 53 (Ont. C.A.) and Gordon v. Goertz (1996), [1996] 2 S.C.R. 27, 19 R.F.L. (4th) 177 (S.C.C.). But the fact that parents are a degree closer to children than grandparents in the family constellation may be taken into account under the rubric of the "best interests of the child", even if it is not specifically listed as a factor under section 24(2) of the Children's Law Reform Act.

[141] The court can take into account non-biological parents who may be as close or closer psychologically to the child: Khan v. Kong, supra, at para. 261.

[142] The father argues that the Act prioritizes parents in part because it treats non-parents differently. When non-parents apply for custody, they are required to provide more information with their application: see Children's Law Reform Act ss. 21.1, 21.2 and 21.3.

[143] This more onerous obligation, it is argued, indicates that third parties, like grandparents, are at a different level than parents. To the extent this submission requires the court to give pre-eminence to biological parents in a best interest analysis, with respect, I disagree.

[144] As set out above, while the Act and case law recognizes the importance of familial relationships, it is not an overriding factor. The interpretation suggested by the father – absent extenuating circumstances, parents have a preferential status in a claim for custody – appears to be based on the now rejected parental rights doctrine, rather than a child-centered best interests one: Moores v. Feldstein, [1973] 3 O.R. 921 (ON CA) and Khan v. Kong, supra, at para. 271.

BEST INTEREST FACTORS

[145] The analysis of the best interest factors set out in ss. 24(2) of the Act follow.

Love, Affection and Emotional Ties

[146] The father, mother and maternal grandmother clearly love the child and he loves them.

[147] The maternal grandmother has demonstrated that she is the person most emotionally connected with the child. She has been his primary caregiver since January 2017. Before that, she was involved, almost as much as the parents, in caring for the child over an extended period while they worked on afternoon shifts and left him with her on many weekends.

[148] The maternal grandmother understands the child’s emotional needs and the child demonstrates a close attachment to her. In times of distress, the child looks to the maternal grandmother for comfort and receives it from her.

[149] The clinical investigator observed the child to be comfortable in his relationship with the maternal grandmother.

[150] The maternal grandmother is not just a placeholder for the child while the parents tried to work on their relationship and address their individual problems. She has become the child’s psychological parent.

[151] The father and child demonstrated their love and affection for one another during the access visits that have taken place since September 2017. Greetings at the beginning of access are positive. The child accepts direction from the father, for the most part.

[152] It is of some concern that the clinical investigator observed an access visit and what stood out to her was that the father and child were not at ease with one another. I accept this observation by the clinical investigator on that single visit she observed. She had the qualifications to undertake the investigation and make this clinical observation.

[153] The evidence concerning the child’s connection with the mother is limited. On occasion, it would appear that the child wants to stay in the maternal grandmother’s home and have the mother stay there as well. This was recognized and accepted by the mother, who would visit with the child in the maternal grandmother’s home.

[154] The child is also emotionally connected to Mr. Kuipers. This connection developed through the role he plays in helping the maternal grandmother care for the child. The description of their relationship, given by Mr. Kuipers and the maternal grandmother, which I accept, demonstrates reciprocated love and affection.

[155] It is not possible on the evidence to conclude that the child has a sense of love, affection or emotional ties with Ms. Mallot. However, I accept that she supports the father and is willing to help him care for the child as best she can.

[156] During access visits at the father’s home, he met and played with Cameron, who may become his friend.

The Child’s Views and Preferences

[157] When interviewed by the clinical investigator, the child was five years old. The closest her report approaches the child’s views and preferences is that he “[l]ives with his grandparents. He likes to live there.”

[158] Views and preferences of this child, expressed when he was five years old, carry very little weight.

[159] The father asks the court not to take into account the report of the clinical investigator because it shows a clear bias against him. With respect, this complaint is not borne out in the evidence. The clinical investigator acknowledged three factual errors that were pointed out to her by the father. None of these corrections were of any consequence.

[160] The clinical investigator carried out her investigation in an evenhanded and comprehensive manner. Her qualifications to complete the investigation and report, including training and experience, were not challenged. The essential complaint of the father appears to be that he disagrees with the clinical investigator’s conclusions. This does not amount to bias. He did not present compelling evidence that the report was tainted by bias.

Length of Time Child has lived in a Stable Home

[161] The child has resided in the maternal grandmother’s home continuously since January 2017 – a long time in the life of this child. Even before that, the child spent two weeks each month in the maternal grandmother’s care while both parents worked during their respective afternoon shifts. This arrangement was in place by early 2015.

[162] During the fall of 2016, when the relationship of the parents was ending, and the father’s mental health was unstable, he was not able to care adequately for the child. It was the maternal grandmother who provided stability and care for the child.

[163] The maternal grandmother has provided a stable home environment for the child for much of his young life.

[164] The child has integrated into the maternal grandmother’s community. This is where he goes to school. His most recent report card discloses that he “is a loving child who has developed positive relationships with his teachers and outdoor supervisors … He has started to develop positive peer relationships within the classroom.” The maternal grandmother describes the child as being able to make friends.

[165] The father asks that I take notice that a farm is a dangerous place for a child. Perhaps this would be the case if a child was not properly supervised. There is no evidence that this is the case here. I do not consider the maternal grandmother’s farm to be a mitigating factor against the maternal grandmother in the determination of the child’s best interests.

[166] The child enjoys living at the maternal grandmother’s home, where he has toys, time with animals, chores and a relationship with her and Mr. Kuipers.

[167] The father argues that the status quo that has been established should not be a significant factor because the maternal grandmother tricked him into believing that she would only care for the child temporarily – based on a text message exchange – and took advantage of him by starting this court case in the spring of 2017.

[168] I find that the text messages sent between January 19-21, 2017, were sent at a time the parents were unable to care for the child. The maternal grandmother wanted to stay connected with the parents, so she could remain close to the child. She was concerned about their ability to properly care for him.

[169] After the court case was started, the father consented to the maternal grandmother having interim interim custody of the child twice, the first time on March 28, 2017 and the second time on April 12, 2017. On the latter date, the father was represented by counsel, who had brought a motion on his behalf seeking interim custody of the child. The evidence does not suggest that trickery, or that he was misled, was raised at that time.

[170] I do not accept that the father was tricked or taken advantage of by the maternal grandmother.

[171] I further find that the status quo evolved with the father’s informed consent and that it remains a relevant factor in the determination of the child’s best interests.

[172] I also take into account that the father was unable to increase the time he spent with the child and reduce the level of supervision before this trial began. This so despite the recommendation of the clinical investigator.

Ability and Willingness of Each Person Applying for Custody to Provide the Child with Guidance and Education, the Necessaries of Life and any Special Needs

[173] The maternal grandmother has demonstrated over a long time – relative to the life of the child – her willingness and ability to understand and meet all of the child’s needs.

[174] I accept that the father is willing and wants to do the same. His willingness is evidenced by his attendance at every available access visit.

[175] As the father has not been in a caregiving role for some time, he would need some time and experience to understand the nuances of the child’s special needs and how to meet them. It is not clear on the evidence that he participated or is involved in the child’s school. The clinical investigator considered his parental skills and recommended that he participate in a parenting program to help him develop general parenting skills.

[176] Dr. Lefcoe’s diagnosis of the father is that he had “a major depression in remission.” He recommended ongoing counselling and medication. The father did not want to use medication. A course of counselling has not been completed. In his counselling with Mr. Saeidi, he had not yet reached a level of candor or honesty such that the counselling could be considered as successful and complete. The father’s mental health, when not controlled, seriously impaired his ability to meet the child’s needs for stability and calm. While I accept that the father’s mental health has been stable for many months, the steps recommended to address the possibility of a relapse have not been completed. I must also take into account that the father has a history of mental health problems and anger control. Also, between January 2012 and May 3, 2012, the father attended Changing Ways to address his abuse in his intimate relationships. His attendance, despite learning about domestic abuse and steps to be taken to avoid repeating his behaviour, did not help him in 2016/2017.

[177] The maternal grandmother argues that the father’s ability to provide for the child is impaired or limited by his mental health history. He has experienced mental health problems periodically throughout his life.

[178] I find that the father’s mental health has been stable at least since the fall of 2018. He engaged in seven counselling sessions with Mr. Saeidi, during which time he made some improvement. Mr. Saeidi testified that there was room for much more progress to be made.

[179] The father’s mental health appears to be helped by being in a stable relationship with Ms. Mallot. She has not observed any mental health disruptions except for anxiety. I also take into account that the stable relationship and the father’s positive mental status at this time is relatively recent and that he did not complete a counselling process. He wanted to continue with Mr. Saeidi, who has closed his practice. There is no evidence that the father found another counsellor.

[180] The father argues that the child’s behaviour at school reflects an inability on the part of the maternal grandmother to care for the child.

[181] My assessment of the evidence does not convince me that the child’s behaviour at school is the fault of, or is not being addressed by, the maternal grandmother. I am not able to find what clinical reasons exist for the challenges the child has at school. But this behaviour must be looked at in the context that the child was exposed to extremely disturbing behaviour – domestic conflict and a threatened suicide – while in the care of the parents. I also take into account that the maternal grandmother has engaged support at school and with other professionals to assess and meet the child’s needs that are associated with his behaviour at school.

[182] The maternal grandmother has been able to identify and meet the child’s special needs in her care of him in her home.

The Plan Proposed for the Child’s Care and Upbringing

[183] The maternal grandmother’s plan is to continue providing routine, structure and security as she has since January 2017. This would see the child continue in her residence, attend the same school and receive the same supports from professionals as he has now and may require in the future. She is able to ensure routine and stability. I accept that the maternal grandmother supports the child having a positive and safe relationship with both parents. This would include seeking the parents’ advice and point of view on matters of significance concerning the child. Her plan is a child focussed one.

[184] The father’s plan is to have the child live with Ms. Mallot, her son and him in her home which, as described, is an appropriate one.

[185] There is a school in the neighbourhood where they live and this is where Ms. Mallot’s son attends. This school should have the resources to meet the child’s needs that are being addressed at his current school. The father’s plan is to attend to the child’s needs as well.

[186] He will need to rely upon Ms. Mallot and others to care for the child while he is at work: early in the mornings when he works days and after school and into the evenings when he works afternoons.

Permanence and Stability of the Family Unit

[187] As set out earlier in these reasons, I find that the maternal grandmother’s family unit is a stable one. She and Mr. Kuipers have been together for over ten years. While there was domestic conflict early in their relationship, there has not been any since September 2010. Their relationship is a strong and supportive one.

[188] Also, as set out earlier in these reasons, the father’s relationship with Ms. Mallot is a mature and stable one. It has been in place for approximately one year. Having heard Ms. Mallot and the father testify, they are optimistic about the success of their relationship but acknowledge that it is still early days.

The Ability of Each Person Applying for Custody or Access to act as a Parent

[189] The maternal grandmother has established that she has the ability to be a responsible and attentive parent to the child, able to recognize and meet his needs. The father’s ability to act as a parent is affected by his work schedule, one that has been inflexible. It prevented him from attending recommended counselling. The clinical investigator identified concerns about the father’s inability to recognize behaviour by this child that needed some parental intervention.

The Familial Relationship between the Child and Each Party to the Application

[190] The respective familial relationships of the parties is an important factor in this case.

[191] The father’s relationship with the child is an important factor to be considered in the best interests analysis but this does not give him a preferred right to custody. While he is the child’s biological parent, the child’s closest and strongest psychological attachment is to the maternal grandmother. The father and mother should have the opportunity and responsibility to have input into significant decisions that may affect the child.

DISCUSSION – THE CHILD’S BEST INTERESTS

[192] A consideration of the evidence and best interest factors satisfies me that it is in the child’s best interests that the maternal grandmother be granted custody.

[193] By granting the maternal grandmother custody, the child will be able to maintain the close and loving relationship with the person who is now his psychological parent. The child appears to understand that his essential needs are being met by the maternal grandmother. She understands his needs, has demonstrated that she can meet them and remains willing to do so.

[194] For a child who has difficulty with transitions and change, I find that removing him from the maternal grandmother’s care would reasonably result in an undue sense of loss and disruption for him.

[195] In Gordon v. Goertz, supra, the court explained the importance to a child of maintaining a relationship with their psychological parent at para. 121 as follows:

121 The assessment of the child's best interests also involves a consideration of the particular role and emotional bonding the child enjoys with his or her primary caregiver. The importance of preserving the child's relationship with his or her psychological parent has long been recognized by this Court on a number of occasions (Catholic Children's Aid Society of Metropolitan Toronto v. M. (C.), [1994] 2 S.C.R. 165, at p. 202; R. (A.N.) v. W. (L.J.), [1983] 2 S.C.R. 173 at p. 188; King v. Low, [1985] 1 S.C.R. 87, at p. 101). There is a growing body of evidence that this relationship may well be the most determinative factor on the child's long-term welfare. As I mentioned in Young v. Young, [1993] 4 S.C.R. 3 at p. 66, the vital link between continuity in the emotional bonding of the child with his or her psychological parent and the best interest of the child finds ample support in the literature:

Goldstein, Freud and Solnit's Beyond the Best Interests of the Child, supra, while perhaps lacking in empirical data, remains an influential analysis of the psychological needs of children following divorce. The authors emphasize, among other factors, the importance of continuity in the child's relationships and conclude that the major focus of custody decisions should be to preserve and protect the relationship between the child and his or her psychological parent. [emphasis in original.]

[196] In Children’s Aid Society of Algoma v. H.(K.A.), [2003] O.J. No. 3238 (Ont. C.J.), the court explained that a psychological parent may not necessarily be a child’s biological parent as follows:

233 Appellate and trial case law makes it clear that the concept of the psychological parent is more important than to place a child with a blood relative. If a child is already securely attached to caregivers, regardless of the blood relationship, then why take any risk to disrupt that attachment and put the child through short-term trauma and risks associated with attempts to re-attach to another caregiver? The case law suggests that the dominant objective is to maintain the child in the unit of the psychological parents and that, at least in theory, detaching such children, to put them in the family of a blood relative, has lower priority. The principles in these cases are not a policy choice between psychological parents and blood relatives. These principles are rooted in the concept of risk, that you do not risk the potentially significant negative consequences of failed or poor re-attachment, just for the sake of placement with a blood relative. The placement with a blood relative does not necessarily enhance the overall emotional development of the child. Thus, the law and social research support the stability of the psychological family over the risks of re-attaching to blood family.

[197] The child’s need for a loving and nurturing relationship with the father can best be maintained and allowed to develop further in the context of meaningful and predictable contact.

[198] It is the maternal grandmother who has provided the most consistent and long-term stable home environment and relationship for the child. He is happy and doing well in the care and home of the maternal grandmother. This should continue.

[199] The parents have not been able to provide the level of stability as has the maternal grandmother since the summer of 2016.

[200] The maternal grandmother has demonstrated her ability and willingness to provide for the child’s care and meet his needs. There is nothing in the evidence to suggest that she will be unable to do so going forward. At this time, her age is not a factor in her ability to care for the child until he is an adult.

[201] The maternal grandmother is better able to meet the child’s needs than is the father. He does not have her experience. He did not demonstrate during the fall of 2016, early 2017, that he could put the child’s needs ahead of his own.

[202] The maternal grandmother’s plan of care has been working well for the child. It will not need to be changed except to adapt to meet the child’s ongoing developmental needs.

[203] The father’s plan will require a number of caregivers because of his work schedule. Given the child’s need for consistency and help in coping with transition, the father’s plan does not provide the constancy as does the plan of the maternal grandmother. I take into account the father was unable to engage in a counselling program as recommended by Dr. Lefcoe because he could not accommodate that given his work schedule. I also take into account that Ms. Mallot has her child, with his needs, to take care of, as well as her budding career.

[204] The maternal grandmother will be better able to organize her other commitments so as to allow her the time needed to meet the child’s needs.

[205] I assess the maternal grandmother’s capacity to consistently and skillfully nurture and meet the child’s needs as greater than the father’s.

[206] I accept that both the maternal grandmother and the father are properly motivated to care for the child.

[207] The maternal grandmother has supported the father’s visits with the child. I am satisfied that she will continue to do so.

[208] It is in the best interests of the child that he have regular visits with both the father and the mother.

PARENTING TIME

[209] The father’s parenting time took place every other Saturday for two hours supervised at Merrymount Family Support and Crisis Centre. This access started September 2017 and continued until December 2018. On December 28, 2018, pursuant to my order, the father had parenting time with the child from 11 a.m. until 2 p.m. at his home. A second parenting time took place on January 2, 2019.

[210] On May 3, 2019, I ordered that pending the return of this matter, the father was to have access on alternate Saturdays from 9 a.m. until 3 p.m. He was to be responsible for transportation.

[211] The clinical investigator recommended that, after a period of transition out of supervised access for the child and father, the child be in the care of the father, mother and maternal grandmother on successive weekends, that is, on a three week rotation. The third weekend at the maternal grandmother’s home, according to the clinical investigator, would allow the child some weekend down time with his primary caregivers, the maternal grandmother and Mr. Kuipers.

[212] The maternal grandmother and the mother are able to communicate and make arrangements for the mother’s parenting time. She need not be restricted to having parenting time with the child every third weekend, particularly when she is not available on Saturdays.

[213] As the father’s mental health and living arrangements are stable at this time, supervision of his parenting time is no longer needed to protect the child.

[214] In order to allow the father to maintain and further develop his relationship with the child, his parenting time should take place on alternating weekends following a period of transition that allows for increasing time for access. His time with the child should be on a predictable schedule. If the father is on a day shift, his access should start on Friday at 5 p.m. and end on Sunday at 5 p.m. If he is working on an afternoon shift, his access will begin on Saturday morning at 9 a.m.

[215] The father is to be responsible for transportation to and from his parenting time.

[216] The mother has been having parenting time with the child as arranged with the maternal grandmother. This usually occurs on Sundays as this is the only day off of the week that the mother has from her employment. This parenting time usually takes place at the home of the maternal grandmother or in the community. The mother is responsive to the child’s requests in this regard. The parenting time for the mother is based upon her current positive relationship with her mother and her work schedule. Should this change, the entire parenting time schedule for the mother and father may need to be reconsidered.

[217] Both parents should have parenting time during holiday periods.

CHILD SUPPORT

[218] The parties executed a consent endorsement request with respect to child support: the father on August 1, 2018; the mother on September 25, 2018; and counsel on behalf of the maternal grandmother on September 26, 2018. An order was not taken out in respect of this consent endorsement request.

[219] I understand that the parties are content that, if custody of the child is granted to the maternal grandmother, a child support order shall issue in terms of the consent endorsement request.

[220] The consent endorsement request provides that the father’s annual income is $60,000 for support purposes, that the monthly child support based on this income is $556 and the start date for monthly child support is to be July 1, 2018.

[221] The consent endorsement request provides that the mother’s annual income is $40,000 for support purposes, that the monthly child support based on this income is $359 and the start date for monthly child support is to be July 1, 2018.

[222] The mother and father are to receive credit for payments made on account of child support to the maternal grandmother since July 1, 2018. If there is any dispute about the amount of the credit due either parent, arrangements to address this issue are to be made through the trial coordination office.

CONCLUSION

[223] A final order will go on the following terms:

1. The maternal grandmother shall have custody of the child.
2. Before making any decisions of significance regarding the child’s education, health and welfare, the maternal grandmother shall consult with the father and mother to solicit their views.
3. The mother shall have liberal parenting time with the child as arranged with the maternal grandmother.
4. The mother shall have parenting time with the child on Mother’s Day, if it is not already arranged for her to have parenting time that day, from 10 a.m. until 5 p.m.
5. The father shall have parenting time with the child as follows: (a) June 29, 2019 – 9 a.m. until 5 p.m. (b) July 13, 2019 – 9 a.m. until July 14, 2019 at noon; and (c) July 27, 2019 – 9 a.m. until July 28, 2019 at 5 p.m.;
6. The father shall have parenting time with the child on alternating weekends beginning the weekend of August 9, 2019. If the father is on a day shift during the week preceding his weekend parenting time with the child, his parenting time shall start on Friday at 5 p.m. and end on Sunday at 5 p.m. If the father is working on an afternoon shift in the week preceding his weekend parenting time with the child, his parenting time shall start on Saturday at 9 a.m. and end on Sunday at 5 p.m. If the Monday following an access weekend is a statutory holiday and the father is not required to work that day, his parenting time for that weekend shall end on Monday at 5 p.m.
7. The father shall be responsible for transporting the child to and from his parenting time from the home of the maternal grandmother.
8. The father shall have parenting time with the child on Father’s Day, if not already falling on his regularly scheduled parenting time, from 10 a.m. until 5 p.m.
9. Notwithstanding the parenting time schedule provided for, the child shall be in the care of: (a) the maternal grandmother: (i) from December 24 until December 25 at 2 p.m. every year; (ii) five weeks during the child’s summer vacation from school, including two consecutive weeks and the last week of the summer before school returns; and (iii) March Break from the Friday school ends until Sunday, the day before school begins, every third year commencing in 2020; (b) the father: (i) December 25 at 2 p.m. until December 28 at 5 p.m. every year; (ii) starting in 2020, for two non-consecutive weeks during the child’s summer vacation from school; and (iii) during the child’s March break from school every third year commencing in 2021; (c) the mother: (i) December 28 at 5 p.m. until December 31 at 5 p.m. every year; (ii) starting in 2020, for two non-consecutive weeks during the child’s summer vacation from school; and (iii) during the child’s March Break from school every third year commencing in 2022; (d) in choosing the weeks for summer parenting time, the father shall have first choice by written notice to the other parties by April 15 beginning in 2020 and every third year thereafter; the mother shall have second choice by written notice to the other parties by May 1 beginning in 2020 and every third year thereafter; (e) in choosing the weeks for summer parenting time, the mother shall have first choice by written notice to the other parties by April 15 beginning in 2021 and every third year thereafter; the father shall have second choice by written notice to the other parties by May 1 beginning in 2021 and every third year thereafter; (f) the maternal grandmother shall have first choice by written notice to the other parties by April 15 beginning in 2022 and every third year thereafter; the mother shall have second choice by written notice to the other parties by May 1 beginning in 2022 and every third year thereafter; the father shall have third choice by written notice to the other parties by May 7 beginning in 2022.
10. The father shall have telephone or electronic communication with the child at least one time per week as arranged with the maternal grandmother.
11. The father shall have such other parenting time as is arranged with the maternal grandmother and mother.
12. The mother and the father shall be entitled to make inquiries and to be given information as to the child’s health, education and welfare directly from source.
13. The maternal grandmother will not register the child for any extracurricular activities that might fall on parenting time of the mother or father unless she obtains their consent in writing in advance and such consent will be not unreasonable withheld.
14. If the child needs any emergency medical care while in the care of any of the parties, the party in whose care the child is at the time shall promptly notify the others of the emergency.
15. The maternal grandmother, father and mother shall be named as emergency contacts with the child’s school and with any other organization or professional involved with the child. The maternal grandmother shall be named as the primary contact.
16. Starting July 1, 2018 and on the 1st day of each subsequent month, the father shall pay to the maternal grandmother support for the child in the amount of $556 per month based on an income in 2018 of $60,000 per year and pursuant to s. 3(1)(a) of the Child Support Guidelines (Family Law Act).
17. Starting July 1, 2018 and on the 1st day of each subsequent month, the mother shall pay to the maternal grandmother support for the child in the amount of $359 per month based on an income in 2018 of $40,000 per year and pursuant to s. 3(1)(a) of the Child Support Guidelines (Family Law Act).
18. The mother and father shall contribute to the child’s s. 7 expenses in proportion to the incomes of the maternal grandmother, father and mother.
19. The mother and father shall receive credit for all child support payments made by them to the maternal grandmother since July 1, 2018.
20. For so long as child support is payable, the father and mother shall provide to the other, and to the maternal grandmother, their annual income disclosure consisting of copies of their income tax returns and supporting documents filed for the previous year by no later than June 15 annually, beginning in June 2020, and their notices of assessment upon receipt, pursuant to s. 24.1 of the Child Support Guidelines.
21. Based on the disclosure of the parents’ respective annual incomes, the parties shall either maintain, increase or decrease the amount of child support payable by each of the parents, respectively, by July 1 of each year.
22. All other claims shall be dismissed.

[224] If the parties are unable to agree on costs, written submissions are to be provided by the applicant within 15 days of the release of these reasons, and by the respondents within 30 days of the release of these reasons. All submissions shall be no more than 5 pages, 12 point font and double-spaced, together with a bill of costs and any offers to settle.

“Justice Barry Tobin” Justice Barry Tobin

Released: June 19, 2019