Court File and Parties

Court File No.: Halton F217/10

Date: 2012-04-05

Ontario Court of Justice

Between:

R.C2 Applicant

— AND —

A.A.1 AND S.C1 Respondents

Before: Justice Sheilagh O'Connell

Heard on: December 12, 13, 14, and 15, 2011

Reasons for Judgment released on: April 5, 2012

Counsel:

• Jeffrey Richey, for the Applicant
• Rebecca Kingdon, for the Respondent, A.A.1
• Granville N. Cadogan, for the Respondent, S.C1

O'CONNELL, J.:

1: INTRODUCTION

[1] This trial concerned whether the applicant, R.C2, should have custody of the child R.J.C2, born […], 2010 (hereinafter referred to as "R.J.") or whether the respondent, S.C1, should have custody of R.J. and what access should be ordered once custody is determined. Mr. S.C2 is not the child's biological father, but he has acted as a parent to R.J. since the child's birth. Ms S.C1 is not R.J.'s biological mother; she is his maternal aunt. Her sister, A.A.1 is the child's biological mother. Ms A.A.1 is not able to parent R.J. at this time and she supports Ms S.C1's claim for custody. The child's biological father is unknown.

2: APPLICANT'S POSITION

[2] Mr. S.C2 submits that it is in R.J.'s best interests to remain in his care. R.J. has lived with him since his birth. By the time of trial, R.J. was 21 months old. He submits that although he is not R.J.'s biological father, he is his psychological father and that there is a very strong bond between R.J. and him, whom he sees as his son. He further submits that R.J. is a happy and healthy little boy who is thriving in his care. He submits that it would be detrimental to R.J.'s best interests to place him in the custody of Ms S.C1 as she does not have a permanent and stable plan of care for him. She may return R.J. to the care of his mother, who has a very serious drug addiction. He further submits that there is a risk that R.J. may be left in the unsupervised care of his mother if he is placed in Ms S.C1's care.

3: RESPONDENTS' POSITION

[3] Ms S.C1 submits that it is in R.J.'s best interests to be placed in her custodial care and to be returned to his biological family. She submits that she is capable of meeting all of R.J.'s needs as his custodial parent and that she loves R.J., with whom she exercises regular access. She submits that she has a very close and extended family, all of whom will provide love and care for R.J., who is their blood relative, which she believes is very important for R.J. She states that she and her family will foster R.J.'s relationship with his biological mother, albeit in a safe and supervised manner. She further submits that Mr. S.C2 is an abusive man with a volatile temper and that he abuses drugs and alcohol.

[4] Ms S.C1 further submits that R.J. is a biracial child and that the applicant will not foster his black identity or heritage, but rather, R.J. will be taught that he is white child.

[5] Ms A.A.1 supports Ms S.C1's claim for custody and did not make any submissions to the court.

4: BACKGROUND

[6] Mr. S.C2 and R.J.'s mother, Ms A.A.1, met at a nightclub in Toronto when Ms A.A.1 was 18 years old and Mr. S.C2 was 29 years old. They became involved in a relationship that lasted approximately two years. According to Mr. S.C2, for the first six months of their relationship, "they were joined at the hip". Both parties admitted at trial that they used drugs and alcohol throughout their relationship. However, Ms A.A.1 had a serious drug addiction, which Mr. S.C2 states eventually led to the end of the relationship, as he tried to help her but to no avail. After their relationship ended, the parties reconnected and briefly resumed their intimate relationship. Approximately six months after that, Ms A.A.1 contacted Mr. S.C2 and advised him that she was pregnant and that he was the father. The parties reconciled shortly after that time. R.J. was born on […], 2010. He is now two years old. Mr. S.C2 states that he did not learn that he was not R.J.'s biological father until he commenced these proceedings.

[7] Mr. S.C2 is currently 33 years old. He states that he is a self-employed and has his own merchandising company. He lives in Oakville, Ontario with his mother, I.C2, who is a realtor. He has lived in Oakville for most of his life. Mr. S.C2 works largely from home, although he also works outside of the home when meeting clients. Mr. S.C2 has no other children. He has two siblings who live outside of Canada and two younger half-siblings who live with his father and his new partner in Oakville.

[8] Ms A.A.1 is 22 years old and currently unemployed. She states that she lives in Toronto, part of the time with her mother, and part of the time with her boyfriend. Tragically, she continues to have a very serious drug addiction and she states that she is currently attempting to obtain treatment for her addiction, although the nature of this treatment is unclear.

[9] Ms S.C1 is 29 years old. She lives in Toronto, where she has lived all of her life. She is a college educated medical clerk and had been employed as a medical clerk with the emergency department at the North York General Hospital since 2006. She lives alone and has no children. She has recently obtained a two bedroom apartment so that she can care for R.J. Although classified as part-time at the hospital, Ms S.C1 works full-time hours at the hospital.

[10] Ms A.A.1 and Ms S.C1 come from a large extended family. There are six siblings in total. They were all raised in Toronto by their mother R.A., who is a single parent. All of the siblings still live in Toronto. Ms A.A.1 and Ms S.C1's younger brother and Ms A.A.1's twin sister continue to live with their mother.

[11] R.J. is a biracial child. Ms S.C1 and Ms A.A.1 are of African Canadian and Caucasian Canadian heritage, and his biological father, according to Ms A.A.1, is of Jamaican Canadian heritage. Mr. S.C2 is of Caucasian Canadian heritage.

[12] R.J. does not have any special needs or disabilities and by all accounts, he is a happy and healthy little boy. R.J. has lived with Mr. S.C2 and Mr. S.C2's mother since he was seven weeks old. He has had regular mid-week and alternating weekend access with Ms S.C1 since he was seven months old. He had supervised access with his mother from the age of ten weeks until he was approximately five months old, however, Ms A.A.1 has not exercised access to R.J. since that time.

5: HISTORY OF PROCEEDINGS

[13] Mr. S.C2 commenced his application and urgent motion for custody of "R.J." on May 10, 2010. R.J. was seven weeks old at the time the application was brought. Justice Zisman granted Mr. S.C2 custody on a temporary, "without prejudice" basis, and adjourned his motion for custody to May 17, 2010 to permit the mother to respond. Justice Zisman granted the temporary order based on the evidence filed which demonstrated that there would be a risk to the child if he was in the mother's care at that time.

[14] On May 27, 2010, Ms A.A.1 filed an answer and claim seeking custody of the child, or alternatively, joint custody with her sister, Ms S.C1. In her answer, she stated that Mr. S.C2 was not the child's biological father and that the child should be returned to her and/or her family. She further admitted to a history of drug use for which she has sought treatment and states that she has made a safety plan for R.J. with her family and sister, who will care for him should she relapse. Ms A.A.1 also stated that her safety plan for R.J. would necessarily involve the children's aid society and she was willing to cooperate with the appropriate society to "ensure the safety of her child."

[15] On June 2, 2010, the matter returned to court and the parties agreed to adjourn the hearing pending the results of a paternity test. On that date, according to the endorsement of Justice Zisman, the father stated that if he was not the biological father, then he would not care for the child. Access between R.J. and his mother was arranged, to be supervised by Ms J.M., a family friend of Mr. S.C2.

[16] On June 17, 2010, the matter returned to court. The paternity test had been completed and confirmed that Mr. S.C2 was not R.J.'s biological father. Ms S.C1 advised the court that she was advancing a plan of care for R.J. Mr. R.C2 advised that court that he wanted the child to remain in his care until the Halton Children's Aid Society investigated Ms S.C1's plan of care and completed a kinship assessment. The parties agreed that the Halton Children's Aid Society would transfer their file to the Toronto Children's Aid Society to investigate Ms S.C1's plan for R.J. given that she lived in Toronto. The hearing was adjourned to June 28, 2010.

[17] On June 28, 2010, the matter returned to court but was adjourned to July 21, 2010, as the kinship assessment of Ms S.C1 was not yet complete. On July 21, 2010, counsel for the children's aid society advised the court that the kinship assessment was not yet completed, but that so far, the assessment of Ms S.C1's plan was positive. The matter was then adjourned to August 26, 2010 for a possible motion by Ms S.C1 to be added as a party and for an order for temporary custody of R.J. According to the endorsement of Justice Zisman, Mr. S.C2 indicated that if the kinship assessment is completed by that time and he is satisfied with the results, then he would withdraw his application for custody.

[18] On August 26, 2010, the matter returned to court. By that time, the kinship assessment was complete and Ms S.C1 had been approved as a kinship placement for R.J. The report by the Toronto Children's Aid Society provided that Ms S.C1 was to restrict Ms A.A.1's contact with R.J. and required Ms A.A.1 to undergo treatment. R.J. was five months old at this time.

[19] Ms S.C1's motion for custody and to be added as a party was adjourned to October 26, 2010 because Mr. S.C2's counsel was not available and Ms S.C1 had not filed her form 35.1 parenting affidavit required for non-parents seeking custody. Justice Zisman granted Ms S.C1 leave to file her parenting affidavit with the court, which had been served on all parties.

[20] On October 26, 2010, on consent, Ms S.C1 was added as a party to the proceedings. However, Ms S.C1's motion for custody of R.J. was again adjourned because Ms S.C1 had not yet filed her form 35.1 parenting affidavit with the proper requests for police and children aid society clearance reports, which are required for all non-parents applying for custody and or/access. As well, Mr. S.C2 was also seeking an adjournment to file proper responding materials to Ms S.C1's motion for custody. By this time, it was clear that Mr. S.C2 was not consenting to Ms S.C1's motion for an order for custody of R.J. and that he was seeking final custody of R.J.

[21] In the interim, pending the hearing of Ms S.C1's motion for custody, Justice Zisman granted Ms S.C1 alternating weekend access with R.J. and every Wednesday from 10:00 a.m. to 4:00 p.m. As a condition of the access granted to Ms S.C1, Justice Zisman ordered that Ms S.C1's access to R.J. shall not be in the presence of either A.A1 or R.A.. R.A. is the maternal grandmother of R.J., and the mother of Ms S.C1 and Ms A.A.1. Ms S.C1's motion for temporary custody and/or expanded access was then adjourned to December 9, 2010.

[22] On December 9, 2010, Ms S.C1's new counsel requested that the motion for custody be adjourned. On consent of the parties, the motion for custody was adjourned to March 4, 2011. On March 4, 2011, Ms S.C1's counsel sought a further adjournment of Ms S.C1's motion for custody. On consent of the parties, the motion for custody was again adjourned to April 8, 2011 for a contested motion for custody.

[23] On April 8, 2011, Ms S.C1's counsel again requested a further adjournment of the motion for custody. On that date, according to the court endorsement, Ms S.C1's counsel advised that he had not been able to file his client's form 35.1 parenting affidavit because Ms S.C1's police clearance report had not yet been received. However, according to the court endorsement sheet, Justice Zisman informed counsel that the parenting affidavit could have been filed so long as Ms S.C1 had applied for the police clearance report especially given that she had received a police check as part of the CAS kinship assessment and investigation. It was not necessary to wait for the report as long as the affidavit indicated that a report had been requested. The matter was adjourned once again to June 20, 2011 to hear the contested motion for custody of R.J. It was not clear at that point whether Ms S.C1 had applied for her police clearance report.

[24] On June 20, 2011, Ms S.C1's counsel was not present and through counsel for Mr. S.C2, he again requested a further adjournment of Ms S.C1's motion for custody. At that hearing, Justice Zisman was not prepared to grant Ms S.C1's request for a further adjournment. It was now eight months since Ms S.C1 had been added as a party and since she had been granted regular overnight access. R.J. was now fifteen months old. Justice Zisman stated the following in her endorsement:

"Mr. Cadogan is not present and has requested Mr. Richey request a further adjournment of the motion for temporary custody. I am not prepared to grant this request.

Ms S.C1 was added a party on October 26, 2010 and granted access to the child R.J.C2. At that time, Ms S.C1 was requesting that the child be placed in her custody. A date was set for a temporary motion on the issue of custody for December 9, 2010. Ms S.C1 then advised Mr. Richey that she obtained counsel and that he was requesting an adjournment. Mr. Richey attended court and adjourned the motion. A new date was set for March 4, 2011. Again on March 4, 2011 the motion did not proceed as Mr. Cadogan advised Mr. Ritchie that he required a further adjournment. Mr. Ritchie again attended an adjourned the motion to April 8, 2011. On April 8, 2011, Mr. Cadogan advised Mr. Ritchie that he needed a further adjournment and the motion was adjourned to today. I am yet again advised by Mr. Ritchie that he was contacted by Mr. Cadogan this morning to request a further adjournment.

I am not prepared to grant a further adjournment. Ms S.C1 has had eight months to argue this motion-either she is not sincere in her desire for temporary custody or there is some other reason for her failure to pursue temporary custody. In any event, this child's future needs to be determined one way or another.

I am setting a settlement conference date on notice to all parties including the mother. The parties to file a settlement conference brief with offers to settle. If this is not done, the Applicant should consider whether this is an appropriate case for a summary judgment motion. Mr. Cadogan, at the settlement conference, can renew his request for a temporary motion. Adjourned to August 25, 2010 at 2:30 p.m."

[25] On August 25, 2011, a settlement conference was held. On a temporary basis, the parties reached a consent order granting Ms S.C1 expanded access to R.J. including one mid-week overnight visit and alternating weekends. The parties further consented to an order granting Mr. S.C2 temporary custody of R.J. pending a trial of the issues of custody and access. The matter was then adjourned to a trial management conference on October 31, 2011.

[26] On October 31, 2011, the trial management conference was heard before me. Mr. S.C2 and Ms S.C1 both filed trial management briefs and indicated that they were ready to proceed to trial. Ms A.A.1 and her counsel did not attend the trial management conference. Ms S.C1's trial brief listed herself and one other witness, R.A., the maternal grandmother. Mr. S.C2's trial brief listed himself and two other witnesses, his mother and family friend J.M.. At the trial management conference, counsel for Ms S.C1 advised that Ms S.C1 had not yet received her police clearance report. Mr. S.C2 had received his several months ago, as he too was a non-parent seeking custody. The matter was placed on the trial ready list to commence December 12, 2011.

[27] At trial, the court heard three days of evidence. Six witnesses were called, including the parties, I.C2, J.M., A.A.1 and A.A.2. At the conclusion of the evidence, counsel for Ms S.C1 advised that he was not calling R.A. as a witness for reasons unknown to the court.

[28] A.A.1 did not participate in the trial, other than being called as a witness on behalf of Ms S.C1. At the outset of the trial, I was advised by both counsel that the mother's counsel was no longer representing Ms A.A.1. Ms A.A.1 was also not present on the first day of trial and I was advised by counsel that she chose not to attend. Both parties wished to proceed with the trial in Ms A.A.1's absence. Ms A.A.1 attended the second day of trial to give evidence for Ms S.C1 but left shortly after giving her evidence.

6: SUMMARY OF THE RELEVANT EVIDENCE AT TRIAL

6.1 R.C2

[29] Mr. S.C2 testified that during the parties' relationship, the mother would disappear for approximately two to six days on a number of occasions. These disappearances led to his discovery of the mother's drug addiction. He states that he tried to help the mother overcome her addiction and that he really loved and cared for her. He testified that on at least three different occasions during their relationship, he brought the mother to a drug treatment clinic to get help, but to no avail.

[30] Mr. S.C2 testified that Ms A.A.1 was six months pregnant when she first told him about her pregnancy and that he was the father. He said that he asked Ms A.A.1 repeatedly if he was the father and she reassured him that he was definitely the father. Once he learned of Ms A.A.1's pregnancy, Mr. S.C2 states that they spoke every day and that he would visit once a week to make sure that Ms A.A.1 was doing well and staying clean and sober during her pregnancy. He testified that he stayed with Ms A.A.1 on multiple nights during her pregnancy to support her and that at the age of 31, he was mentally, physically and financially preparing himself to be a father. He stated that he was quite excited to be having a child and that did a fair bit of research to prepare him for the birth and fatherhood.

[31] Mr. S.C2 was present for R.J.'s birth at the hospital and he cut the umbilical cord. He stated that he held the baby immediately after his birth and he stayed overnight with Ms A.A.1, sleeping beside her in the hospital bed. The next morning, he supported Ms A.A.1 as she was being assisted with breastfeeding R.J. He testified that it was very exciting to be part of the "miracle of birth" and that he did not leave her side during this time.

[32] Immediately after R.J.'s birth, the parents stayed at the home of R.A.. Mr. S.C2 testified that as a new parent, he was very involved during the first weeks of R.J.'s life and that "there hasn't been a day in his life that I have not been there." Ms A.A.1 breastfed R.J. initially, but then the parents agreed that R.J. would start bottle feeding. Mr. S.C2 stated that the primary reason they switched to formula was because he was upset that Ms A.A.1 continued to smoke marijuana while she was breastfeeding. He testified that he personally sterilized every bottle, and that he would do the feedings on the 'night shift' and Ms A.A.1 would do the 'morning shift' as well as take R.J. to the park during the day.

[33] Mr. S.C2 testified that after approximately two weeks at R.A.'s home, the parties then stayed at his father's house for a week while he was away in Florida. Ms A.A.1 and R.J. would come to work with him (approximately two hours a day during that time) and they continued to care for their new baby together. After a week at his father's home, the parties then went to stay at Mr. S.C2's mother's home for a week.

[34] Mr. S.C2 testified that on or about April 30, 2010, when R.J. was approximately forty days old, Ms A.A.1 and he went to her brother's birthday party. R.A. agreed to babysit both R.J. and another grandchild, as all of the other family members were going to the party, which was at a nightclub. Mr. S.C2 stated that it was the first night out that he and Ms A.A.1 had since the baby was born and that he was the designated driver. R.J.'s car seat was set up in the back so that they could pick him up from the grandmother after the party.

[35] That night, at approximately 1:30 a.m. Ms A.A.1 disappeared. According to Mr. S.C2, she said that she was going to the washroom and she never came back. Mr. S.C2 testified that he did not know where she was and searched the entire club for her, as did her family members. After the club shut down, he and other family members continued to look for her but could not find her.

[36] At approximately 3:00 a.m., Mr. S.C2 went to retrieve R.J. from R.A.. Upon arrival, he changed R.J.'s diapers and fed him a bottle, which took approximately one hour. He then drove back to Oakville with R.J. and arrived at his mother's home in the very early hours of the morning. He brought diapers, wipes and formula with him.

[37] Mr. S.C2 testified that R.A. willingly transferred the care of R.J. to him without objection. He testified that R.A. knew that Mr. S.C2 was taking R.J. to his mother's home in Oakville.

[38] Mr. S.C2 testified that neither he nor any of Ms A.A.1's family members called the police after she disappeared because sadly, this was a common pattern for Ms A.A.1. At that point, they were all under the impression that Ms A.A.1 had "gone on a binge" and that she would eventually resurface.

[39] Mr. S.C2 testified that Ms A.A.1 was initially missing for five days. During that time, he cared for the baby. During this period of Ms A.A.1's disappearance, he received positive 'text' messages from her family members telling him to "hang in there" and that R.J. was "in good hands." They reassured him that they would find Ms A.A.1. After five days, Ms A.A.1 contacted Mr. S.C2 to ask about the baby, but appeared to be under the influence of drugs. Mr. S.C2 testified that when Ms A.A.1's whereabouts became known, he contacted Ms S.C1 and pleaded with her to bring Ms A.A.1 home.

[40] Mr. S.C2 testified that approximately 13 days after Ms A.A.1 had disappeared, he received a "hysterical" call from her between 2:00 a.m. and 4:00 a.m., demanding to know where her child was and that she was coming to get her baby. Shortly after that, the police and the children's aid society appeared at Mr. S.C2's door in Oakville. After investigating the situation, the police officers did not apprehend R.J. from him, but instead, advised him to get a temporary custody order. The police attended a second time, based on a second report from Ms A.A.1 or her family that Mr. S.C2 had called the family "drunk and belligerent". Again, they did not remove R.J. from his care.

[41] After these events, Mr. S.C2 brought the urgent motion for temporary custody of R.J. referred to earlier in the history of proceedings. Under cross-examination, Mr. S.C2 admitted that when he learned that R.J. may not be his biological son, he was initially prepared to relinquish custody to Ms S.C1 and the A. family. He stated that he was very upset and emotional when he learned that he was not R.J.'s biological father, and at the time, he did think it would be in R.J.'s best interests to be returned to his family. As he put it, he was not sure if it was "my fight to fight." He stated that it was not because he did not care for R.J., but because in the long-term he thought that it may be better for R.J. to be with his biological family. He testified that this was a very emotional and confusing time for him.

[42] In June of 2010, when R.J. was three months old, Mr. S.C2 testified that he was still prepared to transfer custody to Ms S.C1 if there was a proper plan of care in place for R.J. According to Mr. S.C2, this plan "never materialized". Although the kinship assessment was completed in August of 2010, it was Mr. S.C2's opinion that the kinship assessment was inadequate. According to Mr. S.C2, it did not address safety concerns, including what he described as the "criminal" and "drug lifestyle" of the A./C1 family. He was also concerned that even months after the kinship assessment was completed, Ms S.C1 had not completed her police record check or brought a motion for custody of R.J.

[43] Mr. S.C2 testified that in the intervening months "he fell in love" with R.J. and that after thinking "long and hard", he changed his mind and concluded that it was in R.J.'s best interests to remain in his care. He began to make a permanent plan for R.J., which he stated would allow R.J. to grow up successfully. In his opinion, Ms S.C1 did not have a permanent or safe plan for R.J.

[44] Mr. S.C2 also raised concerns that Ms S.C1 suffers from chronic migraines and smokes marijuana regularly. He testified that R.J. often comes back from access visits with serious diarrhea and becomes easily upset and clingy when he hears the phone ring. He did not believe that Ms S.C1 had the time or the commitment to R.J.

[45] Under cross-examination, Mr. S.C2 was asked about R.J.'s race. R. J. skin colour is apparently significantly darker than both Mr. S.C2's and Ms A.A.1's skin colour. When asked why this did not raise a question for Mr. S.C2 regarding R.J.'s paternity, he replied that it did not occur to him because the A./C1 family are a diverse and biracial family. Ms A.A.1 has lighter skin and blue eyes, although she has other African-Canadian features. Ms S.C1 has dark skin and brown eyes, even though her mother R.A. is apparently white.

[46] Mr. S.C2 also admitted in cross-examination that after R.J.'s birth, he called him "a niglet". He testified that this was a term of endearment created by Ms A.A.1 and that it was used in a "joking and loving manner". He stated that he was repeating Ms A.A.1's use of the word and that he did not make up the word. He agreed that the word was clearly derived from a racist and hateful word but said that it was never intended to be used in that way. He testified that he would never let someone call R.J. a "niglet" in the school yard, nor would he use it in public. He stated that his nickname for R.J. was "my little bum bum."

[47] When asked about the importance of race in cross-examination, Mr. S.C2 acknowledged that this was important and that he would teach R.J. "proper history" about his black identity. He described R.J. as neither black nor white and stated that in the modern world, "colour is a shade." He denied that he was racist or that he had a problem with R.J.'s biracial identity. He stated that he was educated in a school system that was a diverse "melting pot" of people from all cultures and backgrounds. He testified that if he had a problem raising a biracial child, then he would not have stepped into the role of R.J.s father, nor would he have pursued this custody fight.

[48] Mr. S.C2 admitted under cross-examination that during his relationship with Ms A.A.1, both parties used marijuana, cocaine and alcohol. He stated that he use drugs recreationally when he was with Ms A.A.1 and that he did not use drugs as much as she did. He stated that Ms A.A.1 was using drugs well before he met her and that he made three attempts to get drug treatment for Ms A.A.1 during their relationship. Prior to R.J.'s birth, he occasionally smoked marijuana, but stopped using all drugs after R.J.'s birth. He also voluntarily submitted to random drug testing after he commenced these proceedings to confirm that he is drug free.

[49] In cross-examination, Mr. S.C2 was presented with recordings of three messages that he left for Ms A.A.1 during the time that she went missing. He admitted to leaving those messages and testified that he was very angry and upset with Ms A.A.1 for abandoning R.J. and deserting him. The messages are replete with angry and very profane language directed towards Ms A.A.1, demanding to know where she is and that she should "step up to the plate" and "be a fucking mother". In two of the messages, Mr. S.C2 sounds drunk. Mr. S.C2 denied being drunk while R.J. was in his care and testified that his mother was caring for R.J. when he left the first two messages as she agreed to give him some time off from parenting R.J.

[50] Mr. S.C2 denied being violent or abusive to Ms A.A.1 during their relationship. He denied hitting or kicking her, as Ms A.A.1 has alleged, and stated that the only time he "touched" Ms A.A.1 was to remove a joint or cigarette from her or to stop her from using drugs. He admitted to being aggressive on these occasions, but not violent.

[51] Mr. S.C2 testified that he and R.J. will continue to live in Oakville with I.C2 in the home that R.J. has known since his birth. Mr. S.C2 has already canvassed schools in the area and has planned the elementary and high school that R.J. will attend. He has started swimming lessons with him and regularly takes him to the library. He hopes to encourage R.J. to continue post-secondary education and will provide him with those opportunities. Mr. S.C2 described in detail his morning, afternoon and bed-time routines with R.J. which include regular meal and nap-times, trips to the local library, park and nearby lakefront, and a bed-time story before he goes to sleep at 8:00 p.m.

[52] Mr. S.C2 testified that he has the flexibility to spend as much time as possible with R.J. because he can work from home. He has also arranged for a drop in day-care close by to provide care for R.J. when he has to work. This day-care had provided child care for R.J. since he was eight months old. Mr. S.C2's mother also provides support and care for R.J. Mr. R.C2 described R.J. as a "beautiful, inquisitive, smart and happy little boy". He states that he will ensure that R.J. is taken care of and be given opportunities in life and that he will provide him nothing but "pure love." He testified that R.J. is "the light of my life."

6.2 I.C2

[53] I.C2 is Mr. S.C2's mother. Mr. S.C2 and R.J. live in her home in Oakville. She has been a realtor for 21 years. She testified that Ms A.A.1 was approximately five or six months pregnant when she told Mr. S.C2, and at that point, Mr. S.C2 became very involved and supported Ms A.A.1 for the duration of her pregnancy. Ms R.C2 testified that when her son realised that he was becoming a father, "he grew up overnight".

[54] Ms R.C2 testified that after R.J.'s birth, Mr. S.C2 and Ms A.A.1 would stay at her place with the baby, but would go back and forth to Ms A.A.1's home in Toronto. However, when R.J. was about five weeks old, Mr. S.C2 showed up alone with R.J. one early morning and they have lived with her since that time. Ms R.C2 described being closely involved in R.J.'s care. They read together, go to the park, and she brings R.J. to church on Sundays. She stated that they have a lot of family and friends close by who love R.J., including neighbours. Ms R.C2 described R.J. as a "great, happy, and lovable" little boy and testified that she "just loves that kid."

[55] Ms R.C2 stated that after his weekend visits with Ms S.C1, R.J. often appears tired, hungry, and sometimes "frazzled and anxious". She also observed that if the telephone rings, R.J. will panic and grab her leg, something he never did before weekend access visits with Ms S.C1 started. According to Ms R.C2, R.J. has come back after some weekend visits with diarrhea, and on one occasion, with a staph infection, which greatly concerned her.

[56] In cross-examination, Ms R.C2 admitted that she is a smoker but testified that she never smokes in R.J.'s presence and that she does not smoke in her home since R.J. came to live with her. She testified that R.J. "is never that close to me if I have a cigarette in my hand. If I have to pick him up, I throw that thing away."

[57] Ms R.C2 further testified that her relationship with Ms S.C1 is fine and that other than one invitation to Ms S.C1 in the late summer of 2010, she has not invited the A./C1 family members to her home, as there was no reason.

6.3 J.M.

[58] Ms J.M. is a close family friend of Mr. S.C2 and his mother. She has sworn affidavits in these proceedings, attended court, and initially agreed to provide supervision for Ms A.A.1's visits with R.J. pending the completion of the kinship assessment. She is a strong advocate of Mr. S.C2 and supports his claim for custody. On some occasions, she has written letters to the court directly voicing her concerns and opinion about the custody proceedings.

[59] Ms J.M. testified that she has known Mr. S.C2 for approximately seven years. She described Mr. S.C2 as a very dedicated and loving father to R.J. and that he is devoted to R.J. She testified that Mr. S.C2 regularly takes R.J. swimming and to the library and that he is always looking for ways to enhance R.J.'s education. According to Ms J.M., R.J. is now reading at a grade 3 level. She further testified that R.J. is a delightful and sociable little boy.

[60] Ms J.M. testified that when she was supervising the visits, she got along fine with Ms S.C1 but that the visits became less regular as Ms S.C1 would change and cancel the visits on several occasions. In cross-examination, she denied that she and Mr. S.C2 cancelled the access visits, except for one occasion when R.J. was ill.

[61] Ms J.M. testified that she had met Ms A.A.1 several times through Mr. S.C2. She testified that she felt sorry for Ms A.A.1 because she seemed unhappy with her life and had aspirations that she could not realize. It was her impression that A.A1 did not like going home to Toronto and that she was struggling with her addictions.

6.4 A.A.1

[62] Ms A.A.1 testified that R.J. should remain in her sister's custody until she is "100 percent better to have her baby". She candidly admitted that she was struggling with a serious drug addiction. Ms A.A.1's voice was barely audible at times and she was often unable to keep her head up during her testimony or focus on the questions asked. She looked extremely unwell. She had great difficulty sitting still without constantly fidgeting throughout her testimony. At times, she would slump forwards and often had difficult recollecting events. She was almost entirely led through her direct examination, with no objection from opposing counsel. At times, she would laugh and giggle inappropriately, then cry. At other times, she was incoherent, although there were moments of lucidity. During those moments, she was articulate and well-spoken. It was very sad to see a once beautiful and obviously intelligent young woman so clearly damaged by her drug addiction. Ms A.A.1 left the courtroom immediately after her testimony.

[63] Ms A.A.1 testified that she started using drugs as a teenager. She admitted that she had a history of abusing drugs prior to meeting Mr. S.C2, primarily marijuana, cocaine and crack. She further admitted that she had a history of disappearing when she was using drugs, although she stated that this was only on weekends and her family was aware of this. She testified that during her pregnancy and when her son was born, she stopped using cocaine and crack and only smoked the occasional joint of marijuana.

[64] Ms A.A.1 testified that after her relapse in April of 2010, she went on a "crime spree" and she was criminally charged with "hit and run, break and enter, robbery, assault and resisting a police officer." The current status of these criminal charges is unclear.

[65] Ms A.A.1 stated repeatedly during her evidence in both examination in-chief and in cross-examination that it is her intention to resume primary care and control of R.J. once she is better. She testified that it is her intention that her sister should care for R.J. until she completes rehabilitation, "becomes better and can be a mother to him". It was not clear from her evidence how long her recovery will take. She testified that she is currently seeking treatment through the "Women's Own" program in Toronto, which she is supposed to attend twice weekly. However, she admitted in cross-examination that she has missed a few appointments. She is also looking for other treatment at this time.

[66] Ms A.A.1 raised concerns about Mr. S.C2's parenting of R.J. She testified that Mr. S.C2 was very abusive towards her during their relationship. She testified that he was "verbally abusive" on a daily basis and described two separate occasions when he was physically abusive towards her. She testified that the first time Mr. S.C2 hit her was two years ago on her birthday. She stated that Mr. S.C2 pushed her onto the floor and hit her spinal cord. She sought medical treatment for this injury, but she had no patience to wait, so she left the hospital. The second incident occurred two weeks after she gave birth while they were staying at his father's home. Ms A.A.1 testified that Mr. S.C2 kicked her in the vaginal area, which was still healing from after the birth. She testified that she was carrying R.J. at the time and that she fell to her knees in pain.

[67] Despite her difficulty in testifying, Ms A.A.1 did confirm Mr. S.C2's evidence that after R.J.'s birth, the parties did go back and forth between her mother's place and Mr. S.C2's family home (both his mother's and father's home). She further admitted that on the night she disappeared, she went on "a binge" because she was afraid that Mr. S.C2 would find out that he was not R.J.'s biological father. She stated that she did not know the identity of R.J.'s biological father, except that his first name was "Chris" and that he appeared to be of Canadian Jamaican descent.

[68] Ms A.A.1 further denied abandoning R.J. After she went on the binge, she did not know that Mr. S.C2 had taken R.J. to Oakville until she called him. Ms A.A.1 testified that Mr. S.C2 agreed to let her come to his home to see R.J., but only if she came alone and brought R.J.'s play-pen. When she arrived, Mr. S.C2, his mother and Ms J.M. were present and they tried to pressure her to sign a paper giving Mr. S.C2 custody of R.J. She refused.

[69] After this occurred, Ms A.A.1 advised Mr. S.C2 that there was a chance that he was not R.J.'s biological father. She testified that when she told Mr. S.C2 this, he got very upset and started shaking. She described his reaction as more sad and upset rather than angry.

6.4 S.C1

[70] Ms S.C1 testified that neither her sister nor her mother consented to Mr. S.C2 taking the baby the night that Ms A.A.1 disappeared. She stated that the family repeatedly tried to get R.J. returned to them, so that he could be cared for by R.A., Ms S.C1 and other family members until Ms A.A.1 got better. While the baby was in Mr. S.C2's care, the family and Ms A.A.1 received abusive messages from Mr. S.C2 in which he appeared to be drunk or under the influence of drugs and alcohol. They were greatly concerned about R.J.'s safety after hearing these messages, which is why they contacted the children's aid society and the police in an attempt to have R.J. returned to them.

[71] Ms S.C1 described Ms A.A.1 as her "baby sister" and stated that she lived with her until the age of twenty-one, when Ms S.C1 left home. Ms A.A.1 was approximately fourteen years old at the time. Ms S.C1 visits her mother often and testified that her mother has lived in the same home for the past eleven years. Ms S.C1 testified that Ms A.A.1 and two other siblings continue to live at the family home in Toronto.

[72] Ms S.C1 testified that she became involved when Mr. S.C2 took "baby R. from our family and got custody". She "stepped in" because her sister is unwell. She discovered that R.J. was in Mr. S.C2's care approximately two days after Ms A.A.1 disappeared. Her mother told her that Mr. S.C2 was caring for R.J., so she 'texted' Mr. S.C2. Mr. S.C2 confirmed that he was caring for R.J. and told her that it was hard. She testified that she sent a text message back telling him that he could always drop the baby off with her if he was finding it hard.

[73] On or about May 10, 2010, Ms S.C1 received a call from her mother saying that Ms A.A.1 had been served with custody papers. The family was very upset and that they did not understand what was going on. She took her sister to court and helped her find a lawyer. Ms S.C1 testified that she has attended every court appearance since the case started. She stated that from the outset, she was there to take care of the child because her sister was unable to parent.

[74] Ms S.C1 testified that on the first court date she agreed to supervise her sister's access to R.J. but Mr. S.C2 wanted to choose the location. They agreed that Ms A.A.1's access would be supervised at the home of J.M.. There were quite a few access visits at Ms J.M.'s home in June and July of 2010. She stated that she supervised the access, not Ms J.M..

[75] Ms S.C1 testified that during the kinship assessment, the access visits were then supervised at the children's aid society office. She stated that Mr. S.C2 cancelled numerous visits during that time and that there was a lot of frustration of access. The supervised visits ended once the kinship assessment was completed and Ms S.C1 started having unsupervised access on mid-week and alternating weekends in August of 2010. Ms S.C1 testified that in the past 14 months, she has only missed approximately three or four visits.

[76] Ms S.C1 testified that the results of the kinship assessment of her were positive. The assessment was completed by Ms Ayesha Malik of the Toronto Children's Aid Society in August of 2010. Ms S.C1 described the process as complicated. Ms Malik came to her home on approximately three occasions and asked a lot of questions. Ms Malik also observed her interaction with R.J. However, despite the positive results of the assessment, Mr. S.C2 asked for full custody of R.J. Ms S.C1 testified that given Mr. S.C2's change in position, she then asked to be added as a party so that she could bring a motion for custody. R.J. was five months old at the time.

[77] Ms S.C1 stated that it is in R.J.'s best interests to be in her custody for the following reasons:

a) She is R.J.'s biological aunt and he comes from a big and close-knit family;

b) R.J. is not related to Mr. S.C2;

c) Her sister, Ms A.A.1, wants her to take care of the baby until she gets better.

[78] Ms S.C1 stated that she has been fighting for R.J. since he was "taken" from her family by Mr. S.C2 and that she just wants him "to be home where he belongs." She testified that she loves R.J. very much and that she plans to take care of him "until my sister gets better."

[79] Ms S.C1 has recently moved to a two bedroom apartment so that she could have more space for her nephew. She works at the hospital approximately three to four days each the week and also on some weekends. Her shift is from 7:00 a.m. to 3:00 p.m. Although she is classified as a part-time employee, she works full-time hours. Ms S.C1 testified that R.J. would either go to day-care stay with family when she is working. She also stated that she has a best friend at home with her baby who has also offered to care for R.J.

[80] Regarding contact between R.J. and her sister, Ms S.C1's plan is that Ms A.A.1 needs to seek rehabilitation before she can be around her child.

[81] Ms S.C1 described that her typical day with R.J. on the weekend involves waking up between 6:30 a.m. and 7:30 a.m. and having breakfast after he plays. As she lives close to the airport, she will take R.J. to see the airplanes or to the zoo. He usually has an afternoon nap and then after that, they go to the park. After dinner, she reads to him and then gives him a bubble bath, which he loves. She stated that R.J. has never been injured or neglected in her care. She observed that when she returns R.J. to Mr. S.C2, he often cries a lot and wants to come back to her.

[82] Ms S.C1 stated that she deals with I.C2 more than Mr. S.C2 and that they have a very "straightforward" relationship. Their conversations or 'texts' focus on R.J. and his routine. She stated that if she was granted custody of R.J., she was not sure what access she would give to Mr. S.C2 if he would like to see him.

[83] In cross-examination, when asked why she did not seek to be added as a party until October of 2010, Ms S.C1 testified that she believed that after the kinship assessment, she would have the baby. She did not know that Mr. S.C2 would change his mind and ask for custody after the kinship assessment was completed.

[84] Ms S.C1 could not explain the eight month delay in bringing her motion for custody after she was added as a party in October of 2010. She testified that she relied upon her lawyer, and that if he adjourned the motion, then she did not know why. She stated that her lawyer was to prepare a custody motion and that he did not do so. Ms S.C1 admitted under cross-examination that after she retained her lawyer in the fall of 2010, she rarely attended the court appearances as she now had counsel to do this.

[85] Ms S.C1 further admitted that by August of 2011, ten months after she was added as a party, she had not brought a motion for custody and she had consented to Mr. S.C2 having temporary custody of R.J. pending the custody trial. She stated that she did not really know what she was consenting to at that time. R.J. was then 17 months old.

[86] In re-examination, Ms S.C1's counsel attempted to clarify that the reason for the lengthy delay in bringing Ms S.C1's motion for custody was because she was waiting for the police report which is required for non-parents seeking custody. Ms S.C1 could not recall when she applied for her police record check, however, she testified that when she did apply, she got the "run around" and was advised that she could not get her police report without her finger prints, which would take approximately six months.

[87] Ms S.C1's police report was obtained on November 10, 2011, four weeks before the custody trial and nineteen months after the custody proceedings were commenced by Mr. S.C2. It was entered as evidence at trial. The report indicates some convictions for theft and robbery as a young person. Ms S.C1 testified that when she was a teenager she "hung out with a lot of bad kids" and that she was in "the wrong place at the wrong time". She has not been involved with the criminal justice system since that time.

[88] Ms S.C1 testified that she has never seen Mr. S.C2 physically abuse her sister and that the information in her affidavits about Mr. S.C2's abusive behaviour towards Ms A.A.1 was reported to her by her sister once the proceedings were commenced. However, Ms S.C1 stated that she has directly observed Mr. S.C2 smoke marijuana and drink alcohol.

6.5 A.A.2

[89] A.A.2 is A.A.1's twin sister. Although they are clearly identical twins, the court observed a striking contrast in their physical appearances at trial. A.A.2 is a healthy and beautiful young woman, representing what A.A1 could be if she stops abusing drugs and alcohol. A.A.2 is married and working in Toronto. She is currently residing with her mother, A.A1 and one brother while she awaits her husband, whom she sponsored to come to Canada from Israel.

[90] A.A.2 met Mr. S.C2 through her sister. She testified that on occasion, they would all go out drinking together. She testified that she directly observed Mr. S.C2 being physically and verbally abusive to her sister. She stated that Mr. S.C2 called her sister very degrading and abusive names when he was drunk or under the influence of drugs. She has observed him smoking marijuana and cocaine when he was involved her sister. On one occasion, when they were at his mother's condo in Toronto, she witnessed Mr. S.C2 grabbing her sister by the neck and throwing her into a room.

[91] Ms A.A.1 described her current relationship with her sister as "distant". She does not see her often because of her sister's addiction, sometimes only once per month, even though they are living in the same residence. She does not see R.J. regularly either because she is often working when he is with Ms S.C1. She described her sister A.A1 as a "drug addict" and became understandably tearful when testifying about her.

[92] When asked why she was a witness at trial, she stated that she was here to testify to "try to get our baby back." She stated that this is important because her mother raised six children, they are all very close, they love each other very much, and R.J. belongs with his family. She said that she would support Ms S.C1 caring for R.J. financially and otherwise by babysitting R.J. and caring for him when necessary.

[93] In cross-examination, when asked if A.A1 should have ever custody of R.J., she stated that her sister should have custody of R.J. once she is approved by a professional, she is healthy and she is well enough to take care of her baby.

[94] At the conclusion of the evidence at trial, counsel for Ms S.C1 advised the court that R.A. was not being called to testify, despite being listed as a witness in Ms S.C1's trial management brief. Thus, the court only heard direct evidence from Mr. S.C2 regarding the events that led to the transfer of R.J.'s care to him from R.A. on April 29, 2010.

[95] The social worker who conducted the kinship assessment regarding Ms S.C1 was also not called to testify. Counsel for Ms S.C1 wished to enter the kinship report into evidence, however, counsel for Mr. S.C2 objected unless the report's author was available for cross-examination. The court refused permission to enter the report as evidence unless the kinship worker was available for cross-examination regarding the contents of the report.

7: THE LAW AND ANALYSIS

[96] The governing legislation is the Children's Law Reform Act, R.S.O. 1990, c. C-12, as amended (the "Act"). My sole function is to determine what custody and access arrangements are in R.J.'s best interests. The relevant sections are as follows:

21. (1) A parent of a child or any other person 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. R.S.O. 1990, c. C.12, s. 21.

(2) An application under subsection (1) for custody of or access to a child shall be accompanied by an affidavit, in the form prescribed for the purpose by the rules of court, of the person applying for custody or access, containing,

(a) the person's proposed plan for the child's care and upbringing;

(b) information respecting the person's current or previous involvement in any family proceedings, including proceedings under Part III of the Child and Family Services Act (child protection), or in any criminal proceedings; and

(c) any other information known to the person that is relevant to the factors to be considered by the court under subsections 24 (2), (3) and (4) in determining the best interests of the child. 2009, c. 11, s. 6.

24. Merits of application for custody or access. — (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).

[97] In deciding what custody and access arrangements are in R.J.'s best interests, I must consider the factors set out in subsections 24 (2), (3), and (4) of the Act:

(2) Best interests of child. — The court shall consider all the child's needs and circumstances, including,

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

(i) each person entitled to or claiming custody of or access to the child,

(ii) other members of the child's family who reside with the child, and

(iii) persons involved in the care and upbringing of the child;

(b) the views and preferences of the child, where such views and preferences 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) any plans proposed for the care and upbringing of the child;

(f) the permanence and stability of the family unit with which it is proposed that the child will live;

(g) the ability of each person applying for custody of or access to the child to act as a parent; and

(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application.

(3) Past conduct. — 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.

(4) Violence and abuse. — 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.

[98] For the following reasons, custody of R.J. is granted to the Applicant. I discuss each of the relevant best interest factors set out in the legislation in my reasons below.

1. The love, affection and emotional ties between the child and the parties and other members of the child's family

[99] It is clear that both Mr. S.C2 and Ms S.C1 love R.J. very much. R.J. is also greatly loved by Mr. S.C2's mother I.C2, who is acting as his grandmother and alternate caregiver in the home where they all live. Mrs I.C2 is closely involved in R.J.'s day to day care. I heard no evidence regarding the strength or quality of R.J.'s relationship with his maternal grandmother, R.A.. I heard evidence that other members of the A./C1 family also love R.J., although it is unclear from the evidence how much time they have actually spent with him.

[100] In assessing the strength of R.J.'s emotional ties and attachment to both parties, there is no question that Mr. S.C2 has acted as a parent to R.J. since his birth and has a very strong emotional attachment to him. I heard much evidence regarding the strength and quality of R.J.'s bond with Mr. S.C2, who testified that he "fell in love with R.J." and described R.J. as the "light of his life." I did not hear as much evidence regarding the strength and quality of his attachment to Ms S.C1, although there is no doubt that Ms S.C1 loves him and R.J. enjoys his time with her. Understandably, the strength of R.J.'s ties to Mr. S.C2 would be greater given that that Ms S.C1 did not start exercising overnight weekend access to R.J. until October of 2010. She continues to be an alternating 'weekend parent' and does not have the same daily parental responsibilities as Mr. S.C2.

[101] I find as a fact that R.J.'s predominant psychological attachment is to Mr. S.C2, whom he views as his father. Although R.J. has very likely formed an attachment to Ms S.C1 as well, by the time of trial, Mr. S.C2 had been R.J.'s primary caregiver and parent for almost all of his life. R.J. is a happy, thriving and well loved little boy.

2. The length of time the child has lived in a stable home environment

[102] R.J. has lived with Mr. S.C2 since he was seven weeks old, almost his entire life, in the same home. This is a very lengthy time for a two year old child. Mr. S.C2 has no plan to change his home with R.J. in the foreseeable future. Although not determinative, the status quo is a very important factor to consider in custody and access disputes. Courts have been reluctant to change a child's status quo absent compelling evidence to justify a change. Children, especially young children who have developed an attachment to their primary caregivers and are thriving in a stable environment, should not be removed from that environment unless it is not in their best interests to continue in that environment. All of the evidence supports that R.J. is thriving in his home environment.

[103] I reject Ms S.C1's claim that Mr. S.C2 removed R.J. from the A./C1 family without the mother or grandmother's consent and that he has somehow set up an unlawful status quo. I find as a fact that on the night Ms A.A.1 went missing, R.A. permitted Mr. S.C2 to retrieve R.J. from her care and return home to Oakville with him. The only direct and uncontradicted evidence that I heard on this issue was from Mr. S.C2 who testified that after looking for Ms A.A.1, he went to pick up R.J. from R.A.. He stayed for an hour, feeding and changing him before returning to Oakville with him. R.A. did not call the police claiming abduction nor did any member of the family bring an emergency motion for custody.

[104] The evidence indicated that the family was initially grateful and supportive of Mr. S.C2's care of R.J. At that time, the family members, including Mr. S.C2, believed that he was R.J.'s biological father. It is clear that Mr. S.C2 stepped in, with the family's consent, to care for his son, while his mother was missing and was unable to parent. It was only approximately two weeks later that family members called the police, when Ms A.A.1 re-surfaced. Even then, when the police refused to remove R.J. from Mr. S.C2's care, Ms S.C1 did not bring an urgent motion for custody, nor did anyone in the family. In fact, it was only Mr. S.C2 who has brought an urgent motion for custody in these proceedings.

[105] It would have been helpful to hear the evidence of R.A. on the events that led her to deliver R.J. into Mr. S.C2's care. The court draws an adverse inference from the failure to call R.A. as a witness in support of Ms S.C1's position that Mr. S.C2 unlawfully removed R.J. from R.A.'s care. R.A. was listed as a witness for trial and she was very important to Ms S.C1's case on this issue. No explanation was provided for the failure to call R.A. as a witness, which the court was first informed about at the conclusion of the evidence at trial.

[106] The status quo that developed after Mr. S.C2 assumed primary care of R.J. is almost entirely the result of Ms S.C1's failure to move her case forward and bring a motion for custody. The court accepts that initially, Ms S.C1 relied upon Mr. S.C2's position that he would transfer custody of R.J. to her once the kinship assessment was completed and was positive. However, the kinship assessment was successfully completed in August of 2010, when R.J. was five months old. By October of 2010, it was clear that Mr. S.C2 had changed his mind and that Ms S.C1 would need to immediately bring a motion for custody. Yet eight months later, Ms S.C1 had still not brought a motion for custody and Justice Zisman refused a further request to adjourn her motion on June 20, 2011. By August of 2011, fifteen months after Mr. S.C2 had assumed care and custody of R.J., Ms S.C1 had not brought her motion for custody and consented to an order granting Mr. S.C2 temporary custody of R.J. pending trial.

[107] This court is at a loss to understand why Ms S.C1 let the status quo continue undisrupted for so long. The assertion that she was waiting for her police record check makes no sense. The Form 35.1 Affidavit now required for non-parents seeking custody (Part B of the Affidavit) requires that the non-parent either attach a copy of their police record check or confirm the date on which the request for a police record check was sent. There is nothing that prohibits a court from making an order for custody so long as the request was made. Presumably, the children's aid society would have conducted a criminal record check when they approved Ms S.C1 as a kinship care provider in August of 2010, a fact that the case management judge would have considered if Ms S.C1 had brought a motion for custody at that time. Further, the Form 35.1 Affidavit filed by Ms S.C1 in August of 2010, which was entered as an exhibit at trial, indicates that she had not yet sent a request for a police record check. At trial, Ms S.C1 could not recall when she applied for her police record check, only that she was getting the "run around" from the police regarding her youth record.

[108] Ms S.C1's evidence that she was relying upon her lawyer to bring the motion requires some consideration. Although there is no question that litigants rely upon their counsel to give them advice and representation, they must bear some responsibility in moving their case forward, particularly when the issues at stake involve a young and vulnerable child who is developing a strong attachment to his primary caregiver and psychological parent. The evidence is clear that Ms S.C1 rarely attended court after she retained Mr. Cadogan. The court is concerned that Ms S.C1 did not recognise the impact of the delay in advancing her claim for custody on R.J.

[109] Mr. Cadogan submits on Ms S.C1's behalf that the delay in bringing the motion for custody "should not be held against her". Respectfully, that is not my concern. My sole consideration is R.J.'s best interests. In my view, it is contrary to R.J.'s best interests to remove him from a stable environment where he has thrived for almost his entire life of two years. This could have a serious impact on his healthy growth, development and attachment to his primary psychological parent and may affect his ability to form attachments in the future.

3. 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

[110] R.J. has no special needs and the evidence demonstrates that he is a happy and healthy child. Despite the concerns raised by Ms S.C1 regarding Mr. S.C2's ability to parent R.J., all of the evidence confirms that Mr. S.C2 is willing and able to provide R.J. with guidance, education and the necessaries of life. Mr. S.C2 has already set up a specific education plan for R.J., he has childcare in place when he is working, and I.C2 is also present every day to assist in R.J.'s care. R.J. has been well looked after by Mr. S.C2, and I am satisfied that he will provide R.J. with the education and opportunities in life that R.J. is entitled to and deserves.

[111] The evidence also indicates that Ms S.C1 is able to provide R.J. with education, guidance and the necessaries of life, however, the court does question Ms S.C1's commitment to R.J.'s future, given the very length delay incurred by her in moving her claim for custody forward.

4. The plan proposed for the care and upbringing of the child by each person applying for custody of the child and the permanence and stability of the family unit which it is proposed that the child will live

[112] Mr. S.C2 gave evidence describing a detailed, permanent and stable plan for R.J. He wishes to be R.J.'s parent for the rest of his life. Ms S.C1's plan is not permanent or stable. There is no question that Ms S.C1 herself is a determined, stable, and responsible person, who deeply cares for her family and loves R.J. However, all of the evidence led in support of Ms S.C1's plan of care for R.J. demonstrates that it is a temporary plan, meant to be a "holding pattern" until his mother gets better and she is able to parent R.J. Ms S.C1 testified that one of the reasons that she was seeking custody is because "my sister wants me to take care of the baby until she gets better." A.A.1 testified that she wants to have "primary care and control of my baby when I am healthy." A.A.2 testified that once her sister "is approved by a professional and she is healthy and well enough, then she should have custody of R.J."

[113] It is very unclear how long it will take for the mother to be well enough to parent R.J. and how this will be determined. Although Ms S.C1's commitment to her sister is admirable, this plan does not offer R.J. any stability. It could subject R.J. to multiple primary caregivers and potentially multiple disruptions in attachment if the mother is well enough for a period of time to care for R.J., but then has a further relapse. Even some of the details of Ms S.C1's "holding plan" were uncertain. Her plan regarding child care for R.J. while she was working was vague. She was either going to register R.J. for day-care or have a friend care for him or some other family member. Other than A.A.2, I did not hear any evidence from family members about how they would be involved in R.J.'s care.

[114] There was also very little evidence regarding how Ms S.C1 or other family members would monitor and protect R.J. from unsupervised contact with Ms A.A.1 while she was actively using drugs and living with R.A.. I heard very little evidence about a safety plan. There was no evidence from the kinship worker regarding her investigation and assessment, if any, of a safety plan regarding R.J.'s contact with his mother while in Ms S.C1's care. This would have been helpful to the court.

[115] Ms S.C1 also testified that R.A. would be very involved in R.J.'s care, yet she was not called to give evidence, as previously discussed. The court was also concerned about R.A.'s involvement in the plan of care, given that there is currently a court order that restricts R.A.'s contact with R.J. for reasons unknown to the court.

5. The ability of each person applying for custody of or access to the child to act as a parent

[116] Mr. Cadogan submits that Mr. S.C2 is a violent, racist and abusive man and that he really does not want custody of R.J. He submits that Mr. S.C2's desire to keep custody of R.J. is "an exercise of power over Ms A.A.1". Mr. Cadogan did not seriously pursue the allegation that Mr. S.C2 currently abuses drugs, as the evidence at trial did not demonstrate this. Mr. S.C2 frankly admitted that he did use drugs while involved with Ms A.A.1, but since becoming a parent, this is no longer an issue.

[117] In assessing a person's ability to parent, section 24(4) of the Act requires the court to consider whether the person has at any time committed violence or abuse against his spouse, a parent of the child, a member of his household or any child. The court heard evidence of aggressive and abusive behaviour by Mr. S.C2 towards Ms A.A.1. Ms A.A.1 described two incidents of physical altercation between her and Mr. S.C2. These incidents appeared to be isolated and situational incidents arising within the context of Mr. S.C2 being very upset about Ms A.A.1's continued use of drugs. Mr. S.C2 admitted to being aggressive when he tried to remove a joint from Ms A.A.1, although he denied kicking or pushing her. Although violence of any kind should not be condoned, the court did not hear evidence of a history or pattern of violence by Mr. S.C2 towards Ms A.A.1, nor did the court hear any evidence of abuse towards R.J. or any child, and this is not disputed. Further, the first incident described by Ms A.A.1 occurred well before R.J.'s her pregnancy and R.J.'s birth.

[118] Regarding the recorded voice mail messages left by Mr. S.C2, there is no question that Mr. S.C2 sounds very angry during those recordings and directed abusive language towards Ms A.A.1. He also sounded drunk in two of the messages. I accept that when Mr. S.C2 left these messages he was very angry and upset with Ms A.A.1 for abandoning their child, their relationship, and for returning to drugs.

[119] Although the court is concerned about some of the evidence describing Mr. S.C2's past abusive behaviour towards Ms A.A.1, the question remains that if Mr. S.C2 was such an angry and abusive man, then why did the family permit him to care for R.J. when Ms A.A.1 went missing and support his care of R.J. initially. Furthermore, Ms S.C1 did not bring an urgent motion for custody of R.J., and consented to Mr. S.C2's temporary custody of R.J. after R.J. was in his care and custody for more than one year.

[120] Mr. S.C2's mother described Mr. S.C2 as "growing up overnight" once he realised that he was going to be a father and the court does find that Mr. S.C2 has matured, and has fully assumed the role and responsibilities of a parent. Ms A.A.1 must have known this, given that when she discovered that she was pregnant, she made the decision to tell Mr. S.C2 that he was the father, even though she knew that he was not the biological father, according to her evidence. I find that Mr. S.C2 has grown and matured as a father. The evidence from other witnesses described him as dedicated, loving and caring father.

[121] The court does not accept that Mr. S.C2 is a racist man. He is choosing to raise a biracial child, whom he loves unconditionally, and he became involved and fell in love with R.J.'s mother, a biracial woman. Mr. Cadogan submits that any reasonable person having a true appreciation and sensitivity regarding racism would not chose the word "niglet" as a term of endearment for a biracial child. Mr. Cadogan submits that the choice of this word is an indication of racism and complete insensitivity to R.J.'s black heritage.

[122] Mr. S.C2 acknowledged that the word was wrong. He emphatically testified that he did not make the word up and that he repeated the word after Ms A.A.1 had used it in a "joking and affectionate" way. He stated that it was only used on two occasions, and that it was never used in public. Mr. S.C2 stated that he would never use the word in public and that he would never let anyone else refer to R.J. in that way.

[123] In her direct examination, Ms A.A.1 could not recall how the term originated and her evidence on this issue was very weak and lacked credibility, despite being almost entirely led through her direct examination by Mr. Cadogan. I find that the term was first used by Ms A.A.1, and then repeated, inappropriately, by Mr. S.C2 while the parties were together in the privacy of their home. I did not find that the word was used maliciously or in a hateful way, however, the parties certainly demonstrated extremely poor judgement in using the word to refer to their son and Mr. S.C2 fully and sincerely acknowledged this at trial.

6. The relationship by blood or through an adoption order between the child and each person who is a party to the application

The Importance of Biology and Blood Relationships

[124] Although "any person" may apply for custody or access under section 21 of the Act, section 20(4) of the Act and case law support the principle that biological parents have a preferred status or preferential claim over others. See Foster v. Allison, Kobow v. Kobow, 2007 ONCJ 514, Chapman v. Chapman, J.M.M v. M.M.. However, most of these cases involve custody/access disputes between parents and grandparents.

[125] In this case, neither biological parent has applied for custody of R.J. This is a custody dispute between Mr. S.C2 who has acted as a parent to R.J. since his birth but has no biological connection to him, and Ms S.C1, R.J.'s maternal aunt, who is also involved in R.J.'s care and has a blood relationship with R.J. Ms S.C1 submits that R.J.'s biological connection to her family should be a paramount consideration.

[126] Notwithstanding the case law referred to above, there is also a considerable body of case law supporting the proposition that there is no presumption in law preferring biology in the determination of a child's best interests in custody disputes, although courts have always acknowledge the special relationship that exists between a biological parent and the child. However, the best interests and welfare of the child is always the paramount consideration.

[127] The leading case on the importance of biology in custody determinations is the Ontario Court of Appeal decision in Moores v. Feldstein. In that case, the Court of Appeal awarded custody of a four year old child to the child's non-biological parents over the claim of the biological mother. The mother had placed the child with third parties a few days after the child's birth. Four years later, she sought to have the child returned to her. In dismissing the mother's claim, the Court stated the following at paragraph 45:

"Although in most cases it is to be expected that a child will benefit by the ties of affection of a parent and what naturally flows from it, that must be a question of fact in every case, and I do not think that I am bound by precedent to proceed on the assumption that it is inevitably so."

[128] Following that decision, the Supreme Court of Canada in King v. Low, citing Moores v. Feldstein, supra, dismissed the biological mother's appeal of a custody order in favour of the child's adoptive parents. The mother sought the return of the child to her care and custody approximately three months after the child was placed in the adoptive parents' care when he was only a few days old. In dismissing the biological mother's appeal, the court upheld the trial judge's finding that the benefits of maintaining the child's blood ties to his natural mother were outweighed by the benefits of maintaining the stability of his present home and his existing parental bonds with the adoptive parents. The court stated as follows at paragraphs 28 and 34:

I would therefore hold that in the case at bar the dominant consideration to which all other considerations must remain subordinate must be the welfare of the child. This is not to say that the question of custody will be determined by weighing the economic circumstances of the contending parties. The matter will not be determined solely on the basis of the physical comfort and material advantages that may be available in the home of one contender or the other. The welfare of the child must be decided on a consideration of these and all other relevant factors, including the general psychological, spiritual and emotional welfare of the child. It must be the aim of the Court, when resolving disputes between rival claimants for the custody of a child, to choose the course which will best provide for the healthy growth, development and education of the child so that he will be equipped to face the problems of life as a mature adult. Parental claims must not be lightly set aside, and they are entitled to serious consideration in reaching any conclusion. Where it is clear that the welfare of the child requires it, however, they must be set aside....the Court in questions of contested custody, including contests between a natural parent and adoptive parents, must consider the welfare of the child the predominant factor and give it effect in reaching its determination.

[129] Unlike the case before me, King v. Low, supra, involved an adoption, which involved the permanent and complete termination of the child's relationship by blood to the mother, including the termination of mother's parental rights and access to the child. In this case, R.J. can continue to have a relationship with his maternal family through a generous and specified access order.

[130] In Johnstone v. Locke, [2012] O.J. No. (S.C.J.), a step-mother brought an application for custody of a nine year old child against the child's biological mother and father, after separating from the child's father. Although her application for custody was dismissed for several reasons not relating to her lack of biological connection to the child, the step-mother was awarded specified access. In reviewing the case law regarding the role of biology or the blood relationship between the child and the parties applying for custody, Justice J. Mackinnon states as follows at paragraphs 96 and 104:

"These cases correctly state that all decisions with respect to custody and access are to be determined on the basis of the best interests of the child having regard to the facts in each case. Neither parental status nor step parent status confers any presumed right or entitlement to custody or access to a child.. In my view, the statutory direction to determine the child's best interests should be accomplished by a careful consideration of the facts in each case rather than by focusing on the status of each adult in relation to the child."

[131] In the case before me, Ms S.C1's submission that R.J. should be "returned" to his biological family where he belongs should not take precedence over other factors determining R.J.'s best interests. The benefits of R.J. maintaining the stability of his present home and his strong parental bond with Mr. S.C2 outweigh any benefits that may result in returning R.J. to his biological family, particularly when he can maintain a connection to his biological family through an access order.

The Importance of Race

[132] The other important factor to consider in determining R.J.'s best interests is his mixed racial heritage. The law is clear that race can be an important factor in determining a child's best interests because it is connected to the culture, identity and emotional well-being of a child. It is well understood that biracial children should be encouraged to positively identify with all aspects of their racial heritage.

[133] The leading case in addressing the importance of race in the custody determination of a child of mixed racial heritage is the Supreme Court of Canada's decision in Van de Perre v. Edwards, 2001 SCC 60. In that case, a Caucasian Canadian mother had a relationship with an African American father, a professional basketball player whose primary residence was in the United States. A child was born as a result of the relationship and a trial judge awarded custody of the child to the mother and specified access to the father. The father appealed and the British Columbia Court of Appeal reversed the trial judge's decision and granted custody of the child to the father and his current wife, also African American, with generous access to the mother. Among the several errors that the Court of Appeal found with the trial judge's decision, the Court of Appeal held that the trial judge gave no consideration to the issues of race and interracial problems that the child might face. On appeal to the Supreme Court of Canada, the Court set aside the decision of the Court of Appeal and restored the trial judge's decision.

[134] In reaching this conclusion, the court found that the trial judge clearly considered the child's mixed race, however he determined that this issue was not determinative of the child's best interests and that the child would be in a more stable and loving environment with his mother. The court states as follows:

"The principal determination to be made in cases involving custody is the best interests of the child. ....the question is which parent will best be able to contribute to a healthy racial socialization and overall healthy development of the child. This question is one of fact to be determined by the courts on a case-by-case basis and weighed by the trial judge with other relevant factors.... As I have said, racial identity is but one factor that may be considered in determining personal identity; the relevancy of this factor depends on the context. Other factors are more directly related to primary needs and must be considered in priority ...All factors must be considered pragmatically. Different situations and different philosophies require an individual analysis on the basis of reliable evidence." [par. 9, 38, 40, 41]

[135] The court further stated the following at paragraph 39 in addressing the specific circumstances of the case before the court:

"Of these two biological parents, one will be granted custody and one will be granted access. The result here is that Elijah will have exposure to both sides of his racial and cultural heritage. There was no evidence introduced to suggest that greater exposure to one's racial background through custody as opposed to access is in the better interests of the child in every case."

[136] I have already found that Mr. S.C2 is not a racist, however, the question still remains whether he would be able to nurture and support R.J.'s biracial identity. Mr. S.C2 gave evidence indicating that he was clearly alive and sensitive to R.J.'s biracial identity and that he would nurture and educate R.J. properly about his background and black heritage. There is no evidence to suggest that Mr. S.C2 will raise R.J. to be "taught that he is white," as Mr. Cadogan submits. Mr. S.C2 gave evidence that he was raised and educated in a multicultural and diverse background and that he respects all aspects of R.J.'s identity. Further, R.J. will also be exposed to his racial and cultural heritage through his relationship with his maternal family and there is no evidence to suggest that it will be better fostered in a custodial arrangement as opposed to an access arrangement.

[137] Neither party sought an order for joint custody with the other, and in the circumstances a joint custody order would not be appropriate. In conclusion, in carefully assessing all the factors that I must consider in determining what is in R.J.'s best interests, in my view, it is in R.J.'s best interests to remain in the sole custodial care of the applicant. The fact that R.J. is thriving in a permanent and stable environment where he has lived for the past two years is a primary consideration, particularly given that this is a stable and permanent plan, unlike the temporary plan being proposed by Ms S.C1. R.J. is entitled to a permanent and loving home and to maintain and strengthen his existing parental bond with the applicant, who is truly his father.

[138] I recognise that this decision will be difficult for the A./C1 family. I commend Ms S.C1 for stepping in and attempting to support her sister's claim for custody. The family appears to be very close and supportive of each other and I hope that they will continue to be involved in R.J.'s life and to support their sister on her path to recovery.

7: FINAL ORDER

[139] For the above reasons, I make the following final order:

1. The Applicant, R.C2 shall have custody of the child, R.J.C2, born […], 2010;

2. The Respondent, S.C1, shall have access to R.J. as follows:

a) Alternating weekends from Friday at 6:00 p.m. to Sunday at 7:00 p.m. If the access weekends falls on a weekend with a statutory holiday, then the access shall be extended to the holiday Monday at 7:00 p.m., subject to the holiday exceptions set out under paragraph 2 c) below, and unless otherwise agreed between the parties;

b) One mid-week overnight visit, at a day and time to be arranged between the parties;

c) Holiday access, including time during the summer holidays, Thanksgiving and Christmas holidays, at times to be discussed and agreed between the parties. The regular access schedule shall be suspended on Christmas Day and Christmas Eve and the child shall always spend Christmas Eve night and Christmas morning with the Applicant, unless otherwise agreed between the parties.

d) The parties shall be flexible in arranging for additional time with the child when a special occasion or family event arises.

e) The regular access schedule will be suspended on Father's Day, so that the child can spend every Father's Day with the Applicant from 10:00 a.m. to 7:00 p.m.

3. The access schedule above at paragraph two shall be subject to the following condition: access between the child and the Respondent A.A. shall only occur once she has obtained treatment for her substance abuse, and shall be fully supervised by the Respondent S.C1 until further order of this Court. Access between A.A.1 and the child shall not occur if Ms A.A.1 is under the influence of drugs or alcohol. The Respondent, S.C1, shall provide particulars of A.A.1's treatment to the Applicant.

4. The parties shall communicate with each other about issues concerning R.J. by telephone, text or email. The parties shall continue to be civil and appropriate and deal only with child related issues.

5. When requested by the Respondent Ms S.C1, the Applicant shall provide any information requested regarding R.J.'s education, health care, extra-curricular activities, or general welfare to Ms S.C1. Mr. S.C2 shall inform Ms S.C1 of any major changes affecting R.J.'s education, health, or general welfare.

6. None of the parties will smoke or permit smoking in the presence of the child.

[140] If the either party seeks costs, then they shall serve and file costs submissions, with a bill of costs and offers to settle attached, within 30 days. Any written response to costs submissions shall be served and filed within 20 days.

Released: April 5, 2012

Signed: "Justice S. O'Connell"