Court File and Parties

Court File No.: FO35-09 Date: 2012-05-18 Ontario Court of Justice

In the Matter of: Gilson v. Battiston

Between:

GREGORY BRIAN GILSON Applicant

Edward Rae, for the Applicant

— AND —

CHANTALLE RENNEE BATTISTON Respondent

Wayne Stickland, for the Respondent

Heard: November 25, 29, 2011, and January 9, 2012

The Honourable Mr. Justice Greg P. Rodgers:

[1] Introduction

This case focuses on the best interest of a little girl called Renee Donna Christine Gilson. She will be four years old on […], 2012. Chantalle Battiston is Renee's mother. Gregory Gilson is her father. Each parent seeks an order for sole custody with a provision for access to the other parent.

Background

[2] Ms. Battiston's Prior Family

Ms. Battiston was once married to Mr. Kipp Battiston. They resided together in North Bay. They had two boys together, Tyson and Connor. The Battistons separated in 2005. In 2008 this court made a final order where Mr. Battiston obtained custody and Ms. Battiston received access.

[3] Birth of Renee

In 2006 Ms. Battiston met Mr. Gilson. They moved in together almost immediately. In […] of 2008 Renee was born. She was Ms. Battiston's third child and Mr. Gilson's first.

[4] Separation and Initial Custody Arrangement

It is now agreed by both sides that this was a toxic relationship marred by high conflict. They separated in January 2009 after a violent episode resulting in an assault charge against Ms. Battiston. Renee was eight months old when her parents split up. Since that time the parents have shared equal time with their daughter. A temporary order was made on April 2, 2009 providing for week about access to both parents. That order remains in place.

[5] Relocation to Southern Ontario

In May of 2010 Kipp Battiston moved with his two sons to Niagara Falls. No court order was obtained. It appears that Ms. Battiston did not oppose this move as she, by then, also had plans to move to Southern Ontario. She was now in a relationship with Trevor Anderson. He lived in Barrie and worked in the Greater Toronto Area. In June of 2010 Ms. Battiston relocated to the Newmarket/Richmond Hill area to reside with Mr. Anderson.

[6] Continued Equal Access Post-Relocation

This move took Mr. Gilson by surprise. He was not consulted about it in any meaningful way. Since this relocation Renee has continued to reside with each parent on a week about basis. Trevor Anderson has done all of the driving. Pick-ups and drop-offs are on Sunday evenings in North Bay.

[7] Family Complications

Mr. Anderson and Ms. Battiston were married in September 2011. To complicate matters further, Kipp Battiston is now married to Trevor Anderson's sister. Apparently the Anderson siblings do not get along. In addition, it is clear that Mr. Battiston and Mr. Gilson have formed a friendship and share information with each other about Ms. Battiston.

[8] Ms. Battiston's Access to Her Sons

Mr. Battiston is not a party in these proceedings. There is some evidence, however, that the access arrangements for Ms. Battiston to see her sons have deteriorated. She testified that in the last year she has seen Connor and Tyson approximately six times even though the 2008 final order provided for twenty-six weekend visits. Ms. Battiston suggested in her evidence that this is a result of an alliance between Mr. Battiston and Mr. Gilson. She says that they conspire to be inflexible in accommodating her access. Ms. Battiston also attributes this difficulty in seeing her sons to interference from Mr. Battiston's current wife (Ms. Anderson). Ms. Battiston testified that sometimes when she has weekend access to her sons she has to take them with her to North Bay for the exchanges of Renee.

[9] Complexity of the Case

This custody case is complicated by many issues including; multiple court orders concerning three children with two different fathers in different cities. There is high conflict between the mother and both fathers.

[10] Section 112 Investigation

Both of Renee's parents have significant weaknesses. A section 112, Courts of Justice Act investigation and report was completed on November 8, 2011. The clinical investigator could not recommend which parent was in the better position to obtain custody. Rather, recommendations that the parents participate in a parenting capacity assessment and that each obtain counselling for their personal issues were made. The report was very thorough and provided helpful factual background but did not assist in presenting one parent as the preferable choice for custody.

Analysis

[11] Best Interests of the Child Standard

It is important to approach this case in a child focussed way. Section 24(1) of the Children's Law Reform Act mandates:

"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."

[12] Supreme Court Guidance

As set out by the Supreme Court of Canada in the leading case of Gordon v Goertz (1996), 134 D.L.R. (4th) p. 342, "The focus is on the best interests of the child, not the interests and rights of the parents."

[13] Joint Custody Not Appropriate

Neither parent seeks an order for joint custody. It is obvious that joint custody would not work in this case. Both parents have difficulty communicating, cooperating or compromising with each other. The Ontario Court of Appeal has directed that joint custody requires a high degree of effective communication between the parents, especially when the children are young. In Kaplonis v Kaplonis, [2005] 10 R.F.L. (6th) 373 at page 381 Weiler J.A. comments on joint custody:

"There must be some evidence before the court that despite their differences the parents are able to communicate effectively with each other... Where, as here, the child is so young that she can hardly communicate her developmental needs communication is even more important."

[14] Failure to Communicate

Mr. Gilson and Ms. Battiston do not communicate effectively. The starkest example of this is how they used a communication book. Ms. Battiston tore out pages of the book to show to Children's Aid Society. Mr. Gilson as a result refused to make further entries in the book.

[15] Child's Attachment to Both Parents

While both parents complain about the others' parenting, they agree that it is important that Renee have a meaningful relationship with both of her parents. The section 112 report confirms that Renee has a strong attachment to both her mother and her father. She obviously feels safe, secure and loved in the care of either parent.

[16] Need for Custody Decision

Renee is expected to start school in September 2012. The week-about routine will obviously have to end. The court is required to determine which parent should have custody. This is not by any means an easy decision. Both parents have their respective strengths and weaknesses.

Ms. Battiston

[17] Mental Health and Addiction History

Ms. Battiston has a history of mental health and addiction issues. At one time she struggled with alcoholism, depression, eating disorders and diet pill abuse. This seriously impacted her ability to care for her sons, Connor and Tyson. She attended residential treatment twice. When she resided in North Bay she was under the care of a psychiatrist, a psychologist and received counselling. To her credit it appears that she made significant strides in dealing with these issues. I am concerned that when Ms. Battiston relocated she abruptly stopped seeing any mental health professionals. I do note, however, that Dr. O'Toole and Ms. Patricia Gray, the counsellor, were in support of the relocation.

[18] Concerns About Judgment

I also find it troubling that after so much required intervention for many issues including alcoholism and a 2005 conviction for impaired driving Ms. Battiston indicated at trial that she continues to consume alcohol on occasion. I am also concerned about Ms. Battiston's judgment concerning the issue of pets in her home. Renee had a problem with ear infections. Indeed, in August 2011 she had an operation where tubes were implanted in her ears. In early 2010 the specialist, Dr. Tremblay, recommended that Renee not reside in a home with a cat. Ms. Battiston had a cat in her home at that time. She still has that cat and has added a second cat even though Renee resides with her every second week. At trial Ms. Battiston testified that she has always had a cat but she would get rid of them if necessary. There is no cat in Mr. Gilson's home.

[19] Access to Her Sons

Ms. Battiston conceded that she did not always exercise available court ordered access to her sons when they resided in North Bay. She also indicated that she has limited access to her sons now that they reside in Niagara Falls. She suggested that this was because Mr. Kipp Battiston's lack of cooperation. In cross-examination, however, she conceded that Mr. Battiston has never refused her access to the boys. I note that Ms. Battiston has been diligent in exercising her week-about access to Renee which includes providing all of the transportation through Mr. Anderson. I conclude that Ms. Battiston has made what amounts to a "Sophie's choice". Her efforts to be with Renee have been at the expense of giving up the opportunity to see her sons.

[20] Current Stability

It appears that Ms. Battiston is now in a stable healthy relationship. I was impressed with her new husband Trevor Anderson. He appears to be a stabilising influence. He has done all of the driving to facilitate access. Their relationship appears devoid of the conflict and drama of many of Ms. Battiston's previous relationships.

Mr. Gilson

[21] Devotion to Renee

Mr. Gilson is devoted to Renee. They have a strong bond and Renee is happy and safe in his care.

[22] Issues with Power and Control

Mr. Gilson has had longstanding issues concerning his need to exert power and control. This was identified in the section 112 report. Indeed the assessor recommended that Mr. Gilson attend counselling for this problem. Mr. Gilson admitted that he had a problem in this area and had voluntarily entered the PARS program in 2009 at the suggestion of the Children's Aid Society. The PARS program is a sixteen week program focussing in the prevention of domestic violence. He said he benefitted from the course.

[23] Chronic Complaining and Documentation

Mr. Gilson presented as a chronic complainer (I note that he contacted the police as a complainant 13 times in the last decade). That attitude permeated his dealings with Ms. Battiston following their separation. On occasion he brought a camera to the exchange location to document his concerns about where Mr. Anderson parked in the parking lot at Tim Horton's. He photographed Renee posed with her hands against a TV screen displaying a date and time image to document her dirty fingernails after being in her mother's care. In his testimony he denied posing the child in this way. He insisted that the background was merely a coincidence. This testimony was not credible. The photos produced on these occasions unfortunately revealed more about Mr. Gilson's personality than they did about Ms. Battiston's parenting.

[24] Questionable Friendship with Kipp Battiston

I am also concerned about Mr. Gilson's apparent friendship with Kipp Battiston. This relationship appears to be more of "the enemy of my enemy is my friend" variety than a genuine friendship. Mr. Gilson has received information about Ms. Battiston that he is eager to use to discredit her.

[25] Lack of Shared Transportation Responsibility

I also have concern that Mr. Gilson has never offered to share in the transportation efforts or expenses during the two years that Ms. Battiston has resided in Richmond Hill. Clearly, he had no legal obligation to do this but this suggests that Mr. Gilson is motivated by what his rights are rather than what is in Renee's best interests. Ms. Battiston relocated unilaterally and it seems Mr. Gilson is quite content that she carry all of the effort and expense of travelling as a result.

Conclusion

[26] Parental Capacity

Ms. Battiston is devoted to Renee and is a capable parent. Mr. Gilson is equally devoted and capable of parenting Renee. Renee has the potential to thrive in either parent's care. Both parents carry considerable baggage and have significant personal issues.

[27] Comparative Assessment

Ms. Battiston has very serious historical mental health and addiction issues and legal problems but presented as a good witness (I note that she once worked as a court appointed assessor). Mr. Gilson was not a very compelling witness but has no history of instability or criminality. (I appreciate that being a poor witness does not equate to being a poor parent.)

[28-29] Application of Berry v. Berry

In Berry v Berry (2011) ONCA 705, the Ontario Court of Appeal dealt with a mobility case where both parents shared equal time with the child and the mother wished to relocate from Toronto to Kingston.

Justice Juriansz wrote at paragraph [9]:

"The parties agreed that the legal test set out in the Supreme Court's decision in Goertz, the leading authority on mobility applications, applied... This case differs from Goertz in that here both parties are custodial parents and there is no previous custody order to vary. Here there is no threshold issue of whether there has been a change of circumstances since a previous custody order, and there is no relationship between the child and an access parent to consider. With the necessary adjustments then, the principles from Goertz apply to this case.

[10] In Goertz, the Supreme Court emphasized that the superordinate consideration in a mobility case is the best interests of the child determined from a child-centred perspective. The court set out, at para. 14, a number of factors to be considered. Taking into account that this case involves two custodial parents, those factors can be stated as follows:

• the existing custody arrangement and relationship between the child and each of the custodial parents;

• the desirability of maximizing contact between the child and both parents;

• the views of the child (when applicable);

• the parent's reason for moving, only in the exceptional case where it is relevant to that parent's ability to meet the needs of the child;

• disruption to the child of a change in custody; and

• disruption to the child consequent on removal from family, schools, and the community the child has come to know. [Emphasis in original.]"

[30] Similarity to Berry

I find that the case at bar closely resembles the Berry scenario. Both parents here have effective custody of the child on an equal week-about basis. (In Berry joint custody was appropriate, here it is not.)

[31] Six Factors Analysis

Berry sets out six factors to be considered in a mobility case involving two parents who have parented equally.

1) The existing custody arrangement and relationship between the child and each of the custodial parents

Here the parents share access on a fifty-fifty basis. This amounts to Renee being in the custody of each parent on a week-about schedule. Each parent is devoted to the child. The child has a strong healthy bond with both parents. Both parents on their own are equally competent and capable parents.

2) The Views of the Child

Renee is yet to turn four. Her views are of little if any weight. She appears happy and content when she is with either parent.

3) The parents' reason for moving, only in the exceptional case where it is relevant to that parents' ability to meet the needs of the child

Ms. Battiston relocated for valid reasons. She had employment prospects and a stable relationship with Mr. Anderson who was established in Southern Ontario. In addition the relocation put her closer to her other children in Niagara Falls.

4) Disruption to the child of a change in custody

Either way Renee will have to adjust to spending more time with one parent and less with the other.

5) Disruption to the child consequent on the removal from family, schools, and the community the child has come to know

Renee has been spending equal time in each community for two of her four years. Extended family have not been emphasized in this case. At this stage it is difficult to determine if she is attached to one community more than the other.

6) Desirability of maximizing contact between the child and both parents

In my view this is the factor that ought to be emphasized as it was in the Court of Appeal in Berry.

[38] Dead Heat Analysis

In this case for reasons I have attempted to explain the contest for custody is a dead heat. Each parent has their own respective strengths and weaknesses. There is little to distinguish one parent over the other as the preferable custodial parent.

[39] Determining Factor

I find that in this case the custody issue must be determined by considering which parent is in the best position to be the access parent having regard to the desirability of maximizing contact between Renee and both her parents.

[40] Mr. Gilson as Access Parent

I find that Mr. Gilson is in the best position to fulfill the role of access parent. He is self employed and works flexible hours. He has no other children to see. He is an outdoorsman who can provide Renee with rich access time experiences. He has a vehicle.

[41] Ms. Battiston as Custodial Parent

Ms. Battiston as an access parent would have to continue to attempt to coordinate balancing access to Renee with access to her two other children. As recent history has shown it is difficult to sustain that balancing.

[42] Benefit to Sibling Relationships

Ms. Battiston's access to her sons has suffered because of her access to Renee. If Renee resides with her mother she will have a better opportunity to spend time with her half-siblings.

Final Order

[43] For those reasons I make the following Final Order:

1. Chantalle Rennee Battiston shall have custody of the child Renee Donna Christine Gilson born […], 2008.

2. Chantalle Rennee Battiston shall be permitted to relocate with the child to the Richmond Hill area.

3. Chantalle Rennee Battiston shall abstain absolutely from the consumption of alcohol when the child is in her care.

4. Chantalle Rennee Battiston shall maintain contact with a qualified mental health professional and provide consents for those professionals to access information from Dr. O'Toole, Dr. Phillips and Patricia Gray.

5. Gregory Brian Gilson shall have access to the child Renee Donna Christine Gilson every second weekend from Fridays at 7:00 p.m. to Sundays at 5:00 p.m. during the school year. The visits shall be extended by one day if the child is not required to attend school on the Friday before or the Monday after an access weekend.

6. Exchanges shall occur at the Tim Horton's in Huntsville just off Hwy. 11.

7. The above access weekends shall occur on the weekends when Ms. Battiston does not have access to her two sons Connor and Tyson.

8. During the summer vacation months access shall be on a week-about basis.

9. March Break and Christmas shall be shared equally regardless of the regular access schedule.

10. Mr. Gilson may have reasonable telephone access.

11. Mr. Gilson shall have the right to consult with and obtain information directly from the child's teachers, doctors or other professionals about the health and general welfare of the child.

12. The parents are free to arrange other access as agreed to by them from time to time.

13. The parties shall convey necessary information to each other by means of a communication book which shall travel with the child. All entries shall be respectful of the other parent. This book shall not be used to register complaints about the other parent.

14. Mr. Gilson shall pay child support for the child, Renee Donna Christine Gilson, in the amount of $211.00 per month based on an annual income of $25,000 pursuant to the guidelines commencing June 1, 2012.

15. Mr. Gilson shall disclose his income tax return and notice of assessments by June 1 of each year.

16. Both parents shall notify each other with 10 days of any address change.

17. Ms. Battiston shall not relocate to any other municipality with the child without further court order or the consent of Mr. Gilson.

[44] Support Deduction Order

There shall be a Support Deduction Order.

Released: May 18, 2012

Signed: "Justice Greg P. Rodgers"