Court File and Parties

Court File No.: 193/10 Date: 2012-06-28 Ontario Court of Justice

Between:

J.A.W.J. Lynn Tegosh, for J.J.

— And —

K.E. Frederick Baxter, for K.M.

Heard: November 21 & 22, 2011, and March 20, 2012

Before: Kukurin J.

Decision

[1] Introduction

This is a decision following a three-day trial. The main issue in this case centred on the custody of the child A., who is age three.

Background of Parties and Proceedings

[2] The Mother's Residence

The mother, K.1, has a two-bedroom apartment. It is the upper portion of a home owned by her mother, the child's maternal grandmother. The grandmother lives with K.1's brother, the child's uncle, on the main floor of the home. This home is in Sault Ste. Marie.

[3] The Parents' Relationship and Background

The father, J., and the mother, K.1, started their relationship in or somewhat prior to the spring of 2008. K.1 became pregnant. By July 2008, J. was essentially living with K.1 in her apartment. Both are status Indians. J. is a registered member of Garden River First Nation; K.1 is a registered member of Batchewana First Nation. K.1 has grade nine education. J. had approximately grade 11. They both enrolled at the Batchewana Learning Centre to upgrade. K.1 dropped out, apparently because of her pregnancy. J. dropped out shortly thereafter, apparently to help around the home when the baby arrived.

[4] Birth of Child and Early Cohabitation

A. was born in 2009. Both parties agree that their relationship was troubled. According to K.1, it was rocky almost from the start. She claims that she made many requests of J. that he leave her apartment. He denies that she did so, or at least denies the extent to which she says she did so. He remained after A. was born. K.1 took no steps to evict him. The evidence indicates that J. was included on K.1's social assistance benefits. She breastfed A. for at least eight months or so. After she was weaned, K.1 found employment working evenings from 10 p.m. This lasted for six months (likely in late 2009 and early 2010). The child A. was left in her father's care while the mother was at work, although, as the mother points out, the child was asleep for most of this time.

[5] Dispute Over Primary Caregiver

There is a dispute as to who was the primary child caregiver from the child's birth in 2009 to the date of separation in August 2010. The mother claims the father was minimally involved, never pulled his own weight in terms of housework or childcare, and was basically a lay-about, neither working nor going to school during these 18 months. The father claims just the opposite. He maintains that it was he who performed the bulk of the childcare responsibilities, even assisting the mother at breastfeeding times, and it was the mother who did very little, delegating the household duties to him.

[6] Mother's Other Relationships

The mother had a short relationship with another man during this one and one-half years of cohabitation with the father. She defends her involvement aggressively, insisting that her relationship with the father was ended, but for his refusal to leave her apartment, and that she was free to do as she wished in her own life.

[7] Internet Relationship with M.1

As became evident from evidence filed in this case, the mother had an internet relationship dating back to 2002-2003 with M.1, a man residing in Manitoba. This relationship with M.1 persisted through the period when she was dating J., through her pregnancy with A., and through her cohabitation with J. following A.'s birth. There is some uncertainty as to whether J. was aware of this internet relationship, or if he was, whether he knew the extent of it.

[8] Separation and Father's Departure

On August 2, 2010, sometime in the evening, the mother telephoned the father who was at the apartment caring for A. She advised him that she wanted him to leave, that she was bringing M.1 home that evening to reside with her as she was starting a new relationship with him. M.1 had apparently travelled from Manitoba by Greyhound bus and the mother K.1 had gone to meet him on his arrival, their first face-to-face meeting.

[9] Father Takes Child to Aunt's Home

The father was visibly upset by the mother's demand. He did leave the apartment but did not leave A. behind. He encountered the maternal grandmother in the yard and, in tears, recounted what had transpired. The maternal grandmother was, at that time, not pleased that the mother was embarking on this cohabitation relationship with M.1. She advised J. to take A. and go to his mother's home which was only a few blocks away. He took this advice, but his mother was unfortunately away at camp.

[10] Relocation to Garden River

From a neighbour's home, he telephoned his mother and explained the situation. She, in turn, contacted J.'s aunt M.2 who has a home in Garden River. M.2 invited J. and A. to stay with her. He accepted. He and A. were picked up and transported to Garden River. The invitation was open ended. J. and A. have lived there ever since and there is no pressure on them to leave.

[11] Mother's Search and Police Involvement

K.1 and M.1 arrived at K.1's apartment to find J. and A. gone. K.1 claims that she expected to return to find them both there with J.'s belongings packed and ready to leave. She searched the neighbourhood and found A.'s buggy parked outside the residence of J.'s mother and brought it back with her. There was no sign of J. or A. She returned to her apartment, worried about A., but did not call the police or take any further steps that night. The next day, J. arrived with a police escort to retrieve his and A.'s clothing and personal belongings. The police declined to become involved in the issue of which parent was entitled to custody, or to become otherwise involved in absence of any custody or police enforcement order.

[12] Mother's New Household

From that evening on, the mother and M.1, with one or two brief interruptions, have continued to live together in her apartment. For a few months, M.1's daughter, S. (age one and one-half years) from another relationship lived with them, but she has since returned to live with her mother in Manitoba. K.1, not surprisingly, was pregnant within four months. She and M.1 have a daughter, Z., who was born in early 2011. They remain residing at K.1's upper floor apartment. Neither is employed. They appear to be getting by with social assistance.

[13] Father's Household in Garden River

J. continued to reside with his aunt M.2. He and A. have a basement room in the home but they have access to the entire home. Also residing in the home are M.2's mother and M.2's daughter, K.2 (16). M.2's husband, D., resides in his own home, a short distance away, but he is evidently at M.2's home quite often. He has health issues and is in a lengthy recuperation from his last medical episode. His mobility is somewhat restricted.

[14] Post-Separation Arrangements and Disputes

Following the separation in early August 2010, K.1 did spend some time with A. but this was subject to precautions imposed by J. lest A. be taken and not returned. The parties obviously communicated at that time but they differ as to what agreements or arrangements they arrived at. J. claims that K.1 agreed that A. would reside with J. at his aunt's home in Garden River. K.1 claims that they agreed to A. residence being with each of them on a week-about basis. In fact, K.1 maintains that they had spoken about this in anticipation of their separation, and had agreed to this week-about joint custodial arrangement in advance. J. denies that this took place.

[15] Commencement of Legal Proceedings

What did not occur was any implementation of week-about residency of A. with her parents. What did happen is that sometime in September 2010, J. decided that he was going back to school to upgrade his education. He unilaterally registered A. in an aboriginal daycare program in Garden River which she has continued to attend to date. J. started this proceeding as a self-represented litigant at about the same time. His application was filed September 28, 2010. It was served on K.1 on October 4, 2010. His claims in the application were for joint custody of A. with the child's primary residence with himself, subject to reasonable access to K.1 on reasonable notice to him. K.1 responded, also self-represented at the time, with her Answer which had only one claim, namely, joint custody, but which clearly indicated that the joint custodial regime she was claiming was for residency of the child on a week-about basis.

[16] Case Conferences and Interim Orders

The court case progressed to a case conference in early January 2011 which the mother failed to attend. At that point, the father amended his claim to one of sole custody, with joint custody to be an alternative claim. At a subsequent settlement conference on January 20, 2011, Gregson J. made an order for interim maternal access each Saturday at noon overnight to Sunday at noon, with the mother to be responsible for transportation. Until then, the mother's access had been somewhat inconsistent as the father insisted she come to Garden River and that he be present to supervise her contact with the child.

[17] Involvement of Child Protection and Aboriginal Agencies

An order requesting involvement of the Office of the Children's Lawyer (OCL) was made at the settlement conference. However, the OCL declined to become involved. The Children's Aid Society of Algoma had been involved with the mother and the father prior to their separation, and a worker was visiting her apartment regularly. After separation, Nog-da-win-da-min, an aboriginal agency became involved with the father after he moved to Garden River. Not long afterwards, both the society and Nog-da-win-da-min ended their involvement with the father. The society re-opened a file after Z. was born and a society worker began to make regular visits to the mother.

[18] Expanded Interim Access Order

The mother and father each eventually retained counsel. The mother brought a formal motion for more extensive interim maternal access. This was resolved by a consent order dated May 25, 2011 expanding the mother's access each week from Friday at 6 p.m. to Sunday at 6 p.m. Presumably, the prior transportation provisions continued unchanged. This weekend pattern of access has continued over the past year.

[19] Mother's Alternative Claim

Although no formal amendment was made, and no order was obtained, it appears from arguments of counsel that the mother K.1 is also seeking an order of sole custody of A., with her joint custody/week-about residency, as her alternative claim.

The Law

[20] Statutory Framework

The claims in this case are made under section 21(1) of the Children's Law Reform Act (the "Act"). This statute sets out, in section 20, the basics as they relate to custody and access with respect to the mother and the father of a child.

[21] Purpose of Court Orders

This case is all about judicial determination of parental custody and access rights, as these would supersede what the Act provides in its section 20. A court order could also provide more detailed provisions as to custodial or access rights and responsibilities, as well as peripherally related provisions. A court order would be something tangible and official that the parties would have available as proof of their respective rights and obligations with respect to A.

[22] Mandatory Considerations

When the court is asked to adjudicate on the merits of an application respecting custody or access to a child, it must comply with certain requirements. These are set out in some detail in terms of mandatory considerations which are child centred, that is, relate to all of the child's needs and circumstances. Included in these are those listed in paragraphs (a) to (h) in section 24(2) of the Act.

[23] Relevance of Past Conduct

These do not represent an exhaustive list in terms of a child's needs and circumstances. The Act does not permit the court to consider the past conduct of a person (especially a parent) unless that conduct is relevant to the ability to act as a parent. In assessing that ability, the court is not only permitted, but directed to consider if the person has committed violence or abuse against that person's spouse, a member of his or her household, a parent of the child who is the subject of the application, and really, towards any child.

[24] Court's Powers

Finally, in terms of what the court is empowered to do when deciding a claim respecting custody or access, the Act sets out the powers of the court in section 28(1).

[25] Relevant Case Law

In addition to statutory law, there is a vast body of jurisprudence which deals with the issues of custody and access. This case law is not only helpful, but, at the appellate level, represents something more than guidance. For certain circumstances which are found to exist in the case, an appellate decision could be binding on a lower court. In the present case, the father has referred the court to two appellate decisions: Kaplanis v. Kaplanis (Ontario Court of Appeal) and Gordon v. Goertz (Supreme Court of Canada).

Analysis

(a) Joint Custody

[26] Definition and Statutory References

There is no definition of "joint custody" in the Children's Law Reform Act. These two words have a range of meanings. The statutory references that may suggest joint custody are found in section 20(1):

"The father and mother of a child are equally entitled to custody of the child"

and also in section 28(1)(a):

"The court ...by order may grant custody of the child to one or more persons."

[27] Mother's Conception of Joint Custody

It is important to understand what the parties are seeking in terms of custody when they are making a claim for joint custody. In the present case, the mother's claim for joint custody, admittedly a claim made in the alternative to her sole custody claim, can be characterized to include:

(a) an equal sharing of the time that the child is in the care of each parent, specifically in alternating weekly blocks of time;

(b) a residence of the child that changes weekly between that of the mother and that of the father;

(c) a sharing, but not necessarily equally, in the right to make major decisions relating to the child, for example, the school she will attend; and

(d) presumably, in absence of any claim for child support, a sharing of the expenses related to raising the child.

[28] Father's Conception of Joint Custody

The father has a claim for joint custody, also in the alternative to his claim for sole custody. However, his idea of joint custody is considerably different than that of the mother. His joint custodial arrangement consists of:

(a) primary or principle residence of the child to be with himself, and the residence of the mother will be a secondary residence;

(b) the time that the child is in the care of each parent will be shared, but far from equally shared. His view is that the lion's share of the time of the child will be spent in his care, not the mother's;

(c) in terms of decisions relating to the child, major decisions will ultimately be made by him. Each parent will be responsible for everyday parenting decisions while the child is in his or her care.

[29] Statutory Entitlement Upon Separation

When parents of a child live separate and apart from each other, their equal entitlement to custody of their child ends, from a statutory point of view. In absence of any agreement or court order, the right of the parent with whom the child is not residing, to exercise his or her entitlement to custody, is suspended. However, a court order can restore that right. It can grant such parent sole custody, or joint custody with the other parent, or joint custody with someone else. The question for the court when faced with separated parents vying for custody orders from the court is "What is the starting point?" Put in another way, "Is there a default position in favour of joint custody?"

[30] No Presumption of Joint Custody

These two questions have been answered, at least in Ontario, by the Ontario Court of Appeal in two 2005 decisions, Kaplanis and Ladisa. There is no presumption of making a joint custodial order between separated parents. The court decision is required to be made on consideration of what is in the best interests of the child. Joint custody orders should be based on evidence that the parties communicate effectively, that they work together well, and that they put their child's interests ahead of their own. Just because both parents may be competent caregivers does not necessarily justify a joint custody order. Joint custody should not be ordered with a judicial hope that things will work out.

[31] Rejection of Joint Custody

It may seem unusual to deal with alternative, or back up claims, before dealing with the primary claims made in a case. I do so, in this case, because my decision is to reject joint custody as a possible resolution. There are several reasons for doing so.

[32] Parties' Inability to Work Together

The critical reason is that the parties do not work well together. This is not simply because they are involved in an adversarial court case. They have a history of being at odds with one another, of blaming each other rather than being supported. This has been a two-way street. Their evidence has been indicative of the tension between them, virtually from the start of their relationship. They make contradictory allegations of who was the primary caregiver, and make deprecatory statements about each other. They have not succeeded in having A. registered as a band member even though she is now three years old, each casting blame on the other for the failure to do so. They disagree on whether the child should be in daycare at all, on which daycare she should be attending, and in what school she should be enrolled when she comes of school age. Their discussions with each other have not been amicable for the most part, and they have not been frequent. Their internet dialogue is far from friendly and contains an undercurrent of hostility. The father has acted unilaterally in moving with the child to another community, in enrolling the child in daycare in that community, and in his decision to become a student. The mother has shown the same inclinations to act without consultation in entering new relationships, in constructively evicting the father from their home, and in her choice of a school for the child when she is of age.

[33] Conclusion on Joint Custody

It has been said that where a joint custody order is appropriate between two parents, such an order is not really needed. The relationship of the parents to each other, and to their child, determines when a joint custodial regime is in the best interests of the child. In the present case, I cannot conclude that these two parents can work effectively with a joint custody order in place. I do not infer that this would be in A.'s best interests.

(b) Sole Custody

[34] Framework for Determining Sole Custody

This elimination of joint custody as an option leaves the remaining option of sole custody. In deciding between competing parental sole custody claims, the court is mandated to consider all of the child's needs and circumstances, and is specifically directed to those described in paragraphs (a) to (h) of section 24(2) of the Act. Not all of these apply in every case. Where they do apply, they may favour one parent's sole custody claim preferentially. Or they may be neutral in their impact on competing custody claims. There may also be other circumstances, not listed in section 24(2), that bear on the child's needs or circumstances and which are relevant to a judicial determination of custody.

[35] Child's Views and Preferences

A.'s views and preferences cannot reasonably be ascertained [section 24(2)(b)]. Although an order was made in January 2011 requesting OCL involvement, the OCL did not become involved. I decline to speculate on what a three year old child says or does means in terms of views and preferences of that child.

[36] Relationship by Blood

The relationship by blood between the child and her parents is a neutral consideration, especially in absence of any other evidence, or of any argument [section 24(2)(h)].

[37] Stability of Home Environment – Maternal Home

The length of time the child has lived in a stable environment [section 24(2)(c)] is a consideration that favours the father's claim. A. is age 39 months. She has lived for 22 of those months with her father in her Garden River home. Prior to that time, she lived for 17 months with both parents. I cannot conclude definitively that living in the mother's apartment was living in a stable home environment. There was conflict between the parents. They were not mentally together as a couple. On the mother's evidence alone, she was trying to make the father leave. For six of those 17 months, the mother was employed out of the home. She embarked on another relationship with a male person during this time. The Children's Aid Society was involved with the family, with some child protection concerns, for quite some time. In short, there are indications that stability was not optimal.

[38] Stability of Home Environment – Paternal Home

I am more impressed with the stability of the father's home with his aunt in Garden River. This is a detached dwelling with plenty of land. It was clearly a stable family residing there, with three generations represented, all supportive of the father. This family was not disrupted by the arrival of the father and the child – also family members. The description of the functioning of the persons in this home leads me to conclude that it is a stable unit with minimal disruption or anticipated disruption. The child A. benefits from both the structure and stability of the home and of the family, and is comfortable there. This is the home she regards as her home.

[39] Changes in Mother's Home Since Separation

The mother's home presently is physically the same as it has always been. However, there have been substantial changes since the separation of the parents in August 2010. There is a different male adult living in the home. He is not related to A. He was initially a complete stranger to her. He is no longer a stranger, but he still unrelated to A. For a time, his one and one-half year old daughter lived in the household. She is now gone. Why she was there, and why she left, are not explained in any great detail. For about nine months, the mother was pregnant. Her second child, Z., now lives in the mother's home. The mother and M.1 still cohabit but there have been periods of separation when he returned to Manitoba. Little is known of the reasons for these absences. The Children's Aid Society has been a regular visitor to the mother's home. Why it is there at all is not really explained. It is reasonable to assume that it is not a presence in the mother's home for no good reason.

[40] Comparative Stability

In comparing the two households, my conclusion is that the father's has been more stable and less disrupted than the mother's. Moreover, the child has lived longer in the father's home than in the mother's, and for a period when she was well beyond infancy.

[41] Physical Environment

The physical environment of a child is certainly an important consideration. For A., neither of her parents' homes is objectionable. There is certainly a minimum standard below which no child should be required to endure. In this case, neither residence comes anywhere close to this minimum. I do not accept the allegations that the father's home is too small, or too crowded, or has too many dogs, or has unacceptable standards of cleanliness.

[42] Emotional Environment and Family Constellation

For a child, especially a young child, it is not so much the physical environment that is important. Rather, it is the constellation of significant persons that make up the child's environment. This involves the love, affection and emotional ties between the child and these other persons, particularly those described in [section 24(2)(a) of] the Act.

[43] Parent-Child Relationships

There is nothing in the evidence to suggest that A. has anything but a healthy and loving relationship with each of her parents. I do not have to decide which of them was A.'s primary caregiver during her infancy. It is more the present and the future parent-child relationship that is relevant to who should be the custodial parent. Both seem able to meet most of the child's physical and emotional needs.

[44] Extended Family Relationships

Beyond the parents, there are more relatives that reside with the child on the paternal side than on the maternal side. The relationships with these extended family members are far from distant. The child is a full member of the paternal family that resides in the home of the father's aunt. On the mother's side, the only extended family member of the child A. is her half-sister Z. whom she sees only on weekends, and who is a baby.

[45] Persons Involved in Child's Care

As for the persons who are involved in the child's care and upbringing, the mother's main caregiver is her partner M.1. She also has the maternal grandmother and a maternal uncle who, while not part of the maternal household, are living downstairs in separate quarters in the same house. The mother's evidence suggests that A. has had and still enjoys a positive and rewarding relationship with her maternal grandmother. As for A.'s relationships with Z., M.1 and her maternal uncle, these were not well developed in the evidence presented. The same can be said of A.'s relationship with her paternal grandmother. There is little evidence offered by the father of her role in the family or her relationship to A. There is passing reference to a paternal great-uncle of the child who lives nearby and who has three children of his own, one of whom is of the age of A. and with whom A. plays.

[46] Ability and Willingness to Provide Guidance and Education – Father's Capacity

A consideration of section 24(2)(d) marginally favours the father. Both parents are willing to provide A. with guidance, education, necessaries of life, and to meet any special needs. It is perhaps the ability of each of them to do so that puts the father a step ahead. A review of the evidence reveals that the father has not, in fact, been the sluggard and procrastinator, lacking direction or ambition, that has been portrayed by the mother. Academically, he had achieved more (grade 11) than had the mother (grade 9) and he has made a decision to obtain the credits to become a high school graduate. This decision has not been made to the detriment of A. He has been proactive in finding a daycare for her which she is reportedly enjoying. He has structured their lives so that he remains her main caregiver but has family members who serve as alternate caregivers when called upon. He has obtained funding to purchase the amenities needed for raising a child. He is also a recipient of social services benefits and has applied for, and is receiving the child tax benefit. He has taken parenting courses to improve his parenting skills. He has connected with his native community which has provided him with tangible support which he has welcomed. His decisions have exposed A. to her native culture and heritage in her daycare, in her paternal family, and in her community. He has found a family physician for himself and A., no mean feat in today's healthcare system. He does not drive, but has several regular transporters, some in his own residence.

[47] Ability and Willingness to Provide Guidance and Education – Mother's Capacity

The mother's prospects appear more contained. Her grade nine education is less marketable in the workplace. It also suggests that she will likely be less able to help A. academically as A. grows older and more educated. The mother, although she is native and a registered band member, has not pursued any significant connection with her native community. Her home is not on First Nations land. She has the responsibilities of motherhood for a second child which carry with it demands on her time and energy. She has not undertaken any further academic or parenting courses or programs, and there is no evidence that any are planned by her. Of some concern with respect to her ability are bits of unconnected incidents which, in the aggregate, suggest she may be somewhat lacking in organization, responsibility, judgement and follow-through, and that she may be somewhat prone to acting impulsively. Her performance in this case, for example, has not been exemplary. She was late arriving and missed a case conference with the consequence that the father amended his claim to one of sole custody. She neglected to submit her intake form to the OCL in a timely manner as ordered by the court, resulting in the OCL declining to provide services. She claims she wanted the father to move out of her apartment and that she told him to leave repeatedly, yet she tolerated his presence there for well over a year without doing anything decisively. She did not start this case; it is the father who filed the application. Her evidence with respect to efforts she has made to arrange daycare other than that which A. presently attends, is not detailed and not particularly impressive. I prefer the father's evidence about band membership registration, and I infer that it is the mother who has delayed this process. While the mother is free to enter into whatever relationships she chooses, to immediately cohabit with a man she never before had met face to face seems to me a questionable decision. Even more so was her plan to introduce this person into A.'s life with no advance preparation, and no period of transition for the child. The mother is presently in a third relationship which has already shown some signs that it is not on a solid rock foundation. Ability of a parent to meet a child's needs is fortified by a support system, both familial and community based. The mother does have some support but not near as extensive or as involved as the support of the father.

[48] Permanence and Stability of Family Unit – Retrospective and Prospective

While section 24(2)(c) is a consideration that looks at the past in terms of stability, another section [24(2)(f)] has both retrospective and prospective aspects. The permanence and stability of the family proposed for the child can be predicted from an examination of the past and of the present.

[49] Father's Family Unit Stability

The father and the mother each share in their own failed relationship. The mother has had two others – a brief relationship with a man locally, and a lengthy internet relationship that has evolved into a present common-law cohabitation relationship that has produced a daughter. The father has not found another partner. His pre-occupation is with the child A. and his academic upgrading pursuits. In terms of stability of the child's family unit, for reasons expressed above in connection with section 24(2)(c) considerations, the father's family appears presently, and for the foreseeable future, to offer more stability than does the mother's family unit. It is noteworthy that section 24(2)(f) uses the words "family unit" which I interpret to be more nuclear than the much more expansive "extended family". The father and the child A. merged their lives into a pre-existing family, so that the merger now represents the "family unit" within which the father proposes that A. will reside. Members of this family unit are all blood relatives, share a common native heritage, and have well-established relationships among themselves from their respective births. There is no questioning of the permanency of these relationships, regardless of any relocation by any of the members of this paternal family unit.

[50] Mother's Family Unit Stability

The mother's family unit consists of herself, M.1 and Z. Z.'s history is relatively brief as she is not yet ten months old. However, there is no reason to suppose that this mother-daughter relationship will be other than lifelong.

[51] M.1's Role and Stability

M.1's history in this family unit starts only on August 2, 2010, just under two years ago. It is difficult to gauge just how permanent or how stable is his position in this family unit. He clearly has a history in Manitoba involving a former partner and their child. That relationship was not successful, and it appears to be over. There had been involvement with his Manitoba family by a Manitoba agency analogous to the Children's Aid Society, but details of this involvement are not in evidence in this case. M.1 is not related by blood to A., only to Z. The mother's affidavit evidence did not indicate whether M.1 was native or was non-native. He is living in the mother's apartment looking for work, but so far, unsuccessfully. He has had employment in the past, but at positions with only modest pay. Two separations in less than two years does not inspire a conviction that M.1's relationship with K.1 is either permanent or stable.

[52] Comparative Ability to Act as Parent

Section 24(2)(g) obliges the court to consider the comparative abilities of the applicants for custody to act as a parent. This turns out, in my view, to be a neutral factor in this contest over custody. Whatever parental deficiencies the mother and father alleged that the other of them displayed during their cohabitation, I have discounted as being subjective evaluations of two people who were not happy with each other. More important is the more objective evidence that A. was a healthy and happy child, developing normally, with appropriate relationships with both her mother and her father.

[53] Evidence of Parenting Capacity

The mother is parenting another child, Z., on a full-time basis, apparently satisfactorily. At any rate, the father J. has no evidence to suggest otherwise. The father's parenting of A. has been incident free. The consensus is that A. is thriving with him as her primary caregiver. She is described as being happy in her paternal home, in her daycare and in her play with her peers and cousins. The mother suggests that A. does not wish to return to the father after maternal access visits. This evidence does not negate or detract from the much more extensive evidence of the father's positive parenting of this child.

[54] Adequacy of Parenting

In short, I believe that either parent can parent this child adequately. This court is not required to engage in any exercise of quantifying how much more adequate is the parenting of one parent over that of the other.

[55] Conclusion on Sole Custody

In summary, taking into account all of the circumstances that a court must look at prior to making a custody or access determination, and weighing these, I conclude that A.'s best interests are met by an order for sole custody in favour of her father J.

Additional Considerations

[56] Non-Exhaustive Factors

As mentioned, the circumstances listed in clauses (a) to (h) of section 24(2) are not exhaustive. The court may take other evidence into account if it finds this to be relevant to the determination it must make.

[57] Status Quo Consideration

One factor that often plays a role in judicial decisions is a consideration of what is the status quo. Sometimes, that status quo is reached in ways that warrant some criticism, and in some cases, some judicial censure. In the present case, I do not fault the father J. for his decision or his actions in relocating with A. from their home in Sault Ste. Marie to Garden River. This action was precipitated by the mother's communication that she was bringing into their home a man with whom she intended to cohabit in a common-law relationship. The father was placed in an untenable situation with little time to consider alternatives. What he did do he did in an acceptable manner. Nor do I disapprove of his decision to upgrade his education and place A. in an aboriginal daycare facility. The former is a wise long-term investment decision, and the latter is a reasonable decision having regard to what he judged to be best for his child. These developments and the interim orders in the court case that he started are what has resulted in the status quo. That status quo is not one that is objectionable from a 'best interests of the child' perspective. The child seems to be doing well with what is presently in place. Why change it if it is working well for the child?

[58] Willingness to Foster Other Parent's Relationship

Another factor that the court often looks at is the willingness of the parent to make concessions or accommodations that promote the fostering of the child's relationship with the other parent and with significant (to the child) persons in the other parent's family. The father J. did not ever deny to the mother K.1 contact with A. At first, he was understandably cautious in the arrangements for such mother-child visits. He took the proper steps to obtain an interim court order that eliminated these concerns. Thereafter, he agreed to the interim maternal access order in January 2011 and agreed as well to the order of May 25, 2011 that expanded maternal access. He was willing to have A. registered as a member with the mother's Indian band even though A. has entitlement to be registered with the father's band. He agreed with the mother's wish for A. to attend a French immersion school although not necessarily the one that she prefers. There is almost no evidence that the father has done anything to frustrate the growth of the mother-child relationship or to alienate the child from her maternal family.

Maternal Access

[59] Importance of Access Provisions

It is not unusual for litigants, especially self-represented litigants, fighting over custody to overlook the matter of access. Many get so caught up in their custody contest that they pay little attention to the possibility that the decision on custody may come out in favour of the other side. In this case, the mother has made no claim for an order for maternal access (either as an alternative to her claim for custody, or at all). The father has made such a claim. In fact, it is a claim for an order for "maternal access". The order he sought in his application was for the mother to have reasonable access to the child on reasonable notice to himself.

[60] Need for Specific Access Terms

This generic wording with respect to maternal access is not workable with these two parents. The interim order presently in force has specificity in terms of times, frequency and duration. Likely, the provision with respect to transportation for exchanges of the child also remains in force. It is not a question of whether the mother will have access. It is a question of what kind of access she will have, and what kind of wording is required in a court order to reflect that access.

[61] Lack of Detailed Submissions

Regrettably, I have little evidence and the written submissions of the parties were rather terse. The father seems to agree that a maternal access order should be "structured and specific", but he does not mention what those specifics should be.

[62] Judicial Guidance on Access Terms

I would encourage the parties, with the assistance of their counsel, to arrive at mutually agreeable terms of maternal access. By way of some judicial guidance, I would favour access terms that provided A. with regular, frequent and quality time in her mother's care, during which she and her (half) sister Z. will be able to form strong sibling bonds. I see no reason for the need for any access supervision based on the current evidence. In terms of transportation for exchanges for access, I am mindful of the geographical distance between the parental homes. Failing any mutual agreement, my inclination would be to make an order that shares this transportation responsibility fairly equally, with mother responsible for pick-ups at start of access, and father responsible for pick-ups at the end of access.

[63] Information Access

As for information about the child, the mother should have access to any or all information relating to the child from anyone providing any services to the child.

[64] Interim Arrangements

In the interim, the maternal access provisions in the outstanding interim order(s) continue to apply. Failing an agreement through counsel, I will entertain further submissions and make an access order based on the evidence to date.

Released: June 28, 2012

Justice John Kukurin, Ontario Court of Justice