Court File and Parties

Court File No.: F89/11-E Date: 2012-08-30 Ontario Court of Justice

Between: D.F.L., Applicant — And — N.C.R., Respondent

Before: Justice L.P. Thibideau

Trial heard in Brantford, Ontario on May 30 and 31, 2012 and August 7, 8 and 9, 2012

Reasons for Judgment

Counsel:

• B. Culp, for the Applicant
• P. Vandervet, for the Respondent

THIBIDEAU, J.:

Background and Parties

[1] The Applicant father and the Respondent mother are the biological parents of the children, O.F.L., date of birth […] '08 and C.A.V.L., date of birth […]'09. The parents began living together when the Respondent mother was in high school in March of 2007 and separated in January of 2011. Both children were born when the parents resided at the home of the paternal grandparents, for the better part of four years.

[2] Father seeks sole custody of both children with mother to have alternate weekend access and usual division of special days and holidays. Mother seeks an order for sole custody for herself, father to have specific weekly access and for father to pay child support.

[3] Temporary orders as follows were made during the relatively quick course of this matter through the system:

• 2nd May 11 – temporary without prejudice order granting mother custody of the children with father's access to be as agreed in writing between the parents.

• 31st March '11 – court specified the time periods the children would be with each parent, father chiefly on weekends, with father to pay child support of $375 a month as retroactively varied.

• 21st June '11 – Court endorsed four-week rotation for the children to be with each parent, while not in school, to accommodate the work schedule of both parents and provided for sharing of time on a long term basis for holidays.

Pre-Separation History

Living Arrangements and Parental Roles

[4] Both before and after the birth of the children the two parents lived in the home of the paternal grandparents on German School Road. During that time father pursued his business interests as a renovator of real properties and the owner of a heating-cooling gas work business. The Respondent mother first completed high school and then had a variety of jobs, chiefly in the hospitality industry.

[5] There is no dispute that the paternal grandparents home and property was, and continues to be, a physically suitable place for the two boys to reside. They have a shared bedroom, and the three-acre property has attractions for them including pool, various pets and animals, and room to roam. It is not denied that the paternal grandmother, in particular, had a major role in the upbringing of the children during the period of time from birth until January of 2011 when the children resided in the home. The paternal grandmother's involvement in the care of the children is itself a matter of contention for mother.

[6] Paternal grandmother has been a public school education assistant for some 13 years and has an early childhood education certificate. The paternal grandfather works full time as an employee of the community in which the property is located. While in that home the children are used to having the paternal aunt residing with them, although currently she is at Laurier University.

Parenting Styles and Involvement

[7] Father's view of this time period is one of relative harmony, with the adults on scene all helping in the care of the children. At any particular time during the week one or more of the adults would be away from the home for purposes of employment. This required a fair degree of coordination between the adults involved for the effective supervision and care of the children. Looking back, father sees himself as an important contributor to childcare.

[8] The paternal grandmother was generally supportive of the evidence provided by father. Father was away from home, working, five days out of seven, and mother worked in the hospitality industry between 12 and 20 hours per week, according to grandmother. The result was that she was heavily involved in the day to day care of the children in all aspects. She remembers the three main parenting figures, mother, father and herself, all involved in the changing of diapers, potty training, and other necessary care for the children as infants.

[9] Mother's evidence is that during this period of residence with the paternal grandparents, father was heavily involved in his work and seldom home. She felt by default she had the primary care of the children. She also felt housebound because she required transportation assistance from adult members of the household, or others, in order to be out in the community and away from the rural setting of the home.

[10] She described father as controlling during this period of time and that the relationship with him was one that cycled up and down with verbal arguments but not any physical abuse by either of them against the other.

Differences in Parenting Approach

[11] It is clear that even at this stage there was a major difference between the parenting style of the paternal family and that of mother. Mother does not effectively deny the complaints of paternal grandmother that her parenting style involved less supervision and less control of the children than that of the paternal family. Grandmother described the house in disarray and trashed from time to time when mother was left alone with the children. It is clear from the evidence of members of the paternal family that they are house-proud and are used to an ordered environment where children have clear boundaries are not permitted to create disarray. Mother was described as having avoidance behaviour such as watching TV, being on computer, simply being absent in the home where the children were located. Put by grandmother, mother's expectations of the children were not age-appropriate, and she lacked the ability to understand a two-year-old child. Mother had a looser non-routine parenting style, for example, naps at dinnertime, and random naps. Nonetheless, during this time period mother was the stay-at-home adult with the children during the daytime, with members of the paternal grandparents' family looking after the children with mother was working, mostly evenings.

[12] The paternal grandmother's evidence was fortified by that of the paternal aunt. She observed mother as not sufficiently supervisory and disciplining of the two boys. The paternal aunt remembers frequently providing breakfast for the children when mother, father and paternal grandparents were not available, especially when mother slept in past normal wake time. She described mother's parenting style as yelling at the children in order to have them conform but without explaining what it was that needed to be done and what consequences would ensue if it wasn't done.

Memory Divide

[13] As a result there is a memory divide between the Applicant father and his family and the Respondent mother. The Applicant father's family remembers this time period as when maternal grandmother was the "go-to person" for C.A.V.L. in particular. The paternal grandparents treated these children as their own. Mother remembers herself as the isolated primary parent.

[14] Father remembered and was able to give very detailed evidence on the activities of the children including the names of the specific games that were played by them while residing in his home. He also described a variety of activities, some of which mother acknowledged but did not approve of because of safety concerns, for example, child's use of four-wheel drive vehicles.

[15] It is not surprising that the paternal family recall an environment where all adults in the household were primary caregivers for these two children. Mother takes a different view. While she acknowledges that paternal grandmother was heavily involved with parenting she described the involvement as interference and undermining her parental authority.

Separation

[16] Mother moved from the parental residence with the children surreptitiously in January of 2011. There was no particular occurrence, no particular words, that resulted in this final separation. Paternal grandmother and paternal aunt could not account for the breakup of mother and father. The paternal aunt saw herself as getting along well with mother before the break-up and not hostile after the break-up. Mother attributed her decision to leave chiefly to her position as a mother and primary caregiver being threatened and the controlling and contentious nature of the relationship with father.

Post-Separation History – Physical Circumstances

[17] Father continues to reside in the paternal home and the children have always visited with him post-separation at this residence. Some time is spent at the family cottage as well. Because father is self-employed he is able to adjust his work schedule to accommodate time with the children, particularly on Fridays. While grandmother is involved with the children as well, both grandmother and father gave evidence that father is the primary caregiver actively engaged with them on a day-to-day basis while with him, including laundry and putting to bed. In the one and a half years since separation there has been little complaint about the physical circumstances of the children while in father's care. The exception is significant sunburn with mosquito bites that occurred while on a short vacation at the family cottage.

[18] The physical circumstances of mother are more complex. Mother admitted a history of residence moves as a teenager before meeting father, a pattern that has returned after separation. While there was some confusion in the evidence about the various residences of mother post-separation they appear to be as follows:

1) Immediately after separation residing with maternal grandfather, with mother and two children in one bedroom. While mother felt that the situation there was adequate she wished to have her own independent residence.

On the other hand father by oral evidence and photographs, wished to demonstrate that there were safety concerns for the children – a leaking roof, resulting in water on the kitchen counter where the baby bottles were cleaned, general untidiness.

2) Some five months later mother moved in June 2011 to her own residence on Dunsdon Street in Brantford. She resided there until May of 2012 when she returned to the residence of the paternal grandfather. The evidence for the time period while residing at Dunsdon Street is relatively consistent. Mother could not pay for the residence by herself. A female friend and her three year old child became her roommates. They slept on the couch. The arrangement lasted approximately two months because the friend did not share in the upkeep of the residence and did not pay her agreed upon rent.

3) Shortly thereafter three young girls moved into the residence for the same reasons. They slept on mattresses on the floor in the basement. Father placed in evidence photographs of some or all of these individuals partying with alcohol and marijuana in mother's residence. He described mother's residence as "party-central". Despite the fact that the parents were not getting along at all at this point mother requested father to assist her in monitoring the three girls' involvement with her residence because they had broken into it at one point to obtain some of their belongings, and she wanted him to monitor them while she was playing hockey and the two children were at father's residence with the paternal grandparents. This was one of the very few times that the parents were able to work together to solve a problem after separation.

[19] Mother's version of the relationship with the first border and child and with the three young women as borders confirms both these situations.

[20] At the beginning of 2012 a male roommate moved in for approximately two to three months. Neither father nor mother saw him as a negative influence on the children. He too did not pay the agreed upon rent.

[21] Father provided oral and photographic evidence of some safety issues related to the condition of this home. There was a broken mirror which resulted in a cut to one of the children. There was dangerous refuse adjacent to children's toys. Father gave evidence of medications on the floor, lots of alcohol and broken objects from time to time as a result of partying. Mother responded by indicating none of this was in the home when the children were present with her, only when the children were absent.

[22] In May of 2012 mother and the two children returned to the residence of the paternal grandfather where the uncle and the maternal aunt also resided. All agree that the residence is not sufficiently large for all of these individuals to continue to reside there for any length of time. Mother's plan is to obtain a new residence for herself once she is financially and socially organized to do so.

Parental Conflict

[23] The history of the parental relationship after separation has been one of intense parental conflict up to the 17th of November 2011 when exchanges of the children at the Brantford Police Services building became the norm. Since that time the immediate conflict between the parents has significantly reduced.

[24] From the time period after separation until November 17th '11, approaching a year, each of the parents made multiple complaints and allegations against the other, frequently involving police report or police attendance. A complete catalogue of these complaints and allegations is not helpful. Generally each accuses the other of a demeaning attitude and conduct, derogatory and abusive language, and failing to have the children attend at the appropriate place and time for exchange. Each maximizes the negative conduct of the other and minimizes their own. A typical example. During an access exchange at mother's Dunsdon Street residence there was a heated argument and yelling between the parents with children present. Mother physically took the children back from father and re-entered the residence, locking the door. Father called the police who arrived. Police intervened and father obtained the children. The argument was over father unilaterally taking an extra pair of shoes from mother's house without permission. He acknowledged that both he and mother used profanity against each other with the children present.

[25] On November 23rd 2011 after a police investigation father was charged with sexual assault against mother, criminal harassment and uttering threats with respect to mother. Those charges remain unresolved at this time. The circumstances relate to a children's exchange at father's motor vehicle. While mother and father's versions differ greatly the general physical circumstances are these. The children were in father's vehicle. Mother wished to say her good-byes to the children while they were in the vehicle. As she stretched forward to do so she was allegedly groped by father. From the evidence before this Court, even on the balance of probabilities burden of proof, it is not possible to accept one version of events over the other. The criminal harassment and uttering threats charges resulted from a subsequent investigation of that single occurrence regarding sexual assault revealing, from mother's statements to the police, a past history warranting the two charges. All is denied by father.

[26] Neither parent has a criminal record.

Parenting Concerns – Mother

Supervision and Child Physical Safety

[27] Within the general context of the complaints father has about mother's care of the children are specific complaints related to the physical wellbeing of the children while in mother's care. Much of the trial time was taken up in documenting a variety of injuries suffered by the children while in mother's care. Numerous photographs were placed in evidence documenting bruising, scratching, circular red marks and abrasions on both children over a period of months. The most significant injuries documented were as follows:

a) a summer of 2011 cut on the tongue from paper cutting scissors used by C.A.V.L. at age two. Father described the cut as resulting in part of the tip of the tongue hanging loose, the photograph in evidence demonstrates a minor healing injury on the tip of the tongue. No medical treatment was required.

b) in May of 2012 the index finger of O.F.L. was cut by a knife. The cut was short in length but deep. It healed without complications.

c) corner of mouth injury resulting from rough baby soother abrasion which festered and healed.

d) injury to facial area immediately above C.A.V.L.'s eye, resulting from burn from a hot light bulb being played with by the child after a mother told the child to leave the light bulb alone.

[28] Father was concerned that there had been so many injuries to the children, whether minor or otherwise. Father reported many of these injuries to the Children's Aid Society but he was not satisfied with their response. He regards the Society personnel as unhelpful and not interested. Mother takes the view that the Society has investigated and while there was some concern they were satisfied these concerns could be addressed by mother improving her supervisory skills and the children were not taken from her care. Not surprisingly, given the relationship, father's attempts to engage mother in conversation with respect to the observed injuries has always resulted in a hostile response and one occasion, an allegation of him stalking her.

Anger Management and Learning Hostility to Father

[29] These concerns with respect to mother are a mirror image of the same concerns with respect to father, minus the alcohol component. The history of these concerns forms a bell curve. In the beginning while they resided together in the paternal grandparents' home there were tensions and animosity which cycled up and down, apparently tempered by the fact that there were other adults usually present. The immediate issue of access exchanges did not exist. Neither parent was sufficiently effective to recognize the issue and suggest that it be worked upon through third party service providers. Subsequent to separation the anger and hostility escalated. Except for the alleged criminal conduct for which father now faces criminal charges, the attitude and activity of both parents was extremely similar with the result that both of them contributed to, at the minimum, multiple incidents of domestic verbal abuse resulting in numerous police attendances with the children present and involved.

Attention to Parenting Duties

[30] The independent assessment of the Society workers confirms that there have been issues with respect to mother's supervision of the children and that the parenting practices of mother encourage significant sibling rivalry and defiance of mother's authority leading to multiple, usually minor, physical harm for the children. This does not seem to have been satisfactorily resolved.

[31] On the other hand mother has been in the forefront with respect to the medical care of the children. This was so when the parents resided together and currently, at the least, mother is co-active with father with respect to medical care, particularly with respect to C.A.V.L. and his chronic ear issues.

Lifestyle

[32] It is unfortunate that mother does not have the family and financial resources that are available to father. The maternal grandmother's situation is such that she is not a resource for mother. The maternal grandfather's situation is such that he can provide only minimal resources to three children from time to time, and two grandchildren. Since separation mother has had two stays in the maternal grandfather's home, realizing that it is only a temporary solution for herself and the children.

[33] Mother's first attempt at independence which lasted approximately one year, from a parenting point of view, was not successful. She required a co-tenant in order to pay to the rent. Her first co-tenant lasted only a couple of months, but was not particularly problematic with respect to child care. Her second choice of three young females for co-tenants was problematic. While mother stated the partying, drug use and alcohol consumption only took place when the children were not present the result was that for substantial periods of time during any given week the home resided in by mother was off limits for the children. While necessity required that mother have a co-tenant her choices resulted in persons living in the home on a short duration basis and the end result was another change of residence back to the maternal grandfather's.

Parenting Concerns – Father

Alcohol

[34] The parenting concerns related to father involve inappropriate alcohol use, anger issues, learned hostility to mother, and as presented by mother, attention to parenting duties.

[35] There is little evidence to demonstrate that while the parents lived together alcohol was a particular problem in the relationship between the parents. Father has always taken the attitude that alcohol is present for him but it is not problematic and does not contribute to bad behaviour. Since separation this is not an accurate assessment of the situation.

[36] In February of 2012 father, by his own admission, had consumed a fair amount of alcohol. To his credit he avoided driving home. To his detriment, influenced by alcohol, he chose to walk from his friend's home to one of his houses in Brantford, not by a route using streets but by a route using backyards and scaling fencing – the direct line approach, in the early hours of the morning. By chance one of the properties involved was the local women's shelter residence. Not surprisingly he was confronted by police and charged with a breach of probation and trespass by night, charges still pending.

[37] However the best evidence is that alcohol has never directly affected the quality of his physical care of the children. Since the February 12th occurrence resulting in a recognizance requiring total abstinence from alcohol, there has been no consumption of alcohol by father. Coincidently there have been no new incidents with authority figures, and no new charges, and the de-escalation of the conflict with mother continues.

Anger Issues

[38] Evidence of father's anger management issues is found in numerous hostile encounters with mother and less frequent, but significant encounters with others – particularly authority figures.

[39] In December of 2011 one of his houses had been broken into. Unhappy with the course of the police investigation father called 9-1-1 to complain. When three police officers arrived at his home he was restrained by his father from a hostile physical approach to at least one officer. He struggled with his father resulting in father and three police grounding him. The result, no change in the police investigation and a charge of breach of recognizance still before the court.

[40] Father made a threat of physical harm to mother through the maternal grandfather for the sole purpose of getting police to come and attend to a matter he wanted attending to. They came – in seven cruisers – but no charge related to the threat was laid. This episode happened when father had consumed his usual three-four beers after work.

[41] This is problematic for two reasons. One, the use of aggression and hostility to achieve a purpose. Two, father's court evidence, re-writing history, to show himself in the best light, demonstrating an inability to take responsibility for his own actions. Father does not see any pattern to his conduct and does not connect the dots. He views his run-ins with authority figures as isolated occurrences and not part of an overall attitude issue complicated by alcohol consumption lowering his inhibition levels.

Learned Hostility

[42] It is clear that while living together during the times of the births of the children in the paternal grandparents' home the relationship between mother and father was problematic. Father and his family saw mother as a deficient parent requiring ongoing assistance particularly from paternal grandmother. Family members assessed mother as having an easy going care regime complete with chaos and lack of structure which was not viewed positively by father and his family.

[43] Mother saw herself as isolated, non-supported by father in his environment. What father saw as help and guidance mother saw as suffocating interference. In these years father associated with his male friends and was away long hours working in his business, all seen by mother as father being absent from parental care, leaving it to her. The stress that resulted, coupled with the volatile personalities of both parents, resulted in the up and down relationship leading to mother leaving with the two children in January of 2011. In fact, neither parent was as deficient as the other maintained. In the context of all of the evidence it is clear that, particularly up to mid-November 2011, each parent escalated their verbal hostility when given the opportunity by the other. Each sees himself or herself as responding in kind.

[44] Each parent has learned to manipulate and antagonize the other. Father uses foul language, anger and occasional threats. His calls to the Children's Aid Society regarding childcare by mother were excessive.

[45] Mother used much the same tactics. Mother attended to pick up the children from access at father's residence on one occasion, bringing her brother and his girlfriend, helping to create a scene of screaming, yelling, swearing and name-calling, requiring police attendance.

[46] The children lived with the paternal grandparents from birth till January of 2011. Yet mother would not allow the children to go to father unless father was present on access exchanges. Considering the history and what conflict mother said she wanted to avoid, this attitude and action was entirely counter-productive. This may have been in retaliation for father refusing to provide the children to maternal grandfather when he attended to pick up the children on behalf of mother.

[47] On another occasion an access confrontation lasted some two-and-a half hours when mother refused to hand over the children as agreed, unless father signed a document she wanted signed. The result was police attendance, children eventually given to father, no papers signed.

[48] The end result is that all access transfers now take place at the Brantford Police Services property. As the evidence unfolded it became clear that there are frequent times when both parents seem to thrive on the conflict.

Remedies and Assessments

[49] Both parents took the Caring Families co-parenting course from October 2011 to February 2012. Father's discharge summary for that program is generally positive, showing engagement and some internalization of principles. The taking of this program by both parents is co-incidental with the de-escalation of hostility between them, noticeable commencing in November of 2011. There is no discharge summary for mother before the Court.

[50] Since the 4th of July 2011 the local Children's Aid Society has been involved with the members of this family. A report, likely from father, about physical harm suffered by the children, finger cut from broken mirror, lip abrasion from faulty soother, were the issues that commenced the involvement. This was quickly followed a few days later by father presenting cell phone photos of numerous minor injuries as found in the filed photos before the Court. A month later new injuries were recorded by father and passed on to the Society as found in filed photos before the Court. A formal file was opened and a formal investigation began.

[51] The investigating worker was satisfied the documented injuries occurred while the children were in mother's care and mother acknowledged the injuries complete with plausible explanations focussing on the two boys "fighting like cats and dogs" and one child being dominant over the other. The immediate concern was that three separate attendances at mother's home in one month resulted in confirmation of different injuries on each visit. Supervision of the children was determined to be a parenting concern while children were in mother's care. Mother agreed to close engagement with the Society focussing on how a single parent should supervise two very active young brothers.

[52] During the course of the investigation the worker was able to assess the children in both homes. In mother's house the children were observed to be competitive and combative, seeking attention from mother. C.A.V.L. was particularly needy, tired and cranky, both were clingy with mother.

[53] In father's home the boys were relaxed and comfortable. There was no crying, no fighting, and the children were independent and behaved.

[54] Both parents were deemed to be open in their contacts with the Society worker. Both parents were assessed as being bonded to the children. For mother there was a Society program on an extended period basis focussing on supervision and child behaviour management. As of 25 November 2011 father was assessed as being an access parent for whom the Society had no concerns regarding the care of the children and access to them by him. This changed. As a result of father's criminal charges and the issue of alcohol with respect to them by the 11th of May 2012 the Society was formally recommending an addiction assessment at St. Leonard's and one of two courses to manage the behaviour of two very active children. At least until the addiction issue was addressed the Society recommended access be supervised by the paternal grandparents which has in fact been taking place.

[55] Based upon the evidence before the Court father's need for addiction assessment was obvious, the need for assistance with managing two boys was not. The evidence of several witnesses, including the initial Society worker was clear – in mother's care the boys are rambunctious, physically harming to themselves and each other and difficult to supervise. In father's care they are compliant, appropriate and not physically harming of themselves or others.

[56] The St. Leonard's addiction assessment program for father was completed in July 2012. The assessment was generally positive with reservations. He was found to have significant family support, a positive job history, and appropriate education. He scored less successfully on recreational pursuits and functioning in the community. This was so, perhaps, as a result of court ordered house-arrest terms of release on pending charges, specifically noted by the assessor, for the snapshot in time assessment.

[57] Other evidence before the Court demonstrates a history of appropriate recreational pursuits, mainly in the outdoors, and appropriate engagement in the community, except for dealing with authority figures when consuming alcohol, which has been a significant problem since shortly after separation until February of 2012.

[58] Additionally, father was assessed as being optimistic about life and being success-oriented, demonstrating personal resilience. The risk behaviours are criminal behaviour, (as previously discussed), and father's lack of concern with his alcohol use. He was assessed as having mild substance abuse problems, currently abstaining, fully involved with his recovery. However father's recovery could be jeopardized by his current failure to acknowledge to himself that his previous alcohol consumption patterns were problematic and a genuine life concern.

The Children

[59] O.F.L. is four and C.A.V.L. is three. They continue to live two different lives in two different homes. With mother they demonstrate problematic behaviour requiring guidance and assistance from the local Children's Aid Society. With father they appear to be appropriate in their conduct in the home, not demonstrating the problematic or needy behaviour that is demonstrated in mother's home.

[60] C.A.V.L. has had chronic ear issues for some time. At 20 months of age he was assessed with speech delay and eventually had adenoid surgery. The speech delay was addressed with part-time daycare to assist in verbal communication and engagement with Lansdowne Children's Facility for about a year, ending in September of 2011. He was assessed as being mildly delayed in receptive and expressive language skills. The remedies were active group therapy and parent-based language stimulation strategies, complete with monitoring the physical aspects of his inner ear. Surgical intervention was required for the placing of tubes in his ears and his adenoids. Mother engaged in learning strategies at Lansdowne in late 2010, and her responses were seen as appropriate and helpful. C.A.V.L. was involved in the Talking Tots program as well. As of September 2011 he had achieved age-appropriate receptive and expressive language skills.

Mother's Plan

[61] Mother's current plan with respect to residence is extremely problematic. The stated plan is to purchase or rent a home in a small community outside Brantford with her current boyfriend of some three months at the time of continuation of trial. It was troubling that the maternal grandfather believed that the plan was for mother and two children to reside alone in a residence and he had no knowledge whatsoever of the boyfriend as part of the plan. The maternal uncle was aware of the boyfriend but he had never met him, although residing in the same house as mother and the children during the three month period that mother said she had known the boyfriend and had a relationship with him. The length of time that mother has had a relationship with this boyfriend, and the lack of knowledge that her immediate family members have of him and his circumstances, do not bode well for permanency.

[62] Mother wishes to enrol both children in the French immersion school in her jurisdiction, some distance from her house and a farther distance from father's house.

[63] It is clear that mother cannot be assisted to any great degree by members of her family. They simply do not have the resources. Nothing is known about her boyfriend, with whom she intends to reside, with the children, possibly in another adjacent community. Those plans are thoughts only, no concrete steps have been taken.

[64] Mother is in a current living situation that is difficult for her and the two boys. Her intended new situation does not take into account appropriate child care when she is working, mostly nights. Previously children residing with father was the safety valve for alternate childcare when residing with mother. Mother's proposed plan does not fully address alternate childcare.

Father's Plan

[65] Father's plan is a return to the status quo before separation minus mother's involvement. The children are extremely familiar with the paternal grandparents, having been raised by them during the early part of their lives, with a continued relationship of a significant nature after separation. In particular, father relies upon paternal grandmother, and her early education skills, to assist him with childcare. Contrary to the assertions of mother, and regardless of what may have been the case in the past, since separation father has demonstrated a consistent, substantial, and appropriate involvement with the children as the active care parent when the children are in his home. Paternal grandmother expects both parents to conform to her experienced and educated view of what constitutes good parenting, being equal minded in this towards both parents.

[66] The plan is to have the children attend the local public school where two cousins currently go to school, with transportation required. Father's plan is permanent in the sense that he will continue to reside in the paternal grandparents' home with the children, has no potential partner such that a move is probable in the foreseeable future, but does not discount such a move when he deems it appropriate.

Discussion and Decision

[67] Each parent has been meaningfully involved in the lives of these children since their respective births even if each parent does not accept this conclusion. Particularly since separation and the temporary order of the 21st of June 2011 each parent has had more or less equal time with the children. Each parent has a close relationship with the children of a generally positive nature, save and except for their words and conduct in the presence of each other in the presence of the children. It does not appear that either parent is waging a campaign to belittle the other to the children or to make out the other parent as a bad person. However continuation of extremely negative conduct on access transfers will undermine the positive relationship and attitudes that each of these children have with each parent. This must be avoided.

[68] Each parent has committed to substantial time with the children and neither parent gives the children over to alternate caregivers unnecessarily.

[69] In determining what is in the best interests of these children with respect to the issues of custody and access regard must be had to the long term benefits that can be provided by each parent, physically, emotionally, and psychologically. A balancing of the various factors related to a history of parent involvement with each child, and the two proposed plans of care, results in father's plan being more acceptable than mother's. Physically the children will continue to reside in a home that they are extremely familiar with, that has substantial amenities not available to most children in the community. The physical situation for the children in father's care would simply be a continuation of what has gone before, all of it positive. Mother's current circumstances are physically minimally acceptable for the children. They are temporary by admission. The proposed physical circumstances are not concrete but rather a wish list for mother's future life with another partner.

[70] The physical differences between the two plans reveal the differences in attitude towards life planning between the parents. Father is a planner and an executor of plans. This is part of his nature and it is aided by family resources being made available to him and the children. Mother's planning, partly by circumstance, tends to be less thoughtful and poorly executed. The children's lives with mother will be less certain than with father, both with respect to physical circumstance and with respect to significant other persons in the home. Continuing change is a hallmark of mother's lifestyle, not father's.

[71] Each parent brings to the parenting table problematic attitudes and behaviour. For mother it is the uncertainty of her lifestyle coupled with the animosity towards father and difficulty in child supervision and behaviour control management. For father is it a lack of insight into his alcohol issue coupled with the same animosity. There is nothing in the evidence to indicate that resources will be made available to mother to make more certain her uncertain lifestyle. Father's alcohol issue is in the process of being resolved. A discharge summary for his alcohol assessment had a number of highly positive factors indicating a substantial probability of success. There is no evidence that his assertion that he has been abstaining since February of 2012 (albeit as a result of court order) is not true. In fact the motivation to change appears to be his strong desire to be the primary parent for his children.

[72] The children clearly respond better to the parenting regime in father's home than to the parenting regime in mother's home. The sole purpose of Children's Aid Society involvement with mother was to improve her parenting skills in relation to child supervision for better child physical safety. The legitimate concern of the Children's Aid Society with respect to father is alcohol-use focussed. While mother is engaged in services with respect to her issue, the results have been minimal to date. Father's results demonstrate actual change for the better with a reasonable likelihood of continuation.

[73] Unfortunately these two children are subject to very different parenting regimes in each home. It is not in the their best interests that this continue. The disparate parenting techniques are not conducive to consistent positive parenting and risk the children's positive social progress in the community as they get older.

[74] Based upon these circumstances and considerations it is necessary that father clearly be the primary parent so that the children can develop and grow in an environment that is physically and socially positive and stable. Father's settled lifestyle based upon child-centred principles where expectations are clear and age appropriate, with consequences that are reasonable and carried through with, is preferable to the more laissez-faire approach to parenting of mother based upon their observed behaviour to date. The uncertainties of mother's plan is not helpful to the children.

[75] All of this, coupled with the history of intense animosity between the parents requires that one parent have the authority to make life decisions for the children. Joint custody to both parents is not appropriate as a result. It would be a recipe for future litigation, future crossed signals in the upbringing of the children, and future conflict in front of the children. However it is clear that the children are emotionally connected to both parents requiring that they spend significant but not equal time with both parents.

Order

[76] As a result father will have sole custody of the two children with access to mother as follows:

(a) The first, third and fourth weekends of each month from Friday at 5:00 p.m. to Sunday at 5:00 p.m.

(b) Thanksgiving weekend, Easter, Mother's Day, Father's Day, summer school vacation and Christmas in accord with the order of the 21st of June 2011, paragraph 2.

(c) Such other time as the parents agree, including if in writing, signed by both parties, a variation of the specific access contained herein.

(d) Access exchanges to be at the Brantford Police Services facility.

Mother shall have a right to receive information from third party service providers concerning health, education and general welfare and the right to attend all functions related to the children including teacher meetings, medical and dental appointments.

[77] The existing order of support dated the 31st of March 2011 payable by father to mother is terminated as of the 1st of September 2012.

[78] Costs may be addressed by submissions in writing within 21 days.

Dated at Brantford, Ontario This 30th day of August 2012

The Honourable Justice L. P. Thibideau