Court File and Parties
Court File No.: Owen Sound 205/06 Date: 2012-11-07 Ontario Court of Justice
Between:
D.R. Applicant
— AND —
M.R.1 and M.C. Respondent
Before: Justice P.A. Hardman
Heard on: June 26, 27, 28 and 29, 2012
Reasons for Judgment released on: November 7, 2012
Counsel:
- Peter Harrison for the applicant
- Allen Wilford for the respondent mother
- M.C. respondent father noted in default
HARDMAN J.:
Introduction
[1] Before the court is a motion to change a Final Order made February 12, 2007 by Bradley, J. awarding custody on consent of the parents of R, born […] 2005, to the maternal uncle, D.R.
[2] Both the mother seeking the change in the order and the uncle were represented by counsel. While the child was not represented by counsel, there was a report from a clinical investigator of the Office of the Children's Lawyer (OCL) dated October 12, 2010 and an update March 30, 2012; further, the authors of each of the reports testified at trial.
[3] As was noted by the court on May 5, 2009, the father of R, M.C., had been properly served and his time to file had expired. Despite this matter being outstanding since February 2009, the father has not participated in any way. The father therefore is clearly in default and without status.
The Evidence
Background Prior to the Motion to Change
[4] At the age of one month, the mother, M.R.1, was taken into the home of M.R.2 and her now deceased husband. M.R.1 was the daughter of a relative and was ultimately adopted. While Mr. D.R. had had children from his first marriage, generally they had little contact with the family. Mr. and Mrs. M.R.2 had four children together, now about 51, 48, 45 and D.R. before this court 44 years of age. When M.R.1 was adopted, she was fourteen years younger than D.R., then the youngest in the family. Mrs. M.R.2 told the first OCL investigator that the mother was somewhat spoiled growing up.
[5] The mother said that she had a good life growing up. She said that she idolized her older brother D.R. who coached her in baseball and made her the good player that she is today. She also helped him on weekends with the horses.
[6] When she turned fourteen, she started to rebel and got into trouble at school for possession of marijuana. As a result, she had to change schools but managed to graduate from a different high school with honours. Unfortunately, when she was 18, her father died in an accident. Her father had been her rock, something acknowledged by Mrs. M.R.2 who noted that he had been everyone's rock. It was at this time that the mother got involved in hard drugs and a relationship with M.C., also a drug user.
[7] When the mother realized that she was pregnant with R the child before the court, she registered for and was admitted into a drug treatment program. She left the program when she gave birth in […] 2005 as she wished to breast feed and there was no accommodation for that.
[8] With the child in their care, the mother and M.C. were transient, staying in different places, ultimately spending six months with M.C.'s father and then coming to stay in the R.2 home. It would appear that D.R. even helped get M.C. a job at his place of employment but he only lasted a couple of weeks.
[9] Unfortunately the mother and M.C. were involved in stealing from Mrs. M.R.2, running up debt requiring her to re-mortgage her home. As a result, M.C. was told to leave in April 2006. The mother and R however stayed. While things initially improved in the home, the mother starting disappearing, first two or three days at a time.
[10] By August 2006, the mother was gone for days at a time. D.R. told his mother Mrs. M.R.2 that if she was not going to do something then he would. He discovered that the mother was in jail for failing to appear on a charge involving cocaine. He contacted the Children's Aid Society. The society gave the mother the choice of them starting an application and taking R into care or placing the child voluntarily with D.R. and Mrs. M.R.2.
[11] In her evidence, the mother acknowledged that it was obvious in September 2006 that there was a serious problem and she said that D.R. stepped in to help. She testified that it was better for the child to stay at home rather than to be placed with a stranger so she agreed. However, the society then told D.R., without any court application or authority that the mother could not stay in the home so D.R. told her to leave the home without R.
[12] The mother testified that during this time her life spiralled out of control. Despite this, she had regular contact with R. On February 12, 2007, both she and the father M.C. agreed that D.R. should be given custody of R subject to their access at his discretion.
[13] The mother unfortunately continued to associate with M.C. contrary to his court order and became pregnant with M. She said that her last use of hard drugs was October 21, 2007, two days after the anniversary of her father's death. She said that the society told her that she had to leave M.C.
[14] When M was born on […], 2008, the child's meconium was clear of all drugs. When the mother's test came back positive, she insisted on a re-test and the re-test was negative. As the mother had contacted the society to say that she was pregnant, she worked with them voluntarily taking all of the programs that they recommended.
[15] Her re-test having come back negative for drugs, the mother asked D.R. in January 2009 to return R to her care as had been agreed. Although R had only been in his care without the mother for just over two years, D.R. refused to do so. The mother continued to work with the society voluntarily until they closed their file July 2, 2009.
Evidence Since the Motion to Vary
[16] Despite the agreement by her brother D.R. to return R once she had dealt with her drug problem and stabilized, the mother was finding it difficult to see R without a lot of difficult restrictions. Therefore in February 2009, she brought this motion to change the order of February 12, 2007. In it she cited her seventeen months of sobriety from cocaine and thirteen months of sobriety from marijuana. She noted that she was returning to her steady employment in July at the end of her maternity leave. She set out her plan for R including access to reintegrate R into her care.
[17] In his response to the motion, D.R. replied that he did not believe that the relationship between the mother and M.C. was over, complained about the mother's behaviour with R and her driving; he did not appear to consider that she was stable and drug free.
[18] Despite the mother's success with dealing with her drug problem and her successful parenting of her second child M, D.R. would only allow her to have access once each week during which there were other people around, affecting the quality of the access. When she asked for more access, D.R. did not agree. He refused her requests for report cards and information regarding R.
[19] The mother had completed her maternity leave with M July 2009 and returned to work August 2009 as a quality analyst. She explained to the court that she had had a temporary promotion between September 2011 and December 2011 but went back to her other job afterwards.
[20] During her time at work, she asked D.R. to change some access so that she could accommodate her work schedule. When he refused, the mother was put in a difficult financial situation and ended up moving in with B.W.
[21] The mother said that the plant was ultimately permanently closed and that she is remaining as a stay-at-home mother for the time being.
[22] As a result of these court proceedings, D.R. agreed to the mother having access for three hours, a time too short for the mother to travel with the child to her home in Owen Sound. In July 2009, the access changed to all day. In December 2009, there was an order for all day Wednesday and Sunday to Monday.
[23] There were problems regarding access. There were times that the mother was unable to accommodate the schedule because of her lack of transportation. Further, the father expected the mother to have part of her access with the child attending the Baptist Church in the morning and curling after lunch.
[24] Also during this period there were attempts by the mother to switch to accommodate certain family functions but D.R. was reluctant. He refused to switch for Mr. B.W.'s company Christmas party and he did not want to accommodate the niece's recital. Sometimes he would offer some time but it was often unworkable and not what was requested. The mother agreed with D.R. that they did not "talk so well".
[25] The mother stated that the steps recommended in the original OCL report in October 2010 were not implemented until court in September 2011. She said that the once a month visit with the other two children never happened. The mother also noted that due to a misunderstanding she did not request or have all of her summer access. She said that during the Christmas time she did have R saw many relatives including her paternal grandmother and members of Mr. B.W.'s family.
[26] While the mother had met her current partner B.W. in July 2009, they did not date until the end of that year and the beginning of the next. B.W. is a plumber who has worked for the same employer for six years and has owned his own home for the same period of time. Ultimately she and M moved in with him and gave birth to T […] 2011.
[27] Although the mother wanted D.R. to meet Mr. B.W. so that he could feel more confident about the choices that the mother was making, D.R. avoided the opportunity to do so.
[28] While the current order contains mid-week access, it did not always happen due to the lack of transportation as the mother lives twenty-five minutes from D.R. There were times, however, that D.R. helped facilitate the access by providing transportation.
[29] There were a number of issues regarding the outstanding temporary orders. The mother was supposed to be on her own with R in the midweek access but she violated this order. On one occasion while she was bowling with R, Mr. B.W. brought M over to have her diaper changed as he had had no experience at that time. On another occasion, B.W. had stopped by the visit to deliver gifts to R. The mother told the court that she was anxious for R to meet Mr. B.W. as she knew that they were going to reside together. The mother said that there was a third time as B.W. provided the transportation as she was not on the insurance. On other occasions after T was born, T was in her care as she was nursing.
[30] D.R. had other complaints. He alleged that she used the wrong-sized car seat for R but the mother said that she had been told that R weighed 40 pounds and that meant that the car seat was the correct size. There were allegations that the mother frightened R by shaking her because she called D.R. "daddy" and his girlfriend C.C. "mummy". Further there was an issue of B.W. yelling at R from the stair to keep the noise down when she arrived for access and R was yelling and rolling around on the floor.
The Law
[31] This is a motion to change under Rule 15 of the Family Law Rules. At some point there had been a decision to have the matter heard at trial pursuant to the discretion under Subrule 15(26).
[32] Clearly the mother's entitlement to custody under section 20 of the Children's Law Reform Act (R.S.O. 1990, c. 12, as am.) (CFSA) was altered by the custody order of in February 2007.
[33] Section 29 of the CFSA requires that there be a "material change in circumstances that affects or is likely to affect the best interests of the child". The changes in the mother's circumstances clearly satisfy the need for a material change. Therefore it is appropriate that the court consider a change in custody and/or access from the existing order pursuant to section 28 should the court find it to be in the child's best interests.
[34] Subsection 24(1) requires that any order made for custody and access be determined on the basis of the best interests of the child. A court must in any consideration of a child's best interests consider "all the child's needs and circumstances" including those set out in subsection 24(2).
D.R.'s Plan
[35] In the grandmother's home, R is surrounded by people who care for her and love her. Further, D.R. appears to be responsible, reliable and much focused on the child. R attends French immersion and has usually had perfect attendance. D.R. has attended school functions with R. The school also told the first investigator that R benefits from structure. The child has had proper medical care.
[36] D.R.'s immediate plan is to have R stay in his care in his mother's home. In that home, R has a room of her own and is surrounded by the love and caring of her grandmother, great uncle and uncle. He notes that R is familiar with the routine that he has developed for her.
[37] D.R. has always lived with his mother in her home. Twenty-seven years ago when the mother was three and D.R. seventeen, Mr. and Mrs. M.R.2 moved into the home now occupied by Mrs. M.R.2, her brother J. aged 67, D.R. aged 44 and R. R.D. told the court that all three of the adults were drivers with cars.
[38] In the home there are three bedrooms as well as a room formerly used as a bedroom by a sister but it is now a computer room. The bedroom that had been the mother's when she was young is now occupied by R. Mrs. M.R.2 also has a bedroom. The third bedroom is currently occupied by D.R. and his uncle J. although according to the evidence of Mrs. M.R.2, at one time another brother, B., also shared the bedroom with them. Despite the room now R's being unused for a time, no one moved in until R came.
[39] Mrs. M.R.2, aged 72, continues to work at an apple factory packing apples. While there are some weeks with long hours, the work is not consistent. Further, in July 2011, she had to take off a number of months to have both hips replaced. At the time of trial, she still had some limitations in turns of bending to take things off the floor.
[40] D.R. works fulltime as a produce manager for a grocery store. His evidence is that he pays about $350-400 each month to his mother toward the house expenses as well as insurance of $198/month. He said that he also pays down Mrs. M.R.2's line of credit which they continue to use sporadically. He explained that it was originally set up by his father to use during a time that they raced horses.
[41] It was D.R.'s evidence that his Uncle J. has always lived there except for a five or six period when he worked at the Talisman Resort. He also noted that his uncle had worked prior to that for a company that closed. Mrs. M.R.2 indicated that her brother J. pays her $125 each week and, as he pays rent, he does what he wants. There was evidence that while Uncle J. spends most of the day in his room with his dog, he does let the dog out and feed him and does his dishes at lunch and "some" laundry as well as helping to clear the table.
[42] D.R. spends a great deal of his time with R after work and on weekends. D.R. works weekdays from 7 am or on Tuesdays 4 am. He works alternate Saturdays normally from 8 am. He told the court that he has used daycare and the help of his mother or his girlfriend to cover when he is not available.
[43] During the summer in 2011, R played T-ball and D.R. coached. He told the court that R would be playing softball in the summer of 2012 but that he would remain with the T-ball team. In the summer D.R., C.C. and R often go to the park after work or ride their bicycles. In the winter time, R enjoys figure skating and appears to participate three times a week.
[44] D.R. has also registered R in a church-based program called Kidzone run by the pastor and his wife on Mondays during the school year. He told the court that he ends the day with a bath and a "comfy playtime".
[45] It was clear that his faith plays a large role in D.R.'s life. He initially belonged to First Baptist Church and was even asked to be a deacon. However, he declined and, as a result of pastoral disagreement, he changed to the Olivette Baptist Church. He told the court that they have an incredible children's program there and that he, his mother and R attend there for church every Sunday. He also noted that R has attended the Vacation Bible School for which he volunteered as a "clean-up" person.
[46] D.R. testified that he has been involved in a relationship with C.C. for four years. They met as she works at R's daycare. He testified that it is their plan after the court makes the decision regarding R to move forward with their relationship, get married and have a home and children of their own. He expects that R will then be in his care and that of Ms. C.C.
[47] Ms. C.C. testified that she has worked for seven years at B's Playschool and currently fills in when the manager is not present. Throughout her relationship with D.R. she has helped in the R.2 home and with the care of R. She told the court that she spends her days off helping at the house doing whatever needs doing. Indeed when Mrs. M.R.2 had her operations, she stayed over to help. Ms. C.C. does not appear to have any involvement outside work besides church on Sunday and her involvement in the R.2 family.
[48] When asked why he and his girlfriend of four and a half years have delayed their wedding, D.R. told the court that they were waiting until this case was over as R did not "need to be torn between two complete families", a comment that was not explained. Ms. C.C. told the court that she and D.R. were not yet formally engaged but expect to get married and that they are in the process of obtaining their own home. She said that she and D.R. hoped to have four children together.
Concerns
Care of the Home/Safety Concerns
[49] There were photos taken by the mother filed regarding the condition of the R.2 home. The mother testified that she was not filing them to complain about her mother's house keeping as she acknowledged her mother's medical limitations. However, the mother pointed out that there were two other adults living there and Ms. C.C. helping out. D.R. initially appeared to deny the condition observed saying that "they all pitch in". However, it became clear given the differences in the calendar and the clutter that the pictures of the kitchen area were taken on different days as the mother had testified.
[50] Mrs. M.R.2 testified that the house did not usually look this way and said it was her fault that the mail had piled up. However, the mother has indicated that it routinely appears this way and Ms. C.C. acknowledged that while it was cleaned regularly it "piles up again".
[51] The evidence discloses some significant concerns about the condition of the home:
- Clutter and dirt in the kitchen and kitchen sunroom areas where there is food and eating;
- Fifteen cats and one dog in the home, none of whom have ever seen a vet; cats had worms and it was the mother who provided the deworming medicine for the cats remaining in the home;
- Two very dirty litter boxes, at least one located in the food area of the kitchen sunroom and next to R's toys - it was acknowledged by C.C. that the litter box did look like this at some point in the day but that it was cleaned routinely;
- Open access to all the detergents, bleaches and other chemicals located on the basement floor which was also accessible to a child;
- Open access to the attic in which all sorts of things are piled posing possible hazards;
- The child's bedroom does not appear to have room to walk - possible confirmation of the mother's concerns of the lack of expectations on R;
- Liquor bottles stored unsecured at floor level.
[52] It is clear from the evidence that the home is usually cluttered and dirty and that for whatever reasons the adults who live there are not prepared to keep it clean and up to adequate standard. Further, as was acknowledged by Ms. C.C., the placement of the bleach and the liquor posed a safety hazard. She confirmed the mother's evidence that this was usually what the home looked like as she noted that in the four and a half years that she had been in the home there has not been much change in the standard of housekeeping.
[53] When faced with the picture of the mess in R's room, Mrs. M.R.2 suggested that R must have been looking for something. This remark confirms the mother's worry that the child is spoiled and not used to expectations.
[54] In an attempt to explain his failure to remove the dangerous products from R's reach, D.R. said that a six year old knew better than to play with the bottles and that R knew what a "skull" meant on a bottle. However, it would appear that the home has been like this since R was younger and young children should not be left to assess the safety of such dangerous products. While there is nothing to stop a child from having access to the basement and the cleaning supplies, both R and Ms. C.C. said that R does not go there on her own although it sounded as if drinks were stored there.
[55] D.R. explained the mess in the attic by initially trying to blame the mother. He said that 90% of the items in the attic were hers. However, he admitted that he had told her in anger that she could not have them until she paid back Mrs. M.R.2's money. The mother testified that her toys are there from her youth including Barbie dolls. She also said that her mother let her take her baseball gear out when D.R. was not around. However, nothing takes away from the fact that there is full access for R to that very piled and cluttered space.
[56] Perhaps as a result of the criticisms of the mother, the number of cats in the home has been significantly reduced and more are yet to be given away.
[57] The OCL investigators were in the home but it is not clear how much of the home they saw. The first investigator noted that the home was "cluttered but clean" which in my view did not address the kind of chaos noted in the evidence before the court. The dirty litter boxes in such close proximity to food and toys cannot be said to be sanitary. The second investigator only commented on the appropriate decoration and furnishings of R's room.
[58] While it does not seem likely that the investigators would not remark negatively about the condition of the home if it were in the state set out before this court when it was viewed and if they had seen the unsecured items in the basement, it may have been cleaned for their visit. Further, they may not have toured the whole home or may not consider it as part of their mandate to comment more specifically on the home since the child was already living there.
Parenting Issues
[59] Certainly the court is concerned about the condition of the home: the dirt, the clutter, the lack of hygiene in the kitchen area and the failure to secure hazardous materials. However, perhaps a bigger concern relates to D.R.'s style of parenting.
[60] While there is evidence of D.R. speaking firmly to R regarding her behaviour, the mother has also told the court that it is her experience with R that she is not used to rules. She said that R jumps on the furniture and generally expects to be able to do what she wants.
[61] There is a great deal of corroboration for her concern. First there is the picture of her bedroom which suggests that she is not expected to treat her own things, clothes and toys, with any respect. Also, it is the perception of those who know R that she is spoiled.
[62] In the first OCL report, the investigator spoke to a number of references. Joe, brother of D.R. and the mother, said that R was a handful, a "very spoiled little girl who is the centre of attention". He also told the investigator that everything is about R and she usually gets her own way. He noted that what R wants, she gets.
[63] Their sister, Bernice, said that R was treated as a "princess" in D.R.'s home.
[64] B.B.2, the owner of the daycare that R attended and where Ms. C.C. works, noted that R was "spoiled" and "called the shots".
[65] When this evidence was put to D.R. during the trial, he admitted that the child was spoiled but said that she did not always get her way. However, it is interesting that the child told the first OCL investigator that she would like no one to say "no" to her at her mother's house!
[66] Further when asked why he would suggest taking R to a "Buck and Doe", a traditionally very adult event, D.R. said that R wanted to go.
[67] D.R. testified that R is starting to struggle with her behaviour in school. He noted that like a lot of six year olds, she was having trouble sitting still. He said that he and the teacher put together a binder to motivate R to concentrate by offering an ice cream if she had two good days in a row. While she was interested in the beginning and it helped, R soon became bored with it so the project was abandoned. D.R. told the court that her marks did show some improvement.
[68] It appears that D.R. may be facing some issues in the establishment of rules and follow through regarding expectations at school.
Inflexibility and Control
[69] It appears from the evidence that D.R. can be very inflexible and controlling when dealing with the mother.
[70] He himself has acknowledged that he was very disappointed in the mother and has trouble forgiving her for having stolen money from their mother while she was on drugs. However, Mrs. M.R.2 who was the one victimized stated that that was in the past and that she loved her daughter.
[71] There are many examples of his need to control everything related to R. The mother had to go to court to fight every step of the way to obtain access. He wanted access to be under his supervision for short periods of time. This was not because there were any serious outstanding protection concerns but rather just because he wanted control and he wanted to use that control to limit the mother's and the paternal side of the family's involvement. Even when access became unsupervised, D.R. wanted to limit who was there with the mother. During the trial, he used the expression "I allowed the visits" and it struck the court that that is how he wanted it. However, he also admitted that "perhaps some of my rules were too strict".
[72] Further when the mother called to ask at noon if she could take R somewhere for a special event that evening, even though he had no plans D.R. would say no. When asked why he was so inflexible, he said "that the night before would be nice". He had no reason; he just thought that that should be his rule. He said at another point in the trial that he was "not really fond of last minute".
[73] In one of the first temporary orders, D.R. insisted that there be a term that no one except the mother and daughter M was to be at the access visits. When asked why, D.R. said that he could not remember the reason. He also admitted under cross-examination that he had no safety concerns about B.W., the mother's new partner or the paternal grandmother. He said that those restrictions were only to ensure that R had time alone with her mother. He also acknowledged that he knew that she had no car so needed help with transportation, something these friends could have provided but were prevented from doing so by the court order.
[74] Despite knowing there were no safety issues about Mr. B.W., he admitted that he had told his mother and his girlfriend to call the police when they discovered that he was at the home while R was having a visit. He did not care about the impact on all these children of having an officer attend. He certainly did not care if the experience would suggest to R that she was not safe in her mother's care. His explanation for such non-child focussed behaviour is that he "believes in following the rules". It appears that he wanted to establish that the mother could not be trusted so that he could reduce or eliminate her contact with R.
[75] D.R. has shown himself to be very inflexible about religion. Although raised as Salvation Army, as noted he is currently a member of a Baptist Church. He has said that Roman Catholics are not Christian because they worship the Virgin Mary and believe in "buying their way" into heaven. He said on the other hand the Baptists worship Christ and believe that it is through the love and acceptance of Christ that one reaches heaven. The issue was significant as the mother had proposed that R attend a separate school as she could access the bus to get to both their homes to put into effect the joint custody regime. It certainly would not be appropriate for R. to be subjected to that attitude by being enrolled in a catholic school while remaining under even the partial custody of D.R.
Lack of Acknowledgement Regarding the Importance of R's Relationship with the Mother and the Father's Family
[76] The most concerning aspect of the uncle's plan to maintain custody of R is his stance against the involvement of the mother and other relatives in R's life.
[77] The R.2 family were presumably very affected by the bad choices that the mother made as a teen. They would have been concerned and worried about the youngest child's involvement at the age of fourteen with marijuana and school troubles. They were further disappointed that she chose to continue her use of drugs and her association with M.C. instead of getting herself together to look after R. Her theft from her mother was particularly upsetting.
[78] However, it does not appear that the family has given the mother credit for the positive decisions she has made. When confronted with her problem with drugs, she chose to be child-focussed and placed R with D.R. instead of forcing the involvement of the Children's Aid Society. While unfortunately this decision may have ended up not in her own or R's ultimate best interests, she did it for R. Had she had the involvement of the society through court order, it seems clear given how she quickly she addressed her issues that R would have no doubt been returned to her care.
[79] This decision to stop her association with M.C. and hard drugs occurred in late 2007, a few months after the custody order. Shortly after the birth of her second child M in […] 2008, there was confirmation that the mother was clean from drugs. At this point, the mother was home on maternity leave. Had there been outstanding child protection proceedings, R would probably have been returned to her care pursuant to a supervision order.
[80] However, D.R. was not satisfied with the evidence. Although he had no proof, he simply refused to acknowledge that anything had changed. Nevertheless, he kept saying that he would return R as soon as the mother was stable and drug free.
[81] D.R. has clearly set himself against any involvement of the mother or the father's family. The mother testified that whenever D.R. was angry with her, he would threaten to adopt R in order to eliminate the need for him to allow anyone to be involved with her. Despite the first OCL report's concern about him alienating R from her mother, D.R. told the second investigator that he really would like to adopt R. When asked about this at trial, he said that he believed that every parent would like full custody of a child.
[82] D.R. has attempted at trial to find fault with everything that the mother does and has done to undermine her ability to be involved in R's life. He even suggested that there were people from her life in drugs that might come after her, making it dangerous for R to be in her care. As was noted in the first OCL report, there was no basis for this suggestion at all.
[83] Desperately looking for things to complain about, he discovered that the mother had been driving while her licence was suspended. Instead of speaking to her about it, he once again tried to use the information to discredit the mother to get her out of R's life. He tried to use this to make it more difficult for her to participate in access. While he acknowledged that the government does not send a notice to a person when their licence is suspended, he still was hoping that it would further compromise the mother's position. This is despite his acknowledgement that operating a motor vehicle without a driver's licence does not pose a risk to the child.
[84] At trial, D.R. also raised the issue about the mother's bad driving. He cited several accidents a number of years ago, one of which occurred in 2000 while she was eighteen years old and at least one of which was not her fault. There has been no suggestion of any driving that has put any child at risk. Nor is there any more recent evidence of bad driving. Nevertheless, D.R. decided to criticize the mother for her driving without having any evidence to support his claim that the mother is not a person to be trusted.
[85] When he discovered that R was going to be sleeping on the top bunk at only five years of age, D.R. did not speak about his concern to the mother, who was unaware of the recommended minimum of six years of age, but instead he called the Children's Aid Society to investigate. Had the safety of the child been his concern, he would have spoken to the mother to ensure that the matter was dealt with directly and promptly.
[86] Another incident that he tried to use was the mother's use of an inappropriate car seat. It turned out that the mother had been told what the child weighed and that the seat was appropriate for that weight of a child.
[87] The Children's Aid Society was contacted by the first investigator. The worker told Ms. Garbutt that she had received multiple complaints from D.R. who felt that the society was not doing their job well. The worker said that should the complaints continue, R could be at risk of being emotionally harmed due to the level of conflict between R and the mother. Fortunately it appears that D.R. has not reported the mother for anything since the report.
[88] Even when the mother had Sunday access court-ordered, he made it difficult for her to organize transportation by insisting that the child attend his church and go to curling during her access time. He makes it clear that anything he arranges for R is more important than her relationship with her mother.
[89] D.R. was prepared at trial to grudgingly allow that he believed that the mother was clean "today", the day he testified. He made this statement knowing that there has been no evidence of drug use since 2007. He admitted that he told the first investigator that in 2010 he did not believe that the mother had overcome her drug addiction. Two years later at trial he still complained that she had not completed the two treatment programs back in 2007. Then he said that community-based programs don't stop drug use anyway. He said that other people that he knew went to the programs and they did not work. He also said that people lie about drug use.
[90] D.R. has therefore taken the position that once a person has used drugs one can never rely on their sobriety. While he appears to be arguing that the court should be concerned about the mother not being drug free, he proposed at trial that the mother have unsupervised access on alternate weekends. Therefore, it is my view that he keeps returning to the historic drug concern in order to try to weaken the mother's position.
[91] Clearly the unforgiving and critical attacks of D.R. on the mother are surprising. One would expect that a brother would welcome the return of a sister to sobriety and stability. While it is true that she stole from their mother, it was under the influence of drugs and she is trying to make amends as she put it by proving that she is worth what her father and mother did for her. Her own mother has clearly put it behind her and told the court that she is her daughter and she loves her.
[92] D.R. however is not prepared to even acknowledge the good news about mother's new stability and family. Instead by his behaviour he has alienated her from the family. Despite promising to return her daughter, he has put up all sorts of obstacles and made her desperate enough to lead the evidence about the condition of the home, a move that has upset her other brothers and sisters.
[93] Unfortunately, the paternal aunt's remark to the first investigator that the mother should not blindly trust her mother and siblings has proved true.
[94] Some insight into this may come from the professional input received by the second investigator from Mr. C. Lansdale, a psychologist who had met with D.R. and the mother and then continued with D.R. alone. He expressed the concern that both of the parties were approaching the situation looking at it from their own experience and what they want rather than what might be best for R. He also noted that D.R. had a lot of anger toward the mother for what she had done years ago. He went on to state that D.R. can be quite domineering and critical of others.
[95] When challenged with this evidence, D.R. denied that he was angry but said he had trouble forgiving her. He denied that he needed to keep R as part of his refusal to forgive the mother. However, he admitted that he did not forgive her despite the tenets of the Baptist Church around forgiveness and said that forgiveness does not happen overnight. It would appear that D.R. is too inflexible to move forward on the issue.
[96] Usually a court is not concerned about evidence of forgiveness. However, any consideration of where a child should live must take into account the nature of the parenting and how that parenting will affect the child's relationships with other members of the family. D.R. has made it unfortunately clear that he is not prepared to deal with the mother at all. He refused to have her at the parent-teacher meeting with him. Worse, knowing that he was leaving early and acknowledging that it was important for R to show her mother her class, he nevertheless did not offer to leave R so that the mother could share the night with her.
[97] It is clear that D.R. cannot co-parent in any way. Even after his sole custody was changed by temporary order to joint custody, he was not prepared to involve the mother in matters at school. He worked on the issue of the child's behaviour and the binder without the mother. He was unable to confirm that the mother's name and number had been added as a contact at school. He said that he just did not think of involving the mother. His only remark about the mother's complaint that she did not get her share of Christmas was that he did not remember.
[98] His view is very set. He really does not want R to have any involvement with her mother. That appears to have been his focus throughout these proceedings despite his promises made to the mother to the contrary. When he found out that someone who knew the mother had spoken to R at the nail salon, he was offended and called to complain.
[99] D.R. told the court that he thought that his adoption of R would eliminate the "stress" of going back and forth between homes. His statement that he thought that the mother was not interested in the child at all but was only seeking custody because he had started an application for support was incredible. In the face of his knowledge about the mother's constant and long battle to be a part of this child's life, that was an extraordinarily inaccurate criticism.
[100] There is no question that the mother struck out from the family home and made some poor decisions. However, at her young age she has also been able to put things back together. Further, since October 2007, the mother has not lost her focus on having R returned to her care.
[101] One issue that has caused a lot of upset for the mother and the child is the fact that R usually calls D.R. "daddy" and Ms. C.C., a person with whom she has never resided, "mummy". According to the evidence, R began to do this when she was two and a half, six months into their dating relationship. At the time, it was D.R.'s position that R would be going back into the care of the mother. Despite this, D.R. and Ms. C.C. made no attempt to correct R about who her mother and father were. They had to know that it would be an issue and not in her best interests when the child was returned to the mother. While D.R. said that he checked with a psychologist, it should have been clear to him that a reassuring reminder to R of who were the child's parents was in the child's best interests. Given the fact that the contact with Ms. C.C. was through daycare, the court asked Ms. C.C. if there were expectations of the workers there to discourage children from calling them "mummy" and "daddy". While Ms. C.C. said that there were no rules, the owner of the daycare B.B.1 told the first investigator that she did not agree with R calling D.R. "daddy" and Ms. C.C. "mummy" as it was confusing for R.
[102] Once again it appears to have been a decision made by D.R. to try to distance R from her mother and the rest of her biological connections through her father.
[103] D.R.'s explanation for excluding the mother from the school meeting was that she "showboats". As an example he testified about her attendance at R's figure skating where the mother came and gave one of her medals to R for good luck and had pictures taken with the two of them and their medals. He reluctantly acknowledged that getting the pictures taken was not grandstanding.
[104] However, he said that he was afraid that she would "grandstand" or "showboat" at the "meet the teacher" night. He said that the mother with her "honours" in high school thinks that she is "better than anybody" and "needs to be the centre of attention". He complained that it would be all about her and her "girls".
[105] Even a careful look at the incident involving the skating does not suggest that the mother interfered with it being R's night. There is no evidence to support this concern, not even from R herself. The real issue is that she took away from D.R.'s night as he feels excluded when the mother and R's sisters are involved. While D.R. denied being jealous of the mother, it certainly would appear that that may play a role in his attitude and behaviour.
[106] D.R. told the court that mid-week access was not a good idea as it was upsetting to R. He testified that he does not believe that "week about", the original proposal to integrate R, is a good idea. He told the court that it is "not required". He said that he "strongly opposes any shared arrangement" and that he "wants primary care and custody and the decision making" as he is capable of providing for R and all her needs that "believes" that he has "demonstrated this".
The Mother's Plan
[107] The mother wants R to be placed in her care. She wants to have R grow up with her biological sister M and her half-sister T in the home with herself and B.W. Mr. B.W. has his own home and a good job and there has been a decision that the mother will stay home to look after the children probably until the youngest reaches school age.
[108] The mother has attended all the parenting programs requested of her by the society and appears to have implemented many of the recommendations for proper direction and discipline of children.
[109] The mother has shown that she is prepared to ensure that R has contact with the paternal side of her family. R has had contact with her paternal grandmother, aunt and cousins as a result of being at access with the mother.
[110] Also, throughout the trial, the mother has made it clear that she would like her mother and D.R. and the rest of the family to have a relationship with all three of her children. While D.R. told the court that in the beginning when M was born, M.C., the father of both R and M, would not let him touch M as he was afraid that he would take M too, he acknowledged that the mother encouraged him to hold M.
[111] When the mother expressed disappointment that D.R. and the grandmother had not asked for M and T to visit as contemplated by the order, D.R. said that it was not "his place" to ask. The grandmother made it clear that she sees M and T a number of times during the week so maybe more can be done.
[112] The mother has shown that she is sensitive to the needs of R and her connection to D.R. by ensuring that R called the uncle every night that she slept over at her mother's.
Concerns
Non-Child Focussed Decisions
[113] While the court has commented on how quickly and well she appears to have dealt with her substance abuse and stabilized, there are aspects of her behaviour that are concerning.
[114] At a time when she should have been attempting to gain her brother D.R.'s trust, the mother violated parts of orders that she had agreed to. While the court understands her impatience, still it would have been more appropriate to comply with the terms. While some of his concerns were minor, an order stating that no one is to be there should have been followed. However, it is clear from the comments from the society that the mother can generally be counted on to follow through with expectations and goals.
[115] The mother should not have had Mr. B.W. at the apartment when there was a court order against it. She should not have lied about the car seat. She should not have attended at the bar within the 24 hours of the access, drinking or not drinking. She should have recognized that she needed to prove to D.R. and her family that they could trust her and this was not the way to do it.
[116] Perhaps the most troubling issue was the incident involving the shaking of R as witnessed by Ms. C.C. and Mrs. M.R.2. While the police may have concluded that the evidence was exaggerated and not enough to support a criminal charge, the fact is that the mother even gently shaking the child, whether in jest or anger, should not have happened. The mother should not have been challenging the child directly over her addressing her brother as "daddy" and his girlfriend as "mummy". She certainly frightened the child. While in my view the situation should not have been created, once it was, the mother was wrong to act in this manner.
[117] There was also evidence that the mother may have told the child that she was coming to live at her home. It is inappropriate for parties to involve children in the litigation. It creates anxiety for the children who wonder what is going to happen.
[118] Another incident of the mother's failure in judgement was leaving the sleeping M and R in the car while she ran into the store. She called Ms. C.C. who spoke on the phone to R while she was gone for what Ms. C.C. estimated to be five or so minutes. This decision was not appropriate and potentially scary and dangerous for the children. Both Ms. C.C. and the mother have acknowledged that it was not the child-focussed way to handle the situation.
[119] The mother complained about D.R.'s reaction to her attending at the daycare to see R during a time when he had imposed severe limitations on their contact. She said that he told the daycare staff to "remove" her and she left without a scene. While all they were doing was singing songs, the mother should have recognized that being there without the custodial parent's permission could have compromised R's ability to remain in that program. She ran the risk of the child being put in the centre of the dispute.
[120] While it is clear from the evidence that the mother was quick to make remarkable progress regarding her use of drugs and that she appears to have stabilized, she has made decisions not focussed on the child. First having placed R in her brother's care, she continued to associate with M.C. Then instead of focussing on being able to have R returned to her care, she had another child M. Then while in court attempting to have R placed with her, once again she decided to have a third child, putting further strain on her ability to have R. The first investigator commented on the extra difficulties created by her decision to have the responsibility of so many young children.
Conclusion
[121] In examining the child's best interests, the starting point has to be the current situation of the child. For the most part, despite concerns about the neglectful state of the home and the spoiling of the child, R has been safe and loved in the home with her Uncle D.R., her grandmother and great uncle. At least so far, there is not an identifiable result from D.R.'s failure to maintain a clean and safe home or to encourage respectful behaviour. That does not take away from the fact that should those issues not be addressed, that there is a good chance of a very negative outcome. D.R.'s attitude toward the poisonous substances left available in the home is very concerning. Further, R has already started to be less receptive to the direction of the teacher and the uncle.
[122] In looking at subsection 24(2), there are a number of applicable considerations:
(a) The love, affection and emotional ties between the child and others: The child has ties with her uncle, grandmother, great uncle, her mother, B.W., her siblings and many others. Her most every day connection has been with her uncle, grandmother, great uncle and in some respects Ms. C.C. More recently, she has spent a greater amount of time with her mother, B.W. and her siblings.
(b) The child's views and preferences: Although only six years of age at the time of trial, R was unfortunately aware of the litigation. First the mother told her about her coming to live with her which distressed her. Then some more recent conversation must have occurred in D.R.'s house as R appeared to be aware that the matter was before a judge. Mrs. M.R.2 told the court that R had told her that she wanted to speak to the judge.
The child told the second investigator that her mother had told her that she was going to live with her in Owen Sound but that she was not going to. She said that she wanted to live in Meaford, in her house and near her school.
(c) The length of time the child has lived in a stable environment: The child has lived with the uncle and grandmother for a number of years.
(d) The ability and willingness of the person applying for custody to provide the child with guidance and education, the necessaries of life and any special needs of the child: Both the parties are prepared to look after the needs of the child in education and physical care. However, it is the mother who is the one who is more likely to address the child's need to be connected with all of her family, clearly an aspect of her emotional health and best interests.
(e) The plan proposed by each person applying for custody/access for the child's upbringing: D.R. intends to maintain the status quo for a short period of time, marry Ms. C.C. and then move with R and Ms. C.C. into a new home of their own, the location of which is not yet known. Therefore in the future, R will be living in a different home with different people, namely Ms. C.C. and when they have children, her younger cousins. Her situation will change; she will have to share D.R. all the time with Ms. C.C. and their children. The mother wants R to join their family at their home with B.W. and attend school with her sisters.
(f) The permanence and stability of the family unit: D.R.'s interim plan is stable. His ultimate plan, marrying and moving in with Ms. C.C. and having children, is yet to be but certainly is an appropriate goal. The mother's family unit has been together now for a couple of years and seems to be stable. The OCL investigators have commented on how well she appears to be handling her home and children.
(g) The ability of each person applying for custody to act as a parent: D.R. and the mother are both clearly able to parent in their own ways. It is noted by the OCL investigator that they each will have their own styles.
(h) The relationship by blood or through an adoption order between the child and each person who is a party to the application: The mother is the child's mother - the person who has never lost focus on trying to be her mother again. D.R. is the child's uncle who stepped in to parent when the mother was not able.
[123] It is somewhat distressing that the court and the OCL with its focus on slow integration have allowed this matter to drag out so long. Looking back, the timelines for moving from unsupervised day access to regular overnight access should have been shortened. As a result, the child has had a greater opportunity to become aware of what is happening. Further while it was hoped by the first investigator that the mother could be integrated into a larger role in the child's life, the time appears to have allowed the child to pick up her uncle's feelings about the situation and start the seeds of the alienation that was one of the concerns of that investigator.
[124] There is no support by the parties or in the evidence for an order of joint custody. D.R. will not acknowledge the role of the mother as a parent for R and therefore will not have any respect for her participation in any decisions. He has refused to even meet with her partner. Both parties agree that they have difficulty communicating, something borne out by the evidence. Further, D.R. is too critical of the mother to co-parent successfully.
[125] In considering a change in custody, where a child has been residing and who has been doing the parenting quite properly carry a great deal of weight. This is in part because if a child is loved and stable where he or she is, then change can be seen as an unnecessary experiment. There needs to be a reason based on the child's best interests to change custody.
[126] In this matter, the court had concerns about some of the uncle's parenting and the state of the home. However, alone those generally would not be sufficient to change the home of a child. In this case, the major concern is the fact that D.R. will be unable to allow the child to grow up with appropriate and healthy contact with her mother, her partner, her siblings, and other paternal members of her family.
[127] D.R. appears extraordinarily angry with the mother. Looking at the evidence, one has to wonder how deep-seated his jealousy and anger are toward her and when they started. As I have noted, one would have expected that a loving brother would have been happy about her success and welcomed the opportunity to do what he promised: return the child that she so gratefully placed in his temporary care.
[128] There can be no question that it was the intention of all the parties involved that R would be in D.R.'s care temporarily. Indeed even after these proceedings were commenced to force him to allow less restrictive access, D.R. acknowledged that he would return R to the mother's care as soon as the mother was stable and not using drugs. Despite that, he has been consistently critical of the mother and reluctant to acknowledge her gains; he has done everything to undermine confidence in her parenting ability.
[129] Despite his complaints about the mother and her ability to care for R, it should be noted that D.R. has not expressed concern about his other two nieces in the mother's care. Also he now suggests that the court make an order placing R in the mother's unsupervised care for alternate weekends.
[130] The concern for the court is the effect of the uncle's parenting on the ability of R to continue developing healthy attachments to her mother, her siblings and her paternal side of the family. In my view, it appears he had it right before: that R should be returned to her mother to live with her siblings and develop those bonds. The evidence regarding the uncle's attitude toward R's relationship with her mother or paternal side of the family makes it clear that his plan will not allow that to happen.
[131] Further, it appears from the evidence that it is the mother who can best provide the structure that was identified by the school as important for R.
[132] When one looks at the issue of change, it is important to recognize that some change is inevitable for children. Given the rate of matrimonial breakdown, it is common place for children to experience a change in homes and often life styles. While stability and familiarity are important, it is not always the only consideration in balancing a child's best interests.
[133] Even parents who are together change homes and even towns for employment or other reasons. These changes are a part of life that often must be accommodated by children and families.
[134] While R has been in the R.2 home and her particular bedroom for a long time, ultimately at some point that will change. As might be expected, D.R. and Ms. C.C. intend to marry and have their own home. Further it is expected that there will be other children in the home. These are good and happy events, ones not to be set aside because they represent change.
[135] It is clear to me given all of the evidence that it is in R's best interests to develop a strong and positive relationship with her mother and siblings, as well as members of her father's family. This can only be addressed by an order placing the child in the mother's care.
[136] Obviously I am concerned about the differences in parenting style that the child will face. Further she will be vying for a parent's attention in competition with her two siblings, something that she is not used to given the fact that she is used to being the centre of everyone's attention. However, while it would have been easier on R to do this when the mother first asked for R to be returned, it remains in her best interest to have it happen now. The mother has agreed to seek out whatever support R may need to handle the transition.
[137] Given the evidence, it is clear that without this order, the child will lose the opportunity to be a true part of her mother's and her father's family's life. Further, the mother wants to maintain R's connection with the uncle and the R.2 family. She has demonstrated sensitivity around that connection through the phone calls made by R during access.
[138] The mother has consistently maintained that it is important for R and her sisters to have a good relationship with her family. As she noted, M and T have done nothing wrong. They too deserve to enjoy a relationship with the R.2 family. While D.R. has not been able to be flexible or child-focused in his decisions, the mother has demonstrated that she is prepared to be so. This is important in ensuring a balanced approach to the parenting of R.
[139] Therefore there will be a final order of custody to the mother.
[140] The issue of access by the uncle is a difficult one. The mother asked the court for some extended time to establish R's new routine in her home prior to any access. The mother has also suggested that R have access one weekend each month on her own at the R.2's home and a second weekend a month there with M and T. The mother is properly concerned about M and T feeling treated differently and the impact that may have on the relationship of the siblings.
[141] While that may be a good plan, it may depend on the health of Mrs. M.R.2 and the changes anticipated in the life of D.R. There needs to be a genuinely positive interest for the weekend access of all three children for the plan to be successful.
[142] At this point it is difficult to know how best to handle the transition. However, it is important for the children's sake that it be handled without a great deal of fuss and in a positive, supportive way. Further, the desired outcome of a healthy and strong relationship among all three children will depend in part on the support of D.R., Mrs. M.R.2 and the rest of the mother's family. The mother and Mr. B.W. are young parents with three young children trying to address the needs of all three. While there is support from the paternal grandmother and her family and Mr. B.W.'s family, it is important that the mother's family also consider that they can play an important role in helping this young family to succeed. I hope that the resolution of this matter will lead to more positive support for the entire family.
[143] Generally for other than parental access, the custodial parent is given a lot of discretion regarding what access is in the child's best interests. In this case, the uncle has had fulltime custody and therefore stands in a different position. Nevertheless, I am confident that the mother is prepared to set up access being sensitive to R's wishes but also to R's best interests in getting settled into her home and routines.
[144] Therefore, the court is prepared to order that the uncle have access one weekend out of four as agreed by the parties. Further, there shall be other access as agreed by the parties.
Final Order
Custody to the mother.
D.R. is to have access one weekend out of four as agreed by the parties. Further, there shall be other access as agreed by the parties.
Should a party seek costs, that party is to serve and file his/her submissions including detailed accounts by December 7, 2012. Any response should be served and filed within 14 days of receipt of the submissions. Reply to the response to be filed within 7 days of receiving the response.
Released: November 7, 2012
Signed: "Justice P.A. Hardman"