Court File and Parties

Court File No.: Toronto D30888/03 Date: 2012-07-26 Ontario Court of Justice

Between:

Robert Blanchard Applicant

— AND —

Joan Walker Respondent

Before: Justice Curtis

Heard on: 14, 15 and 17 May 2012

Reasons for Judgment released on: 26 July 2012

Counsel:

• Sunny Chhabra ……………………………………………………… counsel for the Applicant Father
• Lorne Gershuny ............................... counsel for the Respondent Mother

CURTIS, J.:

INDEX

1. Overview
2. Background
3. Litigation History
4. The Parents Plans
   • a. The Mother's Plan
   • b. The Father's Plan
5. The Law: Material Change in Circumstances
6. The Child
   • a. The SNAP Reports
   • b. Report of the Children's Lawyer
   • c. The Teacher's Evidence
   • d. Other Evidence about Jewel
7. The Mother
   • a. The Mother's Parenting
   • b. The SNAP Reports
   • c. Report of the Children's Lawyer
   • d. Other evidence about the Mother's Parenting
8. The Father
   • a. The Father's Parenting
   • b. Report of the Children's Lawyer
   • c. Other evidence about the Father's Parenting
9. Recommendations of the Report of the Children's Lawyer
10. The Law; Best Interests of the Child
11. Custody Analysis and Decision regarding Custody
    • a. Analysis
    • b. Custody Decision
    • c. The Law: Best Interests of the Child
    • d. Additional Issues relating to Custody, Access and Child Support
12. Orders
13. Costs

Overview

[1] This is the decision in a three-day trial regarding custody of Jewel, born 14 February 2003, who is now nine years old. Custody was the central issue for trial.

[2] The mother claimed sole custody, reasonable access on reasonable notice for the father, and child support.

[3] The father claimed (among other things) sole custody, structured access for the mother, a non-removal order and child support.

Background

[4] Robert Blanchard (the applicant, "the father") was born 18 April 1980 and is 32 years old. He is a self-employed tow truck driver. The father lives with his wife Cindy Blanchard ("Ms. Blanchard") (born 20 March 1985, now 27 years old). The father and his wife have lived together since August 2003 and were married on 15 October 2004. Their two sons live with them, Robert (born 5 September 2005, now six years old), and Steven (born 10 October 2010, now two years old), and a third son is due to be born in July 2012.

[5] Joan Walker (the respondent, "the mother"), was born 13 March 1983 and is 29 years old. Jewel currently lives with the mother. The mother lives with her partner Vernon Ellis ("Mr. Ellis") (born 16 May 1973, now 38 years old), her stepfather Terry Schell ("Mr. Schell") (63 years old at trial), and her other child Nancy (born 13 December 2001, now 10 years old). Mr. Ellis is Nancy's father. The mother and Mr. Ellis have lived together since May 2004. Neither the mother nor Mr. Ellis work outside the home, and both receive social assistance income. Mr. Schell works as a school bus driver.

[6] The parties are the parents of nine-year-old Jewel Holly Elizabeth ("the child"). The parents have known each other since they were children. The parents lived together from April 2002 to summer 2003. They were not married to each other.

Litigation History

[7] Although started as an application, this court case was essentially a motion to change two orders:

a) the final consent order of Waldman, J. made 5 August 2003 for joint custody of the child Jewel, with the child's primary residence to be with the father, and specified access to the mother (from 11.00 a.m. Friday to 11.00 a.m. Monday); and,

b) the final consent order of Spence, J. made 2 August 2005 for consultation on major decisions, with the final decision to the father. The order also provided for specified access to the mother (from Thursday evening to Sunday late morning, and specified additional access).

[8] The child lived with the father for five years after the joint custody order was made. At the mother's request, and on consent, the child came to live with the mother in June 2008. The father said that this resulted from Jewel's wish to go to school with her sister Nancy, and that this arrangement was to be only for one year. The mother started this application for sole custody in May 2009. The father also claimed sole custody.

[9] Several subsequent consent orders provided for without prejudice temporary sole custody of the child to the mother. The subsequent temporary consent court orders progressively provided for increased access to the father. At trial, the father's temporary access was every weekend from 4.00 p.m. Friday to 7.00 p.m. Sunday.

[10] On 16 August 2011, Spence J. made a consent order for the following:

a) The father is to be informed of and involved in all programmes of treatment for the child, including and not limited to SNAP [1], SCAN [2] and CSAT [3] ;

b) The child is to become involved with a children's mental health centre that can address her complex needs; and,

c) The child is to undergo a neuro-psychological assessment through Hospital for Sick Children or other accredited institution to rule out fetal alcohol syndrome or other organic disorders.

The Parents Plans

The Mother's Plan

[11] The mother proposes that the child would continue to live with her and her current household (her daughter Nancy, her partner Mr. Ellis and her step-father Mr. Schell). She proposes "open access" to the father with the child, which was not clearly articulated or specified until closing argument in the trial. She suggests access every week-end from 4 p.m. Friday to 4 p.m. Sunday, and sharing of holidays.

[12] The father (and his family) have done all of the transportation for access since the parents separated in 2003, including during the period of five years when the father had custody of the child and the mother had access. The mother proposes that this would continue.

[13] The mother also asks for an order that neither parent attend in the residence of the other.

The Father's Plan

[14] The father supports the recommendations of the Children's Lawyer report entirely and asks that they be implemented (sole custody to the father, access to the mother). That, essentially, is his plan for custody of Jewel.

[15] The father's wife will be on maternity leave for one year starting 29 June 2012, as they are expecting a third child in July 2012. The father said that his work schedule is flexible.

[16] The father's plan for access is that the mother should have access every other week-end. He suggests that access to the mother could increase when she has taken counselling and worked towards resolving the mental health issues, as recommended by both SNAP and the Children's Lawyer report.

[17] The father agrees that he would continue to be responsible for transportation to the mother's access, but that the mother should contribute to the cost of that, as the travel distance required for each visit is over 100 kilometres in total (four trips of about 25 kilometres per visit). The mother does not have a car, and the father said that she has never offered to do the transportation.

[18] The father has investigated tutors for Jewel to assist her in her school progress. He wants to set up an appointment to have her tested so that an individual tutoring plan can be designed for her.

[19] The father proposes a communication book for non-emergency communications, in an effort to minimize the conflict between him and the mother.

The Law: Material Change in Circumstances

[20] The test for changing a custody and access order is set out in the Children's Law Reform Act, R.S.O. 1990, c. C.12, as amended ("C.L.R.A."), s. 29:

Order varying an order

29. (1) A court shall not make an order under this Part that varies an order in respect of custody or access made by a court in Ontario unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child. R.S.O. 1990, c. C.12, s. 29.

[21] There must first be a determination that, since the last custody and access order was made, there has been a material change in circumstances that affects or is likely to affect the child. Then, if that threshold is met, the court embarks on a fresh enquiry into the best interests of the child, under s. 24 C.L.R.A.

[22] The parents agreed that there was a material change in circumstances since the consent joint custody order made on 5 August 2003. That agreement alone does not confer jurisdiction on the court to change an earlier order. However, given the changes in the child's residence and the ensuing litigation, the court has no difficulty finding that there has been a change in circumstances that affects the child, that the threshold is met, and that the court may examine the issue of custody.

The Child

[23] There was evidence about the child from many sources, including the SNAP reports, the report of the Children's Lawyer, and the child's teacher. The evidence is over-whelming that the child is not doing well, and that she needs help.

The SNAP Reports

[24] The mother, Mr. Ellis, Jewel and Nancy were all participants in the SNAP program at St. Leonard's Society in Toronto in 2010 and 2011. The SNAP Program ("Stop Now and Plan") is a twelve-week cognitive behavioural therapeutic group program for children of ages six to eleven and their parents to address behavioural issues such as aggression, impulsivity and lack of emotional regulation. The children were referred to the program by the school social worker. The mother, Mr. Ellis and Nancy graduated from the program. Jewel received one-to-one counselling.

[25] There were three separate reports from the SNAP program given in evidence at the trial:

a) regarding the mother and Mr. Ellis, report dated 2 February 2011;

b) regarding Jewel, report dated 1 February 2011; and,

c) regarding Nancy, report dated 2 February 2011.

[26] SNAP staff never met the father. The mother would not allow them to contact the father. The father did not learn of the child's involvement with SNAP or the recommendations made by SNAP until the disclosure meeting held 20 April 2011 by the Children's Lawyer investigator.

[27] The writers of the SNAP reports were not cross-examined by the mother. The qualifications of the writers of the reports were not in any way questioned by the mother. The findings of the SNAP program and its recommendations were not challenged in any serious way by the mother.

[28] The SNAP report regarding Jewel (then aged seven) identified the following concerning and referring behaviours:

a) Inattentiveness, hyperactivity and impulsivity;

b) Physically aggressive towards others;

c) Destroying property;

d) Breaking rules;

e) Lying, cheating, stealing;

f) Running away;

g) Lack of remorse or guilt;

h) Associating with bad friends;

i) Swearing, yelling, disrespectful and crying often;

j) Regularly getting into trouble at school and at home;

k) Often confrontational and bossy in class, which leads to many conflicts with other students;

l) Poor problem solving skills, trouble sleeping, difficult mornings; and,

m) Set a fire in her bathroom.

[29] The SNAP report identified the following sexualized behaviours by Jewel;

a) Jewel often wanting to be naked around the house. When asked to cloth herself, she is defiant and will need many attempts to redirect and comply with getting dressed;

b) Exposing herself to family members, and accusing her sister Nancy of looking at her privates;

c) Parents report that Jewel is preoccupied with sexual/adult topics more than 50% of the time;

d) Being caught engaged in sexual acts with a pillow;

e) Calling her sister a "perv"; and,

f) Alleging that Mr. Ellis and her shower together (Mr. Ellis denied this).

[30] The SNAP report also identified the following as concerns;

a) Lack of monitoring of the children in the morning before the mother and Mr. Ellis awoke; and,

b) Jewel's increased interest in nudity, adult content and early sexual development. A consultation with Sick Kids SCAN program was recommended to address these concerns.

[31] The SNAP program made the following recommendations for Jewel;

a) Referral to SAFE-T or CASAT [4] programs to address the escalation in her sexualized behaviours, as these are not behaviours that can be adequately dealt with at SNAP;

b) Jewel to meet with on-to-one counsellor more frequently as scheduled bi-weekly meetings aren't addressing any of the family's many stresses (such as the custody case between the parents, Jewel's sexualized behaviours, or her social skills development);

c) Jewel's sexualized behaviours requires treatment;

d) The SNAP service is not enough for Jewel;

e) Find Jewel a tutor in the community to support her in achieving her academic goals; and,

f) Find the family a case-manager.

[32] The mother admitted that she has not contacted either the SAFE-T or CASAT programs to get help for Jewel. She gave no evidence that she intended to do so.

[33] The mother admitted that she has not contacted a tutor for Jewel. She gave no evidence that she intended to do so.

Report of the Children's Lawyer

[34] The Children's Lawyer produced a report under s. 112 of the Courts of Justice Act dated 5 May 2011. It took a long time for this to be completed. The order for the involvement of the Children's Lawyer was made 1 November 2010. The matter was not assigned to a clinical investigator until 24 January 2011 (more than two months later), and the report was produced four months later.

[35] The mother did not file a dispute to the Children's Lawyer report, which is surprising, given that the report was produced more than one year ago, and that it raises very serious concerns about the mother's parenting, and recommends a return of custody to the father immediately.

[36] The mother did not call into question the methodology used by the investigator in the Children's Lawyer report. She did not question the applicability of the recommendations in the report to the child today.

[37] The writer of the Children's Lawyer report was not cross-examined by the mother. Like those in the SNAP reports, the findings of the Children's Lawyer report and its recommendations were not challenged in any serious way by the mother.

[38] The Children's Lawyer investigator interviewed the principal and vice-principal at the child's school. They described the child and her sister Nancy as children who struggle in school and who are attention-seeking children. There is a lot of conflict in their relationships with other students and they find it hard to keep friends. Both children lack social skills and need a lot of attention. They get upset and angry quickly.

[39] The Children's Lawyer report included extensive information from the SNAP program reports.

[40] The Children's Lawyer report made the following findings about the child:

a) the child is exhibiting serious behavioural issues, lacking in social skills, demonstrating sexualized behaviour and behind academically;

b) There is a lot of conflict between the mother and Mr. Ellis and both children have been negatively affected by the fighting;

c) The child is very worried about the fighting between the mother and Mr. Ellis and indicated that at times she intervenes during these arguments. She described crying during the arguments and seemed to overly focus on conflict, to the point of creating a potion to stop the fighting; and,

d) Jewel's involvement in fire-setting is especially concerning and she requires close supervision.

The Teacher's Evidence

[41] The child attends a special education class in the morning and is in regular class in the afternoon.

[42] Jewel's current teacher identified these concerns in her evidence:

a) She has concerns that the child's nutritional needs are not being met. The child is invariably hungry at school during class time;

b) The child attends school often in dishevelled clothing and in an unclean state. Jewel has told the teacher that she does not get a bath every day;

c) The child told the teacher that the mother was hitting her, had kicked her in the back of her head until her nose bled. The child told the teacher that the mother often swears at her. The teacher contacted the Children's Aid Society of Toronto ("C.A.S.T.") and filed a report;

d) The teacher recommended a communication book between herself and the mother to deal with some unwanted behaviour by the child and to encourage positive behaviour through rewards. The mother was very inconsistent in responding and simply would not send the book back to school, such that the use of the book was discontinued;

e) The mother did not attend a parent-teacher interview during the last session of interviews, although the mother was sent a form to request such an appointment. The father, although not having been sent a form, asked for an interview and one was arranged;

f) The child is struggling at school. She is on an Individual Education Plan (I.E.P.) to meet her needs. She is in grade three, but is reading at a grade one level, and has math skills at a kindergarten level. She has trouble finishing assignments and staying focused. She is quite easily distracted by others;

g) Jewel's I.E.P. is focused on developing her reading and writing skills as well as her basic math skills. Jewel's homework is individualized to address, improve on and expand her skill-set level. Her homework is usually not returned to school, or if returned, is not completed. A previous teacher also identified that Jewel was behind in many subjects and rarely ever brings her homework back to school; and,

h) Jewel has stolen from her classmates (as recently as a few months before trial), and lies about having taken things.

[43] Soon after the child went to live with her mother, she was hurting herself and had burned herself. The school social worker became involved with her then, and C.A.S.T. was also involved.

Other Evidence about Jewel

[44] The child was diagnosed with attention deficit hyperactive disorder (ADHD) in April 2010 by Dr. Sheinin, a psychiatrist, who recommended ongoing help for the family from a children's mental health agency, and for the child, more intense involvement, particularly if the custody and access dispute continues (which it has).

[45] Dr. Sheinin recommend the use of stimulant medication for Jewel, and that the family start at the SNAP program and see how well that worked before they implemented the use of medication. The child started taking the medicine Concerta in June 2011, and has been better able to focus, better able to listen, and is less anxious since then. However, the father refused to give the medicine to the child when she is with him (which is every week-end).

[46] Dr. Sheinin stated that there were enough issues in this family that they needed ongoing help from a children's mental health agency.

[47] At trial, the child had not started any counselling or assessments, despite the recommendations of SNAP, the report of the Children's Lawyer, Dr. Sheinin, and a court order that she do so (the consent order of Spence J. made 16 August 2011).

[48] The report of the Children's Lawyer recommended (and the parents agreed in a consent order) that the child be tested for fetal alcohol syndrome, however, the mother has not done this. The mother's explanation is that the child cannot be tested unless the mother admits that she used alcohol during her pregnancy, which the mother will not agree to.

[49] Jewel has told the family services worker (only a week before the trial) and the Children's Lawyer investigator that she wants to live with her father and have access to her mother.

The Mother

The Mother's Parenting

Reports from SNAP Program

[50] The SNAP report identified the following concerns regarding the mother and Mr. Ellis:

a) SNAP categorized this family as high risk;

b) The mother disclosed many incidents since admission to SNAP services that caused serious concerns;

c) The mother has a history of unresolved trauma, specifically sexual and physical abuse;

d) The family lives far below the poverty line. The current housing is not adequate ad the children are not supplied with nutritious foods;

e) The mother and Mr. Ellis have an on-again/off-again relationship;

f) On-going high conflict and custody battle between the mother and the father;

g) Both Jewel and Nancy have demonstrated an interest in playing with fire;

h) Due to allegations of a sexualized relationship, Mr. Ellis can no longer be alone with Jewel or bathe her;

i) The mother can escalate quickly when triggered, to the point of hostility and emotional rage;

j) Frequent children's aid society involvement;

k) At a case conference at the SCAN unit at Sick Children's Hospital (5 November 2010) for an assessment of Jewel, the mother left the meeting cursing and crying;

l) Jewel's sexualized behaviours; and,

m) Crisis counselling is frequently required.

[51] The overall SNAP recommendations and findings regarding the mother and Mr. Ellis were as follows:

a) The mother and Mr. Ellis present as unstable;

b) Their unemployment has contributed to their inadequate housing and food accessibility;

c) The mother's trauma-based past requires treatment; and,

d) The high conflict relationship between the mother and the father is creating deleterious effects on Jewel and Nancy.

[52] The SNAP reports were clear that they believe that the mother's own history of trauma sometimes gets in the way of her parenting, and that they believe she should be involved in individual counselling for a proper forum to unpack her own issues.

[53] SNAP also felt that if the father were involved in the program, that this would benefit Jewel, as she would then be receiving the same parenting strategies in both houses.

[54] The SNAP reports described a consultation meeting for the mother and the SNAP Program Director at the SCAN unit at Sick Children's Hospital on 5 November 2010. The mother became increasingly more uncomfortable with the questioning and began to use inappropriate language towards all involved. The mother left the meeting before its scheduled end and was notably angered. Following this meeting, the mother revoked all services with SNAP, which services were re-instated about one month later. The mother admitted that since that meeting, she has not attended any meetings to address the child's behaviour. She gave no evidence that she intended to do so.

[55] SNAP wanted to continue to work with Jewel and her family, however, SNAP believes that SNAP is not enough, due to the complexity of the family's issues. SNAP would continue to work with the family if the children's aid society immediately assigned a case manager and if SNAP could work in collaboration with associated professionals.

[56] The SNAP treatment recommendations regarding Jewel were concrete, clear, and explicit. Apart from the mother recently beginning her own counselling, the mother has followed none of the recommendations. Specifically, the mother admitted that she has not contacted a children's mental health centre for Jewel. She gave no evidence that she intended to do so.

Report of the Children's Lawyer

[57] The Children's Lawyer report made the following findings about the mother:

a) The mother's history of childhood trauma seems to have impacted on her deeply, and has affected her ability to deal with stress and her ability to meet the needs of her children;

b) It is concerning that professionals (such as the Public Health Nurse) contacted C.A.S.T. with concerns of neglect and inappropriate anger on the part of the mother; and,

c) Both C.A.S.T. and SNAP are concerned about the mother's ability to meet Jewel's needs, especially in terms of supervision, her ability to deal with Jewel's challenging behaviour, including sexualized behaviour, and the mother's anger difficulties and mental health issues.

Other evidence about the Mother's Parenting

[58] C.A.S.T. has been involved with the mother's family (the mother, Mr. Ellis, Jewel and Nancy) for a number of years, and the family services worker who is currently working with the mother gave evidence at trial. There were several investigations of the mother's care of the child during the years since the child went to live with the mother, none of which resulted in a protection application or any criminal charges. The various investigations related to concerns about physical discipline, arguing between the mother and Mr. Ellis, drug use by the mother, and the state of the home.

[59] The current C.A.S.T. involvement started in October 2010. The family services worker identified the issue of the mother's ability to cope with what's going on in the family as a concern (among other concerns). He said that his current focus is to encourage the mother to access mental health services and to help her cope.

[60] The Children's Lawyer report noted that:

"C.A.S.T. considers the level of risk for the children as high due to the lengthy history of C.A.S.T. involvement, the custody and access issues, the children's behaviour problems, and the mother's depression and historic marijuana use. The risk was mitigated by the mother addressing Jewel's need regarding her A.D.H.D., providing adequate care for Jewel and Nancy and working co-operatively with C.A.S.T."

[61] At the time of the Children's Lawyer report (5 May 2011) the objectives for C.A.S.T. were for Jewel's parents to refrain from custody and access discussions, to attend SNAP, to ensure that the referrals to other services occur, and that the mother addresses her own mental health issues.

[62] Since Jewel has been in her mother's care, the child has a history of missing school and of being late for school. The number of days absent and late is large, consistent over several years, including in the current school year, and is concerning.

[63] The child is behind academically. The school reports that she does not do her homework. The mother acknowledged that it is her responsibility to ensure that the child goes to school on time and that she gets her homework done. However, the mother did not appear concerned about these issues, and has not taken any steps to correct this.

[64] The father's evidence is that he was not provided with any information about Jewel's academic progress, and that he asked for her homework to be sent with her and it was never sent. He did not know about her progress at school or her report cards until this school year. The mother did not dispute this evidence.

[65] The mother said that the father did not have much contact with the child after she moved in with the mother in June 2008. The father says that he intentionally stayed away from the child, because of the conflict between the parents. The mother says that this lasted for a period of one year, the father says that it was for about six months. The father said that the mother initially restricted his contact with the child to six or seven hours per week. The father admitted that he should not have stayed away from Jewel at that time.

[66] The father's evidence was that since the child moved in to live with the mother, he has not been able to see the child on any holidays or birthdays, unless it was his regularly scheduled time for visits. He asked for these and the mother refused. The mother did not dispute this evidence.

[67] The father said that he was not told any information about the child's health, or education, and that he was not given the names of the child's doctors, even though the child has had some health issues. As well, he was not told of any parent-teacher interviews until just recently, when he learned of one and attended it. The principal, vice-principal, and school social worker interviewed for the Children's Lawyer report all confirmed that they had never met nor heard from the father. The first time the father learned of the child's fire-setting, sexualized behaviours, or her involvement with SNAP and the recommendations made by SNAP was at the disclosure meeting held 20 April 2011 by the Children's Lawyer investigator. The mother did not tell the father any of this information. The mother did not dispute this evidence.

[68] The mother and Mr. Ellis argue in front of the children. Jewel says that they do this a lot, that she does not like this, and she has discussed this with the Children's Lawyer clinical investigator and with the father.

[69] Police have been called and have attended at the mother's home on at least four occasions (in 2007, 2008, 2009 and 2010) because of arguments between the mother and Mr. Ellis. The mother said that two of the arguments were disputes over cigarettes. The mother admitted that she and Mr. Ellis argue in front of the children, and that the children do not like it.

[70] The mother has a history of losing control and becoming angry, abusive and aggressive, screaming and swearing, and using inappropriate language, even with professionals involved in her child's life. There have been at least two such episodes at Jewel's school, with the child present. The mother did not dispute the details of any of these incidents, nor did she say that she was wrong to explode in anger in these circumstances, or even that it was inappropriate:

a) On 9 May 2011 there was an incident at the school with the mother yelling and swearing at the principal and the vice-principal. The mother admitted that she was requested to leave the school by the principal, and was told that she would be physically removed from the school property. The principal called C.A.S.T. afterwards to report this incident;

b) On 11 May 2011 there was an incident at the Albany Clinic with the mother losing control. The mother admitted that she was told by the Albany Clinic that she was not to return to the clinic, and the police were called and told her not to return; and,

c) On 7 March 2012, only a few weeks before the trial, there was another incident at Jewel's school with the mother screaming and swearing at the vice-principal. The vice-principal gave evidence that the mother was angry, upset, abusive, repeatedly swearing at him, and that all of this took place in front of the child. He said he would call the police, and asked her to leave the school. She left the school, continuing to call him names as she left. He said that he called C.A.S.T. immediately as he was concerned for Jewel's safety and for the safety of the family. He also called the police.

[71] The child has reported to her father and his wife, and to the family services worker, that the mother hits her. She has told the family services worker that the mother kicked her head and her nose started to bleed. She told the father and his wife that the mother hit her on the back of the head and on her leg. She has told them that the mother put her in her bedroom and held the door shut because her mother and Mr. Ellis were fighting, and her mother threatened to slash Mr. Ellis' throat. The child said that the mother screamed at her and slapped her on the back of her head. The mother denies that these things happened. The mother said that she does not hit the child and has never hit the child.

[72] The mother's witnesses were Mr. Ellis, Mr. Schell and Mr. Ellis' sister. They all gave evidence of their observations about the mother's parenting. They described her as thoughtful, protective, and level-headed as a parent. None of them had ever seen her hit the child or use physical punishment.

[73] There was evidence from several sources (the father, the father's cousin, Jewel's current teacher) that Jewel has a strong body odour, is sometimes dressed in dirty or torn clothes, appears dishevelled, and appears as though she has not bathed in days.

[74] The report of the Children's Lawyer recommended that the mother address her own mental health issues and her ability to control her emotions through a psychiatric assessment, counselling, and possibly medication. The mother's evidence is that she has been seeing a psychologist for several months, once per month. She says she has seen the psychologist about five times. She says she has been taking anti-depression medication since about March 2011. She said that the counsellor was helping her deal with the stresses associated with the custody litigation. There was no evidence about the counsellor's qualifications, and no letter or report from the counsellor confirming that the mother was seeing her, or advising what issues the counselling was dealing with. The counsellor did not give evidence.

The Father

The Father's Parenting

Report of the Children's Lawyer

[75] The Children's Lawyer report made the following findings about the father:

a) The father is a loving and concerned father who is very protective of Jewel. He has called C.A.S.T. on different occasions, concerned that Jewel is not receiving appropriate care and worried about abuse.

b) The father has a stable home and is successfully raising two lovely sons. Jewel reports that the father and his wife get along well. He can provide Jewel with a more typical family environment, where family members sit and eat meals together and do things together;

c) When the father had custody of Jewel he maintained Jewel's regular access to the mother, ensuring that the child had a relationship with the mother; and,

d) The father could benefit from some education about the effect of conflict on children and how to protect them from that conflict, as well as a parenting program (such as SNAP) in order to learn how to reinforce positive behaviour and manage her negative behaviour without over-consequencing her.

Other evidence about the Father's Parenting

[76] Jewel's current teacher's evidence about the father was that although she had only recently met him:

a) he was very concerned about Jewel's well-being and is very supportive of all initiatives she has implemented to improve Jewel's academic and social progress;

b) he expressed concern about Jewel's social well-being with respect to her making friends and being accepted by the students in her class; and,

c) ensuring Jewel's safety, academic progress and well-being are amongst his primary objectives.

[77] The father was clear that the child should have both parents in her life. Others who gave evidence about him (his wife, and his cousin) also said that this was a hallmark of his parenting. He behaved in ways which showed that he believed this (e.g., he did all the transportation for the mother's access for the five years that Jewel lived with him and visited with her mother, and he continues to be responsible for all of the access transportation, since Jewel went to live with the mother).

Recommendations of the Report of the Children's Lawyer

[78] The Children's Lawyer report made these recommendations (among others):

a) Sole custody to the father and primary residence with him immediately;

b) Access to the mother every other week-end;

c) The mother should become involved with a psychiatrist to assess her mental health issues and follow up with suggested medication and counselling;

d) Once the mother addresses her mental health issues through a psychiatric assessment, counselling and possibly medication, and can better control her emotions, access may increase to three week-ends out of four;

e) The father and Ms. Blanchard should become involved with the SNAP program in order to learn parenting strategies for parenting Jewel;

f) Jewel should become involved with a children's mental health centre (such as Aislings Discoveries) that can address her complex needs; and,

g) Jewel should undergo a neuro-psychological assessment through Hospital for Sick Children to rule our fetal alcohol syndrome or other organic disorders.

[79] The Children's Lawyer report also stated that a copy of the report was being sent to C.A.S.T. due to the serious concerns regarding Jewel and her family.

The Law: Best Interests of the Child

[80] The test for determining custody of and access to children is the best interests of the children: C.L.R.A., s. 24:

Merits of application for custody or access

24. (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4). 2006, c. 1, s. 3 (1) .

Best interests of child

(2) The court shall consider all the child's needs and circumstances, including,

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

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

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

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

(b) the child's views and preferences, if they can reasonably be ascertained;

(c) the length of time the child has lived in a stable home environment;

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(e) the plan proposed by each person applying for custody of or access to the child for the child's care and upbringing;

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

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

(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application. 2006, c. 1, s. 3 (1) ; 2009, c. 11, s. 10 .

Past conduct

(3) A person's past conduct shall be considered only,

(a) in accordance with subsection (4); or

(b) if the court is satisfied that the conduct is otherwise relevant to the person's ability to act as a parent. 2006, c. 1, s. 3 (1) .

Violence and abuse

(4) In assessing a person's ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,

(a) his or her spouse;

(b) a parent of the child to whom the application relates;

(c) a member of the person's household; or

(d) any child. 2006, c. 1, s. 3 (1) .

Same

(5) For the purposes of subsection (4), anything done in self-defence or to protect another person shall not be considered violence or abuse. 2006, c. 1, s. 3 (1) .

[81] The test for the court is the children's best interest, and this requires consideration of both where the children should spend their time, and also, who should be making decisions about their lives.

[82] C.L.R.A. s. 24(2) requires the court to consider all of the child's needs and circumstances in determining best interests, and sets out a non-exhaustive list of criteria to be considered.

[83] In every custody case, the sole issue is the best interests of the children. The evidence should have revealed what bonds each child had with each of the parents and their respective ability to parent each child. The evidence should also have indicated what practical plan to care for the children each parent proposed to make when each had the children with them and the benefits to the child of such an arrangement: Kaplanis v. Kaplanis, para 10.

[84] Any temporary custody order and how that order has worked is a relevant consideration for the court in determining the ability of the parents to set aside their personal differences and to work together in the best interests of the children: Kaplanis v. Kaplanis, supra, para 12.

[85] A parent's conduct is relevant to his ability to act as a parent: C.L.R.A. s. 24(3), (4): Lee v. Christie, 2011 ONSC 67, para. 29, 43.

Custody Analysis and Decision regarding Custody

Analysis

[86] It is not necessary to analyse the criteria enumerated in every section of s. 24(2) C.L.R.A.: Walsh v. Walsh, para 13. But it is useful to specifically review several criteria.

[87] C.L.R.A. s. 24(2)(a) requires the court to consider the love and affection and emotional ties between the child, the parent claiming custody, and the other family members the child will live with. Clearly, Jewel has a close relationship with both her parents, both of their partners, and with all of her siblings. No custody decision will be based on this section, as there is no evidence of significant difference in the closeness or emotional ties for Jewel in the two households.

[88] C.L.R.A. s. 24(2)(b) requires the court to consider the child's views and preferences, if they can reasonably be ascertained. Jewel has said that she wants to live with her father and visit with her mother. She is only nine years old, and although her views and preferences are of interest to the court, they are not in any way determinative.

Custody Decision

[89] The critical sections for determining the best interests of Jewel are C.L.R.A. ss. 24(2)(d), (e), (f), and (g), which requires the court to examine the following:

a) the parenting abilities of each parent (ss. 24(2)(d), and (g));

b) the plan proposed by each parent (ss. 24(2)(e)), and,

c) the permanence and stability of the family unit of each parent (ss. 24(2)(f)).

[90] This is a child with a lot of needs, and some serious and concerning behaviours. She requires a custodial parent who pays close attention to those needs, and who is willing to pursue treatment for her and for her family, as needed, to assist in her development.

[91] The mother has shown by her behaviour that she is not that parent. For many reasons, the mother is unable or unwilling to meet the child's needs.

[92] All the professional evidence strongly and consistently presents significant concerns about the mother's ability to meet the child's needs.

[93] These are the findings about the child that are concerning and that support a change in custody to the father:

a) Jewel is exhibiting serious behavioural issues. The list of her behaviours is particularly disturbing, especially since she is only nine years old now (and was seven years old at the time of some of the reports itemizing these behaviours). Jewel is lacking in social skills; she is physically aggressive towards others; she has been lying, cheating, and stealing, and has been swearing, yelling, and disrespectful, and has been crying often; she is often confrontational and bossy in class, which leads to many conflicts with other students, and she is regularly getting into trouble at school and at home. She is inattentive, hyperactive, and impulsive; she destroys property, and breaks rules. She has been running away. She lacks remorse or guilt. The mother is ill-equipped to handle these behaviours as a parent, and she has not pursued any treatment for Jewel;

b) Jewel is demonstrating sexualized behaviours which require treatment. The SNAP program, more than one year ago, referred the family to SAFE-T or CASAT programs to address the escalation in her sexualized behaviours, as these are not behaviours that could be adequately dealt with at SNAP. There is no evidence that this has ever been followed up. The child is not receiving any treatment for any of her problems;

c) Jewel and her sister Nancy both struggle in school and are both attention-seeking children. Social skills have been an issue for both children. There is a lot of conflict in their relationships with other students and they find it hard to keep friends. They lack social skills and need a lot of attention. They get upset and angry quickly;

d) Both Jewel and Nancy have demonstrated an interest in playing with fire. Jewel's involvement in fire-setting is especially concerning and she requires close supervision;

[94] These are the findings about the mother that are concerning and that support a change in custody to the father:

a) The mother's family (the mother, Mr. Ellis, Jewel and Nancy) has been described as high risk;

b) The mother has a history of unresolved trauma, specifically sexual and physical abuse. The mother's history of childhood trauma has impacted on her deeply, and has affected her ability to deal with stress and her ability to meet the needs of her children. The mother's trauma-based past requires treatment. Treatment for the mother has been recommended for some time now, over one year, and she has been unwilling to pursue treatment. There was very little evidence at trial about the counsellor she says she is now seeing (for only five sessions so far), and no confirmation from the counsellor that she is actually receiving treatment, or what sort of treatment is being offered, and regarding what issues;

c) The mother and Mr. Ellis are unstable. They have an on-again/off-again relationship. As well, there is a lot of conflict between the mother and Mr. Ellis, and both Jewel and Nancy have been negatively affected by the fighting. Jewel is very worried about the fighting between the mother and Mr. Ellis, and at times she intervenes during these arguments;

d) The mother's family (the mother, Mr. Ellis, Jewel and Nancy) lives far below the poverty line. The unemployment of the mother and Mr. Ellis has contributed to their inadequate housing and food accessibility, as the children Jewel and Nancy are not supplied with nutritious foods;

e) The mother neglects the child's school, regarding both her attendance and her homework. Jewel is behind academically. SNAP recommended more than a year ago that the mother find Jewel a tutor in the community to support her in achieving her academic goals. This has not been done;

f) The mother is not in control of her emotional reactions, and can escalate quickly when triggered, to the point of hostility, screaming and swearing, and emotional rage. The mother has also behaved this way in front of the child. This is a current and on-going problem, and a problem which is not being addressed by the mother in any way. The mother does not even admit that this is inappropriate behaviour;

g) Both the SNAP report (2 February 2011) and the Children's Lawyer report (5 May 2011) made specific recommendations for treatment for Jewel. The recommendations were concrete, clear, and explicit. The mother has not followed the treatment recommendations, and the mother admitted that she has not contacted a children's mental health centre for Jewel. In fact, she did not suggest she intended to do so; and,

h) Both C.A.S.T. and SNAP are concerned about the mother's ability to meet Jewel's needs, especially in terms of supervision, her ability to deal with Jewel's challenging behaviour, including sexualized behaviour, and the mother's anger difficulties and mental health issues.

[95] These are the findings about the father that support a change in custody to the father:

a) The father is a loving and concerned father who is very protective of Jewel;

b) The father and his wife have a stable home and a successful relationship, and are successfully raising two sons;

c) The father has called C.A.S.T. on different occasions, concerned that Jewel is not receiving appropriate care and worried about abuse;

d) When the father had custody of Jewel he maintained Jewel's regular access to the mother. Unlike the mother, the father recognizes the importance of the other parent in the child's life, and acts in ways to ensure that the child had a relationship with the mother; and,

e) The father is personally better equipped to meet the child's special needs and developmental requirements.

The Law: Best Interests of the Child

[96] C.L.R.A. s. 24(2)(e) requires the court to consider the plan proposed by each parent. C.L.R.A. s. 24(2)(c) requires the court to consider the length of time the child has lived in a stable home environment. The mother's plan is to essentially continue the status quo. The court has had an opportunity to see exactly how custody and access would work if the mother's plan were to be ordered and implemented. Jewel has been living with her mother for four years, and a status quo of such a period is not to be disturbed lightly.

[97] The child is entitled to grow up in an environment that is healthy, consistent, supportive, and stable. That is not the environment in her mother's home. The current status quo arrangement is not in Jewel's best interests. Jewel is not thriving with her mother. In fact, the child's needs are not being met with her mother, and she is suffering in her mother's care, and has been suffering for some time. This plan is not working, and is not in Jewel's best interests. It will be disastrous for Jewel if this arrangement continues any longer. It is distressing that it has continued for as long as it has.

[98] It is also concerning to the court that another child, Nancy, will continue to live with the mother after this trial. Notwithstanding the current involvement of C.A.S.T with the mother, a copy of this decision shall be sent to C.A.ST. for investigation regarding the mother's care of Nancy.

Additional Issues relating to Custody, Access and Child Support

[99] The access order for the mother will be the usual access for separated parents (alternate week-ends). If she wants to increase her contact with the child in the future, the mother has a lot of work to do. The various professionals involved with her family have set out in detail the work needed for the mother to become healthier and better able to parent her children. It is up to her to take these steps and to do this work now.

[100] The orders sought by the father regarding non-removal, passports and travel are appropriate in the circumstances of this case. The mother is volatile and unpredictable. She has shown by her behaviour that she does not recognize the father as an equal parent, or even as someone who is important to the child's well-being. She has shown that she will keep information from him, even when it is in the child's interests to ensure that he has that information. She will not co-operate with the father around travel or passports, and he should not be expected to require her consent to any travel. As well, the court is concerned she would remove the child from the jurisdiction if there is no order preventing this.

[101] There will be no child support order for the mother to pay support, as she is currently on social assistance. It was not clear at trial if there were any arrears of child support owing by the father for the period when the child was with the mother. If there are, the father should not be unduly burdened with paying these arrears. The father will now have four children living with him, and all the children and his wife are now being supported on his one wage, and he will not be receiving any child support from the mother. An order for a modest monthly amount towards arrears (and the payment of this order) will also ensure that the Family Responsibility Office does not take enforcement measures regarding any arrears.

[102] Transportation to and from access is the responsibility of the access parent. The father has been generous in ensuring that access happened between the mother and the child, in that he undertook the access transportation obligation for the five years that the child was living with him. This behaviour by the father also shows his ability to put the child's needs ahead of his own. The father asked the court to order the mother to contribute to the cost of the transportation, if the child is to be living with him. As the mother and her partner are on social assistance, this is not feasible at present. However, there will be an order that recognizes that the access transportation is the mother's responsibility and that she must make these arrangements. The father may, at his option, continue to provide this transportation.

Orders

[103] The orders of Waldman, J. made 5 August 2003, and Spence, J. made 2 August 2005 are changed as set out below.

[104] The father shall have sole custody of Jewel effective immediately.

[105] The father has sole decision-making authority regarding the child's health, education, religion, and welfare.

[106] The mother shall have the following access to the child:

a) Every other week-end from Friday at 6 p.m. to Sunday at 6 p.m.;

b) Two non-consecutive weeks in the summer, to be determined by written notice from the mother to the father before 1 May in each year; and,

c) Other times that the parents can agree on.

[107] Transportation to and from access is the responsibility of the mother. If the mother has no car and no access to a car, the father may, at his option, continue to provide this transportation. When the mother has a car or has access to a car, or when either the mother or her partner are working, transportation to and from access shall be provided by the mother and at the mother's cost.

[108] The child shall be with the father for Christmas, Easter, Thanksgiving, Family Day, Father's Day, her birthday, the father's birthday, and the birthdays of her siblings living with the father, no matter whose week-end those events fall on, with no make-up time required.

[109] The child shall be with the mother for Mother's Day, the mother's birthday and the birthday of her sibling living with the mother, no matter whose week-end those events fall on.

[110] The mother shall not bring a motion to change the custody or access arrangements until she has become involved with a psychiatrist to assess her mental health issues and has followed up with any suggested medication and counselling.

[111] The father and Ms. Blanchard shall become involved with the SNAP program in order to learn parenting strategies for parenting Jewel.

[112] The father shall ensure that Jewel becomes involved with a children's mental health centre (such as Aislings Discoveries) that can address her complex needs.

[113] The father shall ensure that Jewel undergoes a neuro-psychological assessment through Hospital for Sick Children to rule out fetal alcohol syndrome or other organic disorders.

[114] The mother has the right to make enquiries and be given information as to the health, education and welfare of the child under s. 20(5) of the C.L.R.A.

[115] The mother shall not remove the child from Ontario without the father's prior written consent or court order.

[116] The father may apply for the child's passports and other government documents, without the mother's consent.

[117] The father may travel with the child outside Canada without the mother's consent.

[118] The child support order of Spence, J. made 22 March 2010 is terminated as of 31 July 2012.

[119] Any arrears of child support owing by the father under earlier child support orders shall be paid at the rate of $25 per month starting 1 September 2012.

[120] The mother has a legal obligation to pay child support for Jewel. As she is receiving social assistance at present, there shall be no order for child support. The mother shall notify the father in writing within 15 days of getting a job the details of her work (including rate of pay, hours, etc.).

[121] The mother shall produce to the father every year, by 1 June, starting in 2013, copies of her Income Tax Returns and Notices of Assessment pursuant to ss. 24.1, 25 and the disclosure requirements of the Child Support Guidelines.

[122] Court staff shall send a copy of this decision to Children's Aid Society of Toronto (to Intake and to the family services worker Eberton da Costa) for investigation regarding the mother's care of Nancy.

Costs

[123] If either parent is seeking costs, the scheduling office shall set a return date as soon as available for costs to be argued. The parent seeking costs shall make this request of the Scheduling Office by Friday 31 August 2012.

Released: 26 July 2012

Justice Carole Curtis

Footnotes

[1] The SNAP Program ("Stop Now and Plan") is a cognitive behavioural therapeutic group program for children of ages six to eleven and their parents to address behavioural issues.

[2] Suspected Child Abuse and Neglect program at Sick Children's Hospital.

[3] This program was not described or named in full, other than as shown.

[4] The CASAT program was not described or named in this report, other than as shown.