Court File and Parties

Court File No.: Orangeville 125/09 Date: 2012-02-16 Ontario Court of Justice

Between:

Richard Kenneth Randall Applicant

— AND —

Tammy Dianne McClellan Respondent

Before: Justice P.W. Dunn

Heard on: November 7, 8, 15, 16, 17 and December 22, 2011

Reasons for Judgment released on: 16 February 2012

Counsel:

• Richard Kenneth Randall on his own behalf
• Ms. Julia Bradley for the respondent

Reasons for Judgment

P.W. DUNN, J.:

Introduction and Parties

[1] Richard Kenneth Randall, thirty-nine, was the applicant and Tammy Dianne McClellan, thirty-six, the respondent. Their children are Jasmine Jean Randall, born 28 March 2000 (now almost twelve years old), and Connor Cane Randall, born 4 July 2006 (now about five-and-a-half). They are the "children".

[2] The applicant's first request was for sole custody. If he becomes successful in that, he would give alternate weekend access to the respondent. His second preference was for joint custody, with the children spending two weeks with each party. Ms. McClellan sought sole custody, or joint custody provided she would be the final decision maker. She would offer access to Mr. Randall on an alternate weekend basis and with shared holidays. Each party wanted the other to pay child support and contribute to special expenses.

Family Composition and Background

[3] There were meaningful other persons who were members of the parties' world. Ms. Randall's partner was Tamara Resendes. They knew each other for ten years but only cohabited for the last two-and-a-half. They have a son Tyson Lee Randall, born 23 June 2011 (about six months old). The applicant volunteered little information about this baby.

[4] Ms. Resendes has a nineteen-year-old daughter Ashley who lived with her biological father in Etobicoke. Ashley visited Mr. Randall and her mother. Mr. Randall has a nineteen-year-old son Richard Girolano ("Richard"), who lived with his biological mother, but visited his father when he resided with the respondent in earlier years, and latterly with Mr. Randall and Ms. Resendes.

[5] Ms. McClellan's partner and cohabiter is Joszef Greczi for the past two-and-a-half years. They have twin boys, Jacob and Joseph, who are about a year and four months old. Neither party assisted the other with the care of each other's children. Ms. McClellan has a daughter Jenna Bible ("Jenna") who is about eighteen years old. Whereas Richard visited Mr. Randall in each of his two relationships, Jenna lived for periods with the parties and later with her mother and Mr. Greczi. Jenna now resided with her boyfriend, and has an infant daughter born 21 September 2011.

[6] There were three other witnesses in this trial who shall be introduced. Charlene McClellan is the applicant's sister. She observed each party with the children at various times. Jessie Randall is the applicant's mother and Mr. Randall lived with her after the parties' separation. Ms. Randall had opinions about the children and the respondent. Michaela Wilvert is a social worker with the Dufferin County Children's Aid Society (the "Society") and she investigated the respondent's care of the children.

Relationship History

[7] In 1998, the parties began an eleven year relationship. Mr. Randall moved into Ms. McClellan's Grand Valley apartment where she was living with her then six-year-old daughter Jenna. Richard visited this residence on alternate weekends.

[8] Before Mr. Randall moved there, he claimed at trial that Ms. McClellan was able to lock Jenna in her room by putting a screw in the door. This was the first of many accusations Mr. Randall brought against the respondent to belittle her care giving ability. Jenna and Ms. McClellan denied that Jenna could be locked in the bedroom from the outside. It is puzzling that Mr. Randall would have wanted to live with Ms. McClellan if he was so concerned at the time about her poor care of her daughter.

[9] In the winter of 2000, the parties bought a house on Jay Crescent in Orangeville, where they lived until 2005. Jasmine was born (March 2000) while the parties resided there.

[10] A constant complaint through Mr. Randall's evidence was that Ms. McClellan did little housework. She watched too much television, did not pay all her bills, and to use his expression, "parented from the couch". The applicant claimed that the respondent's temper clouded her judgment in caring for the children.

[11] Mr. Randall portrayed himself as a very hardworking man who still had time to provide much of the child care and housework. When weather permitted he was a roofer, working twelve to sixteen hour days. It is reasonable to observe that when he was working and the respondent was not, Ms. McClellan was the primary caregiver, but Mr. Randall did not acknowledge that.

[12] Ms. McClellan was employed as a personal support worker and when on duty, she hired a babysitter. In her evidence, Ms. McClellan averred that she also did a lot of housework, but she allowed that the applicant did the majority of the outdoor chores.

[13] The parties' financial arrangement was that Mr. Randall paid the larger bills because he had the bigger income. Ms. McClellan paid the smaller bills such as cable and telephone. Sometimes her earnings were insufficient to cover expenses, then Mr. Randall made up the deficiency. There was little surplus money; there were frequent disputes over finances.

[14] Mr. Randall was incarcerated in the fall of 2003 for fourteen months but released after six. The reasons for the imprisonment were not germane to the issues in this case. However there was an aftermath to that internment that followed Mr. Randall and Jasmine, and will likely continue to do so.

[15] Around 2004, with Mr. Randall in jail and without his income, Ms. McClellan could not afford to keep the Jay Crescent residence and she sold it. The applicant faulted her for doing so, charging that she should have taken in tenants. The respondent answered that she could not find a friend willing to move in with her, and she distrusted strangers around her daughters. Ms. McClellan was laid off work. She survived by spending the $10,000. left over from the sale of the house.

[16] In 2004, Ms. McClellan lost custody of her daughter Jenna because of issues surrounding Mr. Randall's actions that lead to his imprisonment. Ms. McClellan moved into an apartment in Shelbourne with Jasmine where she lived for a year. In that time, she had good association with Jessie Randall, Jasmine's paternal grandmother. When Mr. Randall was released from custody, he joined the respondent there.

[17] Between 2005 and 2009, the parties lived in a country house by Grand Valley. Connor was born in 2006 when the family was there. In this period, the respondent worked part time as a personal support worker in a seniors' residence in Arthur. Her days were Mondays and Fridays and alternate Saturdays. She was also enrolled in a registered nursing assistant program, with classes Tuesdays and Thursday evenings, with a lot of reading and numerous assignments to be done when not working or at school.

[18] Richard (the applicant's son) visited the parties at the farm house on alternate weekends and for vacations when he was between ten and fifteen years old. He confirmed that Mr. Randall did chores outside and inside the house. He corroborated his father's position that the respondent watched television while Mr. Randall was cleaning. Richard did not know what happened during the week when he was not present, and Ms. McClellan would not have been there on alternate Saturdays when she was working. Richard knew about the times Ms. McClellan worked and when she went to school.

[19] Jenna (the respondent's daughter) lived with the parties until Mr. Randall was imprisoned, but then from about 2005 (after she went to live with her father), she visited on alternate weekends at the farm house. Jenna, who was the respondent's witness, agreed with Mr. Randall that her mother spent time watching television, but she also observed that she did household and studied a lot. Jenna affirmed that Ms. McClellan provided good child care.

The Separation

[20] In the spring of 2009, the parties were told by their landlord that they would have to vacate the farm house. That event precipitated the parties' separation and events that were to embitter the applicant and erect roadblocks that eventually inhibited virtually all aspects of the parties' communication.

[21] There were serious discrepancies in the circumstances leading to the separation. On 20 June 2009, while the parties were still at the farm house, Mr. Randall testified that he directly told Ms. McClellan that their relationship was over, and that he and the children would move to his mother's residence to live. He said that the respondent would have to find her own place and he commented, "I don't care where you go". Ms. McClellan at first did not understand Mr. Randall's plans; she thought she would be included in the move to Jessie Randall's. Mr. Randall did make that move for himself, but his intentions regarding the children to join him went awry.

[22] On 1 July 2009, the parties and children customarily went to an annual fireworks display in the evening. After the show they retired to Ms. Randall's to sleep because by then the farm house was vacated.

[23] The next day, 2 July 2009, was eventful for the parties and the children. In the morning, Ms. McClellan dropped the applicant at his sister's to get his truck and proceed to work. She and the children then set out to locate homes for the family pets.

[24] By 2 July 2009, Ms. McClellan was confused about what to do and where to live. She went to her sister, Charlene McClellan for guidance. The children were temporarily placed with a friend of Charlene McClellan's for babysitting. Both parties moved quickly that day to establish their legal positions. Ms. McClellan engaged Ms. Bradley and Mr. Randall obtained the services of Ms. Hornseth. The goal of each party was to obtain custody through the court process.

[25] On that day the parties communicated. Mr. Randall wanted to retrieve the children, but Ms. McClellan demurred until she had a clearer understanding of his plans. It is fair to say that Mr. Randall was anxious about the children's location which was unknown to him. However, Ms. McClellan did not trust him because his arrangements for the children did not include her. In her evidence, Charlene McClellan said the applicant intended to keep the children. In his cross-examination of her, Mr. Randall asked:

Q. How do you know I intended to keep the children?

A. Because you told me. You said [Ms. McClellan] is not going to get those children.

To that answer, Mr. Randall had no rejoinder.

[26] In the evening of 2 July 2009, the respondent and the children went to the Transition Place Shelter where they eventually stayed for six weeks, while trying to reorganize their lives and find an affordable place to live. Ms. McClellan resumed work and the children continued at school.

[27] It appears that it was not a concern of Mr. Randall whether Ms. McClellan had enough money to rent an apartment. Ms. Bradley asked him:

Q. So do you think it reasonable for [Ms. McClellan] to get an apartment without ensuring that she had enough rent money for the first and last month's rent?

A. I have no idea. I didn't care where she went.

[28] It seems from the evidence that the applicant's plan for the children to live with him at his mother's was a declaration of custody that was thwarted by the respondent having the children with her since the morning of 2 July 2009. At trial, Mr. Randall said, "the kids would be with me if [Ms. McClellan] had not been sneaky".

[29] If Mr. Randall's intentions had been successful, it likely would have meant a change in schools for the children and a move to a residence in another community where they had not lived before. Friends would have been left behind.

[30] As mentioned, while the respondent resided at the shelter, Mr. Randall believed she was "hiding" the children from him. He did not understand that shelter rules inhibited communication between residents and former partners. In this period at the shelter before the first court appearance, Ms. McClellan was fearful that if Mr. Randall had the children, he would not let her see them. The applicant's position was that he just wanted Jasmine and Connor to live at his mother's; he would not prohibit access.

[31] What grated the applicant was that he knew he had good accommodation for the children at their grandmother's; there was no need for them to be in a shelter. To him that was an unreasonable exercise. He blamed the respondent for putting his children in a shelter and for her not finding her own place, because he maintained she had had from 20 June 2009 to make those arrangements. It was Ms. McClellan's view that she only came to a clear understanding that she was homeless on 2 July 2009.

Early Court Proceedings and Complaints to Authorities

[32] Mr. Randall made what was to be the first in a series of complaints to the Society in early July 2009 after the respondent went to the shelter. He said Ms. McClellan was short tempered and abusive to the children, and specifically that she hit Jasmine with a broom. Lynn McFadden with the Society investigated the respondent and the children at the shelter. The Society (but not Mr. Randall) was satisfied that the broom incident was an accident when Jasmine was about six (around 2006) and she was not hurt. It is noteworthy that all Mr. Randall's complaints about the respondent's caregiving only arose after the separation.

[33] Most of the evidence was about Ms. McClellan's care of Jasmine and not Connor. Jasmine was older and made many statements to the applicant who took them very seriously. Connor being younger was not as vocal as his sister. However both children always travelled together between the parties' residences and they got along well with each other.

[34] Mr. Randall launched his application in this court on 6 July 2009, four days after the parties' separation. He also filed a motion without notice dated 3 July 2009 wherein he sought custody. That day Justice Pugsley considered the motion. He found no grounds for a custody order based on the contents of the applicant's affidavit. The motion was adjourned for service.

[35] On 15 July 2009, the parties had their first appearance in court; the applicant with Ms. Hornseth and the respondent with Ms. Bradley. Minutes of Settlement were formulated which provided inter alia that Mr. Randall would have access:

1(A) On alternate Fridays from 3:00 p.m. to Saturday at 9:30 a.m., starting 17 July 2009 (short access weekends).

1(B) On the other alternate Fridays, from 3:00 p.m. to Tuesday at 9:30 a.m. (At Mr. Randall's request on 4 November 2009 this access was changed to Mondays at 9:30 a.m.) (These were long access weekends.)

There were other provisions:

2. Access exchanges were to be at Charlene McClellan's or as otherwise agreed.

3. Timing for access changes was subject to change, given the schedules for the parties and the children.

4. The children were otherwise to live with the respondent.

5. Neither party was to discuss court proceedings with the children, nor should a party denigrate the other in the children's presence.

6. Clothing for the children was to be transferred on access exchanges.

7. The children were not to be exposed to new relationships by either party between 15 July 2009 and 16 September 2009.

There were temporary court orders on 15 July 2009, pursuant to the terms in the Minutes of Settlement.

[36] At trial, Ms. McClellan testified that at court on 15 July 2009 the parties with their lawyers negotiated, and all seemed to agree because Minutes of Settlement were reached. The applicant viewed matters differently. He said referring to the Minutes of Settlement:

This is what Ms. Hornseth got me to sign. It was the only way I would get to see the kids. In my eyes, I was given an ultimatum.

Mr. Randall believed the access arrangement was only based on Ms. McClellan's work schedule, not his own. He could not accept that court orders are designed to offer some accommodation to both parties after a separation. Separated parents will not see their children as often as before; that is a fact of life. Even though Mr. Randall accessed the children every weekend, he believed it was not enough. He said "I went from seeing the kids every day to just a little access".

Problems with Access Arrangements

[37] Problems arose immediately with all aspects of the orders of 15 July 2009:

Short access weekends

There was not enough time for Mr. Randall to have a quality exchange with the children.

All access

Mr. Randall was late on access exchanges. A week after the orders were in place, Charlene Randall declined to facilitate further access arrangements, because the applicant was habitually late. Then exchanges were at the respondent's, where the difficulties continued. Ms. McClellan said often the applicant would not call when he anticipated delays in arrival. When she would call him, he would tell her, "I'll get there when I get there".

Children not to be exposed to new relationships

Between July and September 2009, each party was in a nascent rapport with his or her present partner, and the parties wished to protect the children from becoming involved with the new partners until the relationships could be solidified. There was conflicting evidence about each party violating this clause. I did not consider the evidence relevant in the custody and access issues of this case, but the parties thought it important as a credibility issue.

Children's clothing exchanges

This arrangement broke down, and each party supplied his or her own clothing for the children.

Changes in timing for access exchanges

In 2009, Mr. Randall was working a distance from Orangeville, and he had travel delays in reaching the access exchange site. There were long work hours, traffic tie-ups and dropping off co-workers. Mr. Randall relied on the clause that said access exchange times may change with the circumstances. This clause alone lead to serious upset in the parties' understanding, because of Mr. Randall's too liberal interpretation of it.

[38] Ms. McClellan met Mr. Greczi in the fall of 2009, and they began to live together with the children in November of that year. In mid 2010, they moved to their present address on Manor Crescent in Orangeville. The respondent described this residence as a safe environment, suitable for the children, with a back yard for play and a swimming pool and having space for the whole family. The children had friends nearby.

[39] In the winter of 2010, Mr. Randall and Ms. Resendes began conjugation, and in April 2011 they moved to their present co-op residence. The applicant described the place as a "ghetto" and "dump". He said:

There was garbage everywhere. I do not agree with the way they raise their kids [there].

Mr. Randall did not feel he belonged in that location. He did not talk to the neighbours, and he discouraged contact between the children and children in the area. He did not offer any evidence about trying to relocate to a more suitable environment if he felt his homestead so detrimental for raising children.

Child Support Issues

[40] Ten months after the separation, Mr. Randall was not paying child support with any regularity. The respondent brought a motion on 20 April 2010 to request that he pay support and contribute to special expenses and continue to pay $100. a month to an R.E.S.P. for Jasmine's education.

[41] The respondent's affidavit sworn 20 April 2010 in support of her motion stated:

Paragraph 3: The applicant father had agreed to pay $200. bi- weekly for the children, plus $100. a month towards my daughter's R.E.S.P. and he was paying this. However he has stopped complying with this agree- ment, and he has told me that I'll get it when he feels like giving it to me.

Paragraph 5: The applicant father has absolutely no respect for court orders or agreements. He showed up to pick up the children for access whenever he felt like it and made it so difficult that my sister refused to be in- volved any longer.

Paragraph 6: The applicant father has been completely uncoopera- tive throughout this [court] process.

On 28 April 2010 before Justice Budgell, the applicant with duty counsel (Ms. Hornseth no longer retained), and the respondent with Ms. Bradley, did temporary Minutes of Settlement. The parties agreed that Mr. Randall would pay $400. a month child support from 1 May 2010, based on his income of $26,800. He also assented to pay for one-half of the special expenses and these arrangements became court orders. No consensus was reached about Ms. McClellan's request for Mr. Randall to contribute to the R.E.S.P.

Jasmine's Diary and Allegations

[42] Mr. Randall claimed that Jasmine on her own had been keeping a diary. Entries were critical of her mother's parenting. Mr. Randall read the diary so he could discuss with his daughter her concerns about living at her mother's. Since the separation, the applicant relied on Jasmine's alleged criticisms of the respondent in the diary to impugn her parenting ability to the police, to the Society and to this court.

[43] In 2010, Mr. Randall objected to the police and the Society that Ms. McClellan and Mr. Greczi had sexual congress in Jasmine's bedroom. He showed those authorities an undated excerpt from Jasmine's diary where she wrote:

Mom and Joe [Mr. Greczi] came into my room and they thought I was asleep. But I wasn't. They were having sex and I couldn't get to sleep.

Orangeville Police summoned the respondent for an interview, and the Society also questioned her. Ms. McClellan denied the event and the Society closed its file and no further action was taken by any authority over the alleged incident.

[44] On 15 June 2011, Mr. Randall and Ms. Bradley went to court for a trial management conference. The case was then adjourned to 7 September 2011 for a trial audit.

[45] Two days after that trial management conference, Mr. Randall again called upon the Society to investigate his belief that the respondent and Mr. Greczi were in serious domestic conflict in the children's presence, and things were being thrown in the house in anger and frustration. He expressed his thought that the children were adversely affected by this behaviour. These allegations were based entirely on what Mr. Randall thought Jasmine was telling him.

[46] Ms. Wilvert interviewed the respondent, Mr. Greczi and both children. Jasmine and Connor did not confirm any parental conflict at their mother's residence. There was just the occasional argument that was not found to affect the children emotionally. No evidence was gleaned of anything being thrown. The Society concluded there was no risk of physical or emotional harm to the children in the respondent's residence. The Society's file was left open because of the applicant's continued accusations against the respondent.

The July 18, 2011 Incident

[47] On 18 July 2011 an event occurred which to the applicant, was a clear indication for several reasons that the respondent was incapable of effective parenting. On that day, the temperature was soaring and Jasmine asked Ms. McClellan if she could swim in their pool. The respondent was alone with Connor and the twins, and she did not wish Jasmine to swim without an adult present. Ms. McClellan did not want to take the twins outside because of the high temperature. Ms. McClellan believed Jasmine was playing outside with a friend. At 2:30 p.m. Connor told her that Jasmine had left to walk to the applicant's. Ms. McClellan checked around the neighbourhood to see if Jasmine was still in the area. When she was not, Ms. McClellan telephoned the applicant at 4:00 p.m. Upon learning that their daughter was there, she asked that Mr. Randall return the girl since it was not his access time. Mr. Randall refused, and Ms. McClellan became concerned whether he intended to return the child at all and she anticipated more involvement from the Society. Mr. Randall faulted the respondent for not enquiring earlier than 4:00 p.m. about Jasmine's whereabouts. However, he particularly blamed her for running a household where Jasmine was so discontented that the girl felt she had to go to her father's where Mr. Randall believed she was much happier.

[48] Mr. Randall told the Society and he testified in this trial that Jasmine was "scared" at the respondent's on a regular basis. On the occasion of 18 July 2011, she was afraid to return to Ms. McClellan's because she would be in "big trouble" on arrival there. In Mr. Randall's affidavit sworn 27 July 2011 he stated, "[Ms. McClellan] proceeded to tell Jasmine that she was costing too much money and that she should get out". In her evidence, the respondent explained that on 18 July 2011 Jasmine was standing in the open outer doorway when the air conditioning was on. Ms. McClellan told her daughter to shut the door, because the air conditioning was expensive. Ms. Bradley asked Mr. Randall:

Q. When did you intend to return Jasmine?

A. When she would feel safe.

Mr. Randall did not tell Jasmine that it was wrong to leave the respondent's care without telling her.

[49] On 18 July 2011, Mr. Randall advised the Society that Jasmine (aged eleven) did not want to return to the respondent. In this trial, the applicant said the Society recommended that Jasmine needed a break from her mother, and that he should keep her overnight.

[50] The next day, 19 July 2011, Ms. Wilvert interviewed the children. Jasmine said the respondent had threatened to slap her and she was slapped in the past, and she went to her father's because she was upset. However, Jasmine could not provide any details of these events, but to Ms. Wilvert, the little girl was describing disciplinary events when she was seven years old. Jasmine told the worker she would prefer to live with her father, but she felt safe in both homes. Ms. McClellan denied any abuse to the children, and no further action was taken by the Society.

[51] At trial, Mr. Randall said the Society told him that as part of its investigation, Ms. McClellan had promised not to be aggressive with the children. It would keep an open file to check on her parenting. That information was not confirmed in this trial by Ms. Wilvert when she testified.

[52] By the next day, 19 July 2011, Mr. Randall had not returned Jasmine and there was no indication he would. The respondent brought a motion without notice for an order that Mr. Randall return Jasmine to her. The motion came before Justice Pugsley, and he ordered Mr. Randall to return the child to the respondent by 6:00 p.m. that day. His Honour wrote in his Ruling:

Jasmine's welfare is not served by letting an eleven-year-old become involved in the centre of their dispute.

That remark was directed entirely at Mr. Randall's actions. At trial, the applicant confirmed the prescience of Justice Pugsley's observation when he said he did not wish to return Jasmine "against her will". However, he did return Jasmine that day before the police enforced the order.

[53] On 18 October 2011, which was three weeks before this trial commenced, Jasmine complained to Mr. Randall that the teenage son of her babysitter had kicked and yelled at her. Mr. Randall testified that he "cautioned" the respondent not to employ that babysitter, but he believed that she would not take his advice. Ms. McClellan's evidence was that she was unaware of complaints about the babysitter from either child. Because he thought he was not getting the response he wanted, Mr. Randall complained to the Society that the babysitter's aggressive child was putting his children at risk. He hoped the Society would intervene with Ms. McClellan and persuade her to acquiesce to his desire that for the sake of the physical safety of the children, another babysitter should be engaged. This referral once again lead to the police and the Society interviewing the children, who were removed from school for questioning.

[54] Quite contrary to what the applicant perceived, Ms. Wilvert found that the children described positively their experience at that babysitter's. After its investigation, the Society found no evidence of abuse at the babysitter's home, and it closed its file after the 11 October 2011 enquiry.

[55] At trial, Mr. Randall made the following statement that is dire for Jasmine's future psychological welfare:

Each time I called the Society, it was about things Jasmine told me that were happening at her mother's.

Mr. Randall said he never considered that his daughter might lie or grossly exaggerate.

[56] Ms. McClellan said the only time she called police about Mr. Randall was two years ago when he would not return the children. She never had occasion to engage the Society.

Access Issues and Cooperation

[57] The applicant testified that from the separation in 2009 until the present:

[Ms. McClellan] refuses access because I was not on time to obtain the children. If it doesn't suit her, she will deny access if I am late. It happened five times.

He said he went to the police on three occasions over access issues but apparently no action was taken. The respondent recalled only once when access was denied; he was three hours late, and by then she had made other plans.

[58] There was extensive evidence about Ms. Resendes' relationship with Ms. McClellan. In the last decade, they were at various times acquaintances and friends. However, after the respondent learned from a third party that Mr. Randall was having an affair with Ms. Resendes while the parties were together, Ms. McClellan's attitude to Ms. Resendes soured. Now there is a want of sympathy between them. Mr. Greczi commented that he found Ms. Resendes to be difficult on access exchanges. He believed she interfered in access arrangements which should have been done by the applicant, especially when he was not working regularly. The allied problem though was that Mr. Randall believed Ms. McClellan to be so unworthy of respect that he did not want to talk to her. That left Mr. Greczi as the perennial "middle man" to facilitate access.

Other Issues

[59] There were two issues the parties raised that were not relevant to the concerns in this trial, but were telling about the level of the applicant's cooperation.

[60] The first involved the parties' washer and dryer used at the farm house. After the separation, the parties divided most of the assets, with the respondent receiving a generous portion, but the washer and dryer went to Mr. Randall's storage at a friend's in the country. Ms. McClellan requested the appliances to launder the children's clothing. Mr. Randall refused.

[61] The second matter involved the R.E.S.P. for Jasmine's education. In 2004 the parties set up a plan that cost $168. a month; Mr. Randall was to pay $100. a month and Ms. McClellan's share was $68. The account was in both names and there was a governmental contribution. After the separation in 2009, Mr. Randall refused to contribute and the plan could not be altered without his concurrence. Ms. McClellan wanted to create a new plan on her own that would require less of a monthly contribution than $168. Mr. Randall would not sign the papers to change the R.E.S.P. The excuse for his non-cooperation was that the respondent never sent the papers to him to change the plan. At trial, Mr. Randall said he did not deal with that type of thing, yet he paid into the R.E.S.P. for over five years. He did not care that the governmental contribution would be lost if the plan was not maintained.

Education and Career Development

[62] Despite Mr. Randall's lack of collaboration in Jasmine's R.E.S.P., he said he believed the children's education was important. Personally, he did not finish high school and has had no formal education since.

[63] In the late 1990's, Ms. McClellan returned to school to obtain a high school equivalency. Then with Mr. Randall's financial support, she studied to be a personal support worker and was employed in that field earning $15. to $20. an hour. At present, she is preparing to qualify as a registered practical nurse where her income would start at $25. an hour. In August 2011, she left work entirely to focus on her studies full time. Finally the respondent has in her sights later studying to be a registered nurse. Despite the respondent's obvious efforts to improve her education and boost her earning potential, the applicant still censured her for having "dead end" jobs.

[64] Mr. Greczi held a responsible position as a sales manager in the auto industry. He earned between $50,000. and $70,000. annually.

Financial Status

[65] Turning now to the applicant's financial status, his income was as follows:

2007 $75,598. 2008 $51,147. 2009 $10,165. 2010 $12,000.

A large disparity occurred in 2009 when Mr. Randall's tools were stolen and he stopped roofing after that. A lack of implements was one reason for ceasing full time roofing, but he said he also suffered a bad back. He declared he could only work for one hour at a time until back pain set in. However, Mr. Randall produced no evidence of medical intervention for assistance to help him to return to gainful employment. He also gave no information about other kinds of work he could do. He would not apply for factory jobs which he believed too menial for him. He only wished to work in construction where he would have the least contact with other people. This was because he contended that persons wanted to have confrontations with him.

[66] Since 2009, he said he did odd jobs, including roofing. In the last two months, sporadically Mr. Randall did renovations with one Pete Morreau. However, Ms. Resendes said that was a very unreliable source of income, because he was seldom called to work. Ms. Resendes testified that her partner found ways to bring money into the budget, including payments "under the table". Mr. Randall's evidence was that he earned $500. to $800. cash a week without income tax implications.

[67] In general, the applicant was less than forthcoming about his income. Ms. Resendes was on maternity leave from a good employer. Her income was still sufficient to pay the rent and utilities and buy the groceries. When she resumes work, she will earn $30,000. a year.

[68] Ms. Bradley asked Mr. Randall when he started to pay child support (bearing in mind that the separation was 1 July 2009). He said not until he was ordered by this court to do so on 28 April 2010, which was ten months after the separation. Mr. Randall excused himself for this delay, because he did not know where the respondent was. Actually, the only time he was ignorant about her whereabouts was for less than two weeks when she was at the shelter in July 2009.

[69] Mr. Randall testified that he regularly paid support after the April 2010 order, but not after July 2010 when he was out of regular work. Ms. Bradley established that the arrears were:

For: 2009 $1,200. 2010 $2,950. 2011 $3,700. $7,850.

Mr. Randall made the following payments in 2011:

27 January $150. 7 February $200. 4 March $200. 13 April $150.

Mr. Randall said he paid child support "when he had money to spare". He did not pay regularly because he had "big debts over one-and-a-half-years", which apparently in his mind had priority over child support. The respondent and Mr. Greczi bought most of the children's clothing and paid all of the special expenses (except for $100. that Mr. Randall paid for a trip for Jasmine in October 2011).

Access Exchange Logistics

[70] Effecting access exchanges was a tribulation for Ms. McClellan. The parties' residences were about three kilometres from each other, so distance should not have been a significant problem. The school was one-and-a-half kilometres from the respondent's and less than one kilometre from the applicant's.

[71] Mr. Randall has a vehicle but he did not drive since June 2010 because he had no insurance. He was convicted of driving without insurance and he said insurance now is unaffordable. Ms. Resendes was not licensed to drive, but she said she was "working on" obtaining one. It is obvious that the families' exchange situation would be greatly ameliorated if Ms. Resendes would expedite the licensing process. Both the respondent and Mr. Greczi drive and have a vehicle.

[72] During the school year on long alternate weekends, access arrangements are simplified. Mr. Randall recently started to collect the children from school on Friday afternoons and lately began to return them there on Monday mornings. The problem arises on the Saturdays of the short weekends; the children have to be transported from Mr. Randall's to Ms. McClellan's. Also when school was out, Jasmine and Connor need to be conveyed from one of their parents' houses to the other. These arrangements caused two problems.

[73] The first dilemma was to establish who should be the conveyor. Mr. Randall believed that because he was the driver until 2010 when he could not afford insurance, it should be the respondent's responsibility to deliver the children to him. However, he believed Ms. McClellan did not help with the driving. The respondent did not agree that it was her obligation to effect access exchanges. However, she still did some exchanges and Mr. Greczi also drove a large number of times. Mr. Randall and Ms. Resendes regularly called on Mr. Greczi to drive so Mr. Randall's schedule could be accommodated. Ms. Resendes opined that the respondent and Mr. Greczi should be required to undertake more of the access exchange arrangements.

[74] The second part of the access exchange conundrum was Mr. Randall's refusal to be on time. Since the separation, the applicant frequently made last minute changes to arrival or departure times. Ms. McClellan said that on Thursdays at times when Mr. Randall was to pick up the children from her residence, she would not know what to expect from the applicant on Fridays. Mr. Randall dismissed the significance of regularity in access exchange times because the court orders stated that:

The times for pick-up and drop-offs are subject to change given the schedules of the parties and the children.

[75] Mr. Randall's lateness had some credibility when he worked regularly in remote locations. Since this has not been a pattern for two years, his present delayed arrivals are due to his own convenience or lack of organization and his want of respect for the respondent's schedule.

[76] On occasion Ms. McClellan would not even know if Mr. Randall would pick up the children from school on Fridays to begin his own access weekend. Ms. Bradley asked him:

Q. Sometimes Ms. McClellan did not know whether you were going to pick up the children from school?

A. I suppose.

Q. Sometimes you would not tell Ms. McClellan that you would keep the children over Sunday night or that you would take them to school on Monday mornings?

A. There were several changes in the access arrangements. It was different all the time.

[77] Ms. Bradley suggested to Mr. Randall that the respondent made unnecessary trips to the school on Fridays to collect them, when Mr. Randall had already picked them up and did not tell her. Mr. Randall's response was:

It was only seven minutes out of [Ms. McClellan's] way. I do not see that as a real inconvenience, especially since [Ms. McClellan] drives.

[78] Mr. Randall insisted he would telephone the respondent if he anticipated being late for access exchanges. It was Ms. McClellan's evidence that usually she had to telephone him to learn his plans. These problems about access exchanges were the greatest source of frustration between the parties. Mr. Randall and Ms. Resendes were irked that the respondent and Mr. Greczi did not provide all the transportation and at specific times to be chosen by Mr. Randall. Ms. McClellan and Mr. Greczi were discontented because the respondent assumed little responsibility for transfers, and he was unwilling to put an effort into consistency in making access plans.

Jasmine's Preferences and the Children's Lawyer

[79] A very important concern to Mr. Randall was that none of the Justices who had carriage of this case at various times, requested the involvement of the Children's Lawyer. He believed Jasmine needed a voice to articulate what he believed was her clear preference to live with him. Ms. Bradley was involved in the case from the outset. She submitted that representation by the Children's Lawyer was unlikely because of the continuing involvement of the Society, which was always and frequently initiated by Mr. Randall.

[80] However, Jasmine's preferences were voiced through the evidence of the applicant, Ms. Resendes, Ms. Wilvert, Richard, Jenna and Mr. Gary Wright. All were clear that Jasmine consistently expressed a desire to live with Mr. Randall.

[81] Mr. Wright in his capacity of Duty Counsel, undertook on my behalf to interview Jasmine. He reported to the court that she:

• was articulate and mature for her age; a very pleasant young person; • was consistent in her views; • believed Mr. Randall was a good person and she wished to live with him; • did not say anything negative about the respondent, except that sometimes she got upset and argued with Mr. Greczi; • wanted to reside with the applicant because there were no arguments there; whereas there were at the respondent's.

[82] If it will put Mr. Randall's mind at ease, I do not think Jasmine could have had any better representation from the Children's Lawyer than she had through the applicant's witnesses and Ms. Wilvert and Mr. Wright.

[83] It should also be observed that Ms. McClellan said the arguments at the respondent's referenced by Jasmine were partly caused by the applicant's refusal to cooperate with access exchanges. This lack of co-parenting lead to confusion and frustration for the respondent and the five other people living with her.

The Criminal Case and Jasmine's Knowledge

[84] The fact that Jasmine knew details about the prior criminal case against Mr. Randall and his brother James was of critical importance to the applicant. Both parties had agreed when Jasmine was young to insulate her from the knowledge (to the extent possible) of the reason for Mr. Randall and James being incarcerated, until she would be old enough to assimilate the information.

[85] Mr. Randall was convinced Ms. McClellan told their daughter the real reasons for the imprisonment. In the applicant's way of thinking, the respondent was a bad mother to be so insensitive on such a consequential matter. Mr. Randall accepted what he believed to be Jasmine's statement that Ms. McClellan told her about the events. He did not believe that the little girl could have learned about the notorious case in the community. Mr. Randall would only acknowledge that Jasmine might have received a very general idea of the happenstances, but he was certain Ms. McClellan filled in many details.

[86] Ms. Bradley asked Ms. McClellan:

Q. Did you tell Jasmine why her father and James were sent to jail?

A. Jasmine knew of [Mr. Randall's] and his brother's court case. I clarified yes, that her uncle was in jail, that he did something wrong, but I did not give details. All I ever told Jasmine about her father was that he was sent to jail because he told a bad lie. I never said [details of the charges against Mr. Randall or his brother]…I didn't tell Jasmine that her father went to jail for helping James…

(I decline to quote Ms. McClellan's actual words because they were too graphic and unnecessary for these Reasons for Judgment.)

Ms. McClellan testified that she was surprised when Jasmine knew as much as she did about the case. Jasmine even asked if she could change her name so people would not know who she was.

[87] Ms. McClellan gave details of how well known the case still is in the community. Mr. Randall also must be just as conscious of the general public's awareness of the matter but he downplayed the issue. Jenna (the respondent's eighteen-year-old daughter) said that her father told her why Mr. Randall went to jail when she was fourteen. Later, the full details were provided. Any reasonable person would understand that Ms. McClellan was unlikely to want to inform her daughter about such an infamous case; Jasmine most likely learned about her father's imprisonment from community sources.

Parenting Styles and Discipline

[88] At the root of Mr. Randall's objection to Ms. McClellan's parenting was his concern over her excessive discipline. He believed the respondent:

(1) used discipline with intemperate yelling that made Jasmine fearful of her; (2) did not understand her children's need to be happy in a warm nurturing household; (3) involved Jasmine too much in caring for the other three children, and heavy responsibility had been thrust upon the little girl's shoulders; (4) and Mr. Greczi were in serious frequent conflict that impacted the children.

It is important to repeat that Mr. Randall made no complaint to the Society or police about Ms. McClellan's care of the children when they lived together.

[89] Ms. Resendes said that Jasmine was very "unhappy" and was "scared and petrified" of her mother. Mr. Randall asked her why she felt that way. Ms. Resendes responded:

[Jasmine] is grounded every day for the past four months for silly things – not cleaning her room, not helping her brother. Her self-esteem, looks, dresses, the way she acts – these feelings come from her heart and from [Ms. McClellan's] house.

Ms. Resendes admitted that the information came exclusively from Jasmine. Like Mr. Randall, she did not believe the child would lie or embellish to her father.

[90] Ms. McClellan and Mr. Greczi said the modes of discipline the respondent used were time-outs, being sent to their rooms and discussion about erroneous acting. Light physical discipline had been used in the past but not recently.

[91] There was almost no evidence about Mr. Randall's discipline of the children. He said there were no bad kids, just bad parents. He was complimented in his parenting by Charlene McClellan (the respondent's sister). She said she did not view him as an overbearing parent and no severe discipline was used by him. Ms. Resendes was more expansive on the topic of discipline. She did not believe in yelling at children nor in groundings. She preferred to convince a child to act better by reasoning with him or her. Ms. Resendes said if Jasmine misbehaved, she could choose her form of punishment such as folding laundry or doing dishes.

[92] Other witnesses had observations about the respondent's discipline of the children. Richard (Mr. Randall's nineteen-year-old son) said he never saw Ms. McClellan abuse Connor or Jasmine. Jenna (Mr. McClellan's eighteen-year-old daughter) stated that the respondent was "pretty good" with the children and there was no excessive discipline. Charlene McClellan had ample opportunity to see Ms. McClellan with her daughter and son. She viewed the respondent as being loving in her play and care of Jasmine and Connor. The respondent would raise her voice at times; there would be brief time-outs, for example when a child was disrespectful. Ms. Charlene McClellan said she never heard the children complain about anything happening not only at the respondent's but also at the applicant's. Ms. Wilvert's investigation echoed Charlene McClellan's opinion.

[93] It appears that Mr. Randall's and Ms. Resendes' criticisms of the respondent stand out in their isolation.

[94] The rationale behind some of Mr. Randall's observations of the children were conjecture. For example:

(1) Jasmine was "motherly" to Connor. This developed over time when Ms. McClellan became less available to him in her care of the newborn twins. (2) Connor cried when he heard a sudden noise. This was an instinctive reaction because he was responding to his mother's shouting. (3) Connor cringed when he did something wrong, for fear of the respondent's angry outbursts.

There was nothing in that behaviour by the children that could logically be said to be caused by the respondent's care giving.

[95] There were two other detections that disturbed the applicant.

(4) The children were belligerent and argumentative after being with the respondent. (5) Connor did not wish to return to Ms. McClellan after access at the applicant's.

Young children often have difficulty transitioning between residences. They acclimatize to one environment and do not want to move to another. Mr. Greczi also remarked on changes in the children after returning from the applicant's. He did not observe the extreme reactions Mr. Randall claimed to have seen when they came to his residence. I believe that what Mr. Randall saw was normal.

Safety Issues

[96] Both parties raised safety issues about the children living with the other parent. Two of the applicant's concerns have been discussed in detail. They were:

(1) The respondent did not adequately supervise Jasmine when she went unattended to the applicant's on 18 July 2011. (2) Ms. McClellan's alleged poor choice of a babysitter.

However, the respondent also brought to the court's attention three incidents which occurred as recently as last summer (2011) at the applicant's:

(A) Connor was riding a bike unsupervised without a helmet, and he went over a ramp and bumped his head. Mr. Randall took him to a hospital for a check-up. There was no serious injury. (B) One day Ms. McClellan arrived at Mr. Randall's at the agreed time between 1:30 p.m. and 2:00 p.m. to pick up the children. She found Jasmine unsupervised and her father could not be located. (C) On another occasion, Connor was at the applicant's. He was supposed to be inside at 8:00 p.m. A neighbour returned him to Mr. Randall at 10:00 p.m.

These incidents were striking, especially since Mr. Randall portrayed himself as the parent who would provide the safer environment for the children.

Findings of Credibility

[97] The court does not have a "truth meter" to detect veracity. There are though several filters through which evidence can be examined.

(1) Which party gave greater detail in describing aspects of the parties' history?

[98] Ms. McClellan's evidence was more detailed than the applicant's, and it went mostly unchallenged by Mr. Randall. For example, the respondent's account of the events of the separation on 1 July 2009 described many particulars of her actions on July 1st and 2nd of that year. By comparison, Mr. Randall said little of what he did those days (other than his meeting with Ms. Hornseth and a brief telephone talk with Jasmine).

[99] Ms. McClellan related well the elements of her parenting plan; the applicant's was poor in detail and was a generalized condemnation of the respondent's parenting. For example, the respondent "hid" the children from him at the shelter. Ms. McClellan "parented from the couch". Jasmine was "frightened" of her mother's "abusive discipline". Mr. Randall did relate some of the activities he did with the children, but he failed to illustrate why he should be considered the more effective parent.

(2) Are there other credible witnesses to support a party's position?

[100] Mr. Randall presented his partner, Ms. Resendes, Ms. Randall his mother and Richard his son. For reasons to be discussed, the weight of their evidence will be discounted because essentially they parroted his criticisms of the respondent.

[101] The respondent had Jenna who made complimentary remarks about each party. Charlene McClellan appeared. She understandably supported Ms. McClellan, but she did respect the applicant's parenting. The ability of those witnesses to see different aspects of people lent to their overall credibility.

[102] However there were two important witnesses who gave plausibility to the respondent's evidence. Mr. Greczi confirmed his partner's position about the children's happiness at their residence and the appropriateness of the respondent's discipline. What made Mr. Greczi's testimony persuasive was that Mr. Randall had a grudging respect for him and Mr. Randall could communicate rather handily with him. Ms. Bradley asked the applicant:

Q. Do you like [Mr. Greczi]?

A. He seems all right.

Mr. Randall even allowed as how the children were fond of Mr. Greczi. This witness's evidence was important for two reasons:

1. He gave a comprehensive and favourable account of life in the respondent's household regarding discipline and family activities that went unchallenged by Mr. Randall in his cross-examination.
2. Mr. Greczi was careful not to blame personally Mr. Randall over access exchange problems. Situations were criticized but not the applicant's character. This quality in the presentation of Mr. Greczi's evidence portrayed him as a fair-minded person who went out of his way to accommodate others.

[103] The second important witness for the respondent was Ms. Wilvert. She gainsaid Mr. Randall's oft repeated dicta that Jasmine was fearful of Ms. McClellan and was unhappy in her mother's residence. The evidence of a professionally trained witness like Ms. Wilvert who is not affiliated with the parties is very influential.

(3) Is a party fair to the character of an opposing party?

[104] Mr. Randall's evidence was replete with overt criticism of Ms. McClellan as a common law partner, a mother and a custodial parent. Ms. Bradley asked him:

Q. Do you hate [Ms. McClellan]?

A. Maybe. I have zero tolerance and no respect for her.

Mr. Randall was incapable of saying anything complimentary about the respondent, or giving her credit for the work she did in the household and the good child care she provided. His view of the parties' history was so tainted, he could see no good at all in Ms. McClellan or her parenting. His acrimony towards the respondent clouded any objectivity there could have been in his evidence.

[105] In contrast, Ms. McClellan credited Mr. Randall with being the breadwinner when they were together, and she respected his right to make family decisions. She believed that for the most part, the parties had at least a tolerable relationship. Although Ms. McClellan must have felt deep frustration over the access issues, she did not assail Mr. Randall's character nor try to demonize him as a person or as the children's father.

(4) Does a party fixate in his or her evidence on certain incidents as opposed to seeing the evidence as a whole?

[106] Ideally parties will testify in an inclusive way to encompass good and less attractive aspects of their personalities and relationships with significant others.

[107] Mr. Randall's recitation of the parties' history was distorted and oppositional and was fixed on non-complimentary events and alleged failings by the respondent. For example, Mr. Randall placed a large focus on:

1. The screw on Jenna's bedroom door that Mr. Randall believed locked her in the room.
2. Ms. McClellan's excessive smoking in the residence.
3. Ms. McClellan's failure to pay bills or do housework.
4. Ms. McClellan's boundless discipline and shouting.
5. Jasmine's coming to his house in July 2011 because of her alleged unhappiness at the respondent's.
6. Ms. McClellan's lack of cooperation over access.

[108] This list of complaints by Mr. Randall about Ms. McClellan was not at all illustrative of Mr. Randall as a person, a partner to Ms. Resendes, a father to Tyson and the children. He did not give any context to his relationship with Ms. McClellan (other than to condemn her totally). No picture was produced of Mr. Randall as a working man after full time roofing ended in 2009. Evidence was lacking about Mr. Randall having involvement with the children's doctors, teachers or Jasmine's counsellor. There was no evidence about his and Ms. Resendes' parenting of Tyson and little detail was provided on Jasmine's and Connor's relationship with Tyson.

[109] In considering Ms. McClellan's evidence, she gave a good description of herself as a person, a partner to Mr. Greczi and a care giver to the children. She spoke of:

1. Herself and Mr. Greczi having disagreements and what happened at those times;
2. Her frustration with Jasmine when the child would not listen to her;
3. The love the children have for Mr. Randall and how beneficial it is for them to see him;
4. The frustration she and Mr. Greczi had with Jenna when she lived with them, because Jenna did not respect the routine of the household. Yet Jenna was credited with the great help she provided when she and Mr. Greczi were at the Hospital for Sick children when a twin was in bad health;
5. The ups and downs in her relationship with Ms. Resendes over the years.

What stood out in the respondent's evidence was the balance and fairness she gave when describing incidents as part of family life.

[110] To sum up, Mr. Randall's perception of events was in black and white. His parenting was good and Ms. McClellan's was bad. On the other hand, Ms. McClellan's eyes could see shades of grey, where perfection is not expected. Her belief was that she and Mr. Randall were both trying to be good parents to the children, and each party has strengths and weaknesses.

[111] Now to a consideration of the other witness's evidence.

[112] Ms. Resendes presented as intelligent, pleasant and caring, but there was little in her evidence to add to that of the applicant's. She was committed to Mr. Randall and the children, and she shared the applicant's perceptions of his problems with the respondent. She did confirm that she argued with the respondent on the telephone over access, which was supportive of Mr. Greczi's opinion that Ms. Resendes was inappropriately involved in access issues which should be the domain of the applicant.

[113] There was an important digression of Ms. Resendes' evidence from Mr. Randall's. Ms. Bradley asked her:

Q. Did Mr. Randall tell the children that they don't have to listen to [Ms. McClellan]?

A. [Mr. Randall] would not tell the kids that because they need to respect their mother.

Q. But Mr. Randall testified that he told Jasmine not to listen to their mother; that was when the parties lived together.

A. I didn't know that.

[114] Richard Girolano supported his father's contention that he did the housework and child care while Ms. McClellan watched television. He too added little to Mr. Randall's evidence. Richard and the respondent never had a close bond. Ms. McClellan believed that it was because Richard's mother wanted to reunite with Mr. Randall. Ms. McClellan desired a closer affiliation with her then stepson; Mr. Randall told her that he would work on building a closer rapport between them, but there was no improvement.

[115] Richard acknowledged to Ms. Bradley that he did not know what housework and childcare was provided by the respondent when he was not present. Richard also knew that Ms. McClellan was absent for work on alternate Saturdays and she had studies to do. Like all of the applicant's witnesses, Richard told the court that Jasmine said she wanted to live with Mr. Randall.

[116] Jessie Randall was the applicant's mother and she had a strong dislike for Ms. McClellan. Ms. Randall described the respondent as being unpleasant to Mr. Randall using loud language. Ms. McClellan was said to be mean to the children and she hit Jasmine. Ms. Randall knew from Jasmine's diary about the alleged event of the respondent and Mr. Greczi being in Jasmine's bedroom. The children would be welcome in her house, and she believed Mr. Randall to be a good father. Ms. Randall added nothing to Mr. Randall's testimony, and her bitterness to Ms. McClellan detracted from her credibility.

[117] There will now be a focus on the respondent's witnesses.

[118] Charlene McClellan had ample opportunity to view each party's personality and their parenting of the children. She said Mr. Randall was pleasant to her, and she acknowledged that his parenting was appropriate and loving. She disagreed with him that the respondent did no housework.

[119] Charlene McClellan acknowledged that the respondent would raise her voice to the children when they disobeyed, and they were grounded for brief periods on occasion, and Mr. Greczi and Ms. McClellan had brief arguments. Hence this witness confirmed some aspects of the applicant's accusations against the respondent, but not at all to the degree of unacceptable behaviour claimed by Mr. Randall.

[120] Charlene McClellan observed that the children were not fearful of the respondent or Mr. Greczi nor of the applicant and Ms. Resendes. Jasmine and Connor never complained of treatment from any of their four caregivers to her. However, sadly she did see Mr. Randall denigrate Ms. McClellan as a bad mother and being in dead-end jobs in front of the children. Connor and Jasmine did not react.

[121] Charlene McClellan testified about good and less appealing qualities of each party, so she was fair to both. I found her credible in her affirmation of the respondent's good parenting and of the respondent and Mr. Greczi having an untroubled household where the children were happy.

[122] Jenna Bible was the respondent's daughter and witness, but she knew Mr. Randall for several years as a loving stepfather. Jenna made the following points:

1. Ms. McClellan spent time watching television, but contrary to what the applicant claimed, she did clean the house and care for the children in a "pretty good" manner.
2. Ms. McClellan was not abusive either to her nor to the children.
3. Mr. Greczi and Ms. McClellan argued, but much of it was over Jenna's lack of cooperation in the household.
4. Mr. Randall's discipline was not excessive.
5. Mr. Randall and Ms. Resendes were in a good relationship, with no arguments, and they provided loving care to the children.
6. Jasmine said she wanted to live with the applicant.

[123] Jenna's evidence was given in a non-inspirational and tired manner. It was not very convincing because it was curtly delivered without much context or conviction. However, her non-effusive comments could be viewed as complimentary to both parties. What is significant from the respondent's perspective was that Jenna did not agree with the applicant that Ms. McClellan was a terrible person and mother.

[124] Mr. Greczi gave a credible account about life in his household. He described it as busy – young active twins, the children in school with homework and food to be prepared, often facilitating access to Mr. Randall, extracurricular activities and working full time.

[125] Mr. Greczi described the love the children have for the respondent and himself, and how significant Ms. McClellan is in the children's lives. This witness was awed by how accepting the children were of him in such a relatively short time. He described Ms. McClellan's discipline as what would be expected – reprimands, removal of privileges, short term groundings. Mr. Greczi did not like the word "discipline" because it reminded him of spankings he received as a child; to him that kind of parenting is unacceptable in a modern loving family. He said there had been no corporal punishment of the children in the over two years he was in this relationship. Jasmine never complained to him about any aspect of her life in her mother's household.

[126] Mr. Greczi gave a clarion call for all concerned to find a way to obtain consistency in access exchange arrangements. I found that this gentleman testified in a fair and comprehensive fashion; he was a credible witness.

[127] For all the reasons given, where the evidence of the applicant and his witnesses conflicted with that of the respondent and her witnesses, I prefer to accept the testimony of Ms. McClellan and her witnesses.

[128] Before closing out this area of the Reasons for Judgment, I wish to refer to what Mr. Randall described as Jasmine's diary. In the applicant's mind, this was important evidence about the respondent's inadequate parenting. The circumstances about its writing were not known, and it would not be fair to ask Jasmine about it because of her young age. What was known though is that Mr. Randall had discussion with Jasmine about the diary's contents. To the extent that Jasmine was coached or even if suggestions about discipline at the respondent's house were made to Jasmine, any merit the diary might have had would be undermined. I concluded that no weight should be placed on the comments in the alleged diary because of the real possibility of Mr. Randall influencing Jasmine's thoughts in his discussions with her about the respondent.

[129] An incident happened once at the respondent's residence when Ms. McClellan and Mr. Greczi had a disagreement. Ms. McClellan threw some of Mr. Greczi's clothes out a window and police were called. The respondent and Mr. Greczi explained their misunderstanding to my satisfaction and it was an isolated event. However to Mr. Randall, the occasion was indicative of a very discordant relationship between the respondent and Mr. Greczi that was not true.

Application of the Best Interests of the Child Test

[130] The court will now consider the evidence under the provisions of section 24 of the Children's Law Reform Act (the "Act").

Section 24(1): Best Interests of the Child

The merits of an application in respect of custody of or access to a child shall be determined on the basis of the best interests of the child.

Section 24(2): Factors to Consider

The court shall consider all of the child's needs and circumstances, including:

(a) The love, affection and emotional ties between the child and each person claiming custody of or access to the child

[131] The evidence was clear that the children have close emotional ties to each party.

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

[132] I accept that the children cherish having Mr. Greczi in their lives, even though he was a stranger until two years ago. For his part, Mr. Greczi had a strong emotional commitment to Jasmine and Connor, and he said he felt significant love coming from them. Charlene McClellan described the children with the respondent's partner: "They love him to death. They run to the door to greet him".

[133] Richard said about Ms. Resendes: "[Ms. Resendes] takes on a mother figure. She gives [the children] what they need". Jenna described the applicant's partner in this manner:

[Ms. Resendes] is really good with the children. They interact very well. [Mr. Randall and Ms. Resendes] are very loving to each other and are very loving to the children.

It appeared that Jasmine and Connor benefitted greatly by having Mr. Greczi and Ms. Resendes in their lives.

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

[134] There was no evidence about Connor's preferences, but that is usual given his age of five years. The parties agreed that Connor's best interests are analogous to Jasmine's because they are closely bonded siblings.

[135] Jasmine's views were broadcasted through the voices of Mr. Randall, Ms. Resendes, Richard, Jenna, Ms. Randall, Ms. Wilvert and Mr. Gary Wright. Jasmine is eleven years, ten months old and at this age, she is considered old enough to have a viewpoint. Mr. Wright found her to be articulate and consistent in her opinions. However, she is not yet at a stage where heavy emphasis is put on a child's views. Of course, depending on the particular child, that age could be around fifteen years.

[136] The court applies the best interests test for the child in examining all the circumstances and the child's desire is only one part of that test. A child's best interests are not necessarily synonymous with a child's wishes. The fact that Jasmine's opinion was often and consistently stated is not enough for the court automatically to accede to her preference. Two questions must first be asked:

(1) Did Jasmine independently form her viewpoint?

[137] The evidence strongly suggested that she did not. I accept the respondent's testimony that Jasmine was keen to please Mr. Randall, and she told stories he was eager to hear. Ms. Wilvert confirmed Ms. McClellan's view. Ms. Wilvert said:

I do not know if Jasmine can be completely honest because of her loyalty to both parents, but mainly to [Mr. Randall].

Jasmine related incidents of yelling and excessive groundings at her mother's and being in a servile position to care for her three siblings. Mr. Randall readily accepted these fantasies as truths, and he decided the respondent was a terrible caregiver who had to be stopped. He triggered the police and Society investigations to try to support his positions and coincidentally obtain the authorities' backing in his bid for custody. The problem was that Jasmine's accounts contained half-truths, exaggerations, embellishments and even lies.

[138] An image was created in Jasmine's mind that life would be happier at the applicant's – no yelling, stress free, no excessive discipline – just fun and happiness. I do not suggest that Mr. Randall instructed Jasmine to believe she should want to live with him. He did not have to do that. His constant criticism and rebuffs of Ms. McClellan lead the child to decide on her own that she would be happier at the applicant's.

[139] I deduce that Jasmine did not form her viewpoint independently from the applicant's position.

(2) How did Jasmine fare in her allegedly non-preferred household (the respondent's)?

[140] If Jasmine held a firm viewpoint that she would be more content living at the applicant's, one would expect she would show even some unhappiness at the respondent's, and act out consistently in unacceptable ways. That was not the case. Jasmine was doing well in school. That was a good indicator of her being settled and satisfied in her present principal residence.

[141] Ms. Wilvert had discussions with Jasmine. The little girl had no complaints about either household regarding abuse or anything else and she was happy in both places. She felt spontaneous affection and could speak freely at her mother's and father's. Ms. Wilvert believed Jasmine was talking openly with her. If Jasmine had complaints about abuse from Ms. McClellan, Ms. Wilvert thought she would likely have learned about it. The fact that Jasmine did not show stress or unhappiness at the respondent's undermines the merit of her statements that she strongly wanted to live with the applicant.

[142] In conclusion on this point, Jasmine's views were a factor to be considered, but not a deciding factor. There are other important aspects of the children's best interests to be examined.

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

[143] The children lived with both parties up to the July 2009 separation. After that, they have been with the respondent for the last two-and-a-half years, but with regular and frequent access with the applicant.

[144] Since the separation, the children did not reside with each parent exclusively. In the last two years, Mr. Randall and Ms. McClellan joined their present partners, so Jasmine and Connor needed to adjust to Mr. Greczi at the respondent's and Ms. Resendes at the applicant's. The evidence was clear that the children adapted well to their parents' new partners, but there still was a period of adjustment needed.

[145] Then the children were subjected to further changes; each party moved to different residences including six weeks at a shelter. They endured parental conflict and police and Society investigations.

[146] It has not been easy for the children to listen to the applicant's destructive comments about their mother and respond to all the investigations, as well as hearing stories in the community about their father's notorious deeds. The constant presence of Ms. McClellan in their lives as their principal caregiver for the last two-and-a-half years was surely influential in leading to their present stability and fairly balanced states of minds. Jasmine and Connor have been nurtured and protected by the respondent's steadying hand during many times of flux.

(d) The ability and willingness of each person applying for custody 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

[147] The evidence shall be considered under the two above headings.

[148] On the subject of which party is better able to provide guidance, I was impressed with Ms. McClellan's insightful ability to understand herself. She was self-critical and recognized she could make mistakes. She did not blame others for their errors nor for her own. She was capable of "forgiving and forgetting". (In the summer of 2004 or 2005, she was prepared to overlook Mr. Randall's marital transgressions with Ms. Resendes.)

[149] Because Ms. McClellan was introspective and not condemnatory of others, she will be able to assist the children to see different sides of issues, to think about consequences of actions and to be sensitive to the needs of others. I believe that she, more so than Mr. Randall, understands the importance of obeying the law.

[150] Mr. Randall showed little insight into himself as a person. He did not describe any particular qualities he had that would make him a parent as effective if not more so, than the respondent. He made one revelation about himself; he knew he did not want to be around people because he found they wanted to fight with him, possibly about his past. Conflict in society seemed to be an every-ready possibility for him and possibly for children with him. He did not demonstrate openness to others' opinions. He believed he had considered many of the dilemmas of life; all the children would need to do is to act upon his direction.

[151] In summary, I find that Ms. McClellan will give more frank, honest, tolerant and fair-minded guidance to the children.

[152] There will now be a consideration of each party's willingness to provide the children with education. The respondent's life was a commitment to her own education. It was difficult for her from the point of view of time expenditure in studying (and help running a household and raising children) and financially to do a high school equivalency, then take courses in personal support working and now in registered practical nursing. Ms. McClellan wished she had paid attention to her education earlier in life, but she is overcoming obstacles to achieve it now. I believe she will encourage the children not to make her mistakes, but to continue their schooling to the college level. She also spoke of the need to stimulate the children intellectually through games, reading and attendances at events and places. Mr. Randall did some activities and homework with the children, but if he appreciated the importance of them as necessary developmental tools for children, he did not say so.

[153] Mr. Randall said he supports education for the children and he helped them with school work. However, in his own life, his commitment to his schooling was not exemplary. In his Submissions after trial, Mr. Randall wrote:

The respondent seems to be making a career of going to school, having been in school for most of the past ten years, only to acquire a minimal degree. If her intent was to advance in any field by going to school, she surely would have made more progress during her lengthy enrolment.

By the remarks, Mr. Randall demonstrated his ignorance of the educational process. When a student works, is a mother and housewife, only so much time is available for study and scholastic achievement is gradual. My concern is that if the children were in the applicant's care, he would not have the patience nor the commitment to encourage Jasmine and Connor in long term study.

[154] Mr. Randall could have bettered himself by enrolling in vocational programs after his roofing business collapsed in 2009, but he did not do so. He said he supports a good education for the children, but I believe Ms. McClellan's actual dedication to higher learning was more meaningful than Mr. Randall's words. Also the respondent saw the value of continuing the R.E.S.P. for Jasmine and apparently the applicant did not.

[155] Turning now to consider the ability of each party to provide the children with education, even if Mr. Randall wanted the children to surpass the high school level, I do not see how he would be able to support them financially. There are extras that higher instruction requires – books, lodging, transportation and tuition. In Ms. Resendes' opinion, Mr. Randall's income at present was insufficient to support their family of three. There was no indication of his income even improving in the near future beyond what he can earn in part time jobs.

[156] On the other hand, the combined incomes of Ms. McClellan (once she completes the R.P.N. program) and Mr. Greczi will be available to defray college costs.

[157] Both parties can provide the basic necessities of life – shelter and food. However, as every parent knows, even on a basic level there is a need for money for extras. Jasmine may wish to take dance or art classes and have clothing in style with other children. Ms. McClellan's budget will better accommodate those demands than Mr. Randall's. I understood that at present the respondent was providing most of the clothing for the children. Ms. Resendes said she bought "little things" for them.

[158] Good parenting focuses on many issues besides money. However, the ability to provide the necessaries of life is a factor to be considered. The respondent, with Mr. Greczi's help is more able to meet this need.

[159] Jasmine has a special need, which is an aftermath of Mr. Randall's infamous conviction. I wish to emphasize that the applicant regretted his action and he fulfilled his debt to society. He is entitled to put his past behind him and move forward and he deserves credit for showing love and devotion to his children. Unfortunately the community has not and likely will not forget the events that lead to his reprobation. The children bear his name, and already Jasmine was showing concern about her surname by discussing a name change with Ms. McClellan. The respondent contended that Jasmine and later Connor may avoid negative reflections upon them if residing in a household not lead by a Randall.

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

[160] Each party:

(1) has been with his or her present partner about the same length of time. Mr. Randall contemplated marriage in the autumn of 2012, but I do not view that as a significant consideration at this time.

(2) has a child(ren) with their partner.

(3) maintains a residence. (Mr. Randall was critical of his, but he had no plans to improve the location.)

[161] Ms. McClellan, Mr. Greczi and Ms. Resendes had careers that are honourable and lucrative. Mr. Randall viewed himself as a former high income earner in contrast to how he considered the respondent's jobs as "dead-end". In fact, Mr. Randall performed odd jobs with an uncertain future, especially given his complaints about his back. Essentially Ms. Resendes supported Mr. Randall and Tyson. If Mr. Randall obtained custody of the children, Ms. Resendes would provide for them also. It is arguable that there is a cloud over the permanence and stability of the applicant's family unit because of his financial uncertainty.

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

[162] This is a very important rubric, especially on the facts of this case.

[163] Up to now in the analysis of section 24 of the Act, there has been consideration of each parent's individual ability to provide for the children. This heading invites an examination of how each parent can coexist with the other, because that is a necessary part of parenthood. The first question then to be raised is, what is the level of cooperation by each party with the other?

[164] From the respondent's perspective, she was frustrated by the applicant's refusal to cooperate on the timing of access exchanges; nevertheless she:

• did not fault Mr. Randall as a parent; • offered extra access (which he declined); • worked with Mr. Randall's ever changing schedules; • facilitated some access exchanges; • avoided criticizing the respondent to the children.

Clearly Ms. McClellan was willing to try to work with Mr. Randall.

[165] For his part, Mr. Randall was very clear what he thought about Ms. McClellan. He testified:

(1) "She tries to make things difficult for me…I see the children when it suits her"; (2) She is "spiteful and mean"; (3) "I can't talk to her. I can't stand the woman"; (4) "It's impossible to communicate with her. It's her way or no way". (5) Ms. Bradley asked Mr. Randall:

Q. Do you hate [Ms. McClellan]?

A. Maybe. I have zero tolerance and no respect for her…I tolerated her for ten years.

[166] The respondent and Mr. Greczi stated that it was difficult for Ms. McClellan to have any communication with Mr. Randall. He often hung up the telephone on Ms. McClellan and he wanted Ms. Resendes to make the access arrangements. I conclude that Mr. Randall will not cooperate with Ms. McClellan, and as the facts in this case confirmed, it is very highly unlikely that he ever will.

[167] The next consideration is whether the parties can co-parent, even when one has custody and the other access. There has to be an ability to respect the other parent's discipline and parenting style, and to cooperate and be flexible in overall arrangements. The respondent would work with the applicant, but the applicant offered no accommodation to the respondent's plans.

[168] The following is some of the evidence about Mr. Randall's aptitude for parenting cooperation:

(1) Ms. Bradley asked Mr. Randall the following:

Q. You told the children they don't have to listen to their mother because she is mean to them?

A. Yes, sometimes I did what I could to get the children to feel good.

Q. Is that supportive of [Ms. McClellan] as a co-parent?

A. No, but it isn't supportive to hit the children with a broom.

Q. Do you undermine Ms. McClellan's discipline with the children?

A. I told the kids that what they did wasn't that bad and they didn't deserve that punishment.

Q. Do you feel you can do whatever you want to make yourself happy?

A. Doesn't everyone?

(2) In 2008 over three years ago when the parties lived in the farm house outside Grand Valley, Ms. McClellan testified that she had trouble getting Jasmine to cooperate on a particular occasion. Ms. McClellan told Jasmine "go to your room". Mr. Randall said "Don't listen. Mommy is a mean mommy anyway".

(3) Mr. Randall admitted to discussing this court case with Jasmine, but claimed to have omitted details.

(4) Mr. Randall told Ms. Bradley he would not enforce any punishment given to the children by the respondent.

(5) Mr. Randall made it patently clear at trial that he would not cooperate with Ms. McClellan on any level, unless he achieved exactly what he wanted.

[169] Acting as a good parent requires the ability to show respect to the other parent, at the very least publically in front of children. Mr. Randall demonstrated by his actions and words that he disrespected Ms. McClellan. He was unable and unwilling to co-parent. That means that Mr. Randall should not be permitted to make decisions about the children and that joint custody is out of the question.

(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) any child.

[170] Mr. Randall claimed that Ms. McClellan abused Jasmine physically and emotionally, but Ms. Wilvert determined there was no truth at all to those accusations and I do not find that there was. However there was abuse in this case. Mr. Randall abused Jasmine emotionally by his flagrant criticism of the respondent and his subjecting both children to police and Society investigations. Mr. Randall also abused Ms. McClellan emotionally by his defiance against her as the children's mother.

Final Orders

1. Tammy Dianne McClellan (Ms. McClellan) shall have sole custody of Jasmine Jean Randall, born 28 March 2000, and Connor Cane Randall, born 4 July 2006 (the children).

The regular Friday to Monday access will be on alternate weekends. There shall not be access on the other alternate weekends as there was before, because it was too disruptive to the respondent's routine with the children, and the applicant's continuing lack of cooperation presented unnecessary and unwanted roadblocks. Mr. Randall as stated previously, needs to understand that after a separation, neither party sees children as frequently as before the separation.

2. During the school year, Richard Kenneth Randall (Mr. Randall) shall have access on alternate weekends from after school on Fridays to Monday mornings. Mr. Randall or Ms. Resendes will pick up the children from school on Fridays and return the children to school on Monday mornings. If Friday is a holiday or educational day, access will begin on Thursday after school. If Monday is a holiday or educational day, the children will be returned to the school on Tuesday morning.

When school is not in session, Mr. Randall will return the children to Ms. McClellan on Sunday evenings at 6:00 p.m. after alternate weekend access. The reason why access is not extended to Monday mornings as it is when school is in session, is because Mr. Randall cannot be trusted to reliably return the children to Ms. McClellan at a given hour on Monday mornings. The children need to be returned Sunday evenings so Ms. McClellan will be able to execute her plans for Mondays without worrying where the children are.

3. When school is not in session, Mr. Randall or Ms. Resendes will pick up the children on alternate weekends from Ms. McClellan's residence at 5:00 p.m. Fridays and Mr. Randall or Ms. Resendes shall return the children on Sunday evening at 6:00 p.m. to Ms. McClellan. It is the responsibility of Mr. Randall to do access exchanges; not Ms. McClellan nor Mr. Greczi. Mr. Randall may delegate his responsibility to Ms. Resendes.

Mr. Randall was quite wrong in his interpretation of the wording in the temporary orders of 15 July 2009. When the orders said the times for access exchanges may vary depending on the circumstances of the parties and the children, that did not mean that Mr. Randall could appear whenever he wished. No, the orders set times for access exchanges that were intended to be honoured all the time. There should only have been changes in access exchange times in extraordinary and unusual circumstances or when the parties agreed in advance and after mutual deliberations occur.

There have to be consequences to Mr. Randall's cavalier attitude to attending for access exchanges whenever he liked. The following order will issue:

4. If Mr. Randall or Ms. Resendes is thirty minutes late in attending to pick up the children from Ms. McClellan's, Ms. McClellan may cancel the access and there will be no makeup access.

5. Access exchange times are intended by these orders to be precise. Any difficulties in Mr. Randall's schedule will not affect access exchange times.

Neither Ms. Bradley nor Mr. Randall in their submissions made specific requests about access for holidays or special occasions. I believe the parties were able to make arrangements but Mr. Randall did not want to admit it. Therefore the following order shall issue.

6. The parties shall share school vacations for Christmas, March break and summer.

7. Orangeville police and O.P.P. are ordered to require Mr. Randall to return the children to Ms. McClellan at the times specified in paragraph 3 herein.

Regarding child support, there is a temporary order dated 28 April 2010 by Justice Budgell that required Mr. Randall to pay child support of $400. a month from 1 May 2010. That order was based on Mr. Randall's admitted annual income of $26,800. and the old Guidelines for two children required Mr. Randall to pay $400. a month. I was not asked to do anything about that order, so it will remain extant until this new order applies. Mr. Randall admitted to earning cash weekly of $500. to $800. In his submissions, the applicant wrote, "as of Tuesday January 7th 2012, I have become gainfully employed". Very conveniently for Mr. Randall, he failed to state his income. The court finds it appropriate to fix the applicant's income at $41,600. a year which is based on his acknowledged weekly earnings of $800., that is at the higher end of his expected earnings on a weekly basis.

8. Final order for Mr. Randall to pay $607. a month child support from 1 January 2012 and regularly monthly thereafter. Payments to the Family Responsibility Office. Support deduction order to issue.

This order is based on an annual imputed income to the respondent of $41,600. and the Guideline amount in the new tables for two children is $607. a month.

9. Mr. Randall is required to pay one-half of the children's special expenses.

10. Ms. McClellan will sign such consents, directions or authorizations to the children's teachers, school authorities, dentists, physicians, counsellors or care providers, for Mr. Randall to receive the same information about the children that Ms. McClellan can obtain.

11. At any time, without the consent signature or permission of Mr. Randall, Ms. McClellan may:

(a) obtain and retain passports for the children, and (b) remove the children from Ontario or Canada for vacation purposes, provided Ms. McClellan gives Mr. Randall an itinerary and contact points where Mr. Randall may reach the children, and provided there is makeup access.

[171] Ms. Bradley's Submissions made no requests for orders, other than to request sole custody.

[172] Mr. Randall's Submissions also only sought sole custody. His Submissions contained new allegations against the respondent which I did not consider, because they did not arise at trial. They also included erroneous statements from the court's findings of fact and they offered further inappropriate conjecture from Mr. Randall. The applicant demonstrated in his Submissions that he was again relying on Jasmine's words in the formulation of his beliefs. As I repeatedly remarked, this is a dangerous thing for Mr. Randall to do because in the past, it lead to completely unnecessary and harmful (to the children) involvement with police and the Society.

[173] I waive approval of these orders by the applicant to be taken out by Ms. Bradley.

[174] Any request for costs must be served on the other side and filed in court in Orangeville by 16 March 2012.

[175] Any Reply to a request for costs must be served on the other side and filed in court in Orangeville by 30 March 2012.

Released: 16 February 2012

Justice P.W. Dunn