Court File and Parties

Court File No.: 147/05 Date: April 24, 2013 Ontario Court of Justice

Between:

E.M.A. Applicant

— AND —

N.A.M.P. Respondent

Before: Justice R. Zisman

Heard on: March 19 and 21, 2013

Reasons for Judgment released on: April 24, 2013

Counsel:

• Eugene Bhattacharya, for the respondent
• E.M.A., on her own behalf
• No appearance by or on behalf of J.G., even though served with notice

Zisman, J.:

Introduction

[1] This is a motion by the respondent, N.A.M.P. ("mother") to change the order of Justice Fisher dated April 27, 2005 and the order of Justice Maresca dated December 22, 2005 to grant her custody of the children namely, M.G.1 born […], 2000, T.G. born […].2001 and M.G.2 born […], 2005.

[2] The children are currently in the custody of the applicant, E.M.A., who is their paternal grandmother ("grandmother").

[3] The motion proceeded by way of a trial. In support of the mother's case, the mother and her current husband G.D.Y. testified and in support of the grandmother's case, the grandmother and her son P.S.G. and her daughter Y.M.G. testified. Roy Reid a clinical investigator with the Office of the Children's Lawyer also testified and his report dated May 9, 2012 was filed as an exhibit.

Background

[4] The mother is currently 38 years old. She met J.G. ("father") in 1997 when she was 22 years old while she was working as an exotic dancer. They began to date and shortly thereafter began to live together. The mother was aware the father was involved in drug dealing.

[5] Prior to the birth of M.G.1, the mother and father moved into the residence of the grandmother. They moved in and out of that residence from time to time.

[6] The relationship between the mother and father was volatile. During the relationship the father was arrested and incarcerated several times for drug related offences and various other offences.

[7] The mother permanently separated from the father in July 2005 after being assaulted by him.

[8] In 2004, the mother was charged with impaired driving causing death and dangerous operation of a motor vehicle causing death. She was released on bail and resided with the father. During this time she became pregnant with M.G.2 and began to use crack cocaine with the father.

[9] In early 2005, the children's aid society became involved and the children were placed in the temporary care and custody of the grandmother.

[10] On April 27, 2005 the grandmother obtained custody of M.G.1 and T.G. with no access to the either parent without further court order. Neither the mother nor father attended court.

[11] On December 22, 2005 the grandmother also obtained custody of M.G.2. The mother was granted access as agreed upon between herself and the grandmother.

[12] On April 12, 2006, the mother pleaded guilty to the charge of dangerous driving causing death and received a sentence of 2 years and probation for 3 years. She was required to do 100 hours of community service and banned from driving for 10 years.

[13] The mother was released on parole in December 2006 and remained in a half-way house from 2006 to 2008.

[14] In 2007, the mother commenced a motion to change to obtain access to the children. On a temporary basis, she was granted supervised access but as she failed to exercise access, her motion to change was dismissed.

[15] The mother commenced this motion to change requesting supervised access as the outstanding order did not permit her any access without further court order.

[16] At the first appearance on May 4, 2011 the parties agreed that the mother would have reasonable access at the sole discretion of the grandmother and that initially the access would be exercised in the grandmother's home and that the mother would also have telephone and computer access to the children.

[17] On August 11, 2011, the parties agreed that the mother have access on alternate Saturdays for 4 hours with pick up and drop at the supervised access centre and that the access was to be exercised at specified places in the community. An order was also made appointing the Office of the Children's Lawyer.

[18] At the case conference on May 11, 2012 the parties executed temporary minutes of settlement consenting to an order in accordance with the recommendations of the Office of the Children's Lawyer with some minor changes.

[19] At the court attendance on May 28, 2012 the grandmother's motion to set aside the consent order made May 11, 2012 was dismissed. On a temporary basis, the mother's access was specified to be on alternating week-ends from Friday to Sunday and the mother's access was to be reviewed at the next court attendance.

[20] On August 3, 2012 the temporary order for access to the mother was increased to three week-ends out of four.

[21] The matter was then adjourned to a trial management conference on October 31, 2012. At the trial management conference before me, counsel for the mother was clear, both in oral representations and in his trial management conference brief, that the mother was seeking custody of the children. It was the grandmother's position that she retain custody of the children and that the mother have supervised access.

[22] Trial dates were set for the week of March 18th, 2013. In view of the passage of time since the Office of the Children's Lawyer report of May 9, 2012 and the interviews of the children in January and February 2012, I requested that the children be interviewed again by the Office of the Children's Lawyer so that the court would be aware of the children's more recent views and preferences.

Summary of Relevant Evidence Regarding the Mother

[23] The mother was born in Alberta and completed high school there. She was married at 19 years old and separated within a year. She then began to work as an exotic dancer and upon moving to Ontario continued to work as an exotic dancer and then met the father.

[24] She testified that her relationship with the father was abusive and controlling. They did not have a stable relationship or a stable residence. She testified that he was in jail several times and in jail for almost two years between 2002 and 2004 and other times he was "running around".

[25] She testified that prior to her relationship with the father she only used drugs recreationally but then began to use drugs with him. Although she testified that she did not use drugs when she was pregnant with either M.G.1 or T.G., she admitted that she was using crack cocaine with the father at the time she became pregnant with M.G.2 and continued to use drugs during her pregnancy.

[26] The mother acknowledged that by August 2004, the time she was criminally charged as a result of the motor vehicle accident, she was a "mess" and not in any way able to parent her children. M.G.1 and T.G. were in the care of the paternal grandmother and M.G.2 was apprehended by the children's aid society at birth and placed with the grandmother. She was not seeing the children and she was not seeking treatment for her drug addiction.

[27] The mother testified that she has not used any drugs since 2005 except one last time just before her sentencing on April 11, 2006 and has not used drugs since that time.

[28] The mother was incarcerated from April 2006 to December 2006 at Grand Valley Institute. She testified that she took every treatment program available and was then released on parole and remained on parole for twenty months followed by probation for three years.

[29] She acknowledged that upon her release from jail in 2006 she was still "screwed up". She was in a halfway house and though released but she returned as she felt she needed more supports. She used the supports and assistance of her probation officer and other community resources. She was regularly tested for drug use and all tests were negative.

[30] The mother explained that she commenced a motion to resume access to the children in 2007 while she was still at the half way house. Although she was granted supervised access she failed to consistently exercise access and the access was terminated by the supervised access centre. She explained that she was very stressed out at the time as she was in the midst of civil litigation arising from the death of the passenger in the motor vehicle accident she was involved in. She realized that she needed to straighten out her life before she could resume a relationship with her children.

[31] In 2008, the mother returned to school and graduated from S[…] College with honours in 2010 with a Community Development and Outreach diploma. She completed courses in addiction, mental health and concurrent disorders, domestic violence and harm reduction. As part of her community service order, she began to volunteer at a church and eventually this led to a part-time paid position. She also spoke to various youth groups about her experiences and continues to be actively involved in various outreach programs.

[32] The mother commenced this motion on February 17, 2011. She explained that she waited to commence this motion and only sought supervised access initially as she knew that based on her history she would have to prove to the court and the grandmother that she had changed, was now drug free and capable of being a responsible parent. She testified that she had a lot of guilt regarding her children and the fact that she had killed someone.

[33] Although the mother had not seen the children since 2008, the father and paternal uncle had been letting her speak to them. Also M.G.1 and T.G. had found her on Facebook and she had been communicating with them so she was aware they were interested in resuming a relationship with her.

[34] The mother readily admitted that in the past she was not capable of caring for her children. But she now feels that she has taken numerous positive steps to change her life and is in a much healthier place and able to provide care for her children.

[35] When cross-examined by the grandmother, the mother admitted that she had not registered either of her daughters' statement of live birth and she should have done so. When the grandmother persisted in questioning or more accurately telling the mother that she had neglected to register the children's statement of live birth, the mother readily agreed again that she had not done so; she should have done it and agreed that the grandmother was then required to register their births.

[36] In cross-examination, the mother also expressed her appreciation and thanks to the grandmother for everything she has done over the years for the children. However, she stated that she was now capable of being a parent to her children, that she wants to parent them and that they deserve to be in a less toxic environment.

[37] When asked by the grandmother how it would make her feel for the children to be removed from her care, the mother replied that she knew exactly how it would feel as she had lived "with a hole in her heart" and that it was not that she wanted to take the children away from their grandmother but that she wanted them to live with her. She testified that she would ensure the children had an ongoing relationship with her.

Mother's Plan of Care

[38] The mother wishes the children to reside with her and her husband in the Brampton area. She submits that the transition of the children into her care should take place after they finish their school year this June.

[39] The mother has recently obtained a new full-time position as an assistant and consultant to a lawyer who deals with many clients with addiction and mental health problems.

[40] The mother has been involved in a stable relationship with G.D.Y. for about five years. They met through a church group. G.D.Y. was also a recovering addict. They have lived together for the last several years. They were recently married on June 2, 2012 and the children were part of the wedding.

[41] G.D.Y. described his role as supporting the mother. He testified that he was not fortunate enough to have any children of his own and feels blessed that he can be part of the lives of the mother's children and considers them his own. He described a close and affectionate relationship with the children. He also noted that when the children are at their home they do not have any problems with the children.

[42] He is currently in receipt of a disability pension as he suffers from post-traumatic stress disorder as a result of his counselling work with patients afflicted with HIV/AIDS. He is working with his psychiatrist and is optimistic that he will be able to return to work shortly. In the interim, both the mother and Mr. G.D.Y. testified that they have reviewed their finances and prepared a budget and are confident that they have the financial means to support the children if they are placed in their care.

[43] The mother and G.D.Y. currently reside in a one bedroom basement apartment. Although this is fine for week-end visits, they readily conceded it is not suitable as a permanent residence for the children. They have spoken to a realtor and have been actively looking for alternate accommodations in the Brampton area where the mother is currently working. They have provided the realtor with the school boundaries and are looking for accommodations that are easily accessible by public transportation.

[44] The mother has researched suitable schools and has obtained all the necessary application and registration forms. The mother testified that she felt that the children would adjust to a new school as they easily make new friends. She would continue to invite the children's old friends to her home.

[45] The mother would continue to attend her current church with the children. The mother has many people from her church that assist her currently with the transportation of the children to and from access visits and she is confident that they will continue to offer her any support she needs.

[46] The mother has consulted with a doctor in Brampton who specializes in attention deficit disorders and he is taking new patients. She would consult with the children's current family doctor and psychiatrist to arrange an appropriate transition. She will arrange for appropriate counselling as needed for the children.

[47] The mother wishes the children to maintain a relationship with their grandmother and would not interfere with that relationship. She was not sure about the children's relationship with their father. Although she knows he loves them she would want to be certain the children were safe with him.

[48] The mother does not believe that she and the grandmother will be able to co-parent in any meaningful way.

Summary of Relevant Evidence About the Grandmother

[49] The grandmother was born in Jamaica on […], 1942 and will be 71 years old shortly. She came to Canada is 1962. She was married to the paternal grandfather for eight years and they had a child who died in 2010 as a result of a violent incident. She had three other children, including the biological father. She described raising her children as a single parent. Her son P.S.G. lives in the basement of her home and her daughter lives in Brampton. She seems to have some sporadic contact with the biological father but testified that she does not currently know his address.

[50] The grandmother was employed in a number of jobs and upgraded her education throughout her life. She worked as an insurance adjuster, an insurance broker, an administrative assistant, a personal support worker and a cafeteria helper. She is currently retired. She owns her own three bedroom home. She has made financial plans for the children's future including setting aside funds for their education and obtaining life insurance policies for them and on her own life.

[51] The grandmother described how she has taken care of the children since they were abandoned and neglected by the mother in 2004. She has met all of their needs and they are currently in a stable environment.

[52] The grandmother outlined the difficulties the children have and how she has arranged for counselling and medical treatment for the children and that she has attended parenting classes. She is in the process of arranging some family therapy for herself and the children.

[53] The grandmothers described how the children fight between themselves and are disrespectful and swear at her. She described M.G.1 as very aggressive, angry, argumentative and emotional. M.G.1 has been under the care of Dr. Bakht, a child psychiatrist, since she was ten years old. Various medications have been prescribed for her anxiety, depression and attention deficit hyperactivity disorder. There is a possibility of her suffering from a merging bipolar disorder. T.G. is also on medication for an anxiety disorder. The grandmother testified that M.G.2 has also had problems since he was very young but until he was seven years old he but he was too young to put on medication or go to counselling. He was put on medications for a few months by Dr. Bakht. As Dr. Bakht left practice, the grandmother sought a new referral and recently appointments were obtained for the children. Further counselling was also recommended which the grandmother was pursuing.

[54] The grandmother denied that she has ever inappropriately used physical discipline on the children despite the fact that physical abuse had been verified by the children's aid society in December 2009. She alleged that someone told the children to say these things. She was aware her son P.S.G. had called the children's aid society to report his concerns but alleged that he did so because she had thrown him out of her house and that he has mental health problems and hears voices. When P.S.G. testified he confirmed he called the children's aid society because he was worried about the family dynamics and felt his mother and the children needed help. He had a lot of concerns about M.G.1 and the verbal abuse that was going on in the home.

[55] The children's aid society was again involved in February 2010. P.S.G. testified that he did not witness any physical abuse but acknowledged that M.G.1 did tell him that the grandmother put her knuckles against her head and punched her. At that time, physical abuse was not verified by the children's aid society but concerns about abandonment and issues with the grandmother's caregiving capacity were verified and an ongoing file was opened. The grandmother worked co-operatively with the society, attended counselling and addressed the children's mental health issues. The file was subsequently closed in February 2011.

[56] There was a further report in July 2011 about concerns regarding the grandmother's treatment of M.G.1 and the fact that M.G.1 was saying that she did not want to live anymore. It was determined there were no protection concerns. The grandmother agreed to resume counselling and the file was again closed.

[57] The grandmother admitted that the mother appeared to be trying and was doing pretty well now and she had no concerns about her lifestyle. The grandmother did not raise any concerns about the mother's consistency in exercising access. However, she testified that she still had some concerns about the mother using drug as the mother had not provided her with any drug test results. The grandmother was also concerned that the mother's living accommodations were not suitable for the children.

Grandmother's Plan of Care

[58] The grandmother proposes that the children continue in her care. The children would continue to attend their same school where they are doing well. They would continue to have the same friends, attend the same church and remain in their neighbourhood.

[59] The grandmother has arranged for a new psychiatrist for the children and has arranged for further counselling.

[60] The grandmother has the support of her son P.S.G. who continues to live in the basement of her home and her daughter. Both testified that they have no particular problems communicating with the mother and are prepared to assist if there are problems between the grandmother and mother making arrangements between themselves.

[61] The grandmother did not report any health problems. However, in the Office of the Children's Lawyer report there is a reference about her family doctor reporting that he had some concern that there may be some cognitive impairment but that it would need to be confirmed by a referral to a specialist. When cross-examined about this, the grandmother became quite agitated and stated that her doctor never told her this, that there had not been a referral to a specialist and that counsel should not look at her and say that she has any cognitive impairment.

[62] If the children continue to reside with her, the grandmother initially stated that the mother should revert to having only supervised access, then she said that the access pick up and drop off should return to the access centre. When cross-examined about why it was her position that the mother have supervised access after she admitted that the mother was doing well and had changed her lifestyle, the grandmother became very confused. She seemed not to understand that the mother was asking the court for custody of the children, kept repeating that the mother was only asking for supervised access and then finally stated that she was not asking for the mother to have supervised access.

[63] The grandmother was not forthcoming with respect to the father's access to the children. When cross-examined about this, she answered that she told him to stay out of the court proceedings as the mother was telling lies about him and that she was not going to give any more information about him. Although she did say that when he has access to the children she is always present.

Report and Evidence of the Office of the Children's Lawyer

[64] Roy Reid, the clinical investigator assigned to this case prepared a report that was filed as an exhibit in this proceeding. Neither party took any issue with his factual findings.

[65] Mr. Reid observed the children with the mother during which time she was only having access to the children for 4 hours on alternate Saturdays that was exercised in the community. His observation was conducted at the Burlington Mall. He reported that the children and their mother were affectionate and holding hands. He observed that the children responded to the mother's directions. They often smiled and appeared happy and enjoyed the time talking and walking with their mother through the various stores in the mall.

[66] When Mr. Reid observed the children in the home of the grandmother, he noted they were exuberant and loud. He observed that M.G.2 and T.G. played boisterously and at times displayed a loving relationship and at other times would make fun of each other or provoke each other. When M.G.2 became upset, he would scream and the grandmother would admonish his sisters. M.G.1 was critical of her grandmother and often made negative comments about her.

[67] Mr. Reid subsequently interviewed the children at their school. M.G.1 was upset that her grandmother had taken away the Christmas presents given to her by her mother. She stated she was seeing a counsellor because her grandmother thinks she is "mental" but she is not, that her grandmother treats her "like a pile of crap" and is not respectful of her feelings. M.G.1 stated that she feels like running away at times. M.G.1 told Mr. Reid that she has told her grandmother not to talk about her mother's past but she continues to do so and it makes her feel sad and upset. M.G.1 said she is argumentative and rude to her grandmother because she is frustrated with her and that is why she acts out. She was clear that she simply wanted to go live with her mother.

[68] T.G. also expressed some upset that her grandmother took away some Christmas gifts given to her by her mother. She also expressed that she is going to counselling because her grandmother feels she is "mental" but she is not "mental or hyper". She noted that she did not get into trouble at school or home but that her sister and brother are often argumentative with her grandmother. She wished to spend more time with her mother. She expressed that she struggles with her feelings that she would like to live with her mother but also loves her grandmother. But she did not like her grandmother's rules such as no sleepovers and does not like it when her grandmother yells at her.

[69] M.G.2 expressed that there were disputes between his grandmother and M.G.1. He also stated that his grandmother at times will tell him to "shut up" when he misbehaves. He stated that he would like to live with his mother because "she is nice" and his grandmother is not nice because she uses bad words. But then he said that he likes when his grandmother spoils him by taking him shopping and buying him things. M.G.2 told Mr. Reid that he goes to see a doctor and that his grandmother talks to the doctor about him and his sisters.

[70] All three children spoke about their father and their recollections of him. The girls had memories of him calling and singing to them at bedtime. They were also aware of him being in jail and of the grandmother revoking his bail. It is not clear how often the children see their father although based on the grandmother's evidence it appeared that this does occur from time to time.

[71] Mr. Reid summarized his conclusions at pages 17 and 18 of his report as follows:

The history of this case and the history between the children, their mother and their grandmother indicate that there has been substantial conflict and it has been heightened during the recent past. E.M.A. had taken on the role beyond that of a grandmother and became the children's primary caregiver following their mother's incarceration and failure to comply with the recommendations put forth by the Children's Aid Society following her discharge from custody. E.M.A. has experienced a number of challenges since taking on the role of parenting the children. This was documented in the report received from the Children's Aid Society of Halton. It is clear that E.M.A. has been trying to parent the children under very difficult circumstances. In particular, this has been even more challenging due to the acrimonious relationship between M.G.1 and her grandmother. E.M.A. continues to express concerns about N.A.M.P... Many of those concerns; however are historical in nature; concerns about N.A.M.P.'s drug use and lifestyle were not evident during the course of this investigation. However, E.M.A.'s continues to harbor feelings of mistrust towards N.A.M.P... As a result, while she does support the children rebuilding their relationship with their mother, she continues to express the view that the contact with N.A.M.P.. should be supervised. She also stressed that any substantial contact between the children and their mother needs to occur at a pace that she feels is manageable for the children. It is unfortunate that the conflict between E.M.A. and N.A.M.P. continues to leave the children feeling torn. N.A.M.P. acknowledged having lived a life that was self destructive, not only to herself, but in particular to her children. She voiced that her past behaviour has caused substantial harm to herself and also to her children. She emotionally expressed that those "mistakes" that she has made in the past are in the past. She has taken steps to rebuild her life but also the child/parent relationship that has been harmed due to her past behaviour. N.A.M.P. is now in a stable relationship. She has now secured employment and is also in a stable residence. This investigation did not find any evidence that N.A.M.P. is engaged or has recently engaged in the destructive behaviour that has been a part of her history. The information received from a number of collaterals that have been involved with her in the past and currently, reports that she has made substantial changes in her life towards the betterment of herself and to rebuilding her relationship with her children. N.A.M.P. feels that she is now ready and able to be the parent to her children she was not previously. It is thus the writer's view, that she should have the opportunity to rebuild her relationship with her children; however it is very clear that rebuilding cannot take place within the confines of the access arrangements that are currently in place. M.G.1, T.G. and M.G.2have experienced significant turmoil in their young lives. They have been fortunate to have a grandmother who has for the past seven years been supportive and worked diligently to parent them, despite the fact that their mother and their father were not present to parent them. It was clear however, that continuing to have the children reside with their grandmother without planning for their future would be short sighted as E.M.A. may not be able to continue to provide care for the children on a long term basis. The children will need to begin to establish a relationship with their mother that goes beyond a couple of hours, every other Saturday. Steps should be taken to rebuild the relationship with the children and their mother, to a point where the children will eventually be able to have expanded access with the mother, including overnight access. This will be a challenging task, one that required due diligence and careful planning in order to ensure that this happens in a manner that is respectful to the relationship that the children have established with their grandmother but also allows for the grandmother to continue to remain a part of the children's lives and for their role [mother] to begin to play a more integral role in their lives.

[72] Mr. Reid recommended that the grandmother retain sole custody of the children and that after a year, the current custodial arrangement be reviewed with steps taken towards a joint or shared custodial arrangements and that the Office of the Children's Lawyer prepare an updated report. He further recommended that the mother's access be expanded to alternate week-ends, access during the week or alternatively three week-ends each month and that the parties co-operate to adjust the schedule to accommodate any special requests.

[73] He recommended that the mother complete randomized drug tests for the next year and share the results with the grandmother.

[74] He made many specific recommendations regarding the sharing of information between the grandmother and mother, that the mother have access to all educational and medical records and the right to meet with all professionals, that the mother be permitted to attend the children's parent/teacher meetings, extra-curricular activities and be available to consult with the children's educational staff and other specialists. He recommended that the grandmother and mother engage in therapy with the children to ensure that they are learning appropriate co-parenting techniques.

[75] Mr. Reid further stated in his recommendations that it was in the children's best interests that despite any ill-will or hostility by the mother and grandmother towards each other that these feelings not be made known to the children; that they respect and recognize that each of them is a role model for the children and that they should exert their best efforts to work co-operatively with each other in future plans consistent with the children's best interests and welfare.

Events Subsequent to the Office of the Children's Lawyer Report Dated May 9, 2012

[76] The mother and grandmother have not been able to accommodate special requests regarding access arrangements:

• The mother requested keeping the children for the Monday of the Thanksgiving weekend, the grandmother refused as the court order only provided access until Sunday
• The mother accommodated the grandmother's request for a weekend so that the family could go to Great Wolf Lodge but when the mother gave up a weekend because of a winter storm the grandmother did not offer her a make-up weekend

[77] The grandmother has not included the mother in the children's special events, education or medical appointments or shared information:

• The grandmother would not permit the mother to attend T.G.'s baptism despite T.G.'s request and then in her testimony minimized the importance of this event
• The grandmother did not invite the mother to attend the parent teacher meeting and then minimized its importance
• The grandmother did not initially give the mother the children's report cards but eventually provided them
• The grandmother did not invite the mother to the appointment with Dr. Cadman, the children's new psychiatrist
• The grandmother did not advise the mother of the children's appointment at ROCK for counselling or invite her to attend
• The grandmother took the position that she advised the mother of information about the children in correspondence sent to her counsel but as the custodial parent she should be the first to attend all medical and counselling meetings

[78] The parties have not been able to improve their ability to co-operate and respect each other's role in the children's lives:

• The grandmother testified about an incident in December 2012 when the mother walked the children to her porch and when she refused to take the juice boxes from her, the mother became very angry and told her she was sick and needed to see a doctor; the mother never denied this incident
• No counselling between the grandmother and mother has occurred with each blaming the other; the mother alleges that the grandmother insists on always bringing up her past and demeans her and that they cannot have a civil discussion; the grandmother stated that she offered to go to mediation and the mother refused
• The grandmother admitted that she told M.G.1 that she is just like her mother, that her mother abandoned and neglected them
• Both the grandmother and mother allege the other is talking to the children about the trial

Views and Preferences of the Children

[79] Mr. Reid interviewed the children again prior to the trial. He met with them on March 9, 2013 when the mother brought them to his office and met them again at the grandmother's home on March 11, 2013. He met with each child individually and privately. He told them why he was meeting with them.

[80] Mr. Reid testified that M.G.1 was happy to meet with him and very tearful and emotional. In his opinion she was a typical 12 year old but she is the child most impacted by the conflict between the mother and grandmother. In his opinion, she was not being unduly influenced or under duress and was capable of providing clear wishes.

[81] M.G.1 said she was in Grade 7 and doing well in school. She stated that she wishes to reside with her mother. She stated that her mother is kind and generous and does not yell. She stated that her grandmother calls her "mental", compares her in a negative way to her mother and tells her she will end like her mother. She stated that her grandmother is very negative and difficult to live with. She had considered that she had made good friends and would miss them but nevertheless wanted to live with her mother. She also stated that even if she needed to be separated from her siblings she still wanted to live with her mother and would want to see her siblings.

[82] Mr. Reid advised that after the interviews, he received an unsolicited telephone call from M.G.1 on Friday March 15 th . She was upset that her grandmother took her to a new doctor and had shared with the doctor her wish to live with her mother and then was questioned about her views by the doctor. She was upset at both her grandmother and the doctor.

[83] Mr. Reid expressed that T.G. was articulate but not as tearful or emotional as M.G.1. He described her as a typical 11 year old, very articulate and vibrant but like an "old soul". She is introspective and like her sister caught in the conflict between her grandmother and mother.

[84] T.G. is in Grade 6 and also doing well in school. She expressed that she enjoys access at her mother's home but misses her friends and attending events like birthday parties and would prefer access on alternate week-ends. She stated that she gets along pretty well with her grandmother but she sometimes yells and talks about her mother and tells her that she should be thankful that she raised her rather than being taken to the children's aid society. She said that if her mother had not left them, they would not be living with her. She repeated that her grandmother says that she has raised them since her mother left them. She did not want to make either her mother or grandmother sad. She wanted to live with her grandmother because all her friends are there and she was worried about being safe in Brampton because of all of the shootings. She struggled with her grandmother not allowing her any sleepovers which she is allowed at her mother's home. She did not explain why she had changed her mind since the first interview about living with mother. She did not express any concerns about her moving with her mother except missing her friends and that her grandmother had cared for her. She wished her mother would move closer and they all got along.

[85] M.G.2 is almost 8 years old and in Grade 2. He reported that he is doing well in school. He stated that he likes his grandmother's home as his friends are there but he does not like his grandmother yelling at him or his siblings. He also stated that he did not like it when his grandmother yelled at his mother and he is sad that they don't have a get along. Although he described some physical discipline by the grandmother Mr. Reid testified that the context was not clear and it could have been historical. M.G.2 explained that he does not misbehave at his mother's home but that at his grandmother's home he throws things. He explained that at his mother's home, he says in his head that he shouldn't throw things so he doesn't. Mr. Reid explained that M.G.2 is able to manage his feelings and able to express himself differently at his mother's home. Mr. Reid testified that he saw a difference in M.G.2 over the year he had last met with him as he was calmer and more insightful now. M.G.2 told him that it would be nice if he had someone to talk to about his feelings. In these recent interviews, when asked about his wishes he did not mention living with either his grandmother or mother. Instead he wished that his grandmother would buy him more things, his grandmother would be nice all of the time and that he would see his father. He said that he would be happy if he lived with either his grandmother or mother.

[86] Mr. Reid further testified that all three children were caught in the conflict between the mother and grandmother and they all wanted the conflict to be over. They were all aware that there was a trial and that the judge would make a decision. By far M.G.1 was the most distressed and effected by the conflict.

[87] Mr. Reid testified that he only met with the children and did not do an update as contemplated in his report. When questioned by myself as to what further information, steps or issues he would investigate, Mr. Reid indicated he would update the information from the collaterals such as the school, doctors or other professionals, he would observe the interaction of the children with the mother's husband, he would review drug tests by the mother to confirm she has remained drug free, he would follow up with concerns about the grandmother's cognitive functioning, he would confirm if the mother had appropriate accommodations and generally obtain a more fulsome picture of what had transpired over the year including the nature of the relationship between the mother and grandmother.

Analysis

[88] All decisions relating to custody and access of children, including where children should reside, are determined solely by what is in the best interests of children. Considerations of conduct that do not relate to a parent's ability to act as a parent always takes second place to the best interests of children.

[89] Section 24 (2) of the Children's Law Reform Act enumerates a number of the factors to be considered, along with the needs and circumstances of the children, in determining what is in the best interests of children. Section 24(2) provides as follows:

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 .

[90] The person's past conduct is not relevant unless it impacts on the person's ability to act as a parent. Further, in considering a person's ability to act as a parent, the court is required to consider whether the person has at any time committed violence or abuse. Sections 24 (3) and (4) provides as follows:

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) .

[91] In reviewing the evidence and making findings of fact with respect to my determination of what parenting arrangements are in these children's best interests, I have considered all of these factors. I will review the considerations that are most relevant to this case.

[92] Much of the grandmother's focus throughout this case, in her cross–examination, the questions she asked her own witnesses and her own evidence, relate to the mother's past conduct. It is not disputed that in the past the mother's drug use, transient lifestyle and the exposure of her daughters' to domestic violence in her relationship with the father made her unable to parent. Further, the mother's incarceration made her unavailable to parent her children. The mother pleaded guilty to a very serious criminal charge of dangerous driving that resulted in the death of an innocent person but it is not a crime that involved violence or abuse towards another person. The mother accepted responsibility and is remorseful for her crime. She has worked extremely hard to educate and rehabilitate herself. She has volunteered her time to educate youth in the community so that they do not make the same mistakes she made. I find that her past conduct is not relevant to her present ability to parent her children.

[93] Unfortunately the grandmother is simply not able or willing to let the past go, she has repeatedly told the children that their mother abandoned and neglected them with no thought or insight as to how this might impact on them. Apparently, despite being asked by M.G.1 not to continue to talk about their mother in this negative fashion she still continues to do so. It is telling that she does not seem to hold her son to the same standard as there was no evidence that she told that children that their father had also abandoned and neglected them.

[94] I have considered that the Office of the Children's Lawyer report recommended that the mother provide random drug testing results and that she has not done so. However, from 2006 when she was released from prison she was subject to random drug testing and thereafter she was subject to a three year probation order. There is no evidence that there were any positive drug tests during this time and since then there is no indication of any drug use. Although it may have been preferable for the mother to have undergone random drug tests or provided some proof of a negative drug test, I do not find that there is any basis to conclude that there is a risk that the mother is now using illegal drugs.

[95] I find that the children love both their grandmother and mother and that both the grandmother and mother love the children. It is interesting to observe that despite the number of years that the mother was not involved in the children's lives they have developed a strong attachment to her.

[96] The grandmother has been able to provide for all of the children's physical needs and necessities of life. She has ensured that their educational needs are met. All of the children appear to be attending school regularly, enjoying their schooling and meeting all academic expectations.

[97] However, the grandmother seems to have had many difficulties dealing with the children's emotional needs. Each of the children has reported concerns about their grandmother yelling at them. There was a verification of inappropriate physical discipline by the children's aid society and several incidents that required the involvement of the children's aid society. The grandmother's own son was concerned enough about the family dynamics that he called the society. I have considered that the grandmother always co-operated with the suggestions for interventions such as arranging counselling for the children, attending parenting classes and arranging for and following the treatment recommended by Dr. Bahkt, the children's psychiatrist and that she has now arranged for new psychiatrist.

[98] However, there is a distinct difference between obtaining treatment for a child's emotional needs and having an insight and understanding of those needs. Both M.G.1 and T.G. have repeatedly alleged that their grandmother calls them "mental". Although the grandmother denies ever calling them this, I reject her evidence. Both girls have been consistent over the span of the year between the interviews by Mr. Reid that this is what their grandmother calls them and they have no reason to lie about this. M.G.1 has also stated several times that her grandmother hurts her when she compares her to her mother and when she makes disparaging comments about her mother. What is even more disturbing is that the feelings of both M.G.1 and to a lesser extent T.G. about how their grandmother acts towards them, what she says and the effect on them were all in the report of Mr. Reid and yet a year later it does not appear that the grandmother changed her behaviour or attitude. I find that the grandmother does not have the ability to meet the children's emotional needs and in a particular her lack of understanding of M.G.1's emotional needs is a significant and troubling concern.

[99] The mother has shown that she has the ability to regulate the children's behaviour. Mr. Reid observed that when the children were walking with their mother in the mall, they listened to her and were respectful of her. Despite the limited contact the children, at that point in time, had with their mother it is important to note that they behaved much better with their mother than when Mr. Reid observed them with their grandmother. M.G.2 told Mr. Reid that he controls his temper at his mother's home whereas he is not able to do this at his grandmother's home. Neither the mother nor her husband testified that they had any problems with the children's behaviour during the access visits. I accept their evidence as it is consistent with the statements made by the children to Mr. Reid and his own observations.

[100] Despite the fact that the mother has had limited opportunity to be involved with the mental health professionals involved in the children's lives, I was impressed by her evidence in that she had a good understanding of the emotional needs of the children, the difficulties they have had in their young lives and the effect on them of not being raised by either their mother or father. She expressed that it was important for them to have a safe and confidential place to discuss their feeling. Her own educational background has also provided her with the ability to not only understand their needs but also to be able to access the proper community and professional supports to assist them.

[101] I also find that the grandmother lacked the insight to understand the importance for the children to see that the grandmother and mother were getting along and that their grandmother was prepared to include their mother in their lives. Despite the recommendations of Mr. Reid that it was important for the grandmother to include the mother in the children's activities, educational and medical issues, the grandmother did not permit the mother to attend T.G.'s baptism or the parent/teacher interviews or attend the medical appointment with the children's new psychiatrist.

[102] I find that the grandmother has squandered every opportunity she has had over the last year since the Office of the Children's Lawyer report was released to show that even if the children remained in her primary care, the mother would be an important part of the children's lives.

[103] I have some concerns about the grandmother's cognitive abilities. In the Office of the Children's Lawyer report this concern was raised by the grandmother's family doctor. Although it is quite correct that the grandmother was under no requirement to follow up with her doctor or a specialist to provide proof during this trial that her cognitive abilities were not impaired, the grandmother's presentation during this trial raises those concerns for the court. Several times during the trial, the grandmother appeared not to comprehend that the mother was seeking custody of the children not supervised access. Several times during her questions and answers to questions she seems to lose track of the question or answer or could not focus. Some of her questions and answers were incoherent and rambling yet at other times she appeared to be able to properly focus on the issues. I have considered that the grandmother was self-represented and undoubtedly nervous about the court proceeding but nevertheless at times her presentation and inability to understand the nature of the proceedings was concerning. However, in view of the lack of any medical evidence I make no finding about the grandmother's cognitive abilities.

[104] I have considered that the children have lived in a stable environment with their grandmother for most of their lives and even though there have been some difficulties the grandmother has managed to meet their day to day needs. She has been willing to obtain services for them and co-operated with the professionals that have been involved. The grandmother's plan of care is to continue to meet the needs of the children as she has done in the past. Her plan has the advantage of permitting the children to remain in familiar surroundings, continue in the school in which they are doing well, maintain the friendships they have made and continue with community services and professionals that have an understanding of their background.

[105] The "status quo" custodial arrangements have always been regarded as extremely important in any consideration of a child's best interests as children require stability and consistency. There is a heavy onus on a party that seeks to disturb that status quo.

[106] In considering whether or not the mother has met this onus in this case, I find that the views and preferences of the children and in particular M.G.1's views deserve a great deal of weight. M.G.1's wish to live with her mother has been clear and consistent for over a year. She is a mature 12 year old that has considered the effect of moving that is, leaving her school and friends and has articulated well-thought out reasons why she wishes to live with her mother. Based on her strongly held views and the ongoing conflict between herself and her grandmother, I find that it would be detrimental to M.G.1's emotional well-being if she remained in her grandmother's care.

[107] In view of M.G.2 age and his neutral preferences that is, he is fine living with either the mother or grandmother, I put little weight on his wishes except to the extent that if he is required to move and live with his mother he will adjust easily.

[108] With respect to T.G.'s views and preferences, they appear to have changed over the year from a wish to reside with her mother to a preference to continue to reside with her grandmother. I have some concerns that the change in T.G.'s views may have been influenced as it is unusual for a child to speak about being worried about crime in Brampton where her mother lives. But importantly, T.G. has not indicated any concerns about her mother, she enjoys her access visits with her mother and her desire to remain in her grandmother's home is based on her wish not to leave her friends. I accept the mother's evidence that the children make friends easily and that she would facilitate the children's contact with their friends by permitting sleep-overs, something she is already doing. I also take a common sense approach that most adults have not maintained their friendships from Grade 6 and if the friendship is that strong it can survive the short distance between Burlington and Brampton.

[109] The children have a close and loving relationship with each other and it is generally in any child's best interests that siblings not be separated. I find that it would not be in these children's best interests to be separated from each other. In view of the strongly held views of M.G.1 and the more neutral views of the other children, this factor is significant in my determination that the status quo should be changed.

[110] The mother and her spouse have carefully considered and researched schools, doctors and other services that will be necessary to meet the needs of the children. They have analysed their financial abilities and I accept their evidence that they will be able to care for the children within their budget.

[111] However, at the time of the trial, they had not yet secured appropriate accommodations. Even though they were both confident that they could find a suitable residence within the school boundaries they had researched, the timing of a transition of the children into their care cannot be determined until there is proof that they have obtained new accommodations. Ideally this should be done no later than the beginning of the school year in September.

[112] This proceeding will be adjourned to June 13, 2013 for the sole purpose of the mother providing proof to the court that she has secured suitable housing so that the timing of when the children can be placed in her primary custody can be finalized.

[113] It was recommended in the Office of the Children's Lawyer report that the grandmother and mother transition into a co-parenting or shared decision making regime.

[114] The Court of Appeal in Kapalanis v. Kapalanis , [2005] O.J. No. 275 confirmed the principle that joint custody should not be awarded in the hope that the parties in the future, once the litigation is over, will be able to co-operate and make joint decisions in the best interests of their child. The court held that there must be some evidence before the court that, despite their differences, the parents are able to communicate effectively with one another. In that case, the Court of Appeal reversed the joint custody order of the trial judge as the parties attempted counselling which was unsuccessful in view of the "uncontrollable invective" exchanged by the parties. Further, there was little evidence that the father had a plan of care for the child who had not even spent overnights with him.

[115] On the same day, the Court of Appeal, released the decision of Ladisa v. Ladisa , [2005] O.J. No. 276 and upheld an order of joint custody where the father was actively involved with the children and cited several examples of the parents' co-operation with respect to the children's best interests.

[116] The Court of Appeal, in the following year, upheld a joint custody order even where there was a "pattern of considerable conflict" but there was evidence of competent parents who were able to co-operate regarding major decisions regarding their children. The Court held that even where there is a conflict or difficulties in communication, a joint custody order under a parallel parenting scheme with specific decision-making roles can be appropriate. (See Ursic v. Ursic , [2006] O.J. No. 2178.)

[117] Many subsequent cases have analyzed the level of conflict and the competency of the parents to determine if a joint custody order is appropriate. Each case turns on its unique facts and therefore the cases are not useful except in outlining the best interest test as being the primary purpose of the Children's Law Reform Act, and the importance of a child having maximum contact and involvement of both parents.

[118] I accept that the same principles apply here between the mother and grandmother

[119] Unfortunately based on what has transpired since the Office of the Children's Lawyer report, it is clear that these parties are simply unable to communicate or co-operate at the present time. They have not been able to agree to engage in counselling over the past year as had been recommended in the Office of the Children's Lawyer report. The grandmother has not included the mother in the children's school events or medical appointments. The parties have not even been able to co-operate regarding the access. For example, there have been ongoing accusations about problems during the access pick up and drop off, the grandmother has refused to agree to any extra access times for the mother and despite the fact that the mother does not drive the grandmother never offered to share in the driving. This history does not bode well for the imposition of a joint decision regime.

[120] However, based on the mother's evidence that she appreciates everything the grandmother has done for her children I expect that she will be able to be far more inclusive than the grandmother has been. I would expect that the mother will consult with the grandmother about any major decisions that need to be made, permit her to attend the important events in the children's lives and ensure that the children are able to participate in their paternal family's special occasions. Even if the mother is not able to make arrangements with the grandmother directly, both of the grandmother's children, P.S.G. and Y.M.G., testified that they had no problems communicating with the mother and would assist if a third party was needed with respect to making any arrangements or conveying information.

[121] It is important for the grandmother to understand that her role in parenting these children for most of their lives is not being disregarded or overlooked. It is clear from the evidence that the grandmother made many sacrifices over the years and done everything in her ability to ensure that the children's needs were being met. If the grandmother had not been prepared to assume care of the children, they would have been placed in the care of the children's aid society and it is very likely that they could have been adopted and forever lost to the mother. But at this stage in the life of the children and the life of the grandmother, it is in their best interests that the mother assumes her role as the children's primary parent and that the grandmother enjoys her role as their grandmother.

Order

[122] There will therefore be an order varying the orders of Justice Fisher April 27, 2006 and Justice Maresca dated December 22, 2005 as follows:

1. The respondent N.P. shall be granted custody of the children M.G.1 born […], 2000, T.G. born […].2001 and M.G.2 born […], 2005;

2. The children shall continue to reside in the home of the applicant E.M.A. until the last day of school in June 2013;

3. Upon the Respondent providing satisfactory proof to the court on June 13 th , 2013 that she has obtained suitable accommodations or providing proof of the date that those accommodations will be available, the date for the transition of the children's primary residence to the home of the respondent shall be determined;

4. Pending the children residing in the primary care of the respondent, the children shall continue to spend time at the home of the respondent three out of four week-ends in accordance with the court order of Justice O'Connell dated August 3, 2012 except that if any of the weekends is a statutory holiday the access shall be extended to Monday at 6:00 p.m.;

5. The parties shall share all of the driving for the access visits. While the children reside in the care of the applicant, the respondent shall be responsible for picking up the children at the beginning of each access visit and the applicant shall be responsible for picking the children up at the end of a visit; once the children are in the primary care of the respondent, the applicant will pick up the children at the beginning of each access visit and the respondent will pick them up at the end of each visit; the applicant and respondent will both remain in the car at the pick-up and drop-off;

6. Once the children are residing in the primary care of the respondent, the applicant shall have access for the first week-end of each month from Friday at 5:30 to Sunday at 6:00 p.m.to be extended to Monday at 6:00 p.m.

7. The parties shall keep each advised of any change in their address, telephone number, email address or any other contact information;

8. The respondent will consult with the applicant regarding any major decisions with respect to the children including but not limited to their education, health and religion; if the parties do not agree the respondent shall be entitled to make the final decision;

9. The respondent shall advise the applicant of the names and contact information of any professionals involved in the children's care and development;

10. The respondent will execute any necessary consents to enable the applicant to obtain copies of the children's school reports directly from the school;

11. The applicant will be permitted to attend any of the children's school or church concerts, extracurricular activities or any other special events;

12. The applicant will provide to the respondent the children's original health cards, birth certificates and social insurance cards;

13. Regardless of the regular access schedule the children shall reside with the respondent on the following days:

    a) Mother's day b) Christmas Eve and Christmas Day

14. Regardless of the regular access schedule the children will spend time with the applicant on the following days:

    a) December 26 and 27 th b) One day during the Easter and Thanksgiving week-end c) Two non-consecutive weeks in the summer

15. Both parties shall be reasonable in adjusting the access schedule to accommodate any reasonable requests for special occasions and provide the other party with as much notice as possible. The children's best interests shall be a priority in any such arrangements. If any such change results in the applicant missing any time with the children a make-up visit shall be offered;

16. The children shall be free to contact either the applicant or respondent when in the care of the other party;

17. Such further and other access as may be mutually agreed upon;

18. For the summer of 2013, the children shall attend summer camp in accordance with the arrangements made by the applicant.

[123] As neither party made any submissions regarding holiday access, I am prepared to hear further submissions on this issue especially if there are any family traditions that require changes in the holiday access as I have ordered.

Released: April 24, 2013

Signed: "Justice R. Zisman"