Court File and Parties

Court File No.: Sault Ste. Marie 198/11 Date: 2013-05-07 Ontario Court of Justice

Between: Crystal Lynn Laudadio, Applicant

— And —

Luke James Whalen, Respondent

Before: Justice Nathalie Gregson

Heard on: March 21 & 22 and April 12, 2013

Reasons for Judgment released on: May 7, 2013

Counsel:

• Tracy Ross, for the applicant
• Gary Knox, for the respondent

GREGSON J.:

SUMMARY OF COURT PROCEEDINGS

[1] The parties were involved in a relationship from January 12, 2009 until on or about May 5, 2011.

[2] They are the biological parents of the child Parker Roland Whalen born January 27, 2011.

[3] At the time of their separation, the parties were living together in a home purchased by the maternal grandparents. Accordingly, the father left the home and Parker remained in the care of his mother.

[4] According to the mother's evidence after separation, the father was seeing Parker once to twice per week for about an hour in her presence. However, the mother claimed the father's access became increasingly more inconsistent and he would often either cancel visits or simply not show.

[5] The father claimed that he was not permitted by the mother to have unsupervised access to his son and any access was controlled entirely by the mother. As he could only have contact with Parker while in the presence of the mother, this would often lead to arguments. According to the father, the arguments were precipitated by the mother. Rather than expose Parker to these arguments, the father would often shorten visits. The father expressed the unpleasantness between him and the mother made it difficult for him to want to attend for visits.

[6] On October 3, 2011, the mother brought her court application seeking sole custody of Parker.

[7] In response, the father filed an answer claiming joint custody of Parker with the mother being his primary caregiver. At that time, the father was seeking to have access twice per week for a few hours and shared holidays. He also sought to care for Parker when the mother required a sitter.

[8] On March 16, 2012, on the consent of the father, the mother was granted a final order for sole custody of their son.

[9] The father had been self-represented throughout these court proceedings but retained counsel to represent him at trial. The mother initially was self-represented and eventually retained counsel during the court proceedings.

[10] Neither parent ever brought a notice of motion to have the issue of the father's access determined even on a temporary basis.

[11] The parents continued to make their own arrangements for access although both claimed the other was being insufferable. Eventually, the father simply ceased having contact with the mother and ceased having contact with Parker in or about June 2012.

[12] During the court proceedings, the mother offered the father supervised access to Parker either to be supervised by her or by Algoma Family Services. The father refused this offer as he believed there was no necessity for supervision. As there was a stalemate, Parker has not seen his father in 11 months. This is a long period of time considering Parker is only two years of age.

[13] At the time of the hearing of this trial, the mother indicated she was seeking an order of no access for the father. The court application however was never amended formally to make this new claim. The mother's request caught the father and his counsel by surprise. The father continued with his quest to have access to Parker on an unsupervised basis. The father did not have an alternative claim for supervised access.

ISSUE AT TRIAL

[14] What type of access if any should the father exercise to his son Parker?

SUMMARY OF THE TRIAL EVIDENCE

The mother, Crystal Laudadio

[15] The mother is 34 years of age. She is a nurse currently working at Sault College full time as a clinical instructor for first year nursing students. She is engaged to be married to Chris Morretin and they intend on marrying in August 2013. Mr. Morretin is currently employed full-time as a kinesiologist. He was recently hired by the Sault Ste. Marie City Police and he is waiting to be sent to police academy. According to the mother Parker is very attached to Mr. Morretin as he is the only father he has ever known. Parker calls Mr. Morretin "dad".

[16] The parties began their relationship in approximately January 2009. During the following year, the mother supported the father while he attended a one year computer program.

[17] By April 2010, their relationship had progressed to the point the parties agreed to have a child and she conceived Parker in June 2010. Their relationship was good during her pregnancy although the father would be gone on some weekends to drink but they always seemed to work things out.

[18] The father has another child named Avery and early into their relationship, the father was only exercising access to his son on Sundays for one hour.

[19] According to the mother, it was she who encouraged the father to seek more access to his son. The father eventually commenced a court application and he did obtain court ordered access on Friday and Sunday evenings. According to the mother, the father was not consistent with his access as he would either not be home or simply forget.

[20] In September 2010, the mother's parents bought a home for them to live in. Shortly thereafter, the father was fired from his employment and he was never employed thereafter.

[21] When Parker was born in January 2011, the mother felt the father was doing well for the first one and a half months. She testified the father was excellent with Parker. He would wake up through the nights and he would help the mother in the mornings. He allowed the mother on Saturday afternoons to go into Michigan and he would solely care for Parker during that time and there were no safety concerns.

[22] However, the father's behaviour worsened and regressed. He drank often and he was permitting drug dealers and drug addicts to attend their home. The father often met with these people in the garage. Avery would often come over to their home, however, the father would not make him a priority and the mother regretted letting things go like that for so long. According to the mother, the father was often gone for days at a time.

[23] The mother recalled the father was hired to work at Filtrec, a manufacturing company, in July 2010. Sometime thereafter in August 2010, arrangements had been made for the father to have Avery for three days. During that time, the mother learned the father had not gone to work and did not come home and she had to care for Avery. At 12:30 a.m. she saw a cab arrive at their home and the father fell out of it with a bottle of vodka. The mother indicated to the father that she was not allowing him into the house. The front door was locked however the father kicked the screen door and the glass fell out. The mother then ran to the father's sister's home as she lived around the corner. The mother stated during her evidence that she trusted the father's sister and often talked to her about the problems she was having with the father. Eventually, the police were called. The mother retrieved her car and went to her parents' home and Avery was returned to his mother.

[24] At about 2 a.m., the father began to call the mother's parents' home and the father was making threats during his drunken stupor. The next day, the father communicated with the maternal grandmother indicating he was sorry for his behaviour and threatening call. The mother eventually returned home and they worked things out. Avery's mother did not permit him to return for a sleep-over for several weeks. The Children's Aid Society also sent a letter to the father stating he cannot use drugs or alcohol in the presence of his son.

[25] The Children's Aid Society also met with the parents once Parker was born in light of the father's actions with Avery. Once the Society did their due diligence, they simply closed their file. The mother also recalled one further occasion when the Society contacted her after her separation from the father when he apparently alleged they smoked pot in the presence of Parker. The Society again closed their file.

[26] Eventually, the mother heard a telephone message from the father's uncle stating he was going to go over to their home and kick in the doors and kill the father for what had transpired over the weekend – days when the father had been missing with the uncle's son. The mother decided to pack up some things to go stay with her parents. In the meantime, she also called the paternal grandmother as she had a very good relationship with her. The paternal grandmother attempted to ease her mind and eventually suggested to the mother that she needed to put her foot down and demand that her son seek help for his addictions.

[27] Once the father returned home, the mother confronted the father about attending a residential treatment centre however, the father refused to attend and left. Ultimately, the relationship ended. Parker was three months of age at the time.

[28] According to the mother, the father would return to their home to visit with Parker approximately three times per week for about a three month period. However, the mother was frustrated as she would try to tell the father things about Parker or things that had changed with Parker and the father would never want to hear of it. Once the father started a new relationship, the visits began to peter off.

[29] In October 2011, the mother stated their contact during visits were no longer as civil as they could not see eye to eye. The father was ignorant and on one occasion had attempted to secretly take a camera out of the home. The mother advised the father he could no longer have visits at their home and they agreed visits should take place at her parents' home. The mother had decided to move back into her parents' residence as of November 15, 2011. From that date until December 19, 2011, the father visited Parker twice per week.

[30] The father had full access to the maternal grandparents' home when he attended to visit Parker however the mother claimed the father always wanted to be around her and her parents therefore the father never initiated things with Parker on his own.

[31] On December 19, 2011, the mother saw the father at the mall with a new girlfriend and asked if he was attending his visit later that day and the father stated he would but, he never showed.

[32] The next contact with the father occurred on December 27, 2011 when the father called and spoke to the maternal grandfather. Apparently, the father wanted to have Parker dropped off as he and his family were celebrating Christmas. The maternal grandfather was leery about simply dropping off Parker as he was unaware of where the father was located and felt the father should speak to the mother about his request. The father apparently told the maternal grandfather "well you're gonna find out what it's like to fuck with a Whalen".

[33] As a result of the father's comments, the mother and her parents called police to ask that the father no longer call the home nor e-mail or text. The mother did note that she had not prevented the father from calling her cell phone.

[34] The mother had no contact with the father thereafter until March 2012 when she saw him at court. The parties had finalized custody in her favour. Thereafter, the father approached the mother after court wanting to work out an arrangement. The mother agreed to meet the father and they met at the boardwalk with Parker. Once there, the mother indicated Parker fell and was injured. She believed the injury was as a result of the father being inattentive and being oblivious to the fact Parker was just learning to walk.

[35] The mother met the father about three further times for short visits at Sussex Park in March 2012. On Easter Sunday, the father contacted the mother to have her meet him at the Manzo Park in Bayview. When she arrived, the father was present with his son Avery and two dogs who were not on leashes. The mother refused to take Parker out of the car as she did not know the dogs and when she pressed the father about information he gave her attitude. The father then proceeded to take Parker out of the car and their son began to cry. The father's comment was "see what your mother has done to you". The father proceeded to walk through the park holding Parker while he was still crying. The mother was walking behind the father asking him to stop and he refused. Eventually, the mother stated she would call police. As a result, the father handed Parker back to her and made a derogatory comment. The mother returned home with Parker.

[36] Thereafter, the mother recalled about two or three more visits and stated that as of June or early July 2012, she never heard from the father again.

[37] The mother recounted how much contact she had with the paternal grandmother when she was involved with the father as the paternal grandmother often spent time over at their home. However, once the mother ended her relationship with the father, she never pursued a relationship with the mother or with Parker. The mother believed in hindsight that the paternal grandmother had used her.

[38] The mother stated she would not trust the paternal grandmother to be an appropriate supervisor of access. The mother testified the paternal grandmother was very derogatory in regards to her grandchildren's relationships with their stepfathers. The mother was extremely worried the paternal grandmother would denigrate her and Mr. Morretin to Parker's detriment.

[39] The mother stated she would not trust the father's sister either as a supervisor. The father's sister did maintain some visitation after the parties' separation however over time it fizzled out. The mother indicated the sister was a recovering drug addict and alcoholic although she had done well for herself. However, the mother was concerned about the sister's partner, Richard Hurley, as he had been charged with possession of cocaine. Despite the fact the drug charges were withdrawn against him, the mother was worried he had the same acquaintances who could attend their home and place Parker at risk.

[40] The mother acknowledged that she was aware the father was selling drugs during their relationship and voiced her disagreement. The father kept stating it would only be until he had enough money. The mother also acknowledged that prior to dating the father, she knew about the father's family history. She was aware they were drug addicts. She knew the father's sister had been in rehab and she knew about the father's brothers, Jason and Paul, who were drug addicts and involved with the criminal justice system.

[41] The mother stated the father would do well for quite some time and they he would regress especially due to the company he kept. She was concerned about these individuals as well as the father's brothers.

[42] In April 2011, the mother could no longer tolerate the situation and packed her things and left to stay with her parents. Eventually she returned to their home and when she told the father he needed to go to rehab, he left the home in May 2011.

[43] Thereafter, the mother stated she continuously attempted to speak to the father about issues regarding Parker and he was not receptive in receiving the information.

[44] The mother admitted the father had a good heart however he was a victim of his difficult upbringing. He never had a father and he did not know what the responsibilities of a father were. He did know how to play basketball and video games and play with a child. However, he did not know how to teach a child right from wrong, to discipline a child or to maintain structure and a routine.

[45] When the father's son Avery would come for his visits it was the mother who tended to his needs. The father would simply play hours of video games but never did the "parenting".

[46] The mother indicated in her evidence that prior to moving in with her parents in November 2011, she had asked the father if he could come and take care of Parker as she wanted to go back to work two days per week. The father stated he would, however he would not go to the mother's home as his girlfriend would not be comfortable with that agreement. The mother then simply registered Parker into daycare.

[47] The mother recalled that while the father was visiting at her parents' home there was a P.D. day. She suggested to the father that he bring Avery to her parents' home and at the same time he could watch Parker while she worked. The father agreed but wanted to have the boys over at his home. The mother indicated to him "Luke, we've been through this a million times. I don't even know where you live. You have nothing, you have no highchair; you have no food". When the father suggested the mother simply pack the required items, the mother told him to forget it as she did not wish to argue with him.

[48] Eventually, the father stated he would come on the P.D. Day but he never did and the maternal grandfather cared for Parker.

[49] The mother stated during her evidence that she wanted the father to show he could be committed to Parker by attending his access consistently. The father needed to have a permanent residence, employment and all required necessities prior to allowing the father unsupervised access to Parker. The father needed to demonstrate that he could understand Parker's cues and could meet all of his physical and emotional needs.

[50] Once the father pursued access through litigation, the mother was willing to permit access at the Supervised Access Centre however, the father refused to attend. Considering the lapse of time since Parker saw his father, the mother was sure that Parker would be emotionally upset if he was left with a complete stranger.

[51] It was the mother's position the father had been involved in an inappropriate and unstable lifestyle. He had no suitable residence throughout this matter.

[52] The mother believed the father had no extended family to count on and that he was not an appropriate role model for Parker in particular since the father did not have employment or an education and seemed to have no concrete goals or aspirations in life.

[53] Although the mother had initially offered the father supervised visitation, the father chose to decline access. As a result of not having had access, the father and Parker have no relationship. Parker is settled and happy and permitting the father to have access would now create upheaval in Parker's life.

[54] The mother believed the father had no suitable person who could supervise his visits. Regardless, since the father would be leaving the area in the near future, access now would not be in Parker's best interests. The mother believed Parker would be exposed to a lifestyle that was not desirable. The father's entire family had abused drugs and alcohol in the past and has had Children's Aid Society involvement. It was the mother's firm belief the paternal grandmother was the driving force behind these court proceedings as she had previously been involved in litigation to obtain access to one of her grandchildren. The mother believed she could not see anything good coming out of Parker having a relationship with his father.

[55] It was the mother's position that perhaps once Parker was five or six years old, he would be better equipped to handle a relationship with his father but not at this point. For these reasons, the mother wished to terminate the father's rights to have access altogether or postpone access to a later point in Parker's life when the father could show that his circumstances had changed for the better.

The maternal grandfather, Roland Laudadio

[56] Mr. Laudadio is Parker's maternal grandfather. Clearly from his evidence, he and Parker have a very close relationship.

[57] Mr. Laudadio recalled learning through his brother that his daughter was dating a "Whalen". He was quite concerned and confronted his daughter who confirmed their relationship. He realized he had no choice in the matter as his daughter was an adult and eventually they invited the father to their home.

[58] Mr. Laudadio indicated the father was respectful and well behaved and within a short time they came to respect and appreciate him as well. The father spent a large amount of time at their residence as their family is close and his daughter was often there.

[59] Mr. Laudadio has been concerned the father's life was stagnant. When Mr. Laudadio first met the father he was living with his mother, not going to school, not looking for employment and did not have a driver's licence. Mr. Laudadio therefore had ongoing discussions with the father over the years to encourage him to improve himself. He was aware the father did not have a father figure growing up and he attempted to be a role model.

[60] Mr. Laudadio indicated the father and his daughter had difficulties with where they were living so he and his wife agreed to buy them a house with a payment schedule to relieve some financial pressure. He recalled at some point the father did secure employment and then he learned he had been fired.

[61] Mr. Laudadio recalled when he was advised the father and his daughter wanted to have a child together. He was concerned about their decision. He specifically spoke to the father to ensure he was ready to take on the responsibility reminding him that his life of partying and such would be changing.

[62] He was aware the father and his daughter continued to have relationship issues during the pregnancy and anticipated once the baby was born things would improve.

[63] Once the parties separated, Mr. Laudadio presumed the couple may still reconcile as the couple had often separated in the past. Over time, the father was exercising access to Parker and he was aware there were difficulties so he offered to have visits at his home. It was his impression the father was happy about that as he would be able to have a mediator present. The father would come to visit with Parker who was about six months of age. He understood that it would be difficult for the father to come over and play and care for Parker. As the visits were late in the afternoon they would invite the father to stay for supper and he would give him a ride home. Mr. Laudadio felt he was using this opportunity to try and facilitate contact and to try and help in the reconciliation and encourage the father.

[64] Eventually, the father expressed he did not feel he should have restrictions. He wanted to take Parker with him. In turn, Mr. Laudadio would tell the father to give it some time. He was also concerned the father appeared to have different residences and that he was becoming more dependent on his mother. Ultimately threats and demands began to unfold.

[65] Mr. Laudadio recalled during Christmas 2011, the father called him and demanded that he drop off Parker at some unknown address and he was going to give him three days to think about it. The father called a day or two later and made the same demands and Mr. Laudadio again repeated he needed to speak about this with his daughter. The father again called a day later to ask if he was getting Parker and eventually he told Mr. Laudadio "your gonna find out what it's like to fuck with the Whalen's". Mr. Laudadio stated he was shocked the father threatened him. That was the last conversation Mr. Laudadio had with the father.

[66] Mr. Laudadio expressed that he did not believe the father to be a bad guy and he did not believe the father wanted to harm his son. He had no ill will against the father. Mr. Laudadio's only concern was that of his grandson. In fact he himself quit smoking after 40 years as it embarrassed him to walk away from Parker and go behind closed doors to have a cigarette.

[67] In cross-examination, Mr. Laudadio agreed that people can change and the father had that capacity but at present he was a man of an unknown address. He also felt his daughter had taken a number of steps to permit the father to have access to Parker and the impasse occurred when the father wanted some unsupervised time to his son.

[68] Mr. Laudadio suggested Parker was entitled to a relationship with his father but felt it should not take place for a number of years, until Parker was emotionally strong enough to protect himself in particular against the onslaught of the Whalen family as he suspected negative things would be said to Parker about his daughter.

The father, Luke Whalen

[69] The father sought to have unsupervised access to his son. It was his position that the mother wanted to exercise absolute control over his access.

[70] The father indicated the mother would berate him in front of Parker when he tried to exercise access. She would make derogatory comments when the father would say things like "daddy loves you" to Parker.

[71] Although the mother was attempting to portray the father as a person who drank heavily and abused cocaine and marijuana, the mother provided no evidence of same to suggest that these behaviours had continued since their separation. The father testified he had been attempting to turn his life around.

[72] The father noted he has been having unsupervised access to his son Avery for years which has been without incident and accordingly there was no reason to request his access to Parker be supervised.

[73] The father is 32 years of age. He indicated he had a difficult upbringing and it has been difficult to be Paul Whalen's brother.

[74] The father noted he had turned his life around in the past two years. He was now a diamond driller and also received his licence as a spray foam contractor. He now also owned his own vehicle as he had a driver's licence. He no longer did drugs. The father admitted to using drugs in the past which included drug use with the mother.

[75] The father indicated that he had secured a job starting in May 2013 on the oil rigs. Three of his friends work for Chinook Drilling which is based out of Alberta. He will be living here but flying out to work for two weeks and coming back for one week. There is however a period of time when there is a break up and he would not be able to work. However, he hoped to go to diamond drilling during that time.

[76] Although the father would be pursuing work out of province he was hopeful he could have access every three weeks when he was in the city.

[77] The father currently resided at 232 Cheshire Road. He moved back to this residence a few months ago. He lives with Bernadette Pelletier who is a drug and alcohol counsellor. He met Ms. Pelletier through his mother at the Indian Friendship Centre. He lives in a three bedroom home with Ms. Pelletier and her 21 year old son. However, if he had access, he would exercise it at his mother's home. He could exercise access at his current residence however he would have to request that the others smoke outside as he did not want Parker exposed to cigarette smoke. His mother currently lived on Wallace Terrace but would soon be renting a two or three bedroom home as she was expecting a financial settlement.

[78] The father indicated he always had an appropriate home for Parker to have access. In fact, he had Holly Housing who worked at the Indian Friendship Centre and who operated the children's program to come and view his apartment to ensure it was appropriate for Parker. That residence was on Macdonald Avenue. In fact, the mother had been over and had spent a few nights at that residence.

[79] The father acknowledged that he and the mother had a good relationship initially and they did plan to have a child. He did not believe the mother to be controlling during the early part of their relationship. He then noticed the mother to simply start snapping at him for no valid reason. He recalled the mother showing him papers of how she had seen a psychiatrist and how she had degraded her ex-boyfriend and his entire family. The father felt the mother's controlling behaviour began to be exerted on him. Eventually, the mother also began to degrade his family.

[80] As an example, the father stated the mother would often tell him he would amount to nothing and they (referring to him and his family) were losers. The father stated the mother made comments daily and it got progressively worse.

[81] The father stated he used to go visit Parker after he and the mother separated however the mother continued to make these types of comments in front of Parker. He indicated he often left access crying.

[82] The father stated he tried really hard after the break up to see Parker and he would return to their home all of the time. However, things would just escalate between them and the mother would flip out over nothing or over something imaginary and he would leave because he did not want Parker to hear the arguments.

[83] The father stated that when he and the mother were together they both did drugs. He also admitted to selling them.

[84] After Parker was born, the father stated the mother would often go to her parents' home and he would often stay home alone to care for Parker. He helped to feed and change Parker. They both parented him prior to the separation.

[85] Although he was invited to exercise access to Parker at the maternal grandparents' home he did not feel comfortable there. He did not feel he required supervision and why was his family not permitted to see Parker without having to attend at the maternal grandparents' residence?

[86] The father felt that while he exercised access at the maternal grandparents' home the mother would often sneer and snicker at him when her parents were not looking. If he made a comment to Parker, the mother would make the situation negative.

[87] In response to the mother's claim that the father was not present when Avery would come over to their home, the father acknowledged it did happen a few times. He indicated the mother would flip out about something and tell him he was not welcome at her home, it was not his house and he would leave. There were other times when they had argued before Avery came over and he did not want to be near the mother so he admittedly did not go home. The father also admitted there were times he would come home intoxicated and he did not want Avery to see him in that condition. The father indicated he had been immature and felt bad about his actions especially since his father was never there for him.

[88] The father recalled the incident when he arrived home intoxicated after being at his boss' home and when the police were called. He had arrived and the mother came out into the garage and she was very upset because he was late. He attempted to go into the home as he wanted to see Avery after she told him to "get the fuck out of here". He admitted that his actions that night were stupid and he regretted them.

[89] He missed access with Parker for similar reasons. The mother would flip out on him over the telephone or on the internet. She would make derogatory comments to him. Accordingly, there were times when he would simply not attend or attend for a few minutes and have to leave because of her verbally abusive behaviour.

[90] During Christmas 2011, the father indicated he was no longer comfortable going to the maternal grandparents' home. He called and he tried to get them to either drop off Parker or they could go pick him up as they were celebrating their Christmas. He has nieces and they all celebrate with the family and Parker has missed out.

[91] The father denied the threatening comments Mr. Laudadio indicated he had said to him over Christmas 2011. He does however recall stating "your gonna find out what it's like". He would never do anything to the Laudadio family or any other family. The father felt the mother and her family now used his family name against him.

[92] The father stated that when he was younger he would teach a group of kids sports. He babysat a police officer's son when he was younger. He has watched and cared for his nieces and children of his ex-girlfriends. He has never placed any child in an unsafe situation.

[93] He recalled meeting the mother at Manzo Pool Park. Avery's mother was watching out of her window. He was to meet Crystal in the park where he and Avery were playing. The mother arrived and simply watched them from the parking lot for about 20 minutes. The mother then approached them with Parker and Parker was not crying at the time however, the mother began to flip out and then Parker began to cry. The father was walking away from the mother with Parker and the mother began yelling and threatened to call police.

[94] According to the father the mother was mentally abusive towards him. She would tell him he was just a sperm donor, that he was good for nothing, that Parker does not smile when with him.

[95] The father disagreed with the mother's claim that he had no money for milk and could not exercise access to Parker on his own. The father stated he had a crib and everything required. If people on welfare could afford milk, he was certainly able to supply milk also. It was simply an excuse used by the mother to deny him unsupervised access.

[96] The father acknowledged that on May 18, 2011 the mother had sent him an email telling him he needed to see Parker and that he was not responding to her messages. The email message also stated the mother had told everyone he was a wonderful father.

[97] The father stated the mother would have always known where he was residing and where Parker would be staying as she would have had to drop him off to him.

[98] The father agreed he had not seen his son since June or July 2012. He indicated this upset him and he thought about it every day.

[99] The father was upset to think about the fact he could be told he should have no access to Parker. He did not agree Parker should wait until he was six to have visits with him as he felt Parker needed his father. The father stated that he grew up without a father and did not want the same for Parker. He could show Parker love. He could teach him things about memories, pictures, family, et cetera.

[100] The father agreed he never called Ms. Laudadio after June 2012 as he felt there was no point talking to her. It always ended up being really messed up and hurting him and hurting Parker, perhaps even the mother.

[101] The father has access to his ten year old son Avery and to his nieces and cannot comprehend why he can see them but not his son Parker. Despite the allegations of drug use, he has to be drug tested for his employment. He indicated he had not abused drugs for a few years now. He no longer smokes cigarettes.

[102] The father did not believe he needed to be supervised as he could care for Parker safely and appropriately. Even if he exercised access to Parker at the Supervised Access Centre, he would be a stranger to his son but so would the supervisor. This would be the same situation with his sister if she were to also supervise his access. Regardless, it was the father's view that once he was with Parker for a few visits, they will have rekindled their relationship and Parker would feel comfortable in his presence.

[103] The father denied that he has a temper. He did not want the same fate at his brothers who have been heavily involved with the criminal justice system. He indicated that when Mr. Laudadio believed he had threatened him, the father meant that after court was over he would know what it was like when he has his son back. In no way has he assaulted anyone or threatened harm to them.

[104] The father was not proud of his brothers' criminal histories. They both live out of town and his brother Paul will not be returning for at least ten years.

[105] The father denied that he was ashamed of his culture and heritage. He indicated his mother has been treasurer for about eight years with the Indian Friendship Centre and he has volunteered with their organization ever since.

Paternal grandmother, Lynn Leclair

[106] The paternal grandmother is currently in receipt of ODSP however despite her disability she is actively involved as a volunteer in the community, in particular with the Indian Friendship Centre.

[107] When the paternal grandmother is not busy with her volunteer work, she spends a great deal of time with her grandchildren. She claimed to have a positive relationship with the mothers of her grandchildren although there have been some ups and downs. At present, things were positive.

[108] Ms. Leclair stated she had a positive and supportive relationship with the father. She claimed she was not the driving force behind her son's claim for access to Parker and felt it was natural for a biological father to want a relationship with his son. Ms. Leclair testified that she continued to support her son's request for court ordered access to Parker.

[109] Ms. Leclair testified the father had a great relationship with Avery and the father appeared to have a natural ability to connect with children. He was well loved by his nieces and she had only observed positive interaction between the father and Avery or the father's nieces and nephew.

[110] It was Ms. Leclair's recollection that both the mother and father shared parenting responsibilities of Parker after he was born. Ms. Leclair was saddened by the fact the father had not had ongoing visitation with Parker nor had she been able to spend time with her grandson. Ms. Leclair indicated she often has all of the grandchildren together for supper on Sunday evenings or for various celebrations and Parker had been excluded.

[111] Ms. Leclair believed the father was no longer abusing drugs. She believed she would be able to tell by his behaviours if he was abusing drugs considering they had been spending quite a bit of time together. Ms. Leclair in fact saw a drug free test taken by the father and dated in January 2013 for his new employer.

[112] Ms. Leclair felt she and the mother had got along well when the couple was together. However, they had not spoken since the separation. Ms. Leclair felt the mother was abusive towards her son but did not get involved in the couple's relationship.

[113] Ms. Leclair explained that a few years ago she was not receiving access to her granddaughter Julie-Ann once her son Paul was incarcerated. She felt she had no choice but to commence litigation to obtain visitation rights as she had been involved in Julie-Ann's life. She represented herself and was successful at trial. Ms. Leclair indicated that once the dust settled after trial her relationship with Julie-Ann's mother improved and they are now getting along.

[114] Ms. Leclair denied that she would denigrate her grandchildren's step-father to them. She was upset that the mother's had changed the grandchildren's surnames especially since these children were older and she believed it would be confusing to them.

[115] Ms. Leclair acknowledged her children had a difficult upbringing as their father was a violent and abusive individual. Ultimately, she had to raise her four children on her own. She acknowledged that her children were impacted by what they had been exposed to, in particular her sons Jason and Paul. She attempted to get them counselling and assessments in an attempt to get them help. She did have the Children's Aid Society involved when she had care of her children however it was to receive their assistance for respite purposes.

[116] Ms. Leclair assumed if the father was granted access to Parker, visits would be held at her home as the home where the father was living was not suitable as they were smokers.

Paternal aunt, Melissa Whalen

[117] Ms. Whalen is 27 years old and was currently employed at Algoma Family Services in the treatment foster care program teaching youth in care life skills, coping strategies and behavioural management. She also worked at Sault College as a Student Support Worker.

[118] Ms. Whalen has a one year old child and lives with her partner, Richard Hurley.

[119] Ms. Whalen believed she and her brother have a great relationship although over the years they have had their ups and downs but no more than as with most siblings. She had been able to observe her brother with his son Avery. She described the father as a fun, loving dad. She felt her brother made Avery laugh and she was aware her brother and Avery did a number of activities together such as sports, going to the park or going for walks.

[120] Ms. Whalen felt there was no reason for her brother not to have access to his son Parker. She believed he would never place any child at risk. She herself is a protective parent and she had no difficulties leaving her son with her brother on an unsupervised basis.

[121] Ms. Whalen testified she was aware her brother had used drugs in the past however she believed there had been no evidence of drug use in the past couple of years. She herself was a drug addict and had been sober for six years.

[122] Ms. Whalen did not recall the mother ever asking her if she would be willing to supervise the father's visits with Parker. Ms. Whalen indicated that she would be willing to supervise access visits and she would also provide him ongoing support.

[123] Ms. Whalen acknowledged that her partner was charged with drug offences in 2008 however he was never convicted. Ms. Whalen believed her partner had not used drugs as far as she was aware since he was in high school.

[124] Ms. Whalen indicated she had a good relationship with her brothers' (Paul and Jason) ex-girlfriends. She sees her nieces regularly as they often have family dinners. She stated that the father had a great relationship with the kids and did a number of activities with them such as tobogganing. There have never been any safety issues.

[125] In regards to her own son Aiden, she advised that her brother had been able to do more mundane aspects of parenting such as feeding Aiden. She had also observed the father discipline Avery by imposing a time out.

[126] Ms. Whalen stated she and the mother communicated on a regular basis after separation and Ms. Whalen was able to see Parker. On one occasion, she recalled attending at the mother's parents' home for a visit. She felt it awkward to be visiting Parker through the mother considering she was the father's sister so over time the visits dwindled.

[127] Ms. Whalen testified that she worked with families who have supervised access to their children. She believed her brother was not one of those candidates considering her brother had not been incarcerated nor had he mental health issues.

[128] Ms. Whalen agreed that at this point the father and the entire family were strangers to Parker. However, there were times when children were left with complete strangers such as at a daycare and they adjust to their new caregivers and to their new environment.

[129] It was Ms. Whalen's impression the father was living with his girlfriend Brandy. However, she had not spent much time with the father's girlfriend and she had not been to Brandy's home. Regardless, Ms. Whalen felt the father would not put his children in an unsafe environment.

Fresh Evidence

[130] After each counsel had presented their client's evidence but prior to their closing arguments, counsel for the mother requested she be permitted to provide the court with fresh evidence not available at the time of the presentation of the evidence. I permitted the mother to testify and to be cross-examined and I also permitted the father to testify and to be cross-examined on this new information.

[131] The mother testified that after the last day of providing evidence in court, her friends saw Facebook messages by the father and they texted the mother to advise her of same. She and Mr. Morretin were able to view the father's Facebook page where he stated it was the mother's birthday and made extremely derogatory and denigrating comments about her.

[132] This was the type of behaviour the mother was afraid of by the father and his family. The mother believed they would expose Parker to this type of information in an attempt to discredit her and her family.

[133] In cross-examination, the mother did acknowledge that the paternal grandmother responded to her son's Facebook message by stating to him "be a bigger person" showing her disapproval of the post message. However, it was the mother's impression the paternal grandmother was simply trying to protect her son.

[134] The father acknowledged the Facebook message he posted about the mother. He stated it was not the smartest thing to do however he had been frustrated and angry after having attended at court that day as it reminded him again about how he was not seeing Parker. The father apologized for his actions stating the comments would be erased.

LAW

[135] The Children's Law Reform Act, R.S.O. 1990, c. C.12, as amended provides the following regarding custody and access to a child:

24. MERITS OF APPLICATION FOR CUSTODY OR ACCESS – (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4).

(2) BEST INTERESTS OF CHILD – 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 had 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.

(3) PAST CONDUCT – 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.

(4) VIOLENCE AND ABUSE – 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.

ANALYSIS

[136] The issue of custody has already been determined in favour of the mother. If it had not been determined, I would have provided the mother with sole custody of Parker.

[137] The mother has provided Parker with all necessities since the parties' separation. She has met all of Parker's needs both physical and emotional. She has provided him with love, nurturing and a stable and safe home environment. The evidence strongly supported that Ms. Laudadio is an excellent mother to Parker. Furthermore, the involvement of her parents in Parker's life has provided him with ongoing stability.

[138] In fact, there was no evidence by either the father or his family members that Ms. Laudadio was not an excellent parent to Parker. The issue and frustration for the father and his family centred mainly on the mother's resistance to permit the father unsupervised access and more recently, her decision to request a termination and/or suspension of the father's access rights.

[139] In determining an issue of access for a parent, the guiding principle for the court is section 24 of the CLRA or what is in the child's best interests. Section 24 of the CLRA provides the court with some factors to consider when examining the best interests test however, these factors are not exhaustive.

[140] Both counsel provided me with a book of authorities to support their respective position. All of the decisions can be distinguished in one manner or another from the case at bar. In reviewing what is best for a child, each case is highly fact specific. In this case, I have reviewed the factors at section 24 of the CLRA while bearing in mind the specific evidence tendered during the trial.

[141] It was apparent to me that when the parties began their relationship, the mother knew or quickly learned of the father's family history. Despite knowing about the struggles this family had endured, the mother continued to pursue her relationship with the father.

[142] As their relationship progressed, both parties became aware of each other's shortcomings. The father noted the mother to be a controlling individual who would fly off the handle for no reason. The mother noted the father to be a partier (both alcohol and drugs) being gone from the home, for sometimes, days at a time.

[143] Despite the fact the mother claimed the paternal grandmother may be the driving force behind the father's pursuit of access rights to Parker, it was interesting that the mother herself acknowledged that it was she who pushed the father to obtain further access rights to his son Avery. Obviously, the mother must have felt it was important for the father to have more contact with his son. She must have felt that it was important for him to maintain his relationship with Avery.

[144] The mother acknowledged she did drugs with the father but perhaps not to the same extent and perhaps as a result of being in a relationship with him. She was also aware the father was selling drugs out of their home. I find it curious the mother stated she was concerned about Parker being at the paternal aunt's home considering Mr. Hurley had been charged with drug offences a number of years ago and this may place Parker at risk of harm. Yet, she herself permitted the father to sell drugs out of their home possibly placing both Avery and Parker at risk of harm.

[145] The mother complained about the father's behaviours however, she also participated by allowing it to take place. Furthermore, the mother complained the father was inconsistent with his contact with Avery and she was the one who took over the parenting but she never contacted Avery's mother to advise her that the father was unable to appropriately care for Avery. Having said this, I do understand the mother's plight as she was attempting to make her relationship work with the father.

[146] Despite each other's shortcomings, both parties agreed they wanted to conceive a child. Perhaps the mother believed that once the father had a child, he would change his ways despite the fact he had not done so after having fathered Avery.

[147] In my view, the father acted selfishly and had a total lack of disregard with not only the mother but with his son Avery. He placed his wants (alcohol, drugs and money) over and above his responsibilities as a partner and a father. The father's priorities were clearly mixed up and it showed me that at that time in his life he was immature and irresponsible. For example, the father would come home intoxicated when he was exercising access to his son. Also, he placed Avery and Parker at risk of harm when he was selling drugs as unsavoury characters could have attended at his home placing everyone in danger.

[148] What was clear to me was the fact the parties were not in a mutual healthy and respectful relationship with one another. In fact, the relationship on occasion was tumultuous leading to a number of short separations and a final separation in May 2011.

[149] Once Parker was born, the mother acknowledged initially in her evidence that the father was good with Parker. Although the mother attempted to minimize the father's caregiving skills she did acknowledge the father often solely cared for Parker during the first four months of his life. In fact, when the mother emailed the father on one occasion after their separation, not only did she tell him he needed to visit with their son, she disclosed she had told others he was a good dad.

[150] The mother testified she had sent the father numerous messages asking him to visit with their son. Clearly at that time, the mother felt the father had something to offer their son otherwise why would she have been so persistent in encouraging Parker's relationship with his father? Yet the lack of the father's contact with Parker for 11 months has now convinced the mother that the father has nothing to offer their son.

[151] Both parties agreed that after separation, the father was initially attending at their home to visit Parker. The mother's evidence was that access petered out once the father began another relationship. The father's evidence was that access was difficult as he felt he was being controlled by the mother and arguments between them ensued.

[152] The evidence by both parties is not congruent as to the reason why access between the father and Parker became inconsistent and then came to a screeching halt.

[153] There is no doubt in my mind the mother wanted restrictions imposed upon the father's access to Parker. This is not at all surprising considering the father's behaviours when they lived together and the father's lack of a permanent and stable residence. The mother simply wished to protect Parker and ensure he was safe at all times.

[154] On the other hand, the father felt controlled by the mother and believed he did not require supervision considering he had unsupervised contact with Avery and his nieces and he had never placed any child in harm's way.

[155] I can only conclude that when the parties were in each other's presence during access visits with Parker, it led to disagreements, arguments and heated exchanges more than likely on both of their parts.

[156] I can only assume the father felt he was being ostracized by having to exercise access to his son in the mother's home, in her presence or at her parents' home. Despite the fact the father had a positive relationship with the maternal grandparents, he was being told by the mother and her family what he was permitted.

[157] Eventually, tension and frustration reared its ugly head when the father made threatening comments to the maternal grandfather. Regardless of what exact words were used by the father during the verbal exchange with the maternal grandfather this exchange added fuel to the fire between the two families. The maternal family felt threatened while the paternal family felt slighted as they could not have Parker during the Christmas holidays.

[158] Thereafter, the parties met a few times to allow the father a chance to exercise access to Parker. As the father had been inconsistent with his visits to Parker and often changed his residence, the mother became even more leery about the prospects of permitting the father unsupervised access. The father's lack of involvement with Parker was not permitting him to be part of Parker's daily routine.

[159] Unfortunately, from the father's point of view, the mother was the one who was frustrating his access by not permitting him to have Parker on his own so he could further develop his bond with his son and have an opportunity to actively parent him.

[160] Neither party ever brought a notice of motion to have the court determine the issue of interim access. The parties were at a stalemate as the mother would agree to nothing less than the father having supervised access either by her or at the Algoma Family Services and the father wanted nothing less than unsupervised access.

[161] Eventually, the discord between the parties continued and their positions remained unchanged. The father then chose not to have access to his son believing the issue would simply be determined at trial. Unfortunately, in the meantime Parker has not seen his father in over 11 months. He is only two years of age and would presumably have no memory of his father. His father and the father's entire extended family are all strangers to Parker.

[162] In the meantime, the mother has soldiered on with her life. She has met an individual who is prepared to accept her and Parker into his life. They are a family unit. They have goals and aspirations. They are committed to each other and to Parker.

[163] The mother and maternal grandfather both complained during their testimony that the father had no goals of his own. He had no education, no job and no driver's licence. They felt the father had nothing to offer Parker and would not be a good role model for him.

[164] However, the father testified that since separation he had obtained his driver's licence, had taken courses to improve his ability to work and had secured employment out of province. These were all steps the mother had previously hoped the father would take. But now, the mother used this evidence to the father's detriment. Despite the fact the mother stated in her evidence that she would not agree to permit the father unsupervised access until such time as he was employed and could purchase necessities for Parker and have an appropriate residence, she now states that since the father would be gone three weeks out of the month, there is no point in permitting him access.

[165] In my view, the fact that the father has goals and aspirations including working to earn a living which will also help to financially support his children is a positive for him and his children. Despite the father's past history, I must look at the father's current ability to meet the needs of his son and consider whether an ongoing relationship is beneficial to Parker.

[166] There was no credible evidence to suggest the father has continued to abuse drugs and he appeared to have a plan for himself. There was no credible evidence to suggest the father had ever placed a child at risk (save and except when he was selling drugs and both he and the mother were aware of the risk) of danger or had abused a child.

[167] The father does have family support. Although the mother was extremely negative about the paternal grandmother, the mother herself stated she had a lot of contact with the paternal grandmother prior to separation and had confided in her. Similarly with the paternal aunt, the mother testified she had confided in her and had trusted her.

[168] There was no credible evidence to suggest that if either the paternal grandmother or paternal aunt were in the presence of Parker they would not ensure his ongoing safety.

[169] Although there was some evidence about the paternal grandmother being upset when her grandchildren referred to their stepfather as their "dad" or changing their surname, the evidence was not overwhelming. As an example, the paternal grandmother apparently made a comment about wanting to change her granddaughter's surname on a ski ticket as they had her under the stepfather's surname but according to the paternal grandmother it was the mother who had initially pointed that fact out to her.

[170] I will say I was disturbed by the comments the father posted about the mother on Facebook after a day of trial. I realize he may have been angry and frustrated at the time but his actions do suggest an immaturity on his part. The father needs to realize that any negative comments made by him towards the mother, her partner or her family will simply harm his son. This behaviour will not be tolerated by the court and could ultimately lead to the termination of the father's access.

[171] I understand from the mother's point of view that her life is settled now. She would prefer to lead her life with Mr. Morretin and Parker and not have the father complicate their lives. The mother believes she provided the father with a number of chances to participate in Parker's life and has gone above and beyond to encourage the father's relationship with Parker. Now that Parker is settled and does not know his father, any introduction and ongoing relationship will only lead to upheaval in Parker's life. Furthermore, the father has not shown an ongoing commitment to Parker. The mother only knows the father as a person who had a chaotic and difficult upbringing, who was irresponsible in his choices and who disappointed her and Parker.

[172] Despite the mother's concerns, Parker has the right to know his biological father if the relationship is to Parker's benefit, if the relationship can be supported in a positive manner. I have concluded that it is in Parker's best interests to be given an opportunity to establish a relationship with his father. The bonding and attachment needs to take place now while Parker is young. Time will of course tell whether the father will truly be committed to his son. Parker in the meantime deserves that chance.

[173] The father is not perfect and has made some poor choices. However, no parent is perfect. The father appears to be on a new path and I believe the father has much to offer his son.

[174] There is no reason why a child cannot have three or four responsible parental figures in their life. In today's society it is not uncommon. They can all be role models in some way, shape or form. It is not about what the mother wants. It is not about what the father wants. It is looking at the totality of the situation, the past, present and future and determining what is best for this particular child based on all of the evidence.

[175] I believe it would be in Parker's best interests to be reacquainted with his father in a gradual manner which will include some supervised visits. The father will have to exercise some patience. To simply have Parker handed over to his father to permit them to rekindle their relationship would not be best for Parker considering the father is a complete stranger to this two year old. The father should have some supervised access visits in a controlled environment prior to having unsupervised access to permit Parker to become familiar with his father.

[176] What would be ideal and best for Parker would be to have the maternal grandfather (without the mother), if he is willing, to supervise the father for three separate visits of a duration of up to three hours per visit preferably at the maternal grandfather's residence and/or out in the community. Parker is comfortable with his grandfather and trusts him and his decision making. Introducing the father to Parker through someone with whom he feels safe would be the best possible scenario for Parker. The maternal grandfather struck me as a level-headed, mature individual who has Parker's best interests at heart. I believe the maternal grandfather can act respectfully in the father's presence without presenting further conflict.

[177] Considering the father has not seen Parker in over 11 months and he and the mother cannot currently communicate in a civilized manner, it would be of great assistance to have the maternal grandfather bring the father up to speed while he exercised his visits on various issues such as eating and sleeping habits, routine, structure, allergies, developmental milestones, et cetera.

[178] It would then be best for Parker to have the maternal grandfather attend on the fourth visit at the paternal aunt's home for the first hour to allow Parker to adjust to this new environment with someone he trusts so he can feel comfortable in attending for future visits.

[179] Once these transitional visits have taken place, I would expect the father to attend at his sister's home to exercise three further visits to be supervised at all times by his sister for a period of up to six hours each. I expect that during this time, the paternal grandmother and some of the father's nieces could be introduced to Parker as well. Although the family will be anxious to see Parker, they should exercise some restraint and patience not to overwhelm this two-year old. I am sure with some time, he will adapt and adjust to his new environment and new relatives as most young children do.

[180] Thereafter, I see no reason why the father should not have unsupervised daytime access to Parker. I assume the father will be attending the majority of his visits either at his, his mother's or his sister's residence. He will have to disclose this information to the mother prior to his visit and provide the mother with a contact number. If the father is only exercising access when he is not of out province (one week per month), he should be entitled to one weeknight visit from 3 p.m. to 7 p.m. and a visit on each of Saturday and Sunday for a period of six hours each.

[181] There will have to be conditions imposed for the father's access which shall include that he not expose Parker to any third party who is smoking cigarettes, using illicit drugs or alcohol. He must also not consume alcohol or illicit drugs 24 hours prior to his access and during his access.

[182] Furthermore, both parents shall undertake and commit while they are caring for Parker not to speak negatively or denigrate the other parent or their extended families, and not permit any third party in the child's presence to speak negatively or denigrate the other parent or their extended families.

[183] I am unaware of the father's work timetable and whether the maternal grandfather and paternal aunt will commit to my strong recommendations for Parker's best interests, as well as not knowing their schedules. I suggest counsel for the parties work out the details of access as I have outlined and same can be incorporated into a final order which can be presented for my signature. In the event the parties cannot work out the necessary details within two weeks of the date of these written Reasons, I will release an addendum and firm up access details for the father which will be a combination of access at the Supervised Access Centre and with the father's sister prior to him exercising unsupervised access. I am also prepared to impose times for access without input. This is not ideal in my view as the staff at the SAC would be complete strangers to Parker and the times for access would be more limited and perhaps not convenient.

[184] In regards to the issue of transportation, once access begins to take place at the father's sister's home, transportation should be shared, with the father having to pick up Parker for his access and the mother picking up Parker at the end of the access visit.

[185] Once Parker is three years of age, if the father has been committed to his daytime access and he has a suitable residence (his or a family member's), he may have overnight access to Parker as arranged with the mother twice per month.

[186] The father shall also be entitled to access all information pertaining to Parker's education, health and general well-being including the right to meet with all professionals involved with Parker, attend school functions and any extra-curricular activities.

[187] With respect to the issue of costs, in my view both parties at various times have acted unreasonably. The mother initially should have permitted unsupervised access and the father should have agreed to supervised access after he chose not to exercise access. Both parties could have requested judicial intervention at an earlier juncture which may have prevented a trial. As there is mixed success in the result of this trial and no party acted in a vexatious and frivolous manner, each party shall bear their own court costs.

Released: May 7, 2013

Justice Nathalie Gregson, Ontario Court of Justice