Court File and Parties

Court File No.: Kitchener 3121/12 Date: 2014-06-16 Ontario Court of Justice

Between:

BRENDAN VAN WIEREN Applicant

— AND —

CATHERINE BUSH Respondent

Before: Justice P.A. Hardman

Heard on: January 27, 28, 29 and 30, 2014; March 3, 4, 5, and 6, 2014

Reasons for Judgment released on: June 16, 2014

Counsel:

• Mr. Barry Paquette, for the Applicant
• Ms. Anna Towlson, for the Respondent

Hardman, J.:

Background

[1] In March 2012, both the mother and the father brought applications seeking custody of S born October 3, 2010, the mother in Orillia and the father in Cambridge. As Waterloo Region had been the residence of the child, the matter continued in this jurisdiction. Therefore the father is noted as the applicant and the mother as the respondent. Both were represented by counsel at trial.

Early Relationship and Pregnancy

[2] The mother who was living with her father in Trenton joined the air cadets in 2005. In the summer of 2006 when she was 13, she met the father at two week basic training at air cadet camp and became friends. The next time that they met was in 2009 when the father once again attended the Trenton summer camp. They were talking on face book and by emails and ended up dating. They visited at the park, at her father's house and 2-3 times at his parents' home in Waterloo Region.

[3] The mother was 16 when she became pregnant. When she told the father on Valentine's Day, he told her that he didn't know what he could do and that he did not want to be in her life or that of the child. In consultation with her grandfather, her father and sister, the mother formed the plan to stay with her father and leave the child while she finished school with her father and her older sister.

[4] While some communication between the mother and the father continued, it was limited. The mother said that the father threatened to burn any pictures if she sent them. In the following summer, the father returned to cadet camp and the mother and the father started to hang out as friends. He told the mother that he was not interested in a relationship as he was interested in other people. The father told the mother that he was not going to tell his parents about the baby. However, his parents became aware from another source and got in contact with the maternal grandfather.

[5] During a conversation with the paternal grandparents, the mother explained her plan. The mother however felt that they were determined to have her move to their area. The paternal grandparents came to Trenton to speak to her father; her sister, nephew and the mother were all present.

[6] The mother said that her plan was not accepted as the paternal grandparents wanted her to co-parent with their son, the father of the child. At this time there was no relationship between the father and the mother. The father stayed a week but separately.

Move to Paternal Grandparents' Home

[7] At the end of September, the mother decided that she would give their plan a try. When the child was born, the father and the paternal grandparents stayed in town. Then the mother stayed with her father for a week. She said that the paternal grandparents told her that her father was "brainwashing" her to get her to stay with him and wanted her to come to their home instead.

[8] The mother and the child went to the paternal grandparents' home. They only returned to Trenton for some doctor's appointments. The mother and child slept in the father's bedroom as the mother said there was nowhere else. The mother took care of the child for the most part although the father would generally help when asked.

[9] The mother signed up for online courses but did not successfully complete them. She said that she had to use the father's computer but he was often using it. He too was at school to get an extra credit so that he could be an airline mechanic but she said that he did not complete it.

[10] The mother and the father had a joint account for the child tax credit and used the funds for items for the baby. The paternal grandparents often helped with groceries. The mother nursed the child until six months before starting with Pablum and then baby food. The mother said that she received some financial help for own expenses from her father.

[11] The mother testified that the father was not always willing to help despite his own parents' encouragement. Often the father preferred to play games on the computer. The father would get angry when she asked him to help.

[12] The mother and the father shared an intimate relationship during this time although the father's interest in a relationship with the mother was not consistent.

[13] The mother told the paternal grandparents about the father being interested in someone else, a sixteen year old girl. When the paternal grandmother confronted him, the father moved out for a couple of weeks but ultimately returned.

[14] The paternal grandparents provided help and guidance to the mother with the child when she needed it.

Issues

[15] When told about the pregnancy, the father had made it absolutely clear to the mother that he wanted nothing to do with the child or with her. He did not want his parents to know. He confirmed this in his evidence although he had previously sworn an affidavit stating that he had told his parents about the pregnancy and that he had been very excited about the pregnancy, neither of which had been true. (March 22, 2012)

[16] It is the mother's position which is supported by the evidence that it has not been the father who has been particularly interested in parenting the child but rather his parents who want this child to live with them and their son. From the beginning it appears that the paternal grandparents have been pushing the father to be involved as a parent to S. They were the ones who cajoled the mother into coming to live with them in the face of their son's disinterest and when it came to trying to get the child returned, it was the grandparents who did the majority of the investigation in Orillia and dealt with the society and police.

[17] While it is the father's plan to parent that is before the court, his parents clearly exercise a great deal of influence on him and his decisions. Given that, the grandparents' attitudes have a role to play in what is in the child's best interest going forward.

[18] From the beginning, the paternal grandparents appeared to disregard the welfare of the sixteen year old girl that their eighteen year old son had made pregnant. Despite knowing that their son had hidden the pregnancy from them, expressing no interest in taking responsibility as a father, they convinced the mother to leave her family supports to come to live with them and co-parent the child with the hither to disinterested father.

[19] Further, despite the fact that the mother had not been having a relationship with the father since February and despite her youthful age and immaturity, the paternal grandparents had the parents reside in the same bed in the same bedroom in their home. The paternal grandparents acknowledged that they had never offered the mother any other accommodation despite her age and circumstances.

[20] Even when they learned that the father was involved with another girl, they did not take any steps to address the emotional and physical wellbeing of the mother. They did not offer her a room of her own but left her sharing a bed with their disinterested son.

[21] It is quite extraordinary that they would show no insight into how difficult her circumstances were.

[22] When the mother initially agreed to give the co-parenting a try and moved in with the paternal family, the mother obviously wanted to believe that the father was interested in her romantically and focused on co-parenting the child with her. Neither was true. Even while they shared an intimate relationship, the father was more interested in being with others.

[23] The mother testified that she felt that the paternal grandparents looked down on her family. Indeed the father in his first affidavit said that his parents offered to have them in their house in order to "give the child the best start in life", disregarding the family plan proposed by the mother and her father. In that same affidavit, he commented that he did not know "what kind of people" her relatives were.

[24] It appears from the evidence that she had little say in the paternal family's home. She said that the father told her that she should ask his parents for permission to take the child to Orillia. The father in his affidavit said that he "agreed to allow" the mother to take the child on a trip to Orillia. The mother stated that she did not understand why she should have the paternal grandparent's permission.

[25] Further, according to the father's affidavit of July 6, 2012, his parents appeared to have access to all of the mother's personal information regarding school including her guidance counsellor and course information.

[26] Throughout the entire proceeding there has been a disregard of the mother's role in the child's life. When the father brought his first motion in March 2012, he asked the court to make an order without notice to the mother giving him custody and her no access at all. His position was dismissive of the importance of the mother's relationship with the child.

[27] The mother struck the court as a somewhat immature 20 year old. She acknowledged that the father sometimes helped with the child when asked and that his parents provided guidance when needed. She did not have a lot of face to face contact with members of her family but appears to have maintained some links both in Trenton and Orillia during the time she spent with the father and his family.

March 2012

[28] In March, the mother and the child left for the trip to Orillia. The mother said that she packed what she and the child would need for their visit in Orillia but did not take all of her things from the home. She provided the paternal family with some phone numbers and addresses as well as her cell phone number. The intended visit was from March 7, 2012 to March 17, 2012.

[29] The father and his family had two telephone numbers of relatives as well as her cell phone number as contacts for her when she left for Orillia. In the first few days, there was ongoing back and forth contact between them. However, when the issue came up about the non-availability of the van which was her drive back to Cambridge, and the mother decided that she would not be returning that night, there were frantic calls including to the police by the father and the grandparents.

[30] When the mother did not contact them the next morning, the father went to the police station to file a missing persons report. The police were able to contact the mother at one of her contact numbers as she had been staying with the relatives identified and confirmed that she and the child were fine. Meanwhile the paternal grandmother, despite knowing that they were fine, called multiple people in Orillia, including her relatives, garnering as much negative information as she could.

[31] The mother's cell phone had "died". Given the number of phone messages that the paternal grandparents and the father were leaving everywhere trying to find her the mother was concerned that they were trying to find her to take the child. So she attended at the police station for advice. When they contacted the police, the grandparents were told that she and the child were fine; however, the police would not tell them where she and the child were.

[32] The police told the mother to get a custody order so she attended at court on March 21, 2012 and completed the paperwork seeking an application and a motion for interim custody. The mother stated that although she had asked for interim custody, she had sought it with notice. Further she asked that the father be given access alternate weekends. She also spoke to a worker from the Simcoe Children's Aid Society (the society) who said that she did not have any concerns with her parenting.

[33] From the society records filed, it appears that the paternal grandmother spoke to the society worker Y on March 23, 2012 at 6:13 pm. It is clear from the notes that the worker was doubtful about the authenticity of the information that the paternal grandmother said that she had received. Further, the worker tried to dissuade her from driving that night to Orillia given the time. The note made it clear that the grandmother was told that if the society had concerns, they would work with the mother in the home first before removing the child.

[34] By this date, the society had also received information from the OPP that an officer had visited the mother and had no concerns (March 19, 2012).

[35] Meanwhile the father started an application and motion in Cambridge. The father tried to obtain an ex parte order of custody with no access by the mother with police enforcement but was only given an order for substitutional service. The mother did not receive the papers as they were simply left on her uncle's porch. The mother said that when she did receive the paperwork she had difficulty understanding what all of it was about.

[36] On the return of the matter in Cambridge on April 4, 2012, the mother had not had the opportunity to file any responding material and the court made an order with a number of terms including that the child and the mother were to have no contact with BB or JA. The father was given alternate weekend access.

[37] After the two files were amalgamated in Cambridge where the child had been residing, a settlement conference was held on July 11, 2012 and a consent order of week-about access was made. Despite the mother having no car and no driver's licence, the parents were ordered to share the transportation by meeting in Vaughn Mills. While the restriction against the mother having contact with JA was removed, it remained for the child. Further the restriction against both the mother and the child having contact with BB remained.

[38] BB is now the mother's partner as well as the father of her second child. They also initially met at cadet camp in 2006 and became friends. While she was pregnant with S, the mother and BB had a relationship from May until just after the child was born. The mother said that BB "dumped" her after hearing from the father before the court. However, they did message back and forth.

[39] The mother stated that she and BB started going out together after she and JA had broken up and she had decided to stay in Orillia where she felt wanted.

[40] Because of some statements on the internet, the father sought an order of DNA testing to confirm his paternity of the child. His paternity was confirmed.

[41] The mother acknowledged that she had been aware of BB's youth record for a sexual offence since 2006.

Unsubstantiated Allegations

[42] Despite knowing that the society and the police had no concerns, the father and his family continued to try to find and document issues regarding the mother's parenting. Most of the negative information provided by the father to the court by affidavits dated March 22, 2012 and March 23, 2012 in support of the motion seeking interim relief was bits and pieces of unconfirmed hearsay:

• The father stated that an unnamed female at "Uncle Mel's" told him that the mother was not staying there
• The father stated that his sister told him that an unnamed female told her that the mother was not at "Aunt Billie's"
• The father stated that that was a lie as his mother told him that she had dialed *69 on March 17, 2012 when the mother had called and that it was "Aunt Billie's" number
• The father stated that his mother told him that she had spoken to the mother's father who said that he did not know where she was
• The father stated that the mother and child had been living in a "drug infested" pigsty without food or clean clothes.

[43] The father also set out that he was worried about the safety of his child but did not disclose any reason. He made reference to "inappropriate relations" with her cousin and where the child was during such "relations".

[44] At trial, the father was seemed inordinately concerned about any cousins having a relationship. However, the issue of the child possibly being exposed to some risk was completely groundless.

[45] He stated that he was "gravely" concerned about people the child may have been left with but provided absolutely no specifics to support the concerns.

[46] The father also swore in his affidavit that the mother had transferred money from the joint account to one in her name and that she had spent an extraordinary amount of money. However, this was not confirmed at trial. In fact, it turned out that the father was well aware that the withdrawals the mother made from that account were at stores which would provide food and necessities for the child. Despite that, he himself closed the account to prevent her access to any further funds, money saved from the child support tax credit funds for the purpose of looking after the child. Then, despite being the one to cut off her funds, the father went on to state in the material filed with the court that the mother was financially fragile and wondered how she would pay for the necessities for the child!

[47] The father also stated that the mother was emotionally fragile without any information to support the statement.

[48] The paternal grandmother also filed an affidavit at that time. It became clear from her evidence at trial that she had exaggerated the mother's shortcomings as a caregiver in her affidavit in order to support her son's claim. The suggestion that the mother had not fed the child adequately in their home was a complete misrepresentation. Her affidavit noted that she too was "gravely concerned" but without any basis for that concern.

[49] The father's second affidavit dated March 23, 2012 also contained hearsay evidence from a witness not even fully identified. The father asked the court to accept his affidavit as he did not have time to get one from the informant but undertook to file her confirming affidavit afterward. Instead, the information was never confirmed as the person refused to provide a sworn statement. The allegations included that the child was not safe, was living in a drug-infested pig-sty of an apartment (belonging to the supposed informant!), wearing dirty clothes, without a supply of diapers, not being fed, out at all hours of the night, sleeping on a mattress on the floor without sheets, no bedtime, and left to scream one to two hours eventually falling asleep against the bathroom door. And despite the mother being the primary caregiver of the child since birth without a problem, the father put in his affidavit that he believed this all to be true.

[50] Instead of obtaining and filing an affidavit from the informant to confirm the hearsay allegations as he had undertaken to the court, on April 4, 2012, the father again filed an affidavit containing nothing but hearsay from the same person. There are many allegations about the mother's behaviour and the substandard parenting set out, including a reiteration of some of the information, still unconfirmed, from the first affidavit. This one included allegations of so-called eye-witness accounts of the mother striking the child on more than one occasion; driving without a proper licence and without using proper child restraint; and the mother's failure to take the child for medical assistance when ill. He alleged that the mother left the child's shoes covered in animal feces outside and made the child walk "about town without shoes until all hours of the night". He also told the court through his affidavit that he believed that the mother put the child in rubber boots without socks on and as a result of the hot weather the child ended up with "many blisters on her feet".

[51] The information in the affidavit is venomous, attacking the mother in every way. The father, despite having expressed no concerns about the mother's parenting of S for two years, stated that he believed all these allegations.

[52] Once again, no confirming evidence was ever filed. Further the alleged source of the information was not called to testify at trial.

Society Investigation

[53] The reality is that there was no concern about the mother or her wellbeing or about the ability of the mother to look after the child. Indeed, according to society records, by March 29, 2014 the mother had already arranged for a doctor to look after herself and the child.

[54] The grandparents had already been told by the society that they would work with the mother regarding any concerns but that they did not have any!

[55] The society had received a call from the Orillia OPP indicating that the mother needed assistance and that she had been directed by the police to contact the society. The mother did attend at the society office on March 19, 2012 and was told that they would not do a home inspection as there had been no referral. The mother told the worker that the father had harassed a number of family members wanting the mother's address that the police refused to give him.

[56] The mother came into the society's office again on March 27, 2012 and expressed her view as to why "Billie" was making false allegations against her. In the records on March 29, 2012, it was noted that "Billie" had her own ongoing file with the society regarding parenting concerns.

[57] Although the society had been told by the father and his parents that the mother was unable to care for the child or provide for the child, on March 29, 2012, a worker found the child in good spirits and observed that the child appeared to be meeting her milestones.

[58] On April 5, 2012 the mother received a letter from the society stating that the allegations were not substantiated.

[59] However, the mother wanted a more comprehensive letter for court and on May 3, 2012, the society wrote a letter to the mother confirming that the file had been closed as the March complaints had been investigated and it was found that the mother was able to care for the child.

[60] The father was aware that the society had investigated the complaint and found that the parenting was fine. Nevertheless, the father and his parents continued to call people in the Orillia area in an effort to find issues with the mother's parenting.

[61] It became apparent that from the beginning the only real concerns that the father and his parents had were that they had not been able to contact the mother every day and that she kept the child in Orillia.

Abuse of the Mother

[62] The mother in her application stated that she was physically and emotionally abused by the father. Indeed in her evidence at trial she spoke about the father's controlling and dismissive attitude towards her, having intimate relations with her despite expressly stating that he did not care for her. The mother described in detail the physical pushing she suffered at his hands. She did not appear to attempt to exaggerate the nature of the contact or its frequency. The father clearly did not have a respectful relationship with the mother.

[63] Unlike the father's unfounded allegations, the mother filed an affidavit of a witness confirming the father's verbal abuse towards the mother during access exchange.

[64] It is not clear from her evidence whether the mother initially intended to remain in Orillia permanently or whether she made that decision after being there for a few days. Certainly she was upset by the father, then 20 years old, dating a sixteen year old girl. Her own reply dated May 15, 2012 suggests that she may have broached the subject with the father of her moving permanently prior to her trip. However, that information is unsworn and not even signed by the mother.

[65] While the father was pursuing a relationship with another young girl while she was still in the home, the mother restarted contact with JA in Orillia.

[66] By May 2012, it was clear that most of the allegations relied on by the father were unfounded. The society had investigated and found the child well-taken care of. The suggestion of JA's drug and criminal involvement was proven to be untrue.

[67] The misinformation upon which the father relied in his initial material was fully exposed through the direct evidence of the affidavits by her aunt and others filed in May 2012.

[68] In his reply filed May 24, 2012 and his affidavit dated July 6, 2012, the father denied any abuse of the mother, stating that he was raised by his parents to "respect females". However, neither his decision to have another relationship at the same time as living with her nor his parents' failure to respond to her difficult situation demonstrated any respect for the mother's wellbeing as a person.

[69] In that same reply and in his affidavit, the father stated that he shared the role of parenting equally, something not borne out by the evidence at trial. Indeed his parents testified that they direct him to be involved and look after the child while the child is in their home during his time with the child.

[70] In his affidavit of July 6, 2012 the father once again relied on hearsay evidence, this time suggesting that his aunt's hearsay opinion should be relied on as expert evidence regarding asthma, the triggers of asthma, and the correct dosage in an inhaler. However, there was no evidence at trial of any concern about the mother's care of the child or failure to access medical assistance for the child.

[71] The father also stated that the child had regressed in development in many ways and yet none of that was substantiated at trial.

[72] Indeed, the mother was working with the society in assessing S's needs prior to the change in interim custody.

[73] As was noted, there was a week-about access regime ordered by the court July 11, 2012.

September 2012

[74] Initially the court ordered on April 4, 2012 that the mother and the child have no contact with JA and BB.

[75] The terms of that order reflected the misinformation that was filed by the father about the mother and her associates. While that order indicated that the child should not be exposed to any illegal substances in the mother's care, there has been no evidence that that was ever a concern. Similarly the concern about the mother maintaining a child-focused routine appears to have been baseless. The father had filed hearsay information about JA and his criminal record and involvement in drugs, all of which has been successfully disputed.

[76] On July 11, 2012, the term ordering no contact with JA was maintained for both the mother and the child but only preserved as regards BB for the child.

[77] In September 2012 the father brought another motion again seeking custody of S. The father's affidavit dated October 9, 2012 once again relied on hearsay evidence. He stated that he was told by the mother's uncle that the OPP had been dispatched to the respondent's home September 15, 2012 on a noise complaint from a party. He also stated that the child was there and that the mother told the police officer that she and the child lived there with BB. It is unclear as to whether that information was third-hand or fourth-hand.

[78] On that same date, the paternal grandfather also filed an affidavit replete with hearsay. He stated that he was advised by the maternal uncle that on September 23, 2012, there was an incident involving JA, BB and BB's father. The grandfather then provided information supposedly received from the mother to the OPP through the uncle and finally to him. On October 1, 2012, the grandfather spoke to the OPP and supposedly was told that the mother and BB were there involved in a domestic dispute but refused to give any details.

[79] On October 9, 2012, the paternal grandmother also filed an affidavit which purported to quote a children's aid worker LT.

[80] The concern of course is that the mother did not obey the court order prohibiting contact between the child and BB. While it is difficult to track her exact involvement with JA and BB, the mother has acknowledged breaching the court order. It is this breach together with the involvement of the society in Orillia that led to the successful challenge to the interim week-about order.

[81] While there is evidence that the mother allowed contact between BB and the child, there is no evidence at all that the child was ever left in his sole care.

[82] The reason that the term prohibiting contact was part of the order was because the father told the court on April 4, 2012 that he had received information from "Billie" that the mother was associating with BB whom he believed had been convicted of paedophilia. The father had also told the court that the police confirmed that both BB and JA had criminal records but would not disclose the details.

[83] In his affidavit of October 9, 2012, the father changed his position to state that the source of his information on March 23, 2012 regarding BB's sexual offence was the mother's uncle.

[84] However, at trial, he indicated that the police with whom they had spoken the same day had given them the information.

[85] It is hard to understand why the police would be speaking to the father or his family about JA or BB and their involvement with the criminal system at all. There was no court order and certainly no consent. I have some concern that the paternal grandmother's previous employment as a 911 operator may have caused a breach of privacy protocol although she denied the same.

Society Interference with Court Order

[86] However, it was the involvement of the society in Orillia that derailed the family court order of July 11, 2012 that had established the shared week-about custody arrangement. The society was contacted by the police regarding a domestic incident September 23, 2012. There was concern that the mother might be living with BB in the face of a court order of no contact. While the undated "summary of involvement" from the society does not reflect the contact between the worker LT and the paternal grandparents and the father, it appears from the notes that there were a number of conversations.

[87] From those notes, it is clear that the paternal grandmother was pushing the society worker to take action.

[88] On September 28, 2012, the worker LT noted that the society was aware that BB attended treatment through the society but could not find information regarding its completion. She noted that the father should keep the child until their investigation was complete and BB provided information regarding the treatment.

[89] On that same date, the worker LT appears to have told the paternal grandmother, the father being at work, to keep the child in their care and not to give the child to the mother for her custodial time. She had noted that the child was to stay with the father until "it has been determined that it is safe" for the child to return to her mother's home.

[90] The worker indicated in the summary that the reason for this interference with the court ordered access was because the mother had not returned her messages regarding the information that she was living with BB with the child. The worker stated that she had left a letter for the mother indicating that essentially her access to the child was suspended.

[91] The letter stated that the child "will not be returning to you at this time". For obvious reasons the mother believed that she could not have access without the society's permission. The same worker then criticized the mother in her notes for not having access sooner, despite having abandoned her to negotiate access on her own with the father and his parents.

[92] Instead of properly forming grounds to bring a protection application and a motion for terms of supervision or to apprehend the child, the worker without any notice to the mother simply "authorized" the grandparents to over-hold the child. By failing to initiate any process, the worker interfered with the mother's rights without providing her with notice or recourse. This "back door bullying" tactic resulted in the mother losing her existing right of access.

[93] Had the society followed through with their mandate, they would have had to immediately establish to a court's satisfaction that there was risk to the child as a result of the family court order being breached. The further unfairness is that the information that disputed the risk was in their own file! However, the society was under no obligation to fix the matter as they had not started an action. Had they commenced an application, the mother would have had proper notice and the society would have been obliged to defend their interference.

[94] Unfortunately the mother did not get the messages from the society. Had the society taken the appropriate route, the mother would have been served personally with a motion and application.

[95] The mother did not receive any letter from the society cancelling access. Nor was she informed by the father. As a result she and her driver went all the way from Orillia to the meeting point in Vaughn Mills to pick up the child who was not there.

[96] Immediately the mother began to call the society to see what had happened. The summary confirmed that on October 1, 2012, the mother spoke to her to ask what she needed to do to prove that BB was not a risk to the child.

[97] The worker also confirmed that on October 2, 2012, BB and the mother attended the office for BB to sign the consents to allow the society access to the services he had obtained as a result of his conviction for sexual interference.

[98] Despite having interfered with a court order without first obtaining one and despite interfering with a parent's rights, the society did nothing to follow up. Although the program that BB attended was under the auspices of the society, they appeared disinterested in confirming the details of the counselling and the lack of risk.

[99] Some of the involvement by the worker LT is concerning. While she acknowledged in the summary that the mother wanted to know what to do to get her daughter back, her note dated October 1, 2012 stated that the mother did not seem to want her daughter back, a statement which made no sense given she knew that the mother was trying to get her daughter back. Indeed she had access to the after-hours worker's notes indicating that the mother had called crying and upset when her child was not at the access exchange.

[100] A copy of the Simcoe County Sexual Abuse Group Treatment Program progress report was obtained October 9, 2012 and provided to the society but despite the very positive nature of the comments, the society did not ensure that the week about regime was re-instated. Indeed, despite the express obligation of the society to work with the custodial parent, the worker instead appeared to have simply decided to support the father. The society worker who had intervened and directed the change in the custody arrangement did nothing to research the risk and to restore the week about regime of access to the child.

[101] In fact on October 31, 2012, the same worker LT wrote a letter for the father to Canada Revenue Agency so that he would start to receive the child support tax credit. In that letter, she indicated that "the plan at this time was for (the child) to remain with (the father)".

[102] The behaviour by the society worker in this matter was unacceptable and unfair. If the society had a concern about risk, then they should have met the standard set in the Child and Family Services Act (CFSA) instead of bullying a young parent involved in a family dispute.

[103] The worker completely failed to follow up in a manner that would have protected the child's relationship with the mother. They had the report. They should have ensured that the child was delivered to the mother as per the existing order.

[104] Instead LT did nothing except to support the father. However, the mother continued to try to get the society to state clearly that they were satisfied that BB did not pose any risk to the child.

[105] On November 5, 2012, once again the mother and BB attended the society, concerned about the information that the worker had shared.

[106] On November 15, 2012, JM, a supervisor at the society and the author of the report confirming the completion of BB's treatment, noted that there were issues of violence to be addressed in the relationship between the mother and BB, something that clearly was not the case. The next day the mother attended again, trying to get the society to provide a letter stating that they had no concerns about BB. The mother told him that there was no domestic violence and indeed there was absolutely no evidence of any violence in the relationship between the mother and BB.

[107] On November 21, 2012, again the mother attended asking for the letter. Finally on December 14, 2012, the first letter is written that confirms the completion of BB's treatment program but referred to an individual treatment program the writer could not confirm.

[108] As that letter did not satisfy the father, the mother requested another.

[109] As a result of the stand of the society, a stand taken without any compliance with the fundamental objectives of subsection 1(2) of the Child and Family Services Act (CFSA) to help the family, the father was able to convince a family court on December14, 2012 that the interim order should be changed to sole custody to the father.

[110] Unfortunately all the affidavits containing the unsubstantiated hearsay remained in the file available to the court at the time the motion was argued.

[111] Had the society commenced an application in Orillia to deal with the allegation of risk, the family matter would have been stayed pending the outcome.

[112] On January 14, 2013, the society provided a letter regarding BB's sexual offence as a young offender, a letter that unfortunately divulged some details regarding the offence including ones that could lead to the identification of the victim. In that letter, the society stated that they "believed" that BB had completed the program and that he no longer posed a risk.

[113] On February 22, 2013, the society finally acknowledged that there were no concerns about domestic violence. Indeed there never had been any.

[114] Then on June 13, 2013, JM detailed the treatment that BB had received and stated that the society would not oppose BB being a part of any "access" plan.

[115] However, none of these letters or withdrawal of concern by the society resulted in the mother obtaining her week about contact with the child again.

[116] Between the misinformation filed by the father and the paternal grandparents, and the inexcusable behaviour by the society the damage had been done to the mother's contact with the child.

[117] Despite the society's letters to say that they had no concerns about BB, the father insisted that an order remain that he not be left alone with the child during access.

Access

[118] Access has been difficult since the society became involved in the matter. Initially the father had alternate weekend access on the consent of the mother. Then again the mother agreed to the father having week-about. However, once the father kept the child, access by the mother became more difficult.

[119] From September 2012 to February 2013, the mother exercised very little access with the child. Initially the mother thought that the worker had to arrange and approve access. Then when she realized that she had to work it out with the father, she attempted to make the arrangements.

[120] Initially the father was very resistant to the mother having any access. Then when access was offered it was in Cambridge for two hours at a mall. Then the access "expanded" to four hours in Vaughn Mills Mall. Despite being aware that the only ride that the mother could arrange was on a Monday, he insisted on offering Sunday. In April 2013, the access was expanded from 10 am to 6 pm.

[121] The father was not cooperative regarding access insisting on short periods of time and unreasonably withholding telephone contact between the mother and the child. Further transportation was an issue as the mother did not have a licence or easy access to a vehicle.

[122] During the trial, the mother, BB and the new baby were in town and so there was some access arranged.

[123] At the conclusion of the applicant father's case and knowing that there was an adjournment from January 30, 2014 to the week of March 3, 2014 for the trial continuation, the court invited submissions regarding access. Having heard the evidence of the applicant father and his witnesses, the court felt satisfied that there should be a return to the original week about regime pending the trial completion. However, the court maintained the term that the child was not to be left in the unsupervised care of BB.

[124] When the trial was completed on March 6, 2014, the court confirmed that the week about should continue.

Concerns Regarding the Records Provided by the Children's Aid Society

[125] The society has played an important although inappropriate role in this matter. Further, the records disclosed by the society were incomplete and exhibited very poor documentation, often lacking dates, time and even who was involved in the event noted. Indeed JM, employed as a service manager for sixteen years with the Simcoe County Children's Aid Society, eight of which were in Orillia, acknowledged the unacceptable state of the records. During his evidence, he attempted to piece some of the information together. He also acknowledged that there had been an inappropriate sharing of information by the worker regarding BB and the mother to the father and his family.

DECISION

The Law

[126] While the court has expressed concern about what has happened to the child's relationship with the mother, her primary caregiver, as a result of misinformation provided to the court and the failure of the society to take the steps necessary to assist the child and her family, ultimately the decisions regarding custody and access must be based on the child's best interest.

[127] The application and cross-claim for custody and access are before the court pursuant to section 21 of the Children's Law Reform Act (CLRA). Under section 20, it is recognized that the mother and the father are equally entitled to custody of the child. There is no evidence that either parent has acquiesced to the other having custody.

[128] Under section 19, the four purposes of Part III of the CLRA are set out and they include the following:

• To ensure that any determination with respect to custody and access is on the basis of the child's best interests
• To discourage the abduction of children as an alternative to the determination of custody rights by due process.

[129] Further, section 24 mandates that any determination on the merits must be on the basis of the best interests of the child. Subsection 24(2) sets out a number of factors that should be considered in the assessment of a child's needs and circumstances.

The Application of the Law

The Father's Plan

[130] The father currently resides with his parents in an established well-to-do home. Although there was one move from Kitchener, the child has spent most of her early life with the father and the mother living in the same residence as the paternal grandparents. The child thrived in that environment.

[131] Further, the child has continued to do well in the care of the mother in Orillia, the week-about regime where the child moved between the father's home and the mother's, and the primary care of the father from September 2012 to January 2014.

[132] The child is certainly bonded with both of her parents and is also connected with extended paternal family members with whom she has had contact. She of course would have a strong bond with her paternal grandparents.

[133] However, while connection with parent and family are important, the issue of the same home or same neighbourhood is a secondary consideration.

[134] In this case, while the father at the time of trial continued to live with his parents, the evidence before the court supports the conclusion that ultimately he will move out of this home. First, the father continues as one would expect to be interested in seeking out a new relationship; this might lead to his moving out on his own or with someone else. He is now 22 years of age.

[135] Indeed his parents said that when the father moved out they would expect him to take the child. The father himself testified that he would stay with his parents only as long as it was "necessary".

[136] The relationship between the father and his parents is not always smooth. The evidence is that when they argue, he leaves the home in anger. That too may contribute to his decision to ultimately leave the home.

[137] It should also be noted that there is no evidence that the father has ever resided on his own so that may at least in the beginning pose a problem for him in the future.

[138] It is his plan before the court and, while bonds with extended family have a role to play, it is important to assess his ability to parent the child and the strength of his plan.

Father's Parenting Capacity

[139] First, he was not the primary caregiver for the child while the parents were together. He was a reluctant participant in the child's life from the beginning. It is not contested that the father initially had no interest in the expected child despite his misleading affidavit that was filed. It was his parents who made the plan and managed to secure the cooperation of the two young parents.

[140] Even after the implementation of the plan, the father was not prepared to share the parenting as contemplated. Both the mother and his parents had to ask him to help and often he reacted angrily. The evidence suggested that he was more interested in being on the computer, sometimes up to six hours at a time.

[141] When one looks carefully at the evidence, it seems clear that it has been his parents who are motivated to have the child in his care and not the father. Their involvement in Orillia and in trying to discredit the mother in every way they can demonstrates their focus on getting the child back for their son.

[142] Further the father seemed unable to recount his involvement with the society, the supposed witnesses and the police in Orillia. There were times where his evidence contradicted that of his parents. It seems that his parents took the lead.

[143] A number of times the father took a somewhat inexplicable position in his evidence. For example, he told the court that he had initially refused to allow access on the only day that the mother had transportation because his father was not available to go with him that day. When asked why he had to have his father with him, the father seemed unable or unwilling to provide an explanation. The court was left with wondering whether he was concerned about being involved in a hostile confrontation as had been noted on one access exchange or whether he was uncomfortable being responsible for the child for that a long a time on his own. Regardless it was a position he was did not clarify.

Father's Anger Issues

[144] The father also has acknowledged that he has an anger problem. He testified that at times he gets angry and leaves the home. He admitted leaving for a number of days when his parents confronted him about his new sixteen year old girlfriend.

[145] Indeed from the father's demeanour in court, it seems that he has an issue with communicating in an even and appropriate way without displays of anger. When he was listening to witnesses, the father became very reactive unless he was focussed on writing.

[146] Then there was concerning behaviour while he was giving evidence. A number of times the father would be asked a question and he would simply sit staring down at the table that forms part of the witness box. After a period of silence I would ask if he was still thinking about the question but it seemed that he was not. At times he would burst out with information or an answer or an unrelated remark as if he was angry about something.

[147] The father appears to struggle with interacting without being overwhelmed with his feelings. This is supported by the evidence of angry outbursts when directed or challenged. This would certainly be a concern in his parenting of a child, especially without the buffer of his parents.

Father's Hostility Toward the Mother

[148] Another aspect of the father's anger is the evidence of his hostility towards the mother. Despite the relationship between the mother and the child, he saw it as appropriate to ask a court for an ex parte order giving him custody with no access by the mother because she had stayed in Orillia with the child without his consent.

[149] Despite having left the parenting of the child principally up to the mother, he filed affidavit after affidavit of conjecture, speculation and hearsay, prepared to try to eliminate any prospect of her participation in the child's life. At every step of the way, he has done everything to obtain control and use it to prevent her re-involvement in the child's life.

[150] I have already noted my concern about the father misleading the court in his affidavits and then subsequently changing his evidence again at trial.

[151] At every opportunity he and his parents sought out information from any source no matter how suspect to try to attack the mother and her relationship with the child. When the initial efforts using unsubstantiated information through "Billie" did not work, the father continued to seek out something else to use. He made up information to make the mother look bad.

[152] Even after the society had confirmed that the child was fine, their own investigation did not stop.

[153] Pressure was put on the society to investigate allegations.

[154] When the mother was attempting to alleviate the concerns of the father around her boyfriend BB by providing the letters from the society, he refused to accept any reassurance.

[155] From his testimony in court, it became clear that the father tends to be very rigid and inflexible. Further, he is dismissive of the mother's importance to the child. Although asked by the society to facilitate access by the mother, he offered very limited access and made it difficult every step of the way.

[156] The father also seemed upset about the mother's relationships. He appears to share his parents' view that they can never "forgive" the mother for taking the child.

[157] This rigidity will not be conducive to effective parenting as the child gets older. Further, between his inflexibility and his hostility toward the mother, he will certainly not be a parent who recognizes and encourages the child's bond with the other parent.

[158] He has unreasonably refused access at times when he should have tried to accommodate the contact.

[159] He appeared to support his parents taking photographs of every mark on the child after her visits with her mother in order to carry on with their mandate to prove the mother is not a good parent. There seemed to be no insight on the part of the father or his parents into how inappropriate such behaviour was.

[160] Also it was very concerning to see how insignificant the marks were in the photographs compared to what they had described. Some were practically non-existent. The father and his parents essentially use the child's return from access to catalogue any tiny mark. Certainly this is not in the child's best interests.

[161] Given the focus of the father, he would never support the child's relationship with her mother. Indeed he brought a motion for sole custody ensuring that the society could not tell him that the access should resume had they found no risk.

Father's Employment and Connection with Child

[162] While the father has been in and out of jobs and school programs in the past, he now appears to be securely employed with annual earnings of about $33,000.

[163] In examining the father's connection with the child, his decision to seek DNA testing when the child was19 months old was odd. I agree that there was information that surfaced that might have given him pause but despite having been a parent to S for this length of time, his only concern appeared to be not being on responsible for supporting a child that was not his.

[164] The plan proposed by the father supposedly includes very little daycare given his parents' ability to often assist with child care. However, it is concerning that despite the repeated requests and opportunities, the father did not provide independent confirmation of the frequency and duration of the day care used.

The Mother's Plan

[165] The mother currently resides in subsidized housing with her boyfriend BB and their child born September 2013. The mother has been working diligently with the society, attending programs such as Healthy Babies Healthy Children (HBHC) and many other child focussed activities. She appears to be quite capable and certainly the society has no concerns about her parenting.

[166] Immediately on arriving in Orillia, she organized her social assistance, and stayed with her relatives until she secured a home.

[167] The mother is hopeful about registering in school in the fall in order to eventually get employment. She also expressed an interest in getting as driver's licence once she could afford it.

[168] Certainly they live in a modest premise and BB is not working although he is looking. While BB struck the court as forthright, he is not yet working and is unclear about implementing any school path. She is currently available to look after the child although some daycare will be involved if she returns to school or work.

[169] While the mother has family in Orillia, she grew up with her father in Trenton. However, her partner's mother has stepped up to help the young couple so they do have some connection and help in town including the mother's sister.

[170] One of the benefits of the mother's plan is that S would get to grow up with her half-sister. S had the opportunity to spend time with her sister and supposedly S was quite excited. Developing a bond with her sister would definitely be in both children's best interest.

Mother's Poor Decisions

[171] The mother has of course made a number of poor decisions. She unilaterally removed the child from the joint care of herself and the father. She removed the child from the security of the only home that the child had ever really known. The child was taken to a city in which family supports were less obvious or secure. The child was taken by the mother without much forethought or planning about where they would live or how they would manage. She made all these changes without the consent of the father. The mother's immaturity was reflected not only in her removal of the child in these circumstances but also in what she chose to do in Orillia. First there was one potential relationship and then another. Further, despite the outstanding concerns about BB and her limited resources, the mother then chose to have another child.

Mother's Circumstances Justified Her Departure

[172] Her decision to leave given her circumstances in the paternal grandparents' home is somewhat understandable. Her situation was untenable. The mother cannot be faulted for not asking for a different bedroom. It was not her home and she was very young. Really she had no options. She had been hesitant to come and live in the home in the first place; when she did give it a try, it did not work out.

[173] The mother was in a home that was not her own, with people who were not her family. The father was not particularly supportive of their relationship or in the parenting. Certainly the father was working at times during the relationship and attempting to pursue courses; however, the father was often disinterested and resisted the mother's requests for help.

[174] Regardless of why she came to Orillia and stayed, she certainly had no choice about moving out of the father's home and her situation there.

Mother's Parenting Capacity

[175] It is clear from the evidence that the mother was the child's primary care giver. There were no concerns about her parenting in the paternal grandparents' home or in Orillia. Indeed after the birth of her second child, the mother cooperated fully with the society in Orillia to access services provided and they appear to have no issues with her parenting or that of BB.

[176] There is absolutely no evidence that the mother is not capable of looking after S. Quite the contrary.

[177] The mother was clearly devastated when her daughter was not returned to her care. She had attempted in her dealings in court to recognize the importance of the child's relationship with the father despite the father not reciprocating. She did everything that she could to right the wrong she had done by violating the court order in her efforts to show that BB was not a risk.

Mother's Credibility and Maturity

[178] The mother often appeared younger than her age of twenty at the trial. She clearly had hoped that the father would be interested in being her partner but that was not to be. When speaking about the father and their early relationship, she said that they were friends which she said was nice. There is no question that the mother had been disappointed about the situation with the father.

[179] She is a very young parent who has been fighting hard for her child without a great deal of support. It cannot be said that she was not interested in S. She was consistent in wanting to have her in her care. She has fought for access. Her violation of the court order in part may have been influenced in thinking that if the society had the information, that was enough. Indeed in the face of the order, the worker asked the mother to have BB call her.

[180] The mother and her partner saved carefully while on social assistance to pay for the gas and the motel in order to be able to attend the trial, a particular hardship given the need for extra days.

[181] While it is important to follow court orders, in this case the term violated turned out not to be needed to protect the child.

[182] Unfortunately the mother often contradicted herself in her evidence. It appeared that she did not always understand what was being asked and tended to reply somewhat glibly.

[183] However, her evidence regarding the conflict between the two parents was quite credible. The mother testified that the father would become impatient and resistant and would push her around physically.

[184] It was certainly detailed and very specific without any sign of any embellishment. Indeed she acknowledged that she had pushed him once. Her evidence regarding the father's behaviour toward her is consistent with the outbursts that he has acknowledged in the home and his extreme hostility toward her after she left.

BB's Risk Assessment

[185] In dealing with the issue of her new partner BB, there is no evidence that BB poses a risk despite his involvement as a young person in a sexual interference. JM who testified from the society told the court that they had no concern about BB being involved with the children as a father or stepfather.

[186] JM was able to tell the court about BB's successful completion of the counselling through the society a number of years ago and added that he had had other counselling as well although those records appear to be unavailable. BB's mother also testified, confirming that BB had successfully completed all the counselling that he was asked to do.

[187] The specifics of BB's youth record are somewhat unclear. It appears that the charge of sexual interference occurred when BB was about 13 in 2006 or 2007 and he was on probation for at least a year.

Youth Criminal Justice Act Analysis

[188] Under section 119 of the Youth Criminal Justice Act (YCJA), access to a youth's criminal history is restricted. While subsection 119(1) limits the persons provided access, subsection 119(2) limits the time period during which the records can be accessed.

[189] If a young person is charged with an indictable offence, the period is limited to the five years following the completion of the youth sentence. For a summary conviction matter, the period is three years after the completion of the sentence. If a youth is convicted as an adult of an offence during the time period, then the limitation no longer applies.

[190] In this matter, it is likely that the access to BB's youth record would be prohibited by the expiration of the time period set out in section 119. While there are limited exceptions to the prohibition, the situation before this court would not qualify.

[191] The reason that I am mentioning this situation is to reflect on the intention of Parliament when dealing with the record of a youth's sexual offence. The principled approach of the YCJA is to recognize that youth make mistakes and that they should not be burdened with them into the future. Section 3 sets out the concepts of "diminished moral blameworthiness" and the focus on rehabilitation.

[192] It is particularly noteworthy that not only are the records of sexual offences for youth treated the same as any other youth records, but also that a youthful sex offender is not registered as a sex offender under provincial or federal legislation.

[193] Therefore it appears that from the perspective of both the province and the country, there is no risk being identified that would require monitoring.

[194] The society is satisfied with BB's parenting of the mother's second child. There is no evidence of any concerns.

[195] Counsel for the father has submitted that there are no guarantees that BB might not reoffend. While that is true, there seems to be no evidence that he is at higher risk of offending that anyone else.

[196] BB testified in quite a direct way, acknowledging his issues with anger and what he had done to deal with it. While he does not have a very solid plan regarding his future education and work, he does appear to be participating fully in the parenting of his child and S when she is with them.

Conclusion

[197] While the mother acknowledges the importance of the father, it is not reciprocated. The father has shown that he can be directive and controlling. He did not respect the mother before, and now even less. I am concerned that he will not support the child having liberal contact with the mother. The father would likely be inflexible and unaccommodating if he had sole custody.

[198] Given the father's dislike of the mother and her partner and his behaviour to date, there is no possibility of a successful joint custody or a shared custody regime.

[199] Week about cannot be maintained given the child's attendance at school in the fall, the distances involved and the relationship of the parents.

[200] While stability in a child's physical environment is an important factor in the consideration of custody, it does not outweigh the importance of choosing the person who is the better parent and can best address the needs of the child. The evidence demonstrates that the mother is the parent who is the most child-focussed and the person in whose care the child's interests will be best served.

[201] The mother is clearly the stronger parent and the one more likely to encourage and support the father's role in the child's life.

[202] It is true that she and her young family are living very carefully financially and she and BB will need to follow through on their plans to improve their position through education, programs and driver's licences. However, at this time, the mother and BB appear to be making it work.

[203] The father and his parents all drive and are available at various times to transport the child for access.

Child Support

[204] There was no order made of interim child support either for the time that the child lived with the mother or a set-off amount for the week-about periods. The mother has sought child support in her original application. However, given that there were no submissions regarding the issue, I am not going to order child support for that period, only going forward.

[205] The father testified that the sworn financial statement dated November 14, 2013 and filed in the trial record represented his current earnings. It therefore appears that he has employment income of $2746.25 monthly being $32,955/year. Therefore child support in the amount of $281/month should be payable should be payable by the father commencing July 1, 2014.

Summer 2014

[206] Hopefully the parents will be able to work out the summer access going forward following the expectations of the order. The father should immediately confirm with the mother what weeks he would like as holiday this year.

Costs

[207] Any party seeking costs shall serve and file submissions including a Bill of Costs on or before July 18, 2014. A party seeking to respond to a claim for costs may serve and file responding submissions on or before August 1, 2014. Reply to the response may be filed by August 15, 2014.

FINAL ORDER

1. Custody to the mother.

2. The father to have access:

(a) Alternate weekends from Friday to Sunday at a time agreed by the parties to include Monday where a statutory holiday commencing June 20, 2014;

(b) Alternate March school breaks commencing 2016;

(c) Four weeks during the summer with a maximum of two weeks in a row;

(d) Christmas from 6 pm December 24 to 11 am December 25 in odd numbered years and Christmas from 11 am December 25 to 6 pm December 26 together with a share of the Christmas school holidays as agreed by the parties; and

(e) Such other access as agreed by the parties.

3. The father is to be present during the access including the access transportation except with the mother's specific consent.

4. The father is responsible for all the access transportation.

5. The father is to notify the mother in writing by May 1 each year of the summer access that he would like and the mother and the father shall work out a summer schedule.

6. The father shall have the right to access any records involving the child's schooling or health and to speak to any school and health professionals involved with the child.

7. The mother is to consult the father regarding any major decisions about the child but the mother shall have the final decision.

8. The parents are to notify each other in writing 30 days prior to any change in their residence.

9. The father is to pay child support in the amount of $281/month based on $33,000 commencing July 1, 2014.

10. The father is to pay his proportionate share of special expenses for the child. The mother is to provide the father with a list of such expenses including independent confirmation of the same as well as confirmation of her own income during the period of time of the expenses claimed.

11. The father and the mother are to notify each other in writing 30 days prior to any change in residence.

Released: June 16, 2014

Signed: "Justice P.A. Hardman"