Court File and Parties

Ontario Court of Justice

Date: August 13, 2015

Court File No.: North Bay – FO30-11

Between:

JAMES COLQUHOUN Applicant

— AND —

ANNA DASILVA (now Edwards) Respondent

Before: Justice Greg P. Rodgers

Heard on: September 30, 2014, October 27, 2014, November 7, 2014, November 10, 2014, December 8, 2014, December 19, 2014, March 9, 2015, March 10, 2015, April 27, 2015

Reasons for Judgment released on: August 13, 2015

Counsel:

• Edward Rae, for the Applicant
• Shawn Hamilton, for the Respondent

RODGERS, J.:

Introduction

[1] This case focuses on the best interest of a little boy whose legal name is Thomas Joseph Edwards. "Tommy" was born on February 26, 2010. His parents are Anna Edwards (formerly DaSilva) and James Colquhoun. They each want an order for custody of this child.

[2] This is a high conflict case. The parents have been entrenched in a relentless battle over this child for most of his life.

Background

[3] The parents agree on very little. They have even disagreed on the name of the child. By any version the history in this case is bizarre.

[4] Anna DaSilva came to North Bay in 2001 to study at Nipissing University. She met Kurtis Edwards in 2005. They resided together and had a son, William in April 2007.

[5] In February 2008 Anna DaSilva and Kurtis Edwards separated. During this separation Anna DaSilva met James Colquhoun. They immediately began an intimate relationship. Anna and Kurtis reconciled in November 2008. The relationship between Anna and James did not end, however. Mr. Colquhoun was not aware of the reconciliation and Mr. Edwards was not aware of Mr. Colquhoun's relationship with Ms. DaSilva. Anna DaSilva and Kurtis Edwards were married in March of 2009. The affair continued.

[6] Throughout this time Ms. Edwards would spend considerable time with Mr. Colquhoun at his residence. She would often stay over. On many occasions she would have her son William with her. From November 2008 to June 2009 James lived in Field, Ontario. Anna stayed with him there. In June 2009 James stayed with his parents in Sturgeon Falls. Anna was with him and often stayed overnight. James' parents believed they were in a committed relationship.

[7] In June 2009 Anna discovered she was pregnant. Both her husband Kurtis and her boyfriend James were convinced that they were the child's father. Neither was yet aware of the other's parallel relationship with Anna.

[8] David Colquhoun is James' father. He testified that he and his wife were informed by James and Anna that they were expecting. This announcement was made in the summer of 2009 when James and Anna lived with them in Sturgeon Falls. I found David Colquhoun to be a credible witness.

[9] On October 22, 2009 Anna and James rented a house together on Jocko Point Road between North Bay and Sturgeon Falls. They both signed the lease. Anna was there often even though she remained in her marriage to Mr. Edwards. She went back and forth between both homes. She gave compelling reasons to both men to explain her frequent absences from each home.

[10] Anna was at the Jocko Point residence on the night of February 25, 2010. This was the day before she was scheduled to deliver her baby by C-section. James returned home from work that night. Anna was asleep. James looked through her e-mail because he was suspicious about her level of commitment to the relationship (she had not yet moved her furniture to the residence or made any preparation for the baby's room). He learned that Anna was making arrangements for a babysitter so she could attend at the birth with her husband Kurtis Edwards. James was shocked to learn that Anna was married. He awoke Anna and confronted her but not before setting up a video camera to capture the event. He later posted the video on Facebook. (Neither parent has a monopoly on immaturity in this case). Anna stormed out of the residence.

[11] On February 26, 2010 Anna Edwards gave birth to a healthy baby boy. Mr. Edwards was with her at the hospital. At the hospital in the presence of Trish Mills, a social worker, Anna disclosed to Kurtis that he might not be the father of the child. Kurtis was understandably devastated. Notwithstanding her uncertainty over the paternity issue, Anna promptly registered the child as Thomas Joseph Edwards and identified Kurtis Edwards as the biological father. Even the name of this child has been and continues to be a source of conflict.

[12] There were many acrimonious communications between James and Kurtis following the birth and once they both became aware of each other's existence. Remarkably the intense and at times volatile relationship between James Colquhoun and Anna Edwards resumed after a brief hiatus.

[13] On March 13, 2010 when the child was two weeks old, Anna brought him to meet James at the Jocko Point residence. A photo documents this encounter. It depicts Anna holding the child. She is in James' bedroom wearing pyjamas. It is clear that the relationship continued throughout the spring and summer of 2010. Anna would often stay at the Jocko Point residence with the baby. Sometimes William was present.

[14] In July 2010 Anna and James again stayed at the home of his parents in Sturgeon Falls. During this period James and his parents called the child Nathan. They were unaware that the child was named Thomas. David Colquhoun was puzzled why Anna did not call the child by any name. He was further confused when one day William called the baby "Tommy".

[15] On July 29, 2010 both Anna and James signed a lease for a house in Corbeil. There was much conflict between them and the landlords. On occasion the police was called. The police dealt with James and Anna as a couple. On one occasion Anna called the police from that location in the evening to complain about a noisy neighbour keeping her baby awake. Anna and James engaged in a landlord/tenant proceeding in October 2010 as a couple. On December 23, 2010 Anna and James entered into a lease at 429 McKeown Ave. Mr. Colquhoun still lives there.

[16] In January 2011 Ms. Edwards vacated the McKeown Street apartment. She went to the police and complained that Mr. Colquhoun had assaulted her. He was charged and released on bail conditions that prohibited them from contacting her. (The charge was withdrawn in February 2012). They continued to secretly see each other notwithstanding the bail conditions.

[17] Throughout this time Kurtis Edwards was oblivious of the relationship between his wife and Mr. Colquhoun. Anna told him that she was only involved with James during their separation in 2008. She told Kurtis that James was an ex-boyfriend who was continuing to harass her.

[18] Indeed, she maintained that account throughout these proceedings up until trial. She told this version to the OCL assessor in 2011 and 2013 and to Dr. Sroga a Clinical Psychologist who supports her. [1] She has maintained this account in various affidavits filed in the course of these proceedings.

[19] At trial she admitted that her previous descriptions of the nature of the relationship with Mr. Colquhoun were not true. She testified "I haven't been entirely truthful. I lied about being in a relationship with James." She also acknowledged that her previous affidavits where she insisted that Mr. Colquhoun had no access to the child before such was court ordered were false. At trial she acknowledged that the relationship with James started in the spring of 2008 and that she continued to see him until May or June 2011. She described it as a love/hate relationship. She testified that the relationship endured because she continued to have feelings for him.

[20] James Colquhoun applied for custody on January 24, 2011. He has always insisted that he is the child's father. Paternity testing was ordered on March 3, 2011. That testing confirmed that James Colquhoun is indeed the biological father of the child. This court confirmed that finding on May 19, 2011.

[21] While Anna Edwards has drastically changed her previous account of the duration of her consensual relationship with James Colquhoun, she has steadfastly maintained that she has no recollection of any sexual encounter with Mr. Colquhoun around the approximate time of conception in May 2009. She asserts that during this period she was lonely and sought out Mr. Colquhoun's company. They were alone together at his residence and he gave her some marijuana cooked in milk. She became intoxicated. She professes no memory of any sexual encounter. She goes on to suggest that Mr. Colquhoun must have had sex with her and that is how Thomas was conceived. This is obviously the account she gave her husband to explain the paternity testing results. This account is inextricably connected to Ms. Edwards' original version of the duration of the relationship. She originally maintained that the relationship ended before Thomas' conception. At trial Mr. Edwards acknowledged, "I strongly believe everything my wife tells me."

[22] On May 9, 2011, shortly after the paternity test results were released, Mr. Edwards went to the police to report his wife had been raped. A few weeks earlier he had his young son William leave a scripted voice mail message for Joe DaSilva, Anna's father. Kurtis was angry that Joe DaSilva appeared to be taking James Colquhoun's side. The message left by William was "a bad man is trying to hurt our family".

[23] In August 2011 Kurtis and Anna attended the police and recounted the sexual assault complaint. No charges resulted. Mr. Edwards was not happy that no sexual assault charges were processed. He lodged a complaint about the investigation.

[24] Carole Vaillancourt prepared a s.112 report that was completed on December 2013. She writes at para. 9:

"Much of the evidence indicates that Ms. DaSilva was indeed in a consensual relationship with Mr. Colquhoun and Thomas' conception was not the product of a sexual assault… Ms. DaSilva continues to this day to deny that the relationship lasted as long as it did or even existed following Thomas' conception… Mr. Edwards' apparent blind faith in his wife and his belief of her version of the story, despite overwhelming evidence to the contrary is worrisome."

[25] This court attempted to discourage the parties from fixating on the circumstances of the child's conception. Unfortunately, at trial the allegation of sexual assault remained a central part of Ms. Edwards' case. If this ruling accomplishes nothing else, I hope is settles forever that no sexual assault occurred. I am absolutely certain that Thomas was not conceived as a result of a sexual assault. This certainty comes from a number of considerations taken together:

a) Ms. Edwards was involved in a long term intimate consensual relationship with Mr. Colquhoun from May 2008 to June 2011. The child was conceived in May of 2009. I am aware that sexual assault can occur in an intimate relationship.

b) Ms. Edwards sent a Father's Day card to Mr. Colquhoun in 2009 worded, "To the father-to-be". This was the same month she discovered she was pregnant. She insists that this card was sent in 2008 and referred to Mr. Colquhoun's plans to adopt William. This account is not believable. Her tortured attempt to explain away this card only confirms Mr. Colquhoun's version.

c) I find as fact that Anna and James announced their pregnancy to his parents in July 2009.

d) The first sexual assault complaint was brought forward by Mr. Edwards and only after paternity testing proved that Mr. Colquhoun was the father. The timing is highly suspect.

e) The police investigation determined there were no reasonable and probable grounds to conclude a sexual assault occurred.

f) Ms. Edwards lied under oath about the duration of the affair. Her first version insisted that the relationship had ended well before the time of conception. She now acknowledges that the relationship continued for two years following conception. She is not a credible source on this issue even under oath.

g) At the hospital, Ms. Edwards suggested that Mr. Colquhoun might be the father.

h) Ms. Edwards claims to have no memory of any sexual encounter with Mr. Colquhoun around the time of conception. At its highest her account is only speculative.

[26] On July 27, 2011 Justice Duchesneau-McLachlan made a temporary order providing each parent with week about access. The conflict between the parties has been relentless. They have exchanged insults and profanities. They have complained to the police and the CAS about each other over many matters. The issues are often trivial matters that take on a life of their own. Some of the conflict is not trivial. On April 2, 2012 Ms. Edwards gave birth to a daughter, Mia. Mr. Colquhoun insisted on paternity testing. This hardly calmed the waters. Mr. Edwards is Mia's father.

[27] In November 2012 this court was required to make a ruling on the name of the child. During the course of the week about access each parent was calling the child by a different first name. When he was with his mother he was called "Tommy". When he was with his father he was called "Nathan". The child was troubled by this. Neither parent would budge. On November 16, 2012 I ordered the child should be referred to as "Thomas". By all accounts Mr. Colquhoun and his family have respected that order.

[28] In July 2013 Justice Klein heard a motion brought by the Edwards to limit Mr. Colquhoun's access because of his habitual cannabis use. They had Thomas' hair tested and it was positive for cannabis. Justice Klein did not vary access but he ordered Mr. Colquhoun to abstain from its use. Subsequent urine tests support Mr. Colquhoun's insistence that he no longer uses cannabis.

Analysis

[29] Each parent seeks sole custody with access to the other. Joint custody is not realistic.

[30] Mr. Colquhoun is single. He lives in an apartment in North Bay that is appropriate for a child. He lives across the street from a school. He remained intentionally unemployed for most of these proceedings so that he could receive Legal Aid and so that he could be present during all of his access. He recently obtained employment. He enjoys the support of his parents who reside in Sturgeon Falls. He would like to eventually settle in Sturgeon Falls where he has more support.

[31] Mr. Colquhoun presents as a reclusive type. He has often been in conflict with landlords and neighbours. He has moved frequently. He has however resided at the same location since 2011. I am concerned about his "ends justify the means" tactics concerning this child. These include impersonating Ms. Edwards on Facebook, using particularly vile names when communicating with her and posting highly personal material. He was a habitual cannabis user and clearly exposed the child to that substance.

[32] I conclude that notwithstanding some serious character flaws Mr. Colquhoun is a devoted father. He is a capable parent and there is a strong bond between him and the child.

[33] Anna Edwards is an equally capable parent. Ms. Edwards is devoted to Thomas. Mr. Edwards is also a devoted father to Thomas. There is a strong healthy attachment. They live in a large home in a rural setting outside of Mattawa. The Edwards have two other children, William and Mia. They are engaged in their community and church. They are positively supported by their church. Mr. Edwards is gainfully employed. Thomas attends school in Mattawa during the weeks he is with his mother. He does not attend school when he lives with his father. Mr. Edwards suffers from an anxiety disorder. He was extremely high strung during his testimony. This case would be stressful for anyone in his situation. He considers Thomas to be his son. It was clear to me that Mr. Edwards continues to trust Ms. Edwards completely. It was also clear to me that she has never told him the extent of her relationship with Mr. Colquhoun.

Best Interests

[34] The merits of an application for custody must be determined on the basis of the best interests of the child. This is mandated by s. 24(1) of the Children's Law Reform Act.

[35] The focus is on the child's best interests, not the interests and rights of the parents. (Gordon v. Goertz (1996), 134 D.L.R. (4th) p. 342). Both Mr. Colquhoun and Mr. Edwards present as very needy men. Each in his own way stressed how their happiness is dependent on this child and the outcome of this case. Mr. Colquhoun told the s. 112 assessor that Thomas is the centre of his life and that all is good when Thomas is around. Mr. Edwards told the same assessor that his greatest fear is the fear of losing this child in a custody battle. He testified that all of his angry outbursts are on account of his fear that sometimes overwhelms him.

[36] Parents are expected to be responsible for the wellbeing of their children. It is unfortunate when the roles are reversed and a child becomes responsible for the emotional wellbeing of the significant adults in his life. From the outset it has been clear that one of these men will be devastated by the outcome of this case. How this ruling will affect the parties is not a factor in the determination of custody.

[37] Section 24 of the Children's Law Reform Act reads:

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 has lived in a stable home environment;

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

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

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

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

(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application.

(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.

No one factor in the statutory definition of a child's best interests is given statutory pre-eminence. (Wilson v. Wilson, 2015 ONSC 479)

Section 24(2)(a): The Love, Affection and Emotional Ties Between the Child and His Parents and Other Members of the Child's Family who Reside with the Child

[38] Thomas loves his father Mr. Colquhoun. Clearly Mr. Colquhoun loves and is devoted to Thomas. There is a strong bond between them.

[39] Similarly Thomas has a close loving relationship with his mother Ms. Edwards. I am also convinced that Thomas has a strong loving bond with his other Dad, Mr. Edwards. Mr. Edwards is obviously devoted to Thomas. I was impressed by Mr. Edwards' testimony when he declared that Thomas is his son and will continue to be so regardless of the outcome of these proceedings.

[40] I am also taking into account that Thomas has been raised together with his older brother William and more recently his younger sister Mia. While they are technically half-siblings I am sure that such technicalities are of no significance to these children. Ideally siblings should be raised in the same home. As Justice Granger commented in Hurdle v. Hurdle (1991) 31 R.F.L. (3d) at p. 349:

"a court… should strive to ensure that siblings are raised together in order that they can enjoy the company of their brothers and sisters. The evidence should be extremely compelling before a judge should grant a judgment or order which would separate the children in their formative years."

[41] The reluctance to separate siblings augers in Ms. Edwards' favour. The separation of siblings issue is important but it is not necessarily determinative. It is one factor among many to be weighed. In J.M.M. v. M.M., [1996] S.J. No. 257, Justice McIntyre of the Saskatchewan Court of Queen's Bench wrote at para. 14:

"While the court is as a general rule reluctant to separate siblings, it is only one of the factors to be taken into account. In the present circumstances where the siblings have different fathers it cannot operate so as to deprive C. of the right to be raised by the father where his father is able to meet his needs and it is in the child's best interests to be in the custody of his father."

Section 24(2)(b): The Child's Views and Preferences

[42] Thomas is only five years old. He is happy in the care of either parent.

Section 24(2)(d): The Ability and Willingness of each Parent to Provide the Child with Guidance, Education and Necessaries of Life and any Special Needs

[43] Both parents are equally willing and capable to meet the needs of this child. Thomas is fortunately a healthy child with no special needs.

Section 24(2)(e): The Plans Proposed by Each Parent for the Child's Care and Upbringing

[44] Both parents have solid and appropriate plans for the care and upbringing of their son. Both parents have good support. Mr. Colquhoun has family support while Ms. Edwards finds support through her church community. Both parents pledge to facilitate access.

Section 24(2)(f): The Permanence and Stability of the Family Unit

[45] For many years Mr. Colquhoun lived a nomadic existence. He moved from residence to residence. He was often in conflict with his landlord. He deliberately remained unemployed throughout most of these proceedings in order to qualify for Legal Aid. He now has resided in the same apartment since December 2010. In the course of this trial he returned to employment. He has remained single.

[46] Mr. and Mrs. Edwards have had a rocky relationship, however, it has endured.

[47] They have not separated since their reconciliation in 2008. They have resolved to make their marriage work. Mr. Edwards is gainfully employed and has benefits through that employment. The family has settled in a rural area in Calvin Township.

Section 24(2)(g): The Ability of Each Person Applying for Custody to Act as a Parent

[48] Both parents equally have the ability to parent.

Section 24(2)(h): The Relationship by Blood… Between the Child and Each Person who is a Party to the Application

[49] Both parties are the biological parents of Thomas. They are on equal footing in this regard.

Section 24(3): Past Conduct

[50] There was considerable evidence called in this trial about the conduct of both parents. There is no question that both parents have significant character issues that are manifested in their conduct. Mr. Colquhoun can present as an unpleasant driven individual. He once abused cannabis regularly and was often in conflict with others. Many of his communication with Ms. Edwards during the course of this case were extremely offensive.

[51] Much evidence was heard regarding Ms. Edwards' double life. She carried on a relationship with Mr. Colquhoun from 2008 to mid-2011 while in a long term relationship with Mr. Edwards. This court attempted to discourage focus on the circumstances of the child's conception. Unfortunately that issue formed a central part of the trial. In my view, Ms. Edwards' conduct in carrying on her affair with Mr. Colquhoun is not a relevant consideration in determining what is in Thomas' best interests. That conduct is not relevant to her ability to parent.

[52] The past conduct of Ms. Edwards that does impact on her ability to parent is her persistence in insisting that she was sexually assaulted by Mr. Colquhoun resulting in the child's conception. This account first surfaced when the paternity test confirmed that James Colquhoun was the biological father. It took the form of several complaints to the police with the express intent of having him charged. When the investigating police agency declined to lay charges, Mr. and Mrs. Edwards lodged a complaint. The allegation of sexual assault was repeated throughout these proceedings and indeed was advanced in this trial. For reasons I have already set out, this allegation was baseless. It was obviously a story Ms. Edwards told to appease Mr. Edwards. Mr. Edwards is often overwrought and overwhelmed.

[53] The accusation of non-consensual sex resulting in conception is intrinsically linked to Ms. Edwards' first account that she had no intimate relationship with Mr. Colquhoun after 2008. She repeated that version of history throughout these proceedings in affidavits only to abandon it at trial. She repeatedly insisted under oath that any contact with Mr. Colquhoun after 2008 was coerced. She admitted at trial, however, that she willingly continued on in her relationship with Mr. Colquhoun until mid-2011 because she continued to have feelings for him.

[54] In the Supreme Court of Canada decision in Van de Perre v. Edwards 2001 SCC 60, [2001] 2 S.C.R. 1014 the court ruled on a case where a child was conceived as a result of an extra-marital affair. Justice Bastarache at para. 23 writes:

"First, it is irrelevant who is to blame for the extra marital affair. However, the parties' attitudes towards and views of each other are important. These attitudes might impact the emotional wellbeing of the child and, as such, must be considered…. A child should be with someone who fosters the relationship between him or her and the non-custodial parent."

[55] Each parent should be expected to support the child's relationship with the other parent, and to take steps to ensure that the child has a positive attitude about that relationship. Where there are equally qualified parents, who would best facilitate access is a significant factor in determining custody. (Moreiro v. Garcia Dominguez, 2012 ONCJ 128, Huisman v. Stafaniw (1997), 26 R.F.L. (4th) 406 (Ont. General Div.))

[56] Mr. and Ms. Edwards have not fostered or supported the relationship between Thomas and his father. Rather, they have tried to destroy it. They have been relentless in their efforts to marginalize Mr. Colquhoun's role as Thomas' father. He is the inconvenient parent. They have tried to have him charged criminally. Even at trial Ms. Edwards continued to insist that she must have been sexually violated. The concern that Ms. Vaillancourt had in 2013 endures. Even Mr. Colquhoun's attempts to have Thomas' last name changed to include "Colquhoun" and to have the official record reflect that he is the biological father have been resisted by Mr. and Ms. Edwards.

[57] Mr. Colquhoun is not a candidate for father of the year. He doesn't have to be. But he has evolved as a parent and he has demonstrated an understanding of Thomas' best interests. He no longer uses cannabis. He abandoned using the name Nathan when he was ordered to do so. He got employment when his chronic unemployment became an issue. He has stopped moving from one place to another.

[58] The Edwards remain steadfast in their resolve to undermine Mr. Colquhoun's role as Thomas' father. That is past conduct and present conduct that directly impacts on Anna Edwards' ability to act as a responsible parent. She remains incapable of fostering a positive relationship between Thomas and his biological father. Her promises to facilitate the relationship are belied by her efforts to destroy it. The fact that she made this promise under oath is hardly assuring. She has demonstrated little regard for the oath throughout these proceedings including during this trial. I am convinced that if Ms. Edwards was awarded custody it would only embolden her in her efforts to marginalize Mr. Colquhoun.

[59] This has been a difficult decision to make. Both Ms. Edwards and Mr. Colquhoun are equally capable parents. There is no obvious answer to the custody question. I appreciate that ideally Thomas should be raised in a home together with his siblings. In this case, however, I am concerned that that choice would be at the cost of his relationship with his father. A competent biological father who is devoted to his child should not be so readily displaced simply because it appears that he can be replaced by an equally competent and devoted step-father.

[60] For the above reasons, I conclude that it is in Thomas' best interests to make the following final order:

Final Order

1. James Colquhoun shall have custody of the child Thomas Joseph Edwards (D.O.B. February 26, 2010).

2. Anna Edwards (DaSilva) shall have access every second weekend from Fridays at 5:00 p.m. to Sundays at 6:00 p.m. The first access weekend will be following the first week of school. Access shall be extended by one day if the child is not required to attend school on the Friday before or the Monday after the weekend.

3. Anna Edwards shall have access on the Monday evening following a non-access weekend from after school to 7:30 p.m.

4. The child will spend every March Break with Anna Edwards.

5. Summer Access – Anna Edwards shall have two weeks access commencing on the last Friday of the school year. Mr. Colquhoun shall have the following week. Ms. Edwards shall have the next two weeks. Mr. Colquhoun shall have the next week. Ms. Edwards shall have the next two weeks. The child shall be with Mr. Colquhoun for the remainder of the summer. This is intended to give Ms. Edwards six weeks and Mr. Colquhoun four weeks to maximize Thomas' contact with his mother (assuming a 10 week summer school break). Exchanges during the summer will be on Fridays at 6:00 p.m.

6. Christmas Access – The parents shall share the Christmas break equally. For 2015 Ms. Edwards shall have access for the first week commending Friday at 6:00 p.m. to the following Friday at 6:00 p.m. Mr. Colquhoun shall have the following week. In 2016 Mr. Colquhoun will have the first week. The parties will alternate this sequence each year.

7. The child's health card shall travel with him.

8. Both parents have the right to make emergency medical decisions regarding the child while he is in their care. The other parent will be notified promptly of any medical emergency.

9. Thomas shall spend every Mother's Day with Anna Edwards regardless of the regular access schedule.

10. Thomas shall spend every Father's Day with James Colquhoun regardless of the regular access schedule.

11. The parties shall communicate with each other regarding the child's best interests by using a communications book. It shall travel with the child. All entries shall be civil and respectful. This book shall not be used to criticize or offend the other parent or to document complaints.

12. When in the care of one parent, Thomas may speak to the other parent by phone at bedtime each night.

13. Each parent may attend any school event or sports or club activity of the child regardless of the access schedule. At no time shall they use this time to engage in conflict with the other parent.

14. Neither party shall speak negatively of the other party in the child's presence.

15. Anna Edwards has the right to consult with and obtain information, records, and report cards directly from the child's teachers, doctors and any other professionals involved with the child about the child's health, education and general welfare.

16. Exchanges shall occur at the Tim Horton's on Seymour Street in North Bay and at the Tim Horton's in Mattawa. Whoever has the child shall deliver the child to the other parent's community.

17. The parties are free to make alternate agreements regarding access.

Comments

[61] This has been a high conflict case from the start. It does not have to continue as one. The three significant adults in Thomas' life have got to grow up. It is hard to believe that each of these parties are in their thirties. This case at times has had the drama and intrigues of a teenage soap opera. One poignant image in this trial is a photograph of Thomas as a toddler. He is a beautiful little boy. In this particular photo he is smiling while holding up a North Bay Nugget newspaper. Mr. Colquhoun was trying to document that Thomas was with him on that day so that he could discredit Ms. Edwards who was claiming he had no access. This type of photo is often associated with kidnapping victims not little boys. Unfortunately, Thomas is a hostage in the conflict that rages between his parents. This is not good for anyone especially Thomas. Parental conflict has a toxic effect on children. It is a major source of harm to children.

[62] One of the ways that the tension can be ratcheted down is to resolve the name issue. This court has no jurisdiction to make an order changing a child's name. However, I make the following suggestion. The child's name should be "Thomas Joseph Colquhoun-Edwards". Ms. Edwards was married when she gave birth. Her name as I understand it was Edwards at that time. The surname "Colquhoun-Edwards" reflects his biological father's name and his mother's name as well as Thomas' other father Mr. Edwards.

[63] I have the following comments about Mr. Kurtis Edwards. Some children are unloved. Some children grow up without a significant father figure. In this case, Thomas is dearly loved by three people he considers to be his parents. Thomas loves his biological father. He loves his mother and he loves his other Dad, Mr. Edwards. Thomas calls both men "Daddy". He told the assessor that his Dad Kurtis gave the best hugs. Thomas sees the decency in both men. He feels that he is loved by both his fathers. Mr. Edwards pledged that he will continue to consider Thomas to be his son no matter what. I believe him. Mr. Edwards needs to begin to accept the significant role Mr. Colquhoun has as Thomas' father. Mr. Colquhoun needs to begin to accept the significant role Mr. Edwards plays as Thomas' other father.

[64] I have deliberately chosen not to include a police enforcement clause in this order. It is an order of last resort to be made sparingly and in exceptional circumstances. It can frighten children and polarize a difficult situation. The adults in this case must get out of the habit of complaining to the authorities about each other.

[65] Finally, I am indebted to Mr. Hamilton and Mr. Rae for their hard work and professionalism in this very challenging case.

Released: August 13, 2015

Signed: "Justice Greg P. Rodgers"

[1] Dr. Sroga's report was entered as an exhibit at trial. It has been given little weight in my deliberations as its findings were premised on a history given by Ms. Edwards. That account of her relationship with Mr. Colquhoun was abandoned at trial.