Court File and Parties

Ontario Court of Justice

Date: 2016-02-11

Court File No.: Kenora FO-13-095-000

Between:

E.V.M. Applicant

— AND —

C.M. Respondent

Before: Justice Sarah Cleghorn

Heard on: November 23, 2015 and January 18, 2016 in Deer Lake

Reasons for Judgment released on: February 11, 2016

Counsel:

• Karen Seeley, for the Applicant
• Kylee Ronning, for the Respondent

Cleghorn J.:

Introduction

[1] The matter before me involves three children: J.M., born […], 2006; K.M.1., born […], 2008; and R.L.M., born […], 2011. At the time of separation in February of 2011 the children remained in the care of E.V.M. (hereinafter "the mother") with the exception of the period from March 28, 2012 until February 26, 2013, when the two oldest children were in the care of the Society, and the youngest child was being cared for by family members.

[2] C.M. ("the father") was absent from the lives of the children after separation until July of 2015, when the parents agreed to an integration plan.

[3] At the conclusion of the trial counsel for both parents advised that the issues of retroactive child support and ongoing support were resolved on consent.

[4] There are two issues that I must decide. First, the issue of custody; the mother and father are both seeking custody of the children. Throughout their evidence it was evident that joint custody is not an option given their inability to have effective and co-operative communication.

[5] The second issue relates to residency; both of the parents are seeking primary residence of the children with a specified access schedule for the other parent.

Custody and Access – Evidence and Analysis

[6] Section 24 of the Children's Law Reform Act provides the analytical framework that must be followed when determining an application for custody and access. The guiding principle is the child's best interests. The criteria is set out in Section 24(2), which provides:

(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 ties between the child and,
• (ii) other members of the child's family who reside with the child, and,
• (iii) persons involved in the child's care and up-bringing;

(b) the child's views and preferences, if they can be reasonably 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 adoption order between the child and each person who is a party to the application.

a) The love, affection and emotional ties and length of time in a stable home environment

[7] The mother has been the primary caregiver to the children since the parents separated, with the exception of an 11-month period when the two oldest children were placed in care with Tikanagan Child & Family Services and the youngest child was in the care of a family member. The children were initially placed in care because the mother suffered from a severe medical condition that resulted in her being transported to the City of Thunder Bay for medical treatment. The mother was physically unable to meet the needs of the children following her release from the hospital. Initially, the children were left in the care of the maternal grandparents. However, the Society apprehended the children because it was alleged the grandparents were consuming alcohol and the grandfather assaulted the grandmother.

[8] When the mother was physically able to care for the children the Society returned them to her care. At that time, she was residing in R[…]. In March of 2012 the two oldest children were again placed in care by the Society, as there was a verified protection concern regarding the mother's drinking. While in a caregiving role, the mother was so intoxicated that she had lost consciousness. Although the mother explained that she had a babysitter present, the Society found that the babysitter also appeared to be intoxicated and concluded that there was not a responsible adult present to meet the needs of the children.

[9] The mother undertook a number of significant steps in order to have the children returned to her care. In particular, she engaged in counseling, completed parenting workshops, maintained sobriety while the Society was involved and regularly attended Alcoholics Anonymous. As a result of the mother's hard work on her addiction issues the children were returned to her care in February of 2013 and have remained with her since then, without any further involvement from the Society.

[10] It is without question that the children have a strong bond with, and are deeply connected to, their mother. This is not surprising, given that she has been the primary caregiver to all three of them for a significant amount of time.

[11] The father was absent from the children's lives for a period of three years. This absence appears to have arisen for a number of reasons. The father testified that after separation he was essentially homeless and had to struggle to meet his own day-to-day needs. He simply did not have a home where he could care for the children. The relationship between the parents apparently ended due to infidelity, the father became involved with his current partner (Ms. K.M.). Although the reason the relationship ended has no bearing on questions of custody and access, the reality for these parents is that the circumstances surrounding the breakdown of their relationship has significantly contributed to ongoing conflict between them. That conflict has served to compromise their ability to communicate with one another. To complicate matters further, there has been significant conflict between the mother and K.M., with assault allegations being made by both against the other. That said, no evidence was led before me suggesting that either has actually been charged with assault.

[12] As a result of the conflict between the parents the mother testified that she moved away from the community to avoid the father and Ms. K.M.. The mother acknowledged that post separation the father requested, but she maintained that when access occurred there was conflict between her and Ms. K.M.. The mother stated that she denied access as she wanted to avoid conflict with Ms. K.M.. The father testified that the mother made it clear to him that she did not want his involvement or assistance. The end result is that the children did not have contact with their father for approximately three years.

[13] The law is clear: at the time of separation, both parents are equally entitled to custody of their children (see s. 20 of the Act). Here, post-separation, the father acquiesced to the mother being the primary caregiver for the children.

[14] The father has now expressed a desire to play a meaningful role in the lives of the children. Access commenced on an integrated basis in July of 2015. Currently the father has access on alternate weekends, Saturday overnight to Sunday. A bond has formed between the father and the children and it is clear that the father deeply cares for and loves the children.

[15] It is clear that both parents have love, affection and emotional ties with the children.

b) Other members of the child's family who reside with the child and persons involved in the children's upbringing

[16] I must now consider other members of the children's family who reside with the children. I will begin with the mother's family.

[17] Of great concern to the father is the home environment of the mother. The mother does not have a home of her own and currently is living with her parents, sister and a brother in a three bedroom home. This is not uncommon in northern communities where there is a crisis in terms of access to appropriate housing. It is therefore out of necessity that multi-generations live in over-crowded situations. The father has also been impacted by the housing crisis as well. Shortly after the separation the father at some point in time began residing with Ms. K.M., however the house belonged to the father of Ms. K.M.. Until such time as the passing of Ms. K.M.' father it was not an option to have the children in the home where the father was residing as the sister of Ms. K.M. (who held the power of attorney for the father) would not allow it.

[18] It is not the overcrowding of the home of the maternal grandparents that alarms the father. Rather, he is concerned that in the mother's home the children are exposed to adult parties where significant amounts of alcohol are consumed. In her testimony, the mother was forthright in that she continues to consume alcohol when the children are not in her care. She testified that during the episodes when she is drinking she would ensure that her parents will remain in a sober state and that she leaves the home if she plans on drinking to excess. She will then return the following day. The mother estimates that this occurs about two to three times per month.

[19] The mother testified that both of her parents consume alcohol and invite others to their home to drink. Conflict has arisen between the mother and her parents as the mother has requested them to not drink in the home when the children are present. At times the children have observed their grandparents in an intoxicated state and have been home while the grandparents and their friends are consuming alcohol. When this occurs the mother takes the children into the bedroom and remains with them there until everyone leaves.

[20] There is no evidence before me to suggest that the mother has consumed alcohol in the presence of the children since they were returned to her care in February of 2013.

[21] The grandmother, M.M., testified on the issue of her consumption of alcohol in the home. Her evidence in that regard was at odds with the evidence of the mother. I accept the mother's evidence that the grandparents have individuals over to the home to drink and that the children have been exposed to their grandparents when they are in an intoxicated state.

[22] The mother is currently on a waiting list for her own home but it is unknown how long it will be, if ever, before she has a home of her own.

[23] It is unfortunate that the grandparents cannot recognize that it is unhealthy to expose the children to excessive alcohol consumption. As the mother testified she has attempted to convince her parents to only drink outside of the children's presence, but she rightly concedes that is their home. The mother really has no control over the decisions her parents make regarding their behavior in their home.

[24] I am satisfied that the mother has put in place the best safety plan that she can when the risk of excessive alcohol consumption in the home arises. The mother ensures that the children are removed to a bedroom where she remains with them to ensure their safety. The mother does not consume any alcohol while she has the care of the children. The mother intends on moving into her own residence should that opportunity ever present itself. I must take into consideration the realities of northern life on isolated reserves and the true and real impact it places on the first nations population. At this juncture the mother is doing the very best that she can in light of the realities of her community and the ongoing housing crisis.

[25] The father resides in the home of his common law partner Ms. K.M.. Ms. K.M. has one child who is eight years old. Neither the father nor his partner consume alcohol or allow any drinking in their home.

[26] At issue is the conflict that exists between Ms. K.M. and the mother. They do not currently have any contact, and they have not for some time. However, Ms. K.M. and the father have a pattern of contacting the police to report concerns of individuals drinking while the children are in the care of the mother. The police have investigated such complaints on two occasions in the recent past. The father acknowledges that he monitors the grandparents' home on weekends for vehicles of known drinkers and contacts the police accordingly. Ms. K.M. acknowledged that she has contacted the police on two occasions since the summer of 2015 with similar concerns.

[27] Constable Craig Johnson testified that he responded to one of the calls. He found the grandparents to be in a sober state and felt the children were safe in the home. Constable Johnson has not had contact with the mother and met her for the first time on the day of trial.

[28] Understandably, the mother has experienced stress and anxiety because of the regular reports by the father and Ms. K.M. to police and a protection agency regarding the welfare of the children.

[29] It is clear that there are significant hostile feelings between Ms. K.M. and the mother that are likely not to resolve in the foreseeable future. There must be recognition by all adults involved that the ongoing conflict and mistrust negatively impacts the children. Any type of parenting schedule must minimize contact between the father, the mother, the mother's extended family and Ms. K.M., as the adults involved have a very limited ability to shield their anger, dislike and distrust from the children.

c) Children's views and preference

[30] The views and preferences could not be ascertained in this matter.

d) Each parent's ability to provide the child with guidance and education and the necessaries of life

[31] In closing submissions counsel for the father conceded that the primary areas of concern for the father are the issues surrounding alcohol and the children's attendance at school.

[32] J.M.'s report card from March 2015 was filed as an Exhibit. J.M. was absent 23 days and late on one occasion. His teacher wrote:

"He needs to attend class regularly in order to improve".

[33] K.M.1.'s report card from March 2015 was also filed as an Exhibit. K.M.1. was absent 17.5 days and late on one occasion. His teacher wrote:

"He needs to show up mornings, it's that time we do our math and language."

[34] Education of children is critically important and a parent must be in a position to ensure that they are able to facilitate a child's education. The mother's response to the number of absences as reported in the March 2015 report cards is that the children were ill. She further stated that K.M.1. misses his school because he sleeps in.

[35] I only had the children's report cards from March 2015 before me. I cannot determine if the children being absent from school is a true pattern and a direct reflection on the mother's ability or inability to ensure the children attend. I have concerns with the sheer number of missed days from school but the evidence before me is that this was largely the result of illnesses. A parent's ability to ensure that their children receive an education and attend school on a regular and consistent basis is highly relevant in determining a child's best interests. Based on the limited evidence that I have before me, I accept that this is not a pattern that reveals an inability to effectively parent but simply the result of illnesses.

[36] Both parents receive Ontario Works as a source of income. In assessing each parent's ability to provide the necessaries of life I find that each is doing the very best that they can on the very limited income available to each of them.

e) Permanence and Stability of the Family Unit

[37] The mother has the love and support of her extended family. She is currently not in a relationship with another individual. It is unfortunate that the grandparents suffer from addiction issues and I cannot determine with what frequency they are consuming alcohol. Having said this, I do accept that there are periods when the grandparents are in a sober state during which time they provide love and support to the children. Both the mother and the grandmother testified that when the grandmother is left with the care of the children she at all times is sober. I accept that evidence. The mother has put the most appropriate safety plan in place for the children during the times that the grandparents are drinking. Conflict in the home is around the issue of drinking only. It is clear to me that the mother understands the importance of protecting the children from being exposed to excessive alcohol consumption and the need for her to always remain sober when having care of the children.

[38] On the evidence, it is clear that the father's home is stable and has many positive attributes. His home is free of alcohol, which is commendable. The father is in a committed, loving and stable relationship. The children do benefit from being in the care of the father, and will undoubtedly benefit from his continued involvement in their lives.

f) Each parent's plan for custody and access and ability to act as parent

[39] Both of the parents acknowledged that they do not currently have the ability to communicate with one another. Regrettably there is conflict not only between the parents but also as between the maternal grandparents and the father, and between the mother and Ms. K.M..

[40] The father currently maintains a distance when he is collecting and returning the children for his access time, in order to avoid conflict.

[41] Due to the complete inability to communicate with one another the father has at times resorted to posting negative comments on Facebook. He acknowledged that this was inappropriate and that he posted the comments out of anger.

[42] Both parents are aware of the conflict and essentially avoid contact with one another.

[43] A joint custodial order is simply not feasible nor has either parent sought this relief or given any indication that they are prepared to try and work with one another.

[44] The mother and father have essentially put forward the same plan. Each is seeking sole custody with a specific access schedule to the other; access on alternate weekends and the sharing of holidays.

[45] Based on all of the evidence before me I find that both the father and the mother are capable of meeting the day-to-day needs of the children. Concerning the mother, should she return to drinking while caring for the children then this will certainly have a direct negative impact on her parenting abilities and would warrant a review or change to ensure the children are safe and protected. The children have been in the mother's care since February of 2013 without any concerns surrounding her use of alcohol. She has worked very hard to address her addiction issues and she clearly appreciates that she must never consume alcohol while caring for the children.

Decision

[46] I find that it is in the children's best interest for the mother to have sole custody with the primary residence and the father to have significant periods of regular access.

[47] The children are deeply bonded to the mother as a primary caregiver. She has cared for them for a significant period of time. The youngest child was an infant when the parents separated and is now 4 years of age. The mother has provided structure and stability for the children and it is not in their best interests to change the primary caregiver.

[48] However the access to the father is not adequate. The father is capable of parenting the children for lengthier periods of time; this will ensure that the bond between the father and the children continues to strengthen.

[49] It is apparent that the two areas of concern respecting the children are the home environment of the mother and the children's attendance at school. As indicated above, I am satisfied at this point in time that the mother can safely protect the children. I am hopeful that the grandparents may respect the wishes of the mother and restrict their drinking to times when the children are in the care of the father but recognize that the mother does not have control over the decisions the grandparents choose to make.

[50] Although I find that both parents can meet the needs of the children and have accepted the mother's explanation for why the children have a large number of absences from school, I would caution that should the children continue to accumulate absences while in the care of either parent then this would call for a review of the parenting schedule. Ensuring the educational needs of the children are being met is critically important.

[51] The following Order shall issue:

1. E.V.M. shall have custody of the children J.M., born […], 2006, K.M.1., born […], 2008, and R.L.M. born […], 2011, with the primary residence.

2. C.M. shall have access commencing Saturday February 20, 2016 commencing at 4:00pm until the morning of Wednesday February 24, 2016, when the children shall be returned to school and every alternate Saturday to Wednesday thereafter. When the children are not in school then the exchange time on Wednesday shall be at 7:00 p.m. and the exchanges shall occur at the residence of E.V.M..

3. The following holiday schedule shall apply:

a) The children shall be in the care of E.V.M. on Mother's Day (should this fall on her non-parenting time) from 10:00am until 7:00pm;

b) The children shall be in the care of C.M. on Father's Day (should this fall on his non-parenting time) from 10:00am until 7:00pm;

c) In even numbered years the children shall be in the care of C.M. from Christmas Eve at 4:00pm until Christmas Day at 2:00pm. The children shall be in the care of E.V.M. from Christmas Day at 2:00pm until Boxing Day at 7:00pm when the regular parenting schedule shall resume. In odd numbered years the children shall be in the care of C.M. from Christmas Day at 2:00pm until Boxing Day at 7:00pm. The children shall be in the care of E.V.M. from Christmas Eve at 4:00pm until Christmas Day at 2:00pm when the regular parenting schedule shall resume;

d) Each of the parties shall be entitled to 2 non-consecutive weeks of the summer holidays (a week commencing on a Friday at 4:00pm and ending on the following Sunday at 7:00pm). In even numbered years E.V.M. shall have first choice of which 2 weeks she wishes to exercise for summer holidays and advise C.M. on or before June 1 of that year. In odd numbered years C.M. shall have first choice of which 2 weeks he wishes to exercise for summer holidays and advise E.V.M. on or before June 1 of that year.

4. E.V.M. and C.M. shall parent the children in a sober state failing which this shall amount to a material change in circumstances.

5. E.V.M. and C.M. shall ensure that the children actively participate and attend school; a failure to do so shall amount to a material change in circumstances.

6. In the event that either parent is unable to parent the children for a duration of 6 hours or longer the first opportunity to parent the children shall be afforded to the other parent.

7. E.V.M. and C.M. shall provide full disclosure of any change of employment income within 14 days of such change occurring. The parties shall exchange their income tax returns with all attachments and notice of assessments on or before June 1 st of each year. Should there be a change to either parent's income then the issue of child support shall be addressed.

[52] Should costs be an issue then E.V.M. shall file written submissions (limited to 3 pages) within 30 days from the release of this decision. C.M. shall file written submissions within 45 days from the release of this decision.

Released: February 11, 2016

Signed: "Justice Sarah Cleghorn"