Court File and Parties

Court File No.: Toronto DFO-09-10336-02 A1 Date: 2017-08-15 Ontario Court of Justice

Between:

KELLY ARMSTRONG Applicant

— AND —

KELLY JAMES McCUSKER Respondent

Before: Justice Sheilagh O'Connell

Trial heard on: April 4, 5, 19, 2017

Reasons for Judgment released on: August 15, 2017

Counsel:

• Anthony Macri, for Kelly Armstrong
• Kelly James McCusker, on his own behalf

O'CONNELL J.:

1. Introduction

[1] The Respondent father, Kelly J. McCusker ("the father" or "Mr. McCusker") has brought a motion to change the access provisions of the Final Order of Justice Marion Cohen dated June 10, 2009. The Applicant mother, Kelly Armstrong, ("Ms. Armstrong" or "the mother") opposes the orders sought by the father.

[2] The child that is subject to this motion to change is Skyla Jett McCusker Armstrong, born December 6, 2007 ("Skyla"). Skyla is now 9 years old.

[3] The Final Order of Justice Cohen provides that the mother shall have final custody of Skyla and that the father shall have "reasonable access upon reasonable notice". This Order was made following an uncontested trial in which Mr. McCusker did not participate.

[4] This trial is about access only. The father is not seeking to change the final custody order. Mr. McCusker is seeking a specified access order to Skyla, in accordance with the 2013 recommendations of the Office of the Children's Lawyer, such that Skyla reside with him in a fixed regular schedule for approximately forty-five percent of the time. Alternatively, Mr. McCusker is seeking an equal or "50/50" access schedule with Skyla, as set out in his trial affidavit.

[5] Mr. McCusker commenced this motion to change on April 19, 2013. The litigation history between these parties has been very lengthy and very acrimonious. A concurrent motion to change child support, along with a FRO default and committal proceeding have also complicated this matter. There have been a number of requests to adjourn the trial of this motion to change, largely at Mr. McCusker's request.

[6] The current temporary order governing the father's regular access to Skyla was made on August 2, 2016. This order provides that the father shall continue to exercise alternating weekend access to Skyla provided that he provide proof of stable accommodation to the mother and if not, then the father will have daytime access only during his weekends with Skyla.

[7] At the time of this trial, Mr. McCusker had not exercised any overnight access to Skyla for approximately nine months. The mother suspended all overnight access after August 21, 2016.

[8] In this trial I heard from three witnesses: the mother, the father, and the father's partner, Karen Dubin. The evidence in chief of the parties proceeded by way of affidavit, subject to cross-examination, on consent of the parties. In addition, the Report filed by the Office of the Children's Lawyer, dated November 24, 2013, was entered as evidence in this trial, although the clinical investigator was not called to testify.

2. Issue

[9] The main issue for me to determine is whether there has been a material change in circumstances since the 2009 Final Order of Justice Cohen that affects or is likely to affect the best interests of Skyla. If so, what access order is now in Skyla's best interests?

3. The Position of the Parties

The Father's Position

[10] The father submits that the mother has unreasonably restricted his access to Skyla over many years and that she has repeatedly attempted to undermine Skyla's relationship with him. According to the father, the mother has used her discretion to "restrict, diminish and disparage" Skyla's access to her father. He further states that the mother actively resisted implementing the 2013 OCL recommendations regarding access and that she has thwarted his efforts to reach a resolution on that basis.

[11] The father also submits that the mother's suspension and restriction of his overnight access is unreasonable and contrary to Skyla's best interests. He denies that his lifestyle and lack of fixed address has endangered Skyla during access, or that he has not been able to provide stability for Skyla during access.

[12] Finally, the father states that he and Skyla have a very close and loving relationship and that Skyla's desire is to be living with him. Most importantly, the father submits that the current access schedule has denied Skyla access to her Indigenous heritage as he is the only parent through which Skyla can explore her Indigenous identity.

The Mother's Position

[13] The mother submits that the father cannot consistently meet Skyla's basic physical needs during access visits and that over the years, the father has demonstrated a well-established pattern of "child endangerment, homelessness, unemployment and instability" which places Skyla at risk.

[14] It is the mother's position that the father's access to Skyla has always been sporadic and unreliable. She submits that she had to suspend overnight access because the father has not had a fixed address, stable housing or an income for more than one year. He is not able to meet Skyla's basic needs in a safe and consistent manner, nor is he able to provide her with stability and routine, which is essential for Skyla given her special needs.

[15] The mother wants the current temporary order to be finalized, which would continue the alternating weekend access, but provide her with the continuing discretion to suspend overnight access if the father does not provide proof that he has stable accommodation.

4. Background

[16] Mr. McCusker is 47 years old. Ms. Armstrong is 36 years old. Mr. McCusker has no other children. Ms. Armstrong has one other child with her fiancé Darcy McKeown. Both parties live in Toronto.

[17] The parties became involved in a relationship in 2006 and approximately three month later, the mother became pregnant with Skyla. The parties started cohabiting in 2007, shortly after the mother's pregnancy. The parties never married.

[18] The parties separated in or about March of 2009, although they briefly reconciled in the summer and early fall of 2009. The parties permanently separated in the fall of 2009.

[19] After the parties' final separation, Skyla's primary residence remained with the mother, according to the evidence filed at the uncontested hearing in 2009, not disputed by the father. However, the parties disagree regarding how much time Skyla spent with her father. The father states that he was actively involved with Skyla since birth, and that post-separation, Skyla was with him three or four days each week, or approximately one-half of the time until the mother started to arbitrarily restrict his access. The mother states that the father's access to Skyla was irregular, sporadic and infrequent and that Skyla has always primarily resided with her.

[20] Mr. McCusker is in a relationship with Ms. Karen Dubin. They have been involved since late 2011 and they had previously cohabited for approximately two to three years from 2012 to 2015. Mr. McCusker testified that at the time of this trial, he had very recently started living with Ms. Dubin again in her home in Toronto.

[21] Mr. McCusker is currently unemployed, although he is providing some child care for Ms. Dubin, who has six year old twins from a previous relationship. He describes himself as a creative person who creates art or written communications for advertising and branding. According to his affidavit in support of his Motion to Change, he created a design company in 2007 called 'MixBlood Incorporated'.

[22] According to the affidavit evidence filed at trial, Ms. Armstrong lives in Toronto with her partner and fiancé Darcy McKeown. They have one child together, in addition to Skyla, whom Mr. McKeown acts as a step-father. Ms. Armstrong and Mr. McKeown started their relationship in 2011 and began cohabiting in 2013.

[23] Ms. Armstrong is employed full-time as an Events' manager in Toronto. Mr. McKeown is also employed full-time.

[24] Mr. McKeown did not participate in this trial for reasons unknown to the court.

[25] Since September of 2016, Skyla has been a student at the Linden School, a private school with small class sizes and a high degree of support for unique learners. Skyla transferred to the Linden School in August of 2016 from Brown Public School, following a TDSB psychological assessment in which Skyla was found to meet the diagnosis of a student with Attention-Deficit Hyperactivity Disorder (ADHD) with special learning needs. The father does not agree with this assessment nor does he agree that Skyla has a learning disability.

[26] The parties' post-separation history has been fraught with conflict. Both parents have reported the other to the children's aid society and have involved the police in access disputes.

5. Litigation and Procedural History

[27] The mother brought her application for custody and access in April of 2009 after the parties first separated. The Final Order of Justice Cohen dated June 10, 2009, proceeded on an unopposed basis as the father did not attend the hearing and was noted in default.

[28] The mother did not seek child support at the time of her initial application. According to the Affidavit for an Uncontested Trial sworn by the mother on June 10, 2009, she did not seek child support at that time because the father was "unemployed and homeless."

[29] In 2011, the mother brought a separate application for child support. In that application, the mother obtained a child support order based on income imputed to the father in the amount of $100,000, again following an uncontested trial. The Final Order for child support was granted on July 5, 2011 by the Honourable Justice Cohen. It is unclear from the record what changed in the father's situation between 2009 and 2011.

[30] The father fell into significant arrears under this order. The Family Responsibility Office (FRO) subsequently commenced a default proceeding against the father.

[31] In January of 2012, Mr. McCusker commenced a separate motion to change the child support provisions of Justice Cohen's 2011 Order.

[32] In April of 2013, the father then brought this motion to change the access provisions of Justice Cohen's Final 2009 Order. Both the motion to change access under the 2009 Order and the motion to change child support and arrears under the 2011 Order have proceeded concurrently in this case, although it appears that the two motions were never formally consolidated.

[33] The first case conference on the father's motion to change access was heard on May 31, 2013. At that hearing, the parties entered into a temporary without prejudice order providing the father with alternating weekends from Friday to Sunday, gradually increasing to alternating weekends from Friday to Monday morning once school started for Skyla. The father was also granted one week of summer holidays during both the months of July and August.

[34] This temporary without prejudice order for specified access was agreed to pending the referral of the matter to the Office of the Children's Lawyer ("OCL") for an investigation and report regarding the parenting issues.

[35] Various other motions were brought pending the outcome of the OCL investigation, including a motion by the mother shortly after the May case conference seeking to change Skyla's last name without the consent of the father.

[36] The OCL completed its report on November 28, 2013. A disclosure meeting regarding the investigation and recommendations was held with the parties on November 20, 2013.

[37] In its Report, filed in the Trial Record and as an exhibit in this trial, the OCL recommended that the mother continue to have sole custody of Skyla and that the father have regular access on an alternating schedule, and holiday access, as follows:

1. Week One: Friday after school to Monday morning in addition to an overnight on Wednesday until Thursday morning. Exchanges are to take place at Skyla's school or day-care;

2. Week Two: An overnight from Wednesday to Friday morning. Exchanges are to take place at Skyla's school or day-care;

3. Holidays are to be shared, including Christmas, March Break and summer holidays.

[38] After the completion of the OCL Report, the matter moved forward to trial as the parties were unable to resolve the issues. The temporary order for alternating weekend access to the father continued during 2014, with some adjustments regarding pick up and drop off, the child's birthday, summer and Christmas access.

[39] Most of the proceedings in 2014 addressed the child support and financial disclosure issues for the father, as well as the FRO default proceeding against the father while the outstanding access issues continued to remain unresolved.

[40] On March 19, 2015, following a continuing trial management conference and settlement conference, the parties entered into comprehensive Minutes of Settlement regarding holiday access, incidents of access, travel, passport, mobility, communication, change of name, exchange of information, emergency medical attention during access, among other provisions. A Final Order dated March 19, 2015 has been issued with these terms. The balance of the access issues, including the regular access schedule, had not been resolved.

[41] The father's motion to change child support was resolved on consent on June 3, 2015 and August 13, 2015. The father was ordered to pay $245.00 per month in ongoing child support and $289.00 per month for section 7 expenses based upon an imputed income of $30,000.00. Arrears were fixed at $25,000, to be payable at a rate of $300.00 per month. On September 24, 2015, the parties then entered into a Final Default Order in the FRO default proceeding on the same terms as the orders made on the motion to change child support.

[42] Mr. McCusker fell into arrears of the Final Default Order and on March 31, 2016, FRO filed a Notice of Motion for a Warrant for Committal of Mr. McCusker. The Director of the Family Responsibility Office is seeking to commit Mr. McCusker to jail for a period of sixty five days or until the sum of child support arrears are paid.

[43] There have been multiple appearances in the warrant for committal proceeding which are currently ongoing before Justice Cohen. I understand that the next hearing date in that matter is scheduled for September 25, 2017.

[44] Following a trial management conference on the motion to change access, trial dates were set before Justice Penny Jones on April 4, 5, and 6, 2016. On that date, the father requested an adjournment of the trial to seek new counsel. The request for the adjournment was contested. After argument and for oral reasons, Justice Jones granted the father's request but ordered that the father pay the mother $2,000.00 in costs forthwith. The trial was adjourned to August 2, 3, 4, 2016 at 10:00 AM. The next trial dates were set as peremptory to the father. The outstanding costs order remains unpaid.

[45] On August 2, 2016, the trial regarding access commenced before me at 10:00 AM. The father was not present. Several "all building pages" were conducted. The trial proceeded and after hearing the evidence of the mother, the Court made a Final Order for access on an uncontested basis. The final order provided that the father shall continue to exercise alternating weekend access to Skyla from Friday at 5:00 PM to Sunday at 6:00 PM, however, prior to the exercise of this access, "the father shall provide proof to the mother that he has a stable accommodation and a stable place for the child to sleep and stay during the access weekend. If the father does not provide this confirmation, then the mother may exercise her discretion to suspend overnight access and to arrange daytime access with the father during his weekends with Skyla."

[46] The father then attended court later that morning and advised that he mistakenly thought that the trial was starting at 11:00 AM. Justice Jones's endorsement, which was provided to the father at the last court appearance, clearly stated 10:00 AM. He sought an adjournment as he had recently applied for a legal aid certificate and was seeking a lawyer to represent him.

[47] After hearing submissions, and for written reasons delivered on the same day, I determined that I was not functus and that I could re-open the trial and grant the father's request for an adjournment, with terms. During the course of the hearing, I heard evidence from the mother and it was acknowledged by Mr. McCusker from the body of the court that he was homeless or without a fixed address, without income and living for part of the time with a cousin in Hamilton, in addition to other places.

[48] Accordingly, pending the return of the trial, I converted the final order above into a temporary order to ensure the safety and the best interests of Skyla in the interim.

[49] Following the August 2nd hearing date, there were three further appearances in which the father sought an adjournment to retain counsel for trial, none of which were opposed. Finally, on October 24, 2016, both parties agreed that the trial would proceed on April 4, 5 and 19, 2017, with or without counsel, as those were the first available dates for the mother's counsel and Mr. McCusker. Those dates were marked peremptory.

4. Summary of the Relevant Evidence

The Father

[50] Mr. McCusker identifies as an Indigenous person and as a member of the Cree Nation. He was adopted at birth by white parents in Alberta during a time period that has been described as "the sixties scoop". He states that his birth mother was white but that his birth father was Indigenous. According to his original affidavit sworn April 19, 2013, in support of his motion to change access, his adoptive mother encouraged him to seek out his Indigenous identity as a child and youth.

[51] Mr. McCusker's father's First Nation status is unknown as he was described as "Indian Unknown" on his birth certificate, a common practice during that period. In cross-examination, Mr. McCusker testified that he identifies culturally as Cree because of his close relationship with the Cree community in Ontario and Northern Alberta.

[52] Mr. McCusker described being actively involved in the Indigenous community for many years. Mr. McCusker testified that he has close ties to many reserves in Ontario and that he has access to almost every single reserve in Ontario because of his status in the community.

[53] Mr. McCusker described Skyla as a very creative, artistic and gifted child. It was his evidence that the current access arrangements provide Skyla with no opportunity to explore her Indigenous identity and culture and that the mother does not provide any cultural education for Skyla. He described taking Skyla to the Royal Ontario Museum, the Art Gallery of Ontario, and the Native Cultural Center, among other places, to explore and to teach her about native artifacts. He would also like to take Skyla to the many reserves that he has access to and to introduce her to the Indigenous way of life.

[54] Mr. McCusker denied many of the allegations raised by the mother about his parenting during access visits, including the mother's allegations of neglect, endangerment, leaving Skyla in the care of others, and not properly caring for her. He further denied that he did not have closing or toys are books for Skyla during his visits and that he keeps those items for her at his cousin's home and at Ms. Dubin's home.

[55] It is Mr. McCusker's evidence that he was very involved in Skyla's life. In evidence filed, he desposed that after the separation Ms. Armstrong relied heavily upon him for child care while she was working. According to Mr. McCusker, during the most intense period of this dispute, Skyla was in his care 149 days during one period in 2011, nearly fifty percent of the time.

[56] Mr. McCusker does not believe that Skyla has a learning disability or that she has special needs. He believes that this is something that the mother and her counsel are "choosing to leverage as a rationale for restricting his access".

[57] He has read the psychological assessment of Skyla and other reports filed in this trial and although he agrees that some portions are accurate, he believes that the ADHD diagnosis is over-exaggerated. He does not believe that Skyla has any need for chemical supports and questions why the mother is not pursuing alternative or Indigenous ways of healing, given her more recent statements that she is now exploring her own Indigenous background.

[58] Mr. McCusker testified that much of the concerns relating to Skyla's learning and behavior, as described in the reports filed, are a result of Skyla's emotional stress and the emotional damage that she has suffered because of the mother's emotional "absenteeism". He believes that the concerns raised by the occupational therapist all point to the fact that her father needs to be more involved in her life.

[59] Mr. McCusker agrees that that Ms. Armstrong is a good mother and meets all of Skyla's instrumental and physical needs, however he does not believe that she meets Skyla's emotional needs and believes that the mother's inability to provide Skyla a consistently therapeutic learning environment is part of the problem.

[60] Mr. McCusker became involved with Ms. Karen Dubin in late 2011. They started living together in 2012. Mr. McCusker testified that for a period of time in 2012 and 2013, Skyla was with him and Ms. Dubin every weekend in their home.

[61] It is Mr. McCusker's evidence that for the two years that Skyla lived with him and Ms. Dubin, she lived a balanced and healthy lifestyle among loving adults and caring children. However, Mr. McCusker testified that even in this arrangement, the mother was disagreeable and difficult, denying him access for lengthy periods of time when she was angry with him.

[62] Mr. McCusker brought this motion to change in 2013 while he was living with Ms. Dubin. He states that Ms. Armstrong had unreasonably denied him access for a period of several weeks. His motion to change led to the first specified temporary access order of Justice Cohen dated May 31, 2013 which provided alternating weekend access to Mr. McCusker.

[63] Mr. McCusker was living with Ms. Dubin and her children during the 2013 OCL investigation. Ms. Dubin participated in the investigation and home visits conducted occurred at Ms. Dubin's home.

[64] Mr. McCusker and Ms. Dubin stop living together near the end of 2015. Mr. McCusker testified that they continue to be in a relationship however it was his evidence that the strain of these proceedings caused them to shift their living arrangements up until very recently.

[65] Over the past two years, since Mr. McCusker left Ms. Dubin's residence, he has lived in a number of different places. He originally moved to an apartment at 127 Queen Street East, just five minutes from Skyla's school so that he could walk her to and from school during his access. He testified that the mother then unilaterally and abruptly changed Skyla's school to a significant distance away without notice to him.

[66] Mr. McCusker then moved to 496 Richmond Street in Toronto where he lived until June or July 2016. He left that apartment as he could not afford to pay the rent and was subject to eviction proceedings.

[67] Since June or July 2016, Mr. McCusker testified that he stayed at a number of different places. He primarily stayed at his cousin's home in Hamilton where he and Skyla had access to two rooms. His access with Skyla shifted to this location in Hamilton, which was approximately one to two hours away from Skyla's school in Toronto. He also stayed on occasion at Ms. Dubin's home as well as a friend's home in High Park.

[68] When asked in cross-examination by mother's counsel where he has stayed in the past three months and for how long, Mr. McCusker testified that he did not know how many days he slept at his cousin's home in Hamilton; some nights he is in Hamilton, some nights he is at Ms. Dubin's home, some nights he is at his friend's home in High Park and some nights he is elsewhere, abroad, in the country, or on reserves.

[69] When asked where he would be exercising access to Skyla, Mr. McCusker responded, "I believe it is my right to take Skyla anywhere for access, whether it is at my cousin's or Ms. Dubin's or on the reserve and not be restricted by any limitations on where I take her." Mr. McCusker would like to take Skyla to different reserves in Ontario. Mr. McCusker acknowledged that he did not have a car or a valid driver's license. He testified that either band members of the reserves or Ms. Dubin could arrange transportation for them.

[70] When asked about what he did to earn income, Mr. McCusker described himself as a creative person but that in 2016, he "barely made any money", and he could not remember what, if any, income he earned in 2015. He testified that he had not been able to hold down a job and that he has attempted to get jobs elsewhere but he has been let go from these positions. It was unclear why.

[71] Mr. McCusker acknowledged that he does not pay any rent or contribute to any expenses at his cousin's home or any of the places that he has stayed over the past year or more. When asked how he pays for food, he testified that he has a large network of supportive friends that he relies upon. He testified that he is been relying on others for food and shelter for approximately one year.

[72] Mr. McCusker testified that he has now moved back into Ms. Dubin's home. He testified that they have been "in the process of reconciling their living situation" for a number of reasons, including financial and practical ones regarding Skyla.

[73] When asked when he moved back into Ms. Dubin's home, he testified that the move was in the last two weeks before this trial. However, he testified that he and Ms. Dubin had been discussing his move back into her home for quite some time and have always maintained their relationship.

[74] When asked if he would be contributing to Ms. Dubin's expenses, Mr. McCusker testified that was the goal eventually, but currently he is offsetting her child care costs by providing child care in the mornings and after school for her children.

[75] Mr. McCusker acknowledged that he has not paid child support to Ms. Armstrong pursuant to his court ordered and legal obligation. He acknowledged that he is currently subject to a committal proceeding commenced by the Family Responsibility Office. He testified that it if he is committed to a period of incarceration for non-payment of support, it will have a drastic impact on his relationship with Skyla and his ability to earn income.

Ms. Karen Dubin

[76] Ms. Dubin lives in Toronto with her two children, six-year-old twins from a previous relationship. Ms. Dubin is employed full-time and the children reside primarily with her although they see their father as well.

[77] Ms. Dubin testified that she and Mr. McCusker have been in a committed relationship for 5.5 years, since 2011. She first met Skyla on New Year's Eve in 2011. Ms. Dubin and Mr. McCusker started living together in 2012 and remained living together for approximately 2 to 3 years.

[78] Ms. Dubin testified that during almost all of 2012 and 2013, they had Skyla with them every weekend until the mother terminated this arrangement. She described a close and loving relationship with Skyla and also between Skyla and her children.

[79] Ms. Dubin testified that from the very beginning there were serious issues with Mr. McCusker's ability to have access with Skyla and that there was a lot of conflict between the parties. She acknowledged that she did not witness all of the conflict and that most of what she has witnessed was in reviewing emails or witnessing Mr. McCusker's frustration with access.

[80] Ms. Dubin described Skyla as a very creative child, an incredible artist, and very expressive. She could not comment on whether Skyla had a learning disability. Ms. Dubin described a close and loving relationship between the father and Skyla. She further described the many cultural activities that they had done together including going to pow wows, the Native Cultural Center, and a number of other events. She testified that she and Mr. McCusker are very involved in the Indigenous community and so is Skyla.

[81] Ms. Dubin described her own involvement in the Indigenous community and the transformative counseling that she has received through Indigenous healing practices. She sees an Elder, participates in Sweat Lodge and other Indigenous practices on a regular basis.

[82] Ms. Dubin testified that Mr. McCusker moved out of her home in late 2015. When asked why, she explained that she needed to take a step back from the conflict between the father and Ms. Armstrong and although she was not ready for him to move back into her home, they continue to remain involved.

[83] Ms. Dubin testified that Mr. McCusker moved back permanently into her home a few weeks before this trial. When asked what has changed, Ms. Dubin testified that first, she has made some personal changes including learning better coping skills in managing her emotions around the conflict, and secondly she felt confident that the court proceedings would shortly be resolved.

[84] When asked in cross-examination about Mr. McCusker's living situation after leaving her home, Ms. Dubin agreed that Mr. McCusker has not had stable accommodation over the past two years prior to resuming cohabitation with her.

[85] At this time, Mr. McCusker is not providing financially to Ms. Dubin's housing expenses, however Ms. Dubin testified that Mr. McCusker provides significant child care for her children thereby saving her considerable child care costs. She described a very close relationship between Mr. McCusker and her children.

[86] Ms. Dubin did not agree that Mr. McCusker's inability to financially contribute to her household was an issue for her given the "immeasurable" child care assistance that he is providing. However she did agree that Mr. McCusker has to meet his financial obligations to Ms. Armstrong.

[87] Ms. Dubin was very confident that her relationship with Mr. McCusker and their renewed cohabitation is permanent. She testified that they are making plans for the future. They have discussed plans to move to a bigger home and possibly start a business together and to travel together. She described being very committed to making their relationship work.

[88] Ms. Dubin is aware of the upcoming FRO committal proceeding that Mr. McCusker is facing. She testified that she will be sad if Mr. McCusker is incarcerated as a result of that proceeding, then but this will not affect her commitment to their relationship.

[89] Ms. Dubin testified that she attempted to reach out to the mother a long time ago but she has not done anything recently to reach out to her. Ms. Dubin testified that she wished that they could all work together as a team for Skyla's sake.

The Mother

[90] Ms. Armstrong denies that the father was actively involved in Skyla's life since the parties' separation. It is her evidence that she has been Skyla's sole provider and caregiver since birth. She further deposed that since Skyla's birth, Mr. McCusker has not had a stable residence or a stable income and that on average, he changed residences every six months. She described the father's history as one of a very unstable and transient lifestyle with multiple partners and continual moves.

[91] Ms. Armstrong acknowledged that in 2011, the father started to come by more frequently to care for Skyla when Ms. Armstrong was working and pursuing employment. She deposed that Mr. McCusker and she verbally agreed that he would care for Skyla in lieu of any formal child support and that he would help out when he could. However she disputes that he was caring for Skyla for almost half of the time in 2011.

[92] According to Ms. Armstrong, when she obtained night time employment, the parties attempted overnight access for a brief period of time but this was not successful. She deposed that Mr. McCusker brought Skyla to stay at three different apartments and introduced her to at least two new girlfriends during a brief period of time. He further refused to disclose his temporary addresses and was unreachable by telephone. Skyla always returned looking exhausted, dirty and inappropriately dressed.

[93] Ms. Armstrong deposed that between February and December 2011, Mr. McCusker continued to agree to her frequent requests to care for Skyla while she worked, however he cared for Skyla at her apartment. She deposed that the father was at her apartment for an average of 19 hours each week caring for Skyla while she was working.

[94] Ms. Armstrong acknowledged that when Mr. McCusker became involved with Ms. Dubin in late 2011 and subsequently moved into her home in 2012, she felt more comfortable about agreeing to an overnight access schedule outside of her home. She deposed that they agreed to a new access schedule of every weekend from Friday at 5 PM to Sunday at 12 noon while the father was living with Ms. Dubin, which was later extended to Sunday at 5 PM.

[95] It is Ms. Armstrong's evidence that although she continued to have concerns about Skyla's exhaustion and school performance after access visits, Skyla was generally well cared for during this period of time.

[96] In examination at trial, Ms. Armstrong acknowledged during her testimony that when Mr. McCusker was living with Ms. Dubin in what seemed like a permanent situation, access visits were going well. She did not have any concerns about Skyla when Mr. McCusker was living with Ms. Dubin.

[97] However, Ms. Armstrong also described a lengthy history of conflict between the parties during the period of time that Mr. McCusker was living with Ms. Dubin, as set out in her detailed trial affidavit. Even while living with Ms. Dubin, the conflict between the parties did not subside although it appeared to be largely around child support issues. It also involved issued various issues around access. Both parties involved the police and the children's aid society in this conflict.

[98] Ms. Armstrong testified that after Mr. McCusker and Ms. Dubin stopped living together in 2015, Mr. McCusker did not have a fixed address and was moving from place to place, continually putting Skyla's safety at risk. During his frequent moves and transient lifestyle, Mr. McCusker would not provide Ms. Armstrong with his new addresses or permit her to speak to Skyla on the phone.

[99] It is Ms. Armstrong's evidence that during a June 17, 2016 court appearance for the FRO child support enforcement proceedings, she learned that Mr. McCusker had no money and had not been able to secure employment since May of 2015. She further learned that he was being evicted from his apartment effective June 27, 2016, that he did not have a single person in his life that he could rely on for financial support and that he had applied for social assistance but had been denied.

[100] After that hearing, Ms. Armstrong became very concerned about Mr. McCusker's ability to meet even Skyla's basic needs during access visits. Mr. McCusker was not able to provide stable accommodation for Skyla and he could not provide a home address to Ms. Armstrong. He initially advised her he would be staying at a friend's home in High Park then he changed his story and advised her that he would be staying at a cousin's home in Hamilton.

[101] Ms. Armstrong deposed that she began to hear from Skyla that they were moving from place to place during access visits and that her clothing was being stored in various places.

[102] Ms. Armstrong suspended overnight access after an overnight visit on August 21, 2016 that occurred in Hamilton at the father's cousin's home. Skyla returned from that visit in nothing but a bathing suit because the father had no clothes for her. Based on the information provided by Skyla, she also did not have a proper place to sleep and was sleeping with an older 13 year old boy that she did not know.

[103] Ms. Armstrong suspended the father's overnight access after that time and until such time as he was able to provide proof of stable accommodation. At the time of trial, the father had not exercised any overnight access since August 2016.

[104] Ms. Armstrong testified that she wants Skyla to have a relationship with her father, but given Skyla's special needs, Skyla desperately needs stability and consistency.

[105] Ms. Armstrong filed a number of reports as exhibits at trial regarding Skyla special needs, including a psychological assessment conducted by the Toronto District School Board dated June 22, 2016, and Occupational Therapy Report dated January 13, 2016, and an Individual Learning Profile, dated May 14, 2015.

[106] It is Ms. Armstrong's evidence that she and her partner Mr. McEwan started to suspect that Skyla had a learning disability in 2015 and contacted the principle of Skyla's school to have her diagnosed. Prior to that, it was Ms. Armstrong's evidence that Skyla was falling behind academically because of the sleep deprivation that she was experiencing after overnight weekend access with her father and the number of times that he returned her to school late after access visits.

[107] Ms. Armstrong described Skyla as struggling with skills related to her executive functioning. She testified that Skyla struggles daily with taking her own initiative and that she needs to be encouraged on a daily basis to shower, to comb her hair and to brush her teeth. She needs to be closely supervised while showering and performing basic daily functions. Ms. Armstrong further testified that she will actually take showers with Skyla as that is what Skyla requires.

[108] According to the psychological assessment completed in June 2016, Skyla's general cognitive ability varied and ranged from "average to high average". Her fluid reasoning skills were within the high average range as well as her performance in the area of visual spatial thinking, however her oral language skills were in the average range. The school psychologist assessed Skyla as meeting the diagnostic criteria of a student with Attention Deficit Hyperactivity Disorder, "predominantly inattentive presentation".

[109] Skyla also started seeing an occupational therapist in January of 2016 who recommended a daily and consistent implementation of tools to assist Skyla with her day-to-day functioning. Skyla completed occupational therapy between January and June of 2016.

[110] When asked in cross-examination why none of this information was shared with the father, Ms. Armstrong testified that she has shared this information "through the court process". She testified that she and Mr. McCusker do not communicate at all except through email which she describes as "very aggressive" on the father's part. There was no evidence that any of this information was shared by email.

[111] Ms. Armstrong testified that until Mr. McCusker has a stable income and stable accommodation, she will not agree to overnight access. When asked what proof she needed of stable accommodation, Ms. Armstrong testified that she needed to see a copy of a lease and proof of stable employment.

[112] Ms. Armstrong did not believe that Mr. McCusker and Ms. Dubin had resumed cohabitation. Although she did not have any concerns about Skyla's access with her father when he was living with Ms. Dubin in the past, she was not convinced that the father and Ms. Dubin had reconciled and were now living together again. She testified that the first time that she had heard they had reconciled their living situation was during this trial. She would like to see their relationship stabilize and see how long it lasts before she would be willing to consider overnight access.

[113] Although not referred to in her Trial Affidavit evidence, in examination at trial, Ms. Armstrong testified that she also has Indigenous heritage on both her mother's and her father's side, although she did not have more information about the nature of her Indigenous identity. She testified that she has exposed Skyla to her Indigenous heritage and that Skyla also has French Canadian, Irish and German heritage. She described looking at her cultural make-up as a balance of Indigenous, French Canadian, Irish and German elements and exposes Skyla to all of these elements.

The Report of the Office of the Children's Lawyer, dated November 28, 2013

[114] The OCL clinical investigator was Ms. Ilena Bisgould. Her Affidavit with her Report attached was filed as evidence in these proceedings, pursuant to section 112(3) of the Courts of Justice Act, R.S.O. 1990. c. C.43. This section provides that once an OCL Report is served on the parties and filed with the Court, it shall form part of the evidence at the hearing of the proceeding.

[115] Neither party filed a dispute of the findings in the OCL Report, nor did either party call the clinical investigator to testify at these proceedings, in accordance with section 112(4) of the Courts of Justice Act. The report is quite dated as it was completed almost four years ago and much has changed, particularly in the father's circumstances, since that time. The court accordingly gave the Report its appropriate weight, in the context of all of the other evidence at trial, and keeping in mind that Ms. Bisgould did not attend as a witness.

[116] According to the Report, it was the mother's position at the time that the father had neglected Skyla's safety on several occasions and that increased access was not in her best interests. The father was seeking increased access and stated that the mother had a history of regularly suspending or blocking his access for reasons unrelated to his parenting. The father also described a history of erratic, violent and emotionally abusive behavior by the mother.

[117] The clinical investigator conducted two private interviews with Skyla in September 2013 and in November 2013. Both interviews were conducted at her school and according to pages 9 and 10 of the Report, neither parent was made aware of either interview. In both interviews, Skyla consistently stated that she wished that she had more time with her father. She also described conflict between her parents and that her mother has told her that she does not like her father.

[118] The clinical investigator also conducted observations of interactions between Skyla, her father and Ms. Dubin and her children during a home visit conducted at Ms. Dubin's home. The father was living with Ms. Dubin at the time. The clinical investigator found no identified concerns during the visit. Skyla and her father were affectionate towards one another. Skyla also sought affection from Ms. Dubin and Ms. Dubin was affectionate towards her, as well as her own children. The children played well together. Skyla's bedroom was nicely furnished and age appropriate.

[119] In the "Discussion" section of the Report at pages 11 and 12, the clinical investigator states as follows:

"… Ms. Armstrong was awarded custody on June 10, 2009 and Mr. McCusker was awarded reasonable access upon reasonable notice. This open arrangement paved the way to conflict, to the point where Mr. McCusker brought the matter back to court where he requested additional access and a fixed schedule. Even with a fixed schedule, conflict has prevailed and additional access is being requested. Litigation has induced stress and has proven to be unsuccessful. The parents remain unable to agree on a suitable access arrangement for Skyla. There have been allegations made by both parents in the past which has led to police and child welfare involvement and the end result is that of multiple contradictions, unresolved issues, and residual feelings of distrust, anger and frustration on part of both parents. Even still, allegations continue to be made as Ms. Armstrong is alleging that Mr. McCusker is still neglecting Skyla's needs (not always sending a lunch to school) and Mr. McCusker continues to make allegations regarding Ms. Armstrong's volatile behavior towards them and in front of Skyla. As such, the relationship remains conflicted and communication is poor.

Early on after the separation, the mother's irregular work hours, financial stress and lack of family support created a high level of stress for Ms. Armstrong. She was in a position of having to depend on Mr. McCusker for child care and this added further to her stress level. Mr. McCusker seem to have difficulties maintaining stability in his personal life due to inconsistent work and financial stress, lack of consistent housing and it is possible that there were periods of time where he was not available to assist with childcare (early part of 2009) as evident by Ms. Armstrong when seeking assistance through Native Child and Family Services. It cannot be determined clearly if there were periods were Mr. McCusker abandoned Skyla, as alleged, or whether he was simply not available on a consistent and reliable basis, or alternatively, whether he was just not available as needed. There were periods were Ms. Armstrong resorted to the use of threats (of calling the police, withholding access) and emotional abuse towards Mr. McCusker when she found him to be unreliable and unavailable to her."

There is no evidence to substantiate that Mr. McCusker has endangered Skyla's safety, that he has threatened Skyla's hygiene and sleep requirements (currently she has her own bed) and that he is currently not providing Skyla with an appropriate lunch for school. Ms. Armstrong maintains that the school principal can collaborate [sic] this concern, however the school principal has not validated this concern.

When there has been direct contact between the parents, there has been conflict during the exchanges and when the exchanges have taken place between Mr. McCusker and Mr. McEwan, there has been conflict but not to the same extent. Skyla has been exposed to the conflict and has been at risk of emotional harm due to the exposure to conflict and she remains at risk of emotional harm due to the ongoing exposure to the conflict. Both parents were previously advised by the Children's Aid Society of the risks and implications of Skyla's exposure to adult conflict...

…It seems evident to the investigator that both parents are committed as parents to Skyla and want what is in her best interests. In doing so, they will have to put their differences aside and put the unresolved issues aside. At this time, both parents appear to be in stable relationships with their common-law partners and appear to have more stability in their own lives.

Skyla disclosed during the two interviews that she would like additional time with her father. At this time, there is reason to believe that additional time between Skyla and her father would be in Skyla's best interests. Ms. Armstrong maintains that she doesn't believe that visits are in Skyla's best interest and she has made new allegations. These allegations have not been verified. As for Skyla' school, it does not appear to be an appropriate placement for her as it is intended for students where French is a 1 st language spoken in the home. This does not apply to either home and should Skyla remain in the school, it could lead to unsatisfactory results."

[120] The clinical investigator also found, based on her review of past medical and psychiatric records from Ms. Armstrong's family doctor and the St. Michael's Hospital, that Ms. Armstrong may suffer from an underlying mental health condition which includes elements of anxiety, depression and anger management. [Page 11 of the Report].

[121] Based on her investigation at that time, the clinical investigator recommended the fixed shared parenting schedule that is set earlier in this judgment at paragraph 37.

[122] This concludes the summary of the evidence in this trial.

5. The Law and Governing Principles

[123] Rule 15 of the Family Law Rules governs the procedure for motions to change and applies to motions to change a final order for custody, access and child support.

[124] The test to be applied to change a final custody and access order is set out under section 29 of the Children's Law Reform Act, R.S.O. 1990, c. C.12, s. 29, as amended. This section provides as follows:

"29. (1) A court shall not make an order under this Part that varies an order in respect of custody or access made by a court in Ontario unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child. R.S.O. 1990, c. C.12, s. 29."

[125] The Supreme Court of Canada's 2006 decision in Gordon v. Goertz, [1996] 2 S.C.R. 27 sets out a two stage process that a court must conduct on motions to change custody or access orders:

a) First, the moving party must meet the threshold requirement of demonstrating that, since the last order was made, there has been a material change in circumstances that affects or is likely to affect the child. The previous order is presumed to be correct. The change must have not been foreseen or reasonably contemplated by the judge who made the original order. The change must be to the condition, needs, means or circumstances of the child and the ability of the parent to meet those needs. If this test is not met, the inquiry goes no further.

b) Second, if the threshold is met, then the court must embark on a fresh inquiry into the best interests of the child, having regard to all of the circumstances in section 24 of the Children's Law Reform Act. In this fresh inquiry, both parties bear the evidentiary burden of demonstrating where the best interests of the child lie. The court should consider the matter afresh without defaulting to the existing arrangement.

[126] The onus is on the person seeking to establish a material change in circumstances to prove on a balance of probabilities that there is a material change that affects or is likely to affect the best interests of the child. The change cannot be "trivial" or insignificant, it must be material.

[127] The requirement of a material change in circumstances means that a motion to change cannot be an indirect route of appeal from the original custody and access order. The court must assume the correctness of the first order and consider only the changed facts since the first order was made. See Docherty v. Beckett, (1989), 21 R.F.L. (3d) 92 (Ont. C.A.).

[128] The court should allow only a limited look at evidence predating the order to understand how it was made in order to determine if a material change in circumstances has been established. See Hornan v. Hornan, 2007 CarswellMan (Man. Q.B.).

[129] There is a strong presumption that findings of fact made at the hearing of an original application, even if made on a default basis, will not be disturbed on a motion to change. This was discussed in Trang v. Trang, 2013 ONSC 1980, although in the context of a motion to change dealing with child support, where a payor was trying to change income imputed to him at the original hearing. See paragraphs 59 and 60 of that decision.

[130] Continued conflict can result in a material change in circumstances. Litman v. Sherman, 2008 ONCA 485, and Goldman v. Kudelya, 2017 ONCA 300, if it results in a failure of the order to be in the child's best interests. Ongoing conflict and actions running completely counter to the spirit of the custody and access order can be, in themselves, enough to constitute a material change: Zinck v. Fraser, 2006 NSCA 14, 22 R.F.L. (6th) 334 (N.S.C.A.).

[131] Worsening conflict can also constitute a material change. Wreggitt v. Belanger; Hackett v. Sever, 2017 ONCJ 193.

[132] The ageing of a child does not automatically constitute a material change, but it can be significant factor. Brown v. Lloyd, 2015 ONCA 46.

Step 1: Has there been a Material Change in Circumstances since the Final Order?

[133] In the case before me, I find that there have been material changes in circumstances affecting Skyla's best interests since the Final Order of Justice Cohen was made. They are as follows:

1. The ongoing and worsening conflict since the 2009 Order makes it very difficult if not impossible for the parties to continue to operate under a regime of "reasonable access upon reasonable notice." According to the limited evidence set out in the mother's Affidavit for an Uncontested Trial attached to the Final Order in the Endorsement Record, the parties were communicating "most of the time" and there was no evidence of conflict noted. The parties' inability to arrange "reasonable access upon reasonable notice" in the past eight years since the Final Order was made, as evidenced by this very acrimonious litigation, is obvious. The Final Order for access is unworkable and the need for a specified access order is in Skyla's best interests, to minimize the conflict between the parties.

2. Skyla was 1.5 years old when the Final Order was made by Justice Cohen. She is now almost 10 years old. There is also now evidence, albeit dated, of Skyla's views and preferences in the 2013 report from the Office of the Children's Lawyer filed in this trial. Further, both parties gave evidence of Skyla's views and preferences in this hearing as well as her changing needs.

3. The father's living situation has changed a number of times since 2009.

4. There is now some evidence that Skyla was found to meet the diagnostic criteria for Attention Deficit Hyperactivity Disorder (ADHD) by a Toronto District School Board psychologist following an assessment in 2013 and that she may have some special needs. It is important to take this diagnosis into account when determining what access schedule is in Skyla's best interests.

Step 2: The Fresh Inquiry Regarding Skyla's Best Interests

[134] As set out in the second step of the Gordon v. Goertz test, once a material change in circumstances affecting the best interests of the child has been established, the court must then embark on a fresh inquiry regarding the child's best interests.

[135] Both parties bear the evidentiary onus at the second stage of the analysis of demonstrating where the best interests of the child lie, and there is no legal presumption in favour of maintaining the existing custody and access arrangements. See: Persaud v. Garcia-Persaud, 2009 ONCA 782 (C.A.); Deslauriers v. Russell, 2016 ONSC 5285; Roloson v. Clyde, 2017 ONSC 3642.

[136] In determining what custody and access order is in a child's best interests, a court is guided by section 24 of the Children's Law Reform Act. I must consider the best interest factors set out in section 24(2), (3) and (4) of the Act. Section 24 provides as follows:

(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.

[137] I have carefully considered all of these factors in reaching my decision. Each case must be decided by considering the unique circumstances and needs of each individual child.

[138] The best interests of the child have been held to be met by a child having a loving relationship with both parents. Such a relationship should be interfered with only in demonstrated circumstances of danger to the child's physical, emotional or mental well-being. See Pastway v. Pastway (1999) 49 RFL (4th) 375 (SCJ).

[139] A child should have maximum contact with both parents if it is consistent with the child's best interests. See Gordon v. Goertz, [1996] 2 S.C.R. 27. This applies even when a child may be reluctant to see a parent. The "maximum contact" principle is well enshrined in Canadian family law.

Application of the Law to the Facts of this Case

[140] Both parties agree that some form of specified access order should replace the "reasonable access upon reasonable notice provision" of the Final Order, given the high level of conflict and hostility between the parties. The parties disagree significantly on what that access order should look like.

[141] The father's request for the shared "45/55" parenting schedule recommended by the OCL or an equal "50/50" time-sharing arranging is not supported by the evidence. However, the mother's request that she continue to exercise her discretion as to whether the father should have overnight access is also fraught with difficulty and not supported by the evidence.

[142] The court recognizes that, in many respects, the father is a loving and devoted father to Skyla. He has also exposed Skyla to many interests and activities that she may not otherwise have had. The father has also actively encouraged Skyla to explore her Indigenous identity and has brought her to several Indigenous events and ceremonies. He is a creative person, and shares this with Skyla, who also has been described as a very creative and artistic child by both of her parents and Ms. Dubin. It is clearly in Skyla's best interests to have a continuing relationship with her father.

[143] However, the evidence establishes that for many periods of the father's life since the parties' separation in 2009, his housing and his income has been unstable. Indeed, in the mother's Affidavit for an Uncontested Trial, sworn June 10, 2009, she deposed that she did not seek child support from the father at that time because the father was "unemployed and homeless." The father did not dispute that at the time, nor has he ever disputed that the mother maintain sole custody of Skyla. During the August 2016 trial dates, which were adjourned at Mr. McCusker's request, he candidly acknowledged in court on August 2, 2016 that he was "unemployed and homeless" when he was seeking an adjournment of this trial.

[144] After the father and Ms. Dubin stopped living together in 2015, according to the father's own testimony, his living situation was unstable. Mr. McCusker acknowledged that prior to re-commencing his living relationship with Ms. Dubin, he was without a fixed address and living with a number of different friends and family members, including a cousin in Hamilton, a friend in High Park, Ms. Dubin, "abroad", "in the country", and on various reserves.

[145] Mr. McCusker further admitted that he made barely any income in 2016, and that he relied upon the support network of his friends and community for food and shelter for a period of more than one year. Ms. Dubin, when asked in cross-examination, candidly agreed with the mother's counsel that the father had not had stable accommodation for the past two years prior to resuming cohabitation with her.

[146] It is unclear why the father cannot see that a shared access arrangement is not feasible when one of the parents is transient, does not have a fixed address and has no ability to provide the child with basic necessities such as food. Mr. McCusker's did not seem to understand that taking Skyla from place to place and from home to home during his regular overnight access was not in her best interests. Children require a stable, consistent and predictable routine. In particular, I find that stability, consistency and routine are very important for Skyla, given her unique needs.

[147] It is unclear why the father's housing and employment situation have been so unstable over the past number of years. The father appeared to have very limited insight in this regard. It appears that the father has paid very little child support since the parties separated. No medical or expert evidence was filed at this trial regarding the father's physical or mental health. This will presumably be the subject of the warrant for committal hearing that is scheduled to proceed given that the father is in significant arrears of court ordered child support. The court is also concerned about the outcome of that hearing. Should the father be committed, Skyla's access with her father will be suspended.

[148] The only stability that the father appeared to have since 2009 was during the approximately two to three years that he was cohabiting with Ms. Dubin in her home. It was during this time that the Office of the Children's Lawyer conducted its clinical investigation and report, recommending a 45/55 split in access between the parents. This was almost four years ago.

[149] However, even if the father did have stable housing and a stable ability to provide the basic necessities for Skyla, a shared access or parenting arrangement would still not be in Skyla's best interests in these circumstances. A higher degree of cooperation and mutual respect is needed to make a shared parenting arrangement work effectively. Parents need to be able to coordinate medical and academic issues concerning the child in shared parenting. They need to be able to coordinate extra-curricular activities and communicate effectively about other important aspects about the child's welfare, education and learning needs. See Justice Stanley Sherr's decision in P.H. v. T.J., 2017 ONCJ 166.

[150] The necessary degree of cooperation and respect for a shared parenting arrangement to work is clearly not present in this case. There is a great deal of acrimony and hostility between the parties. Both parties have involved the police and the children's aid society in the past. Both parties have very different parenting styles. Both parties have very different interpretations of the outcome of Skyla's psychological assessment and the father does not accept that Skyla has a learning disability. He also did not agree with the methods of treatment that the mother was using for Skyla.

[151] The court was also concerned that the mother had shared virtually nothing with the father about Skyla's special needs, her numerous service providers, and the routine that she employs in her household with Skyla. Given the mother's obvious hostility towards the father, the court was concerned about her ability to do so in a shared access arrangement. The parties do not communicate.

[152] Ms. Dubin appears to be a very stabilizing influence on the father and she has a positive relationship with Skyla. I agree with the observations set out in the OCL Report in that regard. This has also been corroborated by the evidence in this trial.

[153] While Mr. McCusker and Ms. Dubin are living together in a committed relationship, the court has no hesitation in granting overnight regular and specified access to the father.

[154] The evidence of the father and Ms. Dubin was somewhat contradictory on the status of their relationship. Nevertheless, I find based on the evidence that Mr. McCusker is now living again with Ms. Dubin. Ms. Dubin was a credible witness at trial. Her evidence was forthright and candid and she withstood cross-examination well.

[155] The court is however, concerned about the permanency of that relationship, notwithstanding Ms. Dubin's hope for the future. Should the father and Ms. Dubin separate again, there is no evidence where the father will live.

[156] It was not disputed by either the father or Ms. Dubin that the father moved back permanently into Ms. Dubin's home only a few weeks before this trial. It was also concerning that the mother did not seem to know anything about the father's reconciliation with Ms. Dubin and first heard that they were living together again during this trial. The father admitted during his testimony that he had not notified the mother of the change in his living situation.

[157] However, notwithstanding the court's reservations, I find that overnight access should be reinstated now that the father and Ms. Dubin have resumed cohabitation. It is in Skyla's best interests to maximize her time with her father in a stable and appropriate setting.

[158] After careful consideration, I do not find that overnight access should continue to be left at the mother's discretion. I agree with counsel for the mother that Ms. Armstrong has always met Skyla's instrumental and material needs and has always provided her with stable and consistent housing since the parties separated. In many respects, she is a very responsible parent.

[159] However, the court is concerned about the mother's ability to fully facilitate a relationship between Skyla and her father. There is some evidence that on a number of occasions, the mother has acted unreasonably in restricting the father's access and relationship with Skyla, even when the father was in a stable and committed living arrangement with Ms. Dubin.

[160] The mother appears to be very angry with the father for his failure to meet his child support obligations. This may be certainly understandable. However, it does appear that this anger has interfered in her ability to facilitate Skyla's relationship with her father. The mother's hostility and anger towards the father was also corroborated by some of the historical findings of the OCL Report.

[161] Despite the mother's evidence at trial that access had gone well while the father was living with Ms. Dubin, the mother reported many concerns about the father's access to the OCL clinical investigator while Ms. Dubin and the father were living together and the mother did not support an increase in access. None of these concerns were verified by the OCL clinical investigator. Ms. Dubin also described in her testimony the significant difficulty in arranging access during this time period and the high level of conflict between the parties in attempting to arrange access. The mother also greatly minimized the father's involvement with Skyla in the early years of their separation.

[162] The court was also concerned that the mother failed to provide any of the information regarding Skyla's special needs to the father, including her daily routine with Skyla. This is very important information to share with the father.

[163] It is unclear how the mother expects the father to meet Skyla's needs during access if she will not share this information with him, except through an affidavit or a trial in a very acrimonious court process. The mother did not dispute that she unilaterally changed Skyla's schools on two separate occasions without consulting the father beforehand.

[164] Finally, it was clear from the mother's evidence at trial that she did not believe that the father and Ms. Dubin were living together, and even if they were living together, she did not agree that overnight access should be reinstated.

[165] Even though the mother had acknowledged at trial that access had gone well in the past when the father and Ms. Dubin were living together, it was clear that she did not believe that this was a stable living arrangement for the father at this time.

[166] The mother was not able to provide a clear answer about how long Mr. McCusker and Ms. Dubin needed to be living together for her to be satisfied that it was a permanent and stable relationship and that overnight access should be reinstated.

Conclusion

[167] Skyla is now almost 10 years old and she deserves to have a safe and healthy relationship with her father and it is in her best interests to do so. This can be achieved through maintaining a specified, regular overnight alternating weekend access order, subject to the conditions set out in the order below, and with additional holiday time. It should also include a civil and respectful exchange of information and communication about Skyla's needs. The court sincerely hopes that Ms. Dubin's wish that the parties work together in a "team effort" for Skyla's best interests can be achieved. Skyla deserves nothing less.

[168] In reaching this decision, I have also carefully considered the importance of Skyla's Indigenous identity and the importance for Skyla of maintaining her connection to that identity and culture through her father. I am satisfied that this will be achieved through the specified order below.

6. Final Order

[169] I make the following final order:

1. The mother will continue to have sole custody of the child, Skyla Jett McCusker Armstrong, born December 6, 2007.

2. The Final Order dated March 19, 2015 regarding holiday access and other incidents of access shall continue in full force and effect, and is attached as a Schedule to this Final Order.

3. The father shall have regular overnight access with Skyla as follows, subject to the conditions set out below:

1. Commencing Friday August 18, 2017, on alternating weekends from Fridays at 5:00 PM until Sunday at 6:00 PM. During the school year, the father shall be permitted to pick Skyla up at her school at the end of her school day on Fridays. If this weekend is not possible due to prior commitments, then the access schedule will commence the weekend of Friday, August 25, 2017.

2. The father's overnight access is conditional on the father having stable living accommodation for Skyla. The court finds that the father is living with Ms. Karen Dubin at this time. The father's living arrangement with Ms. Karen Dubin is found by this court to be stable living accommodation and the father is permitted to exercise overnight access with Skyla in his home with Ms. Dubin.

3. The father is permitted to exercise his holiday access with Skyla in places other than his home with Ms. Dubin. The holiday access schedule does not need to be exercised in Ms. Dubin's home, should the father wish to travel for holiday purposes with the child, in accordance with the provisions of the Final Order dated March 19, 2015, so long as the mother is provided with an itinerary and contact information.

4. Either party is permitted to bring a motion to change the custody and access provisions should there be a material change in circumstances. A material change in circumstances includes the father no longer living at Ms. Dubin's home or with Ms. Dubin.

5. The parents may also agree on further and other access.

[170] If the parties are unable to resolve the issue of costs, they may make written submissions to the court.

Released: August 15, 2017

Signed: "Justice Sheilagh O'Connell"

Footnotes

[1] The court sincerely apologizes for the delay in the release of this judgment for personal reasons resulting in an absence from the office.

[2] Mr. McCusker commenced a previous motion to change child support on January 2012.

[3] Family Responsibility Office enforcement proceedings for child support

[4] The evidence is summarized in accordance with the order of witnesses at trial.

[5] See page 8 of Schedule "A" to the Affidavit of Uncontested Trial sworn June 10, 2009 by the mother upon which the Final Order for custody and access was based.