Court File and Parties

Court File No.: FO-15-0005-01 (Dryden) Date: November 29, 2017 Ontario Court of Justice

Between: Derek Alan Anderson

• and - Cheryl Lisa Ann Froome

Before: Justice Sarah Cleghorn

Heard on: November 8, 2017

Reasons for Judgment Released Electronically on: November 29, 2017

Counsel:

• Ms. Beth White for the Applicant
• Cheryl Lisa Ann Froome self-represented

Introduction

[1] The hearing centered around custody of K.J.F-A., born December 27, 2004. K.J.F-A. will shortly be 13 years of age.

[2] K.J.F-A.'s father is Neil Anderson. The parents separated in June of 2014. Shortly thereafter, on consent, a final order was entered into that provided for joint custody to the parents. Under its terms, the residence of K.J.F-A. was to be with his father, the mother was to have reasonable access, and no child support was payable given the mother's nominal income. At the time of separation, and when the consent order was entered into, the mother was living in the City of Thunder Bay. The father was living in the City of Dryden.

[3] Tragically, on January 15, 2015, the father passed away. Derek Anderson is the father's brother. Derek Anderson brought an application for custody of K.J.F-A. shortly after the death of his brother.

[4] The matter proceeded to a trial before Justice Hoshizaki. The trial resulted in a final order dated December 8, 2015. Justice Hoshizaki ordered that Derek Anderson and Cheryl Froome were to have joint custody of K.J.F-A. Under the order, the primary residence of K.J.F-A. was to be with Derek and the mother was granted specified access. At the time of the order, Cheryl continued to live in the City of Thunder Bay.

[5] It is the order of Justice Hoshizaki, from December 8, 2015, that Cheryl seeks to vary through the present application. Cheryl returned to live in Dryden in March of 2016. In her motion, Cheryl seeks to vary the existing order and requests sole custody. It is her preference that access not be specified. Rather, she would prefer that Derek take a step back from a parenting role and enter into a more traditional uncle-nephew type relationship.

[6] It would appear that initially, Derek was prepared to accede to K.J.F-A.'s views and preferences. K.J.F-A. expressed that he wanted to be in the primary care of his mother. As a result, on consent, a temporary order was entered into on August 31, 2016 which placed K.J.F-A. in the primary care of Cheryl with specified access to Derek.

[7] The Office of the Children's Lawyer assigned a social worker to prepare a report for the court. The recommendations included that Cheryl be granted sole custody with specified access to Derek.

[8] The July 10, 2017 endorsement set the matter for hearing for October 3, 2017. At the beginning of trial on October 3, 2017, it became apparent that Derek was seeking relief that he had not pled. An oral motion was then granted amending Derek's pleadings to request joint custody with primary residence of K.J.F-A. to be in his home. An adjournment was granted in order to allow Cheryl the opportunity to properly prepare for the trial given the change in relief sought by Derek.

[9] It should be noted that at the commencement of trial, on October 3, 2017, Cheryl was representing herself. As a result, the court encouraged Cheryl to seek counsel so that she might be properly represented at trial. The matter was further endorsed with specific timelines surrounding affidavits that were to be filed with the court for the Motion to Change hearing.

[10] On the hearing date, November 8, 2017, Cheryl requested that she be allowed an adjournment to retain counsel. This motion was denied. The issue of counsel was fully addressed on October 3, 2017. The court made it clear that the hearing needed to move forward given the length of time the matter had been outstanding (the first court date was June 20, 2016). Given K.J.F-A.'s age, it is in his best interests that the matter be dealt with as soon as possible in order to allow structure and stability to return to his life.

[11] Cheryl is asking the court to make a final order placing K.J.F-A. in her sole custody. She has requested that any order not address access to Derek. Finally, she has abandoned her claim that Derek pay her child support.

[12] Derek is seeking an order for joint custody with the primary residence in his home with specified access to Cheryl.

Evidence at Trial

[13] Cheryl chose not to file any affidavit material for the hearing. However, as she was representing herself, she was allowed an opportunity to call evidence and testify.

[14] Cheryl chose not to call any evidence.

[15] Derek filed an affidavit sworn October 28, 2017. Cheryl chose not to cross-examine Derek in any significant way on his affidavit.

[16] The evidence before me on this trial consisted of the following:

• A Statement of Agreed Facts dated October 3, 2017. The Statement of Agreed facts provides the chronology of events and court orders to date;
• The affidavit of Derek Anderson sworn October 28, 2017, with exhibits "A" thru "K";
• A report of the Office of the Children's Lawyer, dated March 30, 2017.

[17] Both Derek and Cheryl conceded that a material change in circumstance had taken place. As a result, the court has jurisdiction to determine what is in K.J.F-A.'s best interest in terms of custody and access.

[18] It is uncontested that K.J.F-A. remained in the primary care of Derek pursuant to the order of December 8, 2015, with Cheryl exercising access to K.J.F-A. in Thunder Bay under the terms of that order.

[19] Cheryl moved to the City of Dryden in March of 2016. In the aftermath of that move, K.J.F-A. indicated that he wanted to spend more time with his mother. Derek has indicated that he has always been prepared to take K.J.F-A.'s views into consideration and agreed that access should increase to every second weekend.

[20] The time with Cheryl increased further under the terms of a temporary consent order, dated August 31, 2016. Thereafter, K.J.F-A. began living with his mother on a primary basis, while Derek had specified access.

[21] After the Office of the Children's Lawyer finalized its report, Derek deposed that K.J.F-A. told him that he would like to return to living in Derek's home on a full-time basis. It was for this reason, K.J.F-A. expressing his views directly to Derek that Derek has undertaken to continue to litigate the matter in court and to amend his pleadings before the hearing date.

[22] Derek raised a number of concerns regarding Cheryl's ability to parent K.J.F-A. Specifically, Cheryl's ability to ensure that K.J.F-A. attends school and applies himself diligently, that he associate with a pro-social peer group, and participate in age appropriate extracurricular activities. According to Derek, Cheryl requires assistance in order to provide the structure and stability that K.J.F-A. requires. Cheryl is either not willing or does not want any type of assistance from Derek or the father's family.

[23] Based on Derek's observations, he has noticed that K.J.F-A. is participating less in extra-curricular activities, has become withdrawn, is responsible for making his own arrangements to ensure his participation in hockey, and is left to his own devices when it comes to getting up and off to school. Derek is concerned that K.J.F-A. feels responsible for his mother's happiness and that he has essentially become somewhat of a caregiver for his mother.

[24] The report cards that have been filed as exhibits to Derek's affidavit show the following:

• In Grade 6 K.J.F-A. can be described as a "B" student. He missed 6 days of school. K.J.F-A. was in Derek's care during that period.
• In Grade 7 K.J.F-A. can be described as a "B" student. He missed 32 days of school. K.J.F-A. was in Cheryl's care during that period.
• K.J.F-A. is currently in Grade 8. In September he missed 6 days of school. K.J.F-A. has been in Cheryl's care since the beginning of this school year.

[25] I will now turn to the report of the Office of the Children's Lawyer.

[26] The report captures Cheryl's views on what role she believes Derek should have in K.J.F-A.'s life. The report indicates that:

Ms. Froome said that she does not believe that Mr. Anderson should be interfering in her parenting. She does not accept the role delegated to him by the court. She does not need his advice and has never asked for his help with K.J.F-A.

[27] Cheryl was direct with the author of the report that she does not agree with the court ordering specified access to Derek and has no intention of forcing K.J.F-A. on visits with Derek.

[28] Derek lives in a three-bedroom home with his wife and their three children. They have a 4 year old, a 2 year old, and a 5-month old. Derek's 15 year old daughter from a prior relationship also lives with the family.

[29] At the time of the report, K.J.F-A. was spending weekends at Derek's home. Given the limited space, K.J.F-A. was sleeping on the couch.

[30] Home observations were conducted in both homes with planned activities. Derek received a positive evaluation in terms of carrying out the planned activities exercise. In contrast, Cheryl struggled to some degree with the planned activities during the home observation visit. According to the author of the report, Cheryl was unable to read K.J.F-A.'s cues and the author was required to interject between them as the situation became "uncomfortable".

[31] K.J.F-A. was described as being comfortable in both homes and in the presence of both Derek and Cheryl.

[32] K.J.F-A. was interviewed on a number of occasions. It is evident he has bonded with Derek's children; K.J.F-A. described having a "brother-sister" relationship with Derek's oldest daughter.

[33] K.J.F-A. also reported struggling with the back and forth between the two homes. In addition, in Derek's home the impact of not having his own space for a bedroom bothers K.J.F-A.

[34] It is apparent that K.J.F-A. experiences challenges when living with his mother. According to K.J.F-A., he is responsible for getting himself up, ready and off to school. It appears he is frequently not home until 7:30 p.m. on school nights and either eats dinner at a friend's house or buys dinner out. At his mother's home, K.J.F-A. is able to miss school at his choosing with very little push back from his mother.

[35] In describing Derek, the author of the report stated:

Mr. Anderson presented as having K.J.F-A.'s genuine best interest and well-being as his primary concern. With each decision that has been made in the case he has ascertained K.J.F-A.'s feeling on the situation and taken a wise, parental position that takes K.J.F-A.'s wishes into account but ensures the loving adults in his life are involved and giving K.J.F-A. every opportunity possible.

[36] In describing Cheryl, the author of the report described her as appearing, "frustrated and overwhelmed at times". It was further noted that,

Reports from the police, mental health and Ms. Froome's physician, indicate that she has compromised cognitive capacity which limits her ability to understand things and that she perseverates on things that upset or frustrate her.

Analysis

[37] 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. I am mindful of the criteria set out in Section 24(2). The guiding principle is always the child's best interests.

[38] It is evident that both Derek and Cheryl have genuine love, affection and emotional ties with K.J.F-A. Further, the court has the benefit of knowing the views and preferences of K.J.F-A. from the report of the Office of the Children's Lawyer. K.J.F-A. clearly expressed his desire to be in the primary care of Cheryl.

[39] Section 24(d) of the Act requires that a court shall consider the following:

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.

[40] Overall, the Office of the Children's Lawyer report is less than positive on Cheryl's parenting abilities. It is clear Cheryl struggles in discharging her parenting responsibilities. Cheryl has difficulty setting boundaries and rules and imposing consequences for K.J.F-A. The decision-making for K.J.F-A was described as being "delegated" to K.J.F-A. It is concerning that the report described what can best be characterized as a "friend" relationship between mother and child. As a consequence, the author of the report, "took the unusual step of reviewing the recommendations of this report with K.J.F-A. so that he is aware of what the rules are that he needs to work within". It is troubling that the burden of implementing boundaries and rules would fall on the shoulders of a 12 year old. The focus must always be on what is in a child's best interests. It is clearly not in a child's best interests that the child must be responsible for himself.

[41] K.J.F-A.'s absences from school when he is in the care of his mother are extremely troubling. In contrast, when K.J.F-A. was in Derek's care he attended school regularly. K.J.F-A.'s Grade 7 teacher was noted as having to speak to Cheryl about the importance of ensuring that K.J.F-A. attends school. Fortunately, K.J.F-A. has managed to maintain his "B" average despite his significant absences while in Cheryl's care. However, whether this can be sustained as the work becomes more difficult is simply unknown.

[42] Derek, throughout the report, was presented as being a loving, secure, stable parental figure taking into account at every step the views and preferences of K.J.F-A. Derek was identified as putting K.J.F-A.'s best interests at the forefront. Derek was observed to appropriately parent and engage K.J.F-A.

[43] Based on the home observations, interviews with K.J.F-A., Derek and Cheryl, the recommendations made by the author of the report are, with respect, somewhat surprising. The report recommends that Cheryl avail herself of resources and supports (including the support of Derek, even though Cheryl is vehemently opposed to his involvement) in the hope that she will be able to effectively parent with such supports. This type of recommendation fails to take into account that K.J.F-A. requires stability, guidance and structure now, not at some point in future. K.J.F-A. cannot be expected to wait and hope that his mother will gain the appropriate parenting skills to the potential detriment of his mental well-being and his academic success. It is unrealistic to recommend, as the report does, that Cheryl have sole custody and that Derek continue to have access to information and attend to such important matters such as parent-teacher interviews, legal matters, etc.

[44] Cheryl has made her view abundantly clear that she does not want Derek to have any authority or say in any decisions impacting K.J.F-A. Given Cheryl's apparent limitations, the recommendations that require co-operation and effective communication between her and Derek are neither realistic nor feasible.

[45] K.J.F-A. is still a child. He cannot be allowed to call the shots and assume primary responsibility for decisions regarding his education. K.J.F-A. is at an age where on-going supervision within a household that has rules, clear expectations and boundaries, and unconditional love and support, is critical to his mental, physical and academic development.

[46] It is clear that K.J.F-A. loves and is bonded to his mother. It is also clear that Cheryl loves and is deeply bonded to K.J.F-A. The love and affection between Cheryl and K.J.F-A. does not trump the fact that Cheryl is incapable of effectively parenting K.J.F-A. due to her own mental health issues that she appears resistant to addressing.

[47] Cheryl did not put forward any proposed plan for the court to take into consideration on how she will plan for K.J.F-A.'s care and upbringing. Based on the evidentiary record, and in particular the Office of the Children's Lawyer report, Cheryl's parenting plan is to let K.J.F-A. take the lead on all areas of his life. It is clear that Cheryl does not believe K.J.F-A. should be forced to do anything he does not want to do.

[48] Derek has put forward a plan. K.J.F-A. will continue to attend the school he is currently enrolled in. He will be encouraged and supported to continue in extra-curricular activities and to associate with a pro-social peer group. Derek's intention is to renovate his home in order for K.J.F-A. to have his own personal space.

[49] Derek is able to provide a home that has permanence, structure, stability, boundaries and age appropriate expectations for K.J.F-A. Derek has demonstrated that he will facilitate meaningful access to Cheryl.

[50] K.J.F-A. is at a point in his adolescent development where he needs appropriate parental supervision coupled with unconditional love. Education is critically important to his mental well-being and social adjustment. K.J.F-A. is too young to take on a caregiving role for his mother and is too young to be expected to be responsible for his own well-being.

[51] Justice Hoshizaki released reasons for judgment on December 8, 2015. Paragraphs 26 thru 38 of that judgment provided an in-depth analysis of K.J.F-A.'s views and detailed Cheryl's apparent parenting limitations. Importantly, the judgment set out a roadmap for steps Cheryl needed to take in order to address the court's concerns. Unfortunately, it does not appear that Cheryl has taken any meaningful steps in that regard.

[52] A joint custodial arrangement is not feasible. Joint custody requires individuals to have the ability to co-operate and work together to make decisions in the best interests of a child; Cheryl has been forthright in that she is not interested in forming this type of co-operative parenting relationship with Derek.

Decision

[53] For all of these reasons, a final order shall issue as follows:

1. Derek Anderson shall have sole custody of K.J.F-A. born December 27, 2004. The primary residence of K.J.F-A. will be with Derek.

2. Derek Anderson and Cheryl Froome shall each be entitled to communicate directly with and receive information directly from any persons involved in K.J.F-A.'s education, medical care, religious upbringing, and social or recreational activities. Both Derek Anderson and Cheryl Froome shall be entitled to attend K.J.F-A.'s school functions, extracurricular activities, and parent-teacher interviews.

3. Cheryl Froome will have specified access to K.J.F-A. as follows:

a) Alternate weekends from Fridays after school until Sundays at 7:00 p.m. If Friday is not a school day, exchanges shall be made at 4:00 p.m. at a mutually agreeable location.

b) In odd numbered years, Cheryl shall have one week of the Christmas holidays that will include Christmas Eve from 4:00 p.m. until Boxing Day at 7:00 p.m. In even numbered years, Derek shall have the one week of Christmas holidays to include Christmas Eve from 4:00 p.m. until Boxing Day at 7:00 p.m.

c) In odd numbered years Cheryl shall have K.J.F-A. over the March break.

d) Cheryl shall have Mother's Day if it does not fall on her regular parenting time from 9:00 a.m. until 7:00 p.m.

e) Cheryl shall have the first two weeks of the July summer holidays and the first two weeks of the August summer holidays commencing in the year 2018. A "week" consists of starting on a Friday at 4:00 p.m. and ending on a Sunday at 7:00 p.m.

f) Derek shall have the last two weeks of the July summer holidays and the last two weeks of the August summer holidays commencing in the year 2018. A "week" consists of starting on a Friday at 4:00 p.m. and ending on a Sunday at 7:00 p.m.

g) Such further and other times as the parties may agree.

[54] The court encourages Derek and Cheryl to agree on a day for the transition of K.J.F-A.'s home to occur. In the event that the parties are not able to agree, K.J.F-A. shall return to the primary residence of Derek on Sunday December 10, 2017 at 7:00 p.m. Cheryl's first weekend of access shall commence Friday December 22, 2017.

[55] Cheryl Froome does not earn an income that would attract a child support obligation under the Federal Child Support Guidelines. As such, there shall be no child support payable at this time. In the event that Cheryl has a change in employment income she shall provide income disclosure within 15 days of the change. The issue of child support payable shall be reviewed.

[56] In the event that costs are an issue, Derek Anderson shall file written submissions within thirty days of the release of the decision. Cheryl Froome shall file written submissions within forty-five days from the release of the decision. Written submissions are limited to 3 pages for each party.

Released: November 29, 2017

Justice Sarah Cleghorn