Court File and Parties

Court File No.: Halton 146/17 Date: 2018-02-21 Ontario Court of Justice

Between:

Alvaro Francisco Valdes Romero Applicant

— AND —

Barbara Malecka, Pawel Malecki Kevin Knight, Magdalena Knight Respondents

Before: Justice Victoria Starr

Heard on: February 9, 2018

Reasons for Judgment released on: February 21, 2018

Counsel

Alvaro Romero — on his own behalf

Susan Berry — counsel for the respondents Barbara Malecka and Pawel Malecki

Julie Stanchieri — counsel for the respondents Kevin Knight and Magdalena Knight

VICTORIA STARR J.:

INTRODUCTION AND POSITIONS

[1] This is the court's decision on a motion for summary judgment regarding custody and access of two children whose mother died on February 5, 2017.

[2] The motion is made by the respondents, the maternal uncle and aunt and the maternal grandmother and grandfather. For ease of reference the maternal uncle and aunt are collectively referred to as the "Knights" and the grandparents as "Maleckis".

[3] The Knights and Maleckis seek a final order that they have joint custody of the children, Jordan Valdes–Malecki, born September 7, 2004 (13 years old) and Justin Valdes–Malecki, born February 21, 2006 (11 years old).

[4] In addition, they seek an access schedule for the applicant father. Such access would include the children having time with him on the third weekend of each month, additional time during Christmas and summer holidays, and telephone contact.

[5] The applicant father seeks sole custody and if successful, the children would move to live with him in his home in Ottawa. He opposes this motion. He asks that this court dismiss the motion for summary judgement and direct that there be a full trial. He told the court that he wants a trial so that he can disprove the lies he claims the Maleckis and Knights have told. The father feels strongly that the boys should live with him in Ottawa because he is their biological father.

[6] While he made oral submissions at the hearing of the summary judgment motion, the applicant father did not file any responding materials to demonstrate why there is a genuine issue for trial. To be clear, he filed no affidavit challenging the factual assertions set out in the Knights' and Maleckis' affidavits, nor those set out in the OCL report. He did not serve or file a statement to dispute anything in the OCL report.

[7] The evidence before me on this motion for summary judgment is thus, unchallenged.

APPLICABLE LEGAL PRINCIPLES

[8] The test to be applied on a summary judgment motion is set out in rule 16 of the Family Law Rules, O Reg 114/99 ("the Rules") as follows:

The party making the motion shall serve an Affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial; and the party responding to the motion shall set out in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial. If there is no genuine issue requiring a trial, the court shall make a final order accordingly.

[9] Justice Zisman sets out the specific language of rule 16 as well as some additional principles in her decision in the case of McCash v. McCash, 2012 ONCJ 503, at paragraph 50. In that paragraph she cites sub rule 16 (1), (4), (4.1), and (6) of the Rules as providing the authority for the circumstances under which the court may grant summary judgment. I adopt and follow those principles.

[10] At paragraph 56 of that same decision Justice Zisman notes that it is well-established that summary judgment is available in custody and access matters and has been used in cases involving support and restraining orders.

[11] Section 112 (3) of the Courts of Justice Act, R.S.O. 1990, c. C.43, provides that an OCL report shall form part of the evidence at the hearing of the proceeding. A party has 30 days after being served with the report to serve and file a statement disputing anything in it.

[12] In the case of S. (S. T.) v. E. (B.), 2016 ONSC 263, Justice Sheard of the Superior Court of Justice also decided the issue of sole custody of the child on a summary judgment motion. In that decision, at paragraph 107, Justice Sheard noted that the Rules and section 112 of the Courts of Justice Act, permit the Report of the Office of the Children's Lawyer to be used as evidence on a summary judgment motion. Justice Sheard goes on to note that as a result of admitting that report as evidence, and the evidence was overwhelming that there was no basis upon which to change the status quo to allow the mother to have unsupervised access to the child.

[13] No affidavits were submitted for any of the collaterals with whom the OCL clinician spoke. I admit the OCL clinician's hearsay evidence of what those collaterals told her for the truth of its content and as if these collaterals gave that evidence by way of affidavit for use at this motion. In doing so I adopt the reasoning and principles set out in my decision, George v Nguyen, 2017 CarswellOnt 3722, with emphasis on paragraphs 11-20.

[14] Applications for custody or access to a child are governed by the Children's Law Reform Act, R.S.O. 1990, c. C.12. As directed under subsection 24(1) of that act, the merits of an application in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections 24 (2), (3) and (4).

[15] In this case the most relevant factors are those set out in subsection 24(2). That subsection reads as follows:

Best interests of child

(2) 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, including a parent or grandparent, 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) any familial relationship between the child and each person who is a party to the application.

THE UNCHALLENGED FACTS

Background and Events Leading Up to These Proceedings

[16] The children are the biological children of the applicant and Agnes Scott Malecka. They married in June 2004 and separated in July 2014.

[17] They resided in Montréal in the beginning of their marriage. That is where the boys were born. They were facing financial difficulties and moved to Ontario to live in the Maleckis' rental property in Mississauga in or around 2007 after Justin was born.

[18] The Maleckis themselves resided in Oakville.

[19] By 2008 the mother, father, and the boys moved out of the rental property and into the Maleckis' home in Oakville.

[20] The boys have resided with the Maleckis in their home in Oakville for approximately 10 years (since 2008).

[21] The mother was the family sole financial provider and paid for the children's day care needs. The Maleckis also paid for the children's extracurricular activities and the household groceries for all members of the family.

[22] Between 2008 and 2014, the parent's relationship deteriorated. On July 31, 2014, the grandfather requested that the father leave his home within two days. The father chose to leave the home on July 31, 2014.

[23] The father moved to Ottawa in September 2014. He has resided there ever since and that is where he resides at this time.

[24] From September 2014 to February 2017 the children and the mother continue to reside with the maternal grandparents. The father's contact with the boys during this time was extremely infrequent. He visited them just five times during this period. He did not provide any child support and never sent any gifts for Christmas/birthdays.

[25] The mother was diagnosed with breast cancer in March 2015. She received treatment but in March 2016 it was determined that the cancer had aggressively returned.

[26] By December 2016 the mother knew the treatments would not be successful. She told her mother that she had contacted the father at this time and requested that he move to Oakville to assist with raising the children but that the father had refused, telling her he would never move to Oakville.

[27] The maternal grandparents continued to assist with taking care of their grandsons while the mother was receiving treatment for her cancer.

[28] The maternal aunt also flew into Oakville from her residence at the time, Fort McMurray, for the month of April and December 2016 to assist with caring for the boys.

[29] The mother, maternal grandparents, and maternal aunt and uncle, started to have extensive discussions about the boys' care once the mother passed.

[30] After the father had refused to move to Oakville to take care of the boys, the mother determined it would be in the boys' best interest to reside permanently with the maternal aunt and uncle. She advised her family and the father of her decision and last wish for the boys.

[31] Approximately three weeks before the mother passed away, she texted the maternal uncle to tell him that she spoke with the father indicating to him that she wanted the boys to be raised by the uncle and his wife. She also told him the reasons why this would be in the children's best interests.

[32] The mother passed away on February 5, 2017.

These Proceedings

[33] After the mother's death the maternal grandmother called the father. He arrived at the mother's funeral, at which time he informed the maternal grandparents that he would be taking the children. He also advised that he was not financially stable enough to take the children at that time but claimed that he would be able to do so in September 2017.

[34] Between February 2017 (the mother's funeral) and May 2017, the father saw the children just once on April 2 and 3, 2017.

[35] Concurrent with his one visit with the children following the mother's passing the father served the maternal grandparents with his urgent motion materials dated April 3, 2017 for motion returnable on May 11, 2017.

[36] The mother had not made a will dealing with custody or guardianship of the children.

[37] An interim order giving the maternal grandparents temporary custody of the children and setting out an interim access schedule was made on May 11, 2017. At that time, the court ordered the maternal grandparents to reduce their planned five-week trip to Poland with the boys to three weeks to ensure that the father had regular access with the boys.

[38] On May 26, 2017, this Court requested the involvement of the Office of the Children's Lawyer. That office consented to provide services pursuant to section 112 of the Courts of Justice Act. That office assigned clinical investigator Tricia Ryan to conduct the investigation and make a report to the Court with recommendations as to custody and access.

[39] The affidavit and report of the clinical investigator, Tricia Ryan, is dated September 13, 2017. It forms part of the evidence at this hearing.

[40] A case conference was to be held on October 17, 2017. The father was represented by counsel at the October 17, 2017, case conference. The father did not attend in person that day and he could not be reached by counsel. His counsel requested and was granted an adjournment. The matter was scheduled for a continuing case conference on November 24, 2017.

[41] On November 20, 2017, four days before the case conference date, the father served and filed a 14B motion seeking an adjournment of the continued case conference. He claimed that he had retained counsel on September 29, 2017; that his counsel provided him with the wrong court date; and, that his counsel attended at the October 17, 2017, case conference without his knowledge.

[42] Concurrent with the father's 14B motion, he also served a notice of change in representation dated November 20, 2017, indicating that he would thenceforth be representing himself.

[43] The father's 14B motion to adjourn the case conference was dismissed. The matter was subsequently ordered to proceed to this summary judgment motion.

Access and Father's Relationship with the boys

[44] The father visited the boys approximately five times between September 2014 and February 2017.

[45] As noted already, between February 2017 and May 2017 the father had only one visit with the children, on April 2-3, 2017. On Sunday, April 2, 2017 the father took the boys at 3:00 PM and returned them at 8:00 PM, without feeding them dinner. He also kept them outdoors in the cold despite that he had been told that Justin had bronchitis and was tired.

[46] Between February 2017 and May 2017, the father began to phone the boys multiple times per day, before, during, and after school. He would constantly ask the children why they did not want to live with him. These calls were extremely upsetting to the boys.

[47] Despite having obtained, in May 2017, an order setting a regular access schedule for him to see the boys on alternating weekends and with regular phone contact, the father has not been consistent in exercising his access.

[48] For example:

1. He exercised access on alternating weekends from May to July 2017 (without overnights).

2. He then missed all three weekend visitations in August. This despite the fact that he had resisted the grandparents' request to travel with the boys to Poland to visit family and for the internment of their mother's ashes, and, despite his consequent success in obtaining an order that shortened the planned visit from six weeks to only three, so as to avoid a lengthy interruption of his access.

3. Access resumed in September 2017, and the father saw the boys four times but did not request overnight access.

4. The father did not exercise his Thanksgiving access weekend, nor did he provide any reason why he missed that access.

[49] After the case conference on October 17, 2017, the father started to exercise overnight access. During the father's weekend access on November 17-19, 2017, the father returned the boys two hours early because Jordan had a homework project to do, which had not been started at all during the weekend while the boys were with their father. Jordan ended up staying up very late to finish the project.

[50] Initially, when the father started to show an interest in seeing them, the boys were quite excited to see their father. The evidence is that this is no longer the case and the boys now linger in the home when they know they are to see their father that day. They are not upset when visits are cancelled.

[51] The father, in general, has been contacting the boys less frequently.

The boys and their maternal grandparents, uncle and aunt

[52] The boys have a close relationship with the Maleckis as they have been residing with them for the last 10 years.

[53] When the mother became very ill in 2016 the maternal grandmother started to take over parenting responsibilities, including taking the boys to school in the morning. After she passed, the grandmother enrolled the boys in counselling to help deal with the death of their mother. The grandparents took the boys to Poland in the summer of 2017 to visit extended family members and to spread their mother's ashes.

[54] The boys and the Knights have always been quite close as the mother would frequently visit the Knights with the boys during the holidays.

[55] When the Knights were residing in New Brunswick, the maternal uncle would take the boys fishing and camping, ATVing, boating, etc.

[56] After the mother passed away, the boys spent a full week with the Knights in Fort McMurray during their March break in 2017.

[57] The maternal aunt has been helping to care for the boys since 2016 when the mother's health took a turn for the worse.

[58] In August 2017 the maternal aunt moved to Oakville and in with the grandparents and the boys on a permanent basis.

[59] Since moving to Oakville, the maternal aunt has been organizing the boys' extracurricular activities and has been taking care of them on a daily basis.

[60] The maternal aunt completed parenting courses to help prepare her for raising two teenage boys.

[61] Mr. Knight currently still resides in Fort McMurray, Alberta. However, he intends to move from Alberta to reside with the family in March of 2018. He has secured a position with his current employer in Guelph, Ontario.

[62] The maternal uncle is a good male role model for the boys. He is the person they turn to for assistance with homework.

[63] Jordan calls the maternal uncle on a weekly basis, sometimes multiple times per week, asking him for help with his homework.

[64] The maternal uncle loves the outdoors and takes the boys hiking and camping.

[65] In 2017, the maternal uncle travelled from Alberta to Ontario to visit the boys, 10 times.

[66] The maternal uncle's relationship with the boys has quickly developed from "fun uncle" to a parental role.

[67] The maternal uncle's side of the family, although not blood-related, treat the boys as part of their family.

[68] The boys participated in the maternal uncle's brother's wedding in 2017 and walked down the aisle as ring bearers and flower girls' companion.

[69] He has an excellent health and dental benefits package provided to him through his employment which would take care of the boys' medical needs. The problem is that they can only be added to his benefits plan if he is their legal guardian.

[70] The Knights have already set funds aside to start an RESP for each of the boys. They are unable to open an account however, until they are legal guardians.

[71] The maternal grandparents and maternal aunt and uncle are 100 percent committed to caring for Justin and Jordan and to meeting their needs. They recognize and are willing to facilitate the maintenance of a relationship between the boys and their biological father.

[72] Although at the time of the involvement of the Children's Lawyer the plan was for the aunt and uncle to live with the boys and the grandparents for about a year and then separate from the grandparents and move with the boys to Guelph, this plan has been abandoned for now.

The Office of the Children's Lawyer and the Boys' views and preferences

[73] The only real information the court has about the father that comes directly from the father or a support of his, is found in the report of the Children's Lawyer. In her report Ms. Ryan gives an accounting of information the father gave to her about himself. Some of that information is as follows:

• He grew up in Spain, Portugal and Morocco.

• He came to Canada in 1974.

• His two half-brothers reside in Montreal but he has no contact with them due to a problematic business deal. His sister resides in New York and he has a good relationship with her.

• He has two adult children from a prior marriage dating from 1985 to 1995. His daughter resides in France and has children. His son and ex-wife reside in Montreal. He has had no contact with these family members since 2008 or 2009.

• He has a Bachelor of Finance degree from Concordia University and is self-employed in a freight forwarding business that imports mainly refrigerator products.

• He has a partner who doesn't live with him and she has a 3 year old child.

• He met Ms. Agniezka Malecka in Montreal where they resided from 2001 to 2003. They got married in June of 2004 and then moved to Ontario in 2007. In 2008, they moved in with the maternal grandparents in Oakville. His life began to deteriorate as his business was not going well, he had financial troubles, lost his job and in 2014, got "kicked out" of the home by Mr. Malecki. He was homeless for one day and then moved in with a friend in Ottawa after residing temporarily in a shelter. He describes being somewhat traumatized at that time but then rebuilt his life in Ottawa. He does not recall what he told the children about why he moved to Ottawa but said the separation was civil.

[74] The evidence of the clinician indicates that the father has had some mental health issues, including as recently as August 2017. For example, he told the clinician that:

For the first few years after the separation, he talked with the children on the phone but not often. He thought they didn't want to talk to him. He visited them on three or four occasions as he had limited time and finances. At that time, he didn't want to talk to anyone and thinks he may have been experiencing a low level of depression. Now he is completely different as he successfully treated the bacterial infection in his stomach that was causing him to have brain fog, irritability and be incapable of concentrating [page 3].

[75] Dr. Sethi, who is the family physician for the father, provided the following information during an interview conducted by the OCL clinician:

Mr. Valdes Romero has been his patient since 2014 but he hasn't seen him much. He saw a psychiatrist in March of 2015 for nerve and depression issues. He was depressed because of the loss of his children and due to financial problems. Medication was not prescribed and it is not known how his depression was treated. In 2015, Mr. Valdes Romero reported that he had helicobacter pylori which is a stomach infection. He was treated with three different antibiotics and his condition must have improved as there are no secondary reports about this. Mr. Valdes Romero has no addictions issues but he was drinking heavily at one point, which is why the separation happened. Mr. Valdes Romero was seen in May of 2016 and then in July of 2017 for a physical examination. Blood work was found to be normal and there are no medical concerns or conditions that would impede his parenting ability [page 17].

[76] Further, the father told the clinician that when he suspended his access in July 2017, he did so due to employment and emotional issues. He told her that in August of 2017, he started intensive therapy due to being "psychologically frozen" and unable to start working on his HST returns. He has made strong progress in counselling according to his therapist.

[77] With respect to Jordan, the clinical investigator reported, among other things, the following, parts of which was gleaned from her interviews with him:

Jordan Valdes-Malecki is 13 years old and going into grade eight in September of 2017. He is sensitive, affectionate, caring of other's feelings and loves animals. Although Jordan has been treated for asthma and bronchitis, his doctor has no concerns about his physical well-being. He has received counselling for grieving reactions. Jordan has good friends in his neighbourhood, he does well at school despite his father saying he was a slow learner. Jordan likes going to Canada's Wonderland and is an active child. He has played basketball and soccer for some time but is thinking about trying a new sport, such as squash. He tends to worry about things, is quiet, very polite and kind. He speaks positively about his connection to Poland, but points out that he can't speak Polish fluently [page 10].

Jordan provided the following information during interviews: He likes living with his grandparents and enjoys spending time with his father. He talked positively about his school, the time he spends with friends in Oakville, about going to Canada's Wonderland, playing sports, and going go karting with his father. Jordan's first choice would be to stay living with his grandparents in Oakville, but he also wants to include time with his dad. He thinks sleep overs with his dad would be okay. His father has been talking about going to Cuba with them and Jordan would like that. He'd like to go on vacations with his dad and spend time with him during the summer and at Christmas. It would be okay living with Aunt Maggie and Uncle Kevin, but after a period of time living with them at the grandparent's home. Jordan reported that it would be best to stay in the home he is in now. He has a picture of his mom there and can remember her there. That would give his dad more time to do his work as he'd be less busy. His dad and his grandparents are not getting along. It would be easier if the adults could get along [page 10].

[78] With respect to Justin, the clinical investigator reported, among other things, the following, parts of which was also gleaned from her interviews with him:

Justin Valdes-Malecki is 11 years old and going into grade six in September of 2017. He is outgoing, outspoken, independent and intelligent. He does very well academically and his behaviour is more challenging than Jordan's, as he can be confrontational. Justin is healthy and enjoys playing sports, such as soccer and doing typical activities for his age, such as video gaming and going to Canada's Wonderland. He has received counselling for grieving reactions. Although Justin presents as happy and outgoing, he has experienced intense emotional feelings regarding the loss of his mother. He is polite and speaks positively about his connection to Poland. He reports that he is fluent in Polish [page 10].

Justin provided the following information during interviews. He likes living at his grandparent's home, likes his school and the friends that he has there and in his neighborhood. Justin happily provided detailed information about his excursions to Canada's Wonderland as well as about the go karting, museums and Korean restaurants he goes to with his father. He also enjoys going to laser tag, Chapters and the park with his father. Justin thinks it would be good for his dad to move somewhere near his home in Oakville. Justin wants this, and spoken with his dad about it. They would not have to drive to and from Ottawa, they could stay in the same area they know and live in, and could see their friends. His dad said he might come and stay in Oakville for a couple of weeks. If they stayed living with his grandparents, Justin would like to see his dad every other weekend. That way they'd have time with their friends as Justin wants that. Sleep overs with dad would be good or maybe some extra time. It would be different if Aunt Maggie and Uncle Kevin lived with them and took over the parenting. Some rules might change but if everything stays pretty much the same, Justin is okay with that. He just wants things to go slow, whatever the plan is. Justin cried when a discussion was held about him going to the police station when he made comments in the past about wanting to die. He thinks it would be okay for his grandmother to arrange for him to have a counsellor so he can have someone to talk to when he'd like to. Justin feels his mom's presence at his home and wants to stay there [pages 10–11].

[79] During the clinical investigation, the father told the clinician of his plan for the children if he is granted sole custody as he has requested in his application. That plan is recounted to be the following:

Mr. Valdes Romero reported that he plans to move to a home in Ottawa that will accommodate the children in September of 2017. He has not been able to find such a place at the moment. He has no plan to move to Oakville as it is an "aggressive, stressful city" and he has bad memories there. Ottawa is a more "balanced" city. According to the Catholic School Commission, the children would need to reside in Ottawa to be registered in the schools there. There is a local school in front of Mr. Valdes Romero's home; the children could come to his home for lunch. If he were to remain living in his one bedroom apartment, he could purchase bunk beds for the children, section off a sleeping area for them and provide them with an area in which to complete their homework. Mr. Valdes Romero could sleep on a sofa bed in a separate room. He would find a doctor for the children when that need arises. The children are growing and have different needs and issues that would be addressed as needed. "Planning for them seems almost unnatural, if it's urgent you go to a doctor. Families shouldn't work in schedules". There are extracurricular activities in his neighbourhood, a church and an agency where the children could receive counselling for their grief. If he needed to go out of town, Mr. Valdes Romero knows people who could take care of the children. Mr. Valdes Romero can't fathom the idea of the children not being with him. He thinks it would be morally wrong for the Judge to order the children not to live with him; there is no reason why his children shouldn't be living with him [page 4].

[80] The Children's Lawyer also noted that:

Understandably, the children continue to experience grief related symptoms regarding the tragic loss of their mother. They are however, involved in sports and other activities and they enjoy spending time with family and friends. They are physically healthy [page 2].

The children advise that they enjoy spending time with their father. They are however, connected to the Oakville community. They speak fondly and frequently about their friends, school, extracurricular activities and about their connection to the Polish community. They have a strong connection with their grandparents and have resided with them for many years. Their mother's presence is there, the grandparents know the children well and have shown success in the decisions they have made for them. The children have an emotional connection to their aunt, Ms. Knight, as over the years they have spent some time with her. They became particularly closer to her when their mother was dying as she was a comfort to them. Ms. Knight and Mr. Knight need time to get to know the children better. They have not had the opportunity to parent the children and make decisions about them. Neither has Mr. Valdes Romero [pages 11–12].

[81] With respect to the children's best interests and the plan that would best meet their needs, the Children's Lawyer noted:

The plan that is least disruptive to the children and that will promote positive outcomes for them is for them to stay with their grandparents for the time being. They are stable there and Ms. Knight and Mr. Knight want to become involved in the parenting of them. The grandparents want to include them and have them gradually take over the parenting role in approximately one year. The reasons for this is because the grandparents are getting older, the children want this, and so did their mother. With respect to the feasibility of the proposed plan, Ms. Knight and Mr. Knight need to demonstrate parenting time with the children [page 12].

Justin and Jordan need to have consistent involvement and contact with their father. They have experienced tremendous loss such as the demise of their family unit, the loss of their father in their life until recently, the loss of their mother and lately they haven't seen their father as planned, for access. It would be important for them to experience their father as a stable and predictable person in their lives. It would be beneficial for the children to be educated about the psychological distress that their father can experience to help them understand it. That way, they won't feel abandoned by him or take it personally [page 12].

This plan [that of the grandparents and the Knights'] is not supported by Mr. Valdes Romero who feels strongly that it is realistic for the children to reside with him in Ottawa because he is their father. Mr. Valdes Romero refuses to move to Oakville and continues to reside in a one bedroom apartment in Ottawa. He reports that he has been unable to secure appropriate accommodation in which to raise the children. It is not possible for the Office of the Children's Lawyer to assess Mr. Valdes Romero's hypothetical plan [page 11].

[82] The recommendations made by the Children's Lawyer in its report are as follows:

1. Joint custody to Barbara Malecka, Pawel Malecki, Magdalena Knight and Kevin Knight. They are to notify and consult with Mr. Valdes Romero regarding important decisions about Justin and Jordan.

2. Access to Mr. Valdes Romero as follows:

   (a) one weekend per month; Mr. Valdes Romero to advise of his chosen weekend by the end of the month prior to that visit. Monthly weekend visits to be alternated in Oakville and Ottawa with the driving to be equally shared.

   (b) time during holidays and summer as arranged through them.

   (c) phone calls twice a week such as Tuesdays and Thursdays between 8 and 8:30 pm, and as the children wish.

3. No one to make denigrative comments or say negative things about any of the adults involved in this litigation in front of the children or within their ability to hear.

4. No one to discuss the custody and access conflict or Court details in front of the children or within their ability to hear.

5. Justin and Jordan to be involved in grief counselling.

6. Mr. Valdes Romero to continue his involvement in supportive counselling.

7. Ms. Knight and Mr. Knight to become educated about parenting Justin and Jordan. An option for such is at the Oakville Parent Child Centre.

8. All adults to maintain their own relationships regarding the children with academic and medical professionals. They are encouraged to share such information as it is beneficial to Justin and Jordan. The children should be monitored for their genetic predisposition to breast cancer as their maternal and paternal relatives have been diagnosed with it.

9. Ongoing email communication about the well-being of the children to occur between Ms. Knight and Mr. Valdes Romero. Emergencies to be communicated by phone as soon as possible [pages 12-13].

[83] The Office of the Children's Lawyer held a disclosure meeting on September 1, 2017. It reviewed its findings and recommendations with the parties.

[84] The father attended the meeting with no plausible parenting plan for the children and refused to negotiate with the Knights and Maleckis for the sake of the children.

DISCUSSION

[85] Given the father's failure to challenge any of the factual assertions made in the Knights' and Maleckis' affidavits, and the OCL clinician's affidavit and report, and his failure to serve and file a notice disputing any of the facts or recommendations made by the OCL, I find the material facts of the case are not in issue and I find that they are as I have recited them above.

[86] The father understandably emphasizes his "biological connection" as the children's father. Biological connection is only one factor to be considered under section 24 (2). I have carefully considered the best interests of the children and turned my mind to each of the factors set out in s. 24(2) of the Children's Law Reform Act. With respect to those factors I further find, based on the unchallenged facts referred to above, as follows.

[87] First, these children have lived with their grandparents and in a stable environment for 10 years. It is in the children's best interests that their lives remain stable and that their lives be disrupted as little as possible, particularly, given that they have already suffered the loss of their mother.

[88] The plan proposed by the Maleckis and the Knights, is a detailed and fairly structured plan of care. The father's plan, as presented through the OCL's evidence, is unstructured. He does not appear to have done any set up work or investigatory work into schooling, extracurricular activities, or looked into services to meet their emotional, medical and dental needs. His plan appears to be one of "I'll plan as the need arises". As between the two plans, there is no question that the Maleckis and Knights plan is more child-focused and suitable for their needs.

[89] What is certain is that the father's plan involves moving the children to Ottawa and the loss of all they know, depend on, and enjoy here in Oakville.

[90] There is no question that the Maleckis' and Knights' plan is the superior and preferred plan. It is the least disruptive plan of care as it preserves the children's ties to the community and family. The children have lived in Oakville for the last 10 years of their life. Their roots are firmly planted here. Oakville is where they go to school, where their service providers are situated, where they participate in extracurricular activities, where their friends are, and where they feel the connection to their mother.

[91] If the children continue to reside with the Maleckis and Knights, none of these things will change for them. If they are ordered to reside with their father, all of these things will change for them.

[92] Second, the Maleckis and Knights have demonstrated a sound commitment to raising these children and have demonstrated that they are willing and able to provide the children with the necessities of life and to meet their needs as they arise. The Maleckis, in particular, have demonstrated that they are able to provide the children with a home and life that is stable. Allowing the children to remain in the Maleckis care will ensure that they are cared for by skilled and competent caregivers, who know them and their needs and are willing to make meeting them their priority.

[93] The father has no meaningful experience and no track record of providing competent and consistent care for these boys. While he may have assisted the mother with their care he was never their primary caregiver. Also, when he was last involved in their day-to-day care, they were young. They are much older now. Their developmental, social, and emotional, academic needs have changed. The father does not have any current knowledge about their needs and no current experience caring for them for any prolonged period of time, let alone on a full-time basis.

[94] The father's unwillingness or inability to recognize the children's needs and to put their needs ahead of his own is apparent from his actions to date. His failure to pay child support, sporadic involvement in the children's lives from the time of his separation from their mother onwards, are evidence of this. Other forms of evidence include the pressure he has put on them to choose to live with him and his irregular and sparse exercise of the access afforded to him.

[95] The father has also experienced periods of instability in his life which have affected his level of commitment to his sons and his ability to meet the children's need consistently. His mental health and financial struggles are evidence of this. These are not things of the past. He has experienced financial and psychological instability within the past year. When he has experienced these episodes, both in the distant and more recent past, his ability to meet his children's needs was impeded. He was not able to maintain consistent and significant contact/access with them. In fact, he suspended his involvement with them, albeit for just a short period. Nonetheless, this is a significant concern as if he is the primary parent, he will not have the luxury of suspending his involvement.

[96] As between the Maleckis, Knights and the father, I find the Maleckis and Knights to be the people best able to recognize and meet the children's needs, at this time.

[97] Third, these children are related by blood to all of the parties save and except for the maternal uncle. While their blood tie to their father is strongest, their relationship and bond with him, is not. The children do not see their father as a parental figure. The children are extremely close to and well bonded with their grandparents and since their mother's death, with the Knights. These are the people they turn to for help when help is needed. The children will benefit from the continuity of those bonds and from the continuity in care the arrangement they propose will afford to them.

[98] Fourth, the children are now ages 13 and 12 and as such their views and preferences are to be afforded some deference and weight. Their wish is to continue residing in Oakville with their maternal grandparents and aunt and hopefully, in the not so distant future, uncle. Although the evidence about their views on access with their father has changed over time, it is clear that both only want access with him, and not to live with him. Although the father reported to the clinician that he believes the children's "wishes may be influenced by the respondents who have contempt for him and are likely "coaching" the children against him", there is no evidence of this. I find this is nothing more than a bald allegation. Their views are consistent, strongly and independently held.

[99] Fifth, it is telling that the concerns raised by the father about the Maleckis and Knights are not really about the quality of care they provide, their ability to meet the children's needs, their plan of care, or the children's needs and wishes. Rather, they are expressions about his own views, feelings, needs, and instincts. They are not substantiated by any real evidence. For example, the main and unsubstantiated concerns raised by him were that:

(1) The Maleckis' "home environment is toxic and unhealthy";

(2) "Mr. Knight previously, has not been significantly involved with the children and they don't have a relationship with him, which makes the father feel uncomfortable;"

(3) He gets a cold attitude when he calls to speak with the children and the calls appear to be intercepted and monitored;

(4) Jordan is overweight;

(5) The commute between Ottawa and Oakville is long and expensive.

[100] Sixth, an order that the Maleckis and Knights share joint custody of the children will afford the children greater benefits. It will mean that they can be named as beneficiaries on Mr. Knight's health care plan. It will mean that the money the Knights have put aside for their post-secondary education can be placed in an RESP. Most importantly, it will enhance the quality of the care they receive while living with the grandparents because the responsibility for their care can be shared with the two younger caregivers.

[101] Seventh, the father does not appear to be in tune with the needs of the children and is not child focused. For example, Jordan has become very self-conscious about his weight since being told he is overweight by his father. Further, despite the fact that these children lost their mother and continue to have significant grief issues, he fails to see how remaining in Oakville is important to them as a result or how it would assist in their recovery. He also has presented no plan as to how he would address these needs. This is also evidenced by the fact that he would not consent to the children going to Poland for five weeks, stating he wanted to spend time with them, but then cancelled those visits, which is experienced as more loss for the children. Further, he does not help with their homework, disparages Mr. Knight in front of them and will not move to Oakville for them. He also talks about court with the children despite being told not to.

[102] Eighth, custody to the Maleckis and Knights jointly along with continued placement of the boys in the home of the maternal grandparents, is consistent with the recommendations of the Children's Lawyer.

[103] Ninth, the court has no idea what steps the father is willing to take to ensure that the children maintain a strong bond with their grandparents and the Knights. He is also quite bitter towards them and it is doubtful that he will promote and foster the children's relationship with their maternal side of the family.

[104] Conversely, both the Maleckis and Knights recognize the important role that the father has in the children's lives and the importance to the children of maintaining contact and a relationship with him. They have demonstrated that they are willing and able to facilitate meaningful access between the children and their father and that they will continue to cooperate with the father to help the children's relationship with him grow. There is nothing before the court that demonstrates the father would do likewise if the situation was reversed.

[105] For the most part, the access the Maleckis and Knights propose is consistent with the access regime recommended by the Children's Lawyer. It will also afford the children more contact with their father than previously enjoyed – if the father exercises it. I am satisfied that if exercised, the children and the father will have a meaningful opportunity to develop and strengthen their bond and love for one another. Their proposed plan is also fair to the adults in that it contemplates sharing the responsibility for the long distance travel associated with access.

[106] Tenth, based on the evidence before me, the children have strong ties and connection to their Polish heritage, language and culture. The father has put forward no plan to demonstrate how he would foster that connection, if he even recognizes its importance for the boys, at all. Remaining with the Maleckis and Knights, will ensure that this important connection is consistently maintained.

Conclusion

[107] Given all of the forgoing, and with the one caveat discussed below, I do not see how a trial with viva voce testimony and cross-examination, could lead to any other order than that which is requested by the maternal grandparents and maternal aunt and uncle.

[108] The father has failed to demonstrate that there is a genuine issue in this case requiring a trial. Conversely, the Maleckis and Knights, have met their onus to demonstrate that there is no genuine issue of fact that requires a trial for determination in the circumstances of this case.

[109] As Justice Sheard found in the case of S. (S. T.) v. E. (B.), supra, I too find it unnecessary to resort to the fact-finding powers in deciding the motion. The material facts are not in issue and it is not necessary to weigh credibility. The father has put forward no evidence. The evidence, on its own, is sufficient to grant summary judgment.

[110] Counsel for the respondents submitted the case of Sui v. Law, 2009 ONCA 61. In that case the lower court reached the same conclusion on very similar facts to those of the case at bar. In the appeal from that order, the Ontario Court of Appeal found that the trial judge did not err in so doing.

[111] Further, in the case of Botelho v. Botelho, 2012 ONCJ 556, the mother brought a summary judgment motion wherein she requested custody of two of the parties' three children. The motion was supported by the Children's Lawyer and opposed by the father. Justice P.W. Dunn granted the motion. His reasons for so doing are set out in paragraph 19 of the decision. In reaching his decision Justice Dunn placed significant weight on a number of factors, which I find are equally applicable and persuasive in this case. These factors include:

(1) The fact that the evidence about their best interests was available in the reports of the Children's Lawyer, the office of which had extensive and continuing involvement with the children and the parties and knew of the positions of each parent.

(2) Nothing new of significance on the issue of custody and access for the children was likely to arise in the trial;

(3) Two of the children's consistent preferences were unlikely to vary;

(4) Because of the length of the litigation up until that point, two of the children's futures should be decided as soon as possible;

(5) The fact of a trial occurring with their parents testifying at length would only add more stress to the boys lives;

(6) It was important that a court would order changing custody for the two boys given that one of them was 13 and his residence preference would almost certainly be honoured; and, in the case of the other son, the father's failure to facilitate access to the mother for eight months did not augur well for a placement with him.

[112] Unlike Justice Dunn I am not faced with a situation where the father denied access to the mother for eight months. I am faced with a situation where there are no facts, other than a biological connection, that augur well for placement of the children with him.

[113] For all these reasons summary judgment is granted.

[114] There are two caveats and the first is this: the respondents' seek to attach to the father's access the following condition: that he advise the respondents of the location the children will sleep when confirming the access, with such location subject to the approval of the respondent Knights. This condition make some sense because not much is known about the suitability of the father's home in Ottawa or about where he plans to stay with the children when visiting them in Oakville. There is also good reason based on the father's undefined plan of care and inability to recognize the children's needs, to worry that he may not recognize their needs with respect to privacy and sleeping arrangements.

[115] The father made no objection or submissions with respect to this condition and there is no evidence from him that addresses this condition. There is no evidence demonstrating that the Knights have acted unreasonable thus far when it comes to the father's access. Nonetheless, this is not one of the recommendations suggested by the OCL clinician. I am concerned about the parties' ability to resolve the conflict given the level of acrimony between them. There is a chance that, if granted, the Knights may use their "veto" power, arbitrarily or hold the father to too high a standard when it comes to the location where he proposes he and the children will stay. While the boys are not babies they may be uncomfortable about voicing their concerns or needs to their father and I wish to avoid putting them in such a position. The potential for conflict also exists because, thus far, it does not appear that the children have exercised access with their father in Ottawa.

[116] If there is going to be conflict over accommodations it is likely to occur within the next three months. For this reason I have decided to resolve the dilemma by granting the order requested by the respondents, while offering the father an expedited way to have such disputes adjudicated. I have made provision for this below.

[117] The second caveat relates to the potential conflict between the terms which permit the respondents to travel with the children and the father's vacation time with them over Christmas and the summer. It is important that everyone be able to plan such time with the children in a way that will not result in the cancellation of plans or in disappointment for the children. I have thus, placed a restriction on the respondents' ability to travel with the children over Christmas and the summer for those periods which the father has already given specific written notice of his desired vacation time.

ORDER

[118] For all these reasons, I make the following final order:

1. The Respondents, Kevin and Magdalena Knight and Paul Malecki and Barbara Malecka (hereinafter referred to as "the custodial guardians") shall have permanent joint custody of the children, Jordan Valdes-Malecki born September 7, 2004 and Justin Valdes-Malecki born February 21, 2006 (hereinafter referred to as "the children").

2. The custodial guardians shall consult the Applicant father prior to making important final decisions for the children's health, education, religion and extra-curricular activities and shall notify the Applicant of any decision after it is made.

3. The children shall have access with the Applicant father on the third weekend of each month. The visits shall be from Saturday at 10:00 am to Sunday at 3:00 pm, if the visit is in Ottawa, or until 8:00 pm if the visit is in Oakville. The visitation shall be confirmed by email between the Applicant and Magdalena Knight 7 days in advance of same. The Applicant father shall advise the Respondents of the location the children will sleep when confirming the access, with such location subject to the approval of the Respondent Knights. The location of the visits shall alternate between Ottawa and Oakville, even if when a monthly visit is cancelled or rescheduled. The custodial guardians shall be responsible for transportation to Ottawa.

4. The Applicant father may have further access at Christmas holidays for a period of five days, and for two seven-day periods during summer holidays. The Applicant father shall advise the Respondents of the location the children will sleep when confirming the access, with such location subject to the approval of the Respondent Knights. Such holidays shall be planned 60 days prior to same occurring.

5. The children may contact the Applicant father as they wish.

6. The Applicant father may contact the children twice per week after-school on Tuesdays and Thursdays between 8:00 p.m. and 8:30 p.m.

7. The custodial guardians and the Applicant father shall communicate by email, except in the case of emergencies. The parties shall keep each other apprised of current address, phone number and email address at all times.

8. The custodial guardians may travel with the children for a period of up to four weeks within or outside of Canada, without the consent of the Applicant father. They may not schedule such trips on the father's time in the summer or over Christmas, if the father has given written notice of his desired vacation days before the respondent guardians advise him of their planned vacation time. Where he has not given advance notice of the specific days he intends to exercise his Christmas and summer access, make-up access shall be arranged if the travel interferes with the Applicant's regular access. The Applicant's consent is not required for the renewal of the children's passports.

9. If there is any dispute, within the next three months, about the suitability of accommodations proposed by the father, he may bring a motion (as opposed to commencing fresh proceedings), on proper notice to the respondents and returnable before me, for a determination as to the suitability of such accommodations for access. The issue will be decided summarily and on the basis of affidavit evidence.

10. Submissions with respect to costs shall be made in writing and subject to these terms:

(a) The submissions are not to exceed three pages, single-spaced, using 13 point font, not including any bill of costs or case law relied upon;

(b) The number of cases a party can rely upon in support of their submissions shall not exceed a maximum of three cases;

(c) The respondents shall serve their written cost submissions, their bill of costs, and any case law they rely upon, by no later than February 28, 2018;

(d) The applicant shall serve his submissions and any case law he relies upon in response by no later than March 12, 2018;

(e) If the applicant intends to rely upon an inability to pay as justification for an order for reduced or no costs in favour of the respondents, he shall serve an up-to-date sworn financial statement along with copies of his notices of assessment for the past three taxation years with his cost submissions. If he has not received a notice of assessment for 2017, then he shall in lieu of a notice of assessment for that year, attach a copy of all information slips he has received for 2017 (i.e. T4s) and any other proof he has of income earned in 2017.

(f) Any reply submissions by the respondents to be served by no later than March 17, 2018;

11. This matter is adjourned to April 4, 2018, at 3:00 p.m. for the court to deliver its decision with respect to costs orally. The parties may participate, either in person or via teleconference as they prefer. If this date and time does not work for counsel or the applicant, they are to make arrangements for a different date through the Judicial Secretary.

12. The Judicial Secretary is requested to email a copy of this judgment and reasons to counsel and to the applicant. The court also requests that she call the applicant after emailing him to advise him that the judgment and reasons have been emailed to him.

Released: February 21, 2018

Signed: Victoria Starr