ONTARIO COURT OF JUSTICE

CITATION: J.Q. v. A.R., 2018 ONCJ 386

DATE: February 12, 2018

COURT FILE No.: D10355-17

BETWEEN:

J.Q.

Applicant

— AND —

A. R.

Respondent

Before Justice Melanie Sager

Motion Heard on December 19, 2017 and January 16, 2018

Reasons for Judgment released on February 12, 2018

Carolyn McNeill..................................................................................... counsel for the Applicant

Stephanie Okola................................................................................ counsel for the Respondent

Sager, J.:

Introduction

1. J.Q. (the father) and A.R. (the mother) are both 22 years old. They are the biological parents of G.R. born […], 2015.

2. The parties were involved in a brief relationship that resulted in the birth of their daughter who is now two years old. Their evidence differs as to the date of separation, how long they lived together and the level of the father’s involvement in G.R.’s life after the mother moved out of the home they shared.

3. The parties agree that the following represents the agreed upon parenting schedule for G.R. up to the date of the motion:

(i) From February 2016 to November 2016, there was no fixed parenting schedule in place and the child was primarily in the mother’s care;

(ii) From November 2016 to March 2017, G.R. spent weekdays with father and weekends with mother;

(iii) From April 2017 to July 2017, G.R. spent 5 overnights with the father every two weeks and the balance of the time with the mother; and,

(iv) From August 2017 to November 2017, G.R. spent 6 nights every two weeks with the father and the balance of the time with the mother.

4. On November 8, 2017, the police and the Catholic Children’s Aid Society (the society) began an investigation after the mother brought G.R. to daycare with concerning injuries to her face[^1]. G.R. was taken to the Hospital for Sick Children to be examined on the same day by the Suspected Child Abuse and Neglect department (SCAN). Following the examination by the SCAN unit, G.R. was released into her father’s care. The father was instructed by the society and the police that as an investigation was underway he was to keep G.R. in his care until further notice.

5. As of the date of this motion, the police completed their investigation and no criminal charges were laid. The society has verified physical force and/or maltreatment and physical harm but could not identify who harmed G.R. The society also verified that there has been inadequate or marginal supervision of G.R. when in the mother’s care. Finally the society verified a risk of emotional harm from G.R.’s exposure to ongoing post separation caregiver conflict. The society recommended that the file remain open for ongoing involvement.

The parties’ positions on the motion

6. The father is requesting an order for interim custody of G.R. and an order that the mother’s access be as agreed upon between the parties in consultation with the society.

7. The mother asks for an order that she have custody of G.R. whose primary residence will be with her and an order that the father shall have liberal and generous access to G.R. as agreed upon by the parties. In the alternative to sole custody, the mother asks the court to grant the parties joint custody of G.R.

The issues to be determined

8. On this motion I am asked to determine the following:

a) What custody order is in G.R.’s best interests?

b) What access order is in G.R.’s best interests?

9. The father commenced an Application on February 28, 2017, in which he requested an order for custody of G.R.

10. On April 21, 2017, the mother filed her Answer and Claim with the court in which she requested orders for, amongst other relief, custody of G.R., child support from the father and an order restraining the father from communicating with her except with respect to issues affecting G.R.

11. On March 3, 2017, the father requested permission to bring a motion on an urgent basis as he alleged that the mother had not returned G.R. to his care pursuant to the parties’ parenting schedule which had been in place since November 2016. The agreed upon arrangement was that he had care of G.R. during the week and the mother cared for her on weekends.

12. On March 7, 2017, I vacated the first appearance court date and granted the father permission to bring a motion before me on April 27, 2017.

13. The parties attended in court on April 27, 2017, and advised that they had reached a resolution on most of the issues through mediation. The matter was adjourned to August 17, 2017.

14. The parties attended in court on August 17, 2017 and advised that the mother no longer wished to participate in mediation. The matter was adjourned to September 18, 2017.

15. On September 18, 2017, the father and his lawyer attended in court but the mother and her lawyer did not appear as counsel misdiarized the court date. Father advised the court that the parenting schedule was working well. The matter was adjourned to November 23, 2017.

16. On November 23, 2017, the father brought a motion before the court in which he requested the following relief:

a) An order granting him temporary sole custody of G.R.;

b) An order that the mother shall have access to G.R. as agreed between the parties in consultation with the Catholic Children’s Aid Society of Toronto; and,

c) An order suspending the father’s obligation to pay the mother child support for G.R.

17. The impetus for the father’s motion was the involvement of the society and the police after the mother could not explain how G.R. suffered injuries to her face and ear while the mother was responsible for her care.

18. On the return of the father’s motion, the mother requested an adjournment to obtain more information from the society which was investigating the child’s injuries. I granted the mother’s request for an adjournment on terms which included an order restricting her access to G.R. to day access only and that she not leave G.R. with anyone else during her visits. G.R. would be in her mother’s care Mondays and Wednesdays from 3:00 p.m. to 7:00 p.m. and Saturdays from 10:00 a.m. to 4:00 p.m. G.R. was ordered to be in her father’s care at all other times.

19. On November 23, 2017, I requested the attendance of the society worker investigating G.R.’s injuries at the next court appearance scheduled for December 19, 2017.

20. On December 19, 2017, Adam Rop, a supervisor from the society attended in court to speak to their involvement with the family. Mr. Rop gave evidence and both counsel were permitted to question him. After hearing from Mr. Rop, I advised the parties that I required the following evidence in order to adjudicate the motions before me:

a) The society’s file;

b) The daycare records; and,

c) The report and records from SCAN at the Hospital for Sick Children.

21. Should they be unable to obtain the records in advance, I gave counsel leave to summons the record keepers to attend in court on the next court date. I further ordered that the father shall have temporary without prejudice custody of G.R. as a means of providing assistance in obtaining the above noted business records[^2].

22. The motion was argued before me on January 16, 2018. I relied upon the following information:

For the Father

i) Notice of Motion at Tab 13 of the Continuing Record;

ii) Affidavit of the father, sworn April 21, 2017, at Tab 10 of the Continuing Record;

iii) Affidavit of D.Q.C., sworn April 21, 2017, at Tab 8 of the Continuing Record;

iv) Affidavit of S.C., sworn April 21, 2017, at Tab 9 of the Continuing Record;

v) Affidavit of the father, sworn November 15, 2017, at Tab 14 of the Continuing Record;

vi) Affidavit of the father, sworn November 21, 2017, loose in court file;

vii) Affidavit of the father sworn December 14, 2017, at Tab 16 of the Continuing Record; and,

viii)Affidavit of the father sworn January 11, 2018, at Tab 19 of the Continuing Record.

For the Mother

i) Affidavit of the mother, sworn April 24, 2017, at Tab 11 of the Continuing Record;

ii) Affidavit of the mother, sworn November 20, 2017, at Tab 15 of the Continuing Record;

iii) Affidavit of the mother, sworn December 8, 2017, at Tab 17 of the Continuing Record;

iv) Affidavit of the mother, sworn January 10, 2018, at Tab 18 of the Continuing Record; and,

v) Amended Notice of Motion file stamped January 16, 2018, loose in the court file

23. Counsel cooperated to file a Joint Document Brief which contains the records of the society, the child’s daycare, Kimbercroft Childcare and Learning Centre (daycare), and, the Hospital for Sick Children. The court also has a copy of the transcript of Mr. Rop’s questioning which was attached as Exhibit “A” to the affidavit of the mother sworn January 10, 2018.

Issue #1 – What custody order is in G.R.’s best interests?

The Law

24. Subsection 20(1) of the Children’s Law Reform Act provides that a child’s parents are equally entitled to custody of the child.

25. Subsection 21(1) provides that a parent of a child or any other person, including a grandparent, may apply to a court for an order respecting custody of or access to the child or determining any aspect of the incidents of custody of the child. R.S.O. 1990, c. C.12, s. 21; 2016, c. 23, s. 3; 2016, c. 28, s. 1.

26. Section 24 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, governs the determination of custody and access claims based on the best interests of a child. It reads as follows:

24(1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4).

24(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.

27. Subsection 24(4) requires the court to consider whether the person seeking custody of or access to a child 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.

28. In making an interim custody order, a court should generally maintain the status quo in the absence of important reasons suggesting that change is necessary in the child’s best interests: McEachern v. McEachern (1994) 1994 CanLII 7379 (ON SC), 5 RFL (4^th) 115; T.(M.E.) v. T. (X.M) 2015 Carswell 799.

29. To disturb the status quo, there must be compelling evidence to show the welfare of the child would be in danger in maintaining the status quo, namely the evidence must clearly and unequivocally establish that the status quo is not in the child’s best interests: Miranda v. Miranda, 2013 ONSC 4704, para 26.

30. The status quo that is relevant is that which existed just prior to the parties’ separation except in circumstances where there is clear and unequivocal evidence that the parties agreed to a different decision-making and residence arrangement following the separation: Howard v. Howard (1999), 1999 CanLII 35009 (ON SC), 1 R.F.L. (5th) 375 (S.C.J.).

31. When there are a number of contradicting affidavits filed on a temporary motion, the court is often faced with the difficult, if not impossible task of attempting to determine whose position has more merit. As this often cannot be done on a temporary motion, the order is often designed to reflect the status quo so as not to disturb the existing arrangements for the children if those arrangements are meeting the children’s needs. The status quo will only be disturbed on an interim motion when there is overwhelmingly persuasive evidence that a change to the status quo is necessary to serve the children’s best interests.

32. The parties had roughly equal care of G.R. before the society and the police became involved as a result of the injuries G.R. sustained to her face during the mother’s parenting time. This was an arrangement agreed upon by the parties through mediation. Therefore, the status quo that existed prior to the father bringing the motion was a shared parenting arrangement.

Review of the Relevant Evidence

The parties’ relationship

33. The father’s evidence is that the parties lived together with his family between April 2015 and February 2016. After the mother moved out with G.R., the father’s evidence is that the mother would decide when and for how long he would see G.R. According to the father, while sometimes the mother would not permit any access at all, other times she would leave G.R. in his care for up to 50% of the time.

34. In February 2017, three months after the parties agreed that G.R. would be in the father’s care during the week and the mother’s care on the weekend, the father’s evidence is that the mother withheld G.R. from the father causing him to commence this litigation.

35. The mother’s evidence is that the parties lived together briefly when she found out she was pregnant [^3]and that she left the father’s family’s home two months after G.R. was born. After moving out of the home she shared with the father’s family, the mother’s evidence is that the father showed very little interest in G.R. or being a part of her life. The mother’s evidence is that she has always been G.R.’s primary caregiver and responsible for taking her to all medical appointments, arranging for a daycare subsidy and daycare and providing for her financially without assistance from the father.

36. The mother’s evidence is that she is a good mother who has always been attentive to G.R.’s needs and as she assures the court that she did not inflict the injuries sustained by G.R., G.R. should be returned to her primary care.

37. The father’s evidence is that he and his family have always had concerns about the mother’s parenting which is evidenced by their calls to the Children’s Aid Society and the commencement of this litigation.

38. In November 2016, when G.R. was just shy of her first birthday, the mother agreed that G.R. would live with the father and his family during the week and with her on weekends. The father’s evidence is that this arrangement was agreed upon as the mother was without permanent housing and was returning to work after giving birth to G.R. The mother’s evidence is that this was to be a temporary arrangement as she was working from 5:00 p.m. to 11:00 p.m. during which time the paternal grandmother cared for G.R. The mother also states that “I agreed that G.R. would reside temporarily with the Applicant father and his parents in their family home until the daycare subsidy became available.”[^4]

39. The mother acknowledges that in February 2017, she began restricting the father’s parenting time after she alleges he threatened not to return G.R. to her “after an access visit” and that she genuinely believed he would keep G.R. from her.[^5]

40. After the father commenced court proceedings, through medication, the parties reached temporary agreements for G.R.’s care which resulted in an increase in the father’s care of G.R. to roughly equal parenting time.

Injuries sustained by G.R. while in the mother’s care

41. The father’s evidence is that on November 1, 2017, he attended at G.R.’s daycare to retrieve G.R. who was scheduled to be in his care. Unbeknownst to him, the mother did not bring G.R. to daycare that day. The father attempted to reach the mother by phone and text message but she did not respond. The mother’s evidence is that to the best of her recollection G.R. attended daycare on November 1, 2017.

42. It is clear from the daycare records that G.R. was absent from daycare on November 1, 2017, and that the father attended at the daycare at the end of the day to pick her up only to learn she was not there.

43. The father’s evidence is that he returned to the daycare to pick up G.R. on November 2, 2017, at which time she had noticeable marks on her face. When he enquired with the supervisor of the daycare about the marks he was told that G.R. arrived at daycare that morning with the marks. The entry on the daycare records provided to the court for November 2, 2017, reads as follows:

“Mom drop [sic] off [G.R.] and she came in with a scratch on her left cheek! Mom said she might have scratched while sleeping. She’s not sure.”

44. The mother’s evidence is that “There were a number of scratches on G.R.’s face from the preceding week. Some of these scratches were from G.R. herself, as she complained while I was combing her thick, curly hair. These scratches would have been seen by the Applicant father himself. They began to form scabs as they healed, and became more apparent as they healed.”

45. On November 8, 2017, G.R. was delivered to daycare by her mother with new injuries to her face. There were deep scratches, one of which is U shaped, and noticeable bruising on the left side of her face. In addition, there was a cut and blood in her ear. The mother’s affidavit sworn November 20, 2017, states at paragraph 37 that on the morning of November 8, 2017, “I noticed a few fresh scratches on G.R.’s face. I asked G.R. what had happened, and G.R. told me “she pushed me, she pushed me, As. pushed me at daycare”. I asked [T.] [mother’s boyfriend] if she [sic] had had [sic] the same scratches the day before as he had spent the evening with her, and he advised me that he had not seen them, but he had seen a scratch in her ear with a scab that he cleaned.”

46. At paragraph 38 of that same affidavit, the mother states that when she attended at the daycare on November 8, 2017, to drop G.R. off, she asked the supervisor if “G.R. had gotten into a fight at daycare. S. advised me that she had not. I left G.R. at daycare.” [^6]

47. The mother made statements to the daycare and the society that differ significantly from what she swore to be true in her affidavits.

48. The daycare record for November 8, 2017, reads as follows:

“[G.R.] came in with scratches/bruises on her [left] side of her face. Mom said [T] said he picked her up like that. S. was in the room after 4 p.m. It never happened in the centre. [A]sked [G.R.] @10:20 what happened on your face – she said “[T] did this.” CAS was called – came @3:30. Dad and [paternal grandmother] came at 410. Everyone left together at 520 pm.”

49. The society and the police interviewed the mother regarding the injuries to G.R.’s face on November 10, 2017. The society’s notes taken by the worker Ayleen Gutierrez reads as follows:

“Tuesday Nov. 7^th [T.] picked child up from daycare. He text [the mother] right after he picked up child and asked her to call him right away because he observed the cuts and bruises and blood in the ear. He used, and saved a Q-tip, to show [the mother] when she got home. [The mother] said [T.] only discussed the bleeding ear, and not the cuts and injuries. [The mother] said [T.] said the injuries did not appear so bad in the evening, but in the morning they appeared worse. When [the mother] came home it was late and she didn’t really notice anything. She got ready for bed and only noticed the injury in the morning. [The mother] said when she asked child in the morning, child said “she was pushed at the daycare”.”

50. The mother’s evidence of what T. told her after he picked G.R. up from daycare on November 7, 2017, deviates significantly from what T. reported to the society.

51. The society worker interviewed T. on November 15, 2017. The society’s notes read as follows:

“[T.] picked up [G.R.] from daycare last Wednesday. When he picked up the child from daycare on the Wednesday, he cannot recall if [G.R.] had marks on her face. Then he said that [the mother] was at work that day and worked till close, 11pm….He brought [G.R.] home (to [the mother]’s) and fed her. Then he took [G.R.] back to his mother’s home….Afterwards, he came back to [the mother’s] home, and put child to sleep. He also attended to her bathing. He waited for [the mother] to come home from work, and when she got home, they went to sleep. When [the mother] awoke the next day that is when she observed the marks. [The mother] called [T.] into the room to look at the marks…He assured that child did not have such mark when she went to bed…[T.] recalls that [G.R.] went to bed at 8pm that evening. He bathed [G.R.] before bed. [T.] explains that child did not have the big marks on her face, only the two smaller, older previous marks. [T.] says [G.R.] did not have those marks then [sic] he picked her up from daycare on the Tuesday November 7^th.”

52. The mother and her boyfriend, who were responsible for G.R.’s care when she sustained the injuries, provided information to the society that contradicted one another. They have very different recollections of what they said to one another and what they witnessed.

53. The mother’s evidence on the motion is that she noticed the “scratches” on G.R. the morning of November 8, 2017 and asked T. if the scratches were there when he picked her up the night before to which he said that he did not notice them. This is very different from what the mother told the daycare and the society at the time of the injury and investigation. Both the daycare and society records indicate that the mother reported to them that G.R. had the injuries on her face when T. picked her up from daycare on November 7^th 2017.

54. T. first told the society that he could not recall if G.R. had the injuries when he picked her up and then said she did not have the injuries when he picked her up or when he put her to bed. The injuries to G.R.’s face are not minor and would be noticed immediately upon seeing G.R.

55. The various accounts given by the mother of what she said and did after seeing the injuries to G.R.’s face is extremely disconcerting. The totality of the evidence on this issue makes it abundantly clear to the court that the mother is not being truthful.

56. The mother and T.’s account of what occurred as reported to the society are vastly different. They differ on pertinent facts as opposed to trivial details of what occurred. T.’s statement to the society that G.R.’s face was not injured when he picked her up from daycare directly contradicts the mother’s version of events as reported by the society and the daycare that T. told her that G.R. had the injuries when he picked her up on the evening of November 7, 2017.

57. The glaring inconsistencies in the mother’s and T.’s evidence are alarming as they are G.R.’s primary caregivers when she is in the mother’s care. There is no question that the mother and/or T. ought to have known how G.R. sustained the injuries. She is two years old. Two year olds must be supervised at all time. If G.R.’s caregivers do not know how she sustained abrasions and bruising on her face and ear, at a minimum, they failed to properly supervise her.

58. The mother’s evidence that she does not know how G.R. sustained these injuries when she was responsible for her care is unacceptable. G.R. was not even two years old when she sustained cuts and bruises to her face. The abrasions and bruising on November 8, 2017, occurred shortly after G.R. arrived at daycare on November 2, 2017, after being kept home from daycare by the mother on November 1, 2017, with concerning cuts on her face. It is the mother’s responsibility to know how G.R. got injured. The contradictions and inconsistencies in the mother’s statements to the society, the daycare and in her affidavit evidence as to what took place raises the level of the court’s concerns around her parenting exponentially.

Other concerns about the veracity of the mother’s evidence

59. The mother has made contradictory statements in her affidavit evidence about whether the parties lived together and the nature of the father’s involvement in G.R.’s life after the parties separated. The incongruity in the mother’s evidence is consequential when assessing her overall credibility.

60. The mother’s Application states that the parties did not live together during their relationship. In her 35.1 affidavit in support of claim for custody or access sworn April 10, 2017, she states at paragraph 9 on page 3 that G.R. lived with her alone from birth until December 2016. At paragraph 4 of her affidavit sworn November 20, 2017, the mother states, “We never co-habited.”

61. At paragraph 3 of the mother’s affidavit sworn December 8, 2017, she says, “[The father] and I resided with each other briefly when I found out I was pregnant in a 3 bedroom apartment with his mom, dad, brother and sister Ar..” This statement is a direct contradiction of her previous sworn statements that the parties did not live together.

62. The mother also gives contradictory evidence concerning the father’s access to G.R. following separation. In her affidavit sworn April 24, 2017, at paragraph 16, the mother states that the father “did not exercise any access to [G.R.] for the first 12 months after separation. He showed little concern for her well-being, and paid no child support.”[^7] She also says in paragraph 19 of the same affidavit that the father “did not begin exercising regular access until November 2016.” At paragraph 12 of her affidavit sworn November 20, 2017, the mother states, “After the relationship ended, the Applicant Father did not exercise any access to [G.R.] for approximately 9 months.” At paragraph 23 of that same affidavit, the mother’s evidence is that “Until approximately July 2016, the Respondent father would rarely visit with [G.R.]”

63. The mother claims that when the father finally began visiting G.R., “he did not act in a child-focused manner” and “he would pay her little attention during the visits, and would not change her diapers”.

64. If the mother’s claims about the father’s neglect of G.R. for the first year of her life are true, what does that tell the court about her judgment in relation to her care of G.R.? If the father did not visit G.R. for 9 to 12 months after the parties separated, why would the mother agree in November 2016 to G.R. being in the father’s care from Monday to Friday each week? Either she is not being truthful about the frequency with which the father parented G.R. or she showed highly questionable judgment agreeing to what she describes as a virtual stranger being the primary caregiver to her 1 year old daughter.

65. The court also questions the mother’s judgment when she saw fit to “limit” the father’s access to G.R. in February 2017, when she believed he might not return G.R. to her care. She did this after G.R. had been in the father’s primary care since November 2017. She disclosed no concerns about the father’s parenting and instead of taking appropriate action, such as consulting a lawyer, she took self-help measures that resulted in G.R. having little contact with her father.

66. The court simply cannot determine from the mother’s evidence the time periods she claims the father was not actively involved in G.R.’s life. The court frankly had difficulty following the mother’s evidence on several issues.

The mother’s use of multiple people to care for G.R.

67. The father questions the mother’s judgment with respect to her willingness to have a number of different people care for G.R. when she is unable to do so. She has acknowledged that her boyfriend T. and his mother N. have both cared for G.R. The daycare records show that the mother has also authorized three other people named P., J. and T. to pick up G.R. In addition, the mother’s affidavit sworn November 20, 2017, states that two other people known to the father have assisted the mother by caring for G.R. The father provided affidavit evidence from S.C., who says that she cared for G.R. for entire weekends when the mother was working. That brings the number of caregivers the mother has relied upon in the past to assist her in caring for G.R. to 8.

68. What is particularly unsettling for the court is that one of the mother’s caregivers provided affidavit evidence of her concerns about the mother’s care of G.R. D.Q.C., someone who the mother describes as a close friend, states in her affidavit sworn April 21, 2017, that she is “worried for [G.R.]’s safety” as the mother “has not had a stable home for herself since at least July 2016. She had come to spend a weekend with me and ended up staying until my family sold our house in November 2016.”

69. The mother shows little insight into the dangers associated with so many people involved in the care of a very young child. In fact, the mother was warned by the society about the number of people she authorized to care for G.R. and the society reports that “[The mother] does not seem to mind that so many people care for her child. She wants to expose child to many people, and not isolate her. [The mother] says she trusts these people with her child.”

70. Mr. Rop of the society gave evidence that they intend to initiate a Protection Application in which they would seek an order placing G.R. in the mother’s care subject to the society’s supervision “to ensure that the child is being supervised by an appropriate caregiver.” When asked about the multiple caregivers the mother has relied upon and whether that is a concern for the society Mr. Rop testified that, “[The mother] cannot be leaving [G.R.] with multiple caregivers…that she needs to take the responsibility of one [sic] ensuring appropriate care and supervision when the child is in her care”.

71. Mr. Rop also gave evidence that the society had a previous opening for this family in November 2016 and that concerns were raised then about the child “being left with multiple caregivers” by the mother. Mr. Rop testified that,

“when we fast-forwarded it to this current investigation, given the fact that we're seeing these abrasions on the child’s face, there is a link there in terms of the fact that there is no clear explanation from [the mother] that in terms of how these marks came to be except for the fact that we know that this child can be cared by different caregivers.”

The mother’s multiple residences since G.R. was born

72. It is the father’s evidence that the mother has had at least 8 different residences since she moved out of the home she shared with the father and his family in February 2016. He argues that the mother has failed to create a secure and permanent home for G.R. since she was born. The mother claims that prior to securing her current residence, she had only three residences. There is also evidence that the mother intended to live with her father in February 2017, but that her stay only lasted a weekend[^8]. At least two of the residences the mother lived in with G.R. since December 2015 were temporary residences.[^9]

73. The mother’s evidence is that she moved out of the father’s home and into a condominium with the father’s sister and her partner when G.R. was two months old. This arrangement only last 7 months as a result of incidents of domestic violence between her roommates. It was after the mother left this residence that she lived temporarily with friends for almost a year and a half.

74. The mother’s poor choices with respect to her housing have resulted in her having to move G.R.’s residence several times in her short life. Instead of creating a stable, nurturing home with consistent caregivers for G.R., the mother has moved several times and had numerous people assisting with the care of G.R.

Mother’s Issue with punctuality

75. The court was provided with evidence that the mother is chronically late picking up and dropping off G.R. for visits. The father provides evidence of each and every visit the mother either arrived late to pick up G.R. or returned her late. Many of the visits the mother was more than a couple minutes late returning G.R. to her father. The mother’s behaviour led to police involvement on three occasions. On one occasion, the mother kept G.R. in her care for 6 hours longer than permitted by the court order.

76. The mother does not provide a meaningful response to the father’s detailed account of the number of times the mother was significantly late returning G.R.; she simply makes sweeping denials.

77. In addition to the mother’s failure to attend on time to pick up and drop off G.R., the daycare records note that on November 7, 2017, the mother was told by the daycare that she cannot continue to regularly attend late to pick G.R. up. The daycare records read, “S. called [The mother] at 6:00 p.m. to see who was picking up [G.R.] S. also told [The mother] that she cannot keep coming in late to pick up G.R. as this is a recurring situation and is unfair to the staff staying back.” The mother potentially put G.R.’s daycare enrollment at risk as a result of constantly attending to pick G.R. up outside of the daycare’s hours.

78. The father is also concerned about the mother’s refusal to respond to his communication in a timely manner. This has caused him unnecessary upset. The mother’s explanation on one occasion for not returning the father’s call because her phone battery died is unsatisfactory. The mother has a 2 year old child. She has a responsibility to ensure regular and open communication with the father.

79. It is important to note that the mother’s issues with punctuality has persisted despite the father raising his concerns with the mother and the fact that the mother’s actions are subject to close scrutiny by the court.

Conclusion with respect to the issue of custody

80. The evidence sets out very clearly that on least two occasions while the mother was responsible for her care, G.R. suffered injuries to her face. It is a significant mischaracterization to refer to the injuries on G.R.’s face at “scratches”. Doing so minimizes what has taken place.

81. Despite being responsible for G.R.’s care, the mother cannot explain how G.R. sustained the injuries to her face. What is equally concerning is that the Hospital for Sick Children concluded that there is only one of three ways G.R. could have sustained the injuries; they were intentionally inflicted by someone; they were accidentally inflicted by someone; or the injuries were a result of an unwitnessed event. However G.R. sustained the injuries, the court expects her mother, who was responsible for her care, to be able to explain what happened. As the mother states she does not know how it happened, the court would expect the mother to provide evidence as to how she will ensure that this would not happen again. The court did not receive that evidence from the mother.

82. The mother put G.R. in danger by entrusting her care to too many different people. She was warned about the dangers of her actions by the society in 2016 yet even after G.R. was seriously injured during her parenting time, and even though the mother did not know how G.R. got hurt, the mother still fails to comprehend how her actions put G.R.‘s safety at risk. The society’s records report that while being questioned by the society about G.R.’s injuries, she continued to justify having multiple people assist her in caring for G.R.

83. G.R. is only two years old and extremely vulnerable. She relies on her caregivers to meet her every need and protect her from harm. The court is very concerned about the mother’s ability to provide appropriate care and stability for G.R. The mother has not been able to consistently provide G.R. with the care she needs. The mother is not capable at this time of carrying out the duties associated with having custody of G.R. The mother’s behaviour overall suggests she lacks sufficient maturity and responsibility necessary to be entrusted with making major decisions that will affect G.R.’s life and upbringing.

Should there be an order for joint custody of G.R. as an alternative to the mother having sole custody?

84. The mother asks for an order for joint custody if the court declines to grant her sole custody of G.R. An order for joint custody is only appropriate when both parents are fit to exercise custody of the child. As I have concluded that the mother is not fit to exercise custody of G.R., an order for joint custody is not an option for the court.

85. The father has provided G.R. with consistent care without any noted concerns since at least November 2016. He was G.R.’s primary caregiver, with the assistance of his mother, from November 2016 until February 2017; a roughly equal caregiver between April 2017 until November 2017; and, primary caregiver from November 2017 to date.

86. The father has demonstrated that he can provide G.R. with stability, security and appropriate physical and emotional care. No concerns were raised about the father’s care of G.R. by the society or the daycare. The mother’s concerns were limited to complaints about the father and his family being rude to her when she returns G.R.

87. Taking all of the factors set out in subsections 24(2) and 24(4) of the Children’s Law Reform Act into consideration, it is appropriate for the father to have interim sole custody of G.R. He has demonstrated that he is able to meet all of G.R.’s needs by exercising good judgment and making child focused decisions.

Issue #2 - What Access Order is in G.R.’s Best Interest

The Law

88. Children should have maximum contact with both parents if it is consistent with their best interests. See: Gordon v. Goertz 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27.

89. It is well accepted law that on an interim motion, an order should seek to maintain as much as is possible the living arrangements that the child is use to and comfortable with. This results in temporary living arrangements that are the least disruptive, most supportive and most protective for the child: See: LeBlanc v. Khallaf, 2010 CarswellNS 376 (N.S. S.C.):

90. The party who seeks to reduce normal access will usually be required to provide a justification for taking such a position. The greater the restriction sought, the more important it becomes to justify that restriction. See: M.A. v. J.D. 2003 CanLII 52807 (ON CJ), [2003] O.J. No. 2946 (OCJ).

91. The best interests of the child have been found to be met by having a loving relationship with both parents and that such a relationship should be interfered with only in demonstrated circumstances of danger to the child’s physical or mental well-being. See: Pastway v. Pastway (1999) 49 R.F.L. (4^th) 375 (Ont. General Division).

Analysis of the Evidence

92. The court must craft an access order that is in G.R.’s best interests. In making this determination, I have considered the “best interest” factors set out in subsection 24(2) of the Children’s Law Reform Act, as well as all other relevant considerations.

93. The basis for the mother’s request on this motion that she be granted primary care of G.R., as opposed to returning to a shared parenting arrangement, is that neither she, nor anyone she relied upon to care for G.R., caused the injuries to her face and as she has been G.R.’s primary caregiver most of her life, she should be reinstated as such.

94. The court rejects the mother’s argument that as she has not been identified as the individual who injured G.R., she has been vindicated and poses no harm to G.R.

95. The mother’s care of G.R. and the choices she has made have resulted in G.R. being subjected to several changes in her residence; multiple people being entrusted with her care before she was even two years of age; unexplained injuries to her face on more than one occasion; and, the creation of unnecessary conflict with the father that included police involvement.

96. The courts concerns are elevated by the mother’s inability to explain the injuries G.R. sustained; differing accounts of what occurred in November 2017 provided by the mother to the court, the society and the daycare; the mother and her boyfriend providing differing accounts of what occurred in November 2017 to the society; and, the mother’s lack of insight into how her conduct has negatively impacted G.R. In addition, there are many examples of irresponsible and immature behaviour by the mother that if permitted to continue, may create further risk and instability for G.R.

97. The evidence laid out above provides extremely persuasive reasons for altering the shared parenting regime the parties agreed to in mediation prior to the events of November 2017. The mother has demonstrated that when she was responsible for G.R.’s care during extended periods of time, she was not able to provide the level of care G.R. requires. For these reasons, the mother will only be permitted visits of short duration that will not include overnight visits at this time.

98. The mother must demonstrate a period of stability and appropriate care of G.R. before there can be an increase in her parenting time. This includes keeping G.R. safe, picking up and returning G.R. for her visits on time and maintaining open and honest dialogue with the father about G.R.’s care and routine. In addition, the mother is encouraged to engage in programing and/or counselling that will assist her in better understanding how her choices to date have or may have impacted G.R.

99. Both parents are invited to complete parenting programs and any type of education that will help them understand how their disagreements and conflict will negatively impact G.R.

100. For the reasons set out above, I find that there is clear and overwhelming evidence to warrant a change to the parenting regime in place prior to the hearing of this motion as it was not meeting G.R.’s needs and is no longer in her best interests.

Orders

101. The father shall have temporary custody of G.R. He shall consult with the mother and consider her input before making any major decisions affecting G.R.

102. The mother’s shall have temporary access on Mondays and Wednesdays from 4:00 p.m. with pick up at daycare until 7:00 p.m. with drop off at the father’s home; and every Saturday from 10:00 a.m. to 4:00 p.m. with pick up and drop off at the father’s home.

103. The mother shall always be present during her parenting time and shall never leave G.R. in the care of a third party. If the mother cannot care for G.R. during her parenting time she shall advise the father and the visit shall be cancelled.

104. Any order requiring the father to pay the mother child support for G.R. is suspended.

105. If either party is seeking costs of the motion, they shall serve their cost submissions on opposing counsel within 20 days from the date of this decision. Their cost submissions shall be no more than three pages not including attachments and a Bill of Costs. The party responding to the request for costs shall serve their responding cost submissions within 20 days of receipt of the request for costs. The responding cost submissions shall be no more than three pages not including attachments. The party moving for costs shall have 10 days to reply to the responding submissions and such reply shall be no more than two pages.

106. Cost submissions shall be delivered to the Trial Coordinator’s Office.

107. The previously scheduled court date of February 15, 2018 at 2:00 p.m. shall be adjourned to April 2018 at 10:00 a.m. for a Settlement Conference.

Justice Melanie Sager

[^1]: The court was provided with photos of the injuries.

[^2]: The father provided the court with evidence that he had been denied access to both the daycare and the Hospital for Sick Children records without a court order.

[^3]: The mother does not say when she found out she was pregnant with G.R.

[^4]: The mother does not explain who would have taken care of G.R. from 5:00 p.m. until 11:00 p.m. when she was scheduled to work.

[^5]: The mother does not explain how limited access or shorter visits would provide protection from the father failing to return G.R. to her care.

[^6]: The mother provided the evidence in paragraphs 37 and 38 of her affidavit sworn on November 20, 2017, before the parties and the court were in receipt of both the records from the daycare and the society.

[^7]: The mother’s evidence that the father did not exercise access to G.R. for 12 months after they separated is also confusing as she claims the date of separation is February 2015, 10 months before G.R. was born.

[^8]: The society’s records reveal that the mother told them that she was moving to Peel to live with her father but when the worker went out to the paternal grandfather’s home to meet with the mother and G.R., the paternal grandfather told the worker they had moved back to Toronto.

[^9]: The mother stayed with her friend D.Q.C for approximately 6 months and with family friends after that for approximately 9 months.