ONTARIO COURT OF JUSTICE

CITATION: B.C. v. M.T., 2019 ONCJ 33

DATE: 2019·01·18

COURT FILE No.: Woodstock D164/17

BETWEEN:

B.C.

Applicant

— AND —

M.T.

Respondent

Before Justice S. E. J. Paull

Trial Heard on December 5, 6, and 19, 2018

Reasons for Judgment released on January 18, 2019

Michellene Beauchamp................................................................ counsel for the applicant(s)

M.T................................................................................................................... on her own behalf

PAULL J.:

[1] Before the court is the long-standing custody, access, and child support proceeding dealing with the parties one child. This matter proceeded to trial for three days in December 2018.

[2] The parties are the parents of S.C. (female) born […] 2013. The parties met in September 2012 and began living together in October/November, 2012 and separated in early January 2013.

[3] The proceeding was commenced by way of application by B.C. (father) dated October 29, 2017. He seeks an order for sole custody, supervised access for M.T., and child support. M.T. (mother) seeks an order for custody, regular access to B.C., and child support, or alternatively that she have regular unsupervised access.

[4] S.C. resided with M.T. up until November 2016 when, as a result of CAS involvement, an arrangement was made outside of court for S.C. to reside with her aunt and later her father. She has remained in her father’s care since.

[5] On December 11, 2017 an interim order was made for supervised access to M.T. at least once per week, and included a request for the involvement of the Office of the Children’s Lawyer.

[6] The OCL appointed a clinical investigator, Jessica Cowling and a report was filed dated June 21, 2018.

[7] A further interim order was made on July 9, 2018 that continued the supervised access to M.T., plus additional access as agreed between the parties with any unsupervised access being subject to a police assistance clause in favour of B.C.

[8] In addition to the parties and the clinical investigator, the court heard testimony from B.C.’s partner L.A., M.T.’s mother L.T., her sister M.H., and her brother-in-law H.H.

The Law

[9] Any application regarding custody or access must be determined by reference to what is in the best interest of the child pursuant to section 24 of the Children’s Law Reform Act which reads:

“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). 2006, c. 1, s. 3 (1).

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. 2006, c. 1, s. 3 (1); 2009, c. 11, s. 10; 2016, c. 23, s. 7 (1, 2); 2016, c. 28, s. 2.”

[10] No one factor in the statutory definition of a child’s best interests is given statutory preeminence. The court should consider the level of hostility and the extent to which that hostility may undermine the child’s stability. Wilson v. Wilson, 2015 ONSC 479.

[11] The Ontario Court of Appeal in Kaplanis v. Kaplanis, 2005 1625 (ON CA), [2005] O.J. No. 275, sets out the following principles in determining whether a joint custody order is appropriate:

1. There must be evidence of historical communication between the parents and appropriate communication between them.

2. It cannot be ordered in the hope that it will improve their communication.

3. Just because both parents are fit does not mean that joint custody should be ordered.

4. The fact that one parent professes an inability to communicate does not preclude an order for joint custody.

5. No matter how detailed the custody order there will always be gaps and unexpected situations, and when they arise they must be able to be addressed on an ongoing basis.

6. The younger the child, the more important communication is.

[12] In Giri v. Wentges, 2009 ONCA 606, the court adds the following at paragraph 10:

[10] Second, as this court has repeatedly held, joint custody requires a mutual commitment between parents to cooperate on matters pertaining to the raising of their child, and an ability for the parents to put their own interests behind those of the child. The Ontario Court of Appeal in Kaplanis v. Kaplanis 2005 1625 (ON CA), [2005] O.J. No. 275 has made it clear that an interim custody order and how it has worked is a relevant consideration for the trial judge. Ladesic-Hartmann v. Hartmann, 2008 25719 (ON S.C.)

[13] Joint custody should not be ordered where there is poor communication and the parties fundamentally disagree on too many issues affecting the child’s best interests. Graham v. Butto, 2008 ONCA 260, Roy v. Roy, 2006, 2006 15619 (ON CA), [2006] O.J. No. 1872 (Ont. C.A.).

[14] Courts do not expect communication between separated parties to be easy or comfortable, or free of conflict. A standard of perfection is not required, and is obviously not achievable. Griffiths v. Griffiths, 2005 ONCJ 235, 2005 CarswellOnt 3209 (OCJ). The issue is whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis. Warcop v. Warcop, 2009 6423 (ON S.C.).

[15] The court in Izyuk v. Bilousov, 2011 ONSC 6451, 2011 CarswellOnt 12097 (S.C.J.), stated the following at para. 504:

“In the wrong family circumstances, a joint custody order can perpetuate hostilities, indecision, and power struggles. Children- particularly children already exposed to the upset of family breakdown- look to their parents for love, guidance, stability, protection, and consistency. They need to have confidence that adult decisions will be made quickly, properly and uneventfully.”

[16] The child should have maximum contact with both parents if it is consistent with the child’s best interests. Gordon v. Goertz, 1996 191 (SCC), [1996] 2 S.C.R. 27.

[17] 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. Pastway v. Pastway (1999), 49 R.F.L. (4th) 375 (Ont. General Division).

[18] There is a presumption that regular access by a non-custodial parent is in the best interests of children. The right of a child to visit with a non-custodial parent and to know and maintain or form an attachment to the non-custodial parent is a fundamental right and should only be forfeited in the most extreme and unusual circumstances. Jafari v. Dadar, [1996] N.B.J. No. 38 (NBQB).

[19] 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. M.A. v. J.D., 2003 52807 (ON CJ), [2003] O.J. No. 2946 (OCJ).

[20] An access parent has the right to visit and be visited by a child and the same right as a parent to make inquiries and to be given information as to the health, education and welfare of the child. S. 20(5) CLRA.

[21] A starting point to assess a child’s best interests when making a custody or access order is to ensure that the child will be physically and emotionally safe. It is also in a child's best interests when making an access order that his or her caregiver be physically and emotionally safe. I.A. v. M.Z., 2016 ONCJ 615.

[22] Supervised access is not intended to be a long-term arrangement for a child. It is beneficial for children who require gradual reintroduction to a parent, or whose safety requires it until such time as the parent is sufficiently rehabilitated and a child is no longer in danger of physical or emotional harm. Najjardizaji v. Mehrjerdi, 2004 ONCJ 374, [2004] O.J. No. 5472 (OCJ).

[23] Supervised access is usually a temporary arrangement. However, when the court does not expect the risks addressed by supervision to diminish, it is appropriate to order long-term supervision of access. Tuttle v. Tuttle, 2014 ONSC 5011.

Evidence and Analysis

[24] B.C. seeks an order for sole custody and that any access by M.T. remain supervised until such time as she has addressed her mental health issues. He wants access to remain supervised at an access facility and opposes supervision being provided by anyone in M.T.’s family.

[25] M.T. seeks an order for sole custody on the basis that she was the primary caregiver for S.C. up until the fall of 2016, and that the issues she experienced at that time have been resolved. She seeks a return of S.C. to her primary care or, alternatively, that access be unsupervised.

[26] B.C. testified as follows:

1. He very recently moved from Plattsville to Brantford. He purchased a home there because he needed more space.

2. He is a self-employed 310T truck mechanic with gross annual business income of approximately $157,000, with his net annual income in the $100,000 range.

3. He has another child, L.C. (male), who resides with his mother near Ottawa. He sees L.C. for extended periods in the summer, and over Christmas and March break.

4. He met M.T. on a dating website in September 2012 and very shortly thereafter she became pregnant. M.T. and her 2 other children, D.P. (female) and L.P. (female), moved in with him at the end of October/early November 2012. The parties separated in early January 2013 when M.T. moved back to Orangeville (where her family and her other children’s father resided).

5. When they separated he assisted her with first and last months rent and permitted her to use his car.

6. S.C. was born on […] 2013 and M.T. refused to permit him to attend the birth.

7. At that time he worked on a week on/week off schedule and went to M.T.’s home for access approximately one weekend per month.

8. S.C. remained in M.T.’s care until November 2016. Up to that time he generally drove to her home for access visits. He had no overnights because M.T. would not agree.

9. He acknowledged in cross-examination that part of the reason he had no overnights or more visits was that he was not comfortable caring for a baby.

10. The parties made their own arrangements for child support and there was no court involvement until this proceeding was commenced in August 2017.

11. One of his concerns relates to M.T.’s housing instability. Since the separation in January 2013 she has moved over 11 times within and between Shelburne, Orangeville, St. Catharines, Niagara Falls, Guelph, Kitchener, and Cambridge.

12. He received a call from M.T. in November 2016 wherein she advised him that Niagara CAS had taken the children because of something that happened at school.

13. At that time S.C. went to M.T.’s sister M.H.’s home, with D.P. and L.P. going to their fathers. M.T. moved back to Orangeville and the file was transferred to Dufferin CAS.

14. He began seeing S.C. at M.H.’s in February 2017.

15. He attended a meeting at the CAS in April 2017 where the worker advised that there were concerns with returning S.C. to M.T. at that time, and that M.H. was changing jobs and no longer available to care for her.

16. As a result S.C. moved into his home on April 27, 2017. Due to his week about work schedule his sister cared for S.C. during the weeks he was working. This arrangement occurred until the summer of 2017.

17. By that time he was residing with his partner L.A. and she was available to look after S.C. when he was working.

18. Dufferin CAS had instructed him that M.T.’s access be supervised. By June 2017 M.T. was having weekly visits supervised in his home and his sister’s home.

19. In July 2017 a weekend visit was approved by CAS for M.T. to take S.C. to a family reunion with M.H. supervising. He picked up S.C. after the weekend and was contacted by the CAS the next day because M.H. had called alleging that S.C. had disclosed that her father hit her with a belt and that L.A. had scratched her.

20. CAS did not verify the allegations and M.T. was very upset and had initially attempted to get an emergency custody order. After this he was not prepared to supervise and access was moved to Merrymount.

21. He received a letter from Dufferin CAS dated August 11, 2017 which stated its position that it was not supporting unsupervised access at that time and encouraged him to pursue a “more permanent custody and access plan”. He commenced his application at that time.

22. Access at Merrymount did not commence until December 2017. Access is currently occurring every Saturday from 12:30 PM to 2:30 PM.

23. As a result of his recent move he proposes Dalhousie House in Brantford for the supervised access going forward.

24. He supports S.C. seeing her siblings and is in contact with their father.

25. However, he acknowledged in cross-examination that S.C. had not seen her siblings since May 2018 and he further stated that he opposed the siblings, the maternal grandmother, and aunt from attending access at Merrymount until the court order is clear because of a fear he has of her family taking S.C..

26. His main concern is with M.T.’s mental health and the fear that she will hurt herself or S.C..

[27] B.C.’s partner L.A. testified as follows:

1. She met B.C. in February 2017 and they began living together in April 2017.

2. She has two other children, Skyla aged 11 who resides with her, and Lily age 7 who lives with her father and visits regularly.

3. She had worked for Canada Post but is now a stay-at-home parent to look after the children when B.C. is working.

4. Up until the summer of 2017 when M.T. attended their home for visits she tried to stay out of the way and be supportive. On one occasion when she attempted to help settle S.C., M.T. said in front of S.C., “you are not the mother.”

5. She acknowledged the visits in her home were difficult and challenging, and there would often be prolonged goodbyes between M.T. and S.C..

6. She would like B.C. and M.T. to work together, and felt hurt when she became aware from the OCL report that M.T. had referred to her as a “bitch” when she had tried to be supportive and encouraging.

7. She disputed that S.C. was afraid of her.

8. She acknowledged a joint charge of assault in 2017 with a former spouse that was resolved by a joint restraining order.

[28] M.T. provided the following testimony:

1. In addition to S.C. she has two other children, D.P. (born […] 2007) and L.P. (born […] 2011) who lived with her up to November 2016. She was the primary caregiver for all the children with little support from the fathers or her family. She had worked as a school bus driver for 9 years.

2. In November 2016 on the children’s first day at a new school she made a remark about the children having to live somewhere else. This was overheard by school staff and the principal called CAS who investigated. She acknowledged feeling burnt out and overwhelmed at the time and that she was not coping well.

3. She agreed to work voluntarily with Niagara CAS with the children residing temporarily with her sister. There was not an apprehension and no protection proceeding was commenced.

4. She never signed a voluntary service agreement with Niagara CAS but did sign one with Dufferin CAS after the file was transferred there.

5. She has tried to address the issues raised by the CAS but feels frustrated by the lack of progress in her access.

6. No CAS worker has ever observed her with S.C.

7. She acknowledged the 11 residences she has had since separation from B.C., however she felt that the moves were necessary for financial and other reasons, including that some of the properties were not appropriately kept by the landlord.

8. Shortly after D.P. and L.P. went to reside with her sister, they moved to their father’s home where they have remained. There is a court proceeding in Orangeville concerning these children.

9. Since December 2017 she was having unsupervised weekends with D.P. and L.P. until April 2018 when she failed to return them. However, since May 2018 the alternate weekends from Friday at 6 PM to Sunday at 6 PM have resumed.

10. Since November 2016 she has participated in various programming. She successfully completed and provided a certificate for an 8 week anger management program in February 2017 at the Choices Youth shelter.

11. She completed the Triple P parenting program in April 2017.

12. Between July 3, 2018 and September 4, 2018 she successfully completed group counselling called Understanding Me at Carizon in Kitchener which comprised 10, 2 hour sessions on various topics including anger management, how to maintain healthy boundaries and relationships, and various parenting topics.

13. In a letter dated December 1, 2017 Dufferin CAS advised that it was closing its file as S.C. has remained in B.C.’s care. There is no current CAS involvement with any of her children.

14. She acknowledged making the inappropriate comments in November 2016 and that at the time she was overwhelmed and not coping, but denied any history or allegations of violence.

15. She feels much more stable now and receives support from her family she did not have in November 2016.

16. She is currently living in an apartment in Cambridge and has just found full time employment at Canteen Canada in November 2018. She felt that it was a good job and she intends to remain there.

17. She acknowledged a diagnosis of Borderline Personality Disorder and that she has not yet put her name on the waiting list for the Dialectical Behavioural Therapy that was recommended. She did review the online and written resources that were recommended by Dr. Haggith to assist her. She disputed the diagnosis and intends to have a further assessment, however acknowledged having taken no steps to do so.

18. She has been living at her current residence in Cambridge since December 1, 2018. Prior to that her lease ran out on September 1, 2018 in Kitchener and she lived with a friend until securing her current residence.

19. With respect to the incident in July 2017 when her sister called CAS, she denies coaching S.C. and stated she was not aware that her sister had called, and only found out about it the next day when texting B.C..

20. She believes this incident is when the difficulties in moving her access forward began.

21. After this her access was moved to Merrymount. She did her intake on September 13, 2017 and B.C. did his on November 2, 2017. Access did not begin until December 23, 2017 and has continued since then.

22. Prior to access starting at Merrymount in December 2017 her last visit with S.C. was on July 16, 2017 at her sisters.

23. B.C. has never facilitated phone contact between her and S.C. and she has never spoken to S.C. on the phone.

24. She is currently prescribed lorazepam which she takes as needed for anxiety.

25. She denied ever attempting or considering suicide, but acknowledged making a reference to it in November 2016. She stated she was overwhelmed at the time but that she was not serious.

[29] M.T.’s mother L.T. testified as follows:

1. She is a retired courtroom clerk who resides with her husband in Atwood, Ontario. She was with M.T. when S.C. was born and up to November 2016 frequently helped with babysitting.

2. She last saw S.C. on April 26, 2017. She had hoped M.T.’s access would have progressed further.

3. After the court order of July 9, 2018 that added a term for access as agreed with a police assistance clause in favour of B.C., she texted B.C. to offer to facilitate access.

4. This did not happen as B.C. was only agreeable to S.C. seeing her but not M.T. She did not pursue access independently of M.T. because she wanted M.T. to have access.

5. She acknowledged that M.T. was overwhelmed and “frazzled” in November 2016 but that she believes her daughter is a different person now and is much calmer and coping better in spite of the ongoing stress from this court proceeding, and the limited and supervised access she has with S.C..

6. She was aware of M.T.’s diagnosis of Borderline Personality Disorder, but not that she had yet to register for the Dialectical Behavioural Therapy that was recommended.

[30] M.T.’s sister M.H. testified as follows:

1. She resides in Acton, Ontario with her husband H.H., and their two children.

2. She was the caregiver for S.C. from November 2016 to April 2017 as a result of CAS intervention. S.C. went to reside at B.C.’s in April 2017.

3. She last saw S.C. in July 2017 when she provided supervision so S.C. and her siblings could attend a family reunion with M.T. in Owen Sound. After the reunion she contacted CAS after observing a scratch on S.C.’s leg which S.C. disclosed was caused by L.A. scratching her. S.C. also disclosed to her that B.C. hit her with a belt. CAS did not verify the allegations. She sought to file an application seeking custody of S.C. but did not pursue it.

4. She acknowledged in cross-examination that there may have been times when she did not actively or at all times supervise M.T. with S.C..

5. She acknowledged that B.C. offered to meet her in a park so she could see S.C. but she refused because she did not want to have more access than M.T..

[31] M.T.’s brother-in-law H.H. testified that he last saw S.C. in April 2017. He stated he was aware of M.T.’s diagnosis but not of any treatment she may have received.

[32] Jessica Cowling, the clinical investigator for the OCL, testified and her report was filed in evidence.

[33] She has a BA, BSW, and a Master’s degree in social work which she obtained in 2014. She was employed in child protection from 2009-2015, and was added to the OCL panel as a clinical investigator in early January 2017.

[34] She commenced her investigation at the end of January 2018 and provided the parties with her report dated June 21, 2018.

[35] Ms. Cowling identified the concerns raised by the parents as follows, which corresponded to what the parties stated in their testimony at trial:

1. B.C.’s primary concern is with M.T.’s mental health and emotional stability and their potential impact on S.C..

2. M.T. took the position that B.C. is trying to keep S.C. from her and, “trying to ruin her life”, and she believes B.C. only wants S.C. for the money and is not actually interested in parenting her.

[36] Ms. Cowling interviewed the parents on two separate occasions each, conducted one observational visit with each parent and S.C., and met privately with S.C. on two occasions.

[37] Ms. Cowling interviewed collaterals including B.C.’s partner L.A., the intake worker from Dufferin CAS, and Dr. N. Singh (M.T.’s family physician).

[38] In addition to reviewing the pleadings Ms. Cowling received written reports from the following collaterals:

1. Hamilton, Orangeville, and Waterloo Police Service, and the OPP;

2. Family and Children Services of Niagara and Oxford;

3. Dr. Haggith, psychiatrist;

4. Merrymount Children’s Centre;

5. Thames Valley District School Board.

[39] Ms. Cowling noted the following observations during her investigation:

1. She attended the parties’ homes and found them both to be child appropriate.

2. She observed an overall positive relationship between S.C. and B.C., and that the observation visit was “overall positive”. L.A. was present and Ms. Cowling observed both adults interacting with S.C. S.C. appeared “very comfortable” with her father.

3. She noted a concern during an interaction between L.A. and S.C. where L.A. spoke to her in a stern voice. This resulted in S.C. responding fearfully with B.C. appearing not to notice S.C.’s distressed response.

4. B.C. indicated a desire to Ms. Cowling for M.T. to ultimately have alternate weekends with S.C. and to involve her in decisions regarding S.C. He was agreeable to using an online communication application to assist them in corresponding.

5. The observation visit between M.T. and S.C. took place at Merrymount. She observed “very positive” interactions between M.T. and S.C. M.T. was affectionate and attentive and they shared a long goodbye during which S.C. clung to her mother and cried.

6. Ms. Cowling described S.C. as vibrant and happy, and who appeared to be meeting her developmental milestones. S.C. reported to her during her first interview that, “she felt happy when she lived with her mother and feels sad that she no longer lives with her”.

7. M.T. commented to her during the investigation that the fathers of her children were out to ruin her life, and expressed that the protection services involved were attempting to sabotage her relationship with her children.

8. During her final interview M.T. became upset and emotional and raised her voice and expressed anger towards the fathers of her children and the professionals involved. M.T. stated that, “I just want to kill them” referring to B.C. and the father of D.P. and L.P. She also referred to L.A. as a “stupid bitch”.

9. With respect to M.T. stating a desire to kill B.C., Ms. Cowling wrote in her report that that, “although this was not assessed to be a serious threat of harm, it does indicate a level of animosity between the parents”.

[40] Ms. Cowling received information from Niagara CAS which outlined the following involvement:

1. In November 2016 the CAS was contacted by school staff who observed M.T. to be very upset with the children. Staff overheard her tell her daughters D.P. and L.P. that she would not be picking them up after school and that child protective services would be picking them up instead. That same day, L.P. told her teacher that her mother put S.C. in the basement for “long” periods of time when S.C. cries or is acting out.

2. The CAS interviewed D.P. and L.P. and verified protection concerns after the children made various disclosures concerning M.T. being overwhelmed, angry and swearing, threatening to kill herself, that she had pulled the children’s hair, and on one occasion slapped L.P. in the face repeatedly.

3. The records outlined that M.T. acknowledged to the worker that she felt frequently overwhelmed and had gotten physical with her children at times. M.T. agreed to a temporary arrangement where the children went to her sister M.H.’s home. B.C. was contacted and agreed with this plan.

[41] Ms. Cowling received information from Oxford CAS which outlined that in May 2017 Dufferin CAS requested that it conduct an assessment of B.C.’s home.

[42] The report outlined that in July 2017, M.H. had contacted the Society alleging that S.C. had disclosed being hit with a belt by B.C. and scratched. Oxford CAS investigated and did not verify the allegations. B.C. and L.A. denied any physical discipline, although B.C. admitted he does joke with the older children that he would use a belt on them if they did not cooperate. He was cautioned to refrain from making this threat. S.C. was interviewed and did not report any concerns.

[43] Ms. Cowling received a written report from Dr. Y. Haggith, psychiatrist, who conducted an evaluation on M.T. over 2 separate appointments in the fall of 2017 as a term of the voluntary service agreement. Ms. Cowling provided the following summary of the report:

“Dr. Haggith provided a diagnosis of Borderline Personality Disorder and described that this personality type can make it difficult to regulate or handle emotions or control impulses. She further states that people with this diagnosis often react with intense emotions to small changes in their environment, and experience constant emotional pain. Dr. Haggith indicates that she is not in a position to comment on M.T.’s parenting capacity, however, she did state that M.T.’s presentation at the time of the assessment did not appear to preclude her from regaining custody of her children.”

[44] Dr. Haggith prescribed medication to assist M.T. in managing her depression and anxiety symptoms and recommended that she participate in Dialectical Behavioural Therapy (DBT), in addition to providing online and written resources for her.

[45] Ms. Cowling reviewed the supervised access records from Merrymount up to June 2018 and noted that M.T. had positive interactions with S.C. during visits, but that concerns have arisen at times about her interactions with staff. She noted that in January 2017 M.T. became significantly escalated with staff around the Centre’s washroom policy.

[46] Ms. Cowling made recommendations including the following:

1. Sole custody to B.C., including a term that he make reasonable efforts to communicate with M.T. on major decisions.

2. M.T. to have independent access to health and education information regarding S.C..

3. The parties to utilize a communication app to assist with the exchange of information.

4. M.T.’s access remained supervised.

5. M.T. to follow through with the DBT, and both parents participate in attachment-based programming.

[47] B.C. did not dispute the factual basis of the OCL report or the recommendations made.

[48] M.T. acknowledged making the comments to the clinical investigator about L.A. and wanting to kill B.C., and that they were inappropriate and made out of frustration. M.T. acknowledged making the inappropriate comments to the school, and making a reference to suicide, however she stated she did not intend to harm herself and has never attempted to harm herself. She also denied ever getting physical with the children as outlined in the CAS reports.

[49] The Report of the Office of the Children’s Lawyer is not an expert report such as might be had under s. 30 of the Children’s Law Reform Act. The author of an OCL report is a fact finder. Section 112 of the Courts of Justice Act does give the author of the report, on behalf of the Office of the Children’s Lawyer, the power to make recommendations on the resolution of the issues but the recommendations are only a starting point not the last word. Ganie v. Ganie, 2015 ONSC 6330.

[50] The weight that the court assigns to the clinical investigator’s report depends on the nature and extent of the investigation and the facts upon which the assessor based her recommendations. The court needs to examine how the assessment was conducted, including the process used, how many visits there were, and whether the standard assessment guidelines were met, when determining what value if any to place on the assessment and its recommendations. Ganie, supra, para. 20.

[51] The Court of Appeal in Woodhouse v. Woodhouse, 1996 902 (Ont.C.A.) confirmed that an assessor’s evidence was not determinative of the issues before the court, but was merely one piece of the evidence for the court’s consideration. In other words, it is up to the court, not the assessor, to determine the facts.

[52] With respect to the OCL report and Ms. Cowling’s testimony I have carefully considered the observations that she made during her investigation, and the facts provided to her by collateral sources, including numerous professional collaterals whose personal knowledge and impartiality give credence to the information they provided.

[53] I found Ms. Cowling’s evidence to be clear, convincing, and cogent. She sought the appropriate information from the professional collaterals and conducted the appropriate interviews with the parents and child.

[54] However it would have been appropriate for Ms. Cowling to have interviewed M.T.’s sister and mother as part of her investigation. M.H. was a primary caregiver of S.C. for a significant period during this matter and clearly part of the unfolding circumstances since the CAS intervened in November 2016. Further, and more importantly, in light of Ms. Cowling’s recommendation that M.T.’s access remained supervised on a final basis, her investigation ought to have included a consideration of whether there was family available to supervise in order to permit S.C. having more than two hours a week with her mother in an institutional setting.

[55] I find that the evidence that was provided by the parties and on their behalf has not cast substantial doubt on the accuracy of Ms. Cowling’s observations or the information she received from collateral sources. B.C. did not dispute the OCL report. M.T. did not dispute Ms. Cowling’s observations or the information she received from professional collaterals except to deny that she had been physical with any of the children. She also disputed the accuracy of her diagnosis of Borderline Personality Disorder but acknowledged taking no steps to have the diagnosis reviewed. She also disagreed with the recommendations made in the report, however acknowledged being overwhelmed in November 2016 and that she was having difficulty coping parenting all the children at that time.

[56] In the circumstances I do not accept her denial of any physicality towards the children up to November 2016. The report outlines that M.T. admitted to the CAS worker during the investigation that she “gets physical” with her children when overwhelmed, and felt as though she had “snapped” and was unable to cope with their behaviour without hitting them. The report also noted that M.T. acknowledged to the CAS worker that she had pulled the children’s hair and thrown things at them. The detail and specificity of the acknowledgments attributed to M.T. lend credence to them.

[57] M.T. has not successfully challenged or discredited the observations made by Ms. Cowling of the parties and children, and I accept her evidence in this regard. I also accept the factual basis of Ms. Cowling’s report as outlined in the information received from the professional collaterals including the various protection services.

[58] I do not accept M.T.’s allegation that B.C.’s motivation in this matter is a desire to ruin her life, or that his primary interest is with money rather than parenting S.C..

[59] Prior to CAS intervention in the fall of 2016 B.C. was voluntarily making child support payments pursuant to an agreement between the parties. He also assisted M.T. with first and last month’s rent and with the use of his car when the parties separated prior to S.C.’s birth. Further, when S.C. was removed from M.T.’s care he was contacted by the CAS and indicated his agreement to the plan that S.C. go to M.T.’s sisters until the issues were addressed. He only sought to have S.C. in his care in April 2017 when advised by the CAS that it did not support a return of S.C. to M.T., and that M.T.’s sister was no longer available to provide primary care.

[60] B.C. also assisted with supervising M.T.’s access after S.C. came to reside with him. This only changed after it became clear that there were difficulties between the parties at access and after M.H.’s referral to CAS.

[61] I accept L.A.’s evidence that during one of the visits in their home when she attempted to help settle S.C. that M.T. said to her in front of S.C. that, “you are not the mother”. M.T. did not dispute making this statement and both parties and L.A. agreed that M.T. having supervised access in their home was not appropriate.

[62] M.T.’s characterization of B.C.’s motivations is also at odds with Ms. Cowling’s observations that S.C. and B.C. had an overall positive relationship and that S.C. appeared “very comfortable” with her father.

[63] These factors do not suggest to me that B.C. has or is attempting to ruin M.T.’s life or that he is not interested in parenting S.C. Rather they suggest that he was attempting to be supportive and only sought to have S.C. in his care when the CAS indicated it would not support a return to M.T. Even after this he, his partner, and sister assisted with facilitating some supervised access.

[64] I also do not accept M.T.’s contention that S.C. is afraid of her stepmother L.A..

[65] Her basis for this allegation is primarily the observation by Ms. Cowling that S.C. responded fearfully when L.A. spoke to her in a stern voice. M.T. also directed L.A. to the Merrymount record dated March 17, 2018 wherein staff noted that “step mom drops S.C. off-no goodbyes or hugs and kisses exchanged,” as evidence that there is not a positive relationship between S.C. and L.A. These are examples of L.A. not displaying affection and reacting harshly, but do not in my view support a finding that S.C. is afraid of her.

[66] Ms. Cowling noted no other concerns with L.A.’s interactions, which she had the opportunity to observe during the observational visit, and S.C. did not disclose any concerns to her regarding L.A. in either of her private interviews. Further, the Merrymount records and CAS reports summarized by the OCL disclose no concerns raised by S.C. regarding L.A. or B.C. On their own the 2 examples of L.A.’s interactions with S.C. do not support a finding that S.C. is frightened of L.A. when considered in the context of all the evidence. However they do support a finding that, as Ms. Cowling stated in her report when referring to B.C. and L.A., “some of the parenting S.C. is currently receiving appears to be rather rigid and harsh at times”.

[67] I accept M.T.’s evidence that she is currently having D.P. and L.P. on alternate weekends pursuant to the current arrangements with their father. She did not provide a copy of a court order, which may have been sufficient grounds for me to reject that claim were it not for the fact that B.C. did not refute that this was the case. He was in a position to do so on the basis of his own testimony that he has maintained regular contact with D.P. and L.P.’s father.

[68] With respect to M.T.’s threat to kill B.C., I agree with Ms. Cowling that while not a serious threat of harm it is indicative of the level of animosity M.T. has displayed at times towards B.C.

[69] Overall, the evidence establishes that M.T. was having significant difficulty coping in November 2016 to an extent that justified S.C. being removed from her care. M.T.’s behaviour and comments at the school in November 2016 and the results of the subsequent investigation by the CAS which included numerous disclosures by the children as outlined in the CAS reports, show a single mother unable to cope and reacting in ways, including physically, that put S.C. at risk of harm.

[70] M.T. was diagnosed by Dr. Haggith with Borderline Personality Disorder (BPD) which she described as a personality style that can make it difficult to regulate or handle emotions and control impulses. This characterization is consistent with M.T.’s behaviour in November 2016 and consistent with some of her subsequent interactions with Society staff, Merrymount staff in January 2017, and Ms. Cowling during her investigation.

[71] M.T. disputes the diagnosis but has taken no steps to be reassessed. More importantly she acknowledged not following through with enrolling in the DBT that was recommended in the fall of 2017 because there was a two-year waiting list. Had M.T. made more efforts to pursue this therapy she in all likelihood would be further along with respect to advancing her access with S.C.

[72] B.C. advised Ms. Cowling and testified at trial that ideally he would want S.C. to have alternate weekends with M.T. but he wants it to be safe, and his main concern is M.T.’s mental health. Ms. Beauchamp suggested in submissions that if M.T. had followed through with the DBT the parties would likely not be having a trial. I took this to mean that her client may have been in a position to support unsupervised access if the therapy had been successfully followed through with. Unfortunately M.T. has not pursued this therapy to date, and she is strongly encouraged to do so.

[73] S.C. has resided with her father since April 2017 and I am satisfied that he has and will provide her with stability and structure and ensure that her needs are met. The protection services involved have never verified concerns with his parenting and supported S.C.’s placement in his care.

[74] S.C. started school while in B.C.’s care and Ms. Cowling noted that her student record indicated that she had made gains since the beginning of the academic year and was an active participant in classroom activities. Ms. Cowling stated that the report from the school also noted many positive comments about S.C.’s first year.

[75] Further, B.C. has maintained gainful employment and stable housing. Since the parties were together in 2012 he has moved only once in order to have more space for the family.

[76] By contrast, M.T. continues to have significant housing instability. She acknowledged moving 11 times since January 2013 within and between Shelburne, Orangeville, St. Catharines, Niagara Falls, Guelph, Kitchener, and Cambridge. She has only recently obtained her current housing and employment in November/December 2018. She has changed her residence twice since August 2018.

[77] M.T. resisted in cross-examination the notion that the number of moves she has had since separation is evidence of an inability to maintain appropriate housing and general instability on her part, on the basis that all the moves were necessary for reasons beyond her control.

[78] I accept that that some of the moves may have been for reasons beyond her control, however, 11 moves between 6 communities since 2013 goes beyond what would be reasonable. Frequent moves by one parent over a short period may constitute a lack of stability and structure contrary to the best interests of the child: Madill v. Madill, 2014 ONSC 7227 (Interim Order); Lambert v Limoges, 2015 ONSC 6487.

[79] M.T. is hopeful that her current employment and housing will be stable, however, in all the circumstances her significant number of moves establish a lack of stability which would be contrary to the best interests of S.C. if she were residing there as her primary residence.

[80] Overall, I am of the view that the child’s best interests would be served in the circumstances by an order that she remain in the primary care of B.C. at this time. The issue, then, becomes what custodial order would be appropriate in the circumstances.

[81] The parties have very limited ability to communicate and there is no evidence of effective historical communication or problem-solving, which, given S.C.’s young age would be particularly important for joint custody to be successful. The parties lived together for only two months, and both acknowledged difficulties communicating.

[82] I have no confidence that joint custody would produce effective and child focused communications or timely decisions. Rather, any requirement that imposes an obligation on the parties to communicate and cooperate will likely only perpetuate hostilities and lead to power struggles and indecision.

[83] Further, M.T.’s level of combativeness and hostility towards B.C. and L.A. as evidenced by her position and comments as outlined by Ms. Cowling, which M.T. acknowledged in her testimony, militates against an order for joint custody.

[84] In the circumstances the best interests of S.C. support an order for sole custody in favour of B.C..

Access

[85] The issue that remains is what order for access would be in S.C.’s best interest based on the current circumstances.

[86] B.C. testified that he feels M.T.’s access should remain supervised because of concerns for M.T.’s mental health and that he feels M.T. is angry and suicidal and may harm S.C. He wants M.T. to address her mental health, stabilize her life, and for S.C. to be older before access is unsupervised.

[87] Ms. Cowling’s concerns which she felt justify continuing supervision included that M.T. has difficulty regulating herself when dealing with third-party services, and used her interactions with the CAS, Merrymount staff, and herself as examples. The fact that M.T. had not pursued the DBT was also a concern.

[88] A determination of what access order is in S.C.’s best interests requires a consideration of the factors outlined in s.24(2) of the CLRA, including an examination of the extent of any risk to S.C. of unsupervised access, and whether that risk is sufficient to warrant continued and indefinite supervision.

[89] The issue of risk was addressed by the Supreme Court of Canada in Young v. Young, 1993 34 (SCC), [1993] 4 S.C.R. 3 (S.C.C.):

139 …[The] court must determine, based on a consideration of the evidence as a whole, the existence and the extent of any “risk of harm” to the child. It requires the court, regardless of whether the evidence meets the civil standard of proof, to consider all the evidence and circumstances to assess the existence and the degree of risk to the child of harm (whether because of alleged sexual abuse or some other alleged reason). The court’s determination of the existence and degree of risk of harm to the child will fall along a continuum from no risk to a certainty the risk will materialize. The court, where there is any possibility the risk may materialize, will also have to consider the degree of harm to the child if the risk materializes. Where this risk of harm falls along this continuum will determine the weight to be given to this factor. This is then only one factor in determining what is in the best interests of the child. The court must also go on to consider any other risks of harm (and the degree of those risks) to the child and any benefits (and the degree of those benefits) to the child of the proposed order with the ultimate goal being the determination of what order will be in the child’s best interests going forward.

[90] While M.T. has not taken steps to follow through with the DBT, she has successfully undertaken numerous counselling programs including anger management, the Triple P parenting program and more recently the Understanding Me Program. Although these programs do not address her diagnosis they illustrate to me that she has taken positive and proactive steps to address the parenting issues evident at the time of CAS intervention, and more importantly that she is able to interact and follow through appropriately with service providers.

[91] Further, when Dr. Haggith made the diagnosis in the fall of 2017 she indicated no safety concerns and noted that while she was not in a position to comment on M.T.’s parenting capacity, she felt that M.T.’s presentation at the time of the assessment in November 2017 did not preclude her from regaining custody of the children.

[92] The court also has the benefit of the Merrymount records where M.T. has been exercising access since December 2017. The records indicate M.T. contacted Merrymount to initiate access on August 30, 2017. B.C. completed his intake at Merrymount on November 2, 2017 after cancelling an earlier appointment and attending at the wrong time for a follow-up appointment.

[93] The supervised access did not immediately begin after B.C.’s intake and was further delayed because Merrymount wanted a letter from CAS that was not provided until December 12, 2017. M.T.’s first supervised visit was December 23, 2017 and S.C. had not seen her mother since July 16, 2017.

[94] Given the length of time before M.T. was able to see S.C. again some frustration on her part would have been reasonable. However, the records from Merrymount outlining all the communications between the parties and staff illustrate that up to when access finally commenced in late December 2017 that M.T. interacted with staff entirely appropriately.

[95] With respect to M.T.’s other interactions with Merrymount staff, apart from her inappropriate and combative interactions in January 2018 when dealing with the washroom policies (which was the only example outlined by Ms. Cowling) there were no other significant examples in the vast number of communications and visits of any concerns with M.T.’s behaviour and ability to appropriately interact with staff.

[96] Further, the interactions between S.C. and M.T. at Merrymount were noted as extremely positive with references to S.C. expressing that she missed her mother and sisters. On one occasion on April 28, 2018 staff observed that M.T. made efforts to not let S.C. see that she was tearing up, and on several occasions M.T. reacted appropriately and supportively when S.C. was upset at the end of the visit. Ms. Cowling also noted no concerns with the interactions between M.T. and S.C. and described them as “very positive”.

[97] Overall I am not convinced that M.T. presently displays a significant difficulty regulating her behaviour with third-party services.

[98] I have previously rejected M.T.’s allegations that B.C. was actively trying to “ruin her life” by intentionally interfering with his relationship with S.C., however, I am not convinced that he has done all that he could and should have done to ensure that S.C. has sufficient and meaningful time with her mother and siblings.

[99] I reach this conclusion for a number of reasons. Prior to supervised access starting on December 23, 2017 S.C. had not seen her mother since July 2017. The delay in commencing access was for a number of reasons including issues with scheduling at Merrymount and receiving correspondence from CAS. However, the delay was in part caused by B.C. not being more active in scheduling intake. He cancelled his first intake appointment on October 6, 2017, and went at the wrong time for the second scheduled intake on October 20, 2017, which required it to be further rescheduled to November 2, 2017.

[100] Ms. Cowling noted as a strength in her report that B.C. was ensuring that S.C. has regular time with her siblings. B.C. testified that he supported sibling access at supervised visits and on the basis that he has been in direct communication with the father of D.P. and L.P. for the purpose of arranging independent access.

[101] I do not accept the sincerity of B.C.’s statement that he supports sibling access. In cross-examination he acknowledged that in fact S.C. had not seen her siblings since May 2018.

[102] B.C. further acknowledged in cross-examination that he had opposed the siblings, the maternal grandmother, and aunt from attending supervised access.

[103] B.C. testified that the reason for not wanting anyone else at M.T.’s visits was that he wanted it “clear” in the court order, and because of a fear that her family would take S.C.

[104] M.T. did acknowledge not returning D.P. and L.P. to their father as required after a weekend visit in April 2018. M.T.’s failure to return the children as required on this occasion justifies some concern on B.C.’s part, however, I do not accept his position on this issue regarding S.C. as reasonable or child focused for reasons including the following:

1. Access was at the Merrymount Children’s Centre which is an independent and fully supervised setting. There is no evidence that M.T. ever sought to remove S.C. from there, and no concerns were raised by staff that there was a risk that the child would be removed by her mother or anyone else.

2. There was a clear order dated December 11, 2017 that directed, on an interim basis, that M.T. have supervised access to S.C. at Merrymount at least once per week. Further, and more importantly, the court made a further order on July 9, 2018 that continued the supervised access and added a term that there be additional access as agreed between the parties with any unsupervised access being subject to a police assistance clause in favour of B.C..

[105] The Merrymount records for March 10, 2018, which was one of the last times S.C. saw her siblings when they were permitted to attend Merrymount, outlined that S.C. was so excited to be able to see her siblings again that she was shaking and crying. It is clear that seeing her siblings is deeply meaningful for her.

[106] B.C. has not permitted or facilitated contact since May 2018 between S.C. and her siblings. This has required M.T. to use a babysitter to watch D.P. and L.P. on those weekends when they are with her and she attends for her visit with S.C..

[107] In the circumstances there was no reasonable justification for B.C. to refuse to permit S.C.’s siblings, aunt, and grandmother from attending visits. Going forward any risk of M.T. not returning the child after access can be mitigated by a continuation of the police assistance clause in favour of B.C..

[108] There appears to have never been more than one visit per week in spite of the order specifying at least one visit per week, and no additional access was facilitated after the police assistance clause was added. L.T. offered to facilitate the supervision and B.C. refused. It was unclear on the evidence why B.C. would not have made these arrangements for his daughter’s sake and he offered no specific evidence of why L.T. would not have been an appropriate supervisor.

[109] The Merrymount records include communications between staff and B.C. and L.A. On one occasion M.T. had requested permission from B.C. to let her mother attend the visit on October 27, 2018. The email response from B.C. and L.A. when Merrymount made this request on her behalf dated October 18, 2018 stated in part,

“… M.T. is supposed to be getting herself better parenting skills with S.C. (as OCL has requested) with a worker.. Which she has not done among other things..please let M.T. know that we are NOT excepting ANY requests (for a second time) until court is finished and shes shown any co parenting with us [SIC]”.

[110] M.T. requested a makeup visit because of the Christmas closure at Merrymount and when staff spoke to L.A. on November 24, 2018 and asked her which of the available dates would work for the Christmas makeup visit L.A. responded, “We are not doing that. She pushed for a trial so she can wait for court”.

[111] Access is the right of the child. A custodial parent must not just accommodate access, they must facilitate it. Scrivo v. Scrivo, 2012 ONSC 2727, 2012 CarswellOnt 5545; Tran v. Chen, 2012 ONSC 3994, 2012 CarswellOnt 8551.

[112] These examples illustrate to me that B.C. has not done all that would be reasonably expected to ensure S.C. maintains regular and meaningful contact with M.T. and her siblings, and he has not acted in S.C.’s best interests in this regard.

[113] The current circumstances suggest that M.T. has worked hard to cooperate and successfully complete some programming, and she has for the most part worked cooperatively with Merrymount in spite of the delays and difficulty she has experienced arranging for access and having her other children and family participate. As previously stated her failure to pursue the DBT has been a major impediment in moving her access forward and she is strongly encouraged to pursue it now.

[114] Since Merrymount access started, her direct interactions with S.C. have been extremely positive and child focused. This was confirmed by Ms. Cowling based on her observations and in the Merrymount records. B.C. acknowledged in his testimony that in spite of some difficulties when access at Merrymount began that it has improved and that S.C. likes to attend visits.

[115] The issue of M.T.’s mental health diagnosis and the fact that she has not pursued therapy for BPD are not on their own sufficient to warrant continued supervision. There must be specific evidence that establishes that the mental health issues experienced by a parent affects their ability to appropriately parent, and have or will likely have a direct and negative impact on the child’s best interests.

[116] There is no evidence to support that M.T. is currently suicidal or that she has behaved in a manner at Merrymount that has put her daughter at a physical risk of harm. She has successfully completed anger management and parenting programs, and established a track record of very positive interactions with her daughter over 12 months of supervised access. The CAS is not involved with the family at this time, and M.T. has her other children on alternate weekends and, apart from the incident in April 2018 when she failed to return them, there was no other evidence of current concerns.

[117] There is a risk based on M.T.’s prior difficulties and mental health diagnosis, however, the risk is presently significantly less than it was in November 2016. The current risk relates to the possibility that concerns may materialize. The issues in November 2016 were in part the result of M.T. being overwhelmed because she was a single parent of three children at the time. This risk is mitigated by M.T. not being the primary caregiver, and would be further mitigated if the unsupervised access is exercised to the extent possible when S.C.’s older siblings are present.

[118] Additionally, any risk must also be balanced against the benefits to S.C. of expanding the access and removing the need for supervision. S.C. clearly has a close and strong relationship with her mother and would benefit from more time with her outside of an institutional setting. It would also permit S.C. to have regular contact with her siblings which would also be in her best interests.

[119] The court has the authority in appropriate cases to order supervised access on a final basis if the risk factors have not or are not expected to diminish. As noted above the circumstances in November 2016 did establish a level of risk to S.C. that justified her removal from M.T. and that any access be supervised at that time.

[120] However, when the entirety of the evidence is considered the benefits to S.C. of increased and unsupervised access to her mother outweigh the risks as they presently exist.

[121] While I am satisfied that the best interests of S.C. are served by an order that she remain in the primary care of B.C. pursuant to a sole custody order, I am not convinced that the present circumstances warrant that M.T.’s access remains supervised.

[122] The test for determining custody and access is what order is in the best interests of the child. The issue is not to reward or punish either parent but to put an arrangement in place that will best serve the interests of the child. Having considered all the factors outlined herein, and in s.24 (2) of the CLRA, the best interests of S.C. support an order for sole custody in favour of the applicant with regular and unsupervised access for the respondent.

Child Support

[123] S.C. has continued to reside in the primary care of B.C. since May 2017. He sought child support in his application dated August 29, 2017, and he seeks child support commencing September 1, 2017.

[124] M.T. acknowledges having paid no child support. She testified that she is of limited means and that B.C., as a diesel mechanic, makes a substantial income and does not require her help to support S.C..

[125] She recently started full-time employment at Canteen Canada and makes $16.06 per hour. This translates to an annual income of $33,400.

[126] The only other evidence that is before the court regarding her income is that she testified that, prior to her current employment, she worked for minimum wage at Tim Horton’s for 6 months between February and October, 2018. A full-time minimum wage income of $14 an hour equates to an annual income of $29,120 per year.

[127] Child support is the right of the child. The Family Law Act imposes an obligation on every parent to provide support for his or her minor children to the extent that the parent is capable of doing so. The purposes of an order for support of a child is to recognize that each parent has an obligation to provide support for the child, and to apportion the obligation according to the Child Support Guidelines.

[128] The Family Law Act requires that a court making an order for the support of the child to do so in accordance with the Child Support Guidelines. Implementing the Guidelines is the method by which the court gives effect to the joint and ongoing obligation of parents to support their children.

[129] The respondent is liable for child support, regardless of the income of the applicant. In all the circumstances and based on the limited evidence of income before the court, it is appropriate that support commence February 1, 2018 when the respondent began employment at Tim Horton’s.

[130] Between February 1, 2018 and October 31, 2018 the respondent shall be liable for child support in the amount of $248 per month based on projected annual income during that period of $29,120. This results in arrears up to October 31, 2018 of $2232.

[131] Commencing November 1, 2018 and on an ongoing basis child support shall be payable at a rate of $286 per month based on the respondent’s current full-time employment at Canteen Canada at $16.06 per hour, or $33,404 per annum.

[132] The arrears owing shall be paid at a rate of $40 per month until paid in full. This repayment rate balances the relatively modest financial circumstances of the payor, while recognizing the obligation of a parent to support their children and the recipient’s need to receive that support.

[133] On the basis of all the considerations outlined herein, there shall be a final order as follows:

1. Sole custody of the child in favour of the applicant.

2. M.T. shall be entitled to communicate and receive information directly from any third party involved in the health, welfare, and education of the child, and B.C. shall keep M.T. updated with the contact information of any third parties involved with the child.

3. Neither party shall enroll the child in any extracurricular activities that will impact the other party’s periods of care and control of the child, without their consent.

4. Unless otherwise agreed, the parties shall forthwith utilize a communication app for the purposes of all non-emergency contact, and such contact will only be used to address issues related to S.C.;

5. The parties will ensure that the other is immediately advised of any change in address or telephone number.

6. The parties shall not communicate with each other in any manner during access exchanges, or otherwise in the presence of the child.

7. Neither party shall speak in a derogatory manner about the other party, or their family in the presence of S.C., and shall ensure that she is not exposed to any derogatory language about the other party or their family.

8. The respondent shall have unsupervised access to the child as follows, unless otherwise agreed in writing by the parties:

a. unless the schedule is modified for special occasions as outlined herein, alternate weekends from Friday at 6 PM to Sunday at 6 PM, to coincide with the weekends that she presently has her other children.

b. each party to have two nonconsecutive one-week periods of uninterrupted time with the child during the summer holidays. M.T. to advise by May 1 of each year which weeks she is choosing with B.C. to advise by June 1 of each year. These weeks shall comprise the addition of Monday to Friday onto a weekend that a parent already has S.C. pursuant to the regular schedule;

c. if Father’s Day falls on an access weekend, the child shall be returned to the care of B.C. at 10 AM;

d. on Mother’s Day, if not an access weekend S.C. shall be in M.T.’s care from 10 AM to 6 PM;

e. in even numbered years the child shall spend Easter weekend with M.T. and Thanksgiving weekend with B.C., to alternate in odd numbered years. M.T.’s access on these weekends will commence Friday at 5 PM to Monday at 6 PM;

f. the parties will share March break with the regular weekend access continuing with the child being with M.T. in odd numbered years from Monday to Friday, and in even numbered years with B.C. from Monday to Friday;

g. for the Christmas holidays commencing in 2019 access between M.T. and the child shall begin at 10 AM on the first day of the school Christmas break until Christmas day at 1 PM in odd numbered years and on Christmas Day at 1 PM until January 1 at 5 PM in even numbered years, with the child being with B.C. on the opposite days each year regardless of the regular access schedule;

h. such further and other times as agreed in advance between the parties.

9. A police assistance clause to issue in favour of B.C..

10. Child support arrears owing up to October 31, 2018 are fixed in the amount of $2232.

11. Commencing November 1, 2018 and monthly thereafter the respondent shall pay to the applicant child support in the amount of $286 per month for the support of one child on an annual income of $33,404.

12. Arrears owing under this order shall be repaid at a rate of $40 per month until paid in full.

The parties are encouraged to agree upon costs, if any, in this matter. In the event that the parties do not agree, any party seeking costs will contact the trial coordinator by no later than January 25, 2019, to arrange a return date for submissions on that issue. If no court date is sought prior to this deadline, the parties will be deemed to have resolved the matter of costs.

Released: January 18, 2019

Signed: “Justice S. E. J. Paull”