Court File and Parties
Court File No.: Brampton 1355/16 Date: June 14, 2019 Ontario Court of Justice
Between:
K.F.L. Applicant
— AND —
L.M. Respondent
— AND —
S.B. Respondent
Before: Justice A.W.J. Sullivan
Heard on: April 30, May 1, 2, 3, 2019
Reasons for Judgment released on: June 14, 2019
Counsel
Hugh M. Evans — counsel for the applicant, K.F.L.
Mark Trenholme and Rita V. Gonsalves — counsel for the respondent, L.M.
S.B. — on his own behalf
Adrian Baker — counsel for the Office of the Children's Lawyer, legal representative for the child, J.
SULLIVAN J.:
Introduction
[1] This is the decision from a trial heard on April 30 to May 3, 2019.
[2] The names of the parties to this trial have been abbreviated given the previous Child Protection court file/history to this file.
[3] The moving party in this trial is Ms. K.F.L., who is the biological mother of the subject child in this trial, J.F.L., born […], 2006 (J).
[4] Mr. B. is the child's father. He is supporting Ms. F.L.'s Motion to Change and does not present a separate plan for J.
[5] Ms. M. is the principal respondent in this trial and the paternal grandmother to J.
[6] Ms. F.L. brought a Motion to Change filed on December 21, 2016, to my Final Order dated January 5, 2016, which was made at the conclusion of a Child Protection Application. This Final Order granted Ms. M. sole custody with access to the parents at her discretion.
[7] In this litigation, on August 11, 2019, the child J. was assigned a Children's Lawyer, Mr. Adrian Baker, to represent her and assist all in understanding her views and preferences.
[8] Mr. Baker had the assistance of an OCL Clinician, Ms. L. Barlas (MSW), from December 21, 2017.
[9] On July 5, 2017, Justice Parent granted an order on a contested motion providing Ms. F.L. and Mr. B. access with J. of three consecutive weekends with them to agree how to share this time between them.
Relevant Evidence Considered in This Trial
Ms. F.L. Testified to the Following:
[10] She is the biological mother of J. born […], 2006.
[11] She is seeking a variation of the 2016 Order granting custody of J. to Ms. M. as she believes there have been significant changes in her life that permit a change in custody of J.
[12] She is a graduate of Everest College where she completed her dental assistant program. She last worked in 2009. She is currently on ODSP but was unable to confirm the reasons why.
[13] Her current psychiatric health is much improved from in the past. She is not taking any medication for any mental health problems. In the past she had seen Dr. Senthelal, but is not seeing him presently.
[14] In questioning, Ms. F.L. advised that she is not certain what her diagnosis was for her mental health.
[15] She currently is residing on her own except for when her daughter is present. She has been living under current address since 2016; she rents at this location.
[16] She is pregnant and expecting this year. The father to this expected child died in a fall while visiting Guyana.
[17] She currently is having access with her daughter J. three weekends a month. This is pursuant to the temporary Order of Justice Parent reviewed above.
[18] J.'s dad, Mr. B., has been doing the pick-up and drop-off in order to avoid conflict between herself and Ms. M. Most if not all of communication is passed through Mr. B. as this avoids difficulty.
[19] Ms. F.L. testified that Mr. B. has a better working relationship with Ms. M. and therefore is able to facilitate the pick-up and drop-off. She and Ms. M. have poor communications.
[20] She indicated that she has not missed any weekends other than when there might have been some differences and arguments with J. which are further explained below.
[21] During the access weekends she spends time with her daughter either hanging out at home, cooking and watching movies as well as assisting J. with her homework. There have been occasional trips outside of the city such as to Niagara Falls. She has also taken trips with her daughter to Canada's Wonderland and the Science Centre.
[22] Ms. F.L. deposed that her daughter's current school, St. J. is less than five kilometres from the building in which she lives and is approximately a 10 to 15-minute bus ride. She indicated that it is her plan to be the one to take her daughter back and forth from school if J. was to reside with her. She also believes her plan would permit her daughter to remain in the Peel district for her secondary school, close to the neighborhood that she knows and her friends. She believes this would not be the plan with Ms. M. as she has moved closer into the GTA boundaries recently.
[23] Ms. F.L. explained that in the past she drove and does have a driver's license but does not have a car presently. She explained that unlike her relationship with Ms. M., she and Mr. B. have a good working relationship when it comes to their daughter.
[24] Generally at the present time Mr. B. will spend time with his daughter during the pick-up and drop-off. It was explained that on his way to deliver J. they will do some grocery shopping and other shopping. On occasion Mr. B. also brings his daughter over to his brother's home for visits.
[25] Ms. F.L. admitted that there was conflict in the past that caused her to call the police on Mr. B. Now they are civil and more mature in their communication unlike the past. They have a working relationship and are not romantically involved. Apparently this developed over time and since this Court's last order.
[26] She did admit to having emotional difficulties and a strong reaction in the past when she found out years ago that Mr. B. was dating her sister.
[27] When questioned she admitted to not having a relationship with her mother and her sister in any meaningful way although she has sent notes and called her mother around Mother's Day and other significant holidays. Other than this, however, she does not have a current relationship with her mother.
[28] This is different with her father whom she continues to have a relationship with as well as extended family members both here and in Peru.
[29] She would like to be able to travel with her daughter to Peru which she did in the past when J. was an infant and about 6 years old.
[30] When her daughter was an infant she had visited Peru on two occasions and remembers these trips fondly. She recalls the first was in approximately 2006 when J. was about eight months old. This was a two-month visit. The second time was in 2011 when J. was approximately 6 years old. For two weeks they visited Peru together. They stayed with her grandmother who has a large house. This is on a farm with all the amenities.
[31] If permitted to travel with her daughter, she has no intention of moving to Peru as Canada is her home and she considers herself Canadian as she grew up here.
[32] She admitted that her daughter would probably not remember much of her Peruvian extended family and in particular has limited ability to speak to them. She recalled teaching J. Spanish but that currently J. does not understand very much.
[33] Ms. F.L. outlined her strengths that would assist her in caring for her daughter. She explained that she is a really good listener.
[34] She testified that she never chose to leave J. with Ms. M. full-time. She recalls having a surgery around 2015 and it was after this that she began to have some emotional difficulties that led to Children's Aid involvement. It was never, however, her plan to give up J.
[35] She testified that she recalls living very close to Ms. M. during the CAS involvement. At the time Mr. B. lived with his mom and she was over at Ms. M.'s house regularly assisting in caring for J.
[36] It was after the 2016 Order that Ms. M. closed the door on Ms. F.L., stopping access.
[37] Ms. F.L. testified that she didn't speak with Ms. M. for at least two years.
[38] Ms. F.L. testified that there have been at least two occasions where she and her daughter have had difficulties during access visits.
[39] The second of these two events occurred on or about March 30, 2019. On this occasion she discovered J. speaking on her cellphone to a young boy from her school. She recalls asking J. about this boy and was informed that he was actually the boyfriend of one of J.'s girlfriends.
[40] Ms. F.L. testified that she felt that her daughter is too young at this point to talk with boys over the phone. She told her daughter to stop the call and based on advice that Ms. F.L. obtained through an internet article dealing with teens, she decided to take J.'s phone from her. Apparently she did this early in the morning when J. was asleep.
[41] It was Ms. F.L.'s plan to withhold the phone from J. for the balance of the weekend and return it to J. at her school on Monday. She testified that she informed J. of this and apparently when Ms. M. heard of this when J. was dropped off she reported it to the police along with J. who gave a statement regarding this to the police.
[42] Ms. F.L. testified that J. did not react well to being told to get off the phone. Ms. F.L. also testified that at times J. has been disrespectful to her, swearing at her and on one occasion swinging her arms at her. This has not happened often.
[43] Ms. F.L. testified that the phone was returned to J. at her school and that since that event J. has been over for visits which have gone well and the phone event is in the past.
[44] Ms. F.L. testified that around Easter of 2018 she recalled having the first argument with her daughter. On this occasion she discovered her daughter playing a video game called Charlie/Charlie. Ms. F.L. disapproved of this game, as it apparently revolves around communicating with the dead. She recalled at the time that J. was communicating with Ms. M. about this game and that Ms. M. approved of this game.
[45] Since the final custody Order was made in 2016, Ms. F.L. testified that Ms. M. has been emboldened such that Ms. M. denied access to Ms. F.L. and her daughter for the first year after the Order.
[46] Ms. F.L. recalls attempting to connect with Ms. M. through text messages which went unanswered. She kept trying and eventually this is what prompted her returning to court with this Motion to Change.
[47] Ms. F.L. did admit that on occasion when she didn't have visits through Ms. M. she would see her daughter when Mr. B. had visits. She also believes that Ms. M. was well aware of this as on occasion she would be present when Mr. B. would pick-up her daughter from Ms. M.
[48] Ms. F.L. explained that she also assists her daughter with her homework, taking her to the library to assist with some research and looking for resources. She recently helped J. in preparing a project which was a crime investigation that she worked on for two weekends. The first weekend J. prepared a rough copy of the project and on the second weekend completed the physical project. From Ms. F.L.'s understanding, J. received great marks for this at school. This is an example of her ability to be able to assist her daughter with her education now and in the future.
[49] Ms. F.L. explained that she has helped purchase clothes for her daughter as well as provide her with certain items for her school lunch and in particular she likes to have hot lunches.
[50] Ms. F.L. testified that it is her belief that J. would benefit by living with her as follows:
[51] J. would receive more support for her schooling as Ms. F.L. is handy with assisting in school work. Ms. F.L. testified that she knows her daughter has an independent educational plan (IEP) at school and when she found out about this she was not happy as she doesn't necessarily agree with the need for this. Ms. F.L. testified that as Ms. M. works she has less time to devote to J. This she suggested was Ms. M.'s parenting style with her own children.
[52] She admitted that she hasn't had much contact with her daughter's school except she did have a visit in March 2019 with the current principal to deal with an issue which was an altercation that J. had with another student. It was on this occasion that she was able to meet and talk with the new principal who was much more open to the sharing of information than the previous principal. It is Ms. F.L.'s position that Ms. M. told the previous school not to communicate with her and this is why she did not have much of any relationship with J.'s school until just very recently.
[53] If J. lived with her, she deposed that she would help her with her health and in particular her emotional health as Ms. F.L. explained that on some weekends her daughter has had a breakdown explaining to her mother that she does not like living with Ms. M. Ms. F.L. explained that she tells her daughter that she has been well cared for by Ms. M.
[54] Ms. F.L. explains that she believes her daughter was misinformed about her past as her daughter believed she was adopted.
[55] Ms. F.L. explained that she permits J.'s peer group to come over to her house which is not the same at Ms. M.'s.
Mr. B. Testified:
[56] Mr. B. gave his testimony and when he questioned by the other parties he by and large wanted the court to know that his relationship with Ms. F.L. over the years has improved.
[57] He described their relationship now as one that is mature and is "light" or a "lighter communication" when it comes to their daughter.
[58] When questioned, Mr. B. reluctantly agreed that there were multiple incidents in their past in which Ms. F.L. called the police to intervene and that on occasion their daughter was exposed to these domestic disputes.
[59] He defined his current relationship with Ms. F.L. as one that supports her in the co-parenting of their daughter.
[60] He would like eventually to have his own specific weekend time with J. He currently has a one-bedroom apartment and understands that given his daughter's age and stage of development she needs her own privacy which he cannot provide presently but hopes to do so in the near future and then he would be in a position to have his daughter on weekends.
[61] Ms. F.L. in her testimony also agreed that Mr. B. understands his daughter's needs at this point in her development.
[62] He testified that he has been supporting his daughter financially by assisting in purchasing her clothes and paying for her to have her hair cared for. He expressed some reservations about how his mother, Ms. M., was not caring for these needs of his daughter.
[63] He confirmed that he has been assisting in the majority of the transportation for his daughter's visits with Ms. F.L.
[64] He is working and is earning $17.25 per hour working 40 hours a week or $33,100 annually. According to his Financial Statement dated March 2018, he earned $26,000 in 2017.
[65] He recognized that his mother, Ms. M. was seeking child support from him if J. remained in her care. His response was that he believed he would need to know where the money was being spent before he would feel comfortable providing child support.
[66] He felt that over the years that his daughter has been caring for herself and that she has not looked well dressed and maintained, something that he has taken in hand and changed.
[67] In his testimony he did not hide the fact that he felt his mother was not being truthful in how she portrayed her care for his daughter and her interpretation of events.
[68] He deposed that…"She says one thing and then does another."
[69] He testified that his daughter has called him about how the maternal grandmother has yelled at her and degraded her, contrary to Ms. M.'s statements and that he believes that his mother has exposed his daughter to this litigation.
Ms. Barlas, OCL Clinical Investigator:
[70] Ms. Barlas, the OCL clinical investigator (social worker) testified. She provided two affidavits, one dated January 22, 2018, Exhibit 1 to this trial and an updating affidavit dated April 24, 2019, Exhibit 2.
[71] Ms. Barlas' main purpose was to assist Mr. Baker providing to the court J.'s overall experience at school, in the community and between her parents and Ms. M.'s home. Through her direct communication with principals at J.'s school she confirmed what Ms. M. testified to about J.'s needs when she was placed with Ms. M. in 2013.
[72] When Ms. M. testified about receiving her granddaughter J. in her care on a full-time basis approximately a year before the Final Order in 2016, J. presented both at home and at school with academic and social challenges. J. was not acting and speaking in an age-appropriate manner and had trouble with self-regulation and would express that she was not liked by others. Although much improved over the years, Ms. M. testified that J. at times still exhibits some residual behaviour and needs guidance around self-regulation and focus.
[73] J. has been attending the same school, St. J., since grade 1. Initially when she started living with Ms. M. there was a lot of emphasis on how she was behaving. She often would have difficulties with other children making it difficult for her to make friends.
[74] Over the years the major work with J. at school is in setting goals for her to achieve self-regulation.
[75] Ms. M. testified that over the years she has worked closely with the school to develop a modified educational program to assist her granddaughter with language, math and to address whether she had an identified learning disability.
[76] J. has been provided an IEP and her grades have improved steadily over the years and more importantly her behavior, to the point where she is now participating in assisting with school functions and is a member of the school council and assists in planning dances and other school/community events.
[77] J. has shown steady improvement in maturity and in particular when she has been working closely with a Child and Youth Worker (CYW) that has been assigned to her over the years while at school.
[78] From all accounts the primary contact for the school over the years has been the paternal grandmother, Ms. M.
[79] The school principal in 2017 had some contact with Mr. B. when he on occasion picked up J. from school and with Ms. F.L. when she on occasion brought her daughter some lunch money.
[80] The current principal in 2018/19 did meet Ms. F.L. and there now is a connection regarding J.'s programs and progress at school that was not present in the past.
[81] Ms. Barlas testified that she met J. along with Mr. Baker on seven occasions.
[82] Ms. Barlas explained that J.'s position over the course of the seven interviews has changed back and forth between primarily wanting to live with her mother, then her grandmother, to being uncertain at times and confused.
[83] In their discussions J. has clearly expressed that she enjoyed her time with her mother as it was different from the routine at her grandmother's as there is more downtime.
[84] Over the course of the interviews she did express hesitation, however, about being unable at times to know what to do to manage her mother when she gets upset. J. spoke of this in the context of the two incidents dealing with her cellphone in the spring of 2018 and 2019.
[85] She explained that in these incidents her mom does not seem to calm down compared to when her grandmother might be upset with her which seems to pass after an exchange of words. With her mom, J. expressed how when she is angry it tends to be prolonged and all encompassing. This is confusing to J.
[86] Ms. Barlas testified that over the course of the interviews that it has emerged that J. feels that she was caught in the middle of the adults and preferred that the court make a decision on her behalf.
[87] J. did state that she wanted more flexibility in whatever access schedule is settled on with some input from her to choose to go or not on a weekend or have an overnight during the week, but that she also might want a trial period to road test this as well.
[88] The OCL was clear that J. has a strong emotional bond with her mother that needs to be supported. J. has, over the years, experienced adult conflict in various formats and still today is sensitive to the differences that exist between her parents and her paternal grandmother.
Ms. M. Testified:
[89] Ms. M. testified that she is 54 years old and works as a personal support worker. She is married to Mr. P.S. for 5 years and he works at the Toronto District School Board. She has six children of her own and eight grandchildren. Her youngest child D. is 11 years old and her granddaughter J. is close to him. They all live in a three-bedroom rental apartment where they have resided for the past two years. She described her extended family as very big and close and supportive of each other.
[90] Ms. M. reviewed the history of her granddaughter coming into her care in a full-time basis in February of 2013 and has remained with her ever since. She has worked closely with the school to assist in her granddaughter's development which has improved tremendously over the years. When J. first came into her care, she did visit with the child psychologist at Credit Valley Hospital to assist J. with her behaviour.
[91] Ms. M. has worked with her granddaughter to develop her self-respect, to be open and honest, and to care for those that she loves and respects. Her goal for J. is that she is able to trust the adults that have cared for her and not be afraid to share her feelings. She hopes that her granddaughter attends college/university.
[92] This has required a close partnership with the administration and the staff. She explained how J. has participated in school activities and is currently on the school council which is a big step forward and taking responsibility. Outside of school, J. participates in ice skating and summer camps where she enjoys dance and swimming. Last year they spent the summer in Jamaica.
[93] J. has had a family doctor and dentist and sees them on a regular basis and as need be.
[94] Ms. M. explained that her relationship with her son Mr. B. was at one point more open in particular when he is not frustrated or angry.
[95] It reached a low point in 2013 and when she was granted final custody he blamed her for most of the difficulties that he had in his life and in particular between himself and Ms. F.L.
Law Considered/Discussion and Order
Variation of Final Orders (Custody/Access)
[96] The essential starting point in any Motion to Change is to consider whether the evidence presented meets the legal test for a material change in circumstances. The focus of the material change however must first be to the condition, means, needs or circumstances of the child and the ability of the parents to meet the needs of the child. The guiding authority and direction in this regard is as follows:
[97] Gordon v. Goertz, [1996] 2 SCR 27, the change in circumstances must not have been forseen or reasonably contemplated by the judge who made the original order. The change must be to the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child. Change is not enough. The change must have altered the child's needs or ability of the parents to meet the child's needs in a fundamental way. Further, the change should represent a distinct departure from what the courts could have reasonably anticipated in making the previous order [para 12].
[98] In submissions by Ms. F.L. and Mr. B., I heard that as things have changed in their respective lives in a positive fashion that this supports their request that J.'s custody change so that she live with Ms. F.L.
[99] In submissions on behalf of the child J., Mr. Baker suggested that the evidence in support of Ms. F.L.'s motion to change indicates that there has been a narrow clearing of the material change hurdle.
[100] I agree that many of the difficulties/issues/themes that were present when I made this court's 2016 Order placing the child J. with Ms. M. are not present today as to the overall features and presentation of Ms. F.L.'s living situation and her life.
[101] She explained that she has had steady accommodations for a number of years. This was an issue in the past.
[102] Although no clear evidence was presented about her overall health, Ms. F.L. indicated that she is no longer on medication and she is not seeing her doctor regarding her emotional well-being.
[103] She has steady income through her receipt of ODSP, but could not explain for what medical reasons her receiving this income.
[104] Her daughter J. has been visiting with her and Mr. B. for approximately the past 1.5 years, three out of four weekends, and generally the visits have shown to be healthy and nurturing to her daughter.
[105] The relationship between J.'s parents has improved. The evidence shows that they have today a working relationship that assists them in their care for J. when they have their access time.
[106] They have worked with the current Order and have developed a mutual respect and method of communication that has avoided conflict and there are no reports in the community of police involvement which existed routinely in the past and no reports that their daughter J. has been caught between their conflict which existed in the past.
[107] Mr. Baker noted that J. is older. She is currently 13 years old and was about 7 years old when she began living full-time with Ms. M. and when the Final Order was made in 2016 she would have been 9.
[108] The evidence presented, and there is nothing to contradict this, is that J. has a strong bond with her biological parents Ms. F.L. and Mr. B. that is important to her and there is a recognition that needs to be nourished and sustained for her well-being.
[109] I accept the above as evidence of material change that is long-lasting as defined below in the jurisprudence.
From: Roloson v. Clyde, 2017 ONSC 3642:
The case-law that has addressed the meaning of the phrase "material change in circumstances" in the context of child and spousal support variation proceedings has also established that a change will only be considered "material" if it is significant and long-lasting (Brown v. Brown, 2010 NBCA 5; Haisman v. Haisman, 1994 ABCA 249, leave to appeal to the S.C.C. refused, [1995] 3 S.C.R. vi). Trivial, insignificant or short-lived changes will not justify a variation (Hickey v. Hickey, 46 R.F.L. (4th) 1; Marinangeli v. Marinangeli). These principles apply equally to the threshold test in a custody and access variation proceeding. The preliminary threshold test is aimed in part at ensuring that the parties do not resort to litigation whenever any change occurs, however minimal (Gordon, at para. 64; Neger v. Dalfen, 2016 ONCJ 751). Not every circumstance, event or mistake by a parent that detrimentally affects a child will be considered a material change in circumstances for the purposes of a variation application. As Gray, J. stated in Kerr v. Easson, 2013 ONSC 2486, at para. 62, aff'd 2014 ONCA 225, "[p]arents are not perfect and they will make mistakes. The court will not assume jurisdiction to correct every mistake in the guise of a material change in circumstances."
[110] What I do not find in the evidence is a change that materially alters J.'s needs and circumstances such that her custodial arrangement should be altered to address these interests.
[111] I am guided by the direction of the SCC in Gordon v. Goertz, [1996] 2 SCR 27, above:
Change is not enough. The change must have altered the child's needs or ability of the parents to meet the child's needs in a fundamental way. Further, the change should represent a distinct departure from what the courts could have reasonably anticipated in making the previous order [12].
[112] Put another way, it could be argued that the changes, as presented in the material change evidence of Ms. F.L., were reasonably foreseeable at the time of the last Order, that is, along the way she would achieve stable health, stable housing, stable income and consistent access with her daughter. Hence this evidence, it could be argued, is not a material change and the analysis should stop here.
[113] In L.M.L.P. v. L.S., [2011] SCC 64, the Supreme Court stated that the change must be substantial, continuing and that "if known at the time, would likely have resulted in a different order." The Supreme Court stated that it must limit itself to whatever variation is justified by the material change of circumstances.
[114] I grant that both Ms. F.L. and Mr. B. have made positive changes in their lives. This should be recognized and they need to sustain these for their daughter.
[115] I find however, that these changes are not the material changes contemplated in the jurisprudence above such that it should alter J.'s custodial arrangements today.
[116] That would require evidence that Ms. M. has not met J.'s needs as set out in section 24 of the Children's Law Reform Act in that J.'s spiritual, emotional, educational, social needs are not being addressed or the level of Ms. M.'s care falls below a recognized standard. If there was this evidence today, coupled with the changes in Ms. F.L.'s life, which were not foreseeable at the time of the last Order, this would be a material change that address directly J.'s means and circumstances.
[117] I find there was no evidence to this affect.
[118] The evidence gathered from independent sources and testified to by the OCL clinical investigator confirm that in Ms. M.'s care over the years, that J. has made steady progress in Ms. M.'s care that will assist J. in developing and contributing to our society as an adult.
[119] I accept that Ms. M. is a not perfect parent to J. This is not the standard that is expected.
[120] Further there was evidence of the two incidents in which Ms. F.L. had differences with her daughter.
[121] I have weighed this evidence in this decision and I am mindful of the following comments in the jurisprudence in this regard:
[122] Not every circumstance, event or mistake by a parent that detrimentally affects a child will be considered a material change in circumstances for the purposes of a variation application. As Gray, J. stated in Kerr v. Easson, 2013 ONSC 2486, at para. 62, aff'd 2014 ONCA 225, "[p]arents are not perfect and they will make mistakes. The court will not assume jurisdiction to correct every mistake in the guise of a material change in circumstances."
[123] Although not determinative in this trial decision, I have factored into my decision the two incidents in which Ms. F.L. had differences with her daughter, as I heard evidence that these events have impacted her daughter.
[124] In particular through the OCL work and evidence I have concluded that J., although close to her mother, has some residual concerns about being able to manage her mother, if her mother becomes angry over differences that in all likelihood will occur between a parent and teenager.
[125] At this stage in J.'s life it is not for her to have to worry about managing an adult's emotional behaviour. I accept that J. has in the past been exposed to conflict and differences between adults has subsided over the years. This need not be a feature in her life.
[126] I further accept the evidence that J. has at times felt caught between the adults in her life.
[127] I mention this as I would ask the adults, Ms. F.L., Mr. B. and Ms. M., to not lose sight of this. J.'s affection and love for you all should not be a competition.
[128] I heard in Ms. F.L.'s and Mr. B.'s submissions some emphasis on J.'s age and how in a few years she will decide on her own what she wants for her living arrangements.
[129] I agree with this to a certain point. We expect as parents that this is the inevitable route for our children as they grow. I caution, however, that young adolescent's decisions that they will inevitably make and be successful with are constructed on a foundation of consistent parenting/guidance, respect and love for them when they are younger, as she is now. We must also recognize as parents that our children do best when they observe how we put our needs and desire second to theirs.
[130] A favorable factor on behalf of Ms. F.L. is that she has maintained her mental health since the last Order. There was serious doubts about her emotional well-being when the last Order was made.
[131] A fact in her life for the next many years is that she is giving birth to a baby this year. I received no evidence about what support she has from the father's side of the family. Ms. F.L. testified that he died in an accident while visiting his native Guyana. This event will no doubt draw on Ms. F.L.'s emotional and physical resources over the next while.
[132] I find that there still remains a weakness in Ms. F.L.'s sensitivity and acknowledgment of her daughter when she was younger for assistance to moderate behavior learned in her youth during Ms. F.L.'s parenting of her. In this trial Ms. F.L. does not acknowledge this. Indeed her daughter's IEP which in part addresses not only academic but behavioral issues is not supported by Ms. F.L. who feels this is not necessary and considers this to be a negative in her daughter's life. This is incorrect and is not a factor that supports a change to J.'s custody.
[133] What would have been a pleasant surprise and distinct material change in circumstances in this matter is that if there was evidence of both J.'s parents and paternal grandmother having found a way to work together and partner in J.'s care. It would have been refreshing to hear that they started to do this with the school for example that plays a large part in J.'s life.
[134] This cooperation to address J.'s needs could have also occurred around parenting issues such as video games and the use of the telephone during access visits. The parties could have found a way to sit down and address these issues rather than point fingers at each other.
[135] Further, it is hard to ignore the fact that within 10 months from the last Order Ms. F.L. filed her Motion to Change. Much of the emphasis in this litigation was to blame Ms. M. for her controlling access and inability to parent which has not proven to be the case.
[136] I am uncertain about Ms. M.'s unwillingness to provide access shortly after the Final Order. No doubt it would have taken some time to adjust and develop trust which apparently never took hold. I'm not certain who is to blame for this. What I am certain of, however, is litigation has existed in J.'s life far too long. Between the previous child welfare litigation and this proceeding, J. has been the subject of a court case for some 7 years.
[137] There is positive evidence about the access that J. has with her mother and father despite the strain that exists in communication between the parties in this matter.
[138] As noted above during this time the parents have shown their ability to meet their child's needs and that overall J. has enjoyed her time with her parents and wants to continue with this. There is no reason why this should not be expanded. At the same time the normal routine of access should be put in place to assure that both sets of families who are busy during the week have the adequate downtime with each other on the weekends. As such an every other weekend regime of access would address this.
[139] I also believe that the parties should meet with the mediation services at this court to discuss the transition for J. from her current middle school to high school when this occurs and what, if any, tweaking or improvement on the access schedule that is set in this order should be made, if any.
Final Order
Considering the above, the Final Order in this matter shall be as follows:
1) The request by Ms. K.F.L. for a change to paragraph 1 to the order of A.W.J. Sullivan dated January 5, 2016, regarding the custody of the child J., is dismissed.
Paragraph 2 of Justice A.W.J. Sullivan's January 5, 2016 Final Order is vacated and replaced with the following:
2) Ms. F.L. and Mr. B. shall have every other weekend access with J. from Friday at 5:00 p.m. to Sunday at 6:00 p.m. commencing June 30, 2019. If this weekend access falls on a long weekend, the drop-off time shall be 6:00 p.m. on the Monday.
3) Commencing in 2020, Ms. F.L. may have 2 weeks (14 days Sunday to Saturday) summer vacation with J. These 2 weeks may be consecutive. Ms. F.L. must advise Ms. M. of her intended vacation dates by May 1st of each year. Summer is defined as July and August.
a) For 2019, Ms. F.L. may have 1 week vacation (7 days Sunday to Saturday) in the month of August, and for 2019 Ms. F.L. shall advise Ms. M. by July 15, 2019 if she intends to take a week with J. and the specific dates.
b) Depending on where J. is during Mother's Day and Father's Day weekend, the parties will arrange between themselves and in consultation with J. to spend some time with Ms. F.L. and Ms. M. on Mother's Day and Mr. B. on Father's Day.
4) Ms. F.L. and Mr. B. may communicate directly with their daughter's school and doctor and Ms. M. will provide consents as needed to facilitate this communication. Both parents will be listed with the child's school and doctor as emergency contacts and each must inform the school and doctor of any changes to their contact information.
5) The parties to split Dec 24/25/26 - Christmas Eve/Christmas Day/Boxing Day as follows: Christmas Eve from 5:00 p.m. to Christmas day at noon, Christmas day at noon to Boxing Day at 7:00 p.m. By November 15th of each year they will communicate between each other their preferred time considering J.'s wishes. For 2019, Ms. F.L. and Mr. B. shall advise Ms. M. of the time they wish. Other time off school during the Christmas break shall be as agreed to between the parties and J.
6) For March Break (defined as the day school is out to the following Sunday, approximately 10 days) the parties are to advise each other by February 1st of each year if they can take time off. In March 2020 Ms. M. shall have first choice to advise Ms. F.L. if she wishes to split the week with her in 2020 or take the week holiday. In 2021, Ms. F.L. will have this election by February 1st.
7) The parties agree to use only one family doctor for all non-emergency needs of J. If J. requires emergency medical attention in either parent's care, that parent will attend to their daughter's needs and inform the other parent forthwith within 2 hours of any event.
8) If Ms. F.L., Mr. B. or Ms. M. wishes to take a vacation out of Canada with J. and there is no objection, the parties will cooperate to have signed a travel letter which shall be signed between all three parties and independently witnessed. Such travel plans shall not impact more than one (1) day on J.'s school time if this cannot be avoided. The traveling party shall provide to the others a copy of the return tickets, the location/address/name of destination where the vacation will take place and a telephone number so that J. may call the stay-at-home party.
9) The child J.'s passport shall be kept by Ms. M. for safekeeping and given to either Ms. F.L. OR Mr. B. for international travel with J. and will be returned to Ms. M. for safekeeping on the day J. returns from the vacation.
Communication Protocol
10) The parties are to follow this communication and behaviour protocols as they form part of the terms of this Order.
11) The parties shall abide by these principles in their relationship with each other and their contact with the child:
a. They shall refrain absolutely from denigrating each other or members of each other's household or families in the presence or within earshot, of the J.;
b. They shall not question J. about the other party's personal life and activities;
c. They shall refrain absolutely from engaging in any disputes with each other in the presence or within earshot of J. and from involving J. in any manner in conflicts which may arise between the parties;
d. They shall encourage the child to have a strong and positive relationship with both parents and shall use all reasonable efforts to foster a meaningful relationship between the child and the other parent;
e. Neither party shall discuss with the child, or with another party in the presence of the child, present or past legal proceedings or issues between the parties related to the present or past legal proceedings, including any financial issues relating to the parties or the child, or regarding conflict between the parties relating to parenting issues;
f. The parties shall communicate about the child by email/text or by telephone in an emergency. The parties shall exchange information about the child, including notice of any scheduled medical or counselling appointments, report cards, behavioral concerns, upcoming activities, and any request for changes in the parenting schedule.
g. In the event of an emergency or truly time sensitive matter, the parties shall call each other. If a reply requires more time than 48 hours, a text shall be sent advising that the reply cannot be reasonably given within this time period and advising when the response can be expected.
h. Any discussions between the parties at transition times, activities or other special events where the child is present or nearby shall be limited to brief and cordial interchanges. If one party considers that the discussion is not courteous, he or she shall simply say "I no longer wish to discuss this," and upon one party saying so, both shall immediately discontinue the conversation and shall take up the issue later by a call or text.
i. If one party finds what the child has said about the other party to be of a significant concern, that party shall first ask the other party, by email/text, what actually happened. If a complaint is made by the child to one party about the other, the child shall be encouraged to talk directly to the party she is complaining about.
Child Support
[140] Ms. F.L. is required to disclose to Ms. M. if/when she has obtained full-time or part-time work of 20 hours or more per week while Ms. M. has custody of J. and is providing for J.'s needs as a dependent child pursuant to the Family Law Act.
[141] Mr. B. shall pay monthly child support to Ms. M. for the child J. F.L., born […], 2006, in the amount of $283 per month commencing July 1, 2019 based on an annual income of $33,100 in 2018.
[142] Mr. B. owes to Ms. M. arrears in child support from the filing of Ms. M.'s Response to Motion to Change, dated January 8, 2017, as follows:
February 1, 2017 to December 31, 2017 - 10 months at $210 based on income of $26,000 = $2,100.
January 1, 2018 to December 31, 2018 - 12 months at $283 based on an income of $33,100 = $3,396.
January 1, 2019 to June 1, 2019 - 6 months at $283 based on an income of $33,100 = $1,698.
Mr. B.'s total arrears owing in monthly child support as of the date of this Order is $7,194. Mr. B. shall pay $200 per month commencing September 1, 2019 towards these arrears until paid down in full.
[143] A Support Deduction Order shall issue.
[144] On the issue of costs, I believe that there has been a mixed result from this trial that addresses J.'s needs such that no costs should be awarded.
June 14, 2019
Signed: Justice A.W.J. Sullivan