Court File and Parties

Court File No.: Orangeville 59-18 Date: 2019-12-13 Ontario Court of Justice

Between: Karent Eileen Burton, Applicant

— AND —

Bobby John Woods, Respondent

Before: Justice Philip J. Clay

Heard: November 25 and 26, 2019

Reasons for Judgment released: December 13, 2019

Counsel:

• Ms. S. Singh, counsel for the applicant
• Mr. Woods, on his own behalf

TRIAL

PROCEDURAL BACKGROUND

[1] The Applicant mother brought an Application seeking custody of the child Aiden John Alvin Woods born […], 2010. At the time the Application was brought the mother and child were residing in a home owned by the child's maternal grandmother ('MGM') in Shelburne. The Respondent father was staying at that home as he had been recently paroled after serving a nine-month prison sentence and the mother had arranged for him to live in the basement of the MGM home while she acted as his surety.

[2] The mother brought an urgent motion to court seeking custody of the child. A without prejudice order was made by the Honourable Justice I. Cowan on April 23, 2018. That order provided that the mother was to have custody of the child, and the father was to have specified access. At the time of the motion review on May 2, 2018 the parties consented to a further without prejudice order granted by the Honourable Justice B. Pugsley that increased the father's access to the child.

[3] The father moved from Shelburne to a trailer on a property in Whitefish which is a community within the Regional Municipality of Sudbury. The parties had lived together in a home on that property with their son before a fire destroyed the home in 2014. They then began living on a trailer on the property until the father was arrested in 2016. The parties and the child then moved to Shelburne and the mother and child remained there when the father was incarcerated. As noted above, the father moved back in to the MGM's home from January to April 2018.

[4] On May 30, 2018 Justice Pugsley dismissed the father's contempt motion and made a further order on a without prejudice basis that addressed the father's access to the child in Sudbury. He also requested the involvement of the OCL.

[5] While the OCL was investigating the father brought a motion for temporary custody of the child. On August 29, 2018 the Honourable Justice R. Schwarzl made an order granting the father temporary custody of the child and requiring that the child be registered in school in Whitefish. The order set out the mother's access to the child and provided that the parties would have alternate weekend and holiday access. The child was to be exchanged at a half way point which became the Tim Horton's in Parry Sound.

[6] The OCL report was delivered on March 11, 2019. The matter returned to court on May 9, 2019 and an order was made by Justice Schwarzl amending the access terms and authorizing their enforcement by the police.

[7] Finally, on August 7, 2019 this matter was scheduled for trial by Justice Pugsley. The order provided that each party could file a trial affidavit and give 30 minutes of oral evidence and then be cross-examined. While each party was entitled to call two witnesses upon the same terms neither party chose to do so.

[8] The parties filed a Trial Record and their trial affidavits. The Trial Record contained a copy of the report of the OCL dated March 11, 2019. The clinical investigator who prepared the report Ms. Andrea Seymore testified as the court's witness and was cross-examined by both parties.

APPLICANT'S EVIDENCE

Background

[9] In her trial affidavit the mother set out that she had agreed to be the surety for the father's parole and she and the MGM agreed that he could live in the townhouse that they shared. The mother said the parties separated on April 23, 2018 and the father left the home on April 27, 2018 when his ankle bracelet was removed.

[10] The mother admitted that Aiden had experienced a lot of trauma. Their house burned down when he was only 4 and he lost his cat and dog. His father was arrested in 2016 and he really missed his father when he was in jail. There was a move from the trailer in Whitefish to the townhouse in Shelburne. Finally, the father moved into the home and Aiden was desperate to spend time with him. The mother admitted that Aiden loved his father and really enjoyed the outdoor activities he did with him. She also felt that the father's lax parenting style meant that Aiden saw the mother as the disciplinarian and the father as more like a friend. The mother denied the father's allegations that she and the MGM hit Aiden in the head out of frustration.

[11] The mother admitted that in the spring and summer of 2018 Aiden would likely have said that he wanted to spend more time with his father. His father had been in jail and had only been back in his life since January. When his father moved from Shelburne back to Whitefish Aiden would have experienced a sense of loss. The mother denied making negative comments about the father to Aiden.

Mother's Concerns

[12] The mother did set out in her affidavit many concerns that she had about the father's ability to parent Aiden. They included:

(a) The father had an extensive criminal history including a conviction for assaulting his first spouse for which he received a period of incarceration. He breached the terms of his probation and was re-arrested. He also had fraud convictions related to his efforts at self-employment.

(b) The father had a "short fuse" and would yell negative and degrading comments to her in front of their son. He had been angry and abusive in court and security were required whenever he attended court.

(c) The father was very manipulative and controlling. He lied to obtain a Form 2 under the Mental Health Act stating that the mother was a danger to herself or others, and she was picked up by the police and taken to hospital. She was released shortly afterwards. The father will do or say whatever he wants to get his way.

(d) She was worried that the father might physically hurt Aiden because when he is in a rage he appears to be totally out of control. At one point he had grabbed her by the throat and threatened to kill any woman who tried to take his child from him. The father had lost all contact with the children of his first marriage due to his violence towards their mother and she was worried that if he felt that he might lose custody of Aiden he could harm him and himself out of desperation.

(e) The father was very bitter towards her. He belittled her constantly and said that she was "horrible" and a totally incompetent parent. He blamed all of Aiden's behavioural issues on the way the mother and the MGM treated him. Aiden had begun to adopt some of his father's attitudes.

(f) The father has not cooperated with access and with providing information about Aiden.

(g) The father's plan is to continue to live with Aiden on a trailer on a property in Whitefish. The mother stated that she thought the father was evicted from the property (there is ongoing litigation with the mortgagee and with the lawyers involved with the mortgage transaction).

(h) The mother felt the trailer was not a safe place to live particularly in the winter. She noted that despite having Aiden with him for 15 months, on the basis that he would arrange stable housing, the father moved three or four times last winter, and has yet to provide any proof that the trailer has been safely winterproofed.

(i) The father is more interested in fighting with the mother than he is in looking out for Aiden's best interests. He refused to attend the pediatrician's appointment in Orangeville in October, 2019, instead stating that he would find another pediatrician in Sudbury. Just before trial he contacted a pediatrician and he included her business card in his affidavit.

(j) The child's behaviour will worsen as the father in unable to accept any advice with which he does not agree. The child's behaviour has actually worsened since he has been with the father particularly in the first few weeks of the new school term. The father always blames the child's access with the mother for all of his behavioural issues.

(k) Aiden has been surrounded by parental conflict and recommendations have been made for him to receive counselling. The father has temporary custody, yet he has made no appointment for Aiden to see a counsellor.

Mother's Plan of Care

[13] The mother said that that she had been Aiden's primary care giver since birth, and he was in a stable home environment with her and the MGM prior to the move to Whitefish in September 2018. The mother said that Aiden had his own room in the home. The basement is set up for him and all of his things are there.

[14] The mother conceded that Aiden had difficulties with reading, and he had been placed on an Individual Education Plan ("IEP'). He also exhibited behavioural problems at both his school in Shelburne and the one in Whitefish. The mother said that when he attended school in Shelburne the school provided individual help for Aiden.

[15] The mother admitted that she still has difficulty managing Aiden's behaviour. She has taken four parenting classes. She also said that she had a good network of friends and family members in the community. Her good friend Lisa Muni, who drives with her to Parry Sound bi-weekly, was in court. Her friend Katherine Woodcock is like an aunt to the child and she has a six-year-old child of her own.

[16] The mother is in counselling with Family Transitions and she attends DCAFS every Wednesday for an hour.

[17] The mother's evidence was that prior to the separation she tried to provide structure and discipline for Aiden. She said that the father let Aiden do what he wanted, and she effectively said that the father undermined her.

[18] The mother noted that she is a stay at home parent. She is in receipt of a disability pension. The MGM has many health problems She had a fall and dislocated her knee. She also suffers from congestive heart failure. She was effectively bed ridden and her bed and toilet had been moved to the living room. Nurses from CCAC came in twice a week, but the mother had to attend to all of her mother's needs otherwise. The mother denied that this commitment to the MGM's care would interfere with her ability to care for Aiden.

Aiden's Education

[19] The parties were living in Whitefish when Aiden started school. He missed 22 days in his J.K. year and 33.5 days in his S.K. year. By the time of Aiden's Garde 1 year that began in September 2016 the father was in jail and the mother moved to Shelburne. When the mother was the only parent responsible for his attendance Aiden only had 6.5 absences.

[20] In the middle of his Grade 2 year the father was released on parole. The mother said that Aiden had a lot of behavioural problems at school. The mother said the father was a very controlling person and that he rejected out of hand all information with which he did not agree. As an example, when Aiden was acting out at school the father, without any prior discussion with the mother, pulled Aiden out of school for two weeks. He told the school that he was going to find an assessor for his son. He took no steps to do so. The mother said she heard the father say to Aiden that he did not have to listen to anyone, but his father. When the child came back to school the school implemented a safety plan for him. Aiden had 55 absences from school that year.

[21] In September 2018 Aiden entered Grade 3 in the Whitefish school. His marks and attitude improved significantly under his teacher Mr. Nelson. He had 11 absences and 7 lates in that academic year. The father did not tell the mother anything about Aiden's school, so she contacted Mr. Bouree the principal who has been very helpful in sending her information.

[22] The mother conceded that Aiden's marks were a bit better in Whitefish than in Shelburne and he did not require an IEP. She also noted that the principal had stated that, with only 108 students, his school could give Aiden more individual attention than larger schools. Mr. Bouree also that Aiden had a male teacher Mr. Nelson in 2018/19 with whom he had really connected.

[23] The mother pointed to the fact that Aiden's behaviour was bad at the start of Grade 4, the 2019/20 school year, and that a letter from Mr. Bouree showed that he had missed 7 days of school and been late on 5 other occasions in the first two months of this school year.

Society Involvement

[24] The parties referred at the trial to the involvement of DCFAS and the CASDSM. They said they had hundreds of pages of notes. Very little material was actually submitted as evidence. The most relevant period of Society involvement is in the period after the father left the home in April 2018.

[25] DCAFS worker Mr. Greg Martiniuk ultimately wrote the letter of August 11, 2018 that was a significant factor in the father obtaining a temporary custody order on August 29, 2018. The mother felt that she was not treated fairly by this worker She noted that the worker sometimes spoke to the father when she was not present, and he interviewed Aiden without her knowledge.

[26] There was evidence that both parents were quite resistant to Society involvement in their lives and that the mother was angry with the Society. It should be noted that there had been a period of CASDSM involvement after the 2014 house fire and the mother thought that after her move to Shelburne to live with her mother that child protection agencies would not be involved further. Over time the mother came to rely upon the Societies to investigate her various concerns about the father and his friend/partner Janet Roberts and she became frustrated at that point by what she perceived as their lack of engagement.

[27] The evidence showed that Mr. Martiniuk's letter was factually correct. Aiden had been asking to spend more time with his father. After the initial without prejudice custody orders in favour of the mother in April and May 2018 there were problems with access and Aiden did not see his father very much. In the period January to April the father had lived in the home. Then 7-year-old Aiden would have reconnected with a father who had been taken away from him (due to his arrest and incarceration). The mother had the responsibility of caring for the MGM, so the father likely had a lot of time with Aiden that the boy found to be fun. The mother admitted that Aiden loves his father and that his father loves him. The father's move back to Whitefish meant that Aiden only had alternate weekend contact at best with his father. The child did not want to experience that loss.

Access Post Change in Custody

[28] Aiden moved from Shelburne to Whitefish shortly after Justice Schwarzl's temporary custody order was made on August 29, 2018.

[29] The mother said that initially the access exchanges in Parry Sound were very difficult. At the first exchange the father hammered both hands down on her car and called her a "bitch" right in front of Aiden. Now they do not exit their vehicles when exchanging their son.

[30] The mother said that she and Aiden now enjoy their time together and he is reluctant to go back to his father's home. She said she tries to call him every night on the cell phone that his father had purchased for him. She said sometimes he picks up, but often he does not. She said that when Aiden does pick up the phone, she can hear his father in the background.

Father's Decisions

[31] The mother said that the father may have signed consents at the school and at the doctor, but he does not provide her with any information directly. She did not know where Aiden was living in the winter of 2018 after he moved out of the trailer.

[32] The mother said that she had a good support network. In addition to her good friends Ms. Muni and Ms. Woodcock she has been in counselling as recommended by the DCAFS and the OCL. She said that if she had custody, she would have arranged counselling for Aiden, and he would have seen a doctor and a dentist. She said that the father will not listen to anyone and he just thinks he knows what is right for Aiden. The assessment by the pediatrician Dr. Oyefeso was scheduled for October 11, 2019. This specialist appointment had taken months to set up and the father simply refused to have Aiden attend. The mother has rescheduled it for January 2020 and if Aiden is in her care he will attend.

[33] The mother noted that Aiden loved pets and she had retained the dog that the parties bought him after his dog and cat were killed in the house fire. Aiden had been diagnosed with a cat allergy, but as his father does not believe him to be allergic he bought him a cat anyway.

[34] The mother denied ever saying to Aiden that "you're not my son anymore". She said she did recall saying to Mr. Martyniuk at an August 10, 2018 meeting, attended by both parties, words to the effect of "have I lost my son today?" She said the DCFAS worker had a private meeting with Aiden, of which she was unaware, before he wrote his August 11 letter that clearly was a significant factor in Justice Schwarzl's August 29, 2018 temporary custody order.

[35] The mother is convinced that the father tells Aiden what to say to Society workers and the OCL clinical investigator. The collateral contact section of the OCL report stated that the father told Mr. Bouree that he tells Aiden he has to keep saying what he's been saying in order to stay with him.

RESPONDENT'S EVIDENCE

[36] In his trial affidavit the father stated that after the child was born, he became the "more bonded parent." He said the mother could not handle the crying and night time feedings. He was called home from work because the mother was unable to deal with the child.

[37] The father said that both the mother and the MGM were physically and emotionally abusive toward the child. In the same paragraph he said:

The Applicant's brother committed suicide in 2016 after being kicked out of the Burton family home because he apparently wasn't paying his mother enough money.

[38] In his oral evidence the father returned to his tragic event by saying that if Aiden is returned to his mother he will be abused and could be driven to suicide.

[39] The father said the mother was unable to get the child to listen to her directions. As a result, she dragged the child upstairs to go to bed by the hair, she forced a tooth brush into his mouth, she cursed at him after failing to get him to go to the dentist. She said the MGM hit the child in the back of the head on Christmas Day 2017.

[40] He also noted that post-separation the child was forced to stay in his room for a whole day. He added that there was excessive spanking of the child in the mother's home although he admitted that he has also spanked his son.

[41] The main thrust of the father's evidence was that Aiden had already told all the professionals involved that he wanted to live in Whitefish with his father. The father said that Aiden should have his wishes respected. He seemed to think that Aiden's expressed views should be totally determinative. He said that "if Aiden wanted to live with his mother we would not be here today" Aiden turned 9 years old just prior to the trial.

[42] Aiden's most recent statement to a neutral person was in his brief interview with CASDSM worker Jody Marcotte on October 19, 2019. In paragraph 26 of his trial affidavit the father quotes Aiden's statements to the worker. He wrote that during the interview the child told Jody Marcotte that "he wants to stay with his father, enjoys the school better and has more friends"

[43] The attached note of the interview sets out that Robert Woods and Janice Roberts were present. There is no notation that the father or his friend/partner left the room when the child was interviewed. The interview with the child is contained within notes that address the discussion with the father. It is clear that Ms. Marcotte did not note the exact statement that the father quoted. The note states:

Aiden was challenging to interview has he was quite active bouncing around and playing with the blinds.

Aiden confirmed that he was not a fan of attending school and that there have been some behaviours.

Discussed why he was acting up at school and he said that his mother told him too. He said that he has her voice in his head. Aiden advised that his father met with the school and that his dad has asked that he listen and behave.

Aiden is happy with his dad and wants to stay with him. We discussed his friends he has around his home, he also has sleepovers.

Plan after school is he calls dad and usually dad on his way home(" sic ")

Not alone long. If dad is held up he can go to his friends down the road.

Allowed to bike there.

I asked Aiden if he had any worries and he advised no.

We discussed some of the games he likes.

We discussed his home and he did not feel unsafe or have any concerns

Aiden was not interested in talking and I again discussed my role with him

Aiden was pleasant and was interactive.

[44] It appears from that interview that Aiden said he wanted to live with his father and that he does have friends. He said he was no fan of school and he did not say that he had more friends in Whitefish he just said that he had friends. The only evidence regarding Aiden's views and preferences is that he has stated a few times that he wants to live with his father.

[45] The father's evidence throughout is that Aiden hates his mother. The father said that Aiden has no respect for her and will not listen to her. I find it curious that Aiden said to Ms. Marcotte that he acts up at school, because his mother tells him too. If he really hated his mother and wanted to be with his father why would he listen and follow his mother's instructions to misbehave in the school that his father sends him too. I find it is more likely that his father has always stated in Aiden's presence that the explanation for his disruptive behaviour was Aiden's treatment at the hands of his mother. After years of hearing this Aiden may have internalized it.

[46] The known facts are that Aiden misbehaved at school once his father came back into his life and that his bad behaviour was observed at his school in Shelburne and at his school in Whitefish. The school reports do show that Aiden's marks and behaviour were better in the 2018/19 school year. Mr. Bouree the principal at Whitefish noted, and the father confirmed, that Aiden had formed a good relationship with his teacher Mr. Nelson. Interestingly the father said that Aiden could learn from a male teacher because he respected men. He said it would be a disaster if Aiden returned to Shelburne and to a school where he really disliked all of his female teachers.

The Father's Plan of Care

[47] The father said that the original house trailer had been winterized and made larger by joining a second trailer and putting a room between the two. In his oral evidence the father admitted that he had not told the mother before trial any information about the changes. All she knew was the CASDSM had not approved the trailer for winter living the year before.

[48] The father said that he did the winterizing about a month ago. He said that the two joined trailers are almost the size of three travel trailers now. He put in a propane heating source and there is a wood stove. The father said he also put in a boiler below the trailer so there is basic hot water space heating. The trailer is not completed yet. There is a roughed in shower, but it is not yet hooked up to the water supply so Aiden and himself either go to Ms. Roberts home to shower or to a hotel in nearby Nairn Centre. He says they have a shower a minimum of twice a week.

[49] The father became quite upset when Ms. Singh asked him questions about the trailer. He raised his voice and said that the CAS does not have an issue with his trailer so why was he being questioned about it.

[50] The father said his longer-term plan was to rebuild the house that had burned down in 2014. He just obtained a demolition permit to take down the remains of the home that the Society had insisted he board up when Aiden came to live with him. The father said replacing the house has been a slow process. There were civil suits against the mortgagees and three lawyers. It was not clear what the law suits were about, but the father said that he did not get the money he should have received from the lender. He mentioned other properties in the Sudbury area in which he had an interest and said that all of the properties are in litigation. The father effectively said that the lawyers were incompetent, and the mortgages were not registered properly. He was of the view that he would retain the 5.1 acre rural property upon which the trailer sits free and clear. He said he would not have a problem getting a new mortgage to rebuild his house and he planned to meet with a lender right after the trial to get the money.

[51] The father again displayed anger when questioned further about the property and the safety of the land and the trailer. He said the mother kept calling the CASDSM about the property and that she was harassing them and him.

[52] The father said that Aiden caught a bus to school that picks him up at the end of the driveway. Sometimes the father drove Aiden to school. When it was noted that Aiden had been late for school on 5 occasions before the October 29, 2019 school letter the father said that was because his homework was not done, and he helped him with it in the morning and then drove him to school.

[53] The father stated that he is a self-employed contractor and has flexible hours. He said he was usually home from work within 30 minutes of the bus dropping Aiden off. He purchased Aiden a cell phone so his son can call him from the bus. He said that Aiden was fine to be home by himself for that short period, but he could go across the street to his friend's house.

[54] The father said that Aiden was very upset that his mother would not let him bring his dog with him to Whitefish. The father said he would buy him another dog once custody is settled. He bought him a cat who had a total of 12 kittens. He will give 6 kittens away. When asked about the doctor's report that stated that Aiden was allergic to cats the father simply said that kids often grow out of allergies.

[55] When asked about discipline, the father said that he is" trying to avoid giving him discipline." He then admitted to some spanking with an open hand. The father then related that Aiden told him that he stole $50 from his mother. He did not punish Aiden for it, and he did not tell the mother about it. He said he simply told Aiden that he should not have done it and relied on the then 8-year-old child to tell his mother about it (it was not clear what happened to the stolen money). He did not follow up with the child as to whether he told the mother. When questioned on this admission he conceded that "maybe I should have told her about it." What was instructive about this story was that the father's point in telling it seemed to be to show the lack of respect the child had for the mother. The father implied that the mother could not encourage good behaviour because she could not even stop the child from stealing from her.

[56] The father said that he helps Aiden with his homework at night or in the morning. He said that Aiden is not yet reading, but he assists him in sounding out words. He pointed out that Aiden's mother would not be capable of helping him with homework. The father stated that he could not afford tutoring. He was proud of the fact that Aiden did not have an IEP at his school in Whitefish as he did in Shelburne. It needs to be noted though that Mr. Bouree the principal in Whitefish said in an e-mail that the school only had 108 students so there was a low student teacher ratio that made an IEP unnecessary in that environment.

[57] The father said that Aiden is a very active kid and he took him toboggining and Aiden rode quads and snowmobiles with other kids. Aiden loved to play on the large property. He also liked to help his Dad with his construction work. The father has allowed him to use some tools and he said he knew what was safe and what was not.

Access

[58] According to the court order the mother is permitted to phone Aiden frequently. Since then it was determined that on weeknights the calls would be between 7:00 and 9:00 p.m. The father said that on many occasions Aiden does not want to talk to his mother, so he does not pick up. The father thought that Aiden had the right to decide whether he wanted to talk to his mother on the phone and he should have the right to decide if he wants to see her. He has been told that he has to co-operate with access. He said that except for when his car has broken down, he has taken Aiden even though Aiden says he hates his mother and does not want to go. Although he wanted to let Aiden decide whether he wanted to have any contact with his mother he said that he had "decided to back down - that is why she is getting access."

[59] The father noted that the mother constantly called. He had bought the child a cell phone, but it is noted that he told Ms. Marcotte that he does not let him have it when he is home. It appears that the cell phone is to be used by Aiden to call the father from the bus or to allow the father to call the child when he is with the mother. The mother had given evidence that for a whole month neither the father nor the child's phone worked. The father said that the batteries needed to be re-charged.

[60] With respect to the mother's complaints that he restricted access the father initially said he gave the mother a whole extra week in August. It was apparent on further questioning though that the father asked for and received the start to mother's access block so that Aiden could attend a Sunday birthday party. Rather than exchange him on the Monday morning or even by 5:00 p.m. the father kept him until 8:00 p.m. on the Monday. The father knew that the mother was going to Parry Sound for 5:00 p.m. so he delayed bringing him on the flimsy excuse that 8:00 p.m. was the normal exchange time (on Fridays because of school). It was clear that the father enjoyed making the mother wait.

Medical Information and Counselling

[61] With respect to the mother's complaints that he does not provide her with information about the doctor, dentist, or counselling, the father said he had signed consents at the service providers and there was nothing to tell. Aiden went to the doctor's once in the 15 months he had been with his father and she found out about it afterwards. The child had just told him that his teeth hurt and asked if he could see a dentist, so he made an appointment. He had not arranged any counselling so there was nothing to report there either.

[62] The father admitted that the Societies had both recommended counselling for Aiden and the OCL recommended counselling for himself and for Aiden. He said that he took the child to Dr. Breau after the move, but he claims she initially said that there was no point in doing counselling until Aiden had lived with him for a year so there was some history of how things were going. The father did not tell the mother or her counsel that Aiden had seen Dr. Breau, and he never produced a report from Dr. Breau just a copy of her business card.

[63] The father was advised by Mr. Bouree and the CASDSM that he should take Aiden to see Dr. Oyefeso in Orangeville, but he chose not to. It was clear that he would rather have Aiden, a child in a high conflict family with behavioral issues, not be seen by a pediatrician than take him to one who practices in a community near the mother.

[64] Just before trial the father claims that he called Dr. Breau and received the names of two counsellors. When he called them, he was told that they do not do the kind of counselling that he requested. The father seemed to not want Aiden to have an individual counsellor. He said that if it is in the court order then they can go to counselling together.

[65] The father has not sought any personal counselling as has been suggested by both Societies and the OCL. He said he did not need counselling. He denied that he had a problem with his temper, and then said that he had completed four anger management courses. It is likely that these were all court mandated since the father does not think that he has an anger management problem. It is noted that the father likely was required to take these coursed in connection with his first assault conviction, the later domestic assault conviction and perhaps in relation to charges that did not result in convictions.

Obsession with Mother

[66] The father was clearly obsessed with the mother. Even though he has never paid her any child support and she is on a disability pension he was determined to show through the financial statements and exhibits filed that she had perjured herself and lied about her income and assets. For example, he had proof that she had bought a car for $6,000, and yet she listed it as only worth $4,500 on her sworn financial statement and that he asserted was lying under oath something he alleged she did routinely.

[67] The father said that the mother did not care about Aiden, but she wanted him to live with her so she could get child support and government benefits. He said that this case was all about the money for her.

[68] The father repeatedly said that the mother was a liar, an abuser, and a totally incompetent parent. He repeatedly said that he forces Aiden to talk to her and to see her. He said Aiden hates his mother, yet he did not seem to feel there was any problem with that. Certainly, he did not think counselling was necessary.

[69] The father noted that Aiden says, "why are they lying about you Daddy." It is not clear to what he was referring, but it implied that the father had told Aiden about things stated in the course of this litigation or things stated to him by the mother. To be fair, the mother is also very upset with the father and it is quite possible that she has said negative things to Aiden about his father including statements about why his father went to jail.

Problem with Authority

[70] The father used a very loud and aggressive tone when he insisted that he did not have a temper problem, but what he did have was a problem with authority. He said that he got very upset when people in authority lied to him. He implied that that had happened quite a bit and was the reason for his at least some of his criminal record.

[71] The father became quite irate when questioned about his criminal history. He insisted that it had absolutely nothing to do with custody of Aiden. He repeatedly stated that he had done his time so the crimes should be considered as off limits.

[72] The father said he did have a rigid personality. He also said that like him, Aiden had a problem with people who lie to him. He said that his son had a particular problem with women who tried to tell him what to do, and he linked that completely to the alleged abuse Aiden had suffered at the hands of his mother and his grandmother. When Aiden made very vulgar comments about women to his female teacher on October 4, 2019 the father said that he must have overheard those words in an exchange between his parents as he did not get the expression from him. This is just not credible as the parties had not spoken in over a year as the child goes from car to car during the Parry Sound exchanges.

[73] There was no doubt not only from what the father said, but how he said it that he had little respect for women generally. Aiden who is close to his father appears to have adopted his attitude.

[74] The father became quite exasperated during cross-examination and raised his voice to the point where he was almost yelling. He insisted that what was in Aiden's best interests was for him to be living with the parent he wants to live with. He said if that did not happen Aiden would not go to school, and he would become a delinquent. He said the child and himself had been battling this for too long.

[75] The father vehemently denied coaching his son to make statements but did admit that "periodically" he asked Aiden where he wanted to live. When asked further he said they had these discussions "maybe every two months" and they were triggered by incidents after he had visited his mother when he was "smashing his dinky toys." He said Aiden's behaviour was completely tied to upcoming visits or the period immediately after visits. He said when Aiden had a "backslide at school" it was because he did not have a good weekend with his mother.

[76] The father said that Aiden really wanted to come to court. The father said with a loud voice that "my son has the right to tell the judge where he wants to live." Given that statement it is not surprising that Ms. Roberts brought Aiden to the court room after picking him up from the caregiver. It sounds like Aiden has been empowered to think that his voice should be determinative in this matter. The father said that Aiden was scared of his mother, but angrily denied any suggestion that Aiden could be scared of him.

Child Support

[77] The father said that the mother did not pay rent to the MGM, and her financial statement showed that she could contribute some money towards Aiden's support. He noted that in the 2018/19 school year he had to pay before and after school care for the child of $6,000 without any contribution from the mother.

[78] The mother is on CPP disability, but she had recently started working some shifts for a friend at the Sunrise Diner. She helps out in the kitchen and earns a minimum wage of $14 an hour when she does that. The mother had a letter from her employer. She clarified that although the letter said she made $85 a week she did not always get sufficient shifts to earn that much, so it was not right to simply multiply that to get a monthly income.

[79] The father said that he is a self-employed construction worker and he works Monday to Friday and the weekends when Aiden is not with him. He said that his hourly rate depended on what he was doing and ranged from $35 an hour to $140 an hour less the cost of materials. He then estimated that his average take home pay was about $30 an hour.

[80] The father said he worked 40 to 50 hours a week. When Ms. Singh annualized that to $57,000 the father quickly said that his tax return does not reflect that. He said he takes deductions of at least $10,000 so his actual income is less than $50,000 a year.

OCL EVIDENCE

[81] Ms. Seymour (formerly Seymour-Betty) filed a very comprehensive report. The mother's interview took place in July 2018. A motion for temporary custody was adjourned to August 29 but had to proceed without the benefit of any input from the OCL.

[82] In the reasons for his decision of August 29/19 Justice Schwarzl stated:

10. Both parties make forceful arguments to support their position. The onus is on the moving party (the Father) to show that a temporary change now is better for Aiden than keeping things the way they are.

11. The father has met the onus for several reasons.

12. First weighing the evidence presented, I am satisfied that Aiden and his mother are currently in a state of opposition and hostility which is probably unhealthy for Aiden. In Mr. Martyniuk's letter of June 19 he reports that the school has described the Mother as emotionally exhausted at times with Aiden. Aiden has told Mr. Martyniuk that he dislikes living with his mother; that he wants to live with his father; and that his mother has told him bad things about his father. In Mr. Martyniuk's letter of August 21 it is reported that Aiden has told the worker that he hates his mother and that Aiden intends to get kicked out of school if required to attend in Shelburne. Mr. Martyniuk's information as set out in the materials is credible and reliable. He is an independent, arms length actor in this family's life. He has no reason to be partisan. He has a duty to "tell it like it is" and is neutral to the outcome of the proceeding. I am cognizant that the OCL has not yet completed its report, but I do not believe that Aiden's best interest is met in the atmosphere with his mother presented in the evidence. It would be contrary to Aiden's best interests to wait for weeks or even months before the OCL can be heard from.

13. Second there is an urgency regarding the motion. School starts next week. In my view it would be less disruptive to Aiden if he starts school in Whitefish and then, if necessary, has to transfer back to Shelburne. If he has to come back south, then Aiden will go to a place he knows and is familiar with, making the transition easier than sending him north part way through the school year should there be another court order made after the OCL report is presented. It is in Aiden's best interests to begin the school year being one of many new pupils meeting teachers and other students instead of possibly being sent up later and becoming "the odd man out."

14. Third, while the Father's plan of care is not ideal, it does not place Aiden in any dangerous, unhealthy or disreputable situation. The Father intends to move into an apartment and is in a position to provide for Aiden's care. While the mother as a stay-at-home mom may be able to provide comprehensive care, I am persuaded the plan of care set out by the Father meets the needs and best interest of Aiden at this particular point in time. Of course, should circumstances change, then the matter can be addressed upon further Motion.

[83] The OCL investigation was then put on hold on more than one occasion because of ongoing CAS investigations. The mother had contacted the CASDSM with many complaints about the father's ability to parent, the risks posed by his friend Ms. Janet Roberts and the living conditions in the unheated small trailer.

[84] Ms. Seymore interviewed each parent in their respective homes. She observed the child in the mother's home in Shelburne and in the father's trailer in Whitefish. She said that Aiden was very hard to engage when at his mother's home as he was very easily distracted. She said that he was a little more focused when she met with him the second time at his father's home.

[85] The visit in the Shelburne townhouse where the mother lives with the maternal grandmother occurred on July 24, 2018. The mother did her best to manage Aiden's behaviour and she dealt with his disobedience in an appropriate way. It appeared that while Aiden was able play a game with his mother he did not demonstrate any respect towards her and was rude with her.

[86] Ms. Seymore observed Aiden with his father on September 22, 2018 less than a month after the father was awarded temporary custody and Aiden had moved to Whitefish. Aiden interacted comfortably with his father. In her private interview with the father she noted that if she challenged anything he said the father raised his voice and used profanity. She then had to wait for him to calm down. He denied having a problem with his temper but did admit to having difficulty with authority.

[87] When she was asked about the suitability of the father's trailer for a residence for the young child Ms. Seymore said that when she was there the travel trailer was quite small perhaps 300 sq. feet. The trailer was not winterized, and she understood from CASDSM that living in the trailer was only permissible until December. At that time there was no shower or laundry facilities in the trailer. The father told Ms. Seymore that he planned to move into an apartment for the winter months.

[88] Ms. Seymore stated that the child had been exposed to a high level of conflict between his parents. DCAFS had reported that the child made vulgar and sexual comments in school. The father said that he had picked up this language from volatile exchanges between the parties. The mother said it was the father's abusive and filthy language that the child had overheard.

[89] In his cross-examination of Ms. Seymore Mr. Woods had her confirm that Aiden told her on two occasions that wanted to live with his father. Initially Aiden said he would visit with his Dad on weekends, and then later he said he would visit with his mother on weekends. The child did not express to Ms. Seymore that he hated his mother and he was attending for alternate weekend access visits with her after the September move.

[90] Ms. Seymore confirmed that the DCAFS worker Mr. Martyniuk said Aiden wanted to live with father and go to school in Sudbury. He had reported that Aiden had told the worker that he hates his mother, because she had told him when she was angry with his behaviour that "you're not my son anymore," and he was sent out of the house. Aiden talked positively to Mr. Martyniuk about activities with his father.

[91] The OCL report was very thorough but Ms. Seymore stated that she was unable to make a recommendation for custody. She said the task was very difficult as there were concerns with both parties. The mother had an inability to manage Aiden's behaviours and implement discipline. The father seemed to be able to provide more structure and Aiden did listen to him.

[92] Ms. Seymore made recommendations regarding time sharing and then made a number of additional recommendations in her report. The most relevant ones can be summarized as follows:

(a) The father to make a concerted effort to secure a permanent residence for himself and Aiden;

(b) The father to ensure that Aiden attends his scheduled appointment with a developmental pediatrician. The father to follow through with recommendations;

(c) Aiden to receive counselling to help support him in maintaining his relationship with both parents and his exposure to the high level of conflict between the parents;

(d) Both parents to seek counselling;

(e) Neither parent to make disparaging comments about the other or discuss custody and access issues; and

(f) The report to be shared with DCAFS and CASDSM.

[93] The evidence in this trial showed that the following had happened with respect to these recommendations:

(a) In or about late November 2018 the father moved from the trailer to a hotel and then to Ms. Roberts home and then back to the trailer in April 2018. The father has added on to the trailer to make the rooms bigger. He is in the process of installing a shower. He stated that he has added a propane heater to the woodstove and put some heating under the trailer that heats up the floor. He is in litigation with the mortgage company over ownership of the property. He claims that they did not register the mortgages correctly, and that there is no eviction notice and he owns the land upon which the trailer sits. He now has a demolition permit for the house that burned down but has not started the work. He says he can get financing to build another house. The father had no third-party evidence that he had properly winterized the trailer or that he had access to money to build a home.

(b) The father chose not to have Aiden attend his appointment on October 11, 2018 with the pediatrician Dr. Oyefeso in Orangeville. He had been urged to keep the appointment by the principal of Aiden's school. The father had contacted a Dr. Breau in Sudbury. He told Dr. Breau that Aiden needed to see someone about how he was settling in with the move to Sudbury and he was told that Aiden would have to be in his care for a year before she could assess that.

(c) Aiden has not received any counselling since coming into his father's care in late August 2018. Aiden has continued to exhibit challenging behaviours at school.

(d) The mother has an ongoing counsellor and she has taken parenting courses. The father has not attended any counselling since the recommendations although he did attend a parenting seminar put on by the Sudbury school board in June 2018.

(e) The father's statements to the OCL and his evidence in court make it quite clear that he is very angry with the mother and has absolutely no respect for her. The mother has contacted the Society on a number of occasions with concerns about the father's ability to parent. The mother called the police when the father was late for the first access exchange. At trial the mother was far less critical of the father than he was of her and she did not show the anger and bitterness that was apparent every time he spoke of her. However, the evidence was that the mother does not believe the father can provide the child with physical or emotional safety.

(f) The father had Ms. Roberts bring the child to the court after she picked him up from the caregiver in Orangeville. The child was standing just outside the court when the mother burst out of the court crying. The father had just stated that the MGM had kicked the mother's brother out of her house and the next day he killed himself. The brother had committed suicide in 2016 and the father made the comment in relation to what Aiden could do if the mother or MGM kicked him out of the house like he says she threatened to do. The mother was understandably upset by this cruel remark and it was made so much worse by the fact that the father intentionally said this knowing that his son was just outside the court room door and could hear and see her reaction when she ran past him out the door. When the mother re-entered the court, the father was observed to be smiling.

(g) Both Societies have had open files for much of the child's life. Both have closed their files, but the conflict is so high in this matter that a copy of this decision will be released directly to them.

ANALYSIS

[94] Custody and access decisions are governed by the provisions of The Children's Law Reform Act. The relevant section is s. 24 which reads as follows:

Merits of application for custody or access

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 .

Past conduct

(3) A person's past conduct shall be considered only,

(a) in accordance with subsection (4); or

(b) if the court is satisfied that the conduct is otherwise relevant to the person's ability to act as a parent. 2006, c. 1, s. 3 (1) ; 2016, c. 23, s. 7 (2) .

Violence and abuse

(4) In assessing a person's ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,

(a) his or her spouse;

(b) a parent of the child to whom the application relates;

(c) a member of the person's household; or

(d) any child. 2006, c. 1, s. 3 (1) ; 2016, c. 23, s. 7 (2, 3).

[95] I will address the best interests factors in s. 24 (2) that are relevant to the facts in this matter.

Love, Affection and Emotional Ties

[96] The evidence is clear that both parents love Aiden. The mother admits that Aiden loves his father and enjoys spending time with him. The father says that Aiden hates his mother and is scared of his mother and grandmother. Aiden has lived with his father for 15 months, but also had access every alternate weekend with his mother and he spent a month with her in the summer of 2019. The mother says that Aiden enjoys his time with her and is very reluctant to leave to go back to his father's care.

[97] The mother clearly does not like the father but is able to accept and understand that it is important for Aiden to have a positive relationship with his father. The father clearly hates the mother and I find that he has tried to influence Aiden to express those views. There is evidence from the principal that the father reminds Aiden what to say about where he where he wants to live. The father wanted to leave any contact with his mother totally up to Aiden when the child was not even 8 years old. He very reluctantly realized that he could not do that, but it must be very clear to Aiden that while with his father he cannot say anything positive about his mother. I think it is likely that alternate weekend access has only occurred because this trial was pending. The father does not want Aiden to have any relationship with the mother whom he describes as horrible and incompetent.

Views and Preferences of the Child

[98] There is evidence that in the spring and summer of 2018 Aiden stated that he wanted to live with his father. He also told the OCL initially that he wanted weekends with the father and then he said weekends with mother. He has not said to any professional that he wants to live with his mother. He said to Ms. Marcotte of the CASDSM as recently as October 19, 2019 that he liked living with his father.

[99] The father clearly believes that the child's expressed view should be determinative in this matter. The child's view is one of the factors in the s.24 (2) analysis that I must consider. It is trite to say that the older and more mature a child is the more weight should be attached to their views and preferences. In the spring of 2018 when his parents separated Aiden was 7.5 years old. As noted above, he had already experienced a lot of trauma in his young life. His parents had a high conflict relationship, his house had burned down, and he had lost his pets, his father was arrested, and he had to visit him in jail. He has sustained a great deal of loss. In January 2018 his father got out of jail and moved in with his mother. Four months later the father left again. Aiden expressed that he wanted to live with his father. Significant weight appears to have been given to his views and the fact that he was very oppositional to his mother and much less so to his father.

[100] I note that Ms. Seymore notes Aiden's views, but does not consider them to be that significant in the discussion section of her report. She had concerns with both parents. She put a lot of emphasis on counselling for both and for Aiden. The father has not allowed Aiden to see any child professional since. I am not prepared to put much weight on the statement that Aiden made to Ms. Marcotte. Aiden was not yet 9, the interview appeared to have been with the father and Ms. Roberts present and even if they were asked to leave the room Aiden knew that the father would find out what he said.

[101] I find that even if Aiden's views could be considered to be uninfluenced by his father, which is unlikely given the evidence, I find that at age 9 his views are a factor to be considered, but a factor that may be outweighed by other best interests considerations.

Time in Stable Environment

[102] Aiden has lived with his father for nearly 16 months. That is a significant length of time, but it must be noted that he has not lived in a stable environment. As noted above, Aiden moved at least three times in the winter of 2019. He now lives in a trailer that is still under construction-there is no working shower and the heat sources have not been verified as effective or safe by any independent person. There is litigation over whether the father actually is entitled to possession of the property. There is great uncertainty not only as to whether the father will be able to rebuild the house but as to whether he will be able to stay on the property.

[103] I find that the status quo living arrangements do not favour the father in all of the circumstances of this matter.

Willingness to Provide Guidance and Education

[104] A major factor in the temporary decision to have Aiden live with his father was that the child would not listen to the mother. Since then she has been involved in counselling, taken parenting courses and otherwise implemented the recommendations of the OCL. Prior to the father's release from custody in January 2018 Aiden was attending school regularly. The mother cooperated with the assessment and implementation of an IEP. She now has no issue with taking direction and advice from counsellors and teachers.

[105] By way of contrast once the father came into the home Aiden started missing large chunks of time from school. The father withdrew him from school for two weeks because he was upset at the reports of Aiden's behaviour. He did not seek out any professional advice, he just spent time with his son and then returned him to school. I have no doubt from the reports that I have read and the behaviour that I observed in court that if the mother and father disagreed on an issue involving Aiden prior to the separation that the father always got his way. It is true that Aiden had a much better year in Grade 3 with Mr. Nelson in Whitefish. It is also true that the father did connect with Mr. Bouree and generally appeared to listen to his advice. There was the notable exception though with the missed pediatrician's appointment that Mr. Bouree urged the father to have Aiden attend.

[106] When Aiden began Grade 4, he began acting out. Rather than thinking that he should have Aiden assessed or see a counsellor the father made the allegation that Aiden was following his mother's advice to cause problems at school. If that were true it would be evidence that Aiden was close to his mother and was trying to make things difficult for the father so he could return to live with her. The father's blind hatred of the mother caused him to attribute responsibility to her for any negative actions by Aiden.

[107] The father gave evidence that he helped Aiden with his reading and homework and that may be true. He said the mother would not do this. There is no evidence of that. The mother will seek help for Aiden. The evidence over the last fifteen months is that the father will not. The father did not even make a dentist appointment until the child complained that his teeth hurt.

The Plan Proposed by Each Parent

[108] As noted above, I find that the father's plan is unstable at best. The father puts a lot of emphasis on the fact that CASDSM have approved his living arrangements. Actually, they went to the trailer in the summer, they told him he must board up the remnants of the house and that he could not have his son live in the trailer in the winter.

[109] I note also that is not in the mandate of child protection agencies to determine if the parental plan is a good one or to compare it to an alternative plan. The Society was aware in the fall of 2018 that a judge had granted a temporary custody order to the father. Unless there were grounds that the child was in need of protection, as set out in the Child Youth and Family Services Act the Society could take no further steps. The mother appeared to have been very frustrated by that and the father seemed to think that his son not being apprehended meant that his plan was a good one. Both of them had the wrong views about the role of a child protection agency.

[110] The mother's plan is much more stable. She lives with her mother who either rents or owns the town house. Sadly, the MGM is quite unwell and the living conditions within the home are not ideal as the MGM has to effectively live in the living room. However, the child had his own room and complete use of the basement area of the home. The mother had friends and a supports system in the Shelburne area.

Ability to Act as a Parent

[111] Ms. Seymore's OCL was released on March 11, 2019 but was based upon interviews and observations conducted in July and September respectively. The report expressed concerns about the parenting abilities of each parent. Mr. Martyniuk of DCAFS expressed considerable concern over the mother's ability to manage the child. The child was rude and oppositional to the mother and acted out in school. She received advice to give him a time out in his room and then imposed a day long stay for a 7-year-old. The father was observed by both Ms. Seymore and Mr. Martyniuk to be better able to manage the child. I accept this evidence from two neutral professionals. I find though that there is now much more evidence available as to parenting ability.

[112] The mother said the father did not impose discipline on Aiden when they were together, and he undermined the discipline that she tried to impose. The father admitted that he tried not to discipline the child. The story he volunteered about the theft from the mother was a perfect example of the father not acting as a parent to the child. Any responsible separated parent would have ensured that the child apologized to the mother, that the money was returned and imposed a punishment on the child so that he would understand the seriousness of what he did. The father did none of these things and I find it was because he was pleased that the child stole from his mother because it showed that he did not respect her, and the father felt that would be evidence that the mother could not care for him.

[113] The father is also unable to follow any advice with which he does not agree. Good parents listen to child care professionals. If they do not agree with them, they ask questions or seek out second opinions. The father just ignores advice that does not suit his world view. He has thirteen cats in the trailer because he knows that kids grow out of allergies; The father did not take Aiden for counselling because he felt there was nothing wrong with Aiden. I find that the father did not want an independent counsellor to see Aiden because the father did not see any problem with Aiden allegedly hating his mother. The father was adamant that Aiden did not need an IEP because there was nothing really wrong with his son. He had no difficulty in keeping him out of school even when he knew that his now 9-year-old son could not read.

[114] I find that while the mother may have major challenges in parenting Aiden that she has also proven that she is receptive to advice and input. The father also has major challenges, but he is not receptive to any recommendations.

Past Conduct

[115] The father expressed at the trial that he should not be judged as a parent based upon his criminal record which includes a domestic assault conviction for which he was incarcerated. The father said that he had done his time and deserved a fresh start.

[116] The father would have a legitimate point if there was not recent evidence that the personality traits that drove his past conduct were still being exhibited. The father admitted to a rigid personality and a problem with authority. He denied that he had an anger management problem with a very loud and aggressive voice. The evidence was that the police had to be present at all court attendances and an officer was present throughout the trial.

[117] The father's evidence showed a complete lack of respect for women particularly those who could make decisions concerning his son such as the female teachers in Shelburne. The father is involved in multiple law suits even though he claims that he does not have enough money to fund a tutor for his son. The father's first reaction to anyone who disagrees with him appears to be to fight.

Abuse

[118] The mother said that the father was abusive to her, but he denied it. There were no criminal charges relating to the mother and no third-party evidence about physical abuse in the parties relationship. I find that there was a significant amount of evidence that the father was verbally abusive and made degrading comments to the mother. I find that Aiden is mimicking his father's comments in vulgar things he has said to teachers in both Shelburne and Whitefish. I reject the father's statement that the anti-female vulgar language must have been something the child picked up during access exchanges.

[119] The father stated that the MGM and the mother were abusive to Aiden. There is evidence that the mother had a great deal of difficulty in handling Aiden's direct disobedience. She may well have grabbed him to get him to brush his teeth or go to bed. Since then the mother had taken parenting courses and would have been taught other strategies to deal with his behaviour.

Custody and Access Decision

[120] For the above noted reasons I find that it is in Aiden's best interest to be in the custody of his mother. I recognize that this will not be an easy transition. As this may be a very emotional time for Aiden and for the parties, I have decided that he should not be exchanged in the dark at a Tim Horton's parking lot.

[121] The father should drive Aiden to the mother's home in Shelburne on Sunday December 15, 2019. This will allow the father an opportunity to get all of Aiden's belongings together and to drop them off with him.

[122] If the father does not deliver Aiden by 4:00 p.m. the mother can contact the police to enforce the order. If that should be necessary, it will be very traumatic for Aiden. If that should be necessary, it will demonstrate that the father is unwilling to abide by the order of this court. This will mean that the court cannot trust the father to exchange the child safely and on time. In that event, the court cannot risk making an access order that will not likely be followed. If the police have to be called to ensure the Aiden is delivered to the mother by the father, then the father's direct access to Aiden shall be suspended until the March Break. This period of suspension will allow the father to consider the consequences of his actions and it will give the mother time to arrange counselling for Aiden and put in place a safety plan for future access.

[123] Despite the high conflict, the parties have exchanged Aiden safely for over a year in Parry Sound. If Aiden is brought to the mother's home without incident, that exchange point shall continue. I have made the exchange of custody to occur on December 15 so that the mother will have an uninterrupted period with Aiden for two weeks over the Christmas season. I note that pursuant to the temporary order Aiden was to spend the first week of the holiday with his mother and the second week with his father. If Aiden is delivered on time on December 15, he will have two weeks with his mother, and he can still spend the second week of the school holiday with his father in Whitefish.

[124] The alternate weekend access involves a lot of driving for Aiden. It is approximately 4.5 hours each way so that is 9 hours in a car for a two-day weekend. The father made a proposal at trial for extended access once per month. Of course, he intended that the mother have once a month access, but the idea is a good one. Despite the importance of his school attendance I find that Aiden can miss school on a few Fridays to facilitate a three- or four-day access weekend with his father. To maximize the time, I will give the father access on all extended weekends during the school year. I have set out the exact dates in the order for 2020 to ensure that there is no confusion over dates and times. In the future the holiday days will be noted, and the times applied to the applicable date each year.

[125] It is important that Aiden be able to call either of his parents whenever he wants to. He has a cell phone and the mother shall ensure that it is always charged and able to take calls. It is also important that each parent learn to respect the other's time with Aiden, so I have restricted calls to Aiden to once per day for up to 20 minutes. It is important that both parties put aside their feelings for each other and facilitate Aiden having private calls with the other parent.

[126] I am concerned about whether the father's trailer can be safely occupied during the winter months. I am copying this endorsement to the CASDSM. I would like them to view the trailer to see if there is a working shower, adequate heating and whether there are smoke and carbon monoxide detectors (he has wood stove and some propane heating). I appreciate that the Society may not have an opportunity to make an appointment to do this over the holiday season. If they have not viewed the trailer since the heating was installed, then the father shall exercise any access before the Easter weekend at another location.

[127] I will make an order for Aiden to be registered in counselling. I will not make a counselling order for either parent in this final order. The mother has already arranged counselling and the father has made it clear he has no interest in doing so and a final order that he attend counselling would be ineffective and unenforceable.

Child Support Issue

[128] The child lived with the mother from the end of April 2018 to the end of August 2018. The father was required by Justice Pugsley's order of May 30, 2018 to pay child support to the mother in the amount of $247 per month from June 1, 2018 on. The father did not pay any child support. Justice Schwarzl transferred temporary custody to the mother on August 29, 2018. That order did not suspend or terminate the father's child support order. It will be suspended effective August 31, 2018.

[129] There was no order made for the mother to pay child support to the father once Aiden came to reside with him. This will be addressed by way of a set off against the father's renewed support obligation.

[130] The endorsement record shows that the father filed a Financial Statement on June 20, 2019. That statement was not included in the Trial Record and was not filed in evidence at the trial. The mother seeks child support based upon an imputed income to the father of $57,600. The father said under cross-examination that his income was much less than that but conceded it might be $50,000. I find the father's evidence to be unreliable. I had the clear impression when he was responding to Ms. Singh's questions that he was trying to portray himself as a successful owner of a construction business. He proudly stated that he had some jobs for which he was paid $140 an hour less materials.

[131] I find that this is an unusual case in which the father has likely overstated his income in his evidence. I find that when the father answered the questions in cross-examination, he did not view himself as a possible support payor. He seemed totally focused on ensuring that the mother pay child support and despite not having provided his financial statement for trial he spent some time in trying to show that the mother "perjured herself" in her financial statements.

[132] I note that the father stated that he did not work long hours in the winter months and that during the school year he was usually home within 30 minutes of the school bus arriving. The father said he had not installed a shower in the trailer, because he could not afford to do so. The father was trying to borrow money to start the demolition and rebuilding of his house. The father is embroiled in litigation and may need to obtain funds to rent a hotel room or an apartment in order to have Aiden stay with him.

[133] I find that there is no reliable evidence before me on the father's true income. In these circumstances I will impute a minimum wage income of $29,000 to the father which is the sum of $247 per month.

[134] The mother has a CPP disability income of $15,336. She has just started working at a diner but has minimal hours. I will impute an additional $250 per month in income to her which will bring her annual income to $18,336. This works out to a CSG table amount of $142 per month.

[135] The child support shall be set off as follows:

• Amount owed by father to mother May 1 to August 31, 2018: $247 x 4 = $988
• Amount owed by the mother to the father: September 1 2018 to December 14, 2019, $142 x 15.5 = $2,201
• Net credit owing to the father: $1,213

[136] The net credit shall be set off against the child support in the amount of $247 per month that would otherwise begin on December 15, 2020. The credit will be for 4.9 months rounded up to 5 months. This means that the father's child support obligation shall begin on May 15, 2020.

Costs

[137] I have considered the issue of whether there should be costs in this matter. I note that the mother was the successful party and is presumptively entitled to costs under Rule 24 of the Family Law Rules.

[138] There were no costs awarded after the August 29 motion in which the father was successful in obtaining an order for temporary custody. I recognize that the father was self-represented and the only costs that would have been ordered were his disbursements and/or expenses.

[139] Despite the high conflict nature of this file the parties did cooperate in arranging a fixed trial time and agreeing to affidavit evidence subject to cross-examination. They chose not to call additional witnesses which allowed the matter to be tried in the time allotted. This type of case can often take days, if not weeks, of trial time. Parties should be encouraged to consent to procedural orders that focus the issues.

[140] I also note that both parties cooperated with the preparation of the OCL report. The OCL report did not make a custody recommendation. It did not state that the child should be removed from the father's care. This means that the father took this matter to trial at a time when he had a temporary custody order and an arguably neutral OCL report. As noted above, the fact that he did not follow the terms of the custody order and OCL recommendations was a significant factor in the decision. However, this was not a matter in which a litigant insisted on proceeding to trial when he should have known that that he would not be successful.

[141] I have the discretion to not award costs and I exercise that discretion in this matter.

FINAL ORDER

(1) The Applicant shall have custody of the child Aiden John Alvin Woods, born […], 2010.

(2) a) The Respondent shall deliver the child to the Applicant's residence on Sunday December 15, 2019 by 4:00 p.m.

b) if the child is not delivered by the deadline the Ontario Provincial Police, the Sudbury Regional Police, the Shelburne Police Service and any other police service in Ontario with jurisdiction may locate and apprehend the child pursuant to the provisions of s. 36 of the Children's Law Reform Act.

c) a copy of this order shall be e-mailed to the principal of R.H. Murray Public School in Whitefish, the Children's Aid Society of the Districts of Sudbury and Manitoulin and Dufferin Child and Family Service ('DCAFS") in the event that the school or either agency is needed to assist the police in enforcing this order.

(3) The Applicant shall take all necessary steps to have the said child enrolled in Glenbrook Public School in Shelburne Ontario so that he is able to attend there on January 6, 2020.

(4) The Applicant shall e-mail the Respondent with all important information concerning the child including all medical, dental and counselling appointments as soon as they are made. She shall sign a direction at the child's school, doctor and dentist authorizing them to communicate with the Respondent by e-mail.

(5) The Applicant shall immediately register the child in counselling with a counsellor approved by DCAFS for children who have experienced trauma and high conflict parenting. Neither party shall contact the counsellor so that the child can be free to speak to the counsellor without any concern about what may be communicated to either parent.

(6) If the Respondent delivers the child to the Applicant on December 15 at 4:00 p.m. without any need for police involvement, the Respondent shall have access to the child as follows:

(a) Telephone or video conference access once per day for up to 20 minutes;

(b) Saturday December 28 at 4:00 p.m. to Saturday January 4 at 4:00 p.m.;

(c) Thursday February 13 at 7:00 p.m. to Monday February 17 at 7:00 p.m.;

(d) Sunday March 15 at 4:00 p.m. to Saturday March 21 at 4:00 p.m.;

(e) Thursday April 9 at 7:00 p.m. to Monday April 13 at 7:00 p.m.;

(f) Thursday May 14 at 7:00 p.m. to Monday May 18 at 7:00 p.m.;

(g) Thursday June 18 at 7:00 p.m. to June 21 at 7:00 p.m.;

(h) Saturday July 4 at 7:00 p.m. to Sunday August 2 at 7:00 p.m.;

(i) Thursday September 3 at 7:00 p.m. to Sunday September 6 at 7:00 p.m.;

(j) Thursday October 8 at 7:00 p.m. to Monday October 12 at 7:00 p.m.;

(k) Saturday December 26 at 4:00 p.m. to Saturday January 2 at 4:00 p.m.;

(7) If the police are required to apprehend the child or to assist in the delivery of the child to the Applicant by December 15 at 4:00 p.m. then the Respondent shall have the following access:

(a) Sunday March 15 at 4:00 p.m. to Saturday March 21 at 4:00 p.m.;

(b) Thursday April 9 at 7:00 p.m. to Monday April 13 at 7:00 p.m.;

(c) Thursday May 14 at 7:00 p.m. to Monday May 18 at 7:00 p.m.;

(d) Thursday June 18 at 7:00 p.m. to June 21 at 7:00 p.m.;

(e) Saturday July 4 at 7:00 p.m. to Sunday August 2 at 7:00 p.m.;

(f) Thursday September 3 at 7:00 p.m. to Sunday September 6 at 7:00 p.m.;

(g) Thursday October 8 at 7:00 p.m. to Monday October 12 at 7:00 p.m.;

(h) Saturday December 26 at 4:00 p.m. to Saturday January 2 at 4:00 p.m.;

(i) This access shall only occur if the Respondent has met with the CASDSM and they have sent a letter to DCAFS stating that there are no child protection concerns in the plan of access that they have reviewed with the Respondent.

(8) In 2021 and in all subsequent years the Respondent's access shall occur on the days of the week and the exchanges shall be at the same times as the days and times set out in paragraph 7 but as the dates of holiday weekends are different each year the access shall be as follows:

(a) The first week of the Christmas school holiday every even numbered year and the second week in every odd numbered year

(b) The weekend of Family Day

(c) March break

(d) Easter weekend

(e) Victoria Day weekend

(f) Father's Day weekend

(g) The month of July

(h) Labour Day weekend

(i) Thanksgiving Day weekend

(9) The Respondent's access is subject to the following terms:

(a) Access cannot occur at the Respondent's trailer in Whitefish until April 9, 2020 unless he provides to the Applicant a letter from CASDSM that they have attended at the trailer after today's date and deemed if safe for a child to stay overnight.

(b) The child shall be exchanged for access at the Tim Horton's location in Parry Sound. Neither party shall exit their vehicle during the exchange.

(c) The child shall not leave the R.M of Sudbury during access except for direct transportation from the R.M of Sudbury to the Tim Horton's in Parry Sound.

(d) The child shall have a personal cell phone with him at all times during access which shall remain charged and able to receive calls.

(e) The Applicant may contact the child by telephone once per day for up to 20 minutes.

(10) The Respondent shall pay to the Applicant for the support of the child the sum of $247 per month beginning May 15, 2020 and payable on the first day of each and every month thereafter. This amount is based upon an imputed income to the Respondent of $29,000.

(11) The A. shall advise the R. by email before incurring any s.7 expenses for which she wants a contribution by him. These expenses shall include counselling and tutoring. Within 30 days of being advised of the expense the R. shall pay to the A. his 60% proportionate contribution to same. If the R. fails to pay within 30 days the A. may send the invoice for the expense and proof of the email notice to the FRO and it shall enforce payment of the expense.

(12) Unless the Support Order and Support Deduction Order is withdrawn from the Office of the Director of the Family Responsibility Office, it shall be enforced by the Director, and amounts owing under the Support Order shall be paid to the Director, who shall pay them to the Party to whom they are owed.

(13) If the Parties agree to opt out of the Family Responsibility Office at any time, they are both required to file with the Office of the Director of the Family Responsibility Office a separate written request consenting to the withdrawal of the Support Order and the Support Deduction Order.

(14) This Order bears post-judgment interest at the rate of 2% per annum effective from the date of this Order. Where there is a default in payment, the payment in default shall bear interest only from the date of default.

(15) For as long as child support is paid, the Payor (and Recipient, if applicable) must provide updated income disclosure to the other party each year, within 30 days of the anniversary of this Order, in accordance with section 24.1 of the Child Support Guidelines.

Released: December 13, 2019

Justice Philip J. Clay