ONTARIO COURT OF JUSTICE

CITATION: Kozera v. Budge, 2021 ONCJ 18

DATE: 2021 01 6

COURT FILE No.: Sudbury 26-19

BETWEEN:

JAMIE KOZERA

Applicant

— AND —

SAMANTHA BUDGE

Respondent

Before Justice Randall W. Lalande

Heard on November 2, 3 and 4, 2020

Reasons for Judgment released on January 6, 2021

Liisa Parisé............................................. counsel for the applicant father, Jamie Kozera

Trevor Kestle............................ counsel for the respondent mother, Samantha Budge

LALANDE J.:

1: INTRODUCTION

[1] The applicant, Jamie Kozera (the father) is 38 years old. He was born on […], 1982. He is employed at Canadian National Railway and currently resides in Hanmer. He is married to Julianne Kozera.

[2] The respondent, Samantha Budge (the mother) is 38 years old. She was born on […], 1982. She is a qualified ultrasound technician. She has recently obtained new employment as a child and youth worker with the Atikamekshing Anishnawbek Health Centre. She resides in Espanola.

[3] The applicant and the respondent started a common law relationship on July 1, 2012. They are the biological parents of Ellie Grace Kozera (Ellie) born on […], 2013. They became separated on July 20, 2014 when Ellie was just under 1 ½ years old.

[4] After the separation, the mother and father continued to reside in the same house in Hanmer until October 13, 2014 at which time, the mother and the child Ellie moved to Espanola.

[5] The mother and father signed a separation agreement dated November 6, 2014. The agreement provided for joint custody with Ellie’s primary residence to be with her mother and to include access to the father of one day per week arranged in accordance with his work schedule (and Ellie’s needs). The agreement also provided for overnight access on at least one Saturday each month. The agreement also spoke to holiday access and increased access on a reasonable basis taking into account Ellie’s age and attendance at school.

[6] Ellie has continued to reside primarily with her mother to present. She is now seven (7) years old. She has completed junior and senior kindergarten and grade 1 at Ecole St. Joseph, Espanola. She is currently enrolled in grade 2 as at September 2020.

[7] The father filed an application on August 15, 2019. The father is asking for sole custody and primary residence of Ellie with access to the mother suggested at three weekends per month and week about access during the summer. The mother’s answer was filed October 28, 2019. The mother is asking that the father’s application be dismissed with costs. The mother is requesting that she and the father have joint custody with primary residence to herself and access to the father (essentially the status quo).

2: HISTORY OF PROCEEDINGS

[8] Commensurate with the application filed on August 15, 2019, the father brought an urgent motion seeking an interim order for custody.

[9] On August 26, 2019, Justice Humphrey granted an interim, interim without prejudice order on consent providing specific access times and confirming the child’s attendance at school on a full-time basis. Justice Humphrey also appointed the Office of the Children’s Lawyer.

[10] On April 6, 2020, Ms. Jill Anderson, clinician on behalf of the Office of the Children’s Lawyer, completed a full report which was forwarded to the parties on April 7, 2020.

[11] On July 14, 2020, the father brought an urgent motion asking for an order that the child be in his primary care and attend school commencing September 2020 at École Séparé Notre-Dame in Hanmer.

[12] On July 15, 2020, Justice Mendes scheduled a settlement conference for July 20, 2020. The conference was subsequently adjourned to August 12, 2020. The settlement conference was conducted before Justice Guay. He defined the issues to be dealt with within the motion which was adjourned to August 31, 2020.

[13] On August 31, 2020, I determined that the core issues set out in the application should be decided at trial with the parties present. Trial dates were set and a trial management conference scheduled. The following was ordered pending the trial:

a) The child shall continue to attend school at Espanola. The child shall not miss attending any regular school scheduled days, absent bona fide health issues or issues beyond the mother’s control;

b) The mother shall provide the father notice via text notifying him of any day that the child has missed school and the reason therefore;

c) The status quo regarding the father’s access as set out in Justice Humphrey’s order of August 26, 2019 shall remain.

[14] On September 28, 2020, the father brought two motions. One motion sought an order holding the mother in contempt, for interim custody of the child with supervised access to the mother and a police enforcement clause. The second motion sought disclosure of records in possession of the Children’s Aid Society of the Districts of Sudbury and Manitoulin.

[15] On October 2, 2020, a trial management was commenced. Two motions (September 28, 2020) were also spoken to as follows:

• Motion for CAS records (filed September 28, 2020). The relief sought was granted on consent; and

• Motion for contempt (brought September 28, 2020). This motion was addressed, not dealt with and adjourned to October 7, 2020.

[16] On October 7, 2020, the trial management conference was continued. The procedural matters regarding the trial were discussed and put in place. The motion for contempt was adjourned to the trial date(s).

[17] The trial proceeded as scheduled on November 2, 3 and 4, 2020 following which final submissions by counsel were scheduled to proceed on December 1, 2020.

[18] Pending completion of the trial (completed on November 4, 2020) and prior to submissions by counsel (scheduled for December 1, 2020), the father brought a further motion on November 9, 2020 seeking an order finding the mother in contempt, for interim custody and a police assistance clause. On November 12, 2020 a copy of my endorsement dealing with this further motion was provided to counsel.

[19] On December 1, 2020, prior to counsel making final submissions, the issue of the father’s motion brought on November 9, 2020 was procedurally dealt with on consent. Counsel agreed that the evidence submitted by the father in support of the motion and the mother’s responding affidavit evidence be considered as part of their respective in-chief trial evidence without further cross-examination on the understanding that the court would be attributing proper weight to the evidence.

3: OVERVIEW

[20] By way of overview, I shall refer to and/or summarize some of the evidence given by the parties and their witnesses. All of the evidence has been considered for the purpose of these reasons. It should not be taken that evidence not specifically mentioned or referred to in these reasons has not been considered or been given less weight.

[21] When Ellie was born on […], 2013, the father was working full-time. The mother had been working as an ultrasound technician. She went on maternity leave. The mother was at home full-time with Ellie. Both she and the father cared for Ellie on nights and weekends or when the father (who was working shift work) could be home.

[22] Although separated, the mother and father resided under the same roof for several months up to October 13, 2014 at which time the father continued to occupy the home and the mother and Ellie moved to Espanola. The mother initially resided with her mother until she purchased a house in November 2014.

[23] The mother and father signed a separation agreement on November 6, 2014. They each confirmed that the terms of the father’s access pursuant to the agreement were not followed.

[24] According to the father, he cared for Ellie at least one half of the time. In his affidavit, he outlined how he would care for Ellie on his days off plus additional time on occasions when the mother would request his assistance either because she was not feeling well or had other plans. According to the mother, after she and the father separated, Ellie primarily resided in her care. She does agree that the father had generous and liberal parenting (access) time. There is no issue regarding the father’s participation and devotion to the child.

[25] Although not without wrinkles, it appears there existed workable harmony between the mother and father on the issue of Ellie’s care and time sharing for a significant period of time after they separated and signed the separation agreement.

[26] Collaboration between the mother and the father did not last. The father attributes the commencement of the downfall of his cordial relationship with the mother to a time commensurate with his disclosure of his relationship with Julianne Lapalme (they married on June 29, 2019). In mid 2017, the father decided that Ellie should meet Julianne. It is soon after this meeting, says the father, that the mother’s cooperative­ness started to dwindle.

[27] From the mother’s viewpoint, there were no major issues following her separation with the father regarding access or time sharing or child support. Child support was agreed to at $800.00 (which was below the Child Support Guidelines). In terms of quantum of child support, she stated that they both agreed to what was “fair”. The mother and father also agreed to joint custody within the separation agreement. The mother and father also essentially agreed to not adhere to the separation agreement in terms of access or time sharing.

[28] The mother testified that she and the father made an effort following separation to remain civil. She does not agree his access equated 50% of the time. The mother attributes Ellie starting school (i.e. Junior Kindergarten in September 2017) as a factor relating to the decline in her post-separation relationship with the father. After Ellie started school, the father started a more structured form of access. The father’s time with Ellie then included weekends from Friday to Monday, ultimately adjusted to three weekends per month plus a sharing of holidays.

[29] The mother denies, at least initially, that the father’s relationship with Julianne impacted the issue of his access. She testified that Julianne became “a new woman in Ellie’s life” but that she and Julianne, at the outset, made an effort to become friends. The friendship between them, however, was short lived. According to the mother, Julianne at one point “turned on her”. She also candidly admitted that she became hurt after Julianne personally contacted the Children’s Aid Society about her.

[30] Generally, for the period between 2013 and 2017, the mother and father worked matters out and made reasonable mutual concessions in the process. They agreed to a joint custody arrangement with Ellie primarily living with her mother and took into account the father’s work schedule in order to fine tune his time with the child. Ellie has always resided with her mother. She has displayed affection to both parents.

[31] The father advances the theory that the mother has embarked on a campaign to alienate Ellie from him. From the father’s perspective, the mother has engaged in a form of ongoing child manipulation. In so doing, the mother has ignored her parental responsibilities. This has included a refusal to ensure ongoing access/time sharing (even if court ordered) allowing the child (directly or subtly) to be privy to adult issues, failing to take pro-active measures to ensure the child attends school and minimizing any benefit(s) the child may have or enjoy within the sphere of the father’s life, including his family.

[32] The father has not relented in challenging the mother’s conduct which he perceives as a conscientious effort on her part to oust him and his family from the child’s life.

[33] According to the father, the mother has no insight in understanding the impact of her behaviour and in essence has failed in her job to promote a positive relationship between Ellie, himself and his family.

[34] In this context and also factoring in peripheral issues such as the mother’s lifestyle and seeming willingness to socially engage with partners of worrisome repute, it is the father’s position that the mother lacks capacity to be a full-time parent and it would be in Ellie’s best interest to be removed from her care and placed with him.

[35] From the mother’s viewpoint, a number of changes took place in Ellie’s life since 2017 including the father’s new relationship, his marriage, their new baby and Ellie starting school. Also, and of some importance, would be the fact that Ellie also had to adjust to a fresh access/time sharing schedule.

[36] According to the mother, and as expressed by her counsel in his opening remarks, the root cause of Ellie’s discomfort may have stemmed from her father having a second family, not from her conduct. The issue of Ellie’s health and her strong attachment to her mother were also raised in the mother’s evidence. The mother expressed concern about Ellie’s emotional health. She stated that Ellie, although healthy and happy for the most part, has been going through “an emotional rollercoaster”. She also at times has been suffering from anxiety and upset stomach.

[37] The mother testified that Ellie “expresses everything to her” and that they are very close to the point where Ellie is referred to by her mother as “momma suckey”. The mother says that Ellie often has much difficulty leaving her or physically separating from her. This manifests itself in outings, at school or when Ellie is scheduled to leave with her father. In the evidence, the profound clinginess demonstrated by Ellie, as witnessed by others, has been referred to as “an attachment issue or separation anxiety” (not medically diagnosed) and has been associated with Ellie’s behaviour.

[38] In her evidence, the mother stated that a family doctor had recently extensively interviewed Ellie and had referred her to a child psychiatrist. As at the last day of trial, Ellie had not yet been seen by a child psychiatrist.

[39] The mother indicates that Ellie had never been enrolled in daycare and has had an extremely hard time, especially against the backdrop of her anxiety and attachment issue(s), adjusting to school.

[40] The mother denies speaking inappropriately to Ellie or exposing her to adult discussions. The mother specifically denies speaking to Ellie in negative terms about her father or his wife Julianne. According to the mother, she understands the importance of Ellie maintaining a wholesome relationship with her father and has been actively trying to get Ellie motivated to want to be with him. In her evidence, the mother indicated that this has been a struggle that she has been dealing with sometimes to the point of exasperation.

DISCUSSION

[41] Much evidence was advanced on several main issues of importance to this case including the following.

1) Ellie’s schooling

[42] Ellie was enrolled in Junior Kindergarten in September 2017 at École St. Joseph, Espanola. Ms. Lynn MacLean has been principal of the school for the past four (4) years. She was called to testify.

[43] Ms. MacLean confirmed that enrolment of a child in school at the Junior or Senior Kindergarten level is voluntary. Should a child attain the age of six (6) years prior to December 31 of that year then that child is required to attend school in Grade 1. Ms. MacLean further indicated that even if a child is not obliged to attend school (i.e. Junior or Senior Kindergarten), if enrolled, then that child is fully expected to attend on all school days and on time.

[44] Ms. MacLean explained the protocol invoked by the school in situations where an enrolled child fails to attend or is routinely late. Protocol measures were invoked regarding Ellie. For the school year 2017-2018 (Junior Kindergarten) Ellie was either absent or late for school a total of 113 days (out of 190 school days). There was not much improvement at the Senior Kindergarten level. Ms. MacLean testified that Ellie was absent 100.5 days and late 18 days.

[45] Ellie’s attendance record was not as dismal in Grade 1 but between September 2019 and March 2020, she missed 26 days of school and was late 19 times.

[46] Notwithstanding the attendance record, Ellie was described as a witty, smart and participatory student. Ms. MacLean confirmed that Ellie would excel and for the most part pick up on material missed. In other words, she would catch up quickly.

[47] Ms. MacLean outlined steps taken by the school including “red flagging”. The protocol involves follow-up measures including discussions with parents, letters to parents and ultimately a request for assistance by an attendance officer.

[48] Because Ellie’s absences and lateness persisted in Grade 1, Ms. Anick Ledo-Theriault, vice principle at École St. Joseph, on May 21, 2019, contacted Children’s Aid Society of the Districts of Sudbury and Manitoulin (CAS). It is noteworthy that Ms. Ledo-Theriault made the comment “the child practically had to be ripped out of the mother’s arms to stay”. She also indicated that once in class, Ellie appeared to be fine. It is also to be noted that on July 26, 2019, the following entry was made in the CAS record: “Ellie appeared to have a very strong bond with her mother”.

[49] CAS received a call from Julianne on June 17, 2019 indicating that Ellie was always naked, lots of men were in and out of the mother’s home, Ellie’s bedroom is cluttered, her hair and teeth are not brushed, she eats junk food for breakfast and lunch and her mother smokes with her in the vehicle. The mother was contacted. She confirmed that since being separated in 2014 she has had three boyfriends. She denied the existence of any other issues listed by Julianne. The circumstances brought to the Society’s attention were investigated and subsequently the file was closed.

[50] Ms. MacLean testified that she was aware that Ellie became emotional and at times exhibited tantrums when her mother brought her to school. She also indicated that once Ellie was inside the school, she made no mention of wanting to go home.

[51] In Ms. MacLean’s observation the mother (although not always successful) tried to get Ellie into the school. She also indicated that whenever Ellie was dropped off at school by her father, the situation was very different. The father was seen to console Ellie for a few seconds following which she would enter the school without much fuss, if any.

[52] Ms. MacLean indicated that she noticed an improvement once Ellie attained Grade 1. Ellie’s reluctance to separate with her mother and enter the school started to subside.

[53] Ellie is now in Grade 2. As at October 27, 2020, she has missed ten (10) days school and has been late twice. This would be out of a total of 34 days. Some of the missed days have been accounted for by way of medical note. Currently and in terms of Ellie being in Grade 2, Ms. MacLean has identified an improvement and when speaking about Ellie indicated “she is great” and that there are no issues about 75% of the time.

[54] The mother acknowledges that Ellie missed a substantial amount of school. In her evidence she explained that during the first two years of school (Junior and Senior Kindergarten) Ellie often did not want to go to school and complained of being ill. She had a very difficult time when dropping Ellie off at school as Ellie would display tenacious reluctance to leave her care.

[55] The mother says that she has continued to work on the issue of Ellie’s school attendance and that as a result her school attendance has improved significantly. She states to her understanding from discussion with the school principal Ms. MacLean, Ellie is not lagging in her learning and is essentially progressing satisfactorily. She also recognizes Ellie to be maturing.

[56] Ms. MacLean confirms that Ellie continues to be “red flagged” partially because the issue of absenteeism and lateness (although identifiably improved) has not been fully resolved and partially because of her past history. Currently the issue of absenteeism and lateness has been impacted by Covid-19 but this factor would affect all students.

2) Access/Time Sharing

[57] The father identified several issues pivotal in him seeking assistance from counsel in September 2018 and in 2019 including:

• Child’s absence from school (which he says the mother did not think was “a big deal”;

• CAS involvement (CAS were contacted by the child’s school and also by Julianne);

• Break and enter into the mother’s home by someone known to her (Ellie was not present);

• The mother allowing Ellie to ride in the front seat of her vehicle;

• The mother exposing Ellie to adult discussions;

• The mother using improper and derogatory language (toward the father);

• The child seen naked on facetime on one occasion when the mother’s boyfriend was present;

• The mother’s relationship with Beau Davidson.

[58] The father and Julianne became married on June 29, 2019. Julianne was pregnant at the time. According to the father, access issues emerged following disclosure of Julianne’s pregnancy. For a period extending approximately 7.5 weeks, the father did not have access or time with Ellie. This resulted in him bringing the application and motion on August 15, 2019 which resulted in Justice Humphrey’s order made on August 26, 2019.

[59] The mother states that she harbours no ill will against the father or his spouse Julianne, nor has she ever spoken negatively about the father or Julianne to the child. The thrust of the mother’s evidence is that Ellie has had a difficult time adapting to changes in the father’s life. The mother admits having lost her temper with the father and calling him names verbally or via text. She indicates that both she and the father at times exchanged words and that she would usually step outside if speaking with him on the telephone. The mother specifically stated: “I do not talk negatively about him or his spouse in front of Ellie”.

[60] The mother testified that she agrees with counselling as recommended by the report of the Office of the Children’s Lawyer in order to address Ellie’s anxiety and reluctance (or refusal) to attend and be with her father. The father is critical of the mother “not doing her job” as a parent. Her parental inaction, according to him, is tantamount to abandoning Ellie by not providing direction and emotional guidance.

[61] On the other side of the coin, the mother maintains that she has actively encouraged Ellie to be with her father and that she is poised to continue to do so.

[62] Examples of Ellie’s behaviour (which the mother maintains she has been struggling to deal with) have been observed first hand by others:

• Ms. Aline Lepine is a child protection worker. She attended at Ellie’s school and also interviewed the mother on a number of topics. On October 1, 2020, she attended at the mother’s home. On that day she was told by the mother that Ellie was scheduled to visit with her father. Ms. Lepine told Ellie that her grandmother was on her way to pick her up. Ms. Lepine was taken by surprise by Ellie’s reaction. Ellie became upset, hid behind a chair and said she did not want to go. She locked herself in the bathroom. Ms. Lepine observed the mother trying to encourage Ellie. She overheard the mother saying: “Dad loves you as much as mom”.

Ms. Lepine had a follow-up discussion with the mother and also with Ellie on October 9, 2020. Ellie confirmed that her mother encourages her to be with the father.

• Valerie Larocque is a counsellor. From July 9, 2020 to November 3, 2020, she completed eight (8) counselling sessions with Ellie. She confirmed that both parents bring Ellie to her office for sessions. On October 2, 2020, the mother brought Ellie to her appointment with Ms. Larocque. Ms. Larocque observed Ellie to be clingy with her mother. She did not want her mother to leave. Ellie was saying: “I don’t want to leave you”. Ms. Larocque observed the mother trying to comfort Ellie. Ellie then stated: “Mom you’re going to wait for me”.

The father arrived soon after. Upon his arrival, Ms. Larocque noticed that Ellie changed completely. She described this as a switch. Within minutes of the father’s arrival (the mother presumably having departed), Ellie completed a meaningful counselling session with Ms. Larocque.

Ms. Larocque made the comment that Ellie’s behaviour was “not common”. Ms. Larocque identified separation anxiety as one of the reasons for which she was counselling Ellie.

• Kenneth Budge is Ellie’s maternal grandfather. He has lived in Espanola all his life. He has had a close relationship with Ellie. He describes Ellie’s relationship with his mother as “very tight”. In his testimony, Mr. Budge recounts a day when the mother, himself and Ellie had gone to a beach on Manitoulin. The father was scheduled to meet them and pick up Ellie later that day in Espanola. Mr. Budge said that he noticed Ellie becoming increasingly jittery as the father’s pick-up time got nearer.

The father was already present at the mother’s home with Julianne upon Mr. Budge, the mother and Ellie arriving. He said that Ellie “buckled down and refused to go”.

Mr. Budge said that he recalled Julianne asking “Why we were so negative with a five year old”. The mother then invited Julianne and/or the father to take Ellie. Ultimately, the father, to his credit relented. He did not force Ellie to go with him.

Mr. Budge more recently observed another incident where Ellie ran and locked herself in her bedroom. He described her as being “very upset”. She did not leave her mother’s home that day. Mr. Budge said that he agreed Ellie should be having a close relationship with her father. He acknowledged that Ellie is the father’s priority. He also indicated that the mother is always seen to encourage Ellie to go with her father.

• Susan Budge is Ellie’s maternal grandmother. She and Kenneth Budge (grandfather) reside nearby and across the street from Ellie and her mother. She described how Ellie is attached to her mother. She confirmed that Ellie and her mother lived with herself and her grandfather for a period of four to five months before the mother purchased her own home. Susan Budge is aware that Ellie has ongoing issues detaching from her mother. She also indicated that Ellie loves her dad.

On the issue of the father’s efforts to pick-up Ellie to bring her with him, she stated: “We never believed forcing a child into a vehicle”. She said that on one occasion at her home, she observed the father leaving “without pulling Ellie out of her mother’s arm”.

• The father, Julianne and his mother, all witnessed the extent of Ellie’s resistance in not wanting to leave with him. They also witnessed the mother encouraging Ellie to go. When questioned in cross-examination, Julianne (upon being present at Espanola with the paternal grandmother) confirmed witnessing Ellie kicking and screaming in an effort to get out of her mother’s arms to avoid having to leave and go with her (Julianne and grandmother).

3) Office of the Children’s Lawyer (OCL) Report

[63] Ms. Jill Anderson has a lengthy employment history with the Algoma Children’s Aid Society. She currently holds the position of child protection supervisor. She also accepts fee for service assignments on behalf of the Office of the Children’s Lawyer.

[64] On August 26, 2019 Justice Humphrey requested the involvement of the office of the children’s lawyer. The office of the children’s lawyer consented to provide services pursuant to section 112 of the Court of Justice Act on October 15, 2019. The office of the children’s lawyer assigned the matter to Ms. Anderson. Ms. Anderson conducted a clinical investigation. On April 6, 2020 she completed a full report which was forwarded to the mother and father on April 7, 2020.

[65] On the onset of her testimony Ms. Anderson outlined issues raised by the father as follows;

• That Ellie did not attend school regularly and/or was frequently late;

• That the mother withheld access;

• That Ellie was being alienated;

• That the mother was unwilling to take proper steps to have Ellie vaccinated;

• The child was not adequately supervised;

• That he (father) was unable to do Facetime without the mother being involved; and

• That the mother had several questionable partners.

[66] In her verbal testimony Ms. Anderson also listed concerns raised by the mother as follows;

• The father and his wife make negative and inappropriate statements;

• The father blames her (mother) “for everything” and does not take the child’s feelings into account;

• The father lacks compassion regarding child issues;

• The father initially refused to agree to counselling;

• That the workable relationship with the father changed after his marriage;

• That she is not respected by the father and his wife (who called CAS); and

• That the father’s access is too frequent.

[67] The factual information set out in Ms. Anderson’s report was for the most part also canvassed at trial. Moreover, Ms. Anderson herself testified and was subject to cross-examination.

[68] The report flushes out issues of conflict (most post 2017) from the perspective of each parent. The report also focuses on the past and current history of the relationship between the parents and their relationship with the child. Ms. Anderson also outlined issues pertaining to the child’s education (attendance issues), her health and her relationship with her parents and extended family. Ms. Anderson last spoke with the child on January 22, 2020.

[69] Ms. Anderson’s concluding comments about custody and access included the following:

• The information suggests that Ms. Budge struggles with follow-through, with Ellies’ medical and education needs, that she does not always put Ellie’s needs first, and that she is not supporting Ellie’s relationship with Mr. Kozera. By contrast, Mr. Kozera has been pro-active with the school about Ellie’s education, he took Ellie to the doctor when there was uncertainty if she was sick and he appears supportive of Ellie’s relationship with Ms. Budge and realizes the need for Ellie to have a relationship with her mother. Therefore, it is recommended that Mr. Kozera have sole custody of Ellie and that her primary residence be with Mr. Kozera.

[70] It must be remembered that an OCL report is not an expert report nor an assessment. The legislative authority provides for an investigation to be made and for a report to follow that may include recommendations. An OCL report is, by its nature, a fact-finding report. The recommendations that result are a starting point; not the last word.

[71] Ms. Anderson’s report remains helpful to understand the dynamics of what has gone on between the mother and father and the status of where matters are now at vis-à-vis the child. The report in its totality should be carefully considered and factored into the court’s overall analysis of what in all of the circumstances is in the best interest of the child.

4) Mother’s Lifestyle

[72] The father has expressed concern about the mother’s choice of partners. The mother confirmed that since she separated with the father, she has dated three (3) men. The first person was someone she only dated for a short period of time, several months. In the past 5½ years, the mother confirmed that she has only dated two (2) men. The first person was TJ. Her relationship with him last about 2½ years. The second person is Beau Davidson with whom she resided between January 2019 to September 2019 (approximately eight (8) months).

[73] The father raised the issue of a person who while in possession of a weapon(s) broke into the mother’s home. This incident occurred in April or May of 2017. The mother explained that she had entered a brief relationship with the person who was charged with break and enter. She had ended the relationship. He did not take it well. He broke a basement window to her home and gained access. She called police. The person was arrested. He had two (2) pocket-knives in his possession at the time. She has never seen or heard of him since.

[74] In January 2019, the mother acted as surety on Mr. Beau Davidson’s behalf. She subsequently withdrew as his surety in September 2019 because he breached his bail release condition(s) on two (2) occasions. Mr. Davidson has a history of drug abuse. Mr. Davidson confirmed that in June 2020, while with others, he overdosed on drugs. He said he had broken up with Ms. Budge and was upset. He went to Elliot Lake and allowed himself to socialize with “a wrong crowd” and ingested the drug Fentanyl. He also testified that since the incident of the “overdose”, he has not used hard drugs.

[75] Mr. Davidson testified that he is not unwilling to seek and accept treatment, however, that at this time, it is difficult for him to enter treatment because of the Covid-19 pandemic and also because of his work schedule. He is employed full-time at Nixon Bros. Construction and resides in his own apartment. He is currently on probation.

[76] Mr. Davidson testified on November 4, 2020. His last drug test prior to that date was October 26, 2020, which resulted in a negative finding (except for marijuana consumption).

[77] Mr. Davidson does have a criminal record including for domestic violence (prior to meeting the mother) and drug possession. The mother indicates that at this time she has no concerns about Mr. Davidson’s drug use. He has never consumed in her presence. She accepts that the overdose in June 2020 was a one-time incident. She complied with a CAS requirement to avoid Mr. Davidson during their investigation. That investigation is complete, however, she and Mr. Davidson have not resumed living together.

5) Other Issues

[78] A number of issues were raised regarding the mother’s overall conduct. None of these issues are determinative. In brief summary, they include the following:

• Vaccination – In the OCL report and in referring to vaccinations (immunizations), Ms. Anderson indicated the following:

“Mr. Kozera feels that Ellie should be vaccinated, however, Ms. Budge is unsure if she wants Ellie to be vaccinated and feels that she needs more information about the benefits and risks of the different types of vaccinations. Ms. Budge indicated that she may agree to Ellie receiving some vaccinations, but maybe not all vaccinations.”

In her cross-examination, the mother stated: “I believe in it…I am okay with it”. She confirmed that she herself was immunized but that Ellie had not yet been immunized. She said that although Ellie is healthy, she could still catch viruses.

No distinction was drawn in cross-examination between “vaccination” and “immunization” but the import of the mother’s evidence essentially indicated that she was not opposed to either.

• Child/Nakedness – The father indicated that on one occasion while on face time with Ellie, he noted that she was naked and that the mother’s boyfriend (Beau Davidson) was present.

In her testimony the mother indicated that on the occasion when the father saw her on face time naked, she had just exited the bathroom, grabbed the phone and went to the couch. The mother also stated that she put a stop to it and that “it ended there”.

• Transportation – It was alleged by the father that the mother had allowed Ellie to travel in the front seat of her vehicle (or on her lap). On June 17, 2019 when she spoke with CAS, Julianne indicated that the mother smoked with Ellie in the vehicle.

In her testimony, the mother specifically denied smoking in the vehicle with Ellie present at any time. She also stated that she never allowed Ellie to sit on her lap. The mother confirmed that Ellie uses a booster seat. She admitted that on one occasion she allowed Ellie to sit in the front seat because she was not feeling well.

[79] Some of the evidence heard at trial corresponded with the deteriorating relationship between the mother and father. This included their respective complaints about each other’s comportment. The mother did admit using inappropriate language during some exchanges with the father. She also likely made some improper comments within earshot of Ellie. This evidence, including the transcript of a phone call and texts between the mother and father have been taken into account and it is not necessary to provide additional commentary.

6) Separation Agreement

[80] The mother and father signed a separation agreement on November 6, 2004. They agreed to joint custody with Ellie residing primarily with the mother at Espanola. The agreement is comprehensive and touches upon areas of dispute resolution, access (time sharing), and child support. In terms of access, the agreement specifies as follows:

“Jamie shall have liberal and generous access, including shared time during holidays and at this time, due to the young age of their daughter. Jamie shall have access with Ellie, in accordance with time off his work schedule, which will include a day at 8:00 a.m. until the following day at 5:00 p.m., once weekly, with the parties agreeing to arrange those days subject to Jamie’s work schedule and the needs of Ellie. Jamie shall have access with Ellie at least one Saturday overnight per month. The access schedule for Ellie will vary and increase on a reasonable basis as she grows older and attends daycare and/or school.”

[81] In the agreement, the father agreed to pay $800.00 per month for child support beginning November 1, 2014. The agreement indicates that the child support is based on the father’s 2014 annual income of $100,000.00. It is to be noted that the quantum of child support is in fact below the Child Support Guidelines. The mother and father both indicated that they agreed to $800.00 per month because in all of the circumstances, they both felt the amount to be “fair”. As earlier indicated, the mother and father also agreed to not follow the access regime specified in the agreement. Instead, they implemented an informal schedule taking into account the father’s work schedule.

[82] Neither party is suggesting that the court is bound by any provision in the separation agreement. Essentially courts are not bound by parenting terms in domestic contracts although they may give an indication about parental intentions at the time they were entered into. Indeed, the agreement which the mother and father entered into is reflective of the cooperative circumstances which existed at the time it was signed. Importantly, the terms and wording of the agreement sheds light on the faith that the parents had regarding each other’s ability to parent.

ANALYSIS

[83] In determining custody and access, the only consideration is the best interests of the child. The child’s best interests are determined based on the non-exhaustive list of factors set out in section 24(2) of the Children’s Law Reform Act.

[84] The mother expressed to Ms. Anderson (OCL report) that after Ellie was born she and the father co-parented very well. While both parents have been involved in the child’s life, she has lived with the mother without interruption since birth. Following the mother and father separating on July 20, 2014 (Ellie was just under 1½ years old), the mother has always been her primary caregiver.

[85] After the mother and father separated, the mother moved to Espanola with the child. For a brief time, the mother and child lived with the mother’s parents. The mother obtained her own home and established a stable and predictable routine with Ellie.

[86] After the mother and father separated, they worked matters out and made reasonable mutual concessions in the process. This included an access or time-sharing arrangement which took into account the father’s work schedule.

[87] At some point in mid-2017, Ellie started displaying reluctance to be with her father (and family). According to the mother, a number of factors played into Ellie’s changing behaviour including the father’s new relationship (with Julianne), their marriage, the birth of their child, Ellie having started school and implementation of a new more structured access/time-sharing schedule.

[88] The discord between the mother and father escalated. The father did not have access for approximately eight weeks after he and Julianne became married. In the father’s assessment, the mother was on a campaign to alienate Ellie from him. The mother denied this but did indicate that when access to the father did not occur, this was because she as “following her heart” in the face of Ellie’s intense resistance to go with her father.

[89] In her affidavit evidence sworn November 23, 2020, the mother stated the following:

“Ellie’s behaviours are deeply troubling, she is experiencing anxiety attacks, she is constantly upset and being physically affected by her emotions. I have put a lot of work and effort to get her to her father’s house for access on numerous occasions. I ensure that she speaks to her father every day…I do not know why Ellie does not want to spend time there…the applicant’s constant accusations that I am “coaching” our daughter are baseless…I am extremely worried about our daughter and I am at a loss on what to do.”

[90] The father has brought three (3) contempt motions. Essentially, he accuses the mother of either directly or subtly engaging in conduct geared toward alienating the child. The mother steadfastly denies this and maintains that she has persistently encouraged the child to be with her father. The mother says that she recognizes that it is important that the father maintain a meaningful presence in Ellie’s life.

[91] In Jackson v. Jackson 2016 ONSC 3466, [2016] O.J. No. 2870, (SCJ), Justice Chappel provided the following summary of the circumstances which warrant the use of contempt in family court proceedings:

a) It ultimately remains a matter for the court’s discretion;

b) Because of its seriousness and quasi-criminal nature, it must be used cautiously and with great restraint;

c) It cannot be reduced merely to a mechanism for enforcing judgments;

d) It should be used sparingly and as a measure of last resort where there are no other adequate remedies available;

e) It is reserved for cases involving defiant conduct that is at the most significant end of the spectrum and where it appears to be the only reasonable means of sending a message to a litigant that court orders cannot be flaunted; and

f) The complex emotional dynamics involved in family law disputes and the desirability of avoiding further escalation of the conflict between the parties are additional factors that prompt a cautious approach.

[92] Ellie’s extreme reluctance to go with her father at first blush appears to be a manifestation of alienation for which the mother is responsible. It is important, however, to also not ignore the evolvement of Ellie’s attachment issues and separation anxiety which seemed to have commenced when she started school. She threw tantrums on many occasions when her mother tried to drop her off at school. She also became forcefully resistant to going with her father when he attended to pick her up at scheduled times.

[93] The fact that Ellie threw tantrums and tenaciously resisted going to school has been discussed in the evidence and observed by others including the school principal, Ms. Lynn McLean. Also and commensurately, Ellie tenaciously resisted going with her father to the point, where to his credit, he would back away and not forcefully compel her. This has also been witnessed by others including Ms. Aline Lepine (child protection worker), Valerie Larocque (counsellor) and Kenneth Budge (maternal grandfather). There has been no expert evidence presented at trial on the issue of Ellie’s detachment issues or separation anxiety.

[94] The father blames the mother essentially for parental neglect (or parental alienation) which in his view is the root cause of Ellie’s behaviour. The mother attributes some blame to the father because he has not worked with her. Instead, according to the mother, the father has dug his heels in and has taken a rigid enforcement approach. She testified that the father during their encounters would record everything and threaten to take her to court. She states that instead of having a conversation with her, the father will “start throwing accusations”, tell her she is a bad mom and continue to argue until she is in tears.

[95] As an undercurrent to accusations of alienation and symptoms displayed by Ellie of separation and detachment (from her mother), is the fact that Ellie’s behaviour also corresponds with a number of changes in her life including her father’s relationship with Julianne, her pregnancy, their marriage, the birth of their daughter, Ellie having commenced school and a more structured access regime including three (3) weekends per month.

[96] Custodial or primary care parents have a positive obligation to support a child’s relationship with the other parent and to facilitate the exercise of access or time sharing. Cases where the evidence overwhelmingly points to the conclusion that there has clearly been parental alienation may certainly require early and decisive intervention by the court. On these facts, Ellie has been caught up in a number of changes which appear to have impacted her behaviour. It has been argued that the mother has failed to reasonably ensure the Ellie’s focus remain healthy despite her assertion that she has done everything that she can.

[97] It is likely that the mother’s overall non-assertive approach contributed to Ellie missing so much school. Ellie’s attachment issues and separation anxiety have clearly been identified and it is easy in the circumstances to attribute full responsibility to the mother. On the other hand, the evidence discloses the mother having encouraged and insisted that Ellie be with her father in the same manner and she has persistently taken steps to improve Ellie’s attendance at school.

[98] Ellie is now in grade 2. She has been described as being witty, smart and performing well as a student. The school principal has identified an improvement indicating that there are now no issues about 75% of the time. The mother’s past efforts at ensuring that Ellie not miss classes at school or be late, have not been entirely successful. She has, however, continued to interact with the school. On a positive note, she also recognizes that Ellie is maturing.

[99] The court is not unsympathetic with the father. There is no doubt that the father deeply loves his daughter and wants to care for her. Ellie has been in her mother’s care since birth. The father is seeking to profoundly change the status quo. This, of course, would be the most dramatic judicial response, sometimes referred to as a solution of “last resort”.

[100] Before removing Ellie from her mother’s care, in the absence of being satisfied that the mother has unequivocally engaged in conduct toward alienation, in circumstances where the mother has otherwise provided ongoing satisfactory primary care, and in circumstances where Ellie is in school, has friends (family) and is adjusted in her environment, the court must be satisfied, after considering all relevant factors, whether this would be in her best interest.

[101] The mother has not succeeded in maintaining a flawless lifestyle. Her choices (including her choice of partners) arguably needs to improve. This decision is not necessarily being arrived at on the basis of one parent being a better parent than the other. Both parents have their qualities and faults. This decision must be arrived at in balancing all factors and ascertaining what is in Ellie’s best interests from her perspective rather than that of her parents. The child’s best interests are not merely “paramount” – they are the only consideration in this analysis.

[102] The mother needs to become more determined as a parent. She has experienced frustration and succumbed to becoming a less effective parent. The mother, however, can be seen to have made several steps in the right direction. The mother has notably made progress with Ellie’s schooling. She knows this has been a problem which must be corrected. The mother also knows that Ellie’s reluctance to go with her father is not right and cannot continue. To that end, she does understand that there is a positive essential benefit to Ellie growing up with two parents in her life.

[103] The father must work on his strategy. This case has complex features and requires a less forceful approach. He must disengage in contentious exchanges with the mother. The finger of blame must be paused. Instead, the father has to be on track to press the reset button, swim uphill for a bit and take some small steps. There is no doubt that he has the determination and skill to do whatever it takes.

[104] The father has solid personal attributes. He is a progressive straight thinker. Ms. Anderson (OCL report) noted that the father has been pro-active in following up on issues involving Ellie’s health and welfare. The mother indicated to Ms. Anderson that the father is known to her as having “a short fuse” and has demonstrated unrealistic expectations of Ellie. In her report, Ms. Anderson stated: “The information from Mr. Kozera’s counselling indicated that Mr. Kozera reported getting ‘worked up’ very easily. Mr. Kozera was educated about anger and alternatives were discussed during counselling”. Ms. Anderson does not agree with the mother about the father having unrealistic expectations of Ellie.

CONCLUSION

[105] Decisions regarding custody and access are inherently an exercise in discretion. Case by case consideration of the unique circumstances of each child is the hallmark of the process. The discretion vested in the trial judge enables a balanced evaluation of the best interests of the child and permits the court to respond to the spectrum of factors which can both positively and negatively affect a child.

[106] The father brought a motion for contempt on September 28, 2020. He brought a further motion on November 9, 2020 (as already discussed) requesting various relief including that the mother be found in contempt. The contempt remedy is one of last resort. The courts have repeatedly stressed that great caution must be exercised when considering contempt motions in family law proceedings. Essentially, the contempt power is to be used with restraint to respond to exceptional circumstances where it appears to be the only reasonable means to send a message to a party that court orders are not to be disrespected. This is not one of those cases. This case is not at the most significant end of the spectrum justifying a finding of contempt, a remedy of last resort.

[107] This decision is not without challenges. I am satisfied that the mother and father are both caring and loving parents and that each have the ability to care for Ellie. In considering the evidence as a whole, I must be cautious not to place excessive emphasis on the conduct of the mother and insufficient evidence on the best interests of Ellie.

[108] The father is seeking to profoundly change the status quo. While both the mother and father parented Ellie, after her birth she has always lived with her mother without interruption. As already discussed, aside from issues raised in these proceedings (many of which are attributable to the mother’s parental misgivings), the mother nonetheless has provided a reasonable ongoing satisfactory level of care. Moreover, Ellie is in school, she has friends at school and in the community, she has extended family living nearby (grandparents), and generally speaking is well-adjusted to her environment. In weighing all factors, I must conclude that the evidence at this stage does not establish that such a dramatic change, especially from Ellie’s perspective, would be in her best interests.

[109] The pull and tug and undercurrent of discord (no matter who is right or wrong) is likely seeping into Ellie’s life and contributing to her behaviour. She may also be overwhelmed within the context of changes in her life since 2017 to 2019. Matters have been exacerbated by the mother’s failure to effectively take control (although she is improving), the structured frequency of the father’s access and Ellie’s manifestation of attachment issues and separation anxiety (not diagnosed). In the final analysis, however, Ellie does not have two primary residences and she is attached to the one that she does have.

[110] This decision is made with confidence that the father’s love and support for Ellie will remain unwavering and that he will do everything possible to work within the spirit of the court’s final order. The father must re-evaluate his approach. The solution for him continuing to be a loving presence in Ellie’s life is to ensure that she (and the mother) is not overwhelmed. The father should stay calm and work on creating non-conflicting but strong inroads.

[111] While counsel were making their detailed and helpful submissions, reference was made to the court possibility making a temporary order. The thought here was to provide the parents with time to successfully implement and build on a fresh and new access/time sharing approach and have the option of asking that the order be finalized in approximately six months. The mother was open to the idea, however, it was strongly opposed by the father. His position of wanting finality and closure is fully understandable. In all of the circumstances, this order shall be final.

[112] Generally speaking, joint custody should not be ordered where there is poor communication and the parties fundamentally disagree on too many issues potentially affecting a child’s best interests. In this case, however, the mother, to her credit, expresses a willingness to maintain the status quo of joint custody (as it was agreed to in the separation agreement). On these facts, communication between the mother and father (especially recently) has not been easy, comfortable or free of conflict. The court remains mindful that a standard of perfection in terms of parental communication is not required or for the most part, achievable. The issue is whether a reasonable measure of communication and cooperation is achievable in the future so that Ellie’s best interests can be ensured on an ongoing basis. This case involves a history of satisfactory communication between the mother and father. The optics of them being able to reasonably communicate in the future for Ellie’s sake are reasonable and achievable. In all of the circumstances a joint custody order favours the father and shall serve to preserve his parenting rights.

[113] The mother’s submission that the final order be “joint custody” may be taken as a step of good faith. The court fully expects both parents to work together in the spirit of this decision. It is in Ellie’s best interests that this decision (and the court’s order) be implemented seamlessly and that both parents cooperate fully in reasonably ensuring a resumption of ongoing time sharing (access).

[114] This decision is focused on a long-term goal and in consequence and for the short-term the access/time sharing shall be paused and reset. The storm needs to settle before the ship can again sail in smoother waters.

[115] It is important that the child continue to attend counselling. The onus shall be on the mother to ensure that she attends as scheduled. The mother shall follow up and make her best efforts to ensure that Ellie is seen by the child psychiatrist (or psychologist) as discussed in her testimony. The mother must improve her commitment to work with the child (and counsellor) to ensure that a maximum regime of access be achieved as soon as reasonably possible and within the next six (6) months.

[116] The father has indicated that he does not wish to communicate with the mother. The father and mother do have a history of being able to meaningfully communicate with one another. With the benefit of a joint custody order it is incumbent upon them for Ellie’s sake to be able to do so in the future. For now, the father shall name a third person to communicate directly with the mother on his behalf. He may wish to consider his mother or an equally responsible person whom he knows will communicate effectively with the mother. The father and mother may communicate by text, however, all texts sent/received must be respectful and only pertain to issues involving access including scheduling and timing. The father shall avoid any direct contact with the mother for the next sixty (60) days (or longer) as he may, or the mother may in his/her discretion require.

[117] The father now pays $800.00 per month for child support. This amount was agreed to by the father and mother when they separated and is also reflected in the separation agreement dated November 6, 2014. This amount was based on the father’s 2014 approximate gross annual income of $100,000.00.

[118] It is the father’s position that should the status quo not change, and Ellie remain with her mother, the amount agreed to in 2014 should remain the same. He advances the following reasons:

• The amount has been paid religiously;

• The amount took into account travel expenses to and from Espanola, six (6) times per month; and

• The father pays for extra curricular activities.

[119] The mother is asking the child support be paid in the amount of $979.00 per month commencing September 1, 2019 in accordance with the Child Support Guidelines and the father’s gross annual income of $108,763.00 in 2019.

[120] I am satisfied that at the time they separated, the mother and father took all factors into account including transportation costs to be incurred by the father. They both agreed at the time, that the amount of $800.00 per month (lower than the support Guidelines) was fair.

[121] The evidence does confirm that the father has been astute in making the child support payments, has borne the brunt of most of the travel costs and has paid for extra expenses including counselling. The father’s income in 2019 has increased by $8,763.00. In the circumstances and with the expectation that the father will continue to incur the brunt of travel expenses and extra expenses, the amount paid in child support shall increase but only proportionately to the base amount of $800.00 monthly. Therefore, the father shall pay child support in the monthly sum of $864.00 commencing January 1, 2020. I have taken into account that the mother’s answer was only filed on October 24, 2019 and that the father has been paying for Ellie’s counselling services since July 2020.

DECISION

[122] For the above reasons a final order shall go as follows:

1. All previous orders are terminated;

2. All outstanding motions (including for contempt) are dismissed without costs;

3. The applicant, Jamie Kozera (the “father”) and the respondent, Samantha Budge (the “mother”) shall have joint custody of Ellie Kozera (the “child”) born on […], 2013 with the child living primarily with the mother in Espanola, Ontario;

4. For the next sixty (60) days (or longer if requested by either the father or the mother), the father shall avoid any direct communication with the mother. Communication with the mother shall be made by a reliable third person whom the father is reasonably certain will communicate effectively with the mother;

5. The father and mother may communicate by text however, texts must be respectful and only pertain to issues involving access including scheduling and timing;

6. The father shall have daytime access between the hours of 12:00 noon and 5:00 p.m. each second Saturday commencing Saturday, January 16, 2021;

7. The father shall have access, every second weekend from Friday at 5:30 p.m. to Sunday at 7:30 p.m. commencing Friday, February 26, 2021. If Monday is a holiday, the child shall be returned on that Monday at 7:30 p.m.;

8. The father is at liberty to ask his parents to assist with pick-ups and drop-offs;

9. Except as specified in this order and unless otherwise agreed, the mother and father shall share time during holidays and summer months in one-week blocks;

10. The mother and father are at liberty to agree to adjust any access days and times including drop-off and pick-up times and location;

11. The mother and father shall:

i. Exchange information about Ellie;

ii. Encourage Ellie to have a good relationship with both parents;

iii. Refrain from speaking ill of each other to Ellie; and

iv. Consult each other regularly about important parenting issues regarding Ellie such as her education, health care, cultural and religious upbringing.

12. The father shall reasonably allow Ellie to telephone the mother (or face time) when she is in his care;

13. The father shall be allowed telephone or face time access with Ellie twice per week unless the mother and father otherwise agree. Telephone or face time access shall take place each Tuesday and Thursday between 5:00 and 7:00 p.m. for a duration of approximately 10 to 15 minutes, unless otherwise agreed;

14. The mother and father are each free to inquire with Ellie’s teachers, doctors, dentists and other professionals and be provided information about Ellie by those parties;

15. Unless otherwise agreed to by the mother and father, Ellie will spend Christmas Eve and half of Christmas day with one parent, and half of Christmas day and all of Boxing day with the other parent. This schedule will commence with the father in 2021 and alternate every year between the father and the mother;

16. Unless otherwise agreed to, the mother and father will alternate years for Ellie’s birthday, commencing with the father in 2021;

17. Ellie will spend each Mother’s Day with her mother and each Father’s Day with her father;

18. The father shall pay to the mother child support for the child Ellie Kozera born on […], 2013 in the amount of $864.00 commending September 1, 2019 based on the father’s gross annual income of $108,763.00. This amount is less than provided for in the Child Support Guidelines;

19. The father shall provide his 2020 income tax return to the mother by July 1, 2021. He shall also provide the 2020 notice of assessment when received; and

20. There shall be no order as to costs.

Released: January 6, 2021

Signed: Justice Randall W. Lalande