Superior Court of Justice

COURT FILE NO.: F459/09

DATE: 2012-07-23

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

M.R.

Applicant

– and –

C.D.M.2

Respondent

Margaret McCarthy, Counsel, for the Applicant

Molly Leonard & Gabriella Deokaran, Counsel for the Respondent

HEARD: May 24,25,28,29,30, 31 and June 1, 2012

The Honourable mr. justice pazaratz

[1] Can a father argue the mother should be disentitled to custody because she relies too heavily on his parents for help? Can his parents wait until the end of the trial, and then decide they’d like to become parties and claim custody too? And how important is the “status quo” when everyone agrees it can’t continue? These were the central issues in this eight day trial.

BACKGROUND

[2] The Applicant mother is 26 years old. The Respondent father is 27. They were never married. They started living together in June 2004. Their first child L. was born […], 2004. He is now almost 8.

[3] The parties had a turbulent relationship, and separated under the same roof around December 31, 2008. On March 7, 2009 they physically separated following a police call to their jointly owned home. The Respondent was charged with three counts of assault and one count of assault causing bodily harm. Three of those charges related to allegations of historical violence by the Respondent. He denied all allegations of violence but ended up pleading guilty to one count of assault.

[4] Upon separation L. remained in the Applicant's custody. For approximately four months the Respondent had no access. Eventually there were a series of access regimes which allowed gradually expanding access, always supervised by his parents.

[5] In the months following separation – while the Respondent was under bail restrictions to have no contact with the Applicant – the parties had further interaction and a second child was conceived. M. was born […], 2010. She has remained in the Applicant's custody since then. The Respondent denied paternity until DNA testing proved he was the father. He then started visiting his daughter, again under supervision by his parents.

[6] The most distinctive – and contentious – issue in this custody dispute was the role played by the Respondent’s parents C. and W.D.M.. By all accounts they are excellent grandparents who have played an important and beneficial role in the lives of L. and M., particularly at times when the Applicant and the Respondent have been preoccupied with their own difficulties.

[7] There is no dispute L. and M. have spent much of their time staying with the paternal grandparents. Despite temporary custody orders in her favour, the Applicant has willingly allowed them generous access including many overnights and extended blocks. Compared to the Applicant and the paternal grandparents, the Respondent has had the least contact with the children. His visits are still fully supervised by his parents, currently alternate weekends (not usually including the overnight) and two evenings per week.

[8] This was a custody dispute between only the Applicant and the Respondent. Despite their very active involvement in the children's lives – particularly since the date of separation – both paternal grandparents clearly confirmed during their testimony:

a. They have never filed any formal claims or been added as parties.

b. They are not seeking custody.

c. They don’t want to raise their grandchildren. The parents should do it.

d. They hope to have generous access but have not made a formal claim for an access order.

e. They support their son’s claim for custody.

f. They appear to presume whichever party is awarded custody, both parents (particularly their son) will ensure they continue to have regular contact with L. and M..

[9] Ironically, on the final day of trial -- after the evidence was completed, and just as submissions were to commence -- the Respondent's counsel advised that the paternal grandparents had changed their minds and were now requesting;

a. That they be added as parties.

b. Custody of both children.

c. An order that the Office of the Children's Lawyer (OCL) become involved.

[10] I agreed with Applicant's counsel that the end of trial oral motion by the paternal grandparents – advanced briefly by their son’s lawyer – should be dismissed:

a. The paternal grandparents had been actively involved and supportive of the Respondent’s position throughout these proceedings.

b. They had every opportunity to advance these claims earlier in the process. They deliberately elected not to do so.

c. The trial evidence presented by the parties was based upon the specific and long-standing representation by the paternal grandparents that they were not seeking custody. They each confirmed this was their position during questioning.

d. The resolution of this case has already been significantly delayed. The parties have been physically separated more than three years. To accede to this last minute request to completely transform the scope of this case would create significant delay and prejudice.

e. There was no fresh or urgent evidence which arose during the trial which could justify such a dramatic step.

f. The evidence presented at trial was thorough. I was satisfied – largely by the testimony of the paternal grandparents themselves – that I had received sufficient evidence to enable me to decide the custody/access claims in the best interests of the children.

g. While the Respondent supported his parents’ last-minute claim, this appeared to be a strategic move by the D.M. family as a whole, perhaps anticipating -- after all the evidence had been presented -- that the Respondent’s sole custody claim might not prevail.

h. It would be unfair and prejudicial to the Applicant to allow the Respondent's extended family to wait in the wings, see how the trial evidence unfolded, and then decide whether to advance a competing custody claim.

i. It would be unfair and prejudicial to the children to allow resolution of custody/access issues – including selection of schooling for L. for example – to be delayed any further.

TEMPORARY ORDERS

Several temporary orders were granted, some of them at contested motions.

MAY 27, 2009 JUSTICE MCLAREN

[11] On May 27, 2009 Justice McLaren made a temporary order which included the following terms:

a. Each party to produce certain financial disclosure.

b. Respondent to pay child support for L. in sum of $195.00 per month based upon $23,065.00 employment insurance earnings, commencing June 1, 2009.

c. Retroactive child support and spousal support adjourned sine die.

OCTOBER 15, 2009 JUSTICE MCLAREN

[12] On October 15, 2009 Justice McLaren made a temporary order which included the following terms:

a. Custody of L. to the Applicant.

b. Respondent to have access alternate weekends Friday 5:00 p.m. to Sunday 4:00 p.m., together with one day during the week from 5:00 p.m. to 8:00 p.m.

c. Respondent’s access to be supervised by his parents.

d. Respondent’s parents to pick up and drop off child for access.

MAY 4, 2010 JUSTICE BROWN

[13] On May 4, 2010 Justice Brown made a temporary which included the following terms:

a. Respondent to produce his criminal record and any probation orders.

b. Respondent to submit to hair strand or hair follicle testing and produce results.

c. Referral to OCL.

SEPTEMBER 17, 2010 JUSTICE WHITTEN

[14] On September 17, 2010 Justice Whitten made a temporary order which included the following terms:

a. Custody of M. to the Applicant.

b. Respondent to pay child support for L. and M. in sum of $730.00 per month assuming an income of $48,300.00 commencing September 1, 2010, without prejudice to retroactivity.

c. Respondent to provide consent for Applicant to receive copies of drug analysis and information.

d. Respondent to comply with drug testing.

e. Respondent’s supervised access continues per Justice McLaren’s October 15, 2009 order.

DECEMBER 16, 2010 JUSTICE MCLAREN

[15] On December 16, 2010 Justice McLaren ordered that the matter was to be set for trial with counsel to contact the trial co-ordinator for dates.

JANUARY 6, 2012 JUSTICE STEINBERG

[16] On January 6, 2012 Justice Steinberg made a temporary order which included the following terms:

a. Respondent to produce his last hair drug test; his partner’s last drug test if she is willing to provide it;

b. Financial disclosure ordered.

JANUARY 20, 2012 JUSTICE LAFRENIERE

[17] On January 20, 2012 – thirteen months after Justice McLaren ordered counsel to arrange a trial date – Justice Lafreniere set the matter down for a three day trial for the sittings of May 21, 2012.

WITNESSES

[18] The following persons testified at trial:

a. The Applicant

b. S.G. (Applicant’s grandmother)

c. C.D.M.1 (Respondent’s mother)

d. B.R. (Applicant’s sister)

e. The Respondent

f. V.D.M. (Respondent’s sister)

g. W.D.M. (Respondent’s father)

h. K. A. (Respondent’s fiancé)

CHILDREN’S LAWYER

[19] The Respondent testified that on four occasions he tried to get the OCL involved but the Applicant was not cooperative.

[20] The Applicant acknowledged the court twice requested intervention by the OCL. Both times the OCL wrote back declining the request because it had not received the necessary intake form from the Applicant.

[21] The Applicant explained the first time she failed to submit her intake form because her sister's husband had just died and she was preoccupied with the tragedy. She insisted however that she submitted her intake form after the second order. She couldn’t explain why the OCL said they never received her documents. Apparently nobody ever followed up on it.

APPLICANT’S RESIDENCE

[22] Upon separation the Applicant and L. remained in the jointly owned home at 129 Balmoral Avenue North in Hamilton for about four months. In June 2009 she was notified by the mortgage holder the Respondent had stopped making weekly payments as soon as he was charged with assaulting her. Mortgage arrears totalled between $4,000.00 and $5,000.00.

[23] The Respondent testified that by the beginning of 2009 both parties realized they would be separating, and keeping the house was unaffordable. He said once he was no longer living in the home he couldn't afford to make mortgage payments. He also didn't think it was fair for the Applicant to expect to live in the home rent free.

[24] The Applicant testified she had no money for the mortgage, so she moved out on August 4, 2009 and let the property to go by way of foreclosure. The sale resulted in a $32,000.00 deficit. The Respondent ended up going bankrupt.

[25] The Applicant testified since the date of separation she has experienced housing problems:

a. She initially rented premises at 66 Greendale. She denied allegations contained in Catholic Children's Aid Society (“CCAS”) records which included observations from a police officer who attended the townhouse sometime after the Applicant moved out. The officer described conditions in the home as deplorable. The officer was not called as a witness and the only evidence I received on this issue was from the Applicant.

b. In January 2010 when she was four months pregnant with M. she and L. went to stay with her grandparents.

c. In September or October 2010 she obtained her own apartment.

d. In February or March 2011 the Respondent stopped making child-support payments and the Applicant could no longer afford her apartment.

e. By July 2011 the Applicant went to live with her sister B.R..

f. However by October 2011 conflicts arose between the Applicant and her sister, and she moved to her grandparents’ residents again, where she was living at the time of the trial. She described it as a three bedroom house in east Hamilton. She and M. share a room. L. has his own room.

g. She testified she had rented a three-bedroom house on Hamilton mountain and was scheduled to move July 1, 2012.

APPLICANT’S TRANSPORTATION

[26] I heard a great deal of evidence about a 1996 Dodge Neon automobile – both in relation to a property claim, and also in relation to the impact on the Applicant of not having adequate transportation after separation.

[27] She testified that in about 2005 or 2006 her parents gifted the Neon to her. In May of 2005 the parties also purchased a 1997 Eagle Talon which was a customized specialty vehicle. The Applicant explained because the Talon was not suitable for winter driving she and the Respondent primarily used the Neon.

[28] She said eventually they discovered they were not allowed to insure the Neon in their names if they were not the registered owners. Title had to be changed. At the time the Applicant only had her G1 licence and it would be too expensive to obtain insurance in her name. She said as a result -- solely for insurance purposes – her parents transferred title to the Dodge Neon into the Respondent’s name. But she insisted it was her car.

[29] She said after separation the Respondent retained physical possession of both vehicles because they were both in his name. He subsequently sold the Neon but never accounted for the money he obtained. She claimed compensation for the value of the Neon. She noted she made significant financial contributions to improvements to the Respondent’s Eagle Talon.

[30] The Respondent testified the Neon was originally owned by the Applicant’s father, who had been saving it for his younger daughter Allison as soon as she got a licence. He loaned it to the Respondent as a "winter beater" for a season. When the next winter came along and Allison still didn't have a licence, the Applicant’s father agreed to simply gift the old car to the Respondent. He testified it was an unconditional gift because at the time the Applicant’s father regarded the Respondent as "part of the family."

[31] The Respondent produced a June 3, 2008 handwritten note from the Applicant's father indicating a 1996 Neon was being gifted to the Respondent at no charge. The Applicant did not dispute the signature on the note, and the Applicant’s sister B. confirmed she recognized the father’s signature.

[32] The Respondent disputed the Neon was ever intended to be the Applicant's car. He said on separation he kept both vehicles because he owned them both. He didn't think this was unfair because the Applicant retained a lot of household contents. He said eventually he sold the Neon for $500.00, because he didn’t need two vehicles. He had never provided the Applicant with proof.

[33] The Applicant testified being left with no car was devastating because she was a single mother, unemployed, soon to be pregnant with their second child, and having to relocate her residence several times. She said if she'd had use of a vehicle after separation she could have followed up on potential employment opportunities.

[34] As well it would have made parenting easier because L. was still in a school which was between 25 and 30 minutes walking distance from her new residence. Having a car would have allowed her to transport her son rather than rely on the paternal grandparents. Other parental responsibilities were similarly affected. Without a car she had difficulty getting L. to his hockey games. She didn't want the boy to miss hockey, so again she relied on the Respondent’s parents to do the driving.

[35] She said the lack of transportation combined with a shortage of money – at times she was on Ontario works – forced her to let the paternal grandparents take on significant responsibilities for L. and eventually M.. She didn't want her children being inconvenienced or deprived, so she let C. and W.D.M. take on extensive responsibilities including outings and vacations which she couldn't afford.

[36] Under cross-examination, the Respondent denied it was unfair for him to take both vehicles on separation, leaving the Applicant with none. He perceived it as a property issue rather than a mobility or financial issue. He was reluctant to admit the Applicant or L. were disadvantaged by not having a vehicle. Ultimately he acknowledged the Applicant's lack of transportation may have created some inconvenience – but he denied it prevented her from finding employment.

[37] The Applicant claimed unspecified compensation for the Neon. She provided no evidence as to the value of the vehicle when the parties separated in 2009 – at that point the car would have been approximately 13 years old. She did not dispute the Respondent’s evidence that when he obtained the vehicle from her father he spent about $1,400.00 making it roadworthy, or that he later sold it for $500.00.

[38] I find the Applicant did not establish ownership or a proprietary interest in the Neon. The amounts involved are relatively small. The potential claim is complicated by very imprecise evidence from both parties about the more general division of chattels. I dismiss this aspect of the Applicant's claim.

[39] More broadly however, I find the Respondent’s unilateral decision to retain physical possession of the Neon – even though he knew the Applicant drove it and needed it – was insensitive, and needlessly created hardship for the Applicant and L..

APPLICANT’S EMPLOYMENT

[40] The Applicant testified that prior to separation for about a year she had worked at the RCMP office in downtown Hamilton through an internship program. She said after separation she had employment opportunities available to her, possibly in the RCMP office in Toronto, but she couldn't follow up on those opportunities because of her responsibilities toward L.; her lack of transportation; and (eventually) her added responsibilities in relation to the second child.

[41] She testified in late April 2012 she started a temporary position taking care of a friend's four-year-old son and three-month-old daughter. The job pays $1,500.00 per month, but only lasts until mid July. She is able to take M. with her. L. is in school.

RESPONDENT’S EMPLOYMENT

[42] The Applicant testified throughout the relationship the Respondent was steadily employed, and was the primary wage earner. When they met he was installing windows. He later got a better job at Namasco. He was laid off between November 2008 and September 2009. When he was called back Namasco had been taken over by his current employer Samuel Steel. The Applicant said he was earning approximately $1,600.00 per month on employment insurance as of the March 2009 separation.

[43] The Respondent currently works full-time weekdays on a three shift rotation, with some occasional weekend work.

K.A.

[44] The Respondent’s current partner K. A. has been involved in the parties’ lives both before and since their separation.

[45] The Applicant testified she met A. in 2004. She explained:

a. A., her boyfriend and her three children (of two fathers) were going to be evicted from their residence, so the Applicant offered to let them stay with her and the Respondent.

b. They moved in about September 2008.

c. By the end of October 2008 A. broke up with her boyfriend who moved out.

d. By the end of November 2008 A. and her children moved out, going to her sister’s.

[46] The Applicant testified after A. moved out they remained best friends and "hung out together". But she said around the same time the Respondent’s behaviour started to change:

a. He started spending less time at home and demonstrated less involvement with either the Applicant or L..

b. He slept away from home most nights, pretending he was at a friend’s house.

c. He would come home one or two hours at a time just to shower and change.

d. By about January 2009 the Respondent had almost stopped doing anything with L..

[47] Eventually the Applicant discovered the Respondent had become romantically involved with her best friend A.. She explained:

a. She woke up at 2:00 a.m. on a night the Respondent was supposed to be home. She was surprised when she couldn’t find him.

b. As she looked for him, she noticed his computer was on. She checked the screen and read an incriminating exchange of communications between the Respondent and A. on MSN.

c. The Applicant typed a message to A.: “Why is my husband at your house?”

d. She testified A. typed back: “He is not your husband anymore. He’s mine now. Fuck off.”

[48] After that the Applicant and the Respondent basically lived separate and apart under the same roof for several months. The home situation became increasingly tense. But the Applicant testified even after physical separation in March 2009, she still loved the Respondent and they explored reconciliation. During the summer of 2009 she ended up getting pregnant with M. – only to discover the Respondent wasn’t serious about reconciliation. He was still dating A. periodically.

[49] She testified in March 2010 – when she was about seven months pregnant -- she and A. agreed to meet with one another to compare notes, because the Respondent had been leading them both on. The Applicant said when she went to her residence, A. became very agitated; pretended to take a handful of pills; and then fainted on a dining room floor. The Applicant said a male friend of A.’s helped her to her bed.

[50] The Applicant testified the following day she got a call from a woman named Yvonne who was at A.’s residence. Yvonne reported the Respondent was present and he was “going crazy”. The Applicant testified based on her personal experience with the Respondent, she was worried what he might do, so she went back to A.’s residence.

[51] She said when she knocked on the door, the Respondent answered and appeared surprised to see her. He immediately walked to his car and drove away. Under cross-examination she denied a suggestion she had pushed the Respondent or knocked his hat off.

[52] She said after the Respondent left, she entered the home and found A. in a basement room crying. The Applicant described a basement wall as “demolished”, with approximately 10 holes between 4 inches and 12 inches wide. A. told her the Respondent had caused the damage by punching the walls.

[53] The Respondent said he developed a relationship with A. only after he and the Applicant separated. They started living together in February 2011. They share the upper two floors of a duplex in central Hamilton, with her three children now ages 8, 6 and 5.

[54] Under cross examination, he admitted for a period of time he was having a sexual relationship with both the Applicant and A.. He also had sex with another woman he didn’t think the Applicant knew about. He admitted the Applicant might have been under the mistaken impression there was a chance they might reconcile.

[55] A. admitted periodically she spoke to the Applicant about their respective relationships with the Respondent. She denied, however, the Applicant’s allegations about taking pills, crying, or telling the Applicant the Respondent had punched holes in her wall. She said there was only one hole in her bedroom wall and it was caused accidentally while moving a bed frame.

[56] A. testified she has previously been involved with the Children’s Aid Society (“CAS”) regarding her own children, but the Society has never identified any parenting concerns about her.

[57] She said her six year old son has ADHD and does not like change. She did not address whether having L. and M. move into their home would have any impact on him.

DOMESTIC VIOLENCE

[58] The Applicant described the Respondent as having a serious problem with anger management throughout their relationship. She said he assaulted her perhaps 30 or more times. Sometimes she would end up with bruises from his various assaults but she said her only real injuries were a broken foot on one occasion, and a cut to her hand on another.

[59] In contrast, the Respondent denied ever assaulting her (even though he pleaded guilty to assaulting her).

[60] The Applicant described the Respondent’s abuse as sporadic. It didn't happen every day. "When things were good they were good". She said they might go several months without the Respondent being physically aggressive. She said half the time his violence was really provoked by "silly reasons".

[61] She explained the Respondent has difficulty dealing with conflict with other people. If other people upset him, he wouldn’t communicate his feelings to them. Instead, when he returned home he would take his frustration and anger out on her.

[62] She testified about approximately a half dozen specific incidents.

THROWING TO GROUND

[63] She said the very first assault occurred when she was about four to six months pregnant with L.. She said the Respondent grabbed her and threw her to the ground.

PUNCH IN HEAD #1

[64] The Applicant said the second assault occurred when L. was just an infant. She said the Respondent punched her in the head while she was holding L. in her arms. It was the first time that he had actually punched her and she recalled her ears were ringing.

PUNCH IN HEAD #2

[65] The Applicant testified about an assault which occurred when L. was about four years old:

a. She had taken L. to the park while the Respondent was sleeping. He apparently awoke while they were away and he was upset.

b. When she and L. returned home at lunchtime, she said the Respondent suddenly came up behind her and punched her in the back of the head in front of L., who was sitting at the kitchen table.

c. She said she took L. to the basement to get them both away from the aggression, but the Respondent followed them downstairs.

d. The Respondent beckoned for L. to come to him but the boy refused. The Applicant said L. was very upset having witnessed the Respondent punch her in the head.

e. The Respondent then accused the Applicant of turning L. against him.

f. As the Applicant tried to console L. and cradle over him, the Respondent came over and started kicking her in the ribs.

g. He said "you turned my son against me" and made various threats.

h. He would stop for a while and then come back and start kicking her in the ribs again.

i. She said that in total he kicked her about 15 times.

j. She said he also called her very crude and insulting names.

[66] During his testimony the Respondent denied this allegation. He disputed a statement in a CAS report dated April 23, 2009 in which he was quoted as admitting to hitting the Applicant in the back of the head because he believed she was a "moron".

CHRISTMAS EVE 2007

[67] The Applicant testified that on Christmas Eve 2007 the Respondent had come home working a night shift and went to sleep. She said she woke him about 4:30 p.m. or 5:00 p.m. because they had to go to a Christmas dinner engagement at 6:30 p.m. She said he became furious and “acted like the devil” when she woke him up. He grabbed a small stereo and threw it against the wall, causing a six or seven inch hole in the kitchen wall. She said the Respondent’s father later repaired the hole.

[68] The Respondent’s father later testified he might have repaired a hole in the kitchen wall.

RESPONDENT & HIS BROTHER

[69] The Applicant testified about an assault which happened while the Respondent’s brother Daniel was visiting their house:

a. The Respondent was angry at the Applicant. While she and the Respondent were upstairs and Daniel was downstairs the Respondent suddenly punched her in the side of the head and she started crying. She said he punched her really hard, like he was hitting a man.

b. She said the Respondent's brother Daniel heard the commotion and asked the Respondent if he had hit her. She said the Respondent told him "Don't worry about what happens in my fucking house" and told him to get out.

c. She said Daniel disapproved of what happened and the two brothers started fighting.

d. She called the Respondent’s parents to calm the situation between the brothers.

e. She said there was quite a commotion and the Respondent ended up putting his own head through a wall, and damaging the wall with his shoulder and fists. She said the drywall in their home was damaged several times when he hit walls while angry.

f. She testified when the Respondent’s parents arrived Mrs. D.M. confronted the Applicant and told her she was responsible for the conflict because she wasn't working. She told the Applicant if she had been working the Respondent wouldn’t be so stressed, and none of this would have happened.

[70] The Respondent’s mother testified about this incident:

a. In 2009, while the parties were still living together, the Applicant called the Respondent’s father on his cell phone to report the Respondent and Daniel were engaged in a fist fight.

b. The Applicant was crying and upset. She asked the Respondent’s parents to come help.

c. When they arrived the Respondent’s mother saw a hole in an interior wall. The Respondent told her he had kicked the hole.

d. She said she never found out what the argument was about. By the time she and her husband arrived the confrontation was largely over.

e. She said Daniel left soon after she arrived.

f. She didn’t think this sort of thing has happened since then. She said the Respondent and Daniel now get along.

g. She denied telling the Applicant anything that happened was her fault.

[71] The Respondent’s father gave similar evidence:

a. His recollection was that the Applicant called him on two separate occasions because of problems in the home. Both times he and his wife drove over to help.

b. He knew there was some sort of fight between the Respondent and Daniel, but he didn’t know what it was about, and he didn’t know who did what in the fight.

c. He recalled seeing the hole in the wall, which he repaired.

[72] Both of the Respondent’s parents were vague and somewhat evasive testifying about this incident. They appeared to be caught between their loyalty to both sons, and tried to minimize the incident. Daniel was not called as a witness.

[73] The Respondent challenged the Applicant’s description of the incident:

a. He denied assaulting the Applicant.

b. He admitted he had a fight with his brother.

c. He couldn’t recall what the fight was about.

d. He admitted the Applicant called his parents for help.

e. He couldn’t recall why the Applicant was upset.

f. He admitted he hit the wall out of frustration, leaving a hole in the drywall.

g. He had no idea why he did it.

h. He agreed it was unacceptable behaviour.

FRACTURED FOOT

[74] The Applicant testified two or three weeks prior their physical separation in March 2009, there was an incident in which the Respondent broke the Applicant's foot:

a. At the time they were already having problems and the Respondent was not working.

b. She opened a letter addressed to the Respondent from an insurance company, because she was concerned whether the Respondent was maintaining car insurance on the Neon which she still considered to be her car.

c. When the Respondent discovered she had opened his mail he became "so incredibly angry", grabbed her and threw her down.

d. She was wearing winter boots and as she landed she broke her foot.

e. The Respondent then grabbed her boot and tried to take it off but the pain was excruciating.

f. She testified she was sure it wasn't the Respondent’s intention to break her foot, although he had deliberately grabbed her quite aggressively and thrown her down.

g. When the incident happened at approximately 2:00 p.m. the Respondent initially refused to take her to the hospital. He left the residence but around midnight when he returned he realized how badly hurt she was. He then took her to the hospital where x-rays confirmed that she had a broken foot.

h. At the hospital the Respondent insisted she not tell anyone how she was injured. As a result she told hospital staff she fell down some stairs carrying a laundry basket.

i. She wore a temporary soft cast for about three or four days and after that she wore a daytime air boot.

[75] The Respondent gave a different version of how the Applicant’s foot was broken:

a. When he came home he saw the Applicant had a letter in her hand. It was addressed to him but it had already been opened. He wanted the letter. He said there was a confrontation.

b. As he approached her to get the letter, she immediately turned and ran, took two steps, and then slipped on a small blue toy car, causing her to slip and fall. He said that’s how she broke her foot.

c. He immediately comforted her and got ice.

d. He recommended she go to the hospital but she immediately accused him of throwing her to the ground – which he described as impossible -- and she wanted nothing to do with him.

MARCH 7, 2009 INCIDENT

[76] The Applicant described the incident which led to physical separation and criminal charges against the Respondent:

a. On March 7, 2009 the Applicant was home, sitting on a couch. She was still convalescing with a broken foot. It was late in the day. She had taken off her daytime air boot. She was sitting playing with a Playstation.

b. The Respondent approached and said he wanted the Playstation. She refused because it was a special gift she had received.

c. As he approached to take the Playstation she wrapped her hand around the power cord to prevent him from taking it.

d. Things escalated. The Respondent insisted he wanted the Playstation. When she still refused to release it he suddenly kicked her in her uninjured leg. He then noticed she wasn't wearing the air boot (for her broken foot). He deliberately kicked her in the injured foot which caused her to experience terrible pain.

e. After this violent confrontation the Respondent shut off power to the house and pulled the telephone out of the wall. Shutting off the power disabled their internet-based telephone service.

f. The Applicant said the Respondent wanted to make sure she couldn’t call for help. He demanded her cell phone but she lied and said she had left it in someone’s car. She hid the cell phone from him because on two previous occasions he had smashed her cell phones.

g. He then left the residence, leaving her injured, with no heat, no hot water, no power, and a disconnected house telephone.

[77] The Applicant described events after the Respondent left:

a. She called the police who attended to investigate.

b. Her younger sister Allison came over for moral support.

c. While the police were investigating in her home, the Respondent telephoned on Allison's cell phone. He used Allison’s number because he thought he had left the house with no telephone service.

d. The Respondent had apparently been contacted by a neighbour who saw police were at the home.

e. The Applicant testified the Respondent cursed at her on the telephone and told her to get the police out of the house.

f. She said a police officer then took the phone and asked the Respondent to attend.

g. As soon as the Respondent arrived he was arrested. As he was being handcuffed the Respondent started screaming uncontrollably, calling the Applicant horrible names, and telling her she would regret this. She said he was acting up so much the police officer finally grabbed him and pushed his face into a wall, telling him to "shut up". The police then forcibly removed him from the home.

[78] The Respondent testified about the incident:

a. He admitted they had an argument about the Playstation. He said it was his and it was in a backpack.

b. He admitted under cross-examination he had "tapped" the Applicant's foot during the disagreement.

c. He admitted he knew that her foot was broken. He denied the suggestion he first kicked her uninjured foot and then kicked the injured foot.

d. He testified he accidentally tapped her foot as she was pulling at the backpack he was trying to take.

[79] The Respondent denied the Applicant’s description of his arrest:

a. He telephoned the Applicant. Police immediately came on the line and asked him to return to the residence. He complied.

b. He denied telling the Applicant to “get the police out of the fucking house”.

c. He denied the police heard any threats or that he made any threats.

d. He said as soon as he walked into the house police put handcuffs on him. He denied he had done anything to provoke this.

e. He insisted even after he was handcuffed he didn't speak to the Applicant or say anything. He denied shouting at her. He denied police admonished him or harshly telling him to shut up. He said he was cooperative and everything was calm.

[80] The Applicant’s lawyer McCarthy cross-examined the Respondent about a CAS record which described the Respondent as saying that "in the heat of the moment he tapped her foot". McCarthy noted the CAS note said nothing about the Applicant grabbing at a backpack. The Respondent denied the accuracy of CAS records in relation to his interview.

[81] The Respondent admitted after the argument about the backpack – after his foot came into contact with her broken foot – he went to the basement and shut off a circuit breaker, turning off all the electricity in the house. He denied that leaving the Applicant injured and with no electricity in the house was inappropriate or malicious. He said the Applicant wasn’t paying for utilities in the house so she shouldn’t be allowed to use those utilities. He didn’t think his actions were inappropriate.

[82] The Applicant testified cutting off the power was purely malicious:

a. She had been contributing to the bills as best she could, and the electricity bill was up to date.

b. On previous occasions when he got angry the Respondent had similarly shut off the power to punish and control her, because he knew she didn’t know how to turn the electricity back on. She would have to wait for him to return.

c. However, even if he was mad he would never turn the power off if their son L. was in the house.

d. During the March 7, 2009 incident, L. was visiting the paternal grandparents. However the Applicant testified on other occasions L. witnessed the Respondent’s violence.

CRIMINAL CHARGES

[83] The Applicant testified when she called police on March 7, 2009 it wasn’t her intention to put him in jail. She just wanted him to stop the abuse.

[84] After hearing her story, the police laid the following charges against the Respondent:

a. Assault #1 – regarding an incident in January 2009 in which the Applicant’s hand was injured.

b. Assault #2 – regarding the incident when the Respondent punched the Applicant in the back of the head in front of L. in the kitchen.

c. Assault causing bodily harm – in relation to the broken foot.

d. Assault #3 – in relation to March 7, 2009 when the Respondent kicked the Applicant's broken foot.

[85] The Applicant testified after the Respondent was charged he was supposed to live with his aunt who was his surety. However he alternated between living at his aunt's home or his parent’s home. Eventually he went to live with A..

INJURED HAND

[86] The Respondent testified he pleaded guilty to a single count of assault on January 8, 2010. He received a suspended sentence and 12 months probation. The remaining charges were withdrawn.

[87] However during his testimony the Respondent was vague about exactly what he pleaded guilty to – and whether in fact he had done anything wrong. To add further confusion, his mother, father and fiancé each gave slightly different versions of what allegations the Respondent told them he pleaded guilty to.

[88] The Applicant described the January 2009 incident as follows:

a. The Applicant and the Respondent were home getting ready to go to a friend’s house. They had an argument and the Respondent was shouting and chasing after her.

b. The Applicant went into the bedroom and shut the door, bracing it shut with her hand to keep the Respondent away.

c. The Respondent struck or kicked the door with his foot – so forcefully that his foot went through the door, causing a piece of wood to break through to the Applicant’s side of the door.

d. She said the piece of wood flew off with such force that it cut her hand, and left a long scrape mark up her arm.

[89] The Respondent described the incident differently:

a. He and the Applicant were having a dispute. He couldn't recall the subject.

b. The Applicant walked upstairs and locked herself in a bathroom. He talked to her through the door.

c. He said the Applicant then left the bathroom and walked into the bedroom. As she entered the bedroom and he followed, she slammed the bedroom door in his face.

d. He said he raised his foot up to about waist level to stop the door from slamming.

e. He said when his foot struck the door a small piece of wood broke and flew off, striking the Applicant’s hand and causing a small cut.

f. He said the wood in the door was flimsy and could easily break off.

g. He insisted he didn’t kick the door. He wasn’t being aggressive. He didn’t mean to hurt the Applicant. She tried to slam the door shut, and he simply stuck his foot out to block the door from slamming.

h. He said "that was what they classified as an assault".

[90] The Respondent said he pleaded guilty to the charge on his criminal lawyer’s advice, and because that was the only allegation against him that was “even remotely true.” He said even that one guilty plea “wasn't fully true.” Under cross-examination he elaborated:

a. He denied he had been harassing or badgering the Applicant. He was just trying to talk to her.

b. He admitted she didn’t want to talk to him and was trying to get away from him.

c. He agreed the Applicant was entitled to go into a room and be alone if she wanted to. But he said he didn't like doors being slammed in his home.

d. He did not explain when the Applicant’s lawyer asked why he didn't just go elsewhere in the home and cool off if he was that angry.

e. By the end of his testimony the Respondent clearly stated he didn't believe the physical act he pleaded guilty to was really an assault. He hadn’t intentionally applied force or intended to harm the Applicant.

f. He hadn’t done anything wrong. It was the Applicant’s fault she had him arrested. He simply entered a guilty plea out of expedience.

[91] The Respondent denied other misconduct:

a. He denied ever hitting, kicking or physically assaulting the Applicant.

b. He denied having an anger problem (although later in his testimony he said he found a court-ordered anger management program helpful).

c. He denied ever doing anything to endanger his children. He insisted they have always been safe in his presence.

d. He denied breaking, hiding or disposing of any of the Applicant’s cell phones. He admitted he threatened to shut off her cellular service. He admitted that was stupid.

e. He denied the Applicant’s allegation he broke her stereo by throwing it against a kitchen wall.

[92] The Respondent’s mother, father, sister and fiancé all testified about the Applicant’s allegations of violence.

[93] His mother did not appear to be fully aware of the extent of allegations against her son. She said the Respondent told her he was charged with pushing the Applicant while she had some of his belongings. She wasn’t sure if this was when the Applicant broke her foot. She said the Applicant told her she hurt her foot stepping on L.'s belongings.

[94] She said the Respondent denied to her that he had done anything wrong, and she didn’t think he should have pleaded guilty.

[95] She didn’t think her son was violent. To the contrary, she recalled one time the Respondent showed up at her residence with a cut on his head, complaining the Applicant had assaulted him, and kicked him in his private parts. She advised him to call the police, but he refused to do so “because he did not want the mother of his child to be in trouble.”

[96] The Respondent’s father also testified he didn’t think his son was violent. He said he was present in criminal court when the Respondent pleaded guilty and he heard the facts of the charge read out. But he wasn’t sure what his son pleaded guilty to. He thought it had something to do with the incident when the Applicant broke her foot.

[97] The Respondent’s sister testified she never saw any sign abuse in the relationship.

[98] And the Respondent’s fiancé K. A. – who now lives with him – testified he has never been violent toward her, and she didn’t believe he had been abusive toward the Applicant.

[99] A. wasn’t present when the Respondent pleaded guilty, but he told her the details: There was an argument. The Applicant went upstairs. She slammed the door. A. wasn’t sure if the Respondent kicked it open or pushed the door open. The Applicant was behind the door. A piece of wood broke off and cut her finger.

[100] All of his witnesses – his family support network – insisted he hadn’t done anything wrong, even though they didn’t know the specifics of what he pleaded guilty to.

[101] The Applicant testified for years she told the Respondent’s parents he needs help with anger problems, and often she had to call them when he was acting up. She said the Respondent’s parents were loyal to him and refused to acknowledge that he had problems. She said ultimately they turned against her for getting him in trouble.

[102] Under cross-examination the Applicant was referred to a June 30, 2010 CCAS report which included the following:

"The society had ongoing involvement with the family from March 2009 until October 2009 due to domestic conflict. The father physically assaulted the mother and he was charged. The parents were separated but still living in the same home and trying to sell the home. The couple had been together for seven years and there had been no prior violence."

[103] The Applicant insisted that no matter what the writer of the CCAS report summarized, there had in fact been a long history of domestic abuse by the Respondent. The author of the CCAS report was not called as a witness.

[104] Notably, earlier in that same CCAS report the following notation was made:

"Hamilton CAS had one prior involvement with the family in November 2004 when an anonymous caller reported concerns with regard to lack of supervision, exposure to domestic conflict, and the mother's alcohol use. The concerns were not verified."

[105] The Applicant also testified the Respondent frequently called her unsavory and insulting names including “fat cunt”, “stupid bitch”, “piece of shit”, “dumb ass”, “stupid”, and “idiot”. The Respondent generally denied any aggressive behaviour toward the Applicant.

ANGER MANAGEMENT

[106] The Respondent testified about a men’s anti-violence program he was required to take as a term of his probation relating to the assault conviction:

a. He said he completed the program in October 2010.

b. He said it helped him "tremendously". He really benefited from it a lot.

c. He said previously he would hit a wall or hit something in the garage because he had a lot of anger.

d. He said some days he used to be very angry with himself and this caused him to lose control.

e. He said now he no longer gets angry. If something upsets him he finds other ways to deal with it, like going outside for a smoke.

[107] He was also required to take a substance abuse and awareness program pursuant to the terms of his probation.

[108] He admitted under cross-examination CAS had previously asked him to take the drug and violence programs voluntarily, but he refused to do so. He said he wanted to wait until his criminal charges were disposed of before taking such programs. He also said he didn’t trust the CAS worker.

[109] He admitted it was possible the Society felt he needed anti-violence counselling because according to their files L. had witnessed the Respondent’s violence in the home. He was evasive about this and stated “to a point, yes.” But he said CAS was satisfied he has not been violent either in this relationship or in his relationship with A..

RESPONDENT’S MATURITY

[110] The Respondent testified he has matured a lot during the last few years. His parents, sister, and fiancé all agreed. He explained:

a. When he was living with the Applicant both of them were very immature. He said he hadn’t grown up yet.

b. He said the turning point for him was the day he got arrested and placed in jail. It opened his eyes to the real world. It was an important experience for him.

[111] During cross-examination however, the Applicant’s lawyer reminded the Respondent he should already have “learned his lesson” many years earlier, when he had an abrupt encounter with police. The Respondent acknowledged:

a. When he was 16 years old he and some friends were passengers in a car.

b. The police started following the car. The driver suddenly stopped the car, announced it was stolen, and shouted to everyone to get out.

c. He said he panicked and started running from police but was quickly caught.

d. He was ordered to the ground, taken into custody, taken to the police station and questioned.

e. He testified he didn’t know the car was stolen, and started running from police simply because everyone else did.

f. He said it was a frightening experience.

g. He was not charged.

[112] The Respondent was notably evasive answering questions on this topic. He disagreed the stolen car incident should have been enough to “smarten him up.” He insisted the assault charges – which he perceived as unwarranted – were the turning point.

MARIJUANA

THE RESPONDENT

[113] Much of the evidence dealt with the Applicant’s allegation that the Respondent had – and still has – an unresolved problem with drug abuse. She said this was why all access since the date of separation has been supervised – and why future access should also be supervised until the Respondent can demonstrate through clean drug tests that he is not abusing marijuana.

[114] The Applicant explained her concerns:

a. The only drug she ever saw the Respondent take was marijuana.

b. He would use it daily – perhaps four or five times each day.

c. He did this throughout the whole of their relationship.

d. The amount of marijuana he smoked depended on how much money he had. In the early years of their relationship they didn't have much money. She said once he started working at Namasco and generating a good income he started smoking marijuana much more often.

e. The Respondent would go outside to smoke up.

f. She said she didn't approve and hated the smell of marijuana.

g. The Applicant noted for a period of time when they were together she was posted as a civilian in an RCMP drug section, and she had to be regularly screened for drugs. She said she emphasized to the Respondent that she couldn't risk any exposure to his use of drugs because it would jeopardize her employment.

h. She admitted, however, she had mixed feelings about his drug use because he was less aggressive when he used marijuana, and that was a relief.

[115] In contrast, the Applicant testified she smokes cigarettes but does not use any other drugs. She said she may have used drugs when she was 15 or 16 years old, but certainly not since having children.

[116] The Respondent denied ever having a problem with marijuana or any other drug. He testified:

a. He started using marijuana when he was 16 or 17 years old. In those days he did a lot of partying.

b. He’s 27 now and he has settled down. He does not smoke marijuana nearly as much as he used to.

c. He uses marijuana as an occasional social drug, when he’s around his friends. But he hardly goes out any more.

d. He said it relaxes him and calms him down. He denied having an anger problem or needing to take anything to remain calm.

e. He acknowledged his fiancé K. A. told CAS marijuana helps him sleep. He said "When you're more relaxed you fall sleep easier."

f. He has never smoked marijuana or been under the influence of the drug around his children or A.’s.

g. He said he can stop using marijuana any time he wants. “It’s not something I need.”

h. But he didn't think occasional marijuana use was a legitimate issue affecting his parenting. He commented: “How many parents do worse drugs and have care of their children?"

i. He referred to a CAS report which quoted his probation officer as saying he regularly attended his reporting and counselling requirements. He had disclosed occasional use of both alcohol and marijuana. Neither his probation officer nor CAS were concerned.

[117] The Respondent gave several descriptions of how frequently he uses marijuana:

a. He said he smoked occasionally. Definitely not daily.

b. He agreed he told the Society he used it on weekends. Not necessarily every weekend.

c. Under cross-examination he agreed he sometimes uses it weekdays as well. But not very often.

d. He said he only smoked it socially. But he also said he sometimes goes outside alone and smokes marijuana late at night after his fiancé’s children are asleep.

e. He agreed CAS records quoted his fiancé as saying he never smoked marijuana when her children were home. He denied an allegation a neighbor had seen him smoking marijuana at the back of the house while he had care of three children.

[118] The Respondent was cross-examined about drug testing:

a. He admitted he was twice ordered to take drug tests. Reports dated August 16, 2010 and November 11, 2010 were both “positive” for marijuana use.

b. He admitted the Applicant secured a court order requiring the Respondent to produce the second test result. He testified he had previously provided a copy to the Applicant but she wouldn’t accept it because she wanted the original.

c. In an affidavit he swore September 15, 2010 the Respondent commented on the first positive drug test and swore he "doesn't know how my system was contaminated with THC.” Under cross-examination he said the affidavit included a typographical error. He said he wasn’t trying to give the impression he doesn’t use marijuana at all. He was simply questioning the positive reading because he was only using marijuana socially. He was evasive and combative dealing with this issue, and blamed his former lawyer for the mistake.

d. He agreed in December 2010 Justice McLaren set the matter down for trial and endorsed that counsel were to contact the Trial Co-ordinator to set a trial date. He could not explain why the matter was not set down for trial until January 2012. He blamed his former lawyer. He denied deliberately delaying the trial so his two positive drug tests would appear to be historical. He said the Applicant was equally responsible for any delay.

e. The Respondent admitted the main reason the Applicant demanded access be supervised was because of his marijuana use, as confirmed by the drug tests. He admitted he likely could have put the issue to rest by simply producing a clean drug test.

f. The Applicant’s lawyer suggested if the Respondent only used marijuana occasionally, and if his children are more important to him than marijuana, it shouldn’t have been a major sacrifice for him to curtail his use of marijuana to secure unsupervised contact with his children. He agreed providing a clean drug test would have been a simple solution to the supervision problem. But he wasn't prepared to completely stop smoking marijuana "because I don't believe my occasional use of marijuana is a parenting issue". He also speculated the Applicant would have fabricated some other issue to justify supervision.

[119] The Applicant’s lawyer asked the Respondent about marijuana use in the context of his overall mental health:

a. The Applicant testified in February and March 2010 the Respondent sent her troubling text messages talking about how everyone would be better off if he wasn't here; saying goodbye; and stating she would never see him again. She testified she was so worried she brought an emergency motion.

b. (The Respondent thought the texts might actually have been sent in 2009, but I find it is clear from the context it was 2010.)

c. The Respondent testified he was unhappy and depressed about how the Applicant was treating him, and being kept away from L..

d. He said when he texted "I just want to fuckin’ die", he was not referring to suicide. He was simply depressed.

e. When he texted “Goodbye...U never have to worry about me again” he was not referring to dying. He was simply planning on leaving and going away.

f. He admitted he was basically telling the Applicant he was leaving his son L.. He couldn’t explain what he was thinking.

g. He said when he sent the texts he was seriously depressed.

h. But he testified he has overcome his depression. Today he feels completely different. “I love my life now.”

i. He said he is still unhappy about how little he sees his children. But he is not depressed.

[120] Under cross-examination he agreed marijuana lowers his mood and has a somewhat depressive effect on him. He agreed for a period of time he was seriously depressed. But he disagreed the Applicant ever had legitimate reason to be worried about his use of marijuana in combination with his depression.

[121] The Respondent was evasive and dismissive in testifying about his marijuana use.

a. He felt the Applicant was simply fabricating an issue to make him look bad.

b. He said he should be allowed to do whatever he wanted during his private time, as long as it did not jeopardize his children.

c. He acknowledged excessive use of any drug – including marijuana – could affect parenting skills. But he said occasionally taking a couple of puffs – typically lasting a couple of seconds – didn’t affect his parenting skills or judgment.

d. In any event, he never smoked around the children, so he felt marijuana should be a non-issue in this case.

K.A.

[122] The Respondent’s fiancé K. A. also testified about marijuana – the Respondent’s use, and also her own.

[123] Concerning the Respondent, A. stated:

a. He smokes marijuana once in a while but not around her children.

b. She admitted she told CAS the Respondent did not smoke marijuana in her house, but she did not tell them that sometimes he smokes marijuana immediately outside her house.

c. She acknowledged he will go outside to puff on marijuana on both weekends and weekdays, although she said “it doesn’t happen all the time.”

d. She doesn't approve of the Respondent’s use of marijuana. She knows it's illegal. But as long as her children are not present he can do what he wants. "That's his choice".

[124] A. testified she also experimented with marijuana as a teenager but she hasn’t used the drug in many years. She said after the Respondent moved in with her in February 2011 she became concerned she would also become the target of the Applicant’s unfounded allegations of drug abuse. She gave some confusing evidence about steps she took to pre-emptively clear her name:

a. A. testified that during the summer of 2011 she took the initiative to get a urine drug test because the Applicant kept making allegations she abused drugs. She wanted to be able to prove the Applicant was wrong.

b. At one point she said she obtained the test for her own peace of mind. But under cross-examination the Applicant’s lawyer easily established it wouldn't have made any sense for A. to get a drug test just to prove to herself that she wasn’t taking drugs.

c. Eventually A. acknowledged the purpose of taking a drug test during the summer of 2011 was to prove to other people that she was not taking drugs.

d. She said the drug test came back negative. It proved she was telling the truth about being drug-free.

e. But curiously she never showed the favourable drug test result to anyone. And then she lost her copy of the test, and apparently made no effort to obtain a replacement copy of the report from the testing lab.

f. She was vague about why she went to the trouble of getting evidence to clear her name, and then never used that evidence.

g. She thought she would hang on to the report to use it in case the issue of her drug use came up again.

h. She said there was no discussion about giving the report to the Respondent’s lawyer for safekeeping; to allow the lawyer to use it when it might be helpful to the Respondent’s case.

i. She acknowledged during cross-examination the Respondent advised the Applicant by e-mail on July 3, 2011 that A. had taken a drug test and the results would be back in a week or so. She said at that point the Applicant was alleging A. was abusing drugs like coke and marijuana. She couldn’t explain why the Respondent didn’t send the Applicant the favourable drug test, since he had already forewarned her it was coming, and it would have put the allegations to rest.

j. The Respondent had testified he and A. had paid several hundred dollars for the 2011 drug test. As the Applicant’s counsel noted, if they had paid so much to get a favourable drug test, it seems curious they didn’t produce it.

k. But A. testified it was in fact a urine test which she was able to obtain at no charge. She agreed she could have obtained multiple urine tests at no charge if she wanted to.

[125] The Respondent’s evidence on this topic was also confusing. He said it was his understanding A. paid about $427.00 for the clean drug test in the summer of 2011. He couldn’t explain why an unemployed mother on a fixed income would voluntarily pay that much money for what turned out to be very favourable evidence – and then keep the clean drug test a secret, even in the face of continuing allegations of drug abuse.

[126] A. testified the only drug she takes is Paxil, prescribed because she suffers from generalized anxiety disorder. She said this is caused by environmental stress. Under cross-examination she agreed children can cause or create that kind of stress.

[127] The Respondent’s parents both testified they never had any idea he was using drugs

PARENTING

[128] Much of the evidence in this trial focussed more on the quantity of parenting than the quality of parenting.

DURING COHABITATION

[129] The Applicant testified when they were living together and only had one child, she was L.’s primary caregiver. She was home more than the Respondent. And even when the Respondent was available (when he was laid off from work, for example) she still did more of the day-to-day care. As an example, she said as of the date of separation (when L. was four years old) the Respondent had never once taken the boy to the park.

[130] The Applicant testified during the early years the Respondent had an excellent relationship with L.. He started out trying to be actively involved, and she felt he was going to be a great father. But she said the Respondent started losing interest – in her and in the child – when L. was about three and a half or four years old. The Respondent’s personality and attitude seemed to change. He became more aggressive and violent, and he started pulling back from the family. She said it became really bad when the Respondent was laid off from his job in November 2008.

[131] The Respondent denied these allegations and insisted prior to separation he was closely involved in L.’s life.

[132] He said he does not believe in physical discipline of children and he has never been violent toward any adult in the presence of children.

[133] During cross-examination the Applicant’s lawyer McCarthy referred to two separate CAS notations – one on March 19, 2009 and one on April 23, 2009 – in which L. was quoted as saying he saw the Respondent kick the Applicant and he was scared.

[134] The Respondent insisted L. was wrong and the statements must have been planted in his mind by the Applicant. He said the Applicant has tried to influence L. against him. "You could put lots of stuff in a child's head".

[135] Notably, when the Respondent’s mother was asked about these same CAS reports, her answer was almost identical:

a. L. must have been influenced.

b. “You could put things in a child’s head.”

[136] The Respondent was quite defensive dealing with this evidence.

LANDYN AFTER SEPARATION

[137] The Applicant testified L. had a hard time after the parties separated. Even though her son had been upset by the Respondent’s behaviour prior to separation, the boy still missed his father after he moved out.

[138] She gave a poignant example: After separation she purchased a new Nintendo game for her son. Soon after, L. asked her to call the Respondent to come fix the game. She discovered L. had deliberately broken the game to create a reason for the Respondent to come to the house to fix it.

[139] For the first few months after the Respondent’s bail terms required him to stay away from the Applicant, there was no set schedule of access. The Applicant said she wanted to promote visits but she was also worried about the Respondent’s violence and drug use. The Respondent said the Applicant simply denied access.

[140] By June or July 2009 informal visits were arranged. On October 15, 2009 a temporary access order was made.

[141] All access provisions since separation have required supervision by the Respondent’s parents. The Applicant said according to L. the grandparents aren’t always around. But the Respondent and his parents testified they have faithfully complied with terms of supervision.

MORGYN PATERNITY

[142] M. was conceived when the parties were apart; the Respondent’s criminal charges were outstanding; the Respondent was on bail terms to stay away from her; and this Family Court custody battle had already commenced in relation to L.. The Applicant thought they were exploring reconciliation. The Respondent didn’t see it that way.

[143] The Applicant testified the Respondent reacted very badly when she told him she was pregnant. He insisted she have an abortion and drove her to a counselling appointment at Henderson hospital to explore her options. When she got out of the car and started walking away, he tried to physically drag her back to the hospital. She said he begged and pestered her to have an abortion but she refused.

[144] The Respondent testified initially he did not believe the Applicant when she said she was pregnant with M. because he had used protection. He said when it became obvious she was pregnant, they both agreed it was best not to bring another child into the relationship. They both agreed she should have an abortion.

[145] He said he drove the Applicant to a meeting concerning an abortion but as they approached the destination she announced she didn't want to go into the meeting. He said he walked with her to try to calm and encourage her. He denied pestering or pressuring her.

[146] He said after she ruled out an abortion, he heard from mutual acquaintances the Applicant was telling people she had been with two or three other men. He said as a result he started to question paternity.

[147] The Applicant denied there was ever any doubt about paternity. She said privately between them the Respondent fully acknowledged he was the father. But during her pregnancy he portrayed to everyone else – especially his parents – that he had nothing to do with the Applicant after the criminal charges were laid in March 2009.

[148] She said this created significant conflict between herself and his parents. They were already angry at her for “falsely” charging him with assault (even though eventually he pleaded guilty). They believed their son when he swore he couldn’t possibly be the father of her second child.

[149] The Respondent agreed under cross-examination when the Applicant went into labour with M. she contacted him but he refused to come to the delivery room. He said at that point he still thought the baby might not be his, and he didn’t want to be involved with the child until paternity was confirmed.

[150] The Respondent stuck to his story that they hadn’t had sex, until DNA tests – which he demanded – established he was in fact the father. M. was two and a half months old when he started having supervised visits. Eventually he saw both children on the same access schedule.

[151] The Respondent’s mother testified she and her husband were both sceptical about paternity of M. because:

a. Their son said it definitely wasn’t his child, and

b. The Applicant had made so many inconsistent statements, they were concerned she was “playing games.”

LIMITED INTERACTION

[152] The Applicant testified she realizes the Respondent’s current access is limited – both in time and by supervision. She expressed disappointment the Respondent doesn’t even take advantage of the time he’s currently allowed:

a. She questioned why the Respondent didn’t attend L.’s birthday party in August 2010, set up by the Respondent’s family. He opted to go for a boat cruise with a group of friends, instead.

b. More generally, she said under the current order he is allowed access Friday 5:00 p.m. to Sunday 4:00 p.m. – so long as it is supervised by his parents. However, he generally only attends for some daytime hours on Saturdays and Sundays, preferring to spend his remaining time with his girlfriend and her children.

[153] The Applicant testified L. has complained lately he wishes the Respondent wouldn’t always bring two or all three of A.’s children with him, during visits. She said L. likes playing with those children -- but L. also would like some one-on-one time with the Respondent.

[154] The Respondent testified he sees the children as often as he can, subject to other commitments:

a. He said he goes to his parent’s home at least two to three times a week.

b. He works a three-shift rotation. If he is on afternoons he has difficulty seeing the children on Wednesday evenings but he might drop by Wednesday morning to see M. (while L. is at school).

c. This year he's worked a lot of overtime which has interfered with access, especially on Saturdays.

d. As well, sometimes he helps a friend do side jobs repairing cars on the street. He denied receiving any income for this.

e. He has to devote time not only to L. and M., but also to his fiancé K. A.’s three children (who visit with their fathers on alternate weekends). The Respondent explained: "I can't limit myself just to being a father to my kids. I have to be a father to her kids as well."

f. He said he sees L. and M. at various times on alternate weekends – and sometimes even on his non-access weekends if the children happen to be with the paternal grandparents.

g. By the same token, if neither of his parents are available to supervise, he forfeits his visit.

[155] The Respondent’s mother testified her son visits the children frequently. At times she said she strictly adhered to the supervised access schedule in the temporary order. At times she and the Respondent both gave the impression the Respondent had additional visits, not specifically set out in the order.

[156] At several points during her testimony the Respondent’s mother expressed regret that the supervision order limited the amount of contact the Respondent could have with the children. However under cross-examination she acknowledged the Respondent doesn't actually take advantage of all of the hours available to him under the existing order. For example, even though he’s entitled to alternate weekends Friday 5:00 p.m. to Sunday 4:00 p.m., generally he only sees the children for a couple of hours Saturday evening, and then again Sunday for about five or six hours.

APPLICANT’S PARENTING SKILLS

[157] The Applicant testified she is an excellent, loving, devoted mother and she has worked hard to co-operate with the Children’s Aid Society (which became involved as a result of the police call to their home). CAS and CCAS records confirm the Applicant has been co-operative and addressed any concerns. At one point the Applicant asked CAS to keep their file open so she could continue to work with the Society, even after they didn’t think she needed any more help.

[158] The Applicant insisted her housekeeping standards are adequate. Some CAS records – and the Applicant’s sister -- expressed concern about housekeeping. Other reports described her as an adequate homemaker.

[159] Indeed, the Applicant’s sister B.R. was generally critical of the Applicant – as a mother and as a person. However, the sister’s evidence was vague, convincingly contradicted by the Applicant, and tainted by palpable hostility and an apparent personal agenda.

LACK OF COMMITMENT

[160] The Applicant testified at length about the biggest criticism levelled against her: That she has basically abandoned her children to the paternal grandparents, and she doesn’t really have enough interest in them. The Applicant expressed disappointment and frustration her selflessness and sacrifice for the sake of the children has now been twisted and used against her. She explained:

a. The Respondent’s parents are wonderful people. They have lots to offer. But they’re also very strong-willed.

b. From the very outset, the paternal grandparents offered generous help with L.. During cohabitation both the Applicant and the Respondent took them up on their offer, particularly on weekends.

c. The Respondent’s parents had lots of suggestions and advice. For the most part both the Applicant and the Respondent acceded to their preferences.

d. She said for example the Respondent and his parents wanted L. to attend a Catholic school. The Applicant is not Catholic, but she agreed.

e. After separation the Applicant proposed transferring L. to a non-Catholic school closer to her new residence. She said the paternal grandparents “threw a fit” and insisted L. attend the school they wanted. She said she acquiesced.

f. When the parties separated and the matrimonial home was lost to foreclosure, the Applicant went through financial and housing problems. Because of her unstable housing situation and lack of a vehicle, the paternal grandparents took over transportation of L. to and from school. This meant L. being enrolled in Holy Name of Jesus school which is near the paternal grandparents’ residence – but not in the Applicant’s school district. She said since he was attending school near the grandparents’ residence – and since she didn’t live near the school and didn’t have a car – it was more convenient for L. to sleep at the paternal grandparents’ residence on many school nights.

g. The Applicant said the paternal grandparents have been particularly helpful during this transitional period since separation. The Applicant has had financial and housing problems. She’s been delayed re-establishing herself until all of the issues in this court case are resolved. They have a lot more money than she does. They have the resources to travel and show her children a good time. They have taken L. on trips including Disneyworld in Orlando, two trips to Portugal, a trip to Montreal, and numerous outings to their cottage.

h. The Applicant testified while she cherishes her time with L. and M., she has usually allowed the Respondent’s parents to take the children on special outings – because she realizes they can provide things she can’t afford to provide for her children.

i. But she said with the passage of time the Respondent’s parents came to take more control. Perhaps because she was so co-operative, they assumed they could just make plans for the children whenever they wanted.

j. She said the Respondent’s mother became increasingly hostile and resistant if the Applicant tried to assert her own plans or ideas regarding the children. The Applicant and the Respondent’s mother each testified about a dispute they had concerning M.’s birth certificate.

k. Increasingly, tension arose about scheduling. The Respondent’s family made her feel guilty if she asked for the children to be with her. She felt constantly reminded that on any given occasion their plans for the children would be more fun than her plans for the children.

l. She testified she has tried not to turn timesharing at the grandparents’ home into an issue. She said the Respondent’s parents are wonderful and loving toward her children. They provide material things and experiences the Applicant can’t possibly afford. L. and M. both enjoy spending lots of time with them. She hopes that will never change.

m. But she feels to some extent the Respondent’s parents have overstepped their bounds. L. is now saying he’s not supposed to tell the Applicant certain “secrets” that happen at the grandparents’ residence. Lately M. has been very resistant to visiting the grandparents’ home.

n. She was offended by the suggestion she “abandoned” her children to the Respondent’s parents. When she and the Respondent were together they sent L. to the grandparents home frequently. In those pre-litigation days, nobody called it “abandonment”.

[161] She said currently L. spends more time with the Respondent’s parents than M., because he attends full time school near their home. She said he stays at her residence about half the time on weekdays and one or two weekends per month. M. spends more time with her.

[162] In contrast, the Respondent and both his parents testified L. and M. spend virtually all their time with the paternal grandparents – simply because the Applicant won’t or can’t take responsibility for them. The Respondent said the Applicant sees the children about three evenings a week and one weekend a month.

[163] Everyone agreed M. spends more time with the Applicant than L..

[164] The paternal grandmother testified as soon as L. was born – even while the parties were still living together – the child started sleeping at the grandparents’ residence with increasing frequency. She described it as a gradual expansion and said she and her husband developed a very close relationship with L. – and they are developing the same sort of loving bond with M..

[165] Notably – and this was really quite remarkable for a bitter eight day custody trial – neither the Respondent, his parents, his fiancé, or his sister had very many bad things to say about the Applicant’s parenting skills. In fact they were mostly complimentary.

[166] The Respondent testified:

a. While the parties were living together the Applicant’s parenting skills were fine. He felt they were both good parents.

b. "I don't think there's anything wrong with her parenting." He said it several times. “There’s no problem with her parenting, but she does not want these children.” He had no concerns about her parenting skills if she applied herself.

c. In his view the real issue was not the quality of her parenting but the inconsistency of her parenting.

d. He said when she takes responsibility for the children and applies herself she is fine.

e. But he doubts she has sustained interest in the children.

f. He said the extent to which the Applicant relies on his parents clearly demonstrates she has no interest in parenting on a full time basis.

g. He presumes even if the court awards her custody, she will soon hand the children off to other people to care for.

[167] The Respondent’s mother said much the same:

a. She had few actual criticisms of the Applicant’s parenting skills.

b. She acknowledged that since the parties separated in March 2009 she has had very little interaction with the Applicant, so she doesn’t see how the Applicant currently parents.

c. Her main concern about the Applicant is that she doesn’t really seem interested in having the children with her, and she is too quick to ask others (ie, the paternal grandparents) to raise her children.

d. She said she has never tried to reduce or encroach on the Applicant’s time with her children.

e. She would have been quite content if L. and M. only came to their residence on alternate weekends and one evening per week, pursuant to the Respondent’s supervised access order.

f. She and her husband have no interest in stealing their grandchildren away from either parent. They have taken on extensive responsibility for L. and M. not because they wanted to, but because they had to.

g. She specifically stated if the Applicant had insisted the children spend most of their time in her care, the paternal grandmother wouldn’t have had any concerns about the Applicant’s standard of care for the children.

h. Similarly she said in the future she wouldn’t be worried about L. and M. in the Applicant’s care – as long as she really did commit herself and act like a full-time parent.

i. She agreed there have been various disagreements about timesharing, sometimes because she and her husband like to take the children to their cottage on Lake Erie which is about an hour away.

j. She said the Applicant appeared more interested in having the children with her for special occasions, rather than on a day to day basis.

k. She supported custody being awarded to her son, not because the Respondent is a better parent, but because he really does want the children with him. She feels the father is more motivated than the mother.

[168] The paternal grandfather testified briefly on this topic:

a. He has never observed the Applicant’s parenting so he can’t comment on it.

b. He produced some photographs showing messy conditions at the former matrimonial home the day the Applicant was moving out. He did not contradict the Applicant’s evidence that these were snapshots taken in the middle of a hectic move, and that eventually she went back and cleaned up.

c. He said M. seems fine going back and forth between households, but she is only two “so she doesn’t know any better.”

d. L. is often reluctant to return to the Applicant’s home, but the grandfather didn’t speculate why.

[169] The Respondent’s sister V.D.M. testified she has never had any parenting concerns about the Applicant.

[170] Interestingly, the Respondent’s fiancé K. A. agreed perhaps the Applicant and the Respondent were equally guilty of relying on the paternal grandparents too much. She said when she (and her children) lived with the parties, she wondered why both parents sent L. to the grandparents so often. She acknowledged the Respondent used to do the same thing the Applicant is now being criticized for – delegating too much responsibility to the grandparents.

[171] The Applicant’s sister B.R. – who had a major falling out with the Applicant after they lived together briefly – was perhaps the most critical: She said the Applicant prioritizes herself over the children, and L. and M. are an inconvenience for her. She said the Applicant sent the children to stay with the grandparents most of the time – not because she had legitimate competing commitments – but simply because she couldn’t be bothered taking care of her own children.

[172] The parties gave evidence about several issues which arose after separation, which shed light on the extent to which the Applicant was trying to show interest in her children.

MORGYN’S BAPTISM

[173] The Applicant described M.'s June 2011 baptism as leading to a confrontation:

a. Prior to the day of the event, the parties went to the church with newborn M. to review the baptism ceremony with the priest.

b. On their way to the church they met at a nearby Tim Horton's to discuss other issues. The Respondent’s father was present.

c. They had a disagreement. The Applicant didn't want the Respondent taking L. to his family’s cottage for a week if his girlfriend (ie, the Applicant’s former best friend) K. A. was going to be present.

d. The Applicant left the Horton’s without the Respondent. As she pushed M. in a buggy, walking toward the church, the Respondent followed.

e. She said he approached and kept trying to grab her arm. She told him not to touch her. He was angry. He then punched her arms while she was holding on to the buggy which forced her to let go. As she released her grip he grabbed the buggy and started walking away with M..

f. She said he only returned the child about five minutes later after she called police on her cell phone. He released the stroller to her and went home. She proceeded to meet with the priest.

g. She said police later went to talk to the Respondent at his workplace.

h. The Applicant said the Respondent was on probation for assaulting her, when this confrontation occurred.

i. She said the baptism ended up proceeding uneventfully.

[174] The Respondent also testified they met at the Tim Horton’s prior to going to the priest’s house. He said:

a. He was disappointed the Applicant wouldn’t allow L. to spend a week at the cottage if K. A. was going to be there. He was disappointed but not angry.

b. He agreed the Applicant left the Horton’s and started pushing the stroller toward the church. He caught up to her. He said he did nothing in relation to the stroller until the Applicant let go of it. He said he grabbed the handle because he was afraid the stroller would roll away.

c. He started pushing the stroller toward the priest’s house. The Applicant stopped walking. He said he got about 10 feet from her and she started yelling and threatening to call his probation officer and to call the police.

d. He then returned the stroller to the Applicant.

e. He said later that evening the police came and spoke to him about the incident.

[175] The Applicant denied the Respondent’s version. She said she was trying to hold on to the stroller but he deliberately hit her forearm inflicting such pain that she had to let go and move her hands away.

L.’s First Communion

[176] The Applicant testified about recent problems involving L. s First Communion on May 6, 2012, just weeks before the trial:

a. She said the paternal grandparents chose to have the First Communion at a different church than most of the rest of the children in L.'s class. The Applicant was concerned he would not be able to share the experience with his classmates.

b. She said the Respondent’s family completely controlled arrangements in relation to the First Communion.

c. She was not allowed to take photographs of her own son at the church service. The child was whisked away by the Respondent’s family.

d. She wanted to cater a reception for L., but the offer was rebuffed by the paternal grandparents.

e. Immediately after the service ended the Respondent and his family took L. to a reception at an undisclosed location. The Applicant was not invited.

f. She expressed sadness and frustration the Respondent and his parents completely excluded her from this important event in L.’s life.

[177] The Respondent testified briefly about this. He said the First Communion for L. went fine with very little interaction with the Applicant. When they went to take pictures in the courtyard the Applicant simply wasn't around.

[178] The Respondent’s mother testified at greater length on this topic:

a. She said the Applicant initially agreed with their selection of the church. When she later expressed interest in having the First Communion at a different church, she was told to go ahead and make whatever arrangements she wanted. But ultimately the Applicant agreed to leave the ceremony at the church selected by the Respondent’s family.

b. The paternal grandmother agreed under cross-examination the Respondent’s family arranged a private reception after the church service, for their family only.

c. She agreed the Applicant wasn’t invited to L.’s reception. She wasn’t even told where it was being held.

d. She said they didn’t want the Applicant at the reception because they felt she would “start” something.

e. She told the Applicant she could set up her own reception on a different occasion. She disagreed with Applicant’s counsel that two separate receptions for his First Communion would be confusing for L..

f. She said at the end of the church service, the Applicant just disappeared while photographs were being taken.

[179] Mrs. D.M. was particularly evasive during testimony on this subject. She said at the end of the church service, the Applicant just disappeared while photographs were being taken at the church.

MOTHER’S DAY 2011

[180] The Applicant testified on Mother's Day 2011 she was supposed to attend the paternal grandparents’ residence to pick up L.. She said when she telephoned to say she was coming, L. was on the phone and she heard the Respondent in the background. She heard L. say “Mommy’s coming soon”. She said she then heard the Respondent in the background say “Tell your mother to fuck off".

[181] The Respondent denied this.

RESPONDENT’S PARENTING

[182] The Respondent testified he is an excellent father:

a. He said he is trying to be as involved in his children’s lives as possible, given all of the restrictions and commitments in his life.

b. He has been taking programs to be a better father.

c. He said L. is a very physical, active child and he described the many activities they share together.

d. He does not engage in physical discipline. He only smacked L. “on the ass” once in 2007 when he was particularly disobedient.

e. He uses “timeouts” as a discipline technique.

f. He emphasized how unfair it is to the children that access currently has to be supervised. He said L. in particular wants to have more contact with him, and wants to be able to go home with him.

g. He complained the supervised access order has prevented him from participating in L.’s schooling. He admitted under cross-examination that prior to mentioning schooling during his testimony, he never raised the issue during various motions, or in any of the letters his lawyer sent out.

h. He described M. as his “little angel”. He said she is very happy with him, and likes to engage in the same activities as her older brother. He said it’s almost as if he has two little boys.

[183] In contrast, the Applicant testified the Respondent had the potential to be a good father, but she worried about:

a. His violence and aggressive temperament.

b. His addictive use of marijuana.

[184] The Respondent’s parents and K. A. all testified he is very loving and committed to his children. They denied any sign of the concerns raised by the Applicant. A. testified she trusts the Respondent to care for her children.

RELATIONSHIPS

[185] It is little wonder communication and cooperation regarding L. and M. have broken down, and trust is virtually non-existent. Conflict between the various adults in their lives has been overwhelming:

APPLICANT & RESPONDENT

[186] The Applicant and the Respondent both testified they don’t really get along with one another. The Applicant remains angry about things she says the Respondent has done. The Respondent is angry about what he considers to be her false complaints.

[187] Both agree they cannot work together.

APPLICANT & RESPONDENT’S PARENTS

[188] The Applicant testified she used to have a civil relationship with the Respondent’s parents, but now they have “zero communication.” She explained:

a. The Respondent’s father is more easy-going. She only had one particularly nasty encounter with him.

b. But the Respondent’s mother does not like her at all. Ever since the Applicant called the police on the Respondent, his mother has refused to talk to her. She became even more hostile after the Respondent convinced his mother the Applicant was lying that he was the father of her second baby.

c. Now, the Respondent’s mother refuses to be civil with the Applicant even in front of the children. Communications are channelled through the Respondent’s sister V..

d. The Applicant said she has tried to be cooperative about time sharing, usually granting the Respondent’s parents requests for extra time. But the grandparents do not reciprocate. They are resistant and unfriendly when she wants her children back – even though she has a temporary custody order.

e. She testified about at least two incidents in which the Respondent’s parents called the police about her, after disputes involving the children.

f. She said notwithstanding their testimony to the contrary, they were both aware of the Respondent’s abusive behaviour toward her. They minimized it or covered it up.

g. She said the Respondent’s sister V. was also aware of the Respondent’s violence – in fact she witnessed the Respondent back-hand her – but V. has also remained united with the rest of the family in denying misconduct by the Respondent.

[189] The Respondent’s mother testified:

a. She never had a mother-in-law – daughter relationship with the Applicant. They were never friends.

b. When the parties were together, the Applicant kept to herself and didn’t mingle with the Respondent’s family despite efforts to try to welcome her.

c. After the parties separated, the Applicant tried to dictate who could be around the children; who could attend at the paternal grandparents’ residence. Ultimately the Respondent’s father told the Applicant she had no right to control their lives.

d. She said the Applicant wasn’t a good partner for the Respondent, and her son was much happier now.

[190] The Respondent’s father had little to say about the Applicant:

a. He has known her nine years.

b. She is the mother of his grandchildren.

c. He and the Applicant can "talk".

RESPONDENT & HIS PARENTS

[191] The Respondent and his parents testified they have a close family relationship with one another.

APPLICANT & K.A.

[192] The Applicant and K. A. have gone from being best friends to bitter enemies.

[193] The Applicant testified:

a. A. betrayed her trust, stole her “husband”, and broke up her family.

b. Since then, A. has been verbally abusive, repeatedly calling her names like “prostitute”, “hooker”, “jumbo thighs”, “fat thighs”, “crater face”, “bitch”, “cunt”, and whore.

c. When A. and her children lived with the parties, the Applicant wasn’t impressed with A.’s parenting of her own children. She said A. fed her children junk food, and didn’t properly supervise them.

[194] The Respondent testified:

a. The Applicant falsely blames A. as “the other woman”. He insisted he didn’t develop a relationship with A. until after separation.

b. The Applicant doesn’t realize that by trying to keep L. and M. away from A., she’s also hurting the children by keeping them away from their father.

[195] A. had her own complaints about the Applicant:

a. The Applicant sent her offensive texts and e-mails, calling her a slut.

b. The Applicant would confront her with insults, like “slut”, “bitch”, and “the regular names”.

c. At one point she testified the Applicant drove along her street past midnight screaming at her house. Under cross-examination she admitted she didn’t see the Applicant, but heard a voice shouting and it sounded like the Applicant.

d. She gave examples of other hostility which led to a number of police calls in 2009 and 2010. She said "I think we were all very naïve and stupid back then and we all made a lot of mistakes."

e. She acknowledged sending the Applicant an e-mail accusing her of being a prostitute because she had sex with the Respondent after they separated. She said this was because the Respondent had sent her a graphic e-mail outlining their sexual activities.

f. She said things have actually been better between her and the Applicant during the past few months. But she remained concerned about future harassment, particularly depending on the outcome of this court case.

g. She denied there was any basis for the Applicant to question her lifestyle or parenting skills.

[196] The Respondent and A. both testified in April 2011 the Applicant ran into them at a downtown bar. They said the Applicant had to be physically restrained by bouncers when she tried to physically attack them. The Respondent said he later discovered his car was vandalized. He suspected the Applicant was responsible but couldn’t prove it.

[197] The Applicant denied the entirety of this allegation, and cross-examination revealed inconsistencies between the testimony of A. and the Respondent, and a police report taken that night.

RESPONDENT & K.A.

[198] The Respondent and A. both testified they have a stable and loving relationship with one another. The Respondent has taken on a parental role in relation to A.’s three children. In turn, A. has a close relationship with L. and M..

[199] However, under cross-examination A. admitted things weren’t always so rosy. She said:

a. During 2009 and 2010 they had an on again/off again relationship with a number of separations lasting as long as four months.

b. She was quick to say the Respondent had “changed” and since they started living together in February 2011 he has been a “different person.” But she had difficulty explaining how exactly he “changed”. She was evasive about why they kept separating during those first two years.

c. She said he had a lot of things going on in his life; fighting for his kids was very stressful; and for the first year they were always arguing.

d. But A. had a poor memory when asked about any problems she encountered with the Respondent when they quarrelled.

e. She admitted she might have told the Applicant she had changed her e-mail address and that “police services would be scanning her inbox” to prevent the Respondent from contacting her by e-mail. She said she had no memory of this but might have done it.

f. She admitted a couple of times when she broke up with the Respondent she took her children to her mother’s place in Fort Erie for a period of time. She denied she was trying to physically get away from the Respondent.

g. She didn't recall telling the Applicant the Respondent would never see her or her children again.

[200] The Respondent described A. as very supportive of him and his custody claim. But he also said this ongoing court case has at times strained their relationship. He’s confident they will remain together. But he understands A. being upset about the intrusion on her life with him, and with her children.

RESPONDENT’S PARENTS & K.A.

[201] While the Respondent’s parents say they have now embraced K. A. as a member of the family, the Respondent’s mother testified that wasn’t always the case. She said:

a. Initially they did not welcome A. into their house and they didn’t want her around L..

b. She said this was partly because the Applicant had expressed warnings and disapproval about A..

c. As well, she only recently met A. and didn't know how long the Respondent's relationship with her would last.

d. Under cross-examination she agreed she told a CAS worker in February 2011 she didn’t agree with some of A.’s lifestyle choices. She said the Applicant told her A. liked to party.

e. She was also concerned the Respondent used to be a good friend of the father of two of A.’s children.

CUSTODY

APPLICANT’S POSITION

[202] The Applicant seeks sole custody. Her position:

a. She has always been the primary caregiver for the children.

b. L. has remained in her custody since separation.

c. M. was born when the parties were separated. The Respondent has only had supervised access to the child.

d. She is an excellent mother.

e. Her parenting skills have been confirmed by CAS and CCAS.

f. The Respondent should continue to have only supervised access until he can demonstrate that he has overcome his marijuana problem.

g. The Respondent also has a serious anger control problem.

h. The Respondent’s relationship with K. A. is relatively new, and has entailed periods of instability and conflict.

i. The Respondent’s request for custody entails significant disruption and risk for the children. He would inevitably need to rely heavily on K. A., whose parenting skills are questionable.

j. In any event, it is more appropriate for L. and M. to be with a biological parent than with a step parent.

k. The Applicant has proper accommodation and a reasonable, well-thought out plan for the children.

l. She recognizes the importance of the Respondent and – in particular – the Respondent’s parents in the children’s lives. She is prepared to promote continuing contact between the children and the Respondent and his family.

RESPONDENT’S POSITION

[203] The Respondent also wants sole custody. His position:

a. He has always been a good father.

b. He was never violent.

c. He does not have an anger control problem.

d. He does not have a drug problem.

e. The Applicant has acted maliciously by insisting his access had to be supervised all this time.

f. On a couple of occasions the Applicant actually allowed the Respondent to have a few unsupervised visits when it suited her.

g. There is no need for supervision, and the requirement that his parents must be present has needlessly interfered with his life with his children.

h. He is in a stable relationship with K. A. who has custody of her three children. He, L. and M. have become closely connected to her children.

i. He is more interested and more committed than the Applicant, to raise the children.

j. If he gets custody things will be very different for the children. They will have a more stable environment. Their schedules will be better organized.

k. He and A. have made all necessary arrangements for housing, and to ensure L. and M. attend the same school as A.’s three children.

l. He has an extensive support network, in addition to his parents.

m. He admits his shift-work will mean that at times he needs help. But in his view, L. and M. are better off with A. than with the Applicant.

n. He said if the Applicant gets custody, she’ll simply revert to her old pattern of leaving the children with his parents.

o. The Applicant can still have access. He suggested alternate weekends and twice a week for a couple of hours. She can also “babysit” if she wants. But she has to be consistent.

[204] To a large extent the Respondent characterized his claim for custody as the better alternative to his current supervised access regime. He had difficulty dealing with an intermediate option: unsupervised access to the Respondent.

[205] When asked why his custody proposal should be preferred over the Applicant’s proposal, he stated: “I can’t give you an answer about why it’s better”. He again said the basis of his custody claim is that the Applicant has demonstrated that she doesn't want the children. He agreed if she really did want the children she's competent to take care of them.

[206] He admitted his proposal might mean the children end up spending more time with A. than either biological parent. He agreed this could be disruptive for the children, since they have never lived with A. or her children.

[207] But the Respondent submitted the “status quo” – which, in his view, entails the children living with his parents – simply cannot continue. One of the biological parents has to take custody, and he feels he has the better plan.

[208] A. testified she fully supports the Applicant’s custody proposal:

a. They have a stable relationship.

b. Her children get along well with L. and M..

c. She plans to return to school on a part-time basis.

d. If she’s home, she can help care for the children if the Respondent has to work.

e. If she’s not available to help, the Respondent’s parents will likely be available.

f. She has an extensive support network.

g. She said she and the Respondent are already doing a great job raising her three children. Adding his two children shouldn’t be a problem.

RESPONDENT’S PARENTS’ POSITION

[209] The Respondent’s mother testified she believes it is best for L. and M. that they be placed in their son’s custody. But no matter who gets custody, she and her husband hope they will continue to have generous access. She stated:

a. Both parents love the children equally.

b. Both parents are equally capable of caring for the children and meeting all their needs.

c. The ideal solution would be for the Applicant and the Respondent to put their quarrelling aside and share custody as equally as possible. But that’s not possible because the Applicant and the Respondent have different outlooks and priorities.

d. The Applicant is constantly looking for ways to have less responsibility for the children. She’s constantly asking others (mainly the paternal grandparents) to do the parenting.

e. In contrast, the Respondent is constantly trying to have more involvement with the children. He’s frustrated by the current restrictions. He wants to step up and be a full-time dad.

f. In her view, if the Applicant has little interest; if the Respondent has a lot of interest; “It’s better to be with someone that wants them.”

g. She feels the Applicant has exaggerated the amount of time she spends with the children – and the quality of her relationship with each child. She feels L. is happier returning from the Applicant’s residence, than going to her home.

h. Nonetheless, the Respondent’s mother admits both children have a good bond with both parents.

i. The paternal grandparents will always be in the background, waiting to help, no matter who gets custody.

j. If the Respondent gets custody, they are confident he will bring the children around frequently.

k. If the Applicant gets custody, they are confident she will need lots of help – and they’ll be willing to give it.

l. Ideally, the paternal grandparents hope the children will come to their home every weekend. But the Respondent’s mother candidly acknowledged weekends will be precious for both parents.

m. She said the children are closely connected with the Respondent’s extended family. These relationships would likely be easier to maintain if the Respondent gets custody. But either way, the family is strong, and the children will always be part of it.

n. No matter who gets custody, the paternal grandparents expect to be involved.

FINANCIAL ISSUES

[210] Most of the trial focussed on the custody/access issue, but a few other claims arose. I have already dismissed the Applicant’s claim for reimbursement in relation to the Dodge Neon automobile.

$6,000.00 LOAN

[211] The Applicant’s grandmother S.G. testified:

a. Ever since the Applicant was a child, her grandfather set aside money from his Dofasco pay cheque for the Applicant’s benefit.

b. At one point the Applicant and the Respondent approached them requesting the accumulated savings for a downpayment on a house.

c. They needed $12,000.00. The accumulated savings totalled only $10,000.00. So G. and her husband gifted the extra $2,000.00 to enable them to purchase their home on Balmoral Avenue North in Hamilton.

d. After they purchased the house, the Respondent experienced periods of unemployment. During one of those periods, the Applicant and the Respondent borrowed an additional $6,000.00, which they needed to ensure they could make mortgage payments until the Respondent was called back to work.

e. The $6,000.00 was advanced by a cheque payable to the Applicant.

f. G. denied a suggestion by the Respondent’s lawyer that the $6,000.00 was a gift. She was feisty and adamant: “Do you think I’m going to give $6,000.00 as a gift?”

g. G. said the $6,000.00 was repaid by the Applicant.

[212] The Applicant agreed with this evidence, and confirmed that she repaid all but $75.00 of the $6,000.00 loan – at the rate of $200.00 per month. She testified when the loan was taken out the Respondent agreed to contribute $100.00 per month as his half of the repayment – but he never did. She asked that he be ordered to pay her $3,000.00 as reimbursement for “his half” of that debt.

[213] The Respondent didn’t dispute that $6,000.00 was advanced, or that the Applicant repaid it. But he said all of this occurred while the parties were still living together, with each contributing to various obligations in any way they could. He denied there was ever an agreement that he would repay any portion of the $6,000.00. His lawyer disputed the claim was even properly before the court.

[214] I find that the Applicant has not established an entitlement to repayment of any funds in relation to the $6,000.00. By her own evidence, the parties jointly assumed responsibility for various financial obligations. The Respondent worked more often. He was the primary breadwinner. He generated the income to pay the majority of expenses. She voluntarily assumed responsibility for the full $200.00 monthly payments. There was never any agreement the Applicant would be entitled to retroactive compensation for an obligation she took on prior to separation.

SPOUSAL SUPPORT - ENTITLEMENT

[215] The Applicant has requested spousal support – but only retroactively, for the period from separation in March 2009 to the May 2012 trial date.

[216] The Respondent has challenged entitlement, but I have no difficulty concluding the Applicant is entitled – and might well have been entitled beyond May 2012 had she requested it. Among my considerations:

a. The parties lived together nearly five years.

b. There are two children of the relationship – the second being conceived after separation.

c. The Applicant has had temporary custody of both children. Notwithstanding any timesharing as between the Applicant and the Respondent’s grandparents, the Applicant has had significant direct responsibility for two children, the youngest of whom is still a pre-schooler.

d. During the relationship the Respondent came to be the primary breadwinner, while the Applicant assumed primary responsibility for L.. The Applicant came to be dependent on the Respondent.

e. The Applicant worked part-time but her availability and viability in the employment market have been affected by each of the pregnancies.

f. The Applicant’s post-separation employment prospects (prior to becoming pregnant with their second child) were undermined by the Respondent’s decision to deprive the Applicant of the inexpensive Dodge Neon she had been using for transportation.

g. The Applicant has experienced an economic disadvantage in that she applied her childhood savings ($12,000.00 including the $2,000.00 gift from her grandparents) to purchase the Balmoral Avenue home which was registered in both names. That investment was lost to foreclosure. There was a shortfall on the mortgage. The Respondent relieved himself of the financial consequence through bankruptcy.

[217] The Respondent has never paid any spousal support. The Applicant seeks a lump sum retroactive spousal support payment. As well she seeks a retroactive top-up of child support, together with ongoing child support payments.

[218] The Respondent denies any retroactive spousal support should be paid. He seeks reimbursement of most of the child support he’s paid in the past – on the basis that the Respondent was receiving child support while the children were really living with his parents.

[219] If his custody claim is successful, he seeks ongoing child support in the future.

YEARLY ANALYSIS

[220] The Respondent’s income in 2009 (when he was laid off for the first 8 months) totalled $28,900.00. The Applicant’s only income was the Child Tax Benefit.

[221] The Respondent paid no child support between separation in March 2009 and June 1, 2009 when he started paying $195.00 per month for L. pursuant to Justice McLaren’s May 27, 2009 order. That $195.00 was based on employment insurance equivalent to $23,065.00 per year.

[222] The Respondent returned to full-time employment in September 2009, but he didn’t disclose his increased income until approximately August 2010 – about three months after M. was born. He said he delayed the disclosure until he completed a probationary period.

[223] On September 1, 2010 he started paying child support for two children in the sum of $730.00 per month, pursuant to Justice Whitten’s September 17, 2010 order. This was based on an estimated income of $48,400.00. As it happens in 2010 the Respondent earned $53,330.00.

[224] In 2011 the Respondent’s income was $54,300.00, but he kept paying the $730.00 child support based on $48,400.00. He has continued those payments to date. His 2012 income will likely be similar to 2011.

[225] I should note I have not imputed any additional income to the Respondent, related to his ongoing activity helping a friend customize cars, install stereos, and do engine work. He testified it’s more of a hobby, and might involve between an hour and an hour and a half, perhaps weekly. I am sympathetic to the Applicant’s argument the Respondent wouldn’t be regularly fixing other people’s cars – taking time away from his access to his own children in this custody dispute -- unless there was something in it for him. But little evidence was called on the subject, and I am not prepared to quantify any potential benefit to the Respondent.

CHILD SUPPORT

[226] Subject to any other considerations, I accept the Applicant’s basic calculations about child support.

[227] In 2009 the Respondent paid $1,365.00 ($195.00 per month from June to December). He should have paid $2,313.00 ($257.00 per month for April to December). He underpaid child support by $948.00 in 2009.

[228] In 2010 the Respondent paid $1,560.00 for January to August (for L.) and $2,920.00 for September to December (for L. and M.). That totals $4,480.00. He should have paid $2,465.00 for January to May ($493.00 per month for one child) and $5,614.00 for June to December ($802.00 per month for two children). That totals $8,079.00. He underpaid child support by $3,599.00 in 2010.

[229] In 2011 he paid $8,760.00. Based on an income of $54,300.00 he should have paid $9,804.00. He underpaid child support by $1,044.00 in 2011.

[230] Under the revised guidelines effective January 1, 2012, the Respondent should have paid $807.00 per month based on an income of $54,300.00. For the first six months of 2012 he has underpaid child support by $462.00.

[231] The total underpayment of child support for the period March 2009 to June 30, 2012 totals $6,053.00.

[232] The Applicant has been diligent in continuously requesting disclosure and financial support. The Respondent has not been forthright. He cut off all financial contribution (including the mortgage) immediately upon separation. He paid no child support voluntarily until the Applicant brought a motion. He failed to disclose his increased income after returning to work, for almost a year. He made no contribution for M. for several months because he denied paternity. He knew for almost two years his actual income was higher than the income estimated in Justice Whitten’s September 2010 order. All of these decisions resulted in a continuous underpayment of child support.

[233] The Respondent asked that he not be required to top up child support retroactively – and that in fact 90% of what he has paid should be refunded to him – because in his view the Applicant hasn’t really had custody of the children (or the related expenses). He said with the children spending so much time with his parents, they are the ones really supporting L. and M.. He said he would pass any refund on to his parents.

[234] However, I do not believe it is appropriate for the Respondent to evade full guideline responsibility for child support:

a. At all materials times the Applicant has had “custody” of both children.

b. The Respondent consented to temporary custody orders in relation to L. and later M..

c. The Respondent consented to paying what was described as full guideline support when the various temporary orders were pronounced. He consented to this “full table amount” approach knowing then what he knows now – that his parents were having generous access.

d. If the Respondent sincerely believed the Applicant wasn’t entitled to child support because she didn’t really have the children in her care, he should have raised the issue when each temporary child support determination was made.

e. The Respondent’s parents had a fluid and generous access arrangement. I have no doubt the children were with them a lot. But based on the evidence I am satisfied that, overall, the Applicant has had the children in her care at least half the time – and at times significantly more than that (particularly in relation to M.).

f. I have no doubt the Respondent’s parents spent money on the children. But neither the Respondent nor his parents provided any specific evidence as to how much this access arrangement cost the grandparents – or how much it might have diminished the Applicant’s expenses.

g. Notably, the Respondent’s parents are not parties. They have never claimed a penny of reimbursement from the Applicant. The fact that benevolent grandparents helped – and helped a lot – does not relieve the Respondent of his basic child support obligations.

h. I do not believe the Respondent can avail himself of the discretion afforded by section 9 of the Child Support Guidelines. Clearly, the Respondent has had the children with him far less than 40% of the time. He has provided no evidence as to any expenses associated with his time or involvement with the children.

i. At every stage the Applicant has maintained housing – and related expenses – suitable for two children in her full-time care.

j. I received no specific evidence about either the Applicant’s or the Respondent’s respective budgets, which would justify a departure from full guideline child support.

SPOUSAL SUPPORT - QUANTUM

[235] The Applicant sought time limited spousal support for approximately three years following separation. Her lawyer provided Spousal Support Advisory Guideline calculations suggesting:

a. A first year monthly range of $450.00 to $534.00 to $619.00 (based on the Respondent earning $28,900.00 and there being only one child).

b. For the remaining two years the SSAG calculations suggest a range of $491.00 to $621.00 to $754.00 (based on the Respondent earning $53,300.00 and there being two children).

c. With two children, the guidelines suggest a minimum duration of eight years and a maximum duration of 20 years from the date of separation – significantly longer than the three years sought by the Applicant.

[236] As stated, I have little difficulty concluding the Applicant is entitled to spousal support. However, her request for only retroactive spousal support, based on a mathematical totalling of three years worth of SSAG numbers, creates difficulties and potential unfairness – even if (as proposed) the low end of each range is applied.

[237] The claim for spousal support was adjourned on consent at the motions stage. This is not uncommon. At the time, disclosure was incomplete. I am satisfied the court still has jurisdiction to deal with retroactive spousal support at trial, now that more information is available.

[238] But on May 25, 2012 – the second day of trial – the Applicant filed her first financial statement in this proceeding. At trial she produced virtually no financial disclosure concerning her circumstances; her budget; her need -- during any of the three years for which spousal support is now requested.

[239] At the motions stage spousal support was adjourned without a return date, presumably to be dealt with at trial. But then both parties were responsible for an inordinate delay in getting to trial. In December 2010 Justice McLaren set the matter down for trial, and endorsed counsel were to arrange a date. However, counsel waited until January 2012 to set this trial date for May 2012. During the year the file sat dormant, the Respondent had produced sufficient disclosure to establish he had the ability to pay spousal support. The Applicant could have either expedited the trial, or requested temporary spousal support. By failing to do either, she allowed a potentially unmanageable retroactive spousal support obligation to accumulate. I must consider the reality of the Respondent’s financial circumstances, and his ability to pay.

[240] If the Applicant was only seeking time limited spousal support for the period March 2009 to May 2012, it would have been beneficial to both parties to clearly identify the scope of the claim prior to trial, and to immediately secure a temporary order, to allow spousal support payments to be tax inclusive (as presumed in the spousal support advisory guidelines).

[241] The Applicant now seeks a totalling up of three years worth of SSAG spousal support as a lump sum spousal support payment. But such a payment would not be tax deductible for the Respondent. The amount would have to be “netted down”. (Greenglass v. Greenglass (ON CA 2010); McKinnon v. McKinnon 2004 CarswellOnt 4370 (Ont. S.C.J.).

[242] The Applicant was in receipt of the Child Tax Benefit, and at times Ontario Works during the three years in question. Retroactive spousal support specifically allocated to those years might result in a corresponding retroactive recalculation of those government funds – likely not what the Applicant had in mind.

[243] While the Applicant’s desire for finality in relation to spousal support is commendable, the limited finances herein virtually preclude any meaningful restructuring, as contemplated by the Spousal Support Advisory Guidelines. Restructuring has the potential to be beneficial and fair for both parties. But there are limitations to the extent to which a recipient can require that spousal support be compressed into a specific period (or lump sum payment).

[244] All of the indicators here would have suggested a combination of retroactive and prospective spousal support – likely totalling more than three years – might have been the better approach. But that’s not what the Applicant asked for, and that’s not the claim the Respondent had to deal with at trial. It would be inappropriate for the court to now substitute prospective spousal support, which was not requested or canvassed at trial.

[245] The Applicant requested three years of retroactive spousal support, loosely calculated at about $400.00 per month. That would total more than $14,000.00. For all of the reasons set out above, I believe this would be inappropriate and unfair.

[246] Considering all of the above noted circumstances, and the significant retroactive child support ordered herein – and considering the limited scope of the Applicant’s claim – I find that a $7,500.00 lump sum spousal support order is appropriate.

CREDIBILITY

[247] The Applicant was a very talkative witness. She gave her evidence in a spontaneous and genuine manner. At times she appeared a little unfocussed. She was certainly emotional. But I detected no sign of evasiveness or deception on her part. She was responsive to questions during cross-examination.

[248] Generally, I found her to be a straightforward and reliable witness. There were only a few exceptions. For example, her explanation about why the Office of the Children’s Lawyer never received an intake form from her simply lacked credibility. But her evidence about L. and M. – and her relationship with their father – was believable.

[249] The Respondent’s presentation during the trial was more complex. He presented himself in a very mild and controlled manner during examination in chief. But under cross-examination he easily became resistant, argumentative, evasive and combative.

[250] He testified with an overwhelming sense of anger and hostility toward the Applicant. He repeatedly blamed others – especially the Applicant – for his problems. In discussing timelines, he identified events in relation to the date “the Applicant had me arrested.”

[251] The Respondent was particularly unconvincing in dealing with issues of his anger management and drug use:

a. He had difficulty explaining repeated instances of impulsive, aggressive, and malicious behaviour.

b. He was unable to reconcile why he pleaded guilty to assault, when he insisted he never assaulted the Applicant.

c. His description of the facts he pleaded guilty to (his foot hitting a door; a piece of wood hitting the Applicant) was confused and naive.

d. At times he portrayed himself as more mature, and commended a court-ordered anger management program as a “tremendous benefit”. At other times he insisted he never had an anger management problem.

e. He said being charged with assault was an awakening for him. But he seemed unable to explain why his earlier brush with the law running from a stolen car wouldn’t already have been his awakening.

[252] Similarly, the Respondent was evasive and inconsistent during intensive questioning about his use of marijuana. His attitude on the topic was dismissive. The succession of seemingly minor inconsistencies in his story had a cumulatively damaging effect. It didn’t help that his supportive parents both testified they never had any indication he used drugs -- even though the Respondent himself testified he smoked marijuana extensively when he was 16 or 17, and still living at home with his parents.

[253] The Respondent’s focus on the negative was disconcerting. Rather than explain why it would be good for him to have custody, the Respondent dwelled on how bad and unfair supervised access was; how bad and disinterested the Applicant is.

[254] In relation to several post-separation disputes – M.’s baptism; L.’s First Communion – I prefer the Applicant’s evidence over the Respondent’s. Her evidence was clear and internally consistent. His evidence was vague and self-serving. His demeanour on the stand was defensive.

[255] The Respondent’s parents were both very helpful witnesses. They are wonderful people. Selfless and dedicated grandparents. Surprisingly fair-minded toward the Applicant. But above all -- unconditionally loyal to their son.

[256] I pretty much believed every word they said about L. and M.; how much they love their grandchildren; how they will always be there to help in any way required.

[257] I accepted much of what they said about the Applicant: She’s a good mother; they’re surprised she doesn’t take her children more often; they’ll always be willing to work with her and help her.

[258] But regrettably, I found much of their evidence about the Respondent to be highly suspect. In their own way, each of the Respondent’s otherwise talkative parents seemed to momentarily “freeze” when asked a potentially embarrassing question about their son’s violence or drug use.

[259] The Respondent’s mother in particular seemed to know almost everything about what happened in her son and grandchildren’s lives. But when asked about violence – even the Respondent’s violence toward their other son Daniel – mysteriously she knew nothing.

[260] The Respondent’s mother was also conspicuously resistant and evasive in discussing the conflict surrounding L.’s First Communion. She and the Respondent used identical language in dismissing L.’s reports to CAS that he witnessed violence by the Respondent. They both blamed the Applicant for “planting” the idea in the boy’s head. Neither addressed the impact on the child – he was verbalizing being afraid.

[261] The Respondent’s father was soft-spoken. Perhaps he described it best: “You try to help your children out as much as possible, whatever the situation.”

[262] For similar reasons, I cannot accept much of the evidence of K. A. who – understandably – appeared to be trying hard to help the Respondent at every stage.

[263] Her elaborate description of being falsely accused of drug abuse; voluntarily taking a drug test; and then failing to produce the “clean” test result even though it would have cleared her name -- made no sense at all. She was also evasive answering some pretty simple questions about turbulence in her relationship with the Respondent.

[264] The Respondent’s sister V. testified briefly. Her evidence was largely straightforward and balanced. But – as with the Respondent’s parents – I found her to be wilfully blind about the likelihood the Respondent has a serious anger control problem.

FINDINGS

[265] After reviewing the evidence in detail, I make the following findings:

[266] The parties have two young children – the youngest conceived and born at a time when the Respondent was supposed to have no contact with the Applicant pursuant to bail restrictions.

[267] Both children are healthy and well cared for.

[268] During cohabitation, as between the Applicant and the Respondent, the Applicant assumed primary responsibility for the oldest child L.. But from the very outset, both parents promoted and appreciated extensive involvement in L.’s life by the Respondent’s parents.

[269] The Respondent was always the primary breadwinner for the young family, although he experienced periods off work. The Applicant also held some lesser employment periodically, but she came to be dependent on the Applicant.

[270] During cohabitation the relationship between the Applicant and the Respondent was turbulent, primarily as a result of the Respondent’s ongoing difficulty with anger management.

[271] During cohabitation the Respondent assaulted the Applicant. He did it more than once. He did it in the presence of L., who was frightened by his aggression and later reported the experience to others. The Respondent pleaded guilty to assault and he was guilty. I accept the Applicant’s descriptions of the Respondent’s physically and verbally aggressive behaviour during the relationship.

[272] I find the Respondent’s refusal to acknowledge his problem with anger control and domestic violence to be troubling, particularly in the context of signs of turbulence early in his relationship with his current partner K. A..

[273] During his testimony, I saw no sign of the maturity the Respondent now professes. His continuing resentment toward his accuser overshadows any sincere recognition of culpability for past misconduct.

[274] The relationship between the Applicant and the Respondent was clearly in trouble by the end of 2008. Separation was virtually inevitable.

[275] Physical separation occurred on March 7, 2009, when the police were called after an assault, and charges were laid.

[276] L. has remained in the Applicant’s legal custody since then.

[277] M. has remained in the Applicant’s legal custody since birth.

[278] The Respondent had a pattern of acting maliciously toward the Applicant if he was angry at her. He continued this pattern upon separation.

[279] He inappropriately and maliciously shut off electricity to the home to punish the Applicant and prevent her from calling for help.

[280] He retained physical possession of both vehicles they were using. As registered owner of the Neon he may have been legally entitled to take the vehicle. But he knew the Applicant was driving it. She needed it for transportation for herself and their child. It wasn’t an expensive vehicle. It had been gifted by her father. He had another car, didn’t need the Neon and ended up selling it. Retaining the vehicle was a needlessly spiteful act which simply interfered with the Applicant’s parental responsibilities, and her ability to pursue self-sufficiency.

[281] Despite clear bail restrictions the Respondent continued to have contact with the Applicant during the summer of 2009, including sexual relations. The Respondent may not have verbalized interest in reconciliation, but he must have known that’s what the Applicant had in mind.

[282] When the Applicant announced her pregnancy with M., the Respondent pressured her to have an abortion. He felt he had a right to participate in the decision because he knew he was the father.

[283] For an extended period the Respondent misled his parents that it was “not possible” that he was the father – just as he misled them that he had never been violent toward the Applicant.

[284] The Respondent has a history of denying misconduct to his parents. And they have a history of unconditionally believing him.

[285] The Respondent avoided any involvement in M.’s life for the first two and a half months – until paternity testing proved he was the father.

[286] The Respondent paid temporary child support as required by court order. He did not make timely disclosure of increases in his income. He underpaid in each year since the date of separation.

[287] The Respondent says the Applicant shouldn’t get a final custody order because she hasn’t taken advantage of her temporary custody orders; she’s not really interested in the children, and she just palms them off on his parents. I find that this is not an accurate description.

[288] There is no doubt that the Respondent’s parents have been actively involved in both children’s lives. But this is not simply a reflection of “disinterest” by the Applicant. While the parties were together, they both promoted L. having a second home with the paternal grandparents. After separation the Applicant was simply continuing and encouraging beneficial contact with extended family.

[289] Since separation L. has spent significant time with the Respondent’s parents. But this has been as a result of a combination of convenience and unavoidable transitional circumstances the Applicant has experienced – with many of those circumstances having been caused or exacerbated by the Respondent. Without money, a job, a car, or stable housing, it is entirely understandable the Applicant took advantage of generous offers of assistance from the Respondent’s parents. After M. was born, this pattern continued (but to a lesser extent regarding the younger child).

[290] I find the children have spent a lot of time at the paternal grandparents. But not the majority of the time. The schedule has been somewhat fluid, but M. in particular has likely spent well over 50% of her time with the Applicant.

[291] I find that as between the Applicant and the Respondent, the children have spent much more time with the Applicant.

[292] Fundamentally, I reject the allegation of “disinterest” or a lack of commitment on the part of the Applicant. The evidence is clear that with the passage of time there were increasing conflicts between the Applicant and the Respondent’s parents – precisely because she wanted more time and control of her own children, while the Respondent’s parents strongly preferred to do things their way.

[293] There are no villains here. The paternal grandparents are wonderful people. They have gone beyond the call of duty in stepping in – over and over again – to do the best for their grandchildren. It is clear they acted not out of selfishness, but out of necessity. It is equally clear the Applicant’s need for assistance has been heightened during this protracted litigation. To some extent she has been in limbo, unable to finalize plans for herself and her children until the various financial issues in this case were resolved.

[294] I find that what was originally a wholesome, fluid, and mutually beneficial arrangement has suddenly become distorted and mislabelled for strategic purposes, in the context of this custody trial. “Generous timesharing” has been transformed into “the children live with the grandparents.” Flexible scheduling and accommodation has been transformed into “the mother doesn’t want her children.”

[295] I find that the Applicant does want her children. With the passage of time she may have lost some of her voice in asserting herself against a very strong family. And it was never in her interest – or in the children’s interest – to bring things to a head in a needless and destructive power struggle with the Respondent’s parents.

[296] She wasn’t disinterested. She was pragmatic. She did the best she could while waiting to get her life in order.

[297] The Respondent and his parents have maintained a very simple theme: They say the Applicant’s parenting skills are entirely adequate, but she’s not really interested in having the children with her. I reject this self-serving negation of the Applicant’s motives.

[298] I find the Applicant does indeed have entirely adequate parenting skills, and a sincere desire to apply those skills to full-time custodial responsibility of the children.

[299] I find both parents have a loving bond with both children. But as between the Applicant and the Respondent, the Applicant has had significantly more involvement and experience in raising the children. Indeed, the Respondent has never had M. on an unsupervised basis; he’s never had her for a single overnight.

[300] I have no doubt the Respondent is sincerely interested in being more involved with his children. I note, however, that he does not currently take advantage of all of the access time available to him under the existing order. While the “supervision” term is undoubtedly restrictive and offensive to him, the “supervisors” are his own parents, and it is clear they are very supportive and flexible. The Respondent has not maintained as much presence and familiarity in each child’s life as he was entitled to.

[301] I find that continued custody with the Applicant is the only available option which best promotes consistency and minimizes disruption in the children’s lives.

[302] I find the Applicant has a realistic and viable plan as a single mother. Undoubtedly she will have fewer resources than the paternal grandparents could provide. But the grandparents have not claimed custody. And custody is about more than money.

[303] I find that the Respondent’s custody proposal is speculative and inherently entails the same sort of delegation of responsibility he has criticized.

[304] L. and M. have never lived alone with the Respondent. They have never lived with the Respondent, his fiancé, and her three children. The adjustment difficulties – within the context of a still relatively new unmarried relationship – have been glossed over.

[305] As well, the Respondent works a three shift rotation, with overtime. He would be extensively reliant on K. A. for childcare. But A. is returning to school. So others – likely the paternal grandparents – would again have to be utilized.

[306] I find the Applicant must share some of the responsibility for this avoidable trial. Twice, the Children’s Lawyer declined involvement on this file because the OCL did not receive an intake form from the Applicant. OCL intervention could have narrowed – and perhaps settled – the custody/access issues.

[307] I find the Respondent uses marijuana. He has used marijuana for a very long time. He was evasive about the extent to which he uses marijuana. Based on the evidence it would appear to be “recreational.”

[308] But by the same token, I received no evidence the Respondent’s occasional use of marijuana impacts negatively on his parenting responsibilities or other aspects of his life. He maintains employment. Apart from past domestic violence charges, he is not in trouble with the law. And his drug use was never described as the cause of his violent behaviour. To the contrary, the Applicant testified the only redeeming aspect when he smoked up was at least he was less aggressive.

[309] The Respondent’s use of marijuana was brought to the attention of CAS and/or CCAS during general investigations, and there was no determination of a drug problem impacting on any children.

[310] I find the Respondent is surrounded by people who would monitor and be intolerant toward any use of marijuana which might jeopardize L., M. or any other children. I accept K. A.’s description that she doesn’t use marijuana, doesn’t approve of it, wouldn’t allow her children to be exposed to it – but she can’t prevent the Respondent from occasionally smoking marijuana, on his private time, so long as it’s not around the children. This is similar to the situation the Applicant described when the parties were together: The Respondent smoked a lot of dope. She didn’t approve and made sure he wasn’t around (or caring for) L. when he did it.

[311] Despite any continuing social debate, the bottom line is that marijuana is illegal. The court cannot condone any illegal activity. But in this particular case the Respondent’s access to L. has been supervised for more than three years. His access to M. has been supervised her entire life. This supervision has been primarily because of the Applicant’s original allegation of an uncontrolled, daily and debilitating use of marijuana by the Respondent.

[312] I find that whatever the Respondent’s use of marijuana – and it certainly does not appear to be uncontrolled or debilitating – he does not appear to have a drug problem which impacts on his or any children, and his proposal for unsupervised access would not expose the children to harm.

[313] Indeed, I might comment that as I listened to the evidence, I was more concerned about the Respondent’s violence and anger management issues. But the evidence suggests that behavioural problem is also now under control.

[314] I have reviewed the cases referred to by Applicant’s counsel, who proposes ongoing supervision of any access until the Respondent can provide a “clean” drug test. I do not believe the facts before me are comparable to the facts in Aguilera v. Reid 2006 CarswellOnt 1227 (SCJ) or Ferreira v. Antunes 2009 CarswellOnt 6079 (SCJ).

[315] Supervised access is intended to be a short-term safeguard until safety concerns are resolved. In this case, the justification for supervised access has largely abated with the passage of time. Access is going well. The Respondent will continue to be surrounded by a spouse and parents who won’t tolerate any dangerous behaviour on his part, irrespective of any terms in a supervision order. I do not question the Applicant’s original expressions of concern. But the imposition of supervision of access entails a balancing of protecting children while at the same time promoting a spontaneous and rewarding relationship between parent and child.

[316] We have to move forward, and I believe it is now safe to do so. I accept the Respondent’s position that ongoing supervision is doing more harm than good. I accept his representations that any use of marijuana is controlled, limited, and will never occur at a time when his (or any) children might be affected. I accept the representations of those around him that they would never tolerate the Respondent’s use of marijuana jeopardizing the children.

STATUTORY PROVISIONS

[317] I have considered the relevant provisions of the Children’s Law Reform Act (CLRA).

[318] Section 19 of the CLRA establishes that custody, incidents of custody, access, and guardianship of children are to be determined on the basis of the best interests of the children.

[319] Section 24 states:

24(1) Merits of application for custody or access

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

24(2) Best interests of child

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 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 up-bringing;

(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) the relationship by blood or through an adoption order between the child and each person who is a party to the application.

24(3) Past conduct

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.

24(4) Violence and abuse

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.

24(5) Same

For the purposes of subsection (4), anything done in self-defence or to protect another person shall not be considered violence or abuse.

[320] Neither party has proposed an order for joint custody. Clearly such an order would be inappropriate and unworkable, given the level of conflict and fundamental inability of the parties to communicate or work together.

[321] Based on all of the above considerations, and applying the relevant statutory provisions I find it is in the best interests of the children that they remain in the Applicant’s custody, with unsupervised access to the Respondent. I am confident the Respondent’s grandparents will continue to be involved in their lives.

[322] I find it is in the best interests of the children that they continue to have significant contact with the paternal grandparents. But, as stated, they are not parties. In any event, I am confident both the Applicant and the Respondent will ensure L. and M. have lots of contact with W. and C.D.M.1.

THE ORDER

[323] The Applicant shall have custody of the children L.D.M., born […], 2004 and M.E.R., born […], 2010.

[324] The Respondent shall have reasonable access to the children. The parties shall be entitled (and encouraged) to reach their own agreements concerning ongoing timesharing. Flexibility and modification with the passage of time are anticipated. However, to the extent that the parties cannot agree, the following provisions shall apply as the Respondent’s default access regime:

a. Alternate weekends from Friday 5:00 p.m. to Sunday at 7:00 p.m. (to be extended to Monday at 7:00 p.m. if the Monday following his weekend is a statutory holiday).

b. One evening per week from after school (if the child is in school) or 5:00 p.m. (if the child is not in school) until 7:30 p.m. In the absence of any other agreement by the parties, this visit shall be on Wednesdays. However the Respondent must be physically present for this visit and cannot delegate his time to other persons.

c. This basic schedule shall be modified as required to deal with holidays and special occasions as set out below:

d. The Christmas school holiday shall be divided equally between the parties. Until M. commences school, her schedule shall be the same as L.’s. As part of this division of time, in even numbered years the Applicant shall have the children from December 24 at 4:00 p.m. to December 25 at 4:00 p.m. and the Respondent shall have the children from December 25 at 4:00 p.m. until December 26 at 4:00 p.m. In odd numbered years the reverse shall apply. Whichever parent did not have the children overnight on Christmas Eve shall have the children from 4:00 p.m. December 31 to 4:00 p.m. January 1. The remaining days of the Christmas school holiday shall be divided equally. In the absence of any other agreement between the parties, this shall be in alternating 48 hour blocks, with 4:00 p.m. exchanges.

e. The school spring break shall be divided equally between the parties, with each party having their ordinary weekend, and with the mid-week exchange to occur Wednesday at 4:00 p.m. However, in even numbered years the Applicant shall have the option to have the children for the entire spring break for purposes of a formal spring vacation out of the city. In odd numbered years the Respondent shall have this option. Any party electing to vacation with the children during the spring break in their year shall notify the other party in writing by February 1st and provide full particulars.

f. On Easter weekend, in even years the Applicant shall have the children from Thursday 5:00 p.m. to Saturday 5:00 p.m and the Respondent shall have the children from Saturday 5:00 p.m. to Monday 7:00 p.m. In odd years this shall be reversed. This shall not disrupt the overall pattern of alternating weekend access.

g. Each party shall be entitled to three weeks of summer vacation with the children, two of which may be consecutive. In the absence of any other agreement a week shall be defined as seven days running from Friday 5:00 p.m. to the following Friday at 5:00 p.m.

h. If the access schedule results in either party not having some personal contact with one of the children on that child’s birthday, that party shall have the option of having access to both children for dinner on their choice of either the day before or the day after the birthday.

i. Each party shall be entitled to have the children with them for a dinner visit on the day of their own birthday, from 5:00 p.m. to 7:30 p.m.

j. Irrespective of any other scheduling, the children shall always be with the Applicant on Mother’s Day from 10:00 a.m. to 7:00 p.m. and with the Respondent on Father’s Day from 10:00 a.m. to 7:00 p.m.

k. Whenever one of the parties has the children for more than two overnights in a row, that party shall ensure that the other party has telephone contact with the children for at least 10 minutes, every 48 hours. In the absence of any other agreement, the telephone call shall be at 8:00 p.m., initiated by the parent who has the children. Beyond this minimum provision, both parties shall encourage regular telephone access.

[325] Subject to any other agreement between the parties, exchanges shall occur at the Applicant’s residence. The parties shall minimize their contact or interaction with one another during these exchanges. They shall only come in immediate proximity to one another to the extent necessary to ensure the safe transfer of the children and their belongings. . Communication should be pleasant and kept to a minimum during access exchanges.

[326] The Respondent shall not allow marijuana to be present (even if stored) or used at his residence (inside or outside the dwelling) at any time when the children are present (awake or asleep) or 24 hours prior. He shall not personally use marijuana or any non-medically prescribed drug during or within 24 hours prior to having physical care of the children (even if they are sleeping). He shall not allow the children to be in the care of person (including his partner) who has used marijuana or non-medically prescribed drugs within the previous 24 hours. The Respondent shall have an absolute responsibility to ensure that whenever the children are in his care (even if they are asleep) they are kept away from any person who has recently used marijuana or non-medically prescribed drugs.

[327] Neither party shall use physical discipline with the children, or allow any other person to use physical discipline.

[328] The parties shall use e-mail as their primary source of communication regarding the children. To the extent that they elect to communicate arrangements verbally, they shall still confirm those arrangements by e-mail. Each party shall maintain an e-mail account and keep the other party advised of their e-mail address. Each party shall be required to check their e-mail at least once every 24 hours, and to respond to any e-mails within 24 hours (but not more than one response per day is required).

[329] For any communications of a truly time sensitive or urgent nature, the parties shall telephone or text (if they both have text capability) and a response shall be provided as soon as the parent receives the communication.

[330] The children shall not be used to relay messages between the parties, and the children shall not be present when scheduling or other child-related arrangements or issues are discussed.

[331] The parties shall at all times maintain a civil and respectful demeanour and tone with one another. They shall not make negative, disparaging or provocative statements about one another (or the other party’s extended family, friends or partners). They shall encourage the children to have a positive and loving relationship with both parents, and with extended family and partners.

[332] The parties shall co-operate with one another in maintaining valid passports for both children. The passports shall be retained by the Applicant except as may be required for travel with the Respondent, as provided for herein.

[333] If either party intends to travel out of Ontario on an overnight basis, that party shall provide the other party with at least 60 days advance written notice, to include full travel particulars, including details regarding transportation, accommodation, a contact telephone number, and proof of out of province health care coverage. The travelling party shall ensure that the children telephone the other party once every 48 hours, before their bedtime. The non-travelling party shall provide the travelling party with any reasonable “consent to travel” documents required for border crossing, provided that all terms herein relating to travel have been complied with.

[334] The Applicant shall advise the Respondent in writing as soon as possible if she is considering any non-emergency decision concerning each child’s education, religion, medical, social, or developmental issues. The Respondent shall be given a reasonable opportunity to identify his position. However, as custodial parent the Applicant shall have the final decision making authority.

[335] Both parties shall be equally entitled to communicate with all educational, medical, dental, recreational and social service providers for the children. Each party shall keep the other fully informed of any communications they have with such services providers, and the particulars of any new providers. Both parties shall be entitled to attend all meetings with such providers. Both parties shall execute consents or authorizations which any professionals or service providers may require, to facilitate equal communication and access to information by both parents.

[336] Each parent may attend any extracurricular activities open to the public, including sports practices, games, competitions, concerts, performances, recitals, etc. The parents shall remain cordial during these occasions and not use them as an opportunity to discuss child-related arrangements and issues. The parent who would normally have the children at the time shall assume responsibility and control over the children. The other parent may briefly greet or encourage the children, but shall otherwise observe from a reasonable distance.

[337] If a change in the regular and/or holiday schedule is requested due to a special event, celebration or unforeseen circumstances (e.g. family celebration, work demand or emergency, etc.), a written request shall be provided to the other parent in order to permit that parent to make a reasonable effort to accommodate the request. A response shall be provided within 48 hours of receiving the request. The request and change shall be confirmed in writing.

[338] Each party shall have authority to arrange emergency medical treatment for the children, but in such event, the party arranging treatment shall make diligent and persistent efforts to notify the other party immediately, to allow the other party to also attend at the emergency treatment facility as quickly as possible.

[339] Both parents shall be listed as contact persons with all medical, educational, recreational and social agencies involved with the children. The Respondent’s parents W. and C.D.M.1 shall be named as alternate contact persons, in the event that neither parent can be reached in an emergency.

[340] The Respondent shall pay to the Applicant retroactive child support fixed in the sum of $6,053.00.

[341] The Respondent shall pay to the Applicant ongoing support for the children in the sum of $807.00 per month commencing July 1, 2012. This is based upon the Respondent’s 2011 income of $54,300.00.

[342] The Respondent shall also pay his proportionate share of reasonable extraordinary expenses, pursuant to section 7 of the guidelines.

[343] The Respondent shall pay to the Applicant $7,500.00 as a lump sum retroactive spousal support payment. There shall be no ongoing spousal support payable in the future.

[344] Arrears of child support and spousal support shall be repaid at the rate of $300.00 per month, commencing July 1, 2012.

[345] Both parties shall maintain for the children any health care coverage available through any current or future employment. They shall keep one another informed as to any changes in relation to the availability or terms of such coverage. They shall execute any documents necessary to allow the other party to deal directly with their health care provider. If this option is not available, they shall process claims forms or reimbursement cheques within 72 hours of receipt.

[346] Each party shall designate L. and M. as the sole beneficiaries of any insurance on their lives through current or future employment. There shall be two trustees of such coverage: the other party and a person nominated by the insured. If either party obtains any insurance coverage (employment or otherwise) they shall notify the other party in writing as to the terms and beneficiaries of such coverage. This requirement remains in effect for the benefit of the children respectively for so long as they remain dependent.

[347] Each party shall provide the other with a written update as to their respective health care and all insurance coverage by June 30th in each year.

[348] The parties shall provide one another with copies of their income tax returns and notices of assessment annually by June 30th.

[349] The parties shall notify one another in writing immediately upon experiencing any change in their employment or financial circumstances. They shall keep one another fully informed of any changes to their residential address or telephone number. They shall keep one another fully informed as to the names of any persons living in their households, or sleeping over in their household at a time when the children are present.

[350] The Applicant shall provide the Respondent with 60 days advance notice of any intention to relocate the ordinary residence of the children outside of the City of Hamilton.

[351] While telephone contact directly between the parties shall only be utilized in the event of urgent situations, this restriction shall not impede the ability of the parties to facilitate telephone access between parent and child, as described above.

[352] Each party shall notify the other in writing immediately if either a Children’s Aid Society or a police service has any contact with them or any other party residing in their household (or any party having contact with the children).

[353] If the Applicant requires babysitting or child care for either L. or M. for more than four hours, the Applicant shall provide the Respondent and his parents as much notice as possible and give them the option of caring for the children during the time the Applicant is unavailable. If the Respondent wishes to exercise this option to care for the children, he must do so personally and not delegate the time to any person (other than his parents, with notice to the Applicant).

[354] In any event, the Applicant shall on a monthly basis provide the Respondent with a written summary of all times when each child was not in her personal care (for any amount of time), together with the names and particulars of any person caring for either child (for any amount of time). The purpose of this provision is to address and monitor previous concerns and allegations that the Applicant excessively and inappropriately delegates child-related responsibility to other persons.

[355] There shall be a presumption that the Respondent’s parents W. and C.D.M.1 have a very beneficial relationship with both children, and to the extent that they are willing and available to help with child care, this should be encouraged by both the Applicant and the Respondent.

[356] All other substantive claims are dismissed.

[357] A Support Deduction Order shall issue.

[358] Counsel may arrange to see me regarding any residual issues or clarifications, other than costs. If only costs need to be addressed, counsel are to provide written submissions on the following schedule:

a. The party seeking costs shall serve and file submissions within 21 days.

b. The other party shall serve and file their submissions within 14 days of receiving the first set of submissions.

c. Any reply submissions to be served and filed within 7 days of receiving the previous set of submissions.

Pazaratz J.

Released: July 23, 2012

COURT FILE NO.: F459/09

DATE: 2012-07-23

M.R.

Applicant

– and –

C.D.M.2

Respondent

REASONS FOR JUDGMENT

Pazaratz J.

Released: July 23, 2012.