SIMCOE COURT FILE NO.: 178/06-01

DATE: 2012/11/29

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Ken Coombs, Applicant AND: Rihannon Kirkwood, Respondent

BEFORE: The Honourable Justice B. H. Matheson

COUNSEL: Paul D. Amey, Counsel for the Plaintiff J. Fraser Bushell, Counsel for the Respondent

HEARD: October 9, 10, 11, 12 and 18, 2012

ENDORSEMENT ON MOTION

Brief outline as to basis for applicant’s motion to change residence of Olivia

1The applicant lived with Rihannon Kirkwood and her two children Sarah, age 17, and Madelaine, age 14. They had a child, Olivia, who was born April 8, 2002. Sarah and Madelaine’s father is Anthony Holden.

2Mr. Ken Coombs stopped living with Rihannon in 2003. He started to live with Christina and they were married in 2008. Both Ken and Christina Coombs want to have children of their own and they have gone through medical procedures in order to have a child. They have been unsuccessful. Olivia has been with the mother since birth.

3Justice Turnbull gave an order on consent that deals with residency and access to Olivia. The order in much detail outlines the access of the applicant with Olivia. It also states that the primary residence shall be with the respondent, Rihannon Kirkwood.

4This is the order that the Motion to Change Final Order is dealing with. The motion to change started on November 21, 2011. The catalyst for this change was started after Olivia stated in July 2011 that she wanted to live with her father.

5In the change information, (found at Tab 2 of the Motion to Change Final Order) the reasons for change motion listed are:

(a) The applicant had been made aware of the involvement of the Children’s Aid Society and the police because of alleged physical violence between the mother and Madelaine.

(b) Dispute between the respondent and Madelaine so frightened Olivia that she locked herself in the bathroom on one occasion, according to Olivia.

(c) Involvement of CAS.

(d) Inappropriate social behaviour in the respondent’s house by her daughter Sarah.

(e) Concern about Olivia’s report card, and missed and late attendance at school.

(f) Fighting that goes on between the three children.

6When all is said and done, the main reasons for having a change of residence is because of the alleged conflict in the respondent’s house with the three children and Olivia’s statements that she wishes to move in with her father and his wife.

7When Olivia told her father on several occasions of her wishes, one would have expected that the applicant would talk with the respondent about Olivia’s statements to him of her wish to change her place of residence and Olivia’s information as to the turmoil in the respondent’s home.

8He did not do so, but rather had Olivia tell her mother that she wanted to live with her father. This was very upsetting to the respondent. A more mature approach would have the applicant speak directly to the mother about their daughter’s feelings.

Witnesses

9I will now deal with a brief summary of the witnesses’ evidence at trial.

CINDY MARTIN-HRYCAK

10When the Office of the Children’s Lawyer declined to become involved, the parties engaged Cindy Martin-Hrycak to give a report on the views and preferences of Olivia. Her curriculum vitae is found in Exhibit Number 4 and her report is found at Tab 3 of Exhibit Number 3. The respondent filed a dispute to the report.

11I agree that Ms. Martin-Hrycak exceeded her retainer. That was to “ascertain the views and preferences of their daughter Olivia”, and nothing more.

12Martin-Hrycak only interviewed Olivia and her parents. She did not interview the grandmother and Olivia’s siblings although they were available. This may have shed light on the issues.

13She also read the unredacted files of the CAS.

14When she was interviewing Olivia, she had a chart - she called it a “happy chart”. It is filed as Exhibit Number 5. There are various different states of desire. When Olivia was shown the card, she indicated her feelings by pointing to the various stages on the card. Olivia pointed to her feelings toward her mother as okay; to that of her father as great. She felt that Olivia had not been coached by her father or Christina, her father’s new wife.

15She made a number of recommendations, which far exceeded her mandate. She made a finding that Olivia wants to live with her father with much access to the mother. I find that accurately reflects the wishes of Olivia.

KEN COOMBS

16He was a partner to Rihannon Kirkwood from 2000 to 2003. They had one child of this relationship, Olivia, who was born on April 8, 2002.

17He left this relationship in 2004 and entered into a new relationship with Christina about 2006 and married in 2008. They do not have a child of their own.

18Both work at Toyota and are presently on the same shift, although arrangements have been made for them to be on separate shifts so that if Olivia were allowed to change custody to Mr. Coombs there would be one adult available to look after Olivia.

19Olivia, according to Mr. Coombs, said that Rihannon was choking Madelaine. While this was going on, Olivia, according to her, locked herself in a bathroom out of fear. He called the police. He said that Olivia said that there was much yelling and screaming at the respondent’s home.

20He also indicated that Olivia was missing much school or was late for school.

21Olivia may have dyslexia. She is tutored by special education teachers.

22The report cards indicate a number of missed school days or lateness.

23Mr. Coombs said that CAS was at the Kirkwood residence many times.

24If there is a change of residence, he plans to have Olivia attend Emily Stowe Public School.

25It would appear that Mr. Coombs did not address the issues raised in this court action with Ms. Kirkwood.

26I found that Mr. Coombs sometimes was very vague in his answers. On the whole I found that he has a real concern for Olivia.

CHRISTINA COOMBS

27She is the wife of Ken. She feels that she has a good relationship with Olivia.

28She and Mr. Coombs go to Olivia’s school, however maybe not as much as Ms. Kirkwood because of the distance.

29She confirmed what Mr. Coombs said about the choking incident that Olivia referred to. She also stated that Olivia had strong ties with her step-sisters, Sarah and Madelaine.

30She confirms that she has made arrangements of a shift change if Olivia lives with them.

31An issue was raised about Christina and Mr. Coombs buying things for Olivia that might be appropriate for an older child. I do not put much weight on this.

32Sarah was on Facebook. Christina asked to be a friend so she could access Sarah’s website, which that was agreed to.

33Exhibit Number 6 is four pages from Sarah’s website. It shows her and a friend apparently smoking marijuana and also there were some inappropriate songs.

34She did confirm that Olivia told her in the presence of Ken Coombs that there was much fighting at Olivia’s home.

BRANDY DURHAM and DIANE ELLIOT

35Both gave a very positive feeling that Olivia has towards Ken Coombs and Christina Coombs. Brandy is the sister of Ken Coombs and Diane Elliot is a neighbour of Ken’s on Lake Erie.

RIHANNON KIRKWOOD

36She states that Ken had a close relationship with Sarah and Madelaine. He did not use his access time as set out in Justice Turnbull’s order.

37Olivia and her step-sisters get along very well, although there are occasional difficulties.

38She looked after her health issues, but would always advise Ken of the visits and the results.

39The lateness issue was dealt with by changing her hours of work so that she could drive Olivia to school. The school had cancelled the bus that Olivia would have used.

40There were also special events for Olivia that she would take her to.

41She has stated on several occasions that she will not have contact with Mike Farr. (See the CAS reports.)

42Mr. Farr is apparently a very forceful person who has been known to use physical force on Rihannon. The CAS has told her to stop seeing this person, but she has had occasion to disregard this advice.

43She acknowledged that there was much yelling and screaming amongst the girls.

44She denied that Olivia ever locked herself in the bathroom out of fear.

45She did acknowledge that police were at her home twice in 2007.

46She acknowledges that Olivia has stated that she wants to live with her father. This was said in August 2011.

47She stated that after the motion to change, Ken and Christina have attended more school and karate events.

48She acknowledged that Mr. Coombs can be a good father.

49She acknowledged that she has been in several relationships other than with Ken Coombs.

50Karate is a passion of Olivia’s and she is quite good at it.

51Her explanation of her relationship with Mike Farr concerns me. It has caused much concern to the CAS and the police.

52She indicates that the children were not exposed to the events described by the CAS with Farr and other incidents. Mr. Farr comes back to Rihannon on a number of occasions. She has not taken much affirmative action to stop him.

53She indicates that she earns $1,655 a month as a certified massage therapist and receives $500 a month from Mr. Holden, the father of Sarah and Madelaine. She also receives child support from Ken Coombs as required by law.

CAROL ANN EARLE

54She is the sister of Rihannon. Their two families get together two to three times a week.

55Olivia is full of life and is mature for her age.

56She is aware of Mike Farr and his relationship with her sister Rihannon.

RICHARD TOBB

57Richard Tobb is Olivia’s karate teacher. Olivia is quite good at karate. Olivia won two firsts at a national tournament. Olivia attends most of the practices and tournaments. He sees her as advancing further in her karate endeavours.

58He remembers seeing Mr. Coombs at one tournament. Mr. Coombs may have been there but he was not introduced to him.

59There is a karate club in Delhi, which is comparable to the karate club Olivia goes to.

CAS case notes

60These are filed as Exhibit Number 2. They qualify as business records as stated in s. 35.01 of the Evidence Act.

61The CAS has been involved with the parties. Exhibit Number 2 gives a number of reports:

(i) Tab A – Incident at Norfolk Conservation on September 2, 2006. There was an incident when Rihannon tries to take Olivia back; apparently she had been drinking. Mr. Coombs states this was out of character and felt that Rihannon was a good mother.

(ii) Tab B – Incident on March 26, 2009. Rihannon was held captive by Mr. Farr (this is blacked out in report) when both Madelaine and Olivia were present. The police was involved. Rihannon plays this issue down, although CAS had several backup meetings with her.

(iii) Tab C – Incident on May 3, 2010. Again an issue of domestic violence at her home. It is believed that it is Mike Farr again. She states that the children were not involved.

(iv) Tab D – Incident of February 23, 2011, again deals with Mike Farr - text messages. He was texting the children. Rihannon was out of the house for 40 minutes. There were a number of hurtful occasions that the children heard. The police told her that they had warned Mike Farr to stop any contact with Rihannon or the children. Police, according to Rihannon, indicated that they had no concerns at this time. Rihannon said she would be revoking her consent to have Mike Farr contact her in any way.

(v) TAB E – Incident of December 12, 2011. A woman contacts CAS which indicates that the caller felt that Olivia was left alone; also that there are fights and the mother drinks.

(vi) TAB F – Incident of July 15, 2012. Again it would appear that Mike Farr is texting Rihannon - has no access to the children.

62Rihannon’s family has a history of involvement with CAS.

63This report is basically a narrative of the contact with Rihannon and Mike Farr.

The Law

64This is a motion to change the order of Justice Turnbull dated February 7, 2007. In that order, Turnbull, J. stated that the applicant and the respondent shall share parenting of Olivia Kirkwood, born April 8, 2002, whose primary residence shall be with the respondent.

65The rest of the order mainly deals with how access is to be carried out.

66The Children’s Law Reform Act at s. 24 sets out what the court shall consider in dealing with custody and access to a child:

MERITS OF APPLICATION FOR CUSTOY OR ACCESS - (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4).

(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 upbringing;

(b) the child’s views and preferences, if they can reasonably be ascertained;

(c) the length of time the child has lived in a stable home environment;

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;

(f) the permanence and stability of the family unit with which it is proposed that the child will live;

(g) the ability of each person applying for custody of or access to the child to act as a parent; and

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

(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.

(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 o whom the application relates;

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

(d) any child.

(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.

67The Act goes on in section 29 that the material change affects the best interests of the child.

ORDER VARYING AN ORDER - A court shall not make an order under this Part that varies an order in respect of custody or access made by a court in Ontario unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child.

68The order of Justice Turnbull is deemed to be correct.

69The onus is on the party who is making an application to change.

70In Gordon v. Goertz 1996 CanLII 191 (SCC), [1996] S.C.J. No. 52 the Supreme Court, in the headnote, states the steps that have to be taken before a change in custody and access could be ordered. It reads as follows:

The parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child. For that threshold to be met, the judge must be satisfied of (1) a change in the condition, means, needs or circumstances of the child or in the ability of the parents to meet the needs of the child, (2) which materially affects the child, and (3) which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order. An application to vary custody cannot serve as an indirect route of appeal from the initial custody order. The judge must assume the correctness of the initial order and consider only the change in circumstances since the order was issued.

71Justice Quinn in Bubis v. Jones, 2000 CanLII 22571 (ON SC) stated the test as follows in paragraph 25:

… I conclude that the following are appropriate considerations under s. 29:

1. An applicant must first meet the threshold requirement of demonstrating that, since the last custody/access order was made, there has been a material change in circumstances that affects or is likely to affect the child. Thus, the last order is assumed to be correct.

2. Should the applicant fail to show the existence of the needed material change, the inquiry ends.

3. If, however, the threshold is met, the judge hearing the variation application must embark on a fresh inquiry into the best interests of the child, having regard to the matters found in s. 24 of the Children’s Law Reform Act. In this fresh inquiry both parents bear the evidentiary burden of demonstrating where the best interests of the child lie: there is no legal presumption in favour of the custodial parent.

72In dealing with a change in the custody of a child, the court must take into account the best interests of the child as spelled out in s. 24 of the Children’s Law Reform Act.

(a) The love, affection and emotional ties between the child and those persons who have close contact with Olivia.

1. Olivia has been in the custody of her mother since birth, some 10-and-a-half years. The applicant brought this application in the fall of 2011, as a result of Olivia stating that she wished to live with her father and his wife.

2. Olivia told her mother that she wanted this change in the fall of 2011 and apparently she told her mother who, not surprisingly, was most upset. She has not changed her mind for over a year.

3. The applicant, since the fall of 2011, has increased his being with Olivia attending at teacher-parent day, going to her karate tournaments and some of the karate sessions.

4. I find that he was aggressive in his approach to his access visits, such as calling the CAS. I find that that aggressive approach was not warranted.

5. I would have hoped that the applicant would have sat down with the respondent and talked it over as mature adults. That was not to be.

6. The grandmother of Olivia, who lives with the respondent and Olivia, was not called as a witness. No explanation for this was given to the court. She could have given much evidence about the day to day actions at her daughter’s home.

7. In the Law of Evidence in Canada, 3rd ed., the authors stated the following at 6.449:

In civil cases, an unfavourable inference can be drawn when, in the absence of an explanation, a party litigant does not testify, or fails to provide affidavit evidence on an application, or fails to call a witness who would have knowledge of the facts and would be assumed to be willing to assist that party. In the same vein, an adverse inference may be drawn against a party who does not call a material witness over whom he or she has exclusive control and does not explain it away. Such failure amounts to an implied admission that the evidence of the absent witness would be contrary to the party’s case, or at least would not support it.

8. I believe that the grandmother could have given much needed evidence as to the day to day actions at Ms. Kirkwood’s home. We are left with the CAS reports that were allowed in as business records, which indicate a somewhat hectic situation when they investigated. I note that the CAS did not take any direct measures, but made recommendations that Ms. Kirkwood cease any dealings with Mike Farr.

9. Both parents love their daughter Olivia and she loves them as well.

(b) The child’s views and preferences if they can be ascertained

1. Ms. Martin-Hrycak’s report found at Exhibit Number 1, Tab 3, outlines her findings as to the views and preferences of Olivia.

2. After talking one on one with both parents individually and with Olivia on at least two occasions alone, Ms. Martin-Hrycak made a report found at Exhibit Number 1 at Tab 3. She formed the belief that the preference of Olivia was to have as her primary residence at her father’s.

3. I found her evidence to be unbiased and objective. She explained her technique in interviewing young people. Olivia was 10 at the time. She found that Olivia wanted to live with her father because of the fighting in the home by her two step-sisters.

4. She also stated that in her opinion there was no enticement by the applicant towards his daughter that would assist his position in wanting to change the custody of Olivia.

(c) The length of time the child had lived in a stable home environment

1. The evidence from the CAS files indicates that there were times that the home life was far from stable. Reading the CAS files as well as the letters found at Exhibit Number 1, Tab 11 would indicate that the CAS became involved but fortunately were able to resolve the issues with the co-operation of Ms. Kirkwood.

2. Also the involvement of Mike Farr compounds the problem. Ms. Kirkwood repeatedly allows Mr. Farr back into her life to her disadvantage and that of her children.

3. If the grandmother had been called to be a witness, the court would have a better understanding of the stability of the respondent’s home life.

4. I find that the home life for a period of time was not a calm and peaceful one.

5. This gives credence to Olivia’s statements to Ms. Martin-Hrycak and to her father that there was much yelling and fighting in her home.

(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 special needs of the child

1. Mr. Coombs and his wife Christine have taken many steps in presenting a plan. They have taken the steps to be on separate shifts at their place of employment. This would allow one of them to tend to the needs of Olivia.

2. They have taken steps to make the transfer of Olivia from one school to another. Also, they have obtained information as to a karate club so that Olivia would be able to continue with that sport, at which she has a great deal of interest.

3. From the evidence that they gave and that of Mr. Coombs’ sister, Brandy Durham, and a neighbour, Diane Elliot, I formed the opinion that their home would be a stable and peaceful one.

4. They have taken many steps to make the transfer a peaceful one.

5. The Coombs both have well-paying jobs and would be able to provide the necessities for Olivia.

(e) The plan proposed by each person applying for custody or access to the child for the child’s care and upbringing

1. The Coombs have, as already stated, made tentative plans to create a steady and stable transfer of Olivia if they are successful. Olivia would have her own room; and would be able to continue with karate and attend school.

2. It would appear that if the court grants the applicant’s request, the access by Ms. Kirkwood would use the same formula as set out in Justice Turnbull’s order.

(f) The permanence and stability of the family unit with which it is proposed that the child will live

1. From the evidence given by the Coombs and the witnesses, I have formed the opinion that the Coombs have a stable life.

2. They were married in 2008 after a period of living together.

(g) The ability of each person applying for custody of or access to the child to act as a parent.

1. I do not have a concern that the applicant would be able to parent properly for Olivia. They have had Olivia with them in accordance with the schedule set up in Justice Turnbull’s order, and there have been no apparent problems.

2. There have been a few incidents where Ken Coombs felt that he was not getting the full access to Olivia as set out in the order. He overreacted on several occasions. I feel that was out of frustration.

Findings

73Having heard the evidence and having read the CAS reports and letters, I find that Mr. Coombs has satisfied the court that it would be in the best interests of Olivia that he be granted custody of Olivia and that his home be the primary residence of Olivia.

74I base this finding on the following grounds:

1. Olivia is, from all the evidence, a young child who may have a mild form of dyslexia for which she is getting medical assistance. I am aware the court should be very cautious about accepting the wishes of a young person – Olivia is now 10-and-a-half.

2. I am satisfied from the evidence of Ms. Martin-Hrycak, Olivia’s mother and father, her teacher, her aunt and her karate teacher that she is a mature young lady for her age and her wishes to change her custodial arrangement are based on solid reasoning.

3. The household of her mother is one of turmoil and this has an aggravating factor for Olivia.

4. The mother, who I believe loves her daughter very much and who is loved in return by Olivia, is not able to maintain a consistent, peaceful household. One only needs to look at the CAS reports and the interaction of her and Mike Farr.

5. Also, the interaction of Olivia with her sisters, Sarah and Madelaine, is not an orderly one and Ms. Kirkwood does not appear to be able to bring some stability to their interactions.

6. As stated, Olivia loves her mother very much and with the change of custody and access that love may flourish ever more.

7. Counsel for the respondent in answer to my question about the issue of access, if I found that the applicant was successful in getting the court to find in favour of the applicant, stated that it would be on the same terms as Justice Turnbull stated but in the reverse.

75As I indicated, very little time was given to the access arrangements if there were a change. I may be spoken to about access terms and when the change shall take place if the parties are not able to agree.

76Since it is late in the school year, it may be best for Olivia that she complete this term and start the new school term in the new year. That is only a suggestion.

77It is important that once the change has been ordered new access terms be set up.

78I will deal with costs in written form after the access terms have been settled.

Matheson, J.

Date: November 29, 2012

SIMCOE COURT FILE NO.: 178/06-01

DATE: 2012/11/29

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Ken Coombs

Applicant

• and –

Rihannon Kirkwood

Respondent

ENDORSEMENT ON MOTION

Matheson, J.