ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 568/05
DATE: 2012-12-03

BETWEEN:

C. J. J. Applicant – and – M. T. M. Respondent

Loreen Irvine, for the Applicant

Clinton H. Culic , for the Respondent

Sheldon D. Cherner, for the children, N. and K.

HEARD: November 14, 16, 19 -23, 2012.

REASONS FOR JUDGEMENT

T.D.RAY, j.

Introduction and overview

[ 1 ] This is the trial of an issue on the application of the Applicant father to vary the terms of the order of Pedlar, J, dated January 12 ,2006; so as to order that he have sole custody of the children, N. (14) and K. (11) with reasonable access to the Respondent, mother. He also seeks an order for child support. The Children’s’ Lawyer which conducted its own investigation, supports the Applicant. The Respondent opposes the variation.

[ 2 ] The parties were never married but lived together as husband and wife for six years during which they had the two children. They separated in 2003. The applicant described the separation as a ‘growing apart’, but expanded by suggesting that the respondent had become depressed. The applicant said that they had both been very unhappy.

[ 3 ] Pedlar, J’s consent order of January 12, 2006 provided for joint custody of the two children with primary residence to the respondent. The applicant had access every other weekend and holidays were divided. The parties had little communication; and whatever there was degenerated to no communication.

[ 4 ] After a number of developments about which both parties led a good deal of evidence, and which is described later, the applicant obtained an order without notice from McMunagle, J, dated September 10, 2010 changing custody and permanent residence to the applicant. An order from Quigley, J, October 22, 2010, ordered that the applicant have access on alternate weekends. An order appointing the Children’s’ Lawyer was made January 27, 2011. On February 11, 2011, Ratushny, J, ordered that the applicant’s access be supervised at the Rose Garden. Telephone contact was ordered prohibited. The requirement for supervision was later removed.

[ 5 ] Both children want to return to live with their mother. N. feels very strongly- K. less so. She is more content with the current living arrangement. N.’ estrangement from the applicant initially caused a number of behavioural issues. After the requirement for supervised access was removed, his behaviour improved. The applicant took N. to a counselling program for children called Open Doors. Three sessions were completed. The counselling was focussed on enabling N. to cope with living with his father as opposed to his mother – and that he was caught in the middle of a custody dispute. In June or July 2011, because the children were so anxious to see their mother, the applicant let the children stay with their mother every other weekend but with the exchanges to take place at the Rose Garden. In December, 2011, the exchanges changed again with the respondent and applicant picking up and dropping off at their respective homes. The applicant agreed to this change without a court order because he said he wanted them to have a good relationship with their mother.

EVIDENCE

[ 6 ] Two volumes of documents were filed as a joint brief which generally included the children’s’ medical records, school records, notes from the Children’s’ Aid Society, notes from Open Doors, notes from the Rose Garden, and copies of correspondence exchanged between counsel.

[ 7 ] The applicant; his companion, T. G.; his mother, D. H.; two CAS workers, Alec Farrier and Marilyn Lambert; Suzanne Morrison, and Patrick Graveline, two school principals for the children; Debra Fleming, an educational assistant at the children’s’ school; Bradley Synnott, Douglas Norman and Dwight Wallace, children’s teachers gave evidence for the applicant.

[ 8 ] The applicant, Dr. Gowthorpe, Douglas Mattocks of the Rose Garden, and S. F., the respondent’s partner also gave evidence. An expert report from Julie Gowthorpe was filed under rule 20 of the Family Law Rules.

[ 9 ] The Children’s’ lawyer called the investigator, Carmela Savoya

[ 10 ] I sought submissions from counsel as to whether I should meet with the children and if so under what conditions. The respondent argued that I should meet with the children, the applicant and the Children’s’ Lawyer argued that I should not. In oral reasons I ruled that under the circumstances before me it would not be in the interests of the children to meet with them.

WITNESSES FOR THE APPLICANT

[ 11 ] The applicant is 45 years old and works for Shandex Personal Care in Smiths Falls. He lives with his partner, T. G., and her two daughters (they have a week about arrangement with their father) in a trailer park midway between Perth and Smiths Falls. The trailer unit is a 3 bedroom unit. N. occupies one bedroom, the three girls (including K.) occupy a 20’ by 12’ or 10’ bedroom, and the applicant and T. occupy the third bedroom. The trailer units are fairly close together. T. also works for Shandex Personal Care. A 10’ by 12’ shed, close to the trailer is used for storage and also a place where the adults go to smoke. The applicant has a criminal record. He was convicted when he was 15 – as a juvenile offender- of break and enter; in 1989 for trafficking in marijuana oil for which he was sentenced to 30 days; and in 1991 for failure to appear. This latter charge related to a traffic charge, and generated a warrant for his arrest. The warrant was executed when he was stopped by police as he was driving through Toronto with the children in the car with him. He admitted to smoking marijuana approximately twice a month. He also smokes cigarettes. He and T. smoke in the shed because they don’t want to expose the children to tobacco smoke.

[ 12 ] The applicant said that co-parenting was not possible because they have a very poor relationship.

[ 13 ] T. G. said that she and the applicant have been together for approximately 3 ½ years. She and her ex-husband share custody of her daughters T. and O. She has a history of drug addiction to cocaine and marijuana from when she and her ex-husband separated five or six years ago. She has not used cocaine since and now only smokes marijuana once or twice a month in the shed and at adult social settings. She is a heavy cigarette smoker – pack per day. She smokes only in the shed. She observed that N. behaviour has changed and he seems a lot happier now – big jokester; and that is a big turnaround from before. She said K. was great. Both seemed keen on school. She spoke of an incident when N. told T. that he thought his father was a drug addict. That was later repeated to a CAS worker. That was resolved and not repeated. She said that she did the laundry and noted N. clothing frequently smelled of cat urine after being at his mothers. She said that is no longer a problem. Ms. G. described her brother, who used to look after the children quite a bit, as an alcoholic; and that following an incident in July, 2012, she has not seen him at all. Previously he had provided child care to her children and the J. children during the summer of 2011. He had also filled in once or twice per week, and had made lunches and meals for the children.

[ 14 ] Alexander Ferrier is a child protection worker with the CAS and had been assigned to a 911 call from a 12 year old child reporting that his father did drugs, and also improper touching. He arrived at the applicant’s home on January 8, 2011, and after making full enquiries concluded that there were no protection issues. The ‘touching’ amounted to play fighting that N. said he didn’t like. N. said he hadn’t actually seen his Dad using drugs, but his sister had. He observed that N. seemed to be afraid of his father, but could not get any indication as to why. N. told him he hated being there, and hated his school. Mr. Ferrier observed that the children were clean, and that there were no warning signs that would have indicated a protection issue. He did file a report of his visit and another CAS worker, Marilyn Lambert did a follow up. Mr. Ferrier said that he thought that the children were experiencing a loyalty conflict. He related a call he had received from the respondent after he left, after she had received a call from N. She was very angry that the CAS was not taking action. He reassured her concerning his conclusions.

[ 15 ] Marilyn Lambert is an intake worker with the CAS. The primary focus of her work is dealing with sexual abuse situations. She set a plan for interviews, and spoke to the applicant and Ms. G. alone. They were both concerned, and also recognized that N. was not happy. She also interviewed Ms. G.’s children, T. (age 10) and O. (age 8). O. said that aside from there being too many people in the house she didn’t think there was a problem. She didn’t know anything about drugs, other than what N. had told her. T. told of an incident with N. concerning a discussion of sexual touching – but no touching. T. said that ‘N.’ was just being a goof; and there had been no recurrence. Ms. Lambert concluded that there was no drug problem, but that N. was very anxious about the living arrangements; and she suggested that ‘Open Doors’, a child therapy group be involved. Ms. Lambert followed up in March 2011. She spoke to N. privately but noted that he seemed more comfortable with his father, and with his father being present during her interview of him. She said K. was easy to engage and was very chatty. When Ms. Lambert broached the touching issue again with N., he seemed embarrassed about it. She thought maybe ‘N.’ just had a crush on T. Ms. Lambert formed the opinion that the two children were being “pulled in a custody matter – and were in conflict”. During cross-examination, she said she didn’t tell the respondent about the ‘touching’ issue since she considered it to be only a boundary issue. She completed a risk assessment but had no protection concerns.

[ 16 ] Suzanne Morrison was principal at South Crosby public School when N. (grade 2) and K. (kindergarten) were students there (September 2007), and again in 2009 when N. was in Grade 5, and K. in Grade 2. She recalled that the two children were unclean and dishevelled when they arrived at school on most days. She denied being abusive to N. because of his clothes and incontinence. N. would soil himself but wouldn’t let the teacher know. Aside from the soiling issue, absenteeism and lateness was also problematic. She arranged to meet with the respondent and was told that the respondent was working in Kingston – and it made it difficult to get the kids to school on time. She said the respondent started to send emailed explanations as to why the children weren’t at school- and Ms. Morrison considered there seemed to be a lack of recognition that the children needed to be in school. As a result, Ms. Morrison referred the matter to the school board attendance counsellor. The respondent then took the children out of school and moved them to Sweets Corners School – then back to South Crosby. She noted that after the children came back to South Crosby, N.’s body odour was worse and other children seemed to ostracize him. The school records showed extremely poor attendance.

[ 17 ] Patrick Graveline, a principal at Pineview Public School in Athens when N. was in Grade 5 (at the end of the 2009 school year) told of N. arriving in the morning with a strong odour which he considered was unpleasant for N. as well as the other children. He had no concerns about K. Mr. Graveline said he never met with the respondent, but he did have several telephone conversations with her. His concerns included hygiene – the smell of cat urine, mosquito bites, and cat bites. He noted the cat bite was infected. He called the applicant as well as reporting his concerns to the CAS. He told the CAS that the health cards had expired, and that the children needed medical attention. At the beginning of the 2010 school year the children did not show up, so he called the respondent. She told him that she would be home schooling the children and they wouldn’t be returning to school. Mr. Graveline called the CAS and the applicant to report his concerns. During cross-examination he was shown correspondence from the school board to the respondent agreeing to a curriculum for her home schooling proposal- which had been sent to the respondent the day before his conversation with the respondent. He said he had not been aware of the respondent’s home schooling proposal when he called the CAS and knew nothing about her plan until he was shown the letter. He noted that after the school started putting clean clothes in a bag for N. to wear at school, he began to smell better, and his relationships with other children seemed to improve. Mr. Graveline noted that he had been involved in a specific education plan for N.

[ 18 ] Debra Fleming was an education assistant at Pineview Public School when N. was in Grade 5, and 6. (end of the 2009 school year to the end of the 2010 school year She described buying changes of clothes – trousers, shirts and underwear – for N. to change into at school. She said this eliminated the odour problems and he seemed happier and more engaged with other children afterwards. She spoke to the respondent about the cleanliness/incontinence issue who reportedly told her that N. had seen a ‘shrink’ and that he had had issues at school.

[ 19 ] N.’s Grade 6 teacher at Pineview Public School (2009 – 2010) was Bradley Synott. He remembered N. as having personal hygiene issues with varying degrees of body odour, cat urine and human feces. He noted that N. would wear the same clothes day after day. He later became aware that N. was soiling himself. He noted that he found the other children tolerated N. but that it interfered with his social relationships. Mr. Synott said he sometimes found it hard to stand beside N. because of the smell. He said he called Ms. M. to discuss the issue, and she turned it around that it was the school that was centering N. out. He said that initially N. wouldn’t deal with the clean clothes that had been purchased for him; but after a while, he got into the habit of going into the little bathroom where the clothes were kept and changing into clean clothes after arriving at school. He had continuing concerns about the food he was bringing for lunch. Frequently the lunch had been left in the lunch box overnight, and was rotten. He also had concerns about his diet, given his large size. He said N. had a good sense of humour, and was very creative in his thinking. At the request of the principal, Mr. Graveline, he wrote a ‘to whom it may concern letter’ detailing his concerns and gave it to Mr. Graveline. Mr. Synott said had had no contact with D. H.

[ 20 ] Douglas Norman was N.’s grade 7 teacher at North Elmsley Public School (September 2010 to June 2011). He observed that over the school year, N. went from finding it difficult to adapt and make friends while hiding in his hoodie to coming out of his shyness, and “building capacity for Grade 8”. He seemed unaware of the previous school history, and any issues. N.’ Grade 8 teacher and Grade 7 music teacher was Dwight Wallace. He said that N. had been recommended for consideration for the ‘most improved student of the year’ award, because he had demonstrated such a change in motivation, and socializing. There were no hygiene issues. Mr. Norman admitted being involved in N.’s assessment which identified his learning disability but said that N. was well on track to succeed for the school year before the assessment.

[ 21 ] D. H., the applicant’s mother had been a special education teacher with the school board but retired in 2003. She has almost always played an important role in the life of the children. After the separation in 2006, when the applicant had the children every second weekend and during holidays, she played a significant child care role as well as her role as their grandmother. The applicant lived with her at the time. She noted the children’s’ health issues from time to time which included pneumonia, a broken arm, and an episode of laboured breathing- none of which she considered had been treated properly by the respondent. Of particular concern was when N. arrived with an untreated broken arm. At an immediate emergency hospital visit, the attending physician said it had been broken more than 24 hours previously. In 2009, when she became aware of N.’s hygiene issues she called the schools and called the CAS. She called them to report that the respondent had not renewed the children’s’ health cards. She denied using her prior special education role with school board and her previous time as a Board member with the CAS to influence their intervention; and said she simply wanted her concerns to be treated seriously – not those of a meddling grandmother. In fact the CAS recorded her concerns but declined to intervene. She told the applicant to speak to the school about the children’s’ absenteeism. She said that the teachers told her and the applicant that they should take the case to court. She was not asked why she had not taken her concerns to the respondent. She admitted that the triggering event for the court proceedings was the school report to the applicant that the respondent planned on home schooling the children – and not enrolling them in school. She admitted to being unaware that the respondent had written to the school board seeking and in fact obtained permission to home school. She blamed the respondent for the absenteeism and the hygiene issues.

[ 22 ] Ms. H.’s evidence was that after January, 2010 when the applicant changed custody N. was initially rude and unresponsive with her, but after a time, began to relate with her. She told of taking him to his new school, and that he was quite apprehensive. She helped him with his school work and played games with him. N. was not happy with the custodial change. Ms. H. said that K. seemed to roll with it all. Ms. H. spent a lot time with the children performing child care during the week. She described an improvement in N.’s hygiene and that he would always arrive with fresh clean clothes. She described their school progress as excellent and their relationship with her and their father as excellent. Ms. H. also described her involvement in arranging medical appointments and follow ups for N.’s various issues – as well as K.

WITNESSES FOR THE RESPONDENT

[ 23 ] The respondent opened her case with the evidence of Dr. Julie Gowthorpe, who was qualified to give opinion evidence concerning the assessment of parental capacity. She had filed two reports, one of which included a psychological assessment of the respondent by Dr. Cao on a referral by Dr. Gowthorpe. Dr. Gowthorpe acknowledged that she was only in the position to assess the respondent’s current parenting capacity and that successful parenting would require her access to resources, for which it was admitted the respondent did not acknowledge the need. Dr. Gowthorpe acknowledged that she relied upon the history and events as relayed by the respondent with little or no opportunity to corroborate or verify. Her report contained a detailed review of the results of her various interviews. She did meet with the children and over the objections of the applicant and the Children’s’ lawyer, I permitted her to advise the court what she had learned concerning the children’s’ wishes. N. wanted to go to live with his mother, and K. wanted to spend more time with her mother. It was noted during her evidence that Dr Cao had identified the respondent as having likely been mistrustful in relationships, and likely has a tendency to cope with problems through minimization or denial. She was asked about specific issues that had arisen. She said that the respondent had denied to her any problems with parenting, that she had told Dr. Gowthorpe that she was attending counselling to help her deal with anxiety- not parenting issues. The respondent believed that the applicant and Ms. H. were the problem.

[ 24 ] Doug Mattocks was the Coordinator at the Rose garden, after custody changed to the applicant; and where the children initially had supervised access with their mother which shortly changed to supervised exchanges for pick up and drop off, when the respondent took the children with her for the weekend access. Mr. Mattocks took detailed notes at the time. His observations were that the respondent was happy and buoyant around the children, and that they were clearly affectionate with her- and her with them. By contrast, he said that the applicant was quiet and ‘deadpanned’ most of the time. In particular he noted that N. hugged the respondent for a very long time whenever they met - unusual for a young teenager.

[ 25 ] The respondent, M. M., was called out of order to accommodate other witness scheduling issues. She in fact gave her evidence after that of Carmela Cordova. The respondent said that she has been with her partner S. F. for about 8 years and have lived together in their present home near Addison for about 3 years. It is her partner’s 1882 school house converted for residential living, and is a work in progress. She described the carpets as old and nasty. She described herself as an occasional drinker and smokes a ½ pack to a pack of cigarettes a day. She said that on January 8, 2012, she had received a call from N. that the police were there, that he had seen drugs and had phoned the police. She denied putting N. up to it. She phoned the CAS and the investigator told her he had not seen any drugs, and could not verify any sexual touching. She denied a cat urine smell in the house, and said that the smell must be from previous owners who had pets. Although she admitted she had three cats herself but they all preferred the outdoors. She produced photographs of the bedrooms for the children and the living room. They appeared to be well furnished and pleasantly decorated. Ms. M. blamed N.’s attendance problems on the difficulty in getting him to go to school because he was under so much stress at school. She did disagree with the school records concerning the amount of absenteeism.

[ 26 ] The respondent said that she launched the home schooling proposal to remove stress from N., looked into what was involved, and spoke to other parents with a view to getting together once a week for socialization purposes. She did not raise the issue with the applicant but said that she had phoned and left him a message to speak to her – but not what it was about. She said that N. was coming home from school crying and saying that teachers were saying he was disgusting. She said she called the school and was told of the soiling; she spoke to Mr. Synott, and told him that they (the school) were the cause of the stress by making him change. She also said that N. was upset by the way that Ms. Morrison bullied him. She recalled a carpet soiling incident when she was called to the school that N. had had an accident on the carpet, and she was upset with the comments by Ms. Morrison blaming her, when she told of N.’s incontinence. The cat bite incident: she described calling Dr. Tweedie’s office and was told peroxide and gauze was the proper treatment. When N. returned from his father’s with antibiotics, she considered they were too strong. Broken Arm: she said she was unaware of him having a broken arm and didn’t see a cast on his arm when he returned from the applicants. While explaining that the children got sick easily and needed a lot of medical attention, she admitted that the children’s health cards had been expired for quite a long time. When N. was 6, she took him to CHEO where he was diagnosed with nephritic syndrome – kidneys – and was treated with steroids. She said she had known about the incontinence problem since N. was 4 when she had been told it was because of anxiety. But she had not sought further medical attention after the problems with Ms. Morrison. She said she already knew what the problem was; and it was stress caused by the school. She called Open Doors to see about getting some advice. The respondent acknowledged that school was the better place for the children and proposed as her plan – to put the children back into school. She said that since the applicant has had custody – for the past two years- she was not notified of the graduation or parent teacher events, and was not told of any medical examinations by the applicant.

[ 27 ] The respondent said that she last worked in 2008. But that she has been searching for work continuously. She said she is capable of working.

[ 28 ] S. F., the respondent’s partner, said they are engaged to be married. He described the house as a renovated school house. He works as a machine operator. He drinks occasionally and does not use recreational drugs. He believes he has a good relationship with the two children, and seemed very pleased that the children celebrated father’s day with him by giving him a father’s day card. He said he never noticed a cat urine smell. He said that the respondent doesn’t drive, and her driver’s licence has not been renewed.

WITNESS FOR THE CHILDRENS’ LAWYER

[ 29 ] Carmela Cordova works as a part time investigator for the Children’s’ Lawyer and full time for CAS in Ottawa as a supervisor. She has been working for the OCL for 11 years. She has a BSW and MSW from McGill, and had worked full time for the CAS for 26 years. Ms. Cordova was clear that she was not engaged to give an opinion, only to assist the OCL in taking a position regarding the children. She was assigned this matter in April 2011, and had her first meetings August, September, and then November, 2011. She met each parent with their partner, and then the children with each partner in their respective home. She also spoke to Ms. H., and Mr. Graveline. Ms. Cordova described the respondent’s home as a good size, not very clean and with a strong smell of cat urine. She observed the children got on well with the respondent’s partner. She described the applicant’s home as a trailer home with three bedrooms – one for the applicant and his partner, one for N., and the other for the girls – including T. and O. every second week. She observed that K. related well with the girls and N. was engaged well showing her a collection. He related comfortably with his father with no evidence of fear.

[ 30 ] She said that N. likes school and is pleased about it. He told her that the bullying had diminished quite a bit. He seems very aware of the conflicts but clearly keeps the stressful issues to himself. He has consistently said that he would prefer to live with the respondent, but lately seems to be fine with his the applicant but would like to see more of the respondent. He made no allegations against his father but says he is very quiet, whereas his mother has a more vibrant personality. K. seems well balanced, was consistent in both homes and expressed the view that she just wants to see more of the respondent. She said she would like week-about but recognizes that is not possible given where everyone lives. Ms. Cordova said she thinks K. got the idea of week-about from T. and O. She stated the OCL position that the children would be better off with their father but with increased access to their mother. She suggested the respondent have after school on Friday to Sunday night, plus shared holidays, and 2 to 3 weeks solid in the summer

LEGAL PRINCIPLES

[ 31 ] This application was launched by the applicant under the CFLR Act to vary the order of Pedlar J. Variation of the order first requires that there have been shown on a balance of probabilities that there had been a material change in circumstances [1] . The onus is on the party seeking the variation. A material change of circumstances has been held to mean a change such that if known at the time would likely have resulted in a different order. [2] It has also been defined to include a change, such that, if known at the time, would likely have resulted in different terms in the order because it would no longer be in the interests of the child.

[ 32 ] The merits of this application shall be determined on the basis of the best interests of the children. [3] The facts and circumstances the court shall consider are detailed in s. 24 (2), (3) and (4). The wishes of the children are not synonymous with their best interests but the older the child then the more an order for custody requires the cooperation of the child and consideration of the child’s wishes [4] . The court has a broad discretion to tailor the order to the particular circumstances and give effect to orders against persons who are not parties, such as partners or grandparents [5] .

POSITIONS OF THE PARTIES

[ 33 ] The applicant contends that his two years with the children has established a status quo, which ought not to be disturbed in light of the educational, socialization, and grooming advances that have been made by the children over the past two years. He points to several issues which demonstrated neglect by the respondent, and her inability or refusal to address the various issues such as schooling and socialization for N., long expired health cards for the children, unexplained absenteeism by the children, and refusal to communicate with the school authorities. The applicant proposes a drastic change in his communications with the respondent concerning the children and proposed a draft order detailing these provisions, in the event he is successful.

[ 34 ] The respondent argues that the while she accepts that there was a lot of absenteeism, errors were made in calculating the number of times. She blamed N.’s incontinence on the school, and said that two years ago home schooling was her solution- but she recognized that N. needs to be in school. The respondent described a room in her house which she had intended to use for the children’s home schooling. She denied that the children went to school without clean clothes and without washing. Her position is that leaving the children with the applicant, living in a trailer park, with the applicant and his partner who use marijuana, has a criminal record, with K. sharing a bedroom with two other children, and who the children are afraid of is a far less acceptable situation than what she can offer. She notes the positive influence that Ms. H. has had on the children. She blames the applicant for the failure of communications between them. She contends that the wishes of the children are that they reside with her.

[ 35 ] The Children’s Lawyer acknowledges that the children want to spend more time with the respondent, and acknowledges that N. wants to have the respondent as his primary caregiver. However, he contends that the gains made by the children over the past two years ought not to be interfered with, and notes that N. is more content now with the living arrangements with the applicant. The Children’s lawyer raises a number of issues that tend to show the respondent has little insight into her actions, and notes that Dr Gowthorpe had qualified the respondent’s parenting capacity opinion by tying her to the usage of resources – which the respondent did not consider she needed. He notes that K. is content with the current living relationship; but so is N. but perhaps less so. He also noted the positive influence of Ms. H. on the children.

ANALYSIS

[ 36 ] While the parties claim not to have attempted to influence the children against each other, the level of acrimony between the two of them cannot have escaped the children’s notice. In fact there is no evidence that the parties attempted to conceal their dislike and contempt for the other. To pretend that they didn’t attempt to influence the children under these circumstances is simply not credible. It added to the burden on the children. An example is notebooks that the respondent gave them so they could write down their feelings – and then suggested the Children’s Lawyer review the notebooks - is but one example. The recorded language of the children is painful to read. The Children’s Lawyer and the applicant wanted me to read the notebooks. The respondent opposed that. Her opposition was a bit of a mystery since it was her that suggested the notebooks be given to the Children’s Lawyer. Each had their own motive. The applicant was of the view that the notebooks showed the influence of the applicant on the children because of the horrible things said. The respondent must have originally wanted the Children’s Lawyer to read the notebooks to show how negative the children were toward the applicant. I ruled that after reviewing the notebooks, I would give no weight to their contents in light of an absence of probative value. The children were ably represented and were interviewed by an experienced clinical investigator for the purpose of giving evidence of their wishes. I concluded that the notebooks added nothing – other than to show the enormous emotional stress on them because of this litigation. Similarly the respondent wanted me to meet with the children, while the applicant and Children’s Lawyer did not. The stress on the children and the resulting harm easily outweighed any value to be gained. I had considerable evidence concerning the wishes of the children. There is simply no evidence to show other than K. is content with the current living arrangement but would like to see more of the respondent. While N. was defiant in the beginning, he is now more accepting of the current living arrangement. However, he too wants to see more of the respondent.

[ 37 ] While a historical review of past events is of dubious value since the order I am being asked to make will affect the children’s future, it is of some value to enable me to evaluate the plans of each of the parties and their capacity to execute their proposed respective plans. A great deal of evidence was led to by each party to demonstrate the other parent’s shortfalls.

a. N. 911 call- I am satisfied that this was N.’s reaction to feeling the conflict between the applicant and the respondent. It was not indicative of criminal behaviour or inadequate parenting by the applicant.

b. The applicant’s criminal record- This is old and simply irrelevant. The warrant that was made much of was for traffic offences – not trafficking offences. This preceeded his custody of the children.

c. School absenteeism- The records are clear that absenteeism was a huge problem. I am concerned that the respondent failed to show any insight into her own parenting as a cause. I am also concerned that this was a crucial issue for N. and was not shared by the respondent with the applicant –the joint custodial parent. Even a note would have been something.

d. N. soiling himself- This too was a huge problem for N. and made him the object of derision by his peers. Again the respondent failed to show any insight into what a parent ought to do in those circumstances. Essentially her response was to take N. out of school.

e. Hygiene at school- Clearly an issue for the school and for N.’s peers. The respondent seemed not to understand the issue.

f. The expired health cards- There was no real response by the respondent to her oversight – a serious one since she considered that the children needed a good deal of medical attention.

g. N.’s broken arm- the medical records are clear that N. had a broken wrist. The respondent had not sought medical attention because she didn’t notice it. After N. returned home from the applicants, he had a cast on for some 6 weeks. The respondent shays she has no memory of that. This makes no sense. What also makes no sense is the applicant’s failure to give the respondent a detailed note about N.’s treatment course at hospital.

h. Home schooling- This was the triggering event for the applicant who knew nothing of the respondent’s plan – even though he was the joint custodial parent. That was not the appropriate parenting response at the time; and served only to exacerbate the socialization problems for N. by taking him out of school. She recognizes now that school is the right place for N.

[ 38 ] This is a very troubling case. The children are 11 and 14 and want to spend more time with the respondent, their mother. N. wants to return to her care, but is more accepting now with the applicant. On balance the children are better off with their father – not because he has demonstrated superior parenting skills but because with the influence of the children’s grandmother, there is a greater assurance that the children’s health and educational needs are and will be met. It is disturbing that when the original consent joint custody order was entered into in 2006, both parents had undertaken implicitly to communicate with each other and to essentially share the custodial responsibilities and parenting. Neither parent followed through with their commitment. I am quite satisfied that 90% of the problems that I heard evidence about would have been resolved had the parents been able to put their own selfish interests behind them and put the children’s interests first. That didn’t happen. Both parties made it clear that they had no intention of cooperating with the other parent. To that extent it reflects adversely on their parenting capacity. They have let the children down badly. The children will both soon reach the age when they will decide where they want to live, irrespective of a court order. It can only be hoped that by that time they will have established their own lifestyle choices so they will continue to pursue their education, access medical services when necessary and understand the importance of good hygiene to their health. Everyone is of the view that the continuing influence of Ms. H., their grandmother, will be very beneficial. I echo that enthusiasm. I was very impressed with her. I attribute a good deal of the progress the children have made to Ms. H.’s work with the children. I would be concerned if her involvement were to be diminished in any way in the future by either of the parties. (- providing she enthusiastically embraces the communications provisions which I describe below). To the contrary, I hope both parties will ensure her continuing involvement.

[ 39 ] I am satisfied that there is a demonstrable material change of circumstances such as to enable this order to be made. The various incidents that I have described while the children were with the respondent up until the current order was made are sufficient. In addition, the change in custody to the applicant under court supervision for the past two years as well as the failure of the parties to cooperate at all concerning the children, after Pedlar, J’s Order, is further evidence of a material change in circumstances [6] . To put it another way, Pedlar, J’s order is no longer in the best interests of the children.

[ 40 ] The applicant’s residence is in a trailer park. The mobile home facilities are not ideal, however, N. had his own bedroom, and K. only has to share her room half the time. It was described as a large room and adequate for three girls. They are all in the same age range. The applicant and partner smoke outside the mobile home. The respondent’s home may be larger and the children would have their own bedroom. However, there are some hygiene issues- cat urine smell- and exposure to cigarette smoking - which is concerning. These could be addressed but have not.

[ 41 ] The most dramatic change in N. is his schooling. The evidence is that he now has more confidence at his new school where he is in Grade 9. The soiling issue and hygiene issues are no longer a problem. K. has consistently been described as chatty, amiable and easy going. She appears happy in school and with her life generally.

[ 42 ] I have serious concerns about the respondent’s capacity to parent N. and K. where she would have primary care and responsibility. She continues to lack insight into her role as a parent in dealing with the various issues that have arisen with N. and K. from time to time. I have serious reservations about her parenting capacity. If her parenting plan requires resources (as recommended by Dr. Gowthorpe), but she doesn’t have sufficient insight to recognize the need for resources when required, then her parenting plan is seriously flawed. The respondent does have an important role to play in maintaining a relationship with the children, supporting their endeavours and in being a good Mom. Providing the children see her showing respect to the applicant, then that would be a very important role indeed.

CONCLUSION

[ 43 ] On the basis of the evidence, and having considered all of the relevant factors and circumstances, I am satisfied that the best interests of the children require that their primary residence be with their father and that he have sole custody. The needs of the children to have a healthy relationship with their mother can best be met with liberal access. Unfortunately she lives a 45 minute drive from the father’s residence which makes it difficult for mid week access. If the respondent were to get her driver’s licence renewed she could drive to Port Elmsley and have access on Wednesday evenings up to 9 pm. That would give the children added time with the respondent. The respondent made no such submission and frankly there was no evidence that she could or would do that. Every other weekend access is not ideal but under the circumstances, the best that can be achieved. If the geographical relationship of the parties changes in the future, then further access can be addressed.

[ 44 ] The applicant seeks support. The respondent does not work and has not worked in a considerable period of time. She doesn’t drive since she permitted her driver’s licence to lapse. She claims to have been diligent in looking for employment but blames the economy. I can’t imagine she has been able to do much job searching or interviewing without a car. The applicant proposes that I impute an annual income to her of $18,000 for the purpose of calculating guideline support. The applicant has the financial burden of the children. He needs financial assistance. The respondent is capable of working. I am satisfied that the respondent can obtain employment and that $18,000 is a reasonable goal. Guideline support of $281.00 commencing February 1, 2013 is ordered

[ 45 ] Both parents must respect and show respect to the other. It is in a child’s best interests that parent shows respect to the other parent by word and deed. I am making this order on the assumption and on the undertaking of the applicant to do so. Failure to do so by the applicant will be evidence of his lack of parenting capacity. I incorporate the terms contained in a draft order filed by the applicant as Exhibit D during submissions relating to his undertaking to communicate news about the children to the respondent, means of communication with the children, and the obligation not to speak negatively of the other. These obligations extend to anyone else in the house where the children are being cared for; and in addition to the parties include specifically Mr. F., Ms. G., Ms. G.’s two children, and Ms. H. Also included are the terms contained in paragraphs 1. A. 2, and 1. A. 5 of the draft order entered as Exhibit C.

[ 46 ] The order of Pedlar, J dated January 12, 2006 will be amended as per paragraphs 1. A. 1 through 8, and 1. B. of Exhibit C (the draft order) – with the exception of paragraph 1. A. 3.e which shall be changed to provide the respondent with 3 weeks instead of 2 weeks; and paragraph 1.A. 6 is changed to provide that guideline support will commence February 1, 2012. As noted the provisions contained in Exhibit C are ordered. It is a term of the communications provisions that all emails be copied to Ms. H. so she can be fully informed about her grandchildren.

[ 47 ] If there is any confusion about these terms the parties can arrange through the trial coordinator to speak to me to settle the terms of the order.

[ 48 ] Both parties indicated that they want to make submissions concerning costs. If they wish to do so, they have 10 and 14 days respectively. The parties should note, however, my findings concerning the conduct of both parties which contributed to this tragic situation.

Honourable Justice Timothy Ray

Released: December 3, 2012

ADDENDUM

[ 49 ] In response to my invitation at paragraph 47, counsel wrote with two concerns. One involves summer access in paragraph 46, and the other involves the provision for email communications in paragraph 45 and 46. I agree that it would not be appropriate to put email addresses into an order, but I understand that the parties have now solved that issue. I have been reminded that since there are only eight weeks in the summer, that if I depart from the two weeks in July and two weeks in August regime to three weeks, the applicant will only have one week. That was not my intention. I have not heard from the children’s lawyer on these points, but am prepared to revise the vacation time to two weeks each.

[ 50 ] It might be easier if the parties were to provide me with a draft order for discussion purposes, if there are still loose ends.

[ 51 ] I await the parties costs submissions.

Dated: December 12, 2012 ________________________________

Honourable Justice Timothy Ray

COURT FILE NO.: 568/05
DATE: 2012-12-03

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: C. J. J. Applicant – and – M. T. M. Respondent REASONS FOR JUDGeMENT Honourable Justice Timothy Ray

Released: December 3, 2012,

And ADDENDUM December 12, 2012

[1] Children’s Law Reform Act, RSO 1990, c.C.12, section 29 , as amended.

[2] Willick v Willick 1994 , [1994] 3 SCR 670 ; GL v BG, 1995 , 1995 15 RFL 4 th 201 (SCC)

[3] CLRA, s. 24

[4] Kaplanis v Kaplanis 2005 , [2005] OJ No 275 (Ont. C. A.)

[5] CLRA, s 28.

[6] Tu v. Tu , 2000 , 7 RFL (5 th ) 178 (ONSC) . Where the parents’ relationship had deteriorated to the point that they could no longer communicate.