COURT FILE NO.: FC-09-1622

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

LAURA JOHNSTONE

Sean Jones, for the Applicant

Applicant

• and -

GARY LOCKE

and

SARAH SHERRINGTON

John Summers, for the Respondent Mr. Locke

Ms. Sherrington, in person

Respondents

HEARD: November 28,29, 30, December 1,2, 5,6,7,8, 2011

J. Mackinnon J

Introduction

[1] McKayla is the daughter of the Respondents. She is nine years old. Her parents separated a few months after her first birthday. They entered into a shared parenting arrangement which continues to date. McKayla was twenty months of age when she met the Applicant, who was dating Mr. Locke at the time. The Applicant and Mr. Locke began to live together in December 2004, married in May 2007 and separated in December 2008. In June 2008, their own son, Adrian, was born. Both Respondents approved of and encouraged the Applicant’s relationship with McKayla. She came to be known as McKayla’s Momma, as distinct from Ms. Sherrington who was always her Mommy. The Applicant became as involved in all aspects of McKayla’s care as were the Respondents. In some aspects of McKayla’s care the Applicant took the lead. An unquestioned bond of love and affection developed between her and McKayla.

[2] When the Applicant and Mr. Locke separated they agreed to a temporary bird nesting arrangement. The four days each week that McKayla had resided with them were divided up between the couple equally. Ms. Sherrington continued to have McKayla with her three days each week. The Applicant and Mr. Locke began mediation in the spring and invited Ms. Sherrington to attend. No agreement was reached. In early July the Application was issued. The Applicant sought custody of McKayla. She pleaded that neither Respondent was capable of acting with their daughter’s best interests in mind. She proposed that they should have access to their daughter. In the alternative, the Applicant sought an award of joint custody to all three parties with equal parenting time to each of them.

[3] What had been an unusually close and cooperative parenting arrangement between the three adults involved in McKayla’s care changed dramatically. Now there is no relationship between the Applicant and Ms. Sherrington, whereas they had developed a mutually supportive friendship marked by respect and shared devotion to McKayla. The Applicant and Mr. Locke were able to settle on parenting arrangements for Adrian, but their relationship is acrimonious. Neither one of them trusts the other as far as McKayla is concerned. Indeed both Respondents would prefer the Applicant to have no further involvement whatsoever with their daughter. Despite these feelings, they propose that the court should allow the Applicant to see McKayla twice per month on an activity based format.

[4] The Applicant continues to view herself as one of McKayla’s three parents. She maintains that she has been alienated from McKayla by both Respondents. She submits that the only way to reverse that alienation is for the court to award joint legal custody to all three parties and to return to the residential arrangement that was in place during the bird nesting, namely two days per week for herself, two days for Mr. Locke and three days for Ms. Sherrington.

The Applicant’s Role with McKayla Prior to Separation

[5] Although considerable time at trial was devoted to establishing the development and extent of the Applicant’s role and relationship with McKayla, the essentials were not in dispute. Mr. Locke admitted that the relationship developed very quickly and that soon, he and the Applicant were sharing the child care responsibilities while McKayla was with them. He agreed that he had fostered and encouraged a family environment and acknowledged the various cards that he gave to the Applicant from himself and on McKayla’s behalf wherein he described a loving mother/daughter relationship between them. There was no dispute that the Applicant had been instrumental in locating a new doctor and dentist for McKayla and that she also located and pre-screened various day care providers.

[6] There is no question that Mr. Locke relied on the Applicant in the day to day instrumentality of parenting McKayla. He had confidence in her ability to look after McKayla when he was away at Police College for three months and as needed arising from his subsequent shift work as a police officer. While the Applicant was on maternity leave for Adrian, day care for McKayla was discontinued and she remained home with the Applicant throughout the summer when she was not residing with her mother. Mr. Locke and his mother testified that there were frequent disagreements between him and the Applicant with respect to parenting decisions for McKayla and suggested that the Applicant was the type of person who always had to have her way. Mr. Locke testified that when he deferred to her it was to keep the peace. There was evidence to support a conclusion that the Applicant initiated unnecessary changes to McKayla’s pediatrician and dentist to ones more favorably viewed by her. One way or the other, from the point of view of McKayla the Applicant was fully engaged in her care and was a constant loving adult in her life from age twenty months until after the separation over four years later.

[7] One of the day care providers for McKayla provided evidence that of the three, she saw the Applicant more often and had more contact with her than with either of the Respondents. To her observation the Applicant acted like a primary parent to McKayla. She felt that McKayla had three parents.

[8] Similarly, Ms. Sherrington relied on the efforts of the Applicant with respect to medical and day care providers for McKayla. The Applicant also assisted Ms. Sherrington with some of the picking up and dropping off of McKayla that would otherwise have been her responsibility. It is clear that Ms. Sherrington trusted the Applicant to make good choices for McKayla. Ms. Sherrington sent the Applicant a Mother’s Day card, in either 2005 or 2006, on which she wrote: “I feel blessed that someone as kind, thoughtful and loving as you has come into McKayla’s life. You’ve become a wonderful mother to McKayla and a good friend to me.” At times, parenting communications that would otherwise have been conducted between the Respondents were conducted between the Applicant and Ms. Sherrington.

[9] The two households often combined to hold a joint birthday party for McKayla. They all gathered together to share in Halloween trick or treating with McKayla. If McKayla was sick a cooperative approach was taken to her care.

[10] All three adults took an interest in McKayla’s schooling and attended meetings with her teachers. One feature of Mr. Locke’s shift work was that he was off half of the days in every month and whenever he was off he was able to pick up and drop off McKayla at school or day care. The Applicant also volunteered at school in a number of different capacities each year. Mr. Locke recalled participating in a safety presentation during JK and in science day during Sk. The Applicant was involved in McKayla’s swimming and dance classes to a greater extent than were the Respondents, although Mr. Locke attended both when he was able to and all three adults came to McKayla’s recitals and performances.

[11] The extent to which the Applicant became involved in McKayla’s care was not on account of disinterest on the part of the Respondents. Ms. Sherrington did not have a motor vehicle for some time. At times, the parties lived a considerable distance apart. Both Ms. Sherrington and Mr. Locke had fixed hours of work which they could not readily change, whereas the Applicant had flexible hours. I concluded that it was her greater flexibility and availability combined with her natural love and affection for McKayla that led to the Applicant’s increasing role with McKayla rather than disinterest or dereliction on the part of the Respondents.

[12] At the same time the Applicant clearly did not want to be viewed by McKayla or anyone else as a stepmother. She gave a lengthy explanation for how McKayla came to use the word Momma, at first in partial reference to her as in Momma Laura and later simply as Momma. She also described a conversation with Ms. Sherrington about this. The Applicant testified that although Ms. Sherrington called her, very upset because a friend had apparently heard McKayla call the Applicant Mommy, that she was nonetheless immediately and completely fine and at ease with her daughter calling the Applicant Momma. Ms. Sherrington denied this. I accept her testimony. She said she was opposed to it but when she saw that correcting McKayla was confusing her, she backed off. My conclusion is that the Applicant encouraged McKayla to call her Momma and that the Respondents went along with it, for their own different reasons and with differing degrees of enthusiasm.

[13] It is apparent that there was a transition in how McKayla referred to the Applicant. She started out with Laura, then My Laura, soon abbreviated to M’Laura, moved on to Momma Laura and finally to Momma. My conclusion is that the Applicant and perhaps Mr. Locke encouraged the transition from Momma Laura to Momma. I did not believe the Applicant when she said she was sorry when McKayla dropped the Laura from Momma Laura. By June 2005 she and Mr. Locke were referring to McKayla as their daughter. This was wrong but is indicative of the kind of relationship that the Applicant wanted to have with McKayla and which Mr. Locke facilitated.

[14] It is also clear that McKayla loved the Applicant, readily called her Momma and prepared her Mother’s Day related and other school projects for two mothers.

[15] While Mr. Locke and the Applicant were living together all three adults were content with sharing McKayla’s care amongst them in this way.

The Applicant’s Relationship with McKayla after Separation

[16] In January or February 2009 the Applicant and Mr. Locke worked out the bird nesting arrangement referred to in the introductory portion of these reasons. I find that this was intended only as a temporary measure with the goal of disturbing McKayla as little as possible while permanent arrangements were negotiated. In March, the Applicant and Mr. Locke entered into mediation of terms of a final settlement. After the mediation failed and the Applicant’s lawyer contacted the Respondents, things began to change.

[17] The Applicant testified that she only saw McKayla on June 12, and once in each of July, August and October. Mr. Locke would no longer share alternating weekends with her and she was not allowed any summer holiday access. The Applicant related this reduction in her time with McKayla to something that she says Ms. Sherrington told her in February, namely that Mr. Locke had said that they should wean the Applicant out of McKayla’s life because she was too attached to her. Ms. Sherrington was opposed to this and as a result the two women began drafting a letter of support for the Applicant. Ms. Sherrington and Mr. Locke give a different story. He says he never said or intended to cut the Applicant out of McKayla’s life. She says that in January 2009 the Applicant told her that Mr. Locke was going to stop letting her see McKayla at all. Ms. Sherrington agreed to help the Applicant to prevent this. I prefer the testimony of Mr. Locke and Ms. Sherrington in this regard. Mr. Locke did not try to cut the Applicant out of McKayla’s life in January or February 2009. To the contrary he agreed to the bird nesting arrangement, he entered into mediation to try to settle what her access to McKayla would be, and he continued to allow access in some form or other after mediation failed. Even now his position is not that there should be no contact between the Applicant and McKayla.

[18] However, both Respondents dramatically changed their attitude towards the nature of the Applicant’s relationship with McKayla after she commenced this litigation. The Applicant was no longer given copies of McKayla’s school report cards or school photographs. She was no longer allowed to pick up McKayla from school. The Respondents retrieved McKayla’s OHIP card from her. Ms. Sherrington changed the Brownie pack that McKayla attended so that the Applicant would no longer be one of her leaders. When Mr. Locke took McKayla on summer vacation to British Columbia he refused to provide the Applicant with an itinerary but did allow her to speak to McKayla while she was away. The Applicant was not allowed to see McKayla between her vacation with her father and her departure for holidays with her mother. Mr. Locke reverted to Momma Laura when referring to her in McKayla’s presence. Mr. Locke moved out of the matrimonial home on a final basis on September 3 without telling the Applicant in advance. He emptied McKayla’s bedroom and did not leave word as to where he had moved with McKayla. It was not until September 23 that the Applicant had her next visit with McKayla.

[19] During the summer Mr. Locke explained to the Applicant that these restrictions were “consequences”, which she took to be a reference to her having commenced litigation against him and Ms. Sherrington. He confirmed this in his testimony. He stated that in June he and Ms. Sherrington decided because of the threat of litigation that it would be best for McKayla to reduce the time she spent with the Applicant. The Applicant did not appear to realize the impact that her seeking custody of McKayla and her allegation that neither of her parents was capable of caring for her would and did have. It was a significant error on the part of the Applicant to sue for custody and to seek to restrict the parents to access only. That she did not anticipate the adverse reaction her pleadings would cause and still stood behind them during her trial testimony reflects poorly on the Applicant’s judgment.

[20] While it was predictable that the Respondents would have a strong negative reaction to the Applicant’s litigation against them, in actuality their reaction went far beyond what might be explainable by understandable emotions. Throughout the late spring and summer their conduct towards their Applicant was punitive and harsh. It was not until October that they settled down sufficiently to agree to a regular access arrangement whereby the Applicant would have McKayla with her on alternate Wednesdays overnight.

The February 25, 2009 Letter

[21] After the Applicant and Mr. Locke separated, Ms. Sherrington was content with the Applicant continuing in a parenting role with her daughter. She agreed to write a letter to help the Applicant in her negotiations with Mr. Locke. This letter was prepared at the instigation of the Applicant; however Ms. Sherrington was a willing participant. The two discussed what would or would not go into the letter. Ms. Sherrington testified that she wanted the letter to be a fulsome and glowing character reference for the Applicant. The letter that she signed was dated February 25, 2009. It was three pages long. Ms. Sherrington testified that she did not read the letter before signing it rather, the Applicant read it to her and that the contents as read differed substantially from what she in fact signed. Ms. Sherrington testified that most of the entire second page was not as read to her, and that a full page of glowing remarks about the Applicant was omitted.

[22] I did not accept this aspect of Ms. Sherrington’s testimony. She was careless as to the preparation of the letter. She allowed it to be created by the Applicant and to be edited by the Applicant’s sister. She did not read the letter before signing it and did not keep a copy of what she had signed. I find that at that time, she was somewhat cavalier as to the arrangements between the Applicant and Mr. Locke as long as they did not impinge on her own time with McKayla.

[23] I find that she did sign the letter dated February 25, 2009, and did so because at the time she supported the Applicant in her desire to maintain two days per week with McKayla. I also find that she did not pay attention to the references made in the letter to the Applicant having legal rights and custodial rights to McKayla. I believe Ms. Sherrington that the significance of these words did not occur to her until later in the spring when she attended a mediation session and they were explained to her by the mediator. I accept her testimony that once she had that knowledge she promptly communicated to the Applicant that she would not relinquish any custodial rights to her. I was not persuaded that the Applicant read one letter to Ms. Sherrington and had her sign a substantially different letter.

[24] This conclusion is reinforced by the formal admissions that Ms. Sherrington made:

• Laura Johnstone has had a cherished, constant, reliable, very involved and highly treasured parenting role in McKayla’s life;

• McKayla knows and refers to Laura Johnstone as her “momma”;

• That she herself has stated that she did not want the cherished relationship between Laura Johnstone and McKayla compromised in any fashion;

• That having someone as intelligent, kind, loving and grounded as Laura Johnstone in McKayla’s life has been invaluable to McKayla.

The Children’s Lawyer Investigation

[25] Social Worker Ms. Guillemette conducted a clinical investigation for the Office of the Children’s Lawyer (OCL). Her report is dated March 29, 2010. Ms. Guillemette also provided oral testimony at trial. The investigator found that since the spring of 2009 there had been increased conflict between all the parties as it pertained to McKayla and the time she spent with the Applicant. She noted that while the Respondents had maintained their time sharing arrangement for McKayla this had impacted upon the Applicant since she and Mr. Locke were no longer in the same home.

[26] The Applicant and Mr. Locke both reported that arguments started to occur between then during their first summer as a dating couple and that this continued all the way to their separation. The Applicant confirmed that she and Mr. Locke did not always see eye to eye on the “how to” in parenting. They both described problems in their relationship around the time of Adrian’s birth. Mr. Locke felt left out of the parenting of Adrian. The Applicant described their relationship as very strained and said that she did not feel close to Mr. Locke. Mr. Locke decided to end the marriage in December 2008.

[27] The investigator found that the situation in the home deteriorated between January and May 2009 as the conflict between the couple worsened. The Applicant is said to have approached Ms. Sherrington to discuss her concern that Mr. Locke would cut her out of McKayla’s life. The Respondents advised the investigator that they discussed the situation in May and decided to start limiting the amount of time that the Applicant spent with McKayla as they felt that this was no longer in her best interests.

[28] McKayla consistently presented to the investigator as happy, talkative and uninhibited in her manner. She observed many exchanges of physical affection between the Applicant and McKayla. Throughout the visit with the Applicant, McKayla referred to her as Momma. At both Respondents’ homes McKayla referred to the Applicant as Laura. She told both of her parents about the time she had recently spent with the Applicant and how she had enjoyed making pancakes with her. Both parents responded appropriately. McKayla was clearly comfortable in both parents’ homes with plenty of physical exchanges of affection with both.

[29] In her private interview with McKayla the child told the investigator that she was happy with how things were but that she missed Momma and wanted to spend more time with her. McKayla suggested every Friday overnight and later into Saturday morning. At the time their access was alternate Fridays overnight until Saturday morning at ten. McKayla did not appear to be aware of the details of the conflict between the three adults, but she did report that they were not getting along the way they used to. When asked how the investigator should refer to Ms. Johnstone, McKayla said, “she’s Momma, it’s just that Mommy and Daddy don’t want me to call her that so I don’t when I am with them, but she is Momma.”

[30] Overall McKayla presented as very mature, bright and well spoken. She appeared happy and content and free to speak her mind.

[31] The investigator found that the Applicant had a parental role in McKayla’s life. She also found that both Respondents had always been present and active with their daughter and had not relinquished their parenting responsibilities. Rather they had been open to adding the Applicant’s involvement as another parental figure. She found that all of McKayla’s needs were being met by her parents and that she was continuing to do very well. However McKayla did miss the Applicant and did want to spend more time with her. The investigator concluded that McKayla needed to know that her relationship with the Applicant wouldn’t be taken from her.

[32] At the time of the clinical investigation the Applicant was proposing that McKayla should spend rotating weeks with each of the three parties. Both of the Respondents proposed that the existing arrangement whereby the Applicant had McKayla with her for alternate Friday overnights should continue.

[33] The clinical investigator’s recommendation was that the existing custody and time sharing arrangement between the Respondents should continue and that the Applicant should have access once per week on an overnight basis, an extended summer vacation period and a special visit around the time of McKayla’s birthday. She explained her recommendation by saying that prior to the separation McKayla had two homes and that continuing a two home base for her would be best. The separation meant that McKayla could no longer continue her relationship with the Applicant in her father’s home and while it should be facilitated in another way, not to the extent of requiring the child to live in three homes especially given the conflict between the parties. Further the longstanding time sharing arrangement between her parents had worked very well for McKayla and should be continued, but with sufficient allowance to enable the relationship with the Applicant to continue albeit not in the same primary form as it had previously taken.

[34] Ms. Guillemette agreed that all three parties had worked hard to provide McKayla with security and that McKayla was secure with all of them. She observed McKayla to be affectionate and genuinely attached to each adult. She saw no signs that McKayla’s relationship with the Applicant was impeding her in any way. The investigator did not think that cutting the Applicant out of McKayla’s life would be good for her. To the contrary, McKayla could feel rejected, she would not understand why and she could have a sense of loss. The effects on the child could be longstanding. Nor was it beneficial for McKayla that she felt compelled to refrain from referring to the Applicant as Momma in her parents’ homes.

[35] Ms. Guillemette was of the view that the conflicted relationship between the parties after the separation was more predictive of the future than was the very close working relationship they had enjoyed during the cohabitation. She said that the post separation relationship has a huge impact in determining long term success.

[36] I found Ms. Guillemette to be an impressive and thoughtful witness. Her recommendations reflected the reality of the situation and McKayla’s best interests within that reality. The proposal being put forward by the Applicant at the time, that McKayla would spend one week in rotation with each of the three parties, was clearly not in the child’s best interests. It reflected more the Applicant’s sense of entitlement than an appreciation of what life would be like for McKayla under the proposed arrangement. Nor had the Respondents been able to accurately reflect what would be best for their daughter. They erred in restricting her from continuing to refer to the Applicant as Momma in their presence. They allowed their hostility towards the Applicant to override the importance of the relationship with her that they had both encouraged McKayla to have.

[37] It is beyond regrettable that the parties did not implement the OCL recommendations at the time they were made, or failing agreement, that the case was not tried in close proximity to the date of the report. It is fair to say that things went from bad to worse after the report was released, that McKayla’s relationship with the Applicant has suffered immensely during the intervening time, and that circumstances are no longer as they were when the clinical investigation was carried out.

[38] All three parties share responsibility for the current unhappy state of affairs.

The Applicant Ms. Johnstone’s Responsibility

[39] The Applicant has been unable to appreciate the impact that her separation from Mr. Locke would have in terms of the time and relationship she would have with McKayla. This inability arises from the Applicant’s sense of entitlement to be a parent to McKayla overtaking her appreciation of what would be in the child’s best interests under the changed circumstances. For example, the Applicant testified that she still believed it was in McKayla’s best interests to be in her custody. In her testimony she said she was still asking for one third of McKayla’s residential time, because, she said, I don’t see any other way to do it since there are three parents with three homes.

[40] At some point in time the Applicant adopted a competitive attitude with respect to McKayla. The impression I formed was that she sees herself as being in a contest with the Respondents over who had the better skills or greater involvement as a parent to McKayla. It is clear from her testimony that the Applicant believes she is entitled to win that contest. This attitude is not explained by the fact of litigation or the need to make her case in court. It is a clear departure from the cooperative shared parenting attitude that all three parties appeared to have prior to the separation. I concluded that the Applicant was focused on the importance of her status and performance in relation to McKayla to an extent that she lost sight of the child’s best interests.

[41] This lack of insight was apparent in her statement that it would challenge her to say that she played a role in McKayla’s change of attitude to her. There were also occasions in her testimony when the Applicant overstated what had actually happened. She testified in chief that Mr. Locke had tried to come home on weekends when he was away at Police College. In fact he had either come home or met up with the family in Toronto on all but two of the weekends he was away. She testified that she had exclusive possession of the home and that Mr. Locke had unilaterally moved back in. In fact there was no order for exclusive possession and by the time that he did move back in, she had already been living primarily at her sister’s home for months. She also said that her access to McKayla was “cut in half” leaving the impression that this was through some misconduct by Mr. Locke. What actually happened was that when the bird nesting in the matrimonial home ended, they each had two days with McKayla in their individual homes whereas prior to that McKayla had spent all four days in the matrimonial home. Her assertion that she was the primary parent and caregiver before separation needs to be weighed in light of this tendency. In fact I find the observations of independent witnesses that they were like three parents, worked as a team and relied on each other to be more accurate.

[42] The Applicant’s credibility was also impacted by her expression of complete surprise when Mr. Locke told her he was leaving her. This would appear to be inconsistent with the information she provided to the OCL investigator with respect to their relationship.

[43] As early as in 2010 McKayla complained to her mother that the Applicant was telling people that McKayla was her daughter. McKayla found this difficult. On one occasion Ms. Sherrington and McKayla were in the library when a woman approached them and asked McKayla where her mother was. Ms. Sherrington replied that she was the mother. The woman said, no, her mother has blonde hair (Ms. Sherrington‘s hair is dark). McKayla’s face turned beet red.

[44] In August 2011 the Applicant arranged a surprise birthday party at a local restaurant for McKayla with several of her friends. The Applicant testified in chief that they had a great time at the party. This was not so for McKayla. She was very upset by something that happened at the party. The Applicant removed her from her friends and took her outside to admonish her for not responding with an “I love you, too” after the Applicant told McKayla that she loved her. The Applicant also complained that McKayla was not calling her Momma and in fact at this point in time was not actually calling her anything.

[45] Both examples demonstrate that the Applicant had a primary focus on what she herself wanted as opposed to how what she said or did might impact upon the child.

[46] During a visit in August 2011 McKayla told the Applicant that she knew that she was not her mother and wasn’t even her stepmother any more. The Applicant pulled out a binder of cards that she had received over the years from Mr. Locke and McKayla. She made McKayla look at the cards referring to her as McKayla’s mother or momma. McKayla did not enjoy this. The Applicant’s insistence on looking through the cards was more about her own feelings than about what was best for the child. By then McKayla was nine years old and was aware of the biology and that her father and the Applicant were separated. It would have been appropriate for the Applicant to acknowledge what McKayla said. With insight the Applicant might have focused a discussion on McKayla’s feelings and ideas for continuing a close relationship between them. Instead her response reflected the overriding importance to herself of maintaining the status of a parent to McKayla.

[47] In October 2011 in preparation for an access visit the Applicant hid her telephones. She says she did this because at the previous visit McKayla had telephoned her father repeatedly to come for her. During this particular visit McKayla did ask to call her father and was denied permission. She looked for a telephone but could not find one. She asked for but did not receive the Applicant’s cell phone. Eventually she did find a cordless phone and ran up to her room to call her dad. The Applicant chased after her and a wrestling match for the phone ensued which the Applicant described as being “in play”. McKayla did not seem to think so. She was very upset by this and discussed it with her mother and her counselor.

[48] The Applicant was undoubtedly faced with difficult circumstances in maintaining her relationship with McKayla; denying the child’s autonomy was not likely to improve their relationship.

The Respondent Mr. Locke’s Responsibility

[49] Mr. Locke gave credit where credit is due with respect to the Applicant’s role and relationship with McKayla during their cohabitation. Since the separation he has done many things that he must have known would interfere with their relationship. He signed McKayla up for a series of drama classes on Saturday mornings including some of the Applicant’s mornings with McKayla. He did not ask for her permission. Mr. Locke simply informed her that he would be picking up McKayla at eight for the classes and even refused the Applicant’s offer to take McKayla herself.

[50] It was disingenuous for him to say that the Applicant’s access should not take the opportunity away from McKayla. The Applicant had offered to take McKayla herself to the classes that occurred during her access time. He should have accepted her proposal.

[51] When the Applicant’s father passed away, Mr. Locke refused to allow McKayla to participate in the family get together even though she had been close to him and to that extended family. During the summer of 2010 Mr. Locke denied McKayla the opportunity to attend a family wedding with the Applicant for which she had long since been invited to be a flower girl. In October 2010 he moved his residence to Morgan’s Grant and told McKayla not to tell the Applicant.

[52] These examples show Mr. Locke not as focused on McKayla’s best interests; rather he was acting out of spite against the Applicant. More graphic was his refusal to let the Applicant lean in and kiss McKayla when she was in the car during exchanges of Adrian.

[53] Mr. Locke testified that McKayla’s attitude to access with the Applicant changed after December 2010. He said she became less enthusiastic about going. She would tell her father that she would rather do something else. Mr. Locke said that he would explain to her that she had to go and would encourage her to go but that it came to be very stressful between them as McKayla became more and more resistant. My impression was that rather than encourage the access and promote the relationship as he ought to have done, Mr. Locke took the approach of telling McKayla that she had to go because of the court order, and that if she did not go, he would get in trouble. This is hardly the type of explanation that would be likely to encourage McKayla let alone to convey to her the sense that her father not only permitted her to go but supported her in continuing her relationship with the Applicant. In fact, McKayla told her counselor that she did not like being told that she had to go on the access visits.

[54] In January 2011 the Applicant and Mr. Locke reached an agreement to re-schedule her access due to a business trip. When the time came, he reneged.

[55] In September Mr. Locke was getting a puppy. It was due to arrive after midnight on one of the Applicant’s Fridays with McKayla. McKayla knew this and was quite distraught during the access visit. She wanted to be there when the puppy arrived. After several phone calls back and forth between houses, the Applicant eventually had to take McKayla back to her father’s home.

[56] Mr. Locke testified that he had told McKayla that she would not see the puppy until the next day anyway, and that the puppy had nothing to do with why she wanted to return early from that particular visit. It later emerged that he had in fact told all the children that they could stay up late that night until puppy arrived. I find that McKayla knew that the other children would be up when the puppy arrived but that she had to go to access and would miss out. I infer that Mr. Locke was not averse to providing McKayla with information about the puppy knowing that it would interfere with the Applicant’s access.

[57] Mr. Locke told McKayla that the Applicant was a smoker, something that she herself had taken great pains to conceal from the child. His explanation for why he did this was not believable and I find he did so with the accurate expectation that the knowledge would make McKayla think less of the Applicant.

[58] Mr. Locke had written notice in the form of the Children’s’ Lawyers Report that the relationship was valuable to McKayla and needed to be supported by him. He did not do this.

[59] A motion by the Applicant to find Mr. Locke in contempt of the court order dated December 22, 2010 was heard together with the trial. The particulars of the alleged contempt were that he denied the Applicant access to McKayla on September 30, October 28, November 11 and November 25, 2011. These were all Fridays on which the order entitled the Applicant to have access to McKayla. Mr. Locke admitted that the access did not occur on any of those dates. On each occasion he would drive McKayla to the Applicant’s house and McKayla would either refuse to get out of the car or would approach the door, tell the Applicant that she was refusing to stay and return to the car where Mr. Locke was waiting for her. As already noted Mr. Locke told McKayla that she had to go for the court ordered access, that a judge had decided this and that he would be in trouble if she did not go. He said that he waited outside the Applicant’s house because McKayla asked him to. He said that on one occasion in July 2011 he had driven away and McKayla had run after his car. He said that as a father he would not do that again.

[60] On September 30 when McKayla returned to his car, the Applicant came too. Mr. Locke says he handed her a note that just happened to be sitting on his front seat. This note includes the words, “I hate Laura” written by McKayla and the same words apparently also written by two other unidentified children. I do not believe that this note just happened to be on the passenger seat beside Mr. Locke. I find that he purposefully brought it with him to give to the Applicant if the opportunity presented itself.

[61] On October 28 McKayla got of the car. The Applicant exited her house and began to walk down the driveway. McKayla got back in the car and Mr. Locke drove away as quickly as McKayla could do up her seatbelt.

[62] On November 11 Mr Locke again drove McKayla to the Applicant’s house. He knew she had brought a note to give to the Applicant. McKayla had made this note at her mother’s house and sent it to her father’s computer to print. She brought the note with her intending to give it to the Applicant. Mr. Locke does not appear to have discouraged McKayla from doing so. The note stated:

DEAR, LARUA

I don’t like you and I do not want to go to your house. You are a horrible person that smokes BURN IT GIRL! I am the only person no one listens to and I need them to listen so I am going to STAND UP! Going to your house makes me feel sad and angry please do not make me go again. You make a little girl cry (me of course). AND I DO NOT LIKE IT!

AHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHH!

FROM, MCKAYLA

In the gap below the salutation the words “I hate you” with an x below each statement, were either hand printed or paint boxed by computer. McKayla delivered the note, returned to the car where her father was waiting and they drove away.

[63] The same routine was essentially repeated on November 28 although no note was involved.

[64] Mr. Locke relies on the fact that McKayla tells him that she does not want to see the Applicant anymore. He believes that he has met his obligation under the court order by telling her she must go and by driving her to the Applicant’s home.

[65] The law relating to contempt of court is well known and is summarized in [1993] O.J. No. 1488 (Ont. Gen. Div.) at para. 18:

18 In satisfying the test relating to contempt of court, the order itself must be clear and unequivocal and not open to various interpretations. Secondly, the party disobeying the contempt order must do so in a deliberate and wilful fashion in order to satisfy the criminal nature of the contempt proceedings. Thirdly, in considering the evidence as to whether there has been a deliberate breach of the court order it must be proven beyond a reasonable doubt as opposed to just on a balance of probabilities. It is obvious that any doubt must be exercised in favour of the person alleged to be in breach of the order.

[66] The issue here is whether the evidence establishes beyond a reasonable doubt that Mr. Locke acted in a deliberate and willful fashion in disobeying the court order. Mr. Locke did tell McKayla that she had to go and he drove her over. He submits that he is not like the parent in 2005 CarswellOnt 3442 (SCJ) who made no effort at all to return the child as required by the order. However in [1999] O.J. No. 3546 (SCJ) the court stated at paragraph 15:

15 I find it hard to understand how a custodial parent cannot control or direct an 11-year old child unless the parent is not making a sincere effort to do so. I would expect if the father had taken a firm and more supportive stand Dominic would have returned to his mother and these incidents involving the police may never have occurred. It certainly leads one to draw the inference the father has very little control over his 11-year old son. If this is indeed the case Dominic may be completely out of control as he enters his teenage years.

[67] In Paton v. Shymkiw (1996) 1996 17988 (MB QB), 26 RFL (4th) 22 (Man. Q.B.) the court stated at para. 38:

38 However, clear actions on the part of the parent that tell the child he need not comply with the access orders are actions in willful disregard of the court order. The nature of the actions required will, to some extent, be dependent on the age of the child. The younger the child, the more susceptible to influence he is by the custodial parent.

[68] Mr. Locke did not encourage McKayla to go to the visits in a positive fashion. He did not remind her of how close and loving her relationship with the Applicant had been. He does not appear to have taken the simple measure of walking her to the door. Waiting in his car at the curbside was a clear signal to McKayla that it would be acceptable for her to return to the car.

[69] In Cooper v. Cooper 2004 47783 (ON SC), 2004 CarswellOnt 5255 (SCJ) the court was dealing with an alleged contempt of an order for telephone access. The mother testified that she made the children available by having them at home at the appointed time, but she did not pick up the telephone when it rang. She left it up to the children to answer the phone or not. The court stated at para. 42:

I find that in shirking her responsibility and obligation directly, and indirectly by conveying to the children her disapproval of telephone access, she willfully and deliberately sabotaged this telephone access. As such the respondent was able to sabotage the ordered telephone access while she played the game of “making the children available for the telephone call by their father.” The respondent is a very bright, articulate woman. There is no question in my mind that she was well aware of the intent of this paragraph but has hidden behind the dissection of the words. It was a word game to her.

[70] In 2011 CarswellMan 98 (Q.B.). the court stated at paragraphs 62,192:

62 Sometimes, but I find not every time, when it was the petitioner’s period of care and control, the respondent or one of his proxies drove to the petitioner’s home with the children where a form of charade was performed. The children were “encouraged” to visit their mother. The children refused. The respondent did nothing more. The petitioner’s period of care and control was not exercised.

These actions were held to be in contempt of the court order.

[71] I find that Mr. Locke was in contempt of court as alleged. Not only did he fail in general to positively encourage and convey to McKayla reasons why she should want to visit the Applicant. On these specific occasions I find that he brought her to the house with no real intention on his part that the visit would take place. He came prepared on the first occasion with a note to give to the Applicant “explaining” why McKayla was not going to visit and on another occasion he knew that McKayla had brought a note with her for the same purpose. On none of these occasions did he persuade or encourage McKayla to go into the house. By allowing the delivery of the notes and remaining waiting to take McKayla home he clearly messaged her that she did not have to stay for the scheduled access.

Ms. Sherrington’s Responsibility

[72] Ms. Sherrington admits that after the mediation failed and the litigation commenced she told McKayla to call the Applicant, Laura. She explained to her that Laura had been her step mother before but now she was not. Ms. Sherrington told McKayla not to use the word Momma anymore. She also concedes that McKayla knew that she and the Applicant had been friends but were no longer.

[73] Ms. Sherrington acknowledges that McKayla is aware of the court case and the financial effects it is having on her parents. She also told McKayla when the trial would be taking place. She says that McKayla asked her if she could speak to the judge. She told her, no and says that McKayla then asked if she could write a letter to the judge. Her mother said she could. During her testimony Ms. Sherrington produced a letter written by McKayla dated November 20. It appeared that Mr. Locke had at least been told about the letter if not given a copy but no prior notice was given to the Applicant.

[74] I accepted the letter as a courtesy to McKayla. I wanted her to know that the judge making the decision in her case had read and considered her letter:

Dear Your Honour Nov 20 2011

I do not like what is happening to my family. This lady named Laura that used to be my stepmother destroyed my family. Here are the things she did to me: She pulled me out of lone star to tell me to say I love you to her, she pulled out a big card book and tried to show me that she was once a great stepmother. When I get there she does not let me call my dad when I am home sick, she tackled me for a phone and she makes me call her “mama”. I do not think I should wait till I am 12 to have a say because I need to be listened to and also I really never want to see her again. I don’t want to because I miss out on REAL family time, I do not like that she smokes, and I want to spend time with my REAL Family. Please can I have a say. It would mean a lot.

From: McKayla Ann Locke

Age: 9

Gender: girl

[75] I was not impressed that Ms. Sherrington held this letter back from the Applicant and her counsel until I directed her to give them a copy. I find that she was using the letter as a litigation tactic which is not the same thing as sincerely honouring her child’s wish to have a say in the matter. Someone must have told McKayla that she would have a say when she is twelve years old, and the inference may be drawn that it was her mother who did so.

[76] I find that Ms Sherrington has made it well known to McKayla that she no longer likes or approves of the Applicant. Ms. Sherrington has also made her personal views very clear to McKayla’s counselor, Dr. Moncion. She has told Dr. Moncion that Laura is not healthy mentally, she has no morals and that she does not want her to have access to her daughter. She complained in the summer that Laura was laying a guilt trip on McKayla. McKayla subsequently used some of her mother’s same language in her private discussions with Dr. Moncion. McKayla told Dr. Moncion, Mom said it and I agree.

[77] Ms. Sherrington has also asked McKayla what she would think of activity based visits with the Applicant. She testified that McKayla was not enthusiastic but did not reject the idea out of hand. McKayla said, I guess so. She asked if her mother would come with her. Ms Sherrington’s own view is that this would be the best approach for now and might succeed if Laura could back off and be a friend or aunt figure to McKayla, not a mother figure.

McKayla’s Counselor, Dr. Moncion

[78] Dr. Moncion is a registered clinical psychologist licensed to practice in Ontario. Her practice focuses on children and adolescents. She was retained by the Respondents in late 2010. They were concerned that McKayla was experiencing stress as result of the fallout from the separation between the Applicant and Mr. Locke. They wanted Dr. Moncion to provide McKayla with a place to express her feelings openly. Dr. Moncion testified at court as to her observations of McKayla and with respect to statements made to her by McKayla, but not as an opinion witness.

[79] McKayla saw Dr. Moncion three times in 2010, and then once every three or four weeks starting in April 2011. Her initial observations of McKayla were that she was bright, communicative, and comfortable separating from her parents and discussing her time spent with each of them. Overall McKayla seemed happy with her life as it then was.

[80] Starting in April 2011 McKayla expressed less interest in going to see the Applicant. Her reason was that she felt she was missing out on family activities at her parents’ homes. McKayla suggested one visit per month might be good. She also mentioned that the Applicant asked her lots of questions about her time at her parents, which made her uncomfortable.

[81] In May Mr. Locke reported to Dr. Moncion that the transitions for visits were going better. “Easy” is the word he used.

[82] In June, McKayla complained about being forced to visit and wanted a different day so that she would not miss out on weekend activities. In the summer she reported not having wanted to go to see the Applicant but after the fact, was more positive about the visit.

[83] Starting in the fall of 2011 McKayla expressed increasing anger and frustration with the visits. She told Dr. Moncion about the puppy, the birthday party incident and the struggle over her not being allowed to call her father. She was continuing to complain that she was “missing out” by being at the visits. Over the fall McKayla has become much more reluctant to go, and more negative about the Applicant. She described to Dr. Moncion the beginning part of visits where she would show her anger and frustration at the Applicant but from what she told the counselor, if McKayla stayed and was not taken home, after an hour or two she it would be “okay”.

[84] In her visit the week prior to the trial McKayla told Dr. Moncion that she just does not want to visit the Applicant. Dr. Moncion observed McKayla as being in a great deal of stress.

[85] The Applicant was unaware of the involvement of Dr. Moncion until shortly before the trial. She made arrangements to meet her and to provide her with additional information. It is significant that the Respondents had not provided Dr. Moncion with a copy of the OCL report. They had told her what the recommendations were as pertained to themselves, but said nothing about what had been recommended for the Applicant and McKayla. I find that Dr. Moncion would have been assisted in her role as counselor for McKayla by knowing the full content of the OCL report. She would have been better able to assist McKayla had she known the status of her relationship with the Applicant up until March 2010 as documented in the OCL report. The Respondents must have been aware of this and I infer that they preferred that Dr. Moncion address the current state of affairs without having the “before” picture showing the extent of the deterioration in the relationship. My impression is that they did want Dr. Moncion to counsel their daughter with respect to her current troubled relationship with the Applicant, but did not provide her with the full picture that might have inclined her to make efforts to restore that relationship.

Analysis

[86] The Applicant seeks an award of joint legal custody shared by her and the Respondents. She asks for access to McKayla two days per week consistent with the initial arrangement worked out between her and Mr. Locke immediately following their separation. In addition, she asks the court to impose an additional period of make up access with McKayla as a penalty for Mr. Locke’s contempt.

[87] Her claim is founded upon the premise that she is an acknowledged mother to McKayla, she had a clearly established primary parenting role in McKayla’s life and that her legal entitlement should be determined on the basis of this status. The Applicant submits that both Respondents have engaged in alienating behaviour designed to end her relationship with McKayla, and that the court should respond in the same way as it would to alienating behaviour from one biological parent against another. She submits that an award of time consistent with the temporary order and the recommendations of the OCL have already been proven by intervening events to be inadequate to protect her relationship with McKayla.

[88] The Respondents submit that at present the best arrangement for McKayla is to continue in their shared custody and to have two activity based visits with the Applicant each month. They say that the Applicant is focused on what she wants rather than on what is best for McKayla. They deny trying to alienate McKayla from the Applicant and point to the fact that the relationship remained good up to March 2010, and even until April 2011, and that they allowed access even when no court order required them to. In their submission the Applicant has caused the deterioration in the relationship because she has not adapted to McKayla’s new reality and has been too focused on asserting what she believes are her rights in relation to McKayla.

[89] The development of the Applicant’s argument begins in Chartier v Chartier, [1998] S.C.R. No 79. This case dealt with the financial obligation of a step-parent to a spouse’s child on divorce. In that context the court approved the child focused approach taken by the Alberta Court of Appeal in Theriault v Theriault (1994), 1994 ABCA 119, 2 RFL (4th) 157:

Our society values parenthood as a vital adjunct to the upbringing of children. Adequate performance of that office is a duty imposed by law whenever our society judges that it is fair to impose it. In the case of the natural parent, the biological contribution towards the new life warrants the imposition of the duty. In the case of a step-parent, it is the voluntary assumption of that role. It is not in the best interests of children that step-parents or natural parents be permitted to abandon their children, and it is their best interests that should govern. Financial responsibility is simply one of the many aspects of the office of a parent. A parent, or step-parent, who refuses or avoids this obligation neglects or abandons the child. The abandonment or neglect is as real as would be a refusal of medical care, or affection, or comfort, or any other need of a child.

[90] The Supreme Court also stated at paragraphs 32 and 39:

• Once a person is found to stand in the place of a parent, that relationship cannot be unilaterally withdrawn by the adult.

• Spouses are entitled to divorce each other, but not the children who were part of the marriage. The interpretation that will best serve children is one that recognizes that when people act as parents toward them, the children can count on that relationship continuing and that these persons will continue to act as parents toward them.

• Once it is shown that the child is to be considered, in fact, a "child of the marriage", the obligations of the step-parent towards him or her are the same as those relative to a child born of the marriage with regard to the application of the Divorce Act. The step-parent, at this point, does not only incur obligations. He or she also acquires certain rights, such as the right to apply eventually for custody or access under s. 16(1) of the Divorce Act.

[91] Chartier clearly establishes the inability of a step parent who had stood in the place of a parent to a child to unilaterally withdraw from that relationship, thereby avoiding any ongoing financial responsibility to the child. The principles established in Chartier to prevent unilateral withdrawal from a child’s financial support ought not to be taken as providing a step parent with a particular status or entitlement to custody or access. Those issues must always be determined on the basis of the child’s best interests and not by reference to parental status or entitlement. The Applicant need not rely on Chartier to say that Mr. Locke may not unilaterally end her relationship with McKayla if continuing it is in the child’s best interests just because he is the biological parent and she is the step parent.

[92] There is obiter dicta in Cook v Cook, 2000 14361 (NS SF), [2000] NSJ No 19 (SC) that describes a potential problem that could arise if a status of step parent conferred an entitlement to access independent from a consideration of the child’s best interests:

34 In offering that interpretation, I find it to be useful to analyze the meaning of the words "in the place of" in the context of a joint and relatively equal sharing of custody of children. Assume that a couple who share the custody of their children relatively equally both eventually re-marry. The children then have four potential parents, two as natural parents and two as step-parents. Both step-parents are likely to (for the time while the children are in that household) perform roles that had been previously performed by the absent natural parent. If the words "in the place of" are interpreted to mean "in addition to" rather than "in substantial replacement of and substitution for", it would be relatively easy for both step-parents to meet the test. Where both step-parents have the necessary involvement there would be no logic in choosing one step-parent over the other for parental status and it would follow then that four sets of access rights would exist thereby dividing children's time unworkably. The same result could follow in custody/access arrangements that are not equal.

[93] In terms of a child support claim the court in Cook suggested that the support obligation of a stepparent should be limited to cases where that person assumed a parental role in substantial replacement of the natural parent. The Respondents say that the Applicant does not meet this threshold because she did not replace either natural parent rather participated in addition to them. In my view this approach does not fit well into the law of custody and access. These issues are always governed by an appreciation of the child’s best interests and not by hard and fast rules such as whether a step parent’s relationship with a child is in addition to or in replacement of that of one of the biological parents.

[94] Moores v Feldstein, 1973 535 (ON CA), [1973] 3 OR 921 (CA) was a cutting edge decision when it awarded custody of a child to non biological parents against the claim of the biological mother. The mother had placed the child with third parties a few days after birth. Four years later she sought to have the child returned to her. The Court of Appeal held that it was a misapprehension of the law to place greater weight on a so called parental right to custody and that the child’s welfare was the paramount concern. The court stated at paragraph 45 :

45 …Although in most cases it is to be expected that a child will benefit by the ties of affection of a parent and what naturally flows from it, that must be a question of fact in every case, and I do not think that I am bound by precedent to proceed on the assumption that it is inevitably so.

[95] In 2008 CarswellOnt 5403 (CJ) the father argued that as biological parent he had a higher right to custody than did an aunt of the child. The court stated at paragraph 31:

31 There is no hierarchy of rights in considering the best interests of children under the Act. To place emphasis on parental rights may diminish the importance of the attachment process in the healthy emotional development of children. If there is any right, it is the right of the child to maximize his or her attachment and emotional development and to minimize attachment uncertainties, regardless of a blood relationship.

[96] These cases correctly state that all decisions with respect to custody and access are to be determined on the basis of the best interests of the child having regard to the facts in each case. Neither parental status nor step parent status confers any presumed right or entitlement to custody or access to a child.

[97] The Applicant has also drawn my attention to A.A. v B.B. and C.C. 2007 ONCA 2, 2007CarswellOnt 2 (C.A.), where the Court of Appeal recognized that a child may have three parents and made a declaration of parentage to give effect to that recognition. A and C were female same sex partners. They wanted to start a family and asked B to father a child with C. A’s application for a declaration that she was a parent of the child was granted. The application judge had found that the child was thriving in a loving family, that the applicant was a daily presence in his life fully committed to the parental role and that the two biological parents also recognized her equal status with them. On the basis of these facts the Court of Appeal made the declaration of parentage:

35 Present social conditions and attitudes have changed. Advances in our appreciation of the value of other types of relationships and in the science of reproductive technology have created gaps in the CLRA's legislative scheme. Because of these changes the parents of a child can be two women or two men. They are as much the child's parents as adopting parents or "natural" parents. The CLRA, however, does not recognize these forms of parenting and thus the children of these relationships are deprived of the equality of status that declarations of parentage provide.

37 It is contrary to D.D.'s best interests that he is deprived of the legal recognition of the parentage of one of his mothers. There is no other way to fill this deficiency except through the exercise of the parens patriae jurisdiction. As indicated, A.A. and C.C. cannot apply for an adoption order without depriving D.D. of the parentage of B.B., which would not be in D.D.'s best interests.

There were no issues of custody or access raised in A.A. Conversely a declaration of parentage is not sought by the Applicant here.

[98] The Applicant submits that her case is like those involving same sex couples, one of whom has a biological child with the intention that the child will be their child. 2009 CarswellAlta 1104 (QB) is a case where a male same sex couple cooperated with a female same sex couple in order to produce a child for each couple. One man fathered two children to the same woman by assisted conception and each couple had one of the children living with them. The male couple eventually separated and the non biological father applied for access. The court considered him to be a father and based its decision on its appreciation of the child’s best interests. The applicant was awarded reasonable access and in view of the fact that there had been no contact for a period of time professional assistance to help with the initial transition was directed. The court stated at paragraphs 103 and 105:

103 …it is my view that S.' emotional health may be jeopardized in the long run if she does not have this parental relationship re-established. She has been torn away from someone whom she came to love and played an integral part of her conception, birth, and early life. As noted by Justice Moen in BB. v. L.D. 2002 ABQB 429 at para. 37, the court will not countenance this occurring.

105 With respect to Ms. D.'s [the biological mother] concerns about S. being torn in three - in my view this is an unreasonable overreaction. Unfortunately today many children wind up with unusual family structures as a result of the prevalence of divorce and re-marriage. Here, S. started out in a very non-traditional family that the adults in this case created, the break up of which has created a situation where she has much more family than many. This should not result however in having one of those family members excluded from keeping up a relationship with S. In my view, proper professional monitoring to help in this regard should assist and it is not a reasonable reason to deny Mr. H. access.

[99] The extent of access is not apparent from the decision. The court directed that a parenting coordinator be engaged who would work with a situation where the biological father is treated as the custodial parent and both the applicant and the biological mother as access parents. The court stated that once transition issues are dealt with this should include, “some regular weekday, weekend and holiday access.”

[100] Our case is different in that the two biological parents have always shared legal and residential parenting of McKayla. It was never intended by McKayla’s biological parents that McKayla would become the child of the Applicant and Mr. Locke, with Ms. Sherrington relegated to a lesser role. Despite these differences the similarity remains that the Applicant had played a primary role in McKayla’s life during her marriage to Mr. Locke, and that subsequently the relationship has been damaged. H. v. D. supports the proposition that consideration should be given to an award of access to the Applicant with transitional assistance in re establishing the once close and loving relationship.

[101] The Respondents submit that the Applicant’s claim should be treated like a grandparent case where an application for access that is opposed by custodial parents is denied unless the parents’ decision is clearly shown to be detrimental to the child. The leading case in Ontario is Chapman v Chapman 2001 24015 (ON CA), 2001CarswellOnt 537 (C.A.). Parents are generally entitled to decide who may have access to their children. Courts have upheld parental decisions to terminate access where the grandparent overstepped the reasonable boundaries of his or her role as a grandparent: Blackburn v. Fortin and Lepage 2006 (S.C.J.); 2011 CarswellOnt 1118 (S.C.J.).

[102] In Diab, one of the central reasons for denying the grandmother’s claim for access was the high level of hostility between her and the child’s father. The court stated in part at paras. 34,38 and 39:

34 …I was left in no doubt that the hostility between the parties is manifest and strong and its presence and its impact on Andrew's emotional well-being is a major factor in making my decision.

38 …the child [ought] not be involved in or exposed to any conflict and the grandparent must respect the appropriate boundaries of the grandparental role versus the parental role. In the present case, Andrew has been adversely exposed to this conflict and the maternal grandmother has been unable to respect those boundaries.

39 …This court is not prepared to assign any blame as to the origins of any of these clinical issues; however, it is unequivocal that Andrew's progress will be impeded if he is once again thrust into a forum of conflict and hostility between the dominant adults in his life. This court was not persuaded that contact between Andrew's father and wife and Andrew's maternal side of the family could be accommodated without the animosity that has characterized their relationship since its inception once again becoming palpable.

Diab was not a typical grandparent case. This grandmother had been very closely involved in the child’s day to day life. The child and mother lived in an apartment in the grandmother’s home for six years prior to the mother’s death. The maternal family was extensively involved in all aspects of the child’s care during those years. After the mother’s death it was agreed that child would live with his father. Since then there had been no access allowed. The trial judge based his decision on the best interests of the child as he found them to be at the time the case was before him. The need to protect the child from exposure to conflict took precedence over any status or prior care giving role that the grandmother may have had.

[103] It may be convenient to lump decided cases into categories such as “grandparent cases” or “step parent cases” or “same sex couple cases”, but the reality is that there are no hard and fast categories in the law pertaining to custody and access. A grandparent who has stepped into a full time primary parenting role presents a different type of case than a long distance grandparent with limited actual connection to the child. A parent in a same sex couple may or may not be a psychological parent depending on the actual circumstances of the child’s birth, the commencement and duration of the couple’s relationship, and myriad other factors.

[104] In my view, the statutory direction to determine the child’s best interests should be accomplished by a careful consideration of the facts in each case rather than by focusing on the status of each adult in relation to the child.

[105] The Applicant invited me to consider several cases where judges had reviewed the expert evidence given in testimony before them. These included discussions of the importance of attachment, how to identify it and the consequences to a child of breaking a significant attachment. Also included were cases where an expert had provided the court with a definition of parental alienation, the signs that it may be in process, and how and when to combat it. I am unable to rely on the expert evidence in those other cases as if it were evidence in our case. I can consider whether the evidence before me is persuasive that one or both of the Respondents have tried to turn McKayla against the Applicant.

[106] I have no doubt that the Respondents’ views of the Applicant have become known to McKayla. She knows that her father and mother no longer like or get along with the Applicant. They both told McKayla to call the Applicant by name, not Momma, and over time McKayla has complied. Ms. Sherrington told McKayla that the Applicant is no longer her step mother. McKayla is clearly upset by the knowledge that the Applicant smokes; she has referred to this twice in written form. Her father told her this. McKayla knows litigation is in process and she believes that when she is twelve years old she is entitled to “have her say”. She clearly knew the trial was in progress. According to her mother, McKayla is well aware of the conflict and distress that the issues in litigation are causing her parents. McKayla’s comment that this is destroying her family may reflect her own observations or things she has overheard or been told at home. Either way her parents have failed to protect her from knowledge of their own views and dislike for the Applicant. This may be even more distressing and confusing for McKayla than might otherwise be the case having regard to fact that both parents so strongly encouraged this relationship in first place. I have no doubt but that McKayla’s views have been influenced by her parents.

[107] It is striking that during the clinical investigation in 2010 McKayla’s relationship with the Applicant remained strong and she felt free to discuss her time spent with the Applicant in a positive and free manner with both of her parents. This was after the Applicant had commenced her claim for custody and before any access had been ordered by the court. Until the spring of 2011 McKayla’s main complaint to Dr. Moncion about access to the Applicant was that she felt she was missing out on special activities at home. It appears that the decision to move the access from Wednesdays to Fridays may have had this unintended consequence.

[108] McKayla has also been influenced by the Applicant. She has reacted negatively to being reprimanded for not saying I love you, for not calling her Momma and for being prevented from calling her father on the telephone. She did not appreciate being shown the Applicant’s binder of cards and letters. McKayla only became vigorously resistant to access during the summer of 2011 when these things occurred.

[109] This is not to condone the Respondents’ behaviour. Mr. Locke is in contempt of the court order for access. It is clear that neither parent came close to doing their utmost to foster the relationship. Their personal, punitive feelings towards the Applicant were allowed to rub off on the child. Both parents clearly want to restrict the relationship but both also say that some relationship should continue. I am not convinced that they are sincere about this. If they are, they have not taken account of the strength of McKayla’s loyalty to them and the extent to which she will mirror their own views of the Applicant in resisting access.

[110] All parties and McKayla have asked the court to take into account the child’s wishes. McKayla’s views and preferences have changed dramatically over time. The transition in McKayla’s relationship with the Applicant from the OCL investigation in March 2010 to the trial in November 2011 has been stark. In March 2010 she was happy with her life and wanted to spend more time with the Applicant. Recently she has told her counselor that she does not want to see the Applicant at all.

[111] The note McKayla delivered to the Applicant on November 11, 2011 is instructive. I am sure that going to her house has made McKayla feel sad and angry. The impression I formed was of a little girl screaming in frustration over the situation in which she finds herself. In her letter to the court dated November 20, 2011 McKayla states that she does not like what is happening to her family, “Laura” is destroying her family, and she does not want to see the Applicant again and would prefer to spend that time with her “real” family.

[112] McKayla is a bright, articulate and capable nine year old child. Her views are an important consideration for me in considering what will be in her best interests. In addition to the fact of the notable decline in her relationship with the Applicant I have also been able to reach other conclusions based on what McKayla has said and written. It is clear that her primary loyalty is to her parents. McKayla knows that her life has changed but does not perceive acceptance of this on the part of the Applicant. In addition, the Applicant questions her about her parents and McKayla’s resents this intrusion. McKayla wants to put an end to the conflict that surrounds her and she believes that the way to do this is to end her relationship with the Applicant. McKayla appears to have forgotten how close and loving that relationship once was. Contrast her description of the Applicant as “this lady named Laura that used to be my stepmother” to the warm affection observed by the OCL investigator in March 2010. I have concluded that McKayla’s current views do not bring into account the importance to her of that former relationship and the value to her in maintaining it in some form. McKayla does not appreciate that her parents share responsibility for the stress and tension she is experiencing. Despite the negativity of her parents towards the Applicant, McKayla continued to enjoy her visits with her and their relationship stood up until spring 2011. The tipping point was reached during the summer and early fall when the Applicant’s behaviour made it clear to McKayla that she could not adapt to a new form of relationship with her.

Conclusions

[113] Joint custody would be untenable in this case. There is no basis of trust or ability to cooperate remaining that would enable these three people to successfully co parent McKayla in future. Nor do I agree that imposing joint legal custody would assist the Applicant to maintain a relationship with child. Rather it is likely to fuel more conflict by feeding the competition between the parties.

[114] Since her parents separated in 2003 McKayla has always lived in two homes, never three. The temporary bird nesting arrangement did not require McKayla to move houses during the four days each week that were shared between the Applicant and Mr. Locke. An arrangement of 2 days, 2 days, 3 days cannot easily be replicated amongst three households without creating significant disruption for the child.

[115] The Applicant’s relationship with McKayla was still important and positive for the child in March 2010 and even until spring 2011. The conflict between all the adults involved has contributed strongly to the deterioration of that relationship. McKayla is under stress and tension that cannot be good for her. A court order cannot solve the problems that have arisen in these relationships. It can only decide what form of contact, if any, between McKayla and the Applicant is in the child’s best interests in the current circumstances.

[116] McKayla turned strongly against the Applicant when she showed McKayla her insistence that the basis of their relationship must be that she is McKayla’s Momma. McKayla cannot handle that. If the Applicant is able to accept a form of relationship with McKayla that does not depend on parental status, then there is much to be valued that may be restored between them. I expect that this may prove difficult for the Applicant who is so invested in her role as McKayla’s Momma. My own view is that she will require counseling assistance in order to make this transition. If she cannot do so continuing the relationship may prove not to be in McKayla’s best interests.

[117] The fact that the Applicant is also the mother of Adrian, McKayla’s half brother, and as such is going to continue to figure in her life, underlines the importance of the effort to restore a positive relationship between them in some form.

[118] As a condition of exercising access to McKayla the Applicant is required to undertake a course of counseling to assist her in establishing a non parental basis for an ongoing relationship with McKayla. She shall advise the court and the Respondents of the name and qualifications of her counselor and the commencement date of the counseling. She shall provide a copy of these reasons to her counselor who shall confirm receipt of same to the court and the Respondents. These steps shall be taken within two weeks of the date of this order.

[119] The Respondents have communicated too much of their own negativity about the Applicant to their daughter. Their reaction to her law suit has been punitive not only to the Applicant but also to McKayla. She is at the point of losing a once valuable relationship that her parents fostered and encouraged. Their conduct to date suggests that they may also require professional help to learn to shelter their daughter from their own feelings for her sake. One of the first steps they must take is to give McKayla their permission to like the Applicant.

[120] Mr. Locke has been found in contempt of the court ordered access. In order to purge his contempt he is required to undertake a course of counseling to assist him in learning how to protect his daughter from his personal negative views of the Applicant and how to enable McKayla to regain a comfortable relationship with her. He shall advise the court and the Applicant of the name and qualifications of his counselor and the commencement date of his counseling. He shall provide a copy of these reasons to his counselor who shall confirm receipt of same to the court and to the Applicant. These steps shall be taken within two weeks of the date of this order.

[121] All three parties shall meet with the OCL clinical investigator within two weeks of this order. She shall be provided with a copy of these reasons in advance of the meeting. She is tasked to assist the parties to prepare for a joint meeting with McKayla during which McKayla will be told what the terms of access with the Applicant are going to be and that this access regime has the support of them all. At this joint meeting with McKayla the Applicant shall tell McKayla to feel free to call her Laura and that it is completely up to McKayla to decide on any words or signs of affection towards her. The Applicant shall also reassure McKayla that she will not refer to herself as McKayla’s mother or momma. The Respondents shall both tell McKayla that they agree that she should have an ongoing relationship with the Applicant and that McKayla should accept that they have decided this with her best interests at heart. The clinical investigator shall assist the parties in preparing for this meeting and shall supervise the meeting to ensure that it unfolds as directed and in a calm, polite and firm way that is also supportive of McKayla.

[122] This joint meeting with McKayla shall take place within 3 days of the parties’ initial meeting with the clinical investigator. Any charge for these services shall be divided equally amongst the parties.

[123] The Respondents are required to continue to make counseling with Dr. Moncion available for McKayla. Dr. Moncion shall be provided with a copy of these reasons. McKayla shall meet with Dr. Moncion forthwith upon the release of this decision. Dr. Moncion is specifically requested to explain to McKayla that the court took her views and wishes into account and decided that it was in her best interests to work at renewing what had previously been a very close and loving relationship albeit on a different foundation than had previously existed.

[124] The Respondents shall insure that McKayla attend at least one session every three weeks with Dr. Moncion during the next four months and thereafter in their discretion on an as needed basis.

[125] McKayla’s level of distress with the access is such that the access that is in her best interests now is limited. It shall occur on alternate Sunday afternoons between 1 pm and 4 pm. This access shall take place outside the Applicant’s home in the form of a recreational activity, meal, museum visit or some other community activity. The parent responsible shall deliver McKayla to the appointed location and shall leave immediately. The Applicant shall return McKayla to the appropriate parent’s home at the conclusion of the visit. The first visit will commence on the first Sunday after the joint session has been held with McKayla.

[126] After a series of four Sunday visits, the access shall increase to one Saturday night per month on an overnight basis from 4 pm until 10:30 Sunday morning, and on the alternate Sunday afternoon for the three hours noted above. If McKayla is registered in any activities during access time then the Applicant shall take her to the scheduled activity.

[127] The intent of this order is that the Applicant and McKayla are assisted in re-establishing a special, meaningful relationship but not a parent child relationship. The original relationship between the Applicant and McKayla has changed and the reality of McKayla’s life is such that it cannot be resumed in its prior form. Yet, the relationship was such a close, important one, fostered with the specific support of both of her parents that it is in McKayla’s best interests to give it the opportunity to continue on this new basis.

[128] I will remain seized of the case for one year on an as needed basis to facilitate the implementation of the order. Should either Ms. Johnstone or Mr. Locke wish to end the counseling obligation imposed by this order, I require a letter from their counselor detailing the work that has been done and the counselor’s opinion on the accomplishment of the goals for counseling set out in these reasons.

Financial Issues

Support for Adrian

[129] The mother’s claim for child support commences from July 1, 2009. There is no dispute between the parents with respect to that date, their incomes, the cost of day care or payments made to date by the father. The sole issue is whether the child support should be calculated based upon the father’s actual income in each year or whether it should be calculated based upon his prior year’s income. The father submits that to date he has paid based on the prior year’s income and that this is convenient and represents at least a de facto agreement between the parties. The mother denies the existence of any agreement and submits that child support ought to be paid based on current income.

[130] I agree. Section 2(3) of the Child Support Guidelines requires that the most current information is to be used. Calculation of a payer’s annual income for support purposes should therefore be based on current not previous information. Parents are free to agree to a different arrangement, but there has not been an agreement here. Nor is this a case where it is difficult to know with reasonable accuracy what Mr. Locke’s income will be in any given year.

[131] Accordingly based upon the father’s income earned in each year commencing in July 2009, based on his percentage share of the after tax cost of day care, and giving credit for the amounts paid, I accept the mother’s calculation that child support arrears are owing to her of $6147 calculated to the end of 2011.

[132] Commencing January 1, 2012 ongoing support for Adrian is payable by the father in the amount of $763 per month based on his annual income of $86,054 plus $233 per month for his share of the after tax cost of day care, for a total of $996 per month.

Joint Line of Credit

[133] Ms. Johnstone and Mr. Locke agreed to a property settlement that had the net effect that the Applicant would be solely responsible for paying off the balance due on their joint line of credit in the amount of approximately $36,000. The sole remaining issue for the court is whether she should be required to remove Mr. Locke’s name from the line, failing which, to discharge the full balance owing forthwith.

[134] Ms. Johnstone submits that she is unable to secure his release by the bank and lacks the wherewithal to discharge the balance owing. Mr. Locke submits that she is well able to do so. Her income without taking child support into account is $145,000 per annum. She shows an excess of income over expenses of almost $2000 per month. Some of her expenses are high, such as for groceries, massage therapy, spa, hair, beauty and so on. He submits that she can easily free up several hundred dollars per month of additional cash flow from these budgeted expenses.

[135] I agree that Ms. Johnstone’s income and expenses are such that she should be able to obtain the consent of the bank to release Mr. Locke from liability on the joint line of credit. I order that she do so within 60 days and that she include Mr. Locke in the negotiations with the bank to the extent that the arrears of child support he owes her will be paid directly to the bank as part of this transaction.

[136] If Ms. Johnstone has not obtained Mr. Locke’s release from the line of credit within the time specified, then I order that the arrears of child support shall be paid by Mr. Locke towards the balance owing on the line of credit and that Ms. Johnstone shall forthwith pay off the remaining balance of it.

Costs

[137] In the event that the parties are unable to agree on the issue of costs I will receive written submissions from them. These shall not exceed four pages in length plus necessary attachments. Submissions from the Applicant are due on February 15. Submissions from the Respondents are due on March 1. The Applicant may deliver a brief reply within 5 further days.

Madam Justice J. Mackinnon

Released: January 30, 2012