COURT FILE NO.: F1612/10

DATE: 2014-04-02

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

MICHAEL COCHRANE

Applicant

– and –

NATASHA MYERS

AND

TERESA CAMPEAU

AND

EDWARD McSHERRY

Respondents

John A. Turingia

Counsel for the Applicant

Norman F. Williams

Counsel for Natasha Campeau

Martin Vamos

Counsel for Teresa Campeau

In-Person

HEARD: March 3,4,5,6,7,10,11,12,17,18,19,20,21,24, 2014

THE HONOURABLE MR. JUSTICE PAZARATZ

[1]. In a custody trial the “status quo” can become a double-edged sword:

a. The person who already has the child starts with an obvious advantage.

b. But if the existing arrangement hasn’t gone so well, it may provide a wake-up call for what we don’t want to perpetuate.

[2]. That was an issue in this 14 day trial in relation to Parrish Myers born May 9, 2009. She is almost five years old. I will refer to her as Parrish.

THE PEOPLE & THEIR REQUESTS

[3]. As I briefly summarize the remaining participants in this narrative, if you have trouble following along – imagine how confusing all of this must be to a young child.

[4]. Her father is Michael Cochrane, age 29. I will refer to him as the father. His custody claim is supported by a report prepared by Karen Armstrong, a social worker with the Office of the Children’s Lawyer (“OCL”). I will refer to her as Armstrong. Unfortunately that report, prepared pursuant to s.112 of the Courts of Justice Act., was two years old by the time the matter reached trial.

[5]. The father’s custody dispute involves maternal grandparents Teresa Campeau (age 41) and Edward McSherry (age 48). I will refer to them as Teresa and McSherry. Parrish has been in Teresa’s care since July 2010. Teresa is seeking custody.

[6]. Parrish’s mother is Natasha Myers, age 24. I will refer to her as the mother. She has many personal issues. She supports Teresa’s custody claim. She only seeks access.

[7]. The mother is currently pregnant with the child of her live-in partner and fiancé Michael Dowling. I will refer to him as Dowling.

[8]. McSherry is not the mother’s biological father, but he always assumed the role of her father. The mother’s biological father is David Myers. I will refer to him as Myers.

[9]. McSherry had originally claimed custody jointly with Teresa. But they separated in October 2013. McSherry is now living with a woman I will refer to as C.M.

[10]. McSherry now supports Teresa’s custody claim. He supports the mother’s access claim. He also wants access himself.

[11]. Teresa and McSherry have 10 year old twin daughters who I will refer to as Alexis and Billie (or “the twins”). The twins are actually Parrish’s aunts, although the six year age difference makes them more like siblings. Alexis and Billie continue to reside with Teresa and Parrish.

[12]. The father has a two year old son of another unmarried relationship, born June 5, 2011. I will refer to that child as Joshua. Joshua lives with his mother Shannyn Peterson who I will refer to as Shannyn. Shannyn has two older children from other relationships.

[13]. The father lives in the Burlington home of his parents. I will refer to them as Susan and Michael Sr.

CHRONOLOGY

[14]. The father and mother met on a computer dating site in 2008. They had sex twice, but didn’t really date or have any sort of relationship.

[15]. The mother says she advised the father as soon as she found out she was pregnant. He says she didn’t tell him until seven or eight months later, and he immediately questioned paternity.

[16]. After Parrish was born the parents decided to try living together. After almost a year together they separated in May 2010, around Parrish’s first birthday.

[17]. Upon separation the father went back to living with his parents. Parrish remained with the mother. That’s when the summer of 2010 became complicated:

a. After separation, the mother allowed the father regular access including unsupervised overnight visits.

b. By June 2010 the mother started living with her long-standing intermittent boyfriend Dowling. The mother had also been dating Dowling immediately before and after her original two sexual encounters with the father in 2008.

c. Even though she had gone to live with Dowling, the mother continued to have sexual relations with the father during the summer of 2010.

d. The mother and Dowling both had long-standing (and debilitating) problems with alcohol abuse. They each also had multiple other problems – the mother’s mostly relating to mental health issues; Dowling’s mostly related to criminal and violent behaviour.

e. By the end of July 2010 the mother realized she was in no physical or mental state to care for a young child. There was too much chaos in the household she shared with Dowling. So she relinquished control of Parrish to Teresa.

f. In the meantime relations between the mother and father cooled. She became frustrated that he was giving her mixed messages about whether he wanted to reconcile. He worried that based on the mother’s actions and words, Dowling (or perhaps someone else) might actually be the child’s father.

g. The father demanded DNA tests -- which eventually confirmed paternity. But in the meantime the mother and Teresa (who now had care of the child) cut off all access.

[18]. By the fall of 2010 bitter multi-party litigation was unfolding:

a. The father commenced a custody application on September 10, 2010 naming the mother as the Respondent.

b. On December 15, 2010 the mother attended court with Teresa and consented to a temporary order allowing the father and his parents’ access to Parrish in time for Christmas. At that point he hadn’t seen the child in about five months.

c. But when the father and his parents attended the maternal grandparents’ home to pick Parrish up for access, McSherry refused to let them see the child.

d. When the father returned the matter to court a few days later, McSherry attended in person and argued the December 15, 2010 order was improper because it directed the mother to allow access – but the mother no longer had custody of the child. Teresa had custody, pursuant to a handwritten note dated September 7, 2010. And Teresa hadn’t consented to the access order (even though she was present in court when the mother consented -- so clearly Teresa was aware of everyone’s expectations.)

e. The motions judge agreed Teresa should have been a party. Eventually both Teresa and McSherry became parties and they jointly claimed custody, with the mother only seeking her own access.

[19]. Since early 2011 the father has been having regular access:

a. Initially it was non-overnight and supervised by at least one of his parents.

b. Times gradually expanded. Restrictions were gradually lifted.

c. For more than a year he has been seeing Parrish at his parents’ home (where he still resides) on alternate weekends from Friday 5 p.m. to Sunday 5 p.m.

OCL RECOMMENDATIONS

[20]. Pursuant to a May 19, 2011 order the OCL became involved, and on March 9, 2012 clinical investigator Armstrong issued her s.112 report. The recommendations:

a. Sole custody of Parrish to the father who would continue to reside at the home of his parents.

b. Teresa should have access alternate weekends Friday 5 p.m. to Sunday 5 p.m.

c. The mother should have access on the Saturday of these weekends in the discretion of Teresa.

d. The father should assume responsibility for transportation to facilitate access.

e. Teresa and the mother should be able to attend school functions, parent interviews, and receive copies of all school reports and also have access to all medical information including health card numbers.

f. The Christmas vacation should be shared equally between the father and Teresa (and McSherry), which may include time with the mother.

g. The parties shall refrain from making disparaging remarks about each other in front of the child.

TERESA & MCSHERRY SEPARATE

[21]. Initially Teresa and McSherry jointly claimed custody. But it was clear to the OCL investigator that Teresa was being proposed as the primary caregiver.

[22]. In any event, after the s.112 report was issued, Teresa and McSherry separated. McSherry moved out in early October 2013, leaving Teresa with Parrish, as well as their twin daughters Alexis and Billie.

[23]. On January 9, 2014 Teresa and McSherry settled their own family court case by way of a consent final order, negotiated without lawyers. Teresa was granted custody of Alexis and Billie. McSherry was to have access as agreed between them.

RELIEF REQUESTED AT TRIAL

[24]. At the beginning of this trial each party identified the order they would be seeking:

[25]. The father adopted all but one of the s.112 report’s recommendations: He didn’t think he should do all the driving to facilitate access exchanges. He proposed that transportation be shared.

[26]. Teresa requested the following:

a. Sole custody of Parrish in her favour.

b. The father should continue to have access on alternate weekends from Friday 5 p.m. to Sunday 5 p.m. to take place at his parents’ home. Even if the father gets his own residence, the access should still take place at his parents’ home.

c. The father should continue to be responsible for all transportation.

d. Teresa should have discretion over any access by the mother or McSherry.

e. Teresa, the father, and the mother should be entitled to all third party information concerning schools.

f. The parties (or their “romantic partners”) should be restricted from making denigrating statements in the presence of the child.

g. In the alternative, if Teresa is not granted custody, she wants specified access.

[27]. McSherry requested exactly the same relief as his former spouse:

a. Custody to Teresa.

b. No change in the father’s alternate weekend access.

c. Teresa to have discretion over access by McSherry or by the mother.

[28]. The mother requested the following:

a. Parrish to remain with Teresa.

b. The mother and father to have access as currently in place. The father would have alternate weekends. The mother would have access as arranged through Teresa.

c. She requested a right of first refusal if the father is not going to be personally exercising access during his times.

d. She said the father owes her three months of child support.

WITNESSES AT TRIAL

[29]. The following persons testified at trial (in order):

a. The father

b. Sandra Mrzic (Parrish’s junior kindergarten teacher)

c. Armstrong

d. Susan

e. Michael Sr.

f. Melanie Thayer (Father’s neighbour & proposed daycare provider).

g. McSherry

h. Shannyn

i. The mother

j. Dowling

k. Teresa

l. Michelle Taylor (CAS worker)

MOTIONS

[30]. The trial took a number of unexpected turns.

[31]. Late on day five:

a. During McSherry’s re-examination he provided new details of his access proposal.

b. He wanted Parrish with him on alternate weekends. He proposed to exercise access in the home of C.M., a woman he has been living with since January 2014.

c. There had been no previous mention of C.M. being involved in this case. She wasn’t in the picture when the OCL prepared the s.112 report. She wasn’t on anyone’s list of witnesses.

d. Upon hearing that the father proposed that C.M. would play an integral part in his access proposal, I immediately disclosed in open court that by coincidence in 2012 I presided over a child protection case involving C.M. – and that I had made adverse findings against C.M.

e. This resulted in counsel for the mother bringing a motion that I recuse myself, on the basis that I had independent knowledge about an issue which was to be determined in the trial. The motion was supported by Teresa and McSherry, and opposed by father’s counsel.

[32]. However, after an extensive review of all of the relevant considerations and legal arguments, consensus was reached as to how we could proceed:

a. The parties agreed that this trial was primarily a custody dispute between the father and Teresa. The information about McSherry’s current partner C.M. was irrelevant to this primary issue. It was irrelevant to any claims being advanced by the father, the mother, or Teresa.

b. McSherry’s only claim was for access, and his entitlement to access was never disputed by any of the parties. Specifics of his access would be determined after custody was determined.

c. McSherry’s best case scenario was access on alternate weekends. Again, the information about C.M.’s problems with CAS had nothing to do with the amount of access McSherry should have.

d. The only potential relevance of the newly discovered concerns about C.M. related to whether McSherry should be allowed to exercise access in her presence or in her home.

e. The parties were immediately able to resolve that discrete issue. McSherry agreed that whether I recused myself or not, he was consenting to a temporary without prejudice order that whatever access he is granted, it will not take place in C.M.s presence (or in her home). That restriction could be reconsidered – by another judge – after C.M.’s still-outstanding CAS case is resolved (likely later this year).

[33]. On that basis – there were no remaining triable issues which involved C.M. in any way – the motion for recusal was withdrawn, and on consent of all parties the trial continued.

[34]. At the beginning of day nine McSherry brought a motion to amend his pleadings to seek sole custody.

a. Day nine was a Monday.

b. McSherry complained that something had happened since day eight of the trial, which was a Wednesday.

c. Specifically, the father’s lawyer had distributed correspondence to counsel and McSherry. McSherry took offence at something the father’s lawyer said in that letter. I wasn’t told the details.

d. As a result, McSherry wanted to reopen his own evidence (which had already been completed). He wanted to reopen the entire custody case.

e. I asked him very specifically, and McSherry confirmed that the only new development – the only reason he wanted to now claim custody – was something that the father’s lawyer said in that letter.

f. Counsel for the father, the mother and Teresa all opposed McSherry’s request.

[35]. I declined the father’s mid-trial request to amend his case to claim custody and reopen the evidence:

a. This case had already been much delayed.

b. It was vitally important that Parrish’s situation be resolved.

c. The s.112 report was already two years old.

d. Ten witnesses – including the father, the mother, the OCL clinical investigator, and McSherry himself – had already testified at length. All of those witnesses would have to be recalled.

e. Completely changing the dynamics of the trial at this stage would significantly protract proceedings; add to the expense; and prejudice the other parties.

f. McSherry had ample time to formulate his position.

g. He confirmed he was only requesting access on day one of the trial. He confirmed it again on day five when the issue arose about his access not taking place in the presence of C.M.

h. His only stated reason for seeking such a profound amendment of his claim was that during a brief break in the trial an opposing lawyer sent a letter which offended him. This hardly fell into the category of “new, previously undiscoverable information”, or a change in circumstances which might otherwise justify broadening the scope of the custody trial.

i. He only notified opposing counsel of his new position, just before court started on day nine.

j. It is fundamental to the litigation process that lawsuits be decided within the boundaries of the pleadings. Rodaro v. Royal Bank (2002), 59 O.R. (3d) 75 (C.A.).

k. Rule 11(3) of the Family Law Rules provides that on motion, the court shall give permission to a party to amend an application, unless the amendment would disadvantage another party in a way for which costs or an adjournment could not compensate.

l. In Titova v. Titov 2012 ONCA 864 the Ontario Court of Appeal held that Rule 2 of the Family Law Rules grants a trial judge great latitude to adjudicate family law cases. In paragraph 48, the court stated that, particularly when the parties are self-represented, there may be circumstances in which unrequested orders may be made.

m. But granting the amendment sought by McSherry would be more than just a minor accommodation for a self-represented party. It would effectively mean the first eight days of trial were largely wasted. It would create overwhelming prejudice for the other parties – and the child.

THE FATHER

BACKGROUND

[36]. The father described his custody proposal.

a. He resides with his parents in their four bedroom Burlington home.

b. He plans to remain in the home for about two years, because he needs to pay off significant debts he has accumulated in relation to this court case.

c. Eventually he hopes to get his own residence for himself and Parrish.

d. Both of his parents testified that in the meantime he and Parrish are welcome to remain in their home indefinitely. The child has her own bedroom, furniture and belongings. It is a child-friendly neighbourhood with a park nearby.

e. For the past three years the father has been employed at Karmax in Milton, Ontario where he works a three shift rotation: two weeks of days, afternoons, and nights respectively, with weekends off. He described it as secure employment. In 2013 he earned $43,256.57.

CHILD CARE

[37]. The father said his employment schedule won’t interfere with his ability to care for Parrish:

a. Both of his parents also work, but their respective schedules allow them to help with Parrish. They are closely bonded to their granddaughter.

b. Neighbour Melanie Thayer testified she is a home daycare provider, and would be pleased to assist the father. She listed an extensive professional history dealing with social services, children, and teenagers. Her impressive qualifications were not challenged during cross-examination.

c. Thayer said she was very familiar with Parrish who plays with her own daughter. She described Parrish as a happy child, well cared for by the father and Susan.

d. The father and Susan spoke very highly of Thayer. And Shannyn (the mother of the father’s other child) described Thayer as a “fantastic woman” who is very loving and caring. “She’s all about kids.”

FATHER’S LITERACY

[38]. The father has a grade 12 education, but he admits he has limited literacy. His mother described him as reading at about a grade six level.

[39]. Pursuant to a temporary order the parties have been exchanging information about Parrish through a communication book which accompanies the child back and forth. The father and Susan both confirmed that because of his literacy problem, the father tells Susan what to write, and she records entries in the communication book.

[40]. Both the father and Susan denied that his limited ability to read would undermine his ability to assume custody of Parrish:

a. The father said for the foreseeable future he could get his parents to read any warning labels or instructions he couldn’t manage on his own.

b. He said if his parents weren’t available (or if they were no longer around) he could find others to help him. He is not completely illiterate. He just needs help.

c. He admitted he had not taken any steps to return to school to improve literacy.

[41]. Under cross examination Armstrong acknowledged she wasn’t fully aware of the father’s limited literacy when she conducted her OCL investigation and recommended that he be granted custody. She was only aware he had experienced some learning difficulties in school.

a. She agreed literacy would have been a factor for her to consider. She couldn’t speculate as to how much of a factor.

b. She said she would have to consider the extent to which an individual parent’s problems with literacy impacted on parenting skills.

c. She said an illiterate parent would need to develop strategies to compensate for their illiteracy, and reduce the impact on parenting.

d. She admitted she had not discussed with the father any programs or strategies to help with literacy skills. So she couldn’t comment on whether the father was taking appropriate or adequate steps.

[42]. The father’s academic limitations must be viewed in the context of related evidence concerning the other parties:

a. The mother also has a grade 12 education, attained at age 20 after a period out of school.

b. She worked for three months as a cashier from November 2007 to January 2008.

c. Since July 2010 – when she relinquished care of Parrish to Teresa – the mother hasn’t either worked or returned to school. She says she’s on a waiting list to start at Mohawk college. In the meantime she’s in receipt of Ontario Works.

d. Teresa is unemployed and reliant on the Ontario Disability Support Program (ODSP).

e. McSherry has a college education, and describes himself as having a very high I.Q. He hasn’t worked steadily for about nine years as a result of a serious injury. He was recently added to his new girlfriend’s OSDP entitlement. He also appears to be informally tinkering at car repairs.

[43]. Given the level of social responsibility and maturity the father has demonstrated – maintaining steady employment; earning a reasonable wage; having a driver’s licence and a car; maintaining financial obligations in good standing; having a stable residence – I reject the criticism by people who have done less with their lives that his overall life-skills are deficient. Speaking plainly, during the course of this 14 day trial, some of the things I heard about other people in Parrish’s life worry me a lot more than whether the father has trouble reading big words.

FATHER & DAUGHTER RELATIONSHIP

[44]. The father described the evolution of his involvement with Parrish:

a. During the child’s first year when he lived with the mother, he was actively involved as a father.

b. After they separated, he continued to exercise access for a couple of months – until Teresa and the mother both denied access for an extended period.

c. After paternity was confirmed and the father brought a custody application, the mother and her family embarked on a campaign to discredit him as a father, and distance him as much as possible from the child, using meritless accusations.

d. Once access was reinstated and gradually expanded, he continued to develop a close and loving bond with his daughter.

FATHER’S WEEKEND ROUTINE

[45]. The father testified his alternate weekend access routine with the child usually requires that he devote immediate – and sometimes extended – time to addressing her chronic problem with head lice. This was one of the major issues during the trial which I will deal with it below.

[46]. The father testified that after the head lice issue is addressed, the remainder of his weekend visits is extremely enjoyable:

a. Parrish is always extremely excited to see her father; happy to be coming to his home.

b. On Friday nights they do puzzles and have dinner.

c. Through the weekend, if the weather is good, they play outside.

d. Indoors they play puzzles and games.

e. He previously took her to “Monkey Nastics” which she enjoyed – but she had to stop attending because of the head lice problem.

f. He now takes her to “Gym-magic” which she loves.

g. In nicer weather they go to a nearby park; fishing; or kite flying.

h. They have a movie night on Saturday nights. Sometimes extended family comes over for a game night which Parrish enjoys.

i. In the summer Parrish loves swimming in their backyard pool.

j. They also visit with his extended family.

[47]. His description was corroborated by neighbour and proposed daycare provider Thayer who complimented the father on his hands-on and consistent interaction with Parrish.

PATERNAL GRANDPARENT SUPPORT

[48]. Both paternal grandparents testified that they support the father’s custody proposal. Susan testified at length:

a. She emphasized the quality of the father-daughter relationship and the close emotional bond Parrish feels not only with the father but also with the grandparents.

b. She commended the father for how attentive he is caring for Parrish.

c. She gave numerous examples of child-focussed activities the father engages in.

d. She described how the child becomes disheartened on Sundays as soon as they put on the clothes she wears back to Teresa’s residence. She said when the time comes to actually drive Parrish home on Sunday afternoons, she becomes upset and resistant.

e. She quoted the child as remarking that she enjoys being in the father’s home because there is no fighting, compared to Teresa’s home.

f. Under cross-examination she denied feeling that Parrish should be with the father because their Burlington home is nicer than Teresa’s north end Hamilton home. She sharply rejected any notion of snobbery, noting that for many years she and her husband resided in a modest working class area of Hamilton. She said money had nothing to do with parenting skills. She simply felt the love, stability, and hygienic standards in her home offer Parrish a more protected and nourishing home environment.

g. She confirmed the father’s evidence about the extensive family support available to him, and about the qualifications of Thayer who would provide babysitting as required.

h. She said she and her husband would offer comprehensive parenting assistance to their son, and if they were unavailable, the rest of the close-knit family would rally to ensure stability in Parrish’ life.

EXCHANGES

[49]. The father and Susan both testified about issues arising at the beginning and end of each visit:

a. The father said he usually takes at least one of his parents with him for exchanges, because of resistant and uncooperative behavior by the mother, Teresa and McSherry during exchanges.

b. They both denied suggestions from the mother and McSherry that exchanges go more smoothly when Susan is not present.

c. Although Susan was widely accused of being a meddler, she denied creating any conflict. She said she tried to be civil, but the mother’s family treated her rudely.

d. She also complained that frequently Parrish would not be ready at the designated pick up time.

e. The father and Susan both described how they have a wonderful time and Parrish is very excited and happy – until Sunday when her mood deteriorates as the time approaches for her to be driven back to Teresa’s home.

f. The father said despite his efforts to calm and distract her, Parrish becomes quite sad when she realizes she has to return home. Sometimes she says she doesn’t want to return.

FATHER’S CUSTODY CLAIM

[50]. The father said he believes Parrish would be better off in his care because:

a. He can provide love and guidance.

b. He is a good role model.

c. Parrish is closely connected to his extended family.

d. He can provide financial support and security. .

e. He can provide a safe, clean, wholesome residential environment. He will make sure she has everything she needs.

f. He has looked into everything: Daycare. A school. Medical care. Recreational facilities.

g. He will conscientiously address the head lice problem.

h. He is serious about being a father and devoting his full attention to Parrish and his other child Jacob.

i. He had a vasectomy because he doesn’t want a larger family. He wants to settle down and enjoy the family he has.

[51]. Both the father and Susan flatly rejected the suggestion that Susan is really the driving force behind his custody claim.

[52]. The father testified he was content that the mother, Teresa, and McSherry could all continue to have access, including telephone access. But he has concerns about them.

CONCERNS ABOUT MOTHER

[53]. He expressed concerns about the mother having extensive contact with the child given her mental health; her lifestyle; and her past inability to care for the child (which led to her giving the child to Teresa).

CONCERNS ABOUT TERESA

[54]. He expressed similar concern about Parrish if she is allowed to remain with Teresa:

a. He worries about Teresa failing to address the head lice problem.

b. He worries the child is learning a defiant attitude and horribly offensive language in Teresa’s home.

c. He worries about extensive use of marijuana by the mother, Teresa, McSherry, and Dowling.

d. He worries about Teresa’s mental health, and her history of child abuse.

INAPPROPRIATE COMMUNICATIONS

[55]. Under cross-examination the father denied interrogating Parrish during visits; asking her probing questions; or raising adult topics with her.

[56]. He denied talking to her about changing her residence or switching to another school.

BREATHING INCIDENT

[57]. The OCL investigator stated Teresa and the mother feel the father is irresponsible, and that he has placed Parrish at risk.

[58]. The father denied this. But under cross-examination the father acknowledged an incident which occurred in 2009 when Parrish was approximately three months old:

a. The father was seeing the child at the home of Teresa and McSherry.

b. The father was laying on a couch, holding the child as she slept. He was also doing something on his cell phone.

c. He agreed with McSherry that at one point McSherry alerted him that Parrish appeared to have stopped breathing.

d. They scrambled. CPR was performed. Parrish recovered quickly.

e. McSherry suggested the father told him “Please don’t tell (the mother).” The father testified he did not remember making such a statement.

f. While the mother and her family characterized this incident as “the father smothering the baby”, the father insisted he was simply keeping the baby wrapped in his coat for warmth.

FATHER’S TEMPER

[59]. Teresa told the OCL the father had a short temper and anger management issues. The father’s response:

a. He is not a violent person.

b. He went to an anger management session, but was told he didn’t need ongoing counselling because he had adopted appropriate stress-management techniques.

c. He has no criminal record.

[60]. He admitted the short period he lived with the mother was turbulent:

a. He called the police on her once or twice.

b. She called the police on him five or six times.

c. No charges were ever laid.

d. He testified they finally separated after an incident in which the mother held a 12 inch knife to his scrotum.

[61]. Conflict between the mother and father during their “on again off again…volatile” relationship was dealt with on page 21 of the s.112 report. Armstrong had reviewed extensive police and CAS reports and records.

a. “There was frequent police involvement for verbal dispute-domestic however upon arrival there was never any evidence of physical violence and in fact one police report noted that “it has become common practice for (the mother) to make allegations of assaults and then sign a notebook stating it was verbal only.”

b. On one occasion, the mother had stated that she had been choked, punched and hit on the neck when she called 911. Police spoke to (the mother) five minutes after the alleged assault and again found no signs of injury or even tears.”

c. “The mother was warned about giving false statements and warned about public mischief.”

d. On a separate occasion, the mother alleged the father had “trashed” their apartment however when police arrived she did not allow them entry to the apartment and neither the police report nor Children’s Aid report noted any damage or evidence to support the allegations.

e. “The mother later told her Children’s Aid Worker that (the father) broke some cd’s and refused to leave the apartment. During this conversation, the mother also told her worker that she had no concerns with the father’s ability to care for Parrish.”

[62]. Under cross-examination, the father acknowledged an incident involving Alexis which occurred more than five years ago at Teresa’s residence:

a. Alexis had slapped the father.

b. Initially under cross-examination he answered that he didn’t recall how he responded.

c. He then admitted that he pulled Alexis by the hair to pull her away from him.

d. He denied “throwing her off the sofa”

e. He acknowledged he was an adult weighing perhaps 200 pounds, and that Alexis was about four years old at the time.

f. He admitted his aggressive reaction to such a young child was inappropriate. He regretted his behaviour.

OCL SUPPORTS FATHER

[63]. In supporting the father’s request for custody, the OCL social worker stated in her report: “Parrish needs stability and permanency. Given the struggles that (Teresa) and (the mother) face it is not clear if those needs of Parrish will be primary.”

[64]. The social worker expressed confidence in the father’s plan. She said:

a. He has persistently pursued custody ever since confirming paternity.

b. His family of origin has no history of child welfare involvement.

c. Both paternal grandparents are employed full time.

d. There are no known mental health issues or addictions issues relating to the father.

e. While the father is young and has made some irresponsible decisions, he appears to have his life in order.

f. There have been no reports or information regarding anger management issues or incidents of domestic violence since his relationship with the mother ended in 2010.

g. He indicated he took a parenting course. Under cross-examination he admitted her only attended seven of 12 sessions, because of work commitments. Nonetheless he felt he learned a lot.

h. He has acknowledged that Parrish’s relationship with the mother and Teresa are important and he would support Parrish having regular access with them.

TRANSPORTATION

[65]. He does not agree with the OCL’s recommendation that he should provide all transportation for access.

a. He said he’s been doing all the driving currently between his residence in Burlington and their residence in Hamilton. For a while he was driving back and forth Saturdays and Sundays.

b. Given the location of his residence near the Burlington-Oakville border, at rush hours travel time can be up to an hour one way.

c. He said gas is expensive and he can’t afford to do all of the driving. There is no possibility he’ll get any child support from the mother.

d. He acknowledged that he should share the transportation, since he has a vehicle, while the mother and Teresa rely on public transit. .

e. He proposed that he could drop off the child at the Burlington bus terminal, which is also serviced by bus service from Hamilton.

[66]. In contrast, the mother testified that the father should do all the transportation to facilitate access exchanges. Her position:

a. He has a car. His parents have a car.

b. Neither the mother nor her parents have a car.

c. McSherry’s driver’s licence has expired.

d. Requiring her or any member of her family to transport the child even part of the distance by bus would be very time consuming, and would inevitably jeopardize the child’s bedtime routine.

THE MOTHER

[67]. The s. 112 report painted a disturbing picture of the mother’s background as a child. Notably, during her testimony the mother disputed very little of what the clinical investigator reported.

MOTHER’S CURRENT SITUATION

[68]. The mother described her current situation:

a. She lives in a one bedroom triplex in downtown Hamilton, with her fiancé Dowling.

b. She is pregnant with his child, due August 4, 2014.

c. CAS is aware of this pregnancy.

d. She plans to look after this child.

MOTHER’S MENTAL HEALTH

[69]. She acknowledged a long history of mental illness:

a. When the mother was about age 12 Teresa started to get help for “her sickness.”

b. At age 14 or 15 she was first hospitalized for mental illness. At age 15 or 16 she was hospitalized again.

c. She said since then she has been hospitalized perhaps 15 or 20 times in relation to mental illness. She wasn’t sure of the number, and couldn’t recall the sequence of hospitalizations or the specific events or crises which led to various hospitalizations.

d. She said her behavioural and mental health problems were compounded by the fact that she had “numerous” drug overdoses from age 14 on.

e. She was not actually diagnosed until she was 17, when she was advised she had a borderline personality disorder.

f. She said the first drugs she was prescribed didn’t work, and actually made things worse. “They were altering my mind.”

g. At age 22 she was re-diagnosed as having ADHD and also mild depression. She was given different medications. A bipolar disorder has also been explored.

h. Most recently she has gone off her medications because she is pregnant with her second child. She said she is feeling well and hasn’t notice any depression during her pregnancy.

i. She said she is a lot more stable today than she was two years ago.

j. She believes improper medications were the main reason why she misbehaved so much and made so many bad decisions.

k. During the 14 day trial she kept entering then leaving the courtroom. Her lawyer said it was related to her pregnancy. But she tended to storm out of the courtroom when she didn’t like what she was hearing. For two full days after some particularly upsetting evidence, she didn’t attend court at all.

MOTHER’S TURBULENT PAST

[70]. The mother admitted that as she grew up her family environment was turbulent and unstable:

a. At age 13 the mother started to act out and ended up being put into CAS care by Teresa.

b. As a teenager she was in CAS care three separate times but would always run home.

c. She lived in a youth shelter until she was 16 and then moved out on her own.

d. She went to 13 or 14 schools during her childhood. She did not regard this as disruptive. She said the family often moved for the specific purpose of changing schools, because the mother was frequently tormented by other children.

e. Starting at age 16 she went to stay for periods of time at various friends’ homes.

ABUSE BY TERESA

[71]. The clinical investigator reported that as a child the mother was physically abused by Teresa. The mother didn’t dispute this, but had difficulty elaborating.

a. She testified that she couldn’t remember at what age the abuse by Teresa started.

b. She said “Honestly most of my childhood memories I do not remember” and “I only know what my mother has confessed to me.”

c. She said one of her few memories was an incident when she was seven or eight years old and Teresa grabbed her by the hair and whipped her across a room. She didn’t recall if CAS was involved on that occasion.

d. She testified a doctor told her she “ended up putting a mental block on bad memories”. That – combined with improper prescription medications; alcohol; and recreational drug abuse – have left the mother with only limited recollection of serious problems she experienced as a teenager.

MOTHER PROTECTS TERESA

[72]. During cross-examination the mother attempted to take most of the blame for the conflict she had with Teresa as a teenager:

a. She said her behaviour was getting out of hand, and for the safety of the other children in the home, Teresa was quite correct in asking CAS to remove the mother from the home on three separate occasions.

b. She admitted on one occasion as a teenager she was made an involuntary patient in a psychiatric facility after she brought a knife to school and police had to take it away from her. She denied threatening other students with the knife.

c. She recalled another occasion when she threatened to jump out a window to run away, and people misperceived that she was threatening to kill herself.

d. She recalled an occasion when she was required to leave school for the last half of a semester because of fighting.

e. She admitted she and Teresa would get into fist fights. Again she blamed it on her medication. She said it was “because my medications were causing my mind to go haywire.”

MOTHER PROTECTS MCSHERRY

[73]. As on most topics, the mother was equally loyal to McSherry.

a. She has known him since she was eight months old. He has always been the real father in her life.

b. She said he wasn’t aware of Teresa’s abuse because he was usually at work.

c. She said she kept Teresa’s abuse hidden from McSherry because she knew he would react badly if he knew about it.

d. She admitted, however, that in June 2010 she had a confrontation with both Teresa and McSherry in their home. Police were called. Under cross-examination she admitted McSherry “probably” threatened to punch her in the mouth. Even though this occurred only a few years ago, she had difficulty remembering details.

e. She said she has never had a good relationship with her biological father David Myers. At one point at age 15 when she was in conflict with Teresa, she asked to go live with her biological father. She said McSherry instructed police to take the mother to her father’s home. She stayed with the biological father about one month.

MOTHER & ALCOHOL

[74]. The mother testified she has had long-standing problems with substance abuse. She described her use of alcohol:

a. She has been a problem drinker since age 15.

b. She drank alcohol daily as a teenager.

c. Looking back, she feels she was an alcoholic for 8 years.

d. She said her drinking worsened after she relinquished control of Parrish to Teresa.

e. She testified her fiancé Dowling also has a long-standing problem with alcohol, and they drank heavily together.

f. At one point in her testimony she said she and Dowling obtained “help” to deal with their alcohol problem. Later the mother said she simply stopped drinking in mid 2011 on her own, and now she only drinks socially.

MOTHER & DRUGS

[75]. The mother described her use of illegal drugs:

a. Apart from her relationship with the father, she was involved in a separate relationship with another man who was horribly abusive. During that one-year relationship she used drugs like cocaine and ecstasy.

b. She has used marijuana for many years.

c. She would smoke marijuana with Dowling.

d. She stopped using marijuana in February 2014 as a result of her pregnancy.

e. Prior to that she was “taking a joint every so often”. Perhaps three to four joints a week.

FATHER & DRUGS/ALCOHOL

[76]. The mother disputed the father’s evidence that he didn’t abuse alcohol or drugs.

a. She recalled him consuming alcohol “once in a while.”

b. She said he smoked marijuana “on a few occasions”.

c. But it was clear from her evidence that she had a major, debilitating problem with alcohol and drugs, whereas the father’s use was infrequent and relatively innocuous.

PARENTING BEFORE MAY 2010

[77]. The mother attempted to minimize the father’s role in caring for Parrish during the almost year they lived together, ending in May 2010.

a. She said she assumed most responsibility for the child. The father helped a little.

b. She acknowledged that approximately two months after the father left, she realized she couldn’t properly care for the child.

c. But she insisted the father’s absence from her home had nothing to do with her parenting difficulties.

d. She said her inability to parent was as a result of her personal issues, unrelated to the father’s absence from the home.

FATHER’S ACCESS AFTER MAY 2010

[78]. The mother candidly agreed with the father’s testimony that after they separated in May 2010, for a period of time she allowed him regular access to Parrish including overnights.

a. She said the visits themselves went well, but other complications arose.

b. She eventually stopped access primarily because the father was giving her mixed messages about reconciliation.

c. Under cross-examination she admitted she moved in with Dowling about one month after separating from the father – but unbeknownst to Dowling she continued to have sexual relations with the father as well.

d. The situation was becoming very awkward for her. She wasn’t sure about the father’s intentions. She was also dismayed that the father was questioning paternity.

e. In addition, the mother said she was concerned the father was introducing Parrish to a new girlfriend Shannyn. She didn’t think Parrish should be introduced to a woman she didn’t know anything about.

DOWLING

[79]. There is a chilling irony to the fact that the mother expressed worry about Parrish meeting Shannyn, when the mother had no qualms about Parrish living with Dowling.

[80]. The s.112 report made the following comments about Dowling:

a. He is the mother’s partner.

b. They have an on again off again relationship but have been together since June 2010.

c. Dowling and the mother have a goal to get their lives together and report that their relationship is much better.

d. Dowling acknowledged a significant drug and alcohol history and reported that currently there is some marijuana use.

e. He also acknowledged a significant police history.

[81]. The mother spoke with enthusiasm and pride about the evolution of her relationship with Dowling who she repeatedly referred to as “my fiancé.”

a. She became involved with him when he was 16.

b. Their relationship was interrupted when he went to jail for robbery. She said he didn’t really commit the robbery, but he pleaded guilty and “took the fall because he doesn’t believe in ‘ratting’.”

[82]. She then lived with another man for about 16 months. He was very violent and ended up being convicted of assaulting and raping her.

[83]. The mother resumed her relationship with Dowling. But during another break in that relationship, she met the father on line. She said they had no “relationship”. They simply had sex twice and she got pregnant.

[84]. Within two weeks of Parrish’s conception, the mother was back with Dowling.

[85]. She said Dowling has had other trouble with the law, but she consistently described his problems as someone else’s fault.

[86]. Dowling testified in support of the mother’s position.

a. He is 25 years old.

b. He has a grade 10 education.

c. For the past year and a half he has worked as a painter.

d. He works steady days.

e. He has taken a babysitting course and most recently a parenting course in 2012.

DOWLING HEALTH

[87]. He described his health:

a. He has ADHD.

b. He has not received any other diagnosis.

c. He said he gets nervous and has to do things because his mind is constantly going non-stop.

[88]. The mother was more expansive about another of Dowling’s health issues:

a. Dowling is awaiting medical clearance for his G2 driver’s licence:

b. He had two unknown seizures at the beginning of the year.

c. “The doctor is trying to figure out what’s wrong.”

DOWLING CRIMINAL RECORD

[89]. Dowling described his criminal record:

a. At age 12 he was convicted of assault. That was around the time he moved out of his mother’s home.

b. At age 15 he was convicted of another assault.

c. Then he was convicted of some breaches of probation.

d. At age 16 he was convicted of robbing a store.

e. At 17 he was convicted of stealing a vehicle belonging to his mother’s boyfriend.

f. Later he was convicted of stealing a vehicle belonging to his roommate.

g. At age 18 he pleaded guilty to a second robbery and spent 10 and a half months in jail. During her testimony the mother insisted Dowling was innocent. Dowling’s evidence was slightly different. He said he took the blame because “honestly I didn’t remember nothing from that night.” But he was aware he had pleaded guilty to a particularly offensive crime: A purse-snatching where the victim was hit from behind by Dowling causing her to fall backwards and hit her head. Dowling then grabbed her purse and fled.

h. In 2012 he was charged with assaulting his stepfather. During his evidence he admitted he beat up his stepfather, but he insisted it was self-defence and the charge was dropped.

i. After that, Dowling pleaded guilty to breaching a term of his recognizance: At one point his terms of bail required that he stay away from the mother. But he and the mother ignored that court restriction.

[90]. Dowling testified he took an eight week anger management course in 2012. He said it “helped out a lot.”

MOTHER PROTECTS DOWLING

[91]. The mother acknowledged Dowling has had serious problems with the law.

a. But she insisted he’s not as bad as his criminal record and history of charges make him sound.

b. She said other people were really to blame for his problems.

c. She said he started out with a traumatic childhood “which seemed to set him off on a very bad path”.

d. But she said he is cleaning up his life.

e. She described him as a “work in progress.”

f. She said during the first four years of their relationship he wasn’t violent. But when she broke up with Dowling to be with the father in 2009 “it kind of twisted his head a bit” and Dowling reverted to being very violent.

g. However she insisted he is no longer violent.

DOWLING SUBSTANCE ABUSE

[92]. Dowling testified about drugs and alcohol:

a. He used to have a very bad drinking problem.

b. He took counselling for alcohol abuse in 2011. He’s in AA.

c. He hasn’t consumed any alcohol for two months.

d. He used to use various illegal drugs until age 18. After that he limited himself to marijuana and alcohol. Now it’s only marijuana.

e. Currently he smokes about 2 grams a day.

f. He is hoping his doctor will prescribe medical marijuana to deal with his ADHD.

g. He says marijuana helps him more than prescription drugs. “When I was on pills I was a zombie.”

MOTHER’S MENTAL HEALTH

[93]. For his part, Dowling testified the mother’s mental health and behaviour have improved a lot during the last few years:

a. “She has grown up over the years.”

b. “She’s a lot calmer than she used to be.”

c. “I used to call her crazy.”

d. “Lately we just talk things out.”

DOWLING & TERESA & MCSHERRY

[94]. Dowling spoke favourably about the mother’s parents Teresa and McSherry:

a. They have been supportive emotionally and physically.

b. They have made him feel like a welcome member of their family.

DOWLING & PARRISH

[95]. Dowling described his relationship with Parrish:

a. He has known her “since she was in her mother’s stomach.”

b. He has frequent contact with her.

c. H often babysits Parrish, sometimes with Alexis and Billie.

DOWLING & PREGNANCY

[96]. Dowling testified he’s looking forward to the baby due in August.

a. He hasn’t set up anything for the arrival of the baby, but he’s got five months to work on it.

b. H plans to cooperate with CAS. “The sooner they get to know us and the people we are, the better.”

JULY 31, 2010 INCIDENT

[97]. The mother, Teresa and Dowling all testified about some very troubling events on July 31, 2010 which led to the mother’s decision to “relinquish” custody of Parrish to Teresa later than day.

[98]. The mother’s evidence:

a. The mother was living with Dowling. Parrish was 14 months old at the time.

b. The mother and Dowling were having some sort of celebration. They had both been drinking heavily. She said “At that point I was battling alcoholism.”

c. The mother testified that while drinking heavily she came to the realization that this was not a good environment for the child. “I could see the downhill path I was on.”

d. She testified that she telephoned Teresa who lived about a 30 minute bus ride away and asked her to come over.

e. She said Teresa arrived but did not participate in the drinking.

f. An argument ensued between Teresa and Dowling. He ended up being charged.

g. The mother couldn’t remember everything that happened that day because of her generally faulty memory. “I try to push the bad out”.

h. She testified on that day she realized she was in no physical or mental state to care for Parrish.

i. Teresa took Parrish back to her residence. The mother asked Teresa to keep the child.

[99]. Dowling testified about the day but described Teresa’s involvement slightly differently:

a. He recalled he and the mother were fighting. Parrish was in their care.

b. He had consumed alcohol to the point where he blacked out. Just like the mother, he also doesn’t clearly remember what happened.

c. Contrary to the mother’s evidence that Teresa only arrived after the mother phoned her, Dowling testified Teresa was already present when trouble unfolded.

d. Initially Dowling testified Teresa had also been drinking and that it was Teresa’s parents who came to the home to retrieve Parrish after Dowling started smashing up the house. (He never explained why he started smashing up the house.)

e. At that point in his testimony, the mother stormed out of the courtroom after giving Dowling a very angry look. Dowling became visibly distressed on the witness stand.

f. He later changed his evidence and stated Teresa had not been drinking.

g. Either way, Dowling testified he became very aggressive and violent on that date. He “accosted” Teresa, and he ended up being charged.

h. He had no explanation as to why he had organized the drunken “celebration”. “I just wanted to throw a party.”

i. At the time there was a criminal court order prohibiting him from consuming alcohol.

[100]. Teresa described July 31, 2010:

a. She was out with her parents, Alexis and Billie.

b. The mother called her for assistance. The mother had been drinking. There was a party going on. The mother wanted Teresa to come and remove Parrish from the home.

c. Teresa, her parents and the twins all went to the residence where the mother, Dowling and Parrish had been living.

d. They knocked on the door. The mother answered. She was crying and it was clear that she had been drinking.

e. Dowling had left the residence but there was a lot of noise inside and a few people (including Teresa’s relatives) were present drinking.

f. Dowling then returned to the residence. He was drunk.

g. When Teresa attempted to remove Parrish from the home, Dowling smashed a guitar.

h. Teresa told Dowling he should leave and get away from the mother.

i. When Teresa (and the group she had arrived with) got down to their vehicle and were putting Parrish into a car seat, Dowling approached swearing and creating a big scene. Teresa asked him to behave himself and stop swearing in front of Parrish, Alexis and Billie.

j. Dowling continued to swear at Teresa, raised his fist and tried to punch her.

k. Teresa explained that out of self-defence she hit Dowling back.

l. There was more of an altercation. Dowling had some full cans of beer in his pockets. He threw one at Teresa’s father’s mini-van.

m. Teresa became angry and then chased Dowling down the street, trying to make him go away.

n. When Teresa shouted to Dowling that she was calling the police, Dowling answered: “I don’t give a shit. I don’t care anymore.”

o. Teresa called police. Eventually they found Dowling and he was charged.

p. Teresa expressly denied Dowling’s evidence that she had been present at the party all along.

MOTHER GIVES CHILD TO TERESA

[101]. The mother testified that on July 31, 2010 she relinquished custody of Parrish to Teresa for a number of reasons:

a. “I was not in a state to mother my child.”

b. She was being physically and emotionally affected by medications which had been prescribed for her.

c. She was stressed about being a complainant in a sexual abuse case involving her former boyfriend.

d. She didn’t actually perceive that Parrish was in danger living in that household. But she wasn’t sure how she was going to cope as a parent. That’s why she asked for help from Teresa.

SEPT 7, 2010 CUSTODY NOTE

[102]. On September 7, 2010 – about the same time the father filed his custody application - the mother, Teresa, McSherry and a number of witnesses signed a one-page, handwritten note:

“I Natasha Myers give my mother Teresa Campeau custody guardianship care and control of my daughter Parrish Shirley-Rose Myers as of Sept 7/10 until March 7/11 to be revied (sic) at this date. Due to my illnesses.”

[103]. None of the signatories to the note ever really explained why it came into existence.

a. The mother and Teresa both testified McSherry prepared it.

b. Teresa said she wasn’t present when McSherry got the mother to sign it. She only learned of the note that night.

c. The mother said she signed it “to assist with Parrish’s well-being.” She didn’t explain how the note would “assist.”

d. Parrish had already been living with Teresa for more than two months without any written agreement.

e. The note referred to a March 7, 2011 termination, but nobody appears to have paid any attention to that date.

[104]. The signed note didn’t make any difference to the mother, Teresa or McSherry. But as things unfolded, it made a big difference to the father.

DENIAL OF ACCESS

[105]. As stated, after the parties separated in May 2010, the father went from having regular access to no access for about five months until he finally got a temporary access order on December 15, 2010.

[106]. The order was based upon minutes of settlement signed by the father and mother, at a time when both were represented by counsel. Teresa was also present in court (although not yet a party).

[107]. But when the father and his parents attended to pick up Parrish pursuant to the access order, they were denied access – by McSherry.

[108]. The mother testified it wasn’t her fault.

a. She admitted she did the wrong thing suddenly denying access to the father for months through the summer and fall of 2010.

b. She said she regretted that decision.

c. She admitted she was present in court on December 15, 2010 and consented to the father having access.

d. She admitted Teresa was present and aware of the access agreement.

e. She said the decision to disobey the December 15, 2010 order was not hers – she wasn’t even around when the father attended at the residence.

f. She said the decision to deny access was strictly McSherry’s.

g. She said if it had been left up to her, she would have allowed the father access. But she was never asked her opinion.

[109]. McSherry – who represented himself at trial and presented as a very strong-willed and outspoken individual – admitted the denial of access was his doing:

a. He took delight in being able to ignore the December 15, 2010 access order because – as a layman – he’d found a legal loophole: The mother had no ability to consent to an access order because the mother didn’t have custody – Teresa had custody according to that handwritten agreement.

b. So even though the father and his parents showed up for access at the precise time the mother had agreed to in court, McSherry told them to go away.

c. “We had a real standoff”.

d. “I told them in no uncertain terms in pure English with the abilities I have to intimidate people that (Parrish) isn’t going anywhere.”

e. McSherry testified that when the matter returned to court and Justice Steinberg agreed with his position “I laughed my ass off.”

f. Eventually Teresa and (later) McSherry were added as parties, and they filed an Answer claiming custody jointly.

g. Once the procedural issues were resolved, the father secured yet another order for access. This time the order was obeyed. The father then went through a series of gradually expanding access orders.

[110]. The father’s lawyer questioned McSherry about his eloquent plea during evidence in chief that he wanted to extend an olive branch and invite everyone to be friends. Was relying on a technicality to thwart an access order really “extending an olive branch?”

[111]. McSherry responded that at the time he had no reason to extend an olive branch to the father. He wanted to deny access because:

a. The father had been physically abusive to the mother while they were living together.

b. McSherry wasn’t sure whether the father had his anger management issues under control.

c. He doubted the father’s parenting skills.

d. The father and his parents “were hostile in their mannerisms at my door.”

[112]. McSherry’s vigilance invites context:

a. He did everything possible to keep Parrish away from even brief supervised access with the father.

b. But he appears to have done nothing to keep Parrish away from an infinitely more dangerous person: Dowling.

MOTHER & TERESA

[113]. The mother testified that during the past few years her relationship with Teresa has dramatically improved.

a. She said they started to patch things up after the mother gave custody of Parrish to Teresa in July 2010.

b. They are close now.

c. They don’t fight like they used to.

d. They are good friends.

e. They talk “10 to 20 times a day”. They can discuss anything.

[114]. Teresa gave a similar optimistic description.

a. They have developed a very close relationship.

b. The mother is her “best friend”.

c. They are there for one another, if either needs help.

MOTHER & SUSAN

[115]. The mother was less positive about her relationship with Susan:

a. She said initially it was awkward.

b. Susan seemed to dislike her from the outset.

c. For a while the mother tried to make small talk with her but Susan ended up ignoring her.

d. So now the mother doesn’t speak to Susan at all.

e. She begrudgingly acknowledged Susan bought some gifts for Parrish. But she complained Susan later took the gifts back.

[116]. The mother said she feels that overall Susan is a bad, negative influence on the father:

a. She is very controlling of her son.

b. The mother felt she would get along better with the father if Susan was not involved. But she didn’t go so far as to think they would have survived as a couple without Susan’s meddling. She said they were two different people from the start. “The odds were not for us.”

c. She said access exchanges go better when Susan is not present.

ALEXIS & BILLIE

[117]. The mother testified about Alexis and Billie:

a. She has a very close relationship with her much younger sisters.

b. Parrish is also very close to the twins and relates to them as sisters.

c. Despite the age difference between the twins and Parrish, the mother has never seen any sign of bullying or inappropriate behaviour by the older girls. “They argue like normal sisters.”

[118]. Teresa gave similar evidence:

a. Parrish, Alexis and Billie relate to one another as loving siblings.

b. Leading up to the trial Parrish shared a bedroom with Alexis, while Billie had her own room. Teresa said she recently “second guessed herself” about whether they should be sharing a bedroom because of the age difference between them. So she moved Alexis in with Billie.

c. Parrish now has her own bedroom, but was upset by the change.

FATHER’S PARENTING

[119]. The mother acknowledged the father has good parenting skills:

a. She described the relationship between the father and Parrish is good.

b. When she sees them at access exchanges, they appear to be close.

c. Parrish appears to love him very much.

d. She said she is glad the father has regular access.

e. He appears to be loving and protective.

[120]. The mother expressed some mild reservations:

a. At times the father can be a bit absent minded or distracted.

b. At times his mind is on things like video games.

[121]. Under cross-examination she admitted she told a CAS worker she had “no concerns” about the father’s parenting.

a. But she testified that when she made that statement she was lying.

b. Throughout her testimony she gave numerous examples of lying to people in authority, mostly the police.

c. She explained her lies: “I tell people what they want to hear.”

d. But under cross-examination she was unable to explain why she felt CAS “wanted to hear” that she had no concerns about the father’s parenting.

e. She couldn’t really explain what motivated her to lie in the father’s favour.

[122]. Similarly, Teresa testified that she never expressed any concern to CAS about inappropriate physical discipline by the father.

MOTHER’S MENTAL HEALTH IMPROVING

[123]. The mother testified her mental health has improved and stabilized during the past few years. She feels that for many years she was mis-diagnosed and given the wrong medications, which actually aggravated her mental and behavioural problems rather than helping.

[124]. When the father’s counsel noted during cross-examination that the mother had produced no medical evidence about either her past or current mental health issues, the mother’s lawyer suddenly proposed to call the mother’s family physician as a witness.

a. Her lawyer indicated that he had been in possession of a brief medical report which he kept “in his back pocket” for the past nine months. He admitted that he had never produced it or mentioned it to opposing counsel because he didn’t intend to rely on it.

b. The lawyer suggested that since father’s counsel had remarked on the lack of medical evidence, this invited the mother to call the doctor as a witness.

c. The father’s lawyer strenuously objected to production of the nine-month-old medical report, or expert evidence being tendered by the doctor.

d. This issue had arisen on day eight of the trial. The mother was the 10th witness.

e. No notices had been produced identifying any intention to either produce a report or call the doctor.

f. The mother was aware from the outset that her self-admitted mental health problems directly impacted on her claim for access.

[125]. I agreed with father’s counsel that the mother’s last minute request to produce expert evidence – which could and should have been produced long ago – was highly prejudicial to the father. I declined to allow either the evidence or the nine-month old report of the family doctor.

MOTHER & CHILD TODAY

[126]. The mother described her relationship with Parrish:

a. They are very close.

b. Their relationship has “improved strongly” during the last three years.

c. She has a close relationship with her much younger sisters Alexis and Billie.

d. She thinks Parrish would be a happier child “if everyone got along.”

[127]. The mother testified that if the father is granted custody, she will still want to have at least alternate weekend access Friday to Sunday, and hopefully more.

MOTHER SUPPORTS TERESA

[128]. The mother explained why she supports Teresa’s claim for custody:

a. Teresa and Parrish have “a bond unlike any other.” They are very close.

b. Teresa does many things with Parrish.

c. Parrish is safe and secure in Teresa’s care.

d. She described Parrish as “happy, health, thriving”.

EVENTUAL RETURN TO MOTHER

[129]. But even if Teresa is granted a final custody order in these proceedings, the family’s long term plan for Parrish remains unclear.

[130]. The mother’s position:

a. She relinquished custody to Teresa in 2010 because she was overwhelmed with personal problems.

b. She feels most of her problems are now under control.

c. She actually feels ready – now -- to take Parrish back into her care on a full time basis.

d. The only reason she’s not seeking custody in this trial is that Parrish is used to living with Teresa and the mother doesn’t want to disrupt the child’s stable living arrangement.

e. The mother appears interested in having Parrish returned to her care eventually. But for the moment she’s only seeking access.

[131]. During her evidence, the mother expressed surprise and disappointment about McSherry’s testimony on the same topic.

a. McSherry said he hopes “someday” the mother will be in a position to resume having custody.

b. He didn’t think she was currently ready.

c. He didn’t say what further progress the mother needs to make.

d. The mother said she had no idea what he was talking about; no idea what additional changes he thinks she should make.

[132]. Similarly, Teresa testified that ideally it would be better for Parrish to eventually return to the mother’s custody. But not yet.

[133]. In fact, even though Teresa had been allowing the mother extensive and unsupervised contact up to the commencement of trial, Teresa now says the mother needs to demonstrate changes before she can even resume liberal access.

[134]. But Teresa’s suggestions reflect little depth or insight into the mother’s long-standing and profound problems. Teresa’s view of the mother:

a. She is “not quite ready to return as a full-time mother.”

b. “She still has a few issues”.

c. “She needs to learn how to deal with her problems a little bit better than what she is doing.”

d. She should take some parenting courses.

e. Her “maturity level needs to develop.”

f. She needs to deal with her anger and how to solve problems.

[135]. Under cross-examination, Teresa acknowledged that a future transfer of custody to the mother would inevitably entail significant changes for Parrish. But for the moment perhaps the cornerstone of Teresa’s custody claim is that the status quo shouldn’t be disrupted.

[136]. OCL investigator Armstrong testified that she observed “some nice interaction” between the mother and Parrish. But nonetheless, she felt the mother has many obstacles to overcome before there can be any significant expansion of access.

MOTHER & POLICE

[137]. Although generally the mother presented as a sympathetic, soft-spoken witness who was trying to do her best to answer – she shattered that image while being cross-examined about her many, many interactions with police, as set out in detail in the section 112 report.

[138]. As numerous police reports were reviewed and dissected, it became overwhelmingly clear that the mother was attempting to put a spin on the facts:

a. To make the father look bad.

b. To make Teresa look good.

c. To make Dowling appear blameless.

d. To pin the blame on herself – or more precisely, what she tried to portray as her former self.

[139]. On these topics she became conspicuously evasive, hostile, resistant, and inconsistent.

[140]. She was cross-examined about a series of police reports relating to complaints she made about the father.

a. In each case she had called police to complain about abuse, assaults or property damage.

b. When the police arrived they would see no sign of any misconduct by the father. Often the father would have taken steps to walk or drive away from the conflict, to allow things to cool down.

c. When the police arrived the mother would become hostile and confrontational with the police.

d. She would change her story and insist that the father had done nothing wrong.

e. She would prevent officers from entering her home to see if any property damage had occurred.

f. She would then call for more police assistance – only to again verbally attack police when they arrived.

g. It got to the point where police warned her about public mischief.

h. Under cross-examination the mother insisted the father really had committed the abusive acts she initially complained of. She said she repeatedly changed her story because she wanted to keep him out of trouble.

i. She said she called police so they would help mediate disputes. But she also said she hated police, and admitted to telling officers to “fuck off” when they arrived.

[141]. The mother was cross-examined about a second set of police reports relating to conflict between the mother and her own family, primarily during the years leading up to Parrish’s birth.

a. The reports outlined allegations of misconduct and aggressive behavior by the mother, Teresa and McSherry.

b. The mother testified she only had a vague recollection of many of these events, because of her drug and alcohol abuse, and her unstable mental health.

c. But as she reviewed the reports she made a conspicuous effort to excuse or minimize any aggressive behavior by Teresa.

d. Despite her vague recollection, she kept speculating that she must have done things to provoke conflict with her parents, and the parents must have been acting reasonably.

e. Notably there was a May 3, 2011 incident in which Teresa called police to have the mother kicked out of her home and charged with trespassing. The mother testified that Teresa’s request to police was reasonable because on that occasion the mother had become “hostile”.

f. There was another police call in relation to a disturbance between the mother and Teresa in September 2011. The mother said she was depressed and ended up being taken to the hospital for a few hours.

g. The mother was unable to reconcile her earlier testimony that her relationship with Teresa has been extremely good since 2010 – with the fact that in 2011 police were still being called because of disturbances between the two of them.

[142]. Finally, the mother was cross-examined about a third set of police reports relating to domestic conflict between herself and Dowling.

a. There were numerous calls to police – from the mother and from worried neighbours – about Dowling assaulting or abusing the mother.

b. When police arrived the mother would protect or cover for Dowling, and become verbally abusive with the responding officers.

c. Nonetheless, the mother insisted the police reports paint a false picture. She said Dowling hasn’t been nearly as abusive to her as she has reported to police on numerous occasions.

[143]. Cumulatively, the police reports spanning many years, paint an extremely disturbing picture of a young woman who lacks the insight, desire or capacity to escape her chaotic and dangerous lifestyle.

RELIGION

[144]. A curious – and seemingly pointless – issue arose concerning religion.

[145]. The OCL clinical investigator reported that the mother “was into God until she was twelve but that she is now a ‘satanicist’ or satan follower as is her mother.”

[146]. The mother denied telling the OCL investigator that she and Teresa were satanicists. Her explanation was somewhat unclear:

a. She said she discussed with Armstrong the negative things that had happened to her.

b. Somehow the topic of the devil arose and Armstrong made reference to the term “satanist.”

c. The mother then corrected Armstrong that the correct word was “satanicist” and not “Satanist.”

d. The mother testified that a satanicist is someone who worships the devil. She said Armstrong must have presumed that she is a satanicist because she was so particular about the word.

e. But the mother insisted she believes in both the devil and a higher power, so she is not a satanicist.

f. The mother denied telling Armstrong that Teresa was a satanicist.

g. Teresa also testified she is neither a “satanist” nor a “satanicist”. She said the topic didn’t even come up in her discussions with Armstrong.

[147]. Speaking plainly, religion (or lack thereof) has no bearing on this case. But I couldn’t help but notice the manner in which the mother testified on this clearly irrelevant topic -- compared to the manner in which she gave evidence about issues that actually matter.

a. In carefully explaining that the proper term was “satanicist”, the mother was eloquent, precise, articulate, and confident in her demeanor.

b. She made it easy to believe her earlier evidence that throughout grade school she was at the top of her class.

c. The mother is a very intelligent lady.

d. And yet when it came to topics which matter in this custody case – child abuse; domestic violence; drug and alcohol abuse; mental illness; chronic deception -- the mother gave vague, stilted, evasive, and barely informative answers.

e. She repeatedly described having a poor memory about significant periods of time in her life – and about significant and troubling events.

f. She acknowledged her memory is clouded by eight years of alcoholism; other substance abuse; numerous hospitalizations for mental illness; psychiatric misdiagnoses; powerful (and sometimes inappropriate) medications; and a traumatic life in which she has often tried to block things out.

g. She even distanced herself from statements she made to the OCL clinical investigator in 2011. She said her brain was not allowing her to remember things properly, and “at that point I was on medication that was altering my brain.”

h. In the end, her evidence was a mixture of not remembering; not wanting to remember; and not wanting to remember truthfully.

TERESA

OCL DESCRIPTION

[148]. The s.112 investigator described Teresa’s custody proposal:

a. She is seeking sole custody.

b. She has cared for Parrish since July 2010.

c. She hopes one day Parrish will be able to go back and live with her mother, once the mother gets her sickness under control.

d. But she is willing to provide care on a long term basis.

OCL CONCERNS

[149]. On page 22 of her report, Armstrong summarized concerns about Teresa’s custody proposal:

a. Teresa’s history of mental health issues.

b. Her historical use of physical abuse with the mother.

c. Her use of marijuana.

d. Her failure to accept that her brother committed sexual offences against children while having offended against her.

e. Her current volatile on again off again relationships with her daughter and partner.

TERESA’S CUSTODY CLAIM

[150]. In contrast, Teresa explained the strengths of her custody proposal:

a. Parrish has been with her for almost four years.

b. The child is thriving.

c. The child is healthy, happy and well taken care of in a loving home.

d. The child enjoys a close bond with extended family including McSherry and the twins.

e. Teresa’s home is stable.

[151]. The mother and McSherry both testified they feel Teresa is doing a wonderful job. The OCL confirmed there are no safety issues in Teresa’s home.

TERESA BACKGROUND PER OCL

[152]. The s. 112 report included the following comments about Teresa:

a. She described her childhood as “mostly good” but advised that she was exposed to domestic violence, alcohol abuse and that she was molested and raped.

b. It was later determined from other sources that Teresa was assaulted by her brother who is in jail for assaulting his stepdaughters.

c. She got into a little trouble when she was 15 and dropped out of school.

d. She became pregnant with the mother when she was 16.

e. She acknowledged she had difficulties parenting because Teresa did not understand her sickness, depression and panic attacks.

f. She advised that she was diagnosed with borderline personality disorder when she was 22 in 1994. (During her testimony, Teresa said this diagnosis was actually made at age 32.)

g. She acknowledged that she used to hit the mother when she was younger and that she got into drinking as a way of dealing with her pain.

h. She acknowledged a situation when the mother was 3 years old and she hit her with an open hand and threw her across the room.

i. She realized this was wrong and started to ask for help from her family doctor and stopped hitting the mother.

j. She continued to struggle with depression through her 20’s and noted that she and McSherry were not getting along.

k. She denied that there was domestic violence but acknowledged verbal abuse.

l. She admitted once she was charged with assaulting McSherry but the charges were dropped.

m. She also suffered from panic attacks and was cutting herself.

n. In 2003 her twins with McSherry were born. At this time she was experiencing difficulties with the mother’s behavior and CAS was involved.

o. Teresa said she lost control. The mother was in and out of care of CAS from age 13 through 16.

p. Teresa said she became involved with professionals and was put on medication.

q. She reported that she felt her sickness was under control and she has been a better mother in the last 10 years than she was in her whole life.

TERESA BACKGROUND ELABORATION

[153]. During questioning Teresa expanded upon and clarified her very difficult past:

a. She admitted she used to physically abuse the mother as a child.

b. She admitted she used to consume a great deal of alcohol while caring for the mother.

c. She couldn’t remember the details of everything she had done.

d. At times she acknowledged physical conflict and aggression, but clarified that it wasn’t quite as bad as it sounded. For example, a March 2004 CAS report quoted the mother as reporting to school staff that she and Teresa had been in “fist fights”. Teresa’s clarification on the witness stand: “I wouldn’t really call them fist fights.” She said they were both agitated and out of control. Teresa was trying to restrain her. The mother was trying to fight with her. There was a lot of commotion. Ultimately she had to place the mother with CAS.

e. Teresa said she had “a really bad childhood”.

f. She started seeing a psychiatrist around age 18.

g. She was diagnosed with panic disorder, social phobia and depression between the ages of 18 and 20.

h. She was “cutting” herself from age 20 to about age 26 or 27. She was cutting her arms, stomach and legs. She didn’t get any treatment. She didn’t tell anybody.

i. She was eventually diagnosed with a major depressive disorder.

j. Her “social phobia” meant that she didn’t like going places by herself. The anxiety would kick in; she would get agitated; and she couldn’t breathe.

k. Later she was diagnosed with borderline personality disorder. She described it as “when you get a thought in your head, it sticks in your head” and she had very bad mood swings because she was dealing with so many issues.

l. She has also been diagnosed with diabetes, sleep apnea, asthma, acid reflux and high blood pressure.

m. She confirmed that as recently as two to three years ago, her panic disorder, social phobia and borderline personality disorder were all serious enough that she qualified for ongoing ODSP payments.

n. Recently, she has been placed on mild anti-depressants to help her deal with stress from both this court case and also her separation from McSherry.

MOTHER & TERESA SIMILARITIES

[154]. There were troubling similarities in the testimonies of Teresa and the mother:

a. Both said they had really bad childhoods.

b. Both said they turned to substance abuse to deal with their issues.

c. Both said for many years they struggled with unresolved and mis-diagnosed mental health issues.

d. Both said they couldn’t remember much of their past, because of impairment and because of deliberate blocking of painful memories.

e. Neither could clearly remember the details of the ongoing mother-daughter violence between them.

f. For example, Teresa could remember an incident in which she threw the mother by the hair, but she couldn’t remember how old the child was at the time.

TERESA & SUICIDE

[155]. Teresa acknowledged her mental health history includes “suicidal ideation”, but she denied telling Armstrong she would kill herself if she lost custody of Parrish:

a. She explained that if she said anything like that, it was more of a figure of speech, or a poor choice of words out of exasperation.

b. She said it was more likely that she said something like “it would kill me” to lose Parrish.

c. She said obviously she wouldn’t kill herself if she lost custody of Parrish because she still has her twins to take care of.

d. She said Armstrong never asked if she was serious about suicide.

[156]. Armstrong was cross-examined very pointedly on this issue and stood her ground.

a. She said she understood the context of Teresa’s remark.

b. Teresa was being very emotional during an interview. She was emphasizing how much she loves Parrish and she was being honest about the impact if Parrish was taken away.

c. Armstrong was concerned about the progression of Teresa’s statements. First she said “it would kill her” to lose Parrish. But at the end she said she would kill herself.

d. The social worker said she didn’t call police because it wasn’t an imminent threat – Parrish was not being taken away at that moment. But she was concerned enough that she mentioned the issue to CAS.

TERESA CURRENT MENTAL HEALTH

[157]. Teresa described her current mental health and personal situation:

a. She doesn’t consider herself an abusive parent. She admits she committed child abuse in the past, but not anymore.

b. She considers herself a good parent.

c. Mentally, she now feels under control.

d. She agreed she was overwhelmed during the height of her problems with the mother between 2004 and 2006.

e. But today she no longer feels overwhelmed.

f. Her mental problems have been better diagnosed.

g. Her stress level is much better than it was.

h. She’s coping better and has fewer distractions from being a good parent.

TERESA LACK OF TREATMENT

[158]. Under cross-examination, Teresa acknowledged that even though she says she is doing better, there’s no recent medical or professional evidence to confirm her progress. Indeed, while she has tried to get professional help over the years, she has repeatedly failed to follow through. For example:

a. As far back as 1998 CAS notes reflect concern about the mother’s level of mental health, but “the mother did not follow through on recommendations to seek further counselling.”

b. Most recently, Teresa was seeing a social worker at St. Joseph’s Healthcare for more than two years. A discharge summary dated December 7, 2007 said she was referred to a Dialectical Behaviour Therapy Skills group “but quit after several sessions. She was also noted to struggle with anxiety and anger. Her attendance was noted as poor.” The mother testified she “couldn’t handle” attending the group.

c. She acknowledged that the 2007 report is the most recent medical information she has -- and when that report was issued she was “not in very good shape.”

d. She said is now on a waiting list to see another psychiatrist.

TERESA & MARIJUANA

[159]. On several topics Teresa had trouble keeping her story straight. Her use of marijuana was one of those difficult areas:

a. On page 7 of the s.112 report Armstrong stated: “(Teresa) and (the mother) acknowledged the regular use of marijuana. (Teresa) reported that they smoke outside.”

b. On the witness stand, Teresa denied making that statement. She denied that the statement was true.

c. She described her current use of marijuana as two joints a week.

d. She said this has been the pattern for about nine years.

e. She said marijuana relieves her stress and helps her sleep.

f. She said prior to that she stopped using marijuana for a while when she found out she was pregnant with her now 10 year old twins.

g. She said before that pregnancy, she smoked marijuana more heavily, about six to 10 joints a week.

h. However, under cross-examination she acknowledged that the 2007 St. Joseph’s Healthcare report stated she was “asked to reduce her marijuana use. Her chronic use of marijuana was noted.”

i. If she was being described as having “chronic use” as of 2007, then clearly she was smoking more than two joints a week.

j. She reconsidered and said it was perhaps two to three joints after about 2007.

k. Before that it would have been smoking five to six joints a night. She acknowledged that was a lot of marijuana. When asked how she could afford it, she said she didn’t know the cost because her brother supplied her with marijuana free.

MOTHER & DOWLING SUBSTANCE ABUSE

[160]. Teresa testified she monitors substance abuse by the mother and Dowling:

a. She believes they have been making efforts to deal with their problems.

b. She understands the mother has stopped using alcohol and marijuana.

c. She understands Dowling has stopped drinking and that he doesn’t smoke very much marijuana.

d. She has a policy that no one is allowed to be “stoned” in her house. They can’t smoke marijuana around any of the children.

TERESA & MOTHER GETTING ALONG

[161]. Teresa and the mother both testified they have come a long way; made a lot of progress:

a. They used to fight horribly – now they get along.

b. They both used to suffer from debilitating mental health issues – now they have things under control.

c. They both used to abuse substances – now they don’t.

d. They both went through periods when they were unable to parent properly. Now they are good parents.

TERESA INSIGHT RE MOTHER

[162]. But the s.112 report expressed concern Teresa lacks insight into the mother’s mental health issues:

a. Teresa hopes that one day her daughter will be able to resume care of Parrish “however her objectivity is compromised” given that the mother is her daughter.

b. Teresa reported that the mother needs to get her sickness under control to resume care of Parrish but at the same time she doesn’t want to believe the mother is sick.

c. This is further complicated by their difficult relationship which is impacted by their mental health and history of abuse.

d. They share a bond in both having struggled with mental health challenges and being victims of sexual assault.

e. Teresa continues to allow the mother unrestricted access but this can be problematic if either are struggling with personal issues and may expose Parrish to their arguments.

f. Teresa’s ability to support Parrish’s relationship with the father is also problematic.

g. “(Teresa) advised that it would kill (the mother) to lose Parrish and that she (Teresa) would kill herself. Their focus on themselves takes away from the objectivity in what Parrish needs to ensure her needs are best met while promoting her relationship with all who are meaningful and important to her.”

TERESA & PARRISH PRIOR TO JULY 2010

[163]. Teresa described her involvement with Parrish while the child was still in the mother’s care:

a. Immediately after Parrish was born, she and McSherry concluded the mother was not strong enough to care for a baby, so they stepped in.

b. The mother and the baby spent two months living with them until the mother finally obtained her own apartment.

c. Teresa provided most of the help. McSherry contributed.

d. Initially her role was to teach the mother “how to be a mom”.

e. She helped throughout the pregnancy.

f. She taught the mother how to care for her daughter. Feeding. Bathing. General care.

TERESA & PARRISH SINCE JULY 2010

[164]. Teresa described the routine she developed after Parrish came into her care on July 31, 2010:

a. She would care for the child if she woke in the middle of the night.

b. She described a typical morning routine together.

c. Through the day they would do puzzles, crafts, arts, and build blocks.

d. She makes bracelets and necklaces with Parrish.

e. Once a week they have a “girls’ night” for Parrish, Alexis and Billie to do hair, nails, and a bit of makeup.

f. She said McSherry helped with Parrish until he moved out in October 2013.

ACCESS BY MOTHER & DOWLING

[165]. The father’s access has always been strictly defined by a series of court orders. In contrast, the mother’s access has never been defined. It has always been left to the discretion of Teresa. Similarly, after Teresa and McSherry separated, his access to Parrish was also left to the discretion of Teresa.

[166]. As noted above, on day five of the trial when I learned the identity of McSherry’s new partner, I had sufficient concerns that I felt an emergency without prejudice restriction needed to be imposed. On consent, the parties agreed McSherry’s access would not be in the presence of his girlfriend or in her home.

[167]. A similar urgent situation arose at the end of day eight of the trial, when I (and apparently the father) suddenly learned of how much access Teresa was allowing the mother and Dowling.

[168]. A brief recap:

a. The mother and Dowling both acknowledged a horrendous history of individual and joint problems, including numerous police calls and interactions with community agencies.

b. They both acknowledged significant past problems with Teresa.

c. They both acknowledged a past inability to care for Parrish.

d. The March 9, 2012 s. 112 report noted that the mother still had significant unresolved problems, but she was working “towards her goal of having Parrish visit overnights.”

e. The clinical investigator ultimately recommended that the mother have access on the Saturday of the alternate weekends Parrish should spend with Teresa, in the discretion of Teresa.

[169]. The mother and Dowling testified about the access Teresa was allowing them to have:

a. Parrish is with them alternate weekends from Friday until Sunday evening. (She spends the opposite weekends with the father.)

b. Alexis and/or Billie also sometimes join them for some or all of those alternate weekends.

c. The visits are completely without restriction or supervision.

d. The mother testified her unsupervised alternate weekends have been in place since July or August 2013.

e. In addition, the mother has “open access” on weekdays at Teresa’s residence. She has as much time with the child as she wishes. Sometimes she stays at Teresa’s house overnight so she can share in the bedtime and morning routine with Parrish.

f. Dowling has babysat Parrish without anyone being present.

ACCESS RESTRICTIONS PER COURT

[170]. I immediately became concerned about this level of unsupervised access, given clear evidence that the relationships and lifestyles of the mother and Dowling continue to be chaotic and conflictual.

a. The OCL report had summarized many, many serious problems between the mother and Dowling, including multiple police calls.

b. The mother testified that since that OCL report was completed in March 2012, she and Dowling have experienced more problems.

c. There have been three more domestic disturbance police calls to their residence since March 2012.

d. The most recent of those police calls was in January 2014 – just weeks prior to the trial. The mother and Dowling got into conflict after Dowling returned home at 6 a.m. Parrish, Alexis and Billie were all visiting at the time. The mother had to take them to Teresa’s home.

[171]. At the end of day 10 of the trial I explained my concerns to the parties:

a. I was fully mindful of the fact that the trial was only partially completed. I had not yet heard all of the evidence, nor any of the submissions.

b. But I had heard all of the evidence from the mother and Dowling – and based on their own evidence I was alarmed about Parrish having unsupervised access to the mother – or any access to Dowling.

c. The issue needed to be addressed immediately, because the mother said she and Dowling were supposed to have access to Parrish on the upcoming weekend.

d. Indeed, if the alternating weekend pattern continued, the mother and Dowling would have many more alternate weekends before a judgment was likely to be issued in this case.

e. The court has an absolute obligation to protect children, and to adjust the level of protection required as it becomes aware of any change in risk or circumstances.

f. In my view the revelation about generous, unsupervised access to the mother and Dowling was sufficiently alarming that immediate action was required – entirely on a without prejudice basis – to protect Parrish.

g. I outlined my concerns to counsel and the parties. I invited them to consider my view that the most recent evidence supported supervised access to the mother and no access to Dowling.

h. The mother appeared to be surprised and disappointed by this development.

i. After I stood the matter down, counsel returned with a written signed consent to a temporary without prejudice order: No access for Dowling. Supervised non-overnight access to the mother.

ACCESS RESTRICTIONS PER TERESA

[172]. When Teresa testified the following week, she made conspicuous efforts to make it sound as if restricting the mother’s and Dowling’s access had been her idea:

a. She testified the mother is not ready to have unsupervised overnight visits.

b. When asked why she had been allowing weekend visits if she realized the mother was not ready, Teresa testified that she came to that realization after the police call to their residence on the weekend of January 4, 2014.

c. She disputed the evidence of the mother and Dowling who both testified on March 18, 2014 that alternate weekend access had been ongoing even after the January 4 police incident.

d. Teresa insisted they were wrong.

e. She never explained why it would have been necessary for the court to take the initiative and suspend weekend visits mid-trial on March 18 -- if she had already suspended them.

f. She didn’t explain why I had been advised that the upcoming weekend was scheduled to be the mother’s weekend.

g. And she didn’t explain why it would be necessary for the parties to sign a consent suspending weekend access for the mother (and any access for Dowling), if Teresa had already imposed such restrictions two months earlier.

[173]. Teresa ran into similar difficulties trying to explain her decisions about access by the mother and Dowling prior to the January 2014 police call.

a. She denied that the mother and Dowling have been having alternate weekend visits since July or August 2013.

b. She said the mother’s alternate weekends had just started on January 4, 2014. She said she allowed one weekend visit. It didn’t go well. So she stopped weekends.

c. Upon further questioning she then admitted January 4 wasn’t the mother’s very first unsupervised weekend visit – but it was the first weekend “in a while”.

d. She then said she hadn’t allowed any sleepovers for four to five months prior to January 4, 2014.

e. She said prior to that the mother had one or two single overnight visits per month. She couldn’t recall when that pattern started.

f. The more she was questioned about when – and why – she allowed unsupervised weekend visits to such an unstable couple, the more Teresa struggled. At times, she simply remained completely silent for lengthy periods, trying to think of an answer.

g. She finally said she first allowed Parrish to go for overnight visits in the summer of 2012.

[174]. After being reminded about how horribly each of them had treated her – and each other – Teresa was asked why she felt it was safe to allow Parrish to go for even the limited access she admitted to. Again, her answers were vague and illogical.

a. She knew Dowling had a criminal record and a history of violence. She thought he was getting better – even though there were repeated indicators that the couple was experiencing significant conflict.

b. She knew the mother had a long history of mental health and behavioural problems. She thought the mother was getting better – even though Teresa was still having episodes of serious conflict with the mother.

c. Teresa knew the relationship between the mother and Dowling was turbulent. On again/off again. But she accepted their word every time they said they had resolved their problems.

d. She said the mother and Dowling seemed to be getting help for their substance abuse problems. But she also had to maintain “house rules” that she wouldn’t tolerate any intoxication or drug use around Parrish and the twins.

e. She admitted she had witnessed Dowling become intoxicated and violent in the presence of Parrish, Alexis and Billie. On July 31, 2010 for example, when she asked Dowling not to misbehave in front of these children, he became even more agitated and said things like “I don’t give a shit. I don’t care anymore.” Teresa had to call the police.

f. Nonetheless, she kept allowing him to have unrestricted contact to these young children.

g. Teresa said sometimes she allowed overnight visits to give the mother a chance to prove herself. She didn’t explain why she was “testing” the mother, if she agreed that the biggest danger to the children was Dowling.

h. She agreed it wasn’t proper for Dowling to be babysitting Parrish and the twins – but she had allowed him to babysit as recently as one time during this trial.

i. She said for a while she lived a few blocks away from the mother, and would drop by for “spot checks” to see how they were doing.

j. She admitted however that by January 2014 she didn’t live close enough to do spot checks. And she certainly wasn’t going over to do spot checks at 6:30 a.m. when things got out of hand and the mother called police.

k. She insisted Parrish’s safety is her utmost concern. She said she only leaves the child with family members she is close with.

[175]. Teresa was the 11th witness.

a. By the time she testified, the evidence had disclosed overwhelming safety and parenting concerns about the mother and Dowling.

b. It was clear that prior to my intervention mid-trial, Teresa was quite content to allow the mother and Dowling to have unrestricted access.

c. It was equally clear that Teresa only took the position that their access should be restricted after she heard me say their access should be restricted.

d. I accept the evidence of the mother and Dowling that Teresa was allowing them regular alternate weekend access up to that point in the trial when I intervened. They had no reason to lie about how much access Teresa was allowing, because they had no way of knowing it would become a contentious issue.

e. Teresa’s evidence on this point was illogical, inconsistent and blatantly self-serving. Quite simply, she realized how bad it looked that she had failed to protect Parrish by allowing so much unsupervised access to unstable people. So she tried desperately to portray that it didn’t happen – or didn’t happen very often.

TERESA & MCSHERRY

[176]. Teresa described her relationship with McSherry:

a. They separated in October 2014 after 24 years together.

b. She has the utmost respect for him – as a partner and as a father.

c. It was clear that she regrets the fact that they separated.

MCSHERRY & PARRISH

[177]. Teresa testified about McSherry’s involvement with Parrish before he moved out.

a. Sometimes he would do the night feedings.

b. Sometimes he would be home in the day and they would share responsibility for supper.

c. She said McSherry and Parrish are very bonded. She calls him “big papa”. She’s his “little bear.”

d. She said Parrish would wait for McSherry to come home from work.

e. He would read her a bedtime story every night.

f. She described him as wonderful to the mother.

g. She said he was a wonderful father to their twins Alexis and Billie; to his own adult children; and a wonderful grandfather to Parrish.

h. Teresa said since separation McSherry has continued to be actively involved in Parrish’s life.

[178]. The tendency among all of the Respondents – the mother, Teresa, and McSherry – was to describe their family relationship as loving, supporting and positive.

[179]. But under cross-examination Teresa acknowledged that no matter how many good things she was saying about McSherry on the witness stand, they’ve had their problems.

a. Teresa and McSherry have also had their share of police calls to their home for domestic disturbances.

b. On one occasion Teresa was charged with assaulting McSherry. That charge was later withdrawn.

[180]. Teresa and McSherry both testified their separation was amicable.

a. They separated in early October 2013.

b. Within two months – on January 9, 2014 – they obtained a final order on consent (without lawyers) confirming Teresa would have custody of Alexis and Billie; McSherry would have access “as agreed” between them.

c. He pays no support because he’s not working.

d. They both testified that even since separation McSherry has been coming around Teresa’s home for ongoing contact with Parrish and the twins.

[181]. Teresa testified about the impact of their separation on Parrish:

a. She admitted Parrish and the twins had been exposed to a “wee bit of conflict” in the home prior to McSherry moving out.

b. She thought Alexis and Billie might have noticed more because they were older.

c. She doubted that Parrish would have been aware of any problems in the home.

d. Teresa admitted she didn’t alert the father to the fact that there were changes going on in the household where Parrish was residing. She didn’t think it was any of his business.

e. Under cross-examination she admitted that at the beginning of October 2013 – precisely when she and McSherry separated – the father expressed concern (through his lawyer) that Parrish’s demeanor had changed. The father asked for an explanation, but didn’t receive one.

[182]. Teresa testified about McSherry’s new girlfriend C.M.

a. She’s never met her. She doesn’t like her. She admitted she probably wouldn’t like any new partner in McSherry’s life.

b. Prior to my mid-trial consent order that C.M. was not to have contact with Parrish, Teresa had been allowing all of the children to interact with C.M. during McSherry’s access.

c. Teresa testified she agrees concerns about C.M. are justified, and she no longer allows any of the children to have contact with C.M.

[183]. Teresa testified about her former partner David Myers, the mother’s biological father.

a. Myers basically deserted the mother until she was age 15.

b. Even since then he has never had much to do with her.

c. Until McSherry moved out in October 2013 Myers never used to come around Teresa’s home.

d. But since McSherry moved out Myers has been coming around once or twice a week. He stayed over for four days (Teresa said it was because he had been evicted from his own residence). His son (of another relationship) stayed over one night.

e. Teresa denied that she and Myers are in any sort of personal relationship.

f. She acknowledged Myers has contact with Parrish, because he is her grandfather.

TERESA’S BROTHER

[184]. Teresa testified about her brother:

a. He sexually abused Teresa when she was a child. He was never charged.

b. He was recently released after serving a jail sentence for sexually abusing the 16 and 17 year old daughters of his former girlfriend. He denied the charge but was found guilty.

c. He’s still subject to post-release criminal court conditions which generally prohibit him from being around children. He currently resides in Brantford.

d. Even though the brother sexually abused her, Teresa doesn’t accept that he sexually abused his girlfriend’s daughters. Teresa believes the teenagers fabricated the allegations because they were jealous of how much time their mother was spending with Teresa’s brother.

e. She disputed the OCL clinical investigator’s expressions of concern that Teresa does not fully acknowledge the threat that her brother may be to female children.

f. Parrish doesn’t know him. She’s prepared to keep her brother away from Parrish.

g. Asked if there was any reason Parrish would need to have contact with someone with the brother’s background, Teresa answered “…other than to get to know her uncle, no.”

TERESA & SUSAN

[185]. Teresa described her relationship with the paternal grandmother Susan:

a. Susan is generally unfriendly. (In contrast, Teresa agreed the father is friendly to everyone.)

b. When Susan is present during access exchanges, there is less communication and more tension.

c. When the father attends access exchanges without Susan, communication is more relaxed and spontaneous.

d. She complained Susan is stuck up and snobbish.

e. Under cross-examination she admitted that on one occasion when Susan attended for an access exchange, Teresa stated audibly “I don’t know why his mother has to be here.” She denied Susan’s evidence that the complete statement was “I don’t know why his fucking mother has to be here.” Teresa also admitted the door slammed after she made the comment, although she insisted the door slammed accidently.

f. She quoted the father as commenting that sometimes Susan “can be a little anal and controlling, and sometimes he has to shush her up.”

g. Teresa said she believed everyone could have gotten along better without Susan’s involvement – and without the lawyers.

FATHER’S ACCESS

[186]. Teresa testified about her decision to deny the father any access for five months, after Parrish was placed in her care on July 31, 2010:

a. She knew that up until May 2010 the father had been living with the mother, and he had been actively involved in Parrish’s life.

b. During questioning she wasn’t sure whether the mother advised her that between May 2010 and July 31, 2010 the mother had been allowing the father to have regular access including overnight visits. She wasn’t sure whether the mother told her those visits had been going well.

c. When she made the decision to deny access, she didn’t really know – or try to find out – what sort of relationship the father had with Parrish.

d. Under cross-examination she said the decision to deny access was hers alone, without input from the mother. She didn’t ask the mother whether she felt access should occur. She didn’t direct her mind to how Parrish would feel being denied contact with her father.

e. Teresa simply made the unilateral decision to refuse access – for as long as she was able -- even though she knew the father was “of some importance” to the child.

f. She did not contact the father to advise him that she was now caring for his daughter.

g. She did not facilitate his requests for contact or information.

h. She admitted she always knew his telephone number, and could have contacted him had she wanted to.

i. But she said at that point the mother had signed the child over to her. She had authority, and she didn’t think the father should have access because he was suddenly questioning paternity.

j. Teresa wasn’t sure when everyone learned that DNA tests had confirmed paternity. But even after the father acknowledged paternity, and even after he brought his court application, Teresa still denied him any access. She said at that point she felt he should go to court to get an access order.

k. Ironically, even after the father went to court and obtained an access order, she still denied him access.

l. She admitted she was present in court on December 15, 2010 when the father and mother consented to Justice Steinberg’s order. She insisted the decision to disobey that order was made entirely by McSherry. She had delegated authority to him. She certainly didn’t appear to disapprove of what he did.

m. Teresa admitted that once access started, everything went fine.

n. When asked whether in hindsight she felt her denial of access to the father – for about five months and even after a court order – was contrary to Parrish’s best interests, Teresa begrudgingly admitted perhaps it was a mistake.

[187]. Teresa’s testimony concerning her prolonged denial of access to the father was meandering, evasive, illogical and demonstrated an absolute lack of insight and good faith. She tried to rationalize and justify her callous indifference to the father-daughter bond -- and her unmitigated abuse of temporary custodial authority -- using the flimsiest of excuses.

SCHOOL INFORMATION

[188]. Similarly Teresa was unconvincing in trying to explain why she appeared to go out of her way to deny the father any access to school information, after Parrish commenced Junior Kindergarten in September 2013:

a. The father testified that as soon as Parrish started school he would ask her simple questions like how school was going?; Did she learn anything in school today?; etc.

b. He testified that whenever he asked, Parrish responded that Teresa had told her she was not allowed to tell the father anything. If he asked even the simplest of questions Parrish always said “grandma said not to tell you”. He felt very frustrated.

c. He said when he went to her school he was advised that Teresa had given staff instructions that they were not to release any information about the child to the father.

d. He tried to resolve the matter with Teresa but without success.

e. On November 15, 2013 Teresa wrote in their communication book: “…Also to Mike your (sic) not allowed to call the school as they will not give any information to you or anyone else who calls into the school!!! So if there’s any question about her just ask me or read it in the communication book as I will give you update on Parrish and how she is doing in school.”

f. He said after getting legal advice, he returned to the school to try to explain that as a parent he had a right to information about his own daughter. Nonetheless, the school insisted it could not release information based on Teresa’s instructions.

g. He said ultimately he returned to his lawyer again, and it took a few weeks to straighten the matter out. Eventually he was allowed access to information about Parrish.

h. Under cross-examination Teresa admitted telling the father he didn’t have the right to contact the school. She also admitted telling the school not to communicate with the father.

i. Her explanation: She didn’t know if the father had the right to information about Parrish, so until she found out she told the school not to give information about any of her children to anyone. She said after she spoke to her lawyer, she lifted the restriction in relation to the father.

[189]. Her explanation defied logic:

a. The father’s request was straightforward: His daughter had just started junior kindergarten, and he wanted to know how things were going.

b. Teresa did not deny the father’s evidence that Parrish had been expressly told by Teresa that she was not allowed to tell him anything about school.

c. If Teresa “wasn’t sure” whether the father had the right to school information, rather than go to the trouble of attending at the school and instructing them not to communicate with the father, it would have faster and easier for Teresa to simply phone her lawyer and get an instant answer on this very simple question.

d. School started in September. The father raised the issue right away. By the time Teresa made her November 15, 2013 entry in the communication book, she would have had ample time to ascertain whether the father was supposed to be allowed to communicate with the school. It would have taken her no more than a five minute phone call.

e. It is clear that just as Teresa initially tried everything possible to prevent the father seeing Parrish; she later tried to prevent him from having access to information about his daughter.

SCHOOL PROBLEMS

[190]. The father testified that when he was finally able to speak to school staff about his daughter, he discovered troubling information.

[191]. School attendance has been an ongoing problem:

a. Since September 2013 Parrish has missed 27.5 days from school, which – according to the testimony of her teacher Sandra Mrzic -- is above average for students.

b. She has basically missed 25% of her first school year.

c. In addition she has been late 16 times, which is also above average.

[192]. Teresa and McSherry both testified that they would take turns walking Parrish to school in the morning, usually with Alexis and Billie.

a. Teresa said there were a number of explanations for the school absences, including colds, the flu, and four days as a result of head lice.

b. Teresa said sometimes she has trouble getting Parrish to school on time because sometimes either Parrish or one of the twins is resistant and moving very slowly. “I can’t control their moods.”

c. Under cross-examination she admitted that getting children to school on time is a basic parental responsibility, and ultimately she has to assume responsibility for how often Parrish and her other children have been late.

d. McSherry testified that after he moved out he came to realize how much help Teresa needed, so lately he’s been coming around more in the mornings to help get the children to school on time.

[193]. Teacher Mrzic testified Parrish displays behavioural problems at school:

a. She tends to be physical with other children: pinching; scratching; hitting people in the face.

b. These inappropriate behaviors occur often – usually daily.

c. In December 2013 and again in February 2014 Parrish was sent home early as a result of unacceptable behaviours. This is called a “therapeutic withdrawal” and not a “suspension” as the father had described it.

d. On one of those occasions she scratched a student across the face. On the second occasion she punched a student in the face. These are not unusual behaviors for Parrish, but those two incidents were more serious because on each occasion the assault left visible marks on the face.

e. As a result of her ongoing behavioural problems, Parrish has “her own little spot” in the classroom, where she has to stand when she gets into trouble.

f. Mrzic testified in November and December the problem seemed to be getting better. But since January 2014 the problem has been getting worse again.

BEHAVIOUR OUT OF SCHOOL

[194]. I heard a great deal of evidence about Parrish being aggressive and swearing outside of the school environment as well.

a. The father and his parents each testified that Parrish uses extremely foul and upsetting language when she gets frustrated, or in particular when they try to discipline her by giving her a time out.

b. They gave graphic evidence about how the little girl would repeatedly shout “Fuck off” and “Fuck You” if she was being given a time-out.

c. The paternal grandparents each testified they have tried to explain to Parrish that she shouldn’t use language like that, and that nobody in their household swears.

d. Under cross-examination Susan said she wasn’t really sure where Parrish was picking up such horrible language. The child told her there was always fighting at Teresa’s house. But Susan also thought McSherry blamed Dowling for teaching Parrish bad language.

e. The mother admitted Parrish says “fuck” a lot. But she denied Dowling was to blame. She said there is profanity everywhere – “on the street; in the mall” – and that Parrish could have picked up this language from strangers.

f. Michael Sr. testified Parrish told him Teresa says the “f” word.

g. McSherry testified he hardly ever heard Parrish swear.

h. But Teresa agreed with the others: Parrish swears a lot. Teresa couldn’t explain why.

i. OCL Social Worker Armstrong testified she was aware the father had complained about Parrish swearing. She said during her three observation visits of one hour each, she never heard Parrish use foul language.

[195]. Teresa and McSherry didn’t think Parrish’s behaviour was such a big concern.

a. Teresa said sometimes Parrish is a bit aggressive, but she denied the child is a bully at school. She said she thinks some of her acting out is “just a phase”.

b. She said she has a lot of success using “time-outs” in her home.

c. McSherry commented Parrish was aggressive “from the day she was born”. He sounded approving as he stated “She doesn’t take it from anybody”. He endorsed her confident and assertive personality. “I think she’ll do well in life.”

d. McSherry said he was aware some teachers felt she was a bully, and he has encouraged her not to be a bully.

e. Teresa expressed surprise at McSherry’s testimony that he had only heard Parrish swear one time. She confirmed the evidence of the father and Susan that Parrish regularly uses foul language.

SCHOOL PERFORMANCE

[196]. The teacher summarized Parrish’s academic progress in junior kindergarten:

a. Her progress is below average.

b. She is struggling in some areas.

c. She is starting to show some improvement

d. During questioning about the child’s report card, Mrzic admitted teachers are generally told they are supposed to make reports appear positive.

e. Parrish has been promoted to senior kindergarten for next year.

[197]. Teresa testified about how well Parrish is progressing.

a. She knows her colours and shapes.

b. She can count to 100 in English and 20 in French.

c. She knows the entire alphabet in English and half in French.

TERESA & S. 112 REPORT

[198]. Teresa testified she didn’t agree with the OCL’s recommendations:

a. She didn’t think the investigation was fair or balanced:

b. She felt the report was one-sided, and the investigator looked much harder for problems on the mother’s side than on the father’s side.

c. The investigator spent more time “nit-picking” about problems in her home as opposed to the father’s home.

d. The OCL called CAS to report concerns about the mother’s side, whereas the OCL never called CAS to report anything about the father’s side. (Armstrong explained she had a statutory obligation to report new allegations about the mother’s side to CAS, but there were no new allegations about the father’s side, that CAS was not already aware of).

[199]. Under cross-examination, Teresa acknowledged:

a. There were very few factual errors in the OCL report, and they were of little significance.

b. The OCL likely spent more time investigating police and CAS reports in relation to the mother’s family members – because they had much more extensive involvement with these agencies than the father’s family members.

c. The OCL likely spent more time examining mental illness relating to Teresa and the mother – because there was no evidence of mental illness relating to the father or his family.

d. The OCL spent more time talking about marijuana use on the mother’s side, because there was more marijuana use on the mother’s side.

MCSHERRY

MCSHERRY BACKGROUND

[200]. McSherry represented himself at trial – both competently and somewhat aggressively. His background briefly:

a. He came to Canada from the United Kingdom in 1973.

b. He’s had a bit of a rough life and has lived alone since age 14. But he never had any CAS involvement as a child.

c. He has no criminal record.

d. He has worked at a variety of positions. Eleven years ago he was seriously injured working as a high pressure water blaster when he fell 300 feet. He says eventually he went off work.

e. He says he is unemployed, although he also made reference to doing a few light duties in his small “shop”. He appears to be doing occasional car repairs “to keep his hands busy”, although this was never pursued in any detail at trial.

f. He used to get money as a dependent on Teresa’s ODSP payments. Now he has been qualified as a dependent on his current partner’s ODSP payments.

g. He has five biological children (including Alexis and Billie), and the mother is his step daughter.

h. McSherry is not lacking in confidence. He tended to speak in boastful, self-aggrandizing ways, with a tendency toward grandiose thinking.

i. He’s also quite shrewd, and easily fell into the role of legal advocate.

j. While Susan was criticized as being the meddling “matriarch” of the father’s family, there could be no doubt whatsoever that McSherry is very much a dominant figure in the lives of both the mother and Teresa.

MCSHERRY & S.112 REPORT

[201]. The s112 report included the following observations about McSherry:

a. He hopes the mother will be able to parent Parrish at some point and this will be when she is more interested in Parrish than relationships.

b. He has concerns about the father’s parenting abilities and believes that he has a sex addiction and is a liar.

c. He acknowledged that he and Teresa have a love/hate relationship.

MCSHERRY & FATHER

[202]. McSherry was quite critical of the father, insisting he requires counselling for anger management, parenting and sex addiction. (I heard virtually no explanation for the latter suggestion.)

[203]. In contrast the father stated he has no problems or personal issues with McSherry.

MCSHERRY & MOTHER

[204]. Susan testified about McSherry’s relationship with the mother:

a. The mother had stated McSherry was her step father and had been involved in her life since she was a little girl.

b. The mother stated she didn’t want Parrish growing up the way she was raised.

c. The mother had told Susan she had to “couch surf” during her pregnancy because of conflict with McSherry.

SHANNYN

SHANNYN AS A WITNESS

[205]. Shannyn Peterson was called as a witness by the mother’s counsel.

a. She attended court pursuant to a subpoena.

b. She made it clear that she did not wish to participate in this court case.

c. She had previously resisted a pre-trial motion for disclosure of her CAS records.

[206]. Notably, despite her displeasure at being forced to testify:

a. She attended court on time for the sixth and seventh days of the trial.

b. She was equally civil, polite, and responsive to questions from the three lawyers and the self-represented McSherry.

c. She displayed a remarkable knack for remembering precise dates – and on the few occasions when she couldn’t remember a date or detail, she had no hesitation in admitting she couldn’t remember.

d. She answered questions in a very forthright way, with little apparent regard for whether her evidence helped or hurt either party – and seemingly no regard for whether her evidence made her look good or bad.

e. Despite thorough cross-examination, her evidence was not undermined.

BACKGROUND

[207]. Shannyn’s background information:

a. She is 29 years old.

b. She and the father have a two year old son Joshua. She also has two older children Jason and Ryan of separate relationships.

c. She has a grade 12 education and is a full-time homemaker.

[208]. She described the history of her relationship with the father.

a. They have known each other 17 years, but only started an intermittent romantic relationship in about 2010.

b. After Joshua was born, initially she allowed the father to have unsupervised access, or she would join the father when he had access at his parents’ home.

c. However, after Shannyn had a falling out with Susan, she insisted that the father only exercise access in her presence.

d. She wasn’t concerned that his parenting skills needed to be monitored. She trusts him as a father. But she wanted to make sure the father didn’t take Joshua to have contact with Susan.

e. She said the father would come to her home between two and three times a week, often staying overnight, to see Joshua.

f. She made it clear to the father: if he wanted to see Joshua, he had to come to her home.

[209]. The father gave similar evidence about the status of their relationship:

a. He goes to Shannyn’s residence solely to visit their son.

b. Until the beginning of 2014 he used to go over three times per week, and sleep over (on the couch) one night per week. Lately he’s been going less frequently.

c. He goes there simply because Shannyn won’t allow him to remove Joshua from her home. She insists on being present during all visits

SHANNYN MENTAL HEALTH

[210]. Shannyn’s mental health was a major source of discussion during the trial. She openly acknowledged that she suffers from severe anxiety, which sometimes affects her behaviour.

[211]. The father testified Shannyn’s mental or psychological problems led to physical and verbal conflict between them.

a. He described Shannyn as aggressive and unpredictable.

b. He would respond to her aggression by walking away to give her a chance to calm down.

c. He said for example he sometimes went out to his car to watch a DVD while she calmed down.

d. If she didn’t calm down in a reasonable amount of time, he would leave.

[212]. His description of conflict avoidance with Shannyn was consistent with police reports which said the father used to walk away from conflictual situations with the mother.

CELL PHONE ASSAULT

[213]. Unfortunately, on at least one occasion the father didn’t walk away from Shannyn, and he ended up being charged with assaulting her.

[214]. The father’s version:

a. He was bathing Joshua, who was in the tub.

b. Shannyn took his cell phone and attempted to access his personal information.

c. When he refused to give her the password, she threatened to throw the phone into the bath.

d. The father said he was worried his collection of sentimental videos and photographs of his children would be destroyed if she threw the phone into the water.

e. He said she was behaving in a very aggressive and bizarre manner, and he was fearful about what she might do.

f. He testified he put her in a headlock to physically control her.

g. When she continued to behave aggressively and kept trying to hit him, he slapped her “to bring her to her senses.”

h. He said as soon as he slapped her, she stopped behaving aggressively.

i. She called police. He admitted the headlock and slapping to the investigating officers.

j. He was taken into custody.

k. However, Shannyn did not proceed with the charge. The father said it was resolved by way of a peace bond, and he abided by the terms.

l. He seemed confused about whether he had actually been charged with anything. But he agreed Shannyn “dropped the charges.”

m. He admitted that perhaps he was too concerned about not losing images on his cell phone, and not concerned enough about avoiding violent conflict in front of children in the home.

n. He agreed a headlock and slapping are not appropriate responses to a female when she is out of control.

o. He admitted he should have just walked away.

[215]. Shannyn’s evidence was similar, but less blaming of the father:

a. She agreed the father was giving Joshua a bath and she came across his cell phone and noticed that it had a password. She didn’t think they should use passwords to keep secrets from one another so she demanded that he reveal his password.

b. She said at the time she started having an anxiety attack and that her behavior became more erratic.

c. She admitted she threatened to throw the father’s cell phone in water if he didn’t reveal the password.

d. She testified that a neighbour saw the father shaking her, misinterpreted that they were having a fist fight, and called the police.

e. She said in reality the father was “snapping me out of having an anxiety attack.” She commended the father on his ability to calm her down when she gets out of control and starts having anxiety attacks. She said he is the only person who knows how to help her when she is having an anxiety attack.

f. She denied telling police the father had punched her in the face.

g. She denied the father was upset with her. She said he was “more frustrated.”

h. She admitted under cross-examination that she sometimes doesn’t have a clear recollection of events which transpire once she experiences one of her anxiety attacks.

i. She admitted if she had a panic attack while children were in her care she could be debilitated, but she would count on her oldest child to call for help.

j. After the conflict over the cell phone, the father was charged with assault. But she called the crown attorney’s office to request that the charge be dropped, because she felt the father had done nothing wrong. She felt she had been the one to provoke the incident, and the father had simply restrained her to get her to calm down.

k. Initially she described the father as being placed on a peace bond for four months. She agreed with counsel’s clarification that the four months referred to the amount of time the father was on bail awaiting trial. She said during that time the father adhered to the restriction that he not have any contact with her. The father was subsequently placed on a one year peace bond during which he was allowed to have contact with her.

l. She said this was the only time that either CAS or police were called in relation to any type of verbal or physical conflict between her and the father.

EX-BOYFRIEND INCIDENT

[216]. Shannyn and the father each testified about another curious incident in her residence. The father’s version:

a. Under cross-examination he admitted he once hid in a closet while Shannyn’s former boyfriend made sexual advances toward her.

b. He admitted there was some violence, and that Shannyn’s children were present in the home.

c. He agreed this was an example of poor judgment on his part.

[217]. The father was not a very “detail-oriented” witness. His above noted description really left a lot of questions about what had happened. Shannyn, on the other hand was a very “detail-oriented” witness. Her testimony was more thorough:

a. First, she was quick to clarify that there was never any closet, nor was the father involved in any violence.

b. She had broken up with a former boyfriend Matthew, but he continued to text her sexually suggestive messages. Shannyn wanted to be able to reassure both the father and Matthew’s current girlfriend that she was the unwilling recipient of this sexual attention.

c. So Shannyn orchestrated a situation in which Matthew came to her residence, while the father listened from a bedroom, and Matthew’s girlfriend listened from outside through the front door.

d. When Matthew started making sexual advances toward Shannyn, he was confronted by both the father and the girlfriend.

e. Shannyn testified the real conflict on that occasion had nothing to do with the father. It was Matthew’s girlfriend who “freaked out” on him.

f. After Matthew and the girlfriend left, Matthew ended up assaulting the girlfriend in the parking lot. That was the “violence” the father had referred to under cross-examination.

g. So yes there was an assault, but it had nothing to do with the father.

TERESA & ALCOHOL

[218]. Shannyn acknowledged making a call to police in June 2011 to report Teresa was intoxicated while caring for children.

a. She said when the father returned from dropping Parrish off at Teresa’s house, he mentioned to her that he smelled alcohol on Teresa.

b. Under cross-examination she acknowledged the father didn’t say Teresa was drunk or acting inappropriately. He simply told her he smelled alcohol.

c. She said she took it upon herself to call the police because she was worried Parrish (and the other children in the home) might be in danger if Teresa was under the influence of alcohol.

d. She acknowledged that she didn’t make any effort to verify the facts.

e. She admitted it might be traumatic for the children in the household to see police attend. But she said she was worried for the children and felt she needed to do something.

f. She said she has never called police or CAS about either Teresa or the mother on any other occasion.

[219]. The father insisted he had nothing to do with the call to police:

a. He simply mentioned to Shannyn he thought he smelled alcohol on Teresa.

b. He didn’t expect her to act on that information.

c. He didn’t know she had called police.

d. He later admitted what he smelled might actually have been mouthwash.

e. He never intended to turn this into a major issue.

[220]. Nonetheless it did turn into a major issue:

a. Teresa testified that by June 2011 she felt the father’s access was going well enough that it could expand to include overnights.

b. But after being falsely accused of being drunk while caring for children, Teresa decided against allowing overnight visits.

c. Under cross-examination, Teresa admitted she soon realized the father wasn’t the one who called police. But she still wouldn’t agree to overnight visits.

d. When asked why the father and Parrish should be punished for something Shannyn did, Teresa answered vaguely that it was “because of the way he handled it.”

[221]. It is entirely understandable why Teresa was angry – at Shannyn. But after Teresa came to realize that the father likely had nothing to do with the irresponsible call police, Teresa’s change of heart on the issue of overnight visits could no longer be justified.

SHANNYN & OTHER ALLEGATIONS

[222]. Shannyn was asked about a number of other specific allegations or incidents, culled from CAS records.

a. She said she was cleared of a complaint to CAS that she was having a large number of males coming to her residence, and that her son Jason was being exposed to sexual activity.

b. She agreed that in 2010 she reported to CAS a concern about sexual touching of her oldest son by the girlfriend of the boy’s father. The allegation was not verified by CAS.

c. She acknowledged in July 2010 she reported to a public health nurse that she threw a boyfriend out after he assaulted her. She denied saying that she “beat the crap out of him.”

d. She denied being a violent person.

e. She admitted suffering from depression and sometimes acting in an uncontrolled manner, but she denied throwing a candle at a former boyfriend.

f. She denied an allegation that her older child had tried to get a knife out of the kitchen.

g. She denied being investigated by CAS for allegedly slapping the father of one of her older children.

h. She denied conspiring with Parrish’s father to fabricate allegations about the mother or Teresa.

i. She recalled there was a situation in which she and the father were walking down the street when the father was hit on the head by a passerby in a completely unprovoked attack. She said police were called, the assailant was charged, and the children present were never in any jeopardy.

COHABITATION

[223]. The father and Shannyn both denied under cross-examination that they were living together. But they gave dramatically different evidence about whether they will likely live together in the future.

[224]. The father said even though he doesn’t know the details of Shannyn’s problems with CAS concerning her other children, from his own observations it is clear that she has serious problems.

a. He described Shannyn as aggressive and unpredictable. He said her behaviour and potential for violence is “crazy”.

b. She has a tendency to become physically and verbally aggressive; completely out of control.

c. As a result, he said he only wants to have the minimum amount of contact required to exercise access to their child Joshua.

[225]. He specifically denied the allegation that they are either currently living together or plan on living together in the future:

a. He admitted he attends Shannyn’s residence a lot – but only to see his son Joshua. She is the mother of his son Joshua. That’s their only connection.

b. He denied living in her home or acting as a father toward her other children.

c. He admitted he has a set of clothing at Shannyn’s residence, to facilitate overnight access to Joshua. But the rest of his belongings are at his permanent residence in his parent’s home.

d. He admitted that at one point long ago they considered having another child together. He said that discussion had long-since ended.

e. He said he was actually trying to keep his distance from Shannyn as a result of her unpredictable behaviour.

f. He insisted that even if Shannyn has been telling people she and the father might reconcile, it’s simply not going to happen.

[226]. He had no hesitation in agreeing Parrish should have no contact with Shannyn in the future.

a. He said Parrish hasn’t been to Shannyn’s house in two years.

b. He agreed it would be inappropriate for Parrish to have any contact with Shannyn, other than if Parrish happened to be with the father when he went to Shannyn’s house to pick up Joshua for access.

c. Shannyn is not part of his custody proposal. Parrish will not have any contact with her.

[227]. Long after he testified an allegation arose that outside of the courthouse, on day 12 of the trial, he confessed to the other parties that he and Shannyn were really living together.

a. The father returned to the witness stand to categorically deny ever making such a statement.

b. He denied ever deceiving the court about his relationship or plans with Shannyn.

c. After repeated hypothetical questions he stated: “There might be a time when I want to live with her but right now no.”

[228]. Shannyn, on the other hand, was very clear in expressing not only a hope but an expectation that she and the father will reconcile and be together in the future.

a. She said their relationship has been intermittent.

b. They have placed their relationship “on hold” while the father deals with this court case involving Parrish.

c. However she expects that they will “re-start” their relationship as soon as court is over.

d. She hopes that “in a year or two” they will find a residence big enough for all of their children, and they will all live together.

e. “If things go good, there’s a good chance we could be married in the next numerous of years.”

f. If the father is awarded custody of Parrish, she perceives that she will play the role of step-mother to the child.

g. She admitted there has been no specific plan or discussion between them. They have not pursued any sort of counselling to address their problems. But she believes they would be willing to do anything to make their relationship work out.

h. Under cross-examination by father’s counsel, she agreed that to an outsider it looks like the father is only attending at her residence to visit his son. She admitted they have had many problems in their relationship. But she insisted “as it stands right this moment there are no problems.”

i. She admitted that on December 23, 2013 she gave the father a handwritten note telling him to get any of his belongings out of her home, and threatening to call the police if he came around. But she said afterward they patched things up.

FATHER’S CUSTODY CLAIM

[229]. Shannyn was very supportive of the father’s custody claim:

a. She described him as having good parenting skills and a good relationship with Parrish.

b. She said her older sons Jason and Ryan regard him as a step-father and that he is a good role model.

c. She approved of his proposed daycare provider Thayer, who she described as very skilled with children.

[230]. She didn’t think the father needs any additional professional help or counselling:

a. She confirmed the father’s evidence that they had both taken a parenting course.

b. She wasn’t sure if he had taken an anger management course. She didn’t think he needed one.

c. She was adamant the father doesn’t need help for any sexual addiction.

SHANNYN & PARRISH

[231]. Shannyn confirmed the father’s evidence about her interaction with Parrish:

a. The father never brings Parrish with him when he visits with Joshua.

b. Parrish has not been to her home since his custody dispute with the mother and Teresa began in 2010.

c. She last saw Parrish in June of 2013. Before that it was July 2012.

PARRISH & JACOB

[232]. Shannyn expressed a strong desire that Parrish and Joshua should have sibling contact with one another in the future:

a. “It breaks my heart that they don’t see each other.”

b. She said she would participate in any arrangement for the siblings to have contact – anywhere – whether the father was present or not.

SHANNYN & SUSAN

[233]. Shannyn described her relationship with the father’s mother Susan:

a. She doesn’t get along with Susan.

b. The last time Shannyn attended her home in July 2011, Susan asked her to leave.

c. Shannyn appeared reluctant to say anything bad about anyone during her testimony. She simply said she and Susan don’t get along. She cited “personal reasons.”

d. Under cross-examination she agreed Susan is a controlling person and that perhaps she exerts too much influence on the father.

e. She remembered Susan once commenting she didn’t want to raise a child again. But she isn’t sure how Susan feels now. She said quite some time ago she saw Susan with Parrish and they appeared to have a good relationship.

f. She said she tries to avoid contact with Susan.

g. She has never heard Susan use foul language.

[234]. Shannyn testified she really doesn’t know much about either the mother or Teresa.

HEAD LICE

[235]. A number of issues dominated the trial. Perhaps foremost was Parrish’s ongoing problem with head lice.

[236]. The father testified he cherishes his daughter but their time together – and her life in general – are being severely, negatively impacted by a horrible problem Teresa refuses to address: head lice.

[237]. He explained:

a. Head lice has been a chronic problem for the child.

b. At the beginning of each of his alternate weekends, he has to go through a routine of undressing the child (to avoid infesting his home); bathing the child; and checking her hair for nits and lice.

c. He described in graphic detail – corroborated by numerous entries in the communication book – the frequency and frustration associated with this issue.

d. He said he combs his daughter’s hair but she becomes impatient after a few minutes, and cranky because the infestation bothers her so much.

e. He said often he has to comb out her hair while she is asleep (working in the dark with a flashlight) because that’s the only way he can get her to sit still.

f. He said on his alternate weekends it often takes the whole of Friday evening and half of Saturday to try to get the infestation under control. By the time he drives Parrish back to the Teresa’s home on Sunday, all of the lice and most of the nits are gone. But when the child returns for another visit in two weekends, the child’s hair is usually infested again. He has to go through the whole process again.

g. He said he washes the clothes she came in, for the return trip to Teresa. He admitted under cross-examination that washing and drying the clothes may not kill the infestation. However, he said he can’t provide his own clothes for the child’s return trip, because in the past he has sent new clothes and they were never returned.

h. He said the infestation problem significantly affects his activities and interaction with the child. Bathing, washing hair, and combing out nits is time-consuming, and undermines the quality of their interaction. Parrish hates having nits and lice and also hates having her hair combed out.

i. He said the child is desperate to have her hair cut to resolve the infestation. But he said he got in trouble once when he cut off an infested section of hair. He said he sometimes trims her bangs, not only because of the infestation problem but also for safety (her hair was so long she couldn’t see where she was going).

j. He said the serious infestation problem has also limited the range of activities he can engage in with the child during visits. He won’t take his daughter to public places like malls and stores, where she might spread the infestation. Similarly he is limited with respect to the number of family members whose homes he can visit with his daughter.

[238]. McSherry cross-examined the father somewhat aggressively on the topic:

a. He suggested the father didn’t really know much about the problem; available treatments and products; the relative prevalence head lice in the school system; or whether this child’s problem was serious or relatively minor.

b. He accused the father of traumatizing Parrish needlessly by so consistently and aggressively washing and combing through her hair.

c. The father agreed he probably shouldn’t have cut Parrish’ hair on that one occasion. But he said he was frustrated that the child appeared to be in ongoing distress as a result of the infestation. The adults in Teresa’s home weren’t doing anything about it.

[239]. Susan was even more emotional and assertive describing the problem:

a. She said head lice have been a problem for the last three years.

b. In 2011 she made two entries in the communication book about the problem.

c. In 2012 she made two more entries – but there were probably five or six more occasions when she didn’t write anything because Teresa was ignoring the issue in her written responses.

d. She said from May 2013 until the end of the year, there were 13 weekends when Parrish arrived for access with a terrible problem with head lice.

e. She said the problem has continued in 2014, and recently Parrish had to miss five days of school because of head lice.

f. She denied this was merely an issue of Parrish being infested at school – because Parrish had head lice long before she first went to school in September 2013.

g. Susan described it as a “constant, constant issue”. She agreed with the father that the early part of each weekend visit is generally dominated by changing and washing the child’s clothes; washing and combing out her hair; applying skin treatments and remedies; and trying to relieve the little girl’s distress as she continually scratches her scalp and complains about how unpleasant it feels.

h. Susan testified she suggested to Teresa that perhaps Parrish could switch to a shorter haircut so there would be less hair to be infested. She said Teresa reacted negatively, misperceiving that she was suggesting the child’s head should be shaved.

i. Apart from the discomfort of the nits and lice themselves, she expressed worry and sorry about the chemical burns the child was experiencing from the harsh treatments. She said she suggested tea tree oil which Teresa has now adopted, to try to prevent head lice.

j. Susan stated that almost every weekend she and the father make progress addressing the head lice problem. But the progress is undone when Parrish returns to Teresa.

[240]. The father and Susan both testified that when Parrish was left in their care for a longer period of time – during an extended access over the 2013 Christmas holidays – they were able to completely eliminate the problem within the first five days. But after Parrish returned home, on the very next visit they noticed the nits and head lice were back.

[241]. McSherry testified that he’s been an expert on the subject since the 1980’s:

a. He repeatedly referred to infestation as “pisticulosis”, even though the correct terminology appears to be “pediculosis”.

b. He said his daughters have suffered from head lice for years.

c. He suggested Parrish was getting head lice at school. He admitted she also had head lice before school started.

d. He suggested the father and Susan were exaggerating the extent of the problem.

e. He also accused them of being inept in trying to treat the problem. He suggested perhaps the source of infestation might be their own home.

f. He insisted that he and Teresa have always made reasonable efforts to control head lice, but that complete and permanent eradication is impossible.

g. He insisted head lice are not a “health issue”. They are more of “an aggravation.”

h. Whenever he either testified or asked questions on the topic, McSherry maintained an air of superiority, as if he knew more about the topic than anyone else.

i. But when cross-examined about specifics – why he didn’t do more to respond to the father’s repeated expressions of concern in the communication book, for example – McSherry became evasive and somewhat hostile.

[242]. Teresa’s evidence on this topic tended to be defensive and lacking insight:

a. She said she has always monitored the problem, but it is difficult to control.

b. She said the mother used to have head lice when she was a child. Alexis has a problem with head lice, although Billie doesn’t. She felt some children, including Parrish, are simply prone to head lice.

c. She outlined the many techniques and products she has utilized to combat the problem.

d. She criticized the father for trying to deal with the problem by cutting Parrish’s hair without Teresa’s permission. But she admitted that at one point within her own home, Parrish got some scissors and cut her own hair. She described the child’s sudden action as a “typical thing”. Despite the heart-wrenching evidence of the father and Susan that Parrish was constantly complaining the head lice were driving her crazy, Teresa appeared oblivious to the suggestion that the child started cutting her own hair because she couldn’t stand the itching any longer.

e. Under cross-examination she admitted that on one occasion she knew Parrish had nits when she was sent for a visit, but Teresa didn’t forewarn the father. She then chastised the father in the communication book for being unprepared to deal with the problem.

f. Notably, she admitted that generally when Parrish returns from alternate weekend visits with the father, the head lice and nits are gone.

[243]. The mother acknowledged Parrish has a problem with head lice. She wasn’t sure of the cause but wondered whether Parrish is physically predisposed to head lice just as she and Alexis were predisposed.

[244]. In any event she insisted that she and Teresa have done everything possible to combat the problem.

[245]. Kindergarten teacher Sandra Mrzic testified:

a. Parrish has been in her class since September 2013.

b. She couldn’t comment on how many times Parrish had been observed to have head lice.

c. From her recollection, it was not a large number of times.

[246]. Armstrong testified that she had been advised head lice was a historical problem. However, she did not believe it was a current issue during the time she conducted her s.112 investigation.

[247]. The father’s neighbour and proposed daycare provider Thayer testified:

a. At times the father would cancel plans to send Parrish to her house to play with her child, because of the head lice problem.

b. She commended him for his dedication to dealing with what she regards as a serious issue.

c. In her home day care she maintains the same protocol as the public school system. Children are not allowed to attend her home until the head lice issue has been resolved.

[248]. Shannyn recalled seeing Parrish dirty and having head lice in 2011.

CAS INVOLVEMENT

[249]. Another very time-consuming issue during the trial related to a series of reports made to CAS concerning Teresa and her household:

a. Some of the reports were anonymous. There were conflicting theories about who made the calls.

b. Some of the complainants were identified. There was debate about whether people were acting in good faith.

c. None of the reports were verified.

d. The issue was whether the mere fact that these reports were made to CAS reflects on the parenting skills and good faith of any of the parties.

SEPT 2011 OCL REFERRAL

[250]. OCL clinical investigator Armstrong testified that during the course of her investigation she received information from the father which caused her to make a report to CAS concerning the Parrish’s situation in the home of Teresa and McSherry. Specifically, in September 2011 she reported concerns about:

a. A lock reportedly placed on Parrish’s bedroom door.

b. Marijuana use in the home.

c. The child swearing in the home.

[251]. Under cross examination she acknowledged that she did nothing to investigate the allegations. She reported information which had been communicated to her – because she had a statutory obligation to do so -- and she left it for CAS to conduct its own investigation.

[252]. Armstrong acknowledged that ultimately the Society did not conclude that any of the allegations warranted further action.

[253]. The social worker acknowledged Teresa and the mother had previously made allegations about the father which the OCL failed to report to the Society. She said there was no need to report those allegations because they had already been communicated to the Society – and similarly the Society had already discounted that there was any need to take further action in relation to the father.

BEDROOM LOCK

[254]. The father testified that from personal observation he could attest to the fact that there was a locking mechanism – a little latch – at the top of Parrish’s door in Teresa’s home. That’s what he told the OCL.

[255]. He had no explanation about why CAS ultimately reported that they saw no evidence of a lock on the door.

[256]. Armstrong acknowledged she later attended at the home and didn’t see a lock. She said the door was a bi-fold type which appeared to have no locking mechanism. She said she didn’t actually look for holes to see if a lock had been removed.

[257]. Teresa and McSherry both testified there never was a lock on the door, and that the construction of the door made it impossible to attach a lock.

[258]. I must conclude there was no basis for the father’s allegation about the lock.

MARIJUANA

[259]. The father had complained about the use of marijuana in the maternal grandmother’s home. Armstrong testified:

a. According to CAS records, the maternal grandmother and McSherry readily admitted recreational use of marijuana, not in the home, and not when they were caring for any children.

b. Armstrong testified she never smelled marijuana when she attended at the maternal grandmother’s home.

[260]. McSherry testified that he used to smoke marijuana in the home on a recreational basis because it was a good stress reliever. He said as long as nobody smoked in the house, and as long as it was after the children were in bed, “it’s fine”. When asked how often, he said it happened “evenings before bed.”

[261]. He testified however that he had stopped smoking both marijuana and tobacco about two months before the trial. He emphasized there was never any use of alcohol or drugs around any children in his household.

[262]. Given the admissions by Teresa and McSherry about their ongoing use of – and approval of – marijuana, I do not regard this aspect of the father’s complaint as being either false or malicious.

FOUL LANGUAGE

[263]. Similarly, given the fact that Teresa and the mother both acknowledged Parrish uses extremely inappropriate and foul language, I find there was a reasonable basis for the father’s expression of concern.

MARCH 9, 2013 SEX ABUSE CALL

[264]. On March 9, 2013 a bizarre and troubling allegation arose concerning Parrish and another child being the victims of sexual abuse within Teresa’s household.

a. Susan testified it was a Friday evening and Parrish had just arrived at their home for a weekend visit.

b. Shortly after 9:00 p.m. she received an anonymous phone call from a man who said he was looking for the father. She told him the father was still at work.

c. She testified the man then urged her to remove Parrish from Teresa’s household because he had witnessed Parrish and another little girl being sexually abused by a group of men in Teresa’s living room. The caller – who refused to identify himself – said he observed this abuse through the front window of the home. He made additional allegations of drug abuse and prostitution in the home.

d. Susan was unable to trace the call or ever identify the caller.

e. She testified she was horrified by the information she had just received. Neighbour Melanie Thayer confirmed that Susan came to her in an extremely agitated state, asking what to do.

f. Eventually the police and CAS became involved.

g. Predictably, police advised the father and Susan not to return Parrish to Teresa’s household until an investigation could be completed.

h. Equally predictably, when the father failed to return Parrish at the end of the weekend visit, Teresa and McSherry presumed that all of this had been fabricated by the father to change de facto custody just prior to a previously scheduled trial date.

i. Within a few days CAS confirmed they had no concerns. There appeared to be no substance to the allegation. Parrish was returned and the normal access regime resumed.

j. There were no further allegations of this nature.

k. At trial, Teresa and McSherry categorically denied every single element of this bizarre allegation.

l. Teresa produced photographs which clearly demonstrated that it would have been impossible for anyone to see inside the front window of the house from the sidewalk, as described by the anonymous caller.

[265]. I have no hesitation in concluding that there was no basis to the allegation of sexual abuse. But beyond that, I must be very cautious about concluding that this incident gives me meaningful and reliable information about any of the parties.

[266]. Anonymous phone calls create complex challenges for the family court and child protection systems.

a. Who made the call?

b. Was the call even made?

c. What was the objective?

d. To warn about legitimate concerns or suspicions?

e. Or to create mischief and prejudice?

f. And if harm is intended, to whom?

g. Harm to the subject of the disclosure?

h. Or harm to the unwitting recipient of the anonymous call – who inevitably passes the allegation on to authorities?

[267]. I touch upon these complex considerations merely to confirm why I place so little weight on any of this.

a. I accept the evidence of Susan that she received the anonymous call.

b. I equally accept the evidence of Teresa and McSherry that there is not a shred of truth to the allegation.

c. Beyond that, I make no finding or inference as to who initiated the malicious call, or what their true intention might have been.

NOV 2012 DRUGS/PROSTITUTION

[268]. Similarly, in November 2012 CAS received an anonymous report – purportedly from a neighbour -- alleging that the children in Teresa’s home were being exposed to drug use; prostitution; adult conflict; and dirty conditions.

[269]. Again, apart from the previously discussed marijuana use and adult conflict within the home:

a. I accept the Society’s conclusion that these allegations were not verified.

b. I accept the denials by Teresa and McSherry.

c. I do not find there is any basis to conclude that either the father or anyone on his behalf initiated this anonymous call.

APRIL 2013 BRUISING

[270]. CAS child protection worker Michelle Taylor testified about her investigation of bruising on Parrish’s bum.

a. In April 2013 she investigated a report of unexplained bruising.

b. Susan had apparently given certain information to her therapist. The therapist conveyed the information to CAS. Taylor said the therapist was under a legal obligation to make the report.

c. Taylor interviewed all of the parties and the child.

d. The father showed Taylor a picture of the bruising, on the screen of his camera.

e. The father was uncertain of the date the picture was taken, but it appeared to have been sometime in late 2012.

f. The father said he took the picture after noticing the bruise. He said Parrish explained Teresa had “macked” her (ie, “smacked”).

g. The father said despite his concerns he didn’t call CAS because he had been disappointed by an earlier CAS investigation.

h. Similarly, Susan said she didn’t initiate a call to CAS because she was fearful it would appear that she was being malicious or strategic.

i. Taylor said she really couldn’t tell from the photograph whether the bruise was a hand print. But she followed up.

j. Teresa denied spanking Parrish that hard, or being responsible for the bruise.

k. Parrish made no disclosure of abuse.

l. Taylor was aware of some of the dynamics in this custody dispute. She saw no indication of anything inappropriate in Teresa’s home. She had no reason to question the manner in which Teresa was exercising her discretion over the mother’s visits.

m. On July 25, 2013 Taylor issued a letter confirming the allegation had been investigated and “not verified”.

n. She testified this was not a credibility finding.

[271]. Ultimately, Taylor’s evidence was of limited assistance in determining the issues herein:

a. CAS received a complaint.

b. She did not characterize it as malicious.

c. She investigated.

d. The complaint was not verified.

e. She saw nothing wrong in Teresa’s household.

CAS CONCLUSIONS

[272]. Although the parties devoted significant time to these CAS reports, in the final analysis they are of little assistance in my determination of Parrish’s issues.

a. For the most part the allegations were “not verified.”

b. But as counsel for the father noted, that doesn’t mean CAS was actually endorsing anyone’s position or parenting skills.

c. It simply means that within the context of the Society’s mandate, no protection concerns were identified.

d. And no malicious intent by any of these parties was established.

SIBLINGS

[273]. Twins Alexis and Billie are more than five years older than Parrish.

a. Teresa, McSherry and the mother all testified Parrish loves them as sisters.

b. They said the three girls would be devastated if they were separated from one another.

c. The father denied the twins should be a determining factor in deciding custody.

d. He noted that sometimes the older girls play too rough with Parrish. Sometimes they injure her.

e. He quoted Parrish as complaining that “Lexi” (Alexis) pushed her down the stairs. He acknowledged that children will play and sometimes they will get hurt. But he questioned whether the twins are receiving adequate supervision if they are playing so roughly with their much younger niece.

f. He said if Parrish lives with him, she will still have frequent contact with everyone on the mother’s side – including Alexis and Billie.

g. He said consideration should also be given to Parrish having a sibling relationship with his other child Jacob. This could be better facilitated if she lived in his care.

[274]. The OCL investigator said she had considered Parrish’s relationship with Alexis and Billie:

a. She agreed Parrish has a good relationship with the twins.

b. She said it was hard to make any assessment about “bonding” between them.

c. Armstrong agreed transferring custody to the father’s residence would reduce Parrish’s time with the twins, and this would be an adjustment.

d. But Armstrong emphasized that Parrish is a young, vulnerable child. She said the objective was to determine in which household Parrish’s overall needs could be met by a primary parent. And in that context she had no hesitation recommending that placement in the father’s household would be more stable and beneficial for the child.

CO-PARENTING

[275]. The level of animosity in this case is understandable given the protracted nature of this dispute; the strong personalities; and the serious nature of the allegations.

[276]. In his closing submissions, counsel for Teresa suggested perhaps some sort of joint custody arrangement might be appropriate. This was a marked departure from Teresa’s “sole custody” claim articulated at the beginning of the trial.

[277]. In any event, given the overall inability to communicate; the extreme animosity and mistrust; and the divergent parenting approaches and lifestyles, there seems little likelihood that any sort of joint custody or co-parenting arrangement would be workable or beneficial for Parrish.

[278]. But beyond that, I do not find it necessary to make any comment or determination as to which of these parties is more responsible for the deep rift between these parties.

S.112 REPORT

[279]. Karen Armstrong was an impressive witness.

a. She has a Bachelor of Arts degree in Sociology; a Bachelor of Social Work degree, and a Masters of Social Work.

b. Her curriculum vitae set out a long history of relevant experience as a clinical investigator; social work assessor; Manager of Services at Catholic Children’s Aid Society; and before that, a social worker in various capacities.

c. She also has relevant teaching experience, and a steady list of continuing education and training.

[280]. Her investigation and methodology were subject to intensive questioning. I was satisfied that:

a. Her investigation was thorough and balanced.

b. She devoted sufficient time to assembling information from all relevant parties and collaterals.

c. She interpreted and reported all of that information accurately.

d. She demonstrated expertise in child care and children’s needs.

[281]. Armstrong was questioned about the utility of a s.112 report dated March 2012, at a trial in March 2014 – two years later.

a. She stated her facts, observations and recommendations were relevant as of the date the report was issued.

b. She agreed it would always be helpful to have updated information.

c. She suggested the mere passage of time didn’t in itself render her findings and recommendations less valid.

d. At the very least her report provides “a foundation” for the court.

e. She acknowledged that the older the report, the greater the potential for intervening events to reinforce, contradict, change or overshadow her original comments.

f. She said in the absence of other significant changes or intervening events, her recommendations for Parrish at age two would still be relevant at age four.

[282]. Armstrong was cross-examined extensively on the importance of maintaining the status quo in a young child’s life.

a. She agreed that the length of time a child has remained in a particular household is a factor in determining whether to recommend that the child remain in that household.

b. She said the status quo could be an important factor, particularly if the existing parent-child relationship was generally positive.

c. But she said status quo was only one of the relevant factors in determining the best interests of a child.

d. And in this case she felt risk factors and concerns overshadowed the weight to be attributed to maintaining the status quo.

e. In balancing those considerations, she felt that the relative absence of risk associated with the father’s custody proposal was a more compelling factor.

FINDINGS & OBSERVATIONS

THE FATHER

[283]. I make the following observations and findings in relation to the father.

[284]. His presentation and credibility as a witness:

a. The father presented as a clean cut, quiet, soft-spoken individual, who has a somewhat simple approach to life.

b. He answered questions and testified in a subdued but straightforward manner.

c. He was responsive to questions, and appeared to answer spontaneously. There was little sign of evasiveness or strategic response.

d. He was surprisingly quick to acknowledge mistakes, poor judgment, or things he might have done differently.

e. He was respectful toward opposing counsel, but appeared intimidated and agitated during intensive questioning by McSherry.

f. Overall, I found the father to be a truthful witness.

[285]. His strengths:

a. Despite somewhat limited personal resources, the father has taken admirable and consistent steps to advance himself and contribute to his family and community.

b. He has a stable and supportive relationship with his parents and extended family.

c. He enjoys a comfortable and warm home environment which will be available for at least several years.

[286]. His weaknesses:

a. He has limited literacy, but given his family support and history of successfully navigating the workplace, I do not regard this as a major issue in relation to parenting.

b. It is clear that there have been a number of isolated instances of relatively minor anger control issues. They are historic. There is no indication that this is an ongoing problem. To the contrary, the evidence repeatedly suggested that the father’s primary response to hostile situations is to walk (or drive) away.

c. Objectively speaking, I do not regard the father as currently having traits or predispositions which would represent any sort of danger of harm to Parrish – or any child.

d. On a comparative basis, I cannot help but note that any concerns about the father’s temperament and emotional stability are dwarfed by corresponding concerns about Teresa, the mother and Dowling.

e. Similarly, while McSherry kept adding “sex addict” to his list of concerns, there was not the slightest evidence of any basis for this highly pejorative slur.

f. I find that without question the father made mistakes. Most notably, the incident when Parrish was very young and she appeared to stop breathing while laying on top of him. I do not characterize this as a “smothering”, as alleged by McSherry. But it was a wake-up call to everyone about the fragility of a baby only a few months old. It was a momentary lapse of judgment by an inexperienced first time father.

g. I find there are no mental health or substance abuse issues relating to the father.

h. I find that the allegations which had been advanced to limit the father’s involvement in Parrish’s life were, for the most part, exaggerated and unwarranted.

[287]. His relationship with Parrish:

a. I find that he has developed and maintained a strong emotional bond with Parrish, despite considerable – and unwarranted – obstacles.

b. He was actively involved in her life during the period up to May 2010 when he and the mother separated.

c. He continued to maintain active involvement – which by all accounts was beneficial – for the next few months. His access was only terminated by the mother and Teresa for reasons which, in my view, demonstrate a complete disregard of the best interests of the child.

d. I do not fault the father for seeking confirmation of paternity during the summer of 2010. The mother’s lifestyle and intermittent relationship with Dowling clearly raised legitimate questions.

e. I was impressed with the commitment the father showed in pursuing access despite considerable resistance. I was impressed that at every stage he and his family appeared willing to take the proper steps. To respect the court process.

f. I find that since court-ordered access was implemented, it has gone well, and evolved in a manner beneficial to the child.

[288]. I was impressed with father’s parental judgment and skills:

a. He was very child focussed in his answers.

b. He was able to give many practical, straightforward examples of his daily routine with Parrish; their activities together; and his concerns about her well-being – particularly the head lice problem.

c. He conveyed a strong sense of love and commitment to the child.

d. It was evident that he prioritizes both Parrish and Jacob in his life.

e. He was able to describe a comprehensive, long-term plan for Parrish, dealing with such practicalities as schools, child care, and health care.

f. He expressed appropriate interest in Parrish’s first year of school. He expressed understandable concern about perpetual problems with absenteeism, late attendances, aggressive behaviour, and health issues.

g. He and his parents took a conscientious and effective approach to dealing with Parrish’s ongoing problem with head lice. There can be no doubt that head lice among children -- particularly within our school system -- is a chronic problem. The existence, frequency or magnitude of head lice infestation is not a barometer of parenting skills. But on a comparative basis, I found the father and Susan consistently demonstrated more awareness, more resourcefulness, and more commitment to trying to eradicate or control the problem. Even Teresa acknowledged that when Parrish returned from weekends with the father, there were fewer (or no) head lice or nits.

[289]. In relation to Shannyn:

a. I accept the father and Shannyn’s evidence that they do not live together – although he spends a lot of time at her home.

b. I disbelieve the allegation by Teresa that after eight days of trial the father casually confessed outside the courthouse that he has been lying and that he and Shannyn are really living together. Apart from the improbability of an applicant in a bitter custody dispute making such a damaging confession to a respondent, I must determine this issue based on credibility. For reasons set out below, I did not find Teresa to be a credible witness.

c. I accept the father’s evidence that he attends at Shannyn’s home primarily to visit his son Jacob.

d. Shannyn made it very clear that – for fairly obvious reasons of her own – she wants the father to come around, and she is using Jacob as a “bait” to encourage the father to regularly visit her home.

e. I accept the evidence of both the father and Shannyn that she has serious anxiety problems. I suspect they may be more severe than Shannyn described. The father certainly appears to be apprehensive about her mental health.

f. I accept the father’s evidence that he has not allowed Parrish to have ongoing contact with Shannyn, and that he does not intend to allow such contact in the future.

g. I accept the father’s statement that he has no intention of residing with Shannyn; that he intends to continue to reside in his parents’ home for the next several years; and that Shannyn is merely engaging in wishful thinking when she speculates that within the next few years they will reconcile.

h. I accept the father’s undertaking that he fully understands the need to keep Parrish safe from Shannyn, and that he has the commitment and wherewithal to protect his daughter.

[290]. I have confidence in the father’s future ability to maintain appropriate communication and interaction with other important persons in Parrish’s life:

a. Despite the many tensions and conflicts which arose during this litigation, I found the father to be a fair minded and reasonable person.

b. He appeared to sincerely acknowledge and understand the important connection which Parrish has with all of the adults and extended family in her life.

c. I saw no indication that he would have any inclination to limit access or contact by the maternal side of Parrish’s family – despite ample reason for some very hurt feelings and resentments.

d. Speaking plainly, I am confident he would not treat others the way he has been treated. I am confident he would facilitate access.

[291]. Overall, I found the father’s custody proposal to be comprehensive, well-reasoned, particularized, and entirely child-oriented.

[292]. He is aware a transfer of custody would entail multiple adjustments for the child. He and his parents appear fully prepared to mitigate the impact on the child.

[293]. I found his proposal for ongoing access to be reasonable, and responsive to Parrish’s close relationship with all of the adults and children on the mother’s side.

[294]. I disagree with the father, however, on the issue of transportation. I think the OCL was correct: he should do all the driving to facilitate access:

a. The father has a car. His parents have a car.

b. For the moment none of the Respondents have a vehicle available to them.

c. While public transit is usually quite acceptable as a mode of transporting children, in this case even the father acknowledges that because of the relatively remote location of his parents; home, public transit would not be a viable option for the entire trip. He proposes driving to the transit terminal in downtown Burlington, which is served by the Hamilton bus system.

d. That’s too cumbersome, and would entail needless travel time and complication for Parrish.

e. The most reasonable option from the child’s perspective is to have the father absorb the time and modest cost associated with transportation – just as he has been doing for the past three years.

TERESA

[295]. I make the following observations and findings in relation to Teresa.

[296]. Her presentation and credibility as a witness:

a. Teresa’s narrative was filled with inconsistencies and logical gaps.

b. She was not a good witness.

c. On many important topics her memory was poor.

d. She was evasive, resistant, and at times completely unresponsive to important questions.

e. She contradicted herself on a number of occasions.

f. She was not a particularly astute witness and was easily tripped up in cross-examination.

g. Her complaints about unfair treatment by the OCL clinical investigator were shallow. I find that Armstrong spent more time investigating the mother’s family because the mother’s family had many more contacts with CAS; many more contacts with police; many more problems that needed to be investigated.

h. Overall I came to regard Teresa’s credibility as quite low.

[297]. Teresa’s strengths:

a. There is no doubt she loves Parrish.

b. She has done her best to raise her family despite limited financial resources, and extremely difficult personalities.

c. She has been struggling through a hard life.

[298]. Teresa’s weaknesses and problems are numerous:

a. She has long-standing mental health and personality issues.

b. Things get better and worse in her life, but she lacks insight into the magnitude of her problems.

c. She lacks a commitment to follow through with long-term professional help and recommendations.

d. Her last formal medical report in 2007 confirmed she was still experiencing significant issues.

e. As recently as two or three years ago her problems continued to be so serious that she qualified for ODSP.

f. She is on anti-depressants as a result of recent stressors in her life. She is on a waiting list to see a psychiatrist. There are many unanswered and unresolved questions concerning her mental health.

g. She has a significant history of violent behaviour and child abuse. She doesn’t even remember much of what she’s done.

h. It is self-serving for her to announce she is better now. But she lacks the credibility and insight necessary for that self-diagnosis to be accepted and relied on.

i. She has a significant history of marijuana abuse. She got tripped up during cross-examination, lying about her usage.

j. Most recently she has been going through a stressful breakup with McSherry. There appears to be the added complication of the possible re-emergence of Myers in her life.

[299]. Many of Teresa’s problems are long-standing. She has not nearly established that she has overcome them. But even if I were to accept her assurances that all of her past problems have been resolved, I am still left with overwhelming concerns about her current lack of insight and commitment to Parrish’s best interests:

a. She knows the mother has a long history of mental instability and substance abuse. She knows that in July 2010 the mother relinquished custody to her because the mother was completely overwhelmed by her problems with substance abuse and her extremely volatile relationship with Dowling. Yet she has continued to allow Parrish, Alexis and Billie to spend extended periods of time, with the mother and Dowling.

b. She has overwhelming reason to know that Dowling is a violent, dangerous, substance abuser who has no regard for children who might get hurt when he misbehaves. Yet she has allowed Parrish, Alexis and Billie to spend extended periods of time exposed to him – and even left alone in his care.

c. Teresa only expressed concern about Parrish spending so much time unsupervised with the mother and Dowling, after I expressed concern. Then she pretended she had always been vigilant, even though it was painfully obvious during cross-examination that she was making up part of her story as she went along.

d. Similarly, she claimed she never approved of Parrish and the twins visiting with McSherry in C.M.’s presence – but she only adopted formal opposition to such contact with C.M. after I expressed concerns.

e. Teresa claims to carefully monitor the people and situations Parrish, Alexis and Billie are exposed to. But there were numerous examples of Teresa allowing Parrish to be exposed to dangerous and inappropriate situations.

[300]. Apart from failing to protect Parrish from undesirable situations, Teresa also doesn’t seem to appreciate or promote the good things in the child’s life:

a. Teresa’s indifference (at best) and her resistance (at worst) to Parrish having access to the father was nothing short of unconscionable.

b. As a custodian she had an obligation to ensure that all of the child’s emotional needs were met. She knew the father had been having regular overnight access. She knew even the mother was saying access had been going well and that the father had a good relationship with the child.

c. Worst of all, she was present in court December 15, 2010 and knew the father had obtained an order to resume access after a very long five month gap. Yet – as the “custodial parent” – she admits she sat back and did nothing when McSherry forcefully denied access despite Justice Steinberg’s order.

d. I do not believe the mother when she says she didn’t know McSherry was going to defy the December 15, 2010 access order. I most certainly don’t believe Teresa when she claims she also didn’t know – didn’t even think about – what McSherry was going to do.

e. In every other respect the mother, Teresa and McSherry have been close-knit – almost scheming – in their resolve to keep Parrish away from the father and his family. None of them showed the slightest regard for fairness, or the emotional needs of this very young child.

f. Similarly, I find that Teresa deliberately and maliciously tried to prevent the father from making reasonable inquiries about how Parrish was doing in school. She claimed she would keep him informed, but failed to do so.

[301]. I find that Teresa’s parenting skills were lacking when she raised the mother, and they continue to be lacking now:

a. Parrish has missed too much school.

b. She has arrived late too many times.

c. Her progress in school is disappointing.

d. Her behavioural problems simply aren’t being addressed.

e. Teresa appears to have a great deal of difficulty organizing and maintaining even simple routines for the child.

f. And as stated, while head lice is an exhausting, frustrating, endless problem for many parents – nonetheless I find that Teresa and McSherry (when he lived with her) were not as conscientious as the father and Susan in trying to deal with this problem.

[302]. I have no confidence in Teresa’s ability to interact appropriately with the other adults in Parrish’s life:

a. I fear she would be too liberal in allowing unrestricted access to the mother and Dowling.

b. I fear she would be too restrictive in promoting contact and involvement by the father.

[303]. Teresa thinks everything is going fine. That complacency and lack of insight is the main reason I have so many concerns about her custody proposal:

a. Her “diligence” in protecting Parrish was consistently misdirected at the father – when really she should have been much more worried about the turmoil and danger within her own family – within her own home.

b. Teresa fails to understand or acknowledge that things are not going well. She has no apparent plan or resolve to make things go better.

c. Teresa asks the court to entrust her with discretion about how much contact Parrish should have with the mother, McSherry, and even Dowling. But there are innumerable examples of irresponsible (and at times malicious) decisions Teresa has made in relation to Parrish.

d. Teresa’s last-minute expressions of concern about the mother’s parenting skills are shallow and strategic. Even after she verbalized that the mother isn’t ready for unsupervised access, her description of the mother’s deficiencies was superficial.

e. Teresa has demonstrated that she is not a suitable primary caregiver, nor does she have the insight or resolve to regulate how much access other members of her family should have.

THE MOTHER

[304]. I worried a lot about what I heard from (and about) the mother – both as a witness and as a parent.

[305]. She presented as a quiet and pleasant young lady. But she appeared emotionally detached as she recounted the horror of her life: Childhood beatings by Teresa; severe mental illness; numerous hospitalizations; suicide attempts; astonishingly poor judgment in selecting partners. Overall, a chaotic life.

[306]. Much like Teresa, she defaulted to claiming memory failure – or memory blockage – to try to skip over embarrassing or painful episodes in her life.

[307]. To her credit, she appears to have made some progress. And I have no doubt that she’s trying. But simply saying that years have passed and that you are feeling better – doesn’t make you better.

[308]. And simply blaming your old doctors for making the wrong diagnoses and giving you the wrong drugs, provides no reassurance about your current situation. With such an overwhelming history of mental illness and behavioural problems, it was incumbent on the mother to produce significant medical corroboration of the progress she claims she has made.

[309]. The mother insisted she and Teresa are now the best of friends. But it was clear that even in recent years they have experienced serious conflict. She now goes out of her way to deflect criticism from Teresa because she has a vested interest in Teresa winning custody.

[310]. The mother insisted she no longer has any problems which would impact on her parenting skills – but even Teresa and McSherry testified she is not ready to parent.

[311]. The mother claimed she has overcome a long-standing problem with alcohol. But there was no evidence that this was anything more than favourable self-reporting.

[312]. The mother insists her relationship with her fiancé Dowling is loving and stable. But she keeps calling the police on him. And he has misbehaved so horribly toward her, Teresa, Parrish, Alexis and Billie. The mother charitably described Dowling as “a work in progress.” It is difficult to understand how a family that scrutinized the father so closely could repeatedly give Dowling a free pass.

[313]. The mother remains impulsive, with poor self-control. At several times during the trial she became agitated and easily provoked.

[314]. By her own admission she has a very long history of lying to people in authority including police and CAS. She tried to justify and trivialize her constant deceptions with blanket statements like “I tell people what they want to hear.” That explanation really made no sense. It was an avoidance mechanism, just like saying you “can’t remember” when you don’t want to talk about something.

[315]. Perhaps the only saving grace is that the mother – alone, among Teresa and McSherry – had the courage to admit on the witness stand that maybe her family had been too rough on the father. That he was actually alright as a father and shouldn’t have been denied access.

[316]. The mother’s life is one of excuses and fresh starts. Clearly she views her pregnancy and life with her fiancé as a new beginning. But with so little insight about what’s gone wrong in the past, her future prospects are uncertain to say the least.

[317]. I wish the mother well. But it would be impossible to have confidence in her ability to raise any child without significant supervision and assistance. I am particularly concerned about exposing Parrish – or any child -- to the highly volatile relationship the mother has with Dowling.

[318]. At the commencement of the trial the mother was seeking liberal unsupervised access. By the end of the trial her own lawyer submitted that access supervised by Teresa is appropriate.

MCSHERRY

[319]. I make the following observations and findings in relation to McSherry.

a. He loves Parrish. He loves his entire family. He’s loyal to all of them.

b. He’s smart. He’s prone to grandiose thinking, and has a huge ego. He was certainly at no disadvantage representing himself. He was focussed, articulate, knowledgeable about the law – and almost ruthless in his cross-examination of the father and his witnesses.

c. But in the end McSherry abused his leadership position within his family. He led them astray with a fatally flawed strategy.

d. McSherry was shrewd enough to realize that with all their other failings, the only way the mother and her family could win a custody battle would be by establishing a favourable status quo.

e. So he encouraged Teresa and the mother to take an outrageously hard line against the father. Almost a scorched earth policy in which McSherry led the effort to eradicate not the head lice – but the father – from Parrish’s life.

f. His malicious disregard for the child’s best interests is best exemplified by his misguided stunt in December 2010 when he single-handedly thwarted court ordered access which had been agreed to by the mother, and acquiesced to by Teresa.

g. Bizarrely, he boasted on the witness stand about how aggressive and intimidating he was when the father unwittingly showed up to see his daughter pursuant to a court order. He laughed about how he had used a legal technicality to further extend a little girl’s absence from her loving father.

h. It never needed to be so nasty.

[320]. This case was filled with ironies:

a. The mother, Teresa and McSherry complained the father shouldn’t expose Parrish to Shannyn. But the equivalent “new partner” on the mother’s side is Dowling – a much worse threat to a child.

b. The mother, Teresa and McSherry complained the father has anger management issues. But nothing the father is alleged to have done is in the same league as the crazy violence in both the mother’s and Teresa’s lives.

c. The mother, Teresa and McSherry challenged the father’s parenting skills. But the evidence was overwhelming that the father is doing just fine. It’s the mother who had to relinquish custody after a drunken melee in the presence of the child. And it’s Teresa who hasn’t been able to maintain even basic standards for school attendance, behaviour, hygiene – and safety.

d. The mother, Teresa and McSherry all complain Susan is “the matriarch” of the family. They blame her for the conflict and call her a “meddler”. McSherry calling someone else a meddler is the height of hypocrisy.

SUSAN & MICHAEL SR.

[321]. The paternal grandfather Michael Sr. testified briefly. The paternal grandmother Susan testified at length. I found them both to be truthful, reliable and insightful witnesses.

a. Susan demonstrated clear “hands-on” experience with Parrish, during the existing alternate weekend visits.

b. She conveyed a strong sense of commitment and protectiveness to this young child.

c. She showed good insight, and excellent parenting skills.

d. Michael Sr. also conveyed a strong sense of maturity and judgment, in describing child-related issues.

e. There is little doubt that Susan is a very strong-willed and outspoken person. She came across as being angrier and more assertive than the father. But her general sense of frustration is perhaps understandable, given the mess flowing from the father’s questionable selection of partners.

f. I reject the notion that Susan was actually the driving force behind this litigation. She may well have been trying to help and protect the father. But she is clearly trying to help him with his custody claim.

g. I was reassured by the willingness and ability of Susan and Michael Sr. to continue to provide long term assistance as part of the father’s custody proposal.

h. I was reassured by the stability and security reflected in their family relationship and home environment.

i. I found both of the paternal grandparents to be truthful and accurate in giving their evidence.

THE LAW

[322]. Custody and access cases must be determined based upon the best interests of the child. During submissions, all counsel correctly referred to section 24 of the Children’s Law Reform Act (CLRA) as setting out the factors to be considered. No caselaw was referred to during submissions.

[323]. Section 24 states:

24. 24(1) Merits of application for custody or access

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

24(2) Best interests of child

The court shall consider all the child's needs and circumstances, including,

(a) the love, affection and emotional ties between the child and,

(i) each person entitled to or claiming custody of or access to the child,

(ii) other members of the child's family who reside with the child, and

(iii) persons involved in the child's care and up-bringing;

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

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

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

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

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

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

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

24(3) Past conduct

A person's past conduct shall be considered only,

(a) in accordance with subsection (4); or

(b) if the court is satisfied that the conduct is otherwise relevant to the person's ability to act as a parent.

24(4) Violence and abuse

In assessing a person's ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,

(a) his or her spouse;

(b) a parent of the child to whom the application relates;

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

(d) any child.

24(5) Same

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

ANALYSIS

[324]. I have carefully reviewed all of the evidence, with a view to promoting the best interests of Parrish in relation to the respective custody and access claims.

[325]. I will first focus on the custody dispute which is only between the father and Teresa.

[326]. There is no doubt that Parrish has a loving and emotionally strong connection with each of the father, the mother, Teresa, McSherry, Susan and Michael Sr.

[327]. The father’s plan has many positives aspects:

a. His life and home environment are stable.

b. He and his parents have demonstrated maturity and reliability.

c. His plan is comprehensive and offers long-term stability.

d. He is aware of the child’s needs. He has the insight, ability and commitment to safeguard those needs.

e. The father will appropriately limit and control the child’s exposure to inappropriate or problematic situations or people.

[328]. Teresa’s plan has limited positive components and raises many concerns. By far her strongest argument: the status quo.

[329]. I have carefully considered s24(2)(c): “the length of time the child has lived in a stable home environment.” (Emphasis added).

[330]. In a final custody determination the court must fully canvas the various positive and negative aspects of an existing arrangement, and consider the impact(s) on the child if one or more components of the current situation were to change. As Baltman J. noted in Gauci v. Malone 2009 CarswellOnt 3633 [2009] W.D.F.L. 4265 (SCJ):

16 As numerous cases have noted, the status quo is an important consideration in a custody case: Denny v. Bartkiewicz, [2003] O.J. No. 2498 (S.C.); Van Bilsen v. Van Bilsen, [2003] O.J. No. 4657 (S.C.); Barcier v. Smith, [2003] O.J. No. 1557 (S.C.). Although there is no formal rule to this effect, barring a compelling reason courts should be wary of disrupting children's lives when they are already coping well in their primary residence and enjoying positive relationships with both parents and their extended families.

[331]. There is no presumption in favour of the status quo, but it is an important factor, perhaps more so in relation to temporary orders. Among the considerations in determining a final custody order:

a. The length of time the arrangement has existed, and,

b. The extent to which the existing arrangement is or has been beneficial to the child.

c. The impact of discontinuing the existing arrangement on the child’s emotional or psychological health.

d. The impact of a proposed new arrangement on the child's emotional or psychological health.

[332]. Among the obvious objectives:

a. Don’t disrupt or jeopardize routines, arrangements or relationships which are benefiting the child.

b. Maintain as much consistency and continuity in a child’s life as possible, relating not only to family dynamics, but also community connections such as friends, neighbourhoods, schools, medical services, etc.

c. Children in custody disputes have often already experienced the emotional trauma of instability, conflict, and disruption. If their circumstances are now stable, they should not have to experience more changes without compelling reasons.

d. Children – especially young children -- need stability and consistency. They benefit from routine. Anecdotally they are often described as “resilient to change”, but child care professionals warn that such complacency is usually unwarranted.

e. Courts are understandably reluctant to abandon an arrangement which is working to a child’s benefit, in favour of a speculative arrangement.

f. Although it may sound like a gross oversimplification, in considering the status quo there is a very real sense of “don’t tamper with success.”

[333]. In this case, Parrish has been living in Teresa’s home for almost four years. This is a very significant period of time, considering the child is almost five years old.

[334]. The court should be cautious about disrupting a child’s lengthy placement in a home. But by the same token, the court should strongly sanction parents who exercise self-help or make misrepresentations to the court to strategically create a status quo which is contrary to a child’s best interests. In this case:

a. The father was strategically denied any contact with Parrish for approximately five months leading up to December 2010.

b. Thereafter, the father’s access was needlessly limited, based upon false allegations by the mother, Teresa Campeau and Edward McSherry.

c. Parrish’s psychological and emotional needs were sacrificed in the name of litigation strategy.

[335]. As this court stated in Izyuk v Bilousov 2011 ONSC 6451:

418 Creating a favourable status quo through falsehood and misrepresentation is not just a matter of litigation strategy: It is often tantamount to child abuse. It goes to the heart of "best interests" considerations; Parental judgment; The ability to sacrifice self-interest for the sake of the child; Awareness of the child's need to have maximum contact with both parents.

419 If past behaviour is a predictor of the future, assessors and courts have an obligation to address — and seriously sanction — common and predictable strategic behaviours intended to create an inappropriate status quo.

[336]. The second component of the “status quo” analysis is to carefully consider whether the existing arrangement is beneficial to the child; whether it is objectively something we would want to perpetuate; and how it compares qualitatively to the alternatives being proposed.

[337]. And in this respect, I have no hesitation in concluding the status quo is not stable; not beneficial; not something we would want to perpetuate if we had any reasonable alternative.

a. Parrish has been living with Teresa for almost four years, but there have been many, many problems.

b. Teresa’s parenting skills are inadequate.

c. Her mental health is questionable.

d. Her ability to protect the child from dangerous people and dangerous situations is woefully inadequate.

e. Teresa’s standard of care for the child may not (yet) be so deficient as to trigger protection concerns under the Child and Family Services Act. But the “best interests” standard is much higher.

f. So far, nothing major has gone wrong in this young child’s life. But the warning signs are there. Poor school attendance and performance. Significant socialization problems. Unstable family dynamics involving each of the mother, Teresa and McSherry.

g. Teresa doesn’t recognize or acknowledge her deficiencies.

h. There is no awareness of the need to change. No capacity to change or improve.

i. And overshadowing all of this: Teresa has been at the forefront of a family campaign to undermine and obstruct the child’s relationship with her father. In this no-holds-barred competition, Teresa not only had to “win”, but the father had to “lose”. There is no comprehension that when the father loses, the child loses.

j. Teresa has no insight as to all of the ways she is failing this child.

[338]. This is one of those rare cases where the more you learn about the status quo, the more obvious it becomes that the existing arrangement is not in the best interests of this young, vulnerable, emotionally fragile child.

[339]. I have carefully considered a second major underpinning of Teresa’s case: the priority to be given to maintaining sibling contact between Parrish and Alexis and Billie.

a. I accept the fact that given their ages, these three children have a sibling relationship.

b. Courts generally try to avoid separating siblings.

c. But even when Teresa had McSherry living with her, she still had trouble parenting three children at a time. She testified that getting three children ready for school in the morning has been an ongoing problem. That’s why Parrish and the twins are late so often. Now that McSherry is out of the home, the responsibilities falling on Teresa have become magnified, at precisely the time that she admits her stress level has also gone up.

d. Related to this, there will be other half siblings in Parrish’s life who will also have to be factored in. This includes the baby the mother is expecting with Dowling. More immediately, it includes the father’s other child Jacob. That sibling relationship should also be fostered.

e. I fully agree that Parrish’s relationship with Alexis and Billie is important and should be fostered. I have confidence in the father’s commitment to ensuring that Parrish maintains meaningful contact with all members of the mothers’ family, including the twins.

[340]. I must also consider the fact that this is a custody dispute not between parents, but between a father and the maternal grandmother. Rogers J. addressed this dynamic in McGlade v. Henry 2013 ONSC 2825 (SCJ).

[20] The best interests of children are always the ultimate goal in decision-making for custodial/ access orders. The courts have guidance in section 24(2) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, although these criteria are not exhaustive.

[21] The case law speaks to a preference given to biological parents over non-parents. It is not a presumption. In the case of Gallipeau-Lamb v. Dumais,[1997] O.J. No. 4988 (Ont. Ct. Gen. Div.), Morin J states:

However, the analysis cannot end there for it overlooks the unique relationship which exists between a child and a parent. In my opinion, s. 8 must be applied with this relationship in mind. Absent something unusual or exceptional a parent is in a favoured position and should be preferred over grandparents on a question of custody. When I use the words “unusual” or “exceptional”, I do not include within them the enhanced ability to provide material things or ability to bring extended experience to bear. ...To my mind, the court must look initially to the best interests of a child within the context of the child’s immediate family or what remains of it. Should the examination disclose that that situation is in a meaningful way less than one would normally expect, then the court should seek the best interests of the child beyond the parameters of the immediate family.

[341]. As stated, the overriding principle to be applied to this custody determination is the best interests of the child. In this case I need not make further comment on the considerations where a custody dispute is between a parent and an equally capable grandparent. Teresa and the father are not equally capable. I have many concerns about Teresa. I have relatively few concerns about the father.

[342]. But there is a unique sub-text to this case which also mitigates in favour of the father.

a. Nominally, this is a dispute between the father and Teresa for a final custody order.

b. The father’s proposal really would be a final determination.

c. But the mother, Teresa and McSherry all clearly admitted that their ultimate objective would be for Parrish to eventually return to the mother’s custody. “As soon as the mother is ready”.

d. During the trial there was substantial disagreement about when the mother might be “ready”.

e. The mother says she’s ready now.

f. McSherry says he hopes “some day” she’ll be ready. He said it wouldn’t be a “quick fix”. It would likely be a few years.

g. On this topic, Teresa was all over the map. Prior to my mid-trial intervention, Teresa was allowing liberal, unsupervised access to the mother and Dowling, as if they were both ready. After she heard my concerns, Teresa suddenly pronounced that the mother isn’t ready. But Teresa was unable to articulate a meaningful list of what the mother still needed to do to become ready.

h. So in reality, in the mother’s camp there’s a short term plan and a long term plan.

i. Based on past performance, I have no confidence in Teresa’s ability to decide when or how any sort of transition or expansion should occur.

j. And in any event, a further transfer of custody from Teresa to the mother – whether months or years from now – would trigger the same concerns about disrupting the status quo.

k. Admittedly, the father’s proposal entails two to three years of Parrish residing with him in the paternal grandparents’ home, until he can afford his own place. That’s also some built-in disruption. But moving to a new house with your custodial parent is not nearly as disruptive for a child as moving to a new home to a different custodial parent.

[343]. I have also considered past conduct and violence as required by sections 24(3) and 24(4) of the CLRA. Under these headings, the majority of concerns relate to Teresa and the mother.

[344]. The father’s custody proposal is beneficial for the child, reliable and truly permanent. Teresa’s custody proposal has none of those attributes.

[345]. Finally, I would comment on the s.112 report prepared by the OCL.

a. I was satisfied with Armstrong’s qualifications; her methodology; her comprehensiveness; her balance and fairness.

b. Given the binary choice Armstrong was presented with – custody to the father or custody to Teresa (with McSherry part of the picture at the time) – I agree that Armstrong’s recommendation in favour of the father made sense as of March 2012.

c. But at best a s.112 report is in the nature of a fact-finding exercise, as contrasted with a more comprehensive assessment under s. 30 of the CLRA. In any event it is only one piece of evidence to be considered. (Takis v. Takis (2003) 2003 CanLII 2354 (ON SC), 38 R.F.L. (5th) 422 (SCJ))

d. The mother, Teresa and McSherry all argued the s. 112 report should be ignored, partly because it was out of date. Without question, it was not current. Armstrong clearly acknowledged under cross-examination that while the March 2012 report provided a “foundation”, subsequent events could easily change things.

e. Ultimately, while my conclusions in 2014 are similar to the OCL’s conclusions in 2012, I did not place very much weight on the report itself. I had the benefit of significant updating information (which did not reflect well on the mother’s side). As a result, I have concluded it is necessary to impose greater access restrictions than Armstrong had recommended.

[346]. With respect to access:

a. The mother, Teresa and McSherry all have strong relationships with the child. They should all have access.

b. But, to varying degrees, they all have problems. Terms of access and restrictions need to be customized for each of them.

c. Scheduling of access becomes more difficult where there are multiple access claimants.

d. Fortunately, the mother, Teresa and McSherry have a demonstrated history of cooperation with one another. So they should be able to share time together.

e. Ordinarily, a mother’s claim to access would take some priority over the claim of maternal grandparents. But in this case, the mother needs the most monitoring, so it is not in Parrish’s best interest that the mother be granted extra or individual access.

f. Also, during submissions there was general agreement that no matter who gets custody, there should be very generous time-sharing during weeks when school is not in session.

THE ORDER

[347]. My order (all terms final unless specifically noted otherwise).

[348]. Effective immediately, the Applicant Michael Cochrane shall have sole custody of the child Parrish Shirley Rose Myers born May 8, 2009.

a. Until at least June 2016, the permanent residence of Applicant and Parrish shall be at the home of the paternal grandparents Susan Ainsworth-Cochrane and Michael Cochrane Sr. in Burlington. This requirement relates to residential stability for the child, and does not infer any inadequacy of parenting skills or need for supervision. There is no requirement that either of the paternal grandparents be present at any time. There is no restriction against the Applicant and the child spending nights away from that residence, for vacation or other reasons (subject to the other terms herein).

b. The Applicant shall provide each of the Respondent’s with at least 60 days written advance notice of any intention to relocate the child’s permanent residence after June 2016, with full particulars as to the intended address, residential arrangements, and proposed occupants of the residence.

c. The Applicant shall only allow Parrish to have contact with Shannyn Peterson as may be incidental to the Applicant and Parrish having contact with the child Joshua. Shannyn Peterson shall never be left alone with Parrish, nor shall she ever be in a caregiving capacity for the child.

[349]. The Respondents Natasha Myers, Teresa Campeau and Edward McSherry shall all have access to the child as set out herein (unless otherwise agreed by the Applicant in writing in advance, or pursuant to further court order).

[350]. The access terms:

a. Access shall be co-ordinated through Teresa Campeau, and exchanges shall take place at Teresa Campeau’s residence.

b. There shall be a presumption that access shall be “based” at Teresa Campeau’s residence, and subject to written agreement of the Applicant or further court order, the overnight component of access shall take place at Teresa Campeau’s home.

c. Edward McSherry may be present during Teresa Campeau’s access. He may also have such non-overnight unsupervised access with Parrish as he may arrange with Teresa Campeau. However, on a temporary without prejudice basis, there shall be a restriction that such access shall not be in the presence of (or at the residence of) C.M. This restriction regarding C.M. may be returned to court by way of motion, after there has been a determination of C.M.’s current file with the Children’s Aid Society. Justice Pazaratz is excluded from dealing with any such motion in relation to C.M. However, Justice Pazaratz is seized of any other issues on this file for the next two years.

d. Natasha Myers may be present with either Teresa Campeau or Edward McSherry during their access. She may also have such non-overnight unsupervised access with Parrish as she may arrange with Teresa, for a maximum of four hours in any day.

e. Michael Dowling may be present when any of the Respondents are having access to Parrish, but at least one of the Respondents shall be physically present to supervise at any time that Michael Dowling has contact with Parrish. Michael Dowling may not have any contact with Parrish at his residence with Natasha Myers unless one of either Teresa Campeau or Edward McSherry is also present at all times to supervise.

f. None of the Respondents shall consume alcohol or non-medically prescribed drugs (including marijuana) within 24 hours prior to or during any period of direct contact with the child. Each Respondent having access shall be responsible to ensure that Parrish is not exposed to any other person who has consumed alcohol or non-medically prescribed drugs (including marijuana) within 24 hours prior to or during any period of access. For clarity, this restriction about “other persons” does not relate to strangers in public places such as licenced restaurants. But it specifically includes an obligation that if any of the Respondents are present supervising Michael Dowling’s contact with the child, they shall have an affirmative duty on each occasion to take reasonable steps to ensure that Michael Dowling has complied with the alcohol and drug restrictions.

g. Teresa Campeau’s brother shall have no contact with Parrish without further court order.

h. Any disagreement between the Respondents as to how access time should be divided between them may be returned to court by way of motion on seven days’ notice.

[351]. More generally, terms of access and restrictions may be subject to variation after 12 months, but any party seeking a lessening of restrictions shall be required to establish that affirmative steps have been successfully undertaken to address a problem which gave rise to the original restriction.

[352]. Subject to the other terms herein, the Applicant shall be responsible to provide transportation for access, either personally or through a designate. This is based upon none of the Respondents currently having private transportation available to them. If any of the Respondents come to have a vehicle available to assist with transportation (whether through ownership, loan, or otherwise) they shall notify the Applicant forthwith in writing. In that event there shall be an expectation that there shall be some sharing of transportation responsibilities.

[353]. The access schedule:

a. Parrish shall be made available for access on alternate weekends.

i. There shall be a presumption that the alternate weekends shall commence on Friday at 6 p.m.

ii. However, if the father is providing transportation to facilitate the exchange, the father shall have the option of delaying the commencement time until no later than Saturday at 9 a.m., if he is unable to deliver the child Friday 6 p.m. as a result of his employment commitments, and as well, if he is unable to arrange for someone else to deliver the child. In such event, he shall notify the Respondents in writing as soon as he is aware of the scheduling problem, and in any event no later than the preceding Wednesday at 6 p.m. He shall notify them of the new delivery time (as stated, not later than Saturday at 9 a.m.). If he advises the Respondents that he cannot deliver the child Friday at 6 p.m., the Respondents shall have the option of arranging to pick the child up for the start of the weekend visit (subject to the Applicant being advised in advance of the proposed transportation arrangements, with particulars as to the vehicle, driver, insurance, etc).

iii. If the weekend visit commenced Friday at 6 p.m. it shall end Sunday at 6 p.m. If the weekend visit commenced later than Friday at 6 p.m., it shall end Sunday at 7 p.m.

iv. In any event, if the Monday following a weekend visit is a statutory holiday or school professional development day, the weekend visit shall be extended by 24 hours to include the Monday.

b. During the summer school break, the Respondents shall have access on alternate weeks, with exchanges to take place Sunday at 7 p.m. commencing on the first Sunday after the last day of school.

c. The March school break shall be divided equally between the Applicant and the Respondents. In even numbered years the Applicant shall have the option of having the whole of the March school break for purposes of an out of town vacation. If he elects to take this full week he shall advise the Respondents in writing by January 30th. Otherwise the March break shall be divided on the basis that each party shall have their ordinary weekend plus adjacent weekdays, with the exchange taking place Wednesday at 7 p.m. This is not to preclude future consideration of any of the Respondents being allowed to travel with the child at March break.

d. At Easter, the alternate weekend pattern shall not be disrupted, but the times shall be changed. In even numbered years the Respondents shall have the child from Thursday 6 p.m. to Saturday 6 p.m. In odd numbered years they shall have the child from Saturday 6 p.m. to Monday 6 p.m.

e. At Christmas, the overall number of days off school shall be divided equally between the Applicant and the Respondents. In the absence of any other agreement, the total number of days shall be divided in half. In even numbered years the Applicant shall have the first block of time and the Respondents shall have the second block of time. In odd numbered years this shall be reversed. This “two blocks of time” approach is only a default position. The parties are encouraged to be more flexible to achieve an overall equal sharing which allow all parties to share all of the special moments of the Christmas school break.

[354]. Telephone & electronic access:

a. During the ordinary alternate weekend access regime, the Applicant shall ensure that the child is available for telephone access to the Respondents on Tuesday and Thursday evenings for a minimum of 30 minutes.

b. During periods when school is not in session and the alternate weekend access regime is not in place, there shall be telephone access to the other party at least every 48 hours.

c. Similarly, the parties shall encourage and facilitate other forms of electronic access by computer, Skype, etc., on the same terms.

[355]. Vacations & Travel:

a. The Applicant may obtain a passport for the child and travel outside of Canada with the child, without the participation or written consent of any of the Respondents. This is not to preclude any of the Respondents from proposing such travel with the child in the future, upon establishing that circumstances have changed to warrant such travel arrangements.

b. Any party proposing a vacation with the child shall provide the other parties with full vacation particulars at least 30 days in advance, including travel details and contact information. As stated, there shall be a presumption that the Applicant may take the child on vacation. There is no such presumption relating to the Respondents, but the issue may be addressed.

[356]. Information:

a. The Applicant shall keep the Respondents informed in writing as to the particulars of schools, doctors, recreational facilities and any other professional, social or recreational organizations involved in the child’s life. All of the Respondents shall be entitled to communicate directly with any third parties involved in the child’s life. However, the Applicant shall have sole decision making authority.

b. All parties shall be required to notify all other parties immediately if the child attends for any medical, dental or counselling appointment.

c. All of the parties shall keep all other parties informed as to their residential address and the identity of any person residing in their household. Any changes shall be communicated within one week. The parties shall also keep one another informed as to their current telephone number (which may be a cell phone) and current e-mail address.

d. Any communications required herein, and any important communications shall be by e-mail addressed to all other parties (even if telephone or direct communication has already taken place). Each party shall be required to check their e-mail address a minimum of once every 24 hours, and each party shall be required to respond to e-mail inquiries within 24 hours of learning of the inquiry.

e. The child shall not be used to relay messages between the parents.

f. The parties shall minimize communications during access exchange times.

g. The parties shall not question the child about any other party’s personal life or activities.

h. All of the parties shall notify all other parties in writing immediately, if they come to have any involvement with the police (including but not limited to police calls to their residence), or any child protection agency (in relation to any child); or if they come to be aware that any person in their residence or having contact with Parrish has any involvement with the police or any child protection agency.

i. All of the parties shall be entitled to attend any school or recreational activity or performance which is open to the public.

[357]. Other provisions:

a. All of the parties shall encourage Parrish to have a positive and respectful relationship with all of the other parties, their families, their partners, and anyone residing in their respective homes.

b. None of the parties shall make any negative or disparaging comments about any of the other parties (or anyone associated with them) in the presence of the child, nor shall they allow any other person to expose the child to negative comments.

c. All of the parties shall encourage and facilitate Parrish having a positive relationship and frequent contact with all of her siblings, half-siblings and extended family (including her aunts Alexis and Billie).

d. All parties shall ensure that the child is not exposed to cigarette smoke. Smoking shall not be permitted in any residence where the child will be staying on an overnight basis, even when the child is not present.

e. No party shall use or allow any other person to use physical discipline in relation to Parrish at any time.

f. The Applicant shall retain all original documents for Parrish but he shall provide each of the Respondents with a copy.

[358]. The Applicant shall be permitted to change the child’s surname to include his surname “Cochrane” as part of a hyphenated name, without the written consent or participation of any other person. He shall be entitled to determine whether “Cochrane” shall be the first or second part of the hyphenated name. If the Applicant elects to make this name change, all parties shall be required to consistently use the hyphenated name.

[359]. The parties shall keep one another fully informed as to any health issues arising in relation to the child. Related to this, all of the parties shall be required to make diligent and ongoing efforts to reduce or eliminate any issue relating to Parrish having head lice. This obligation shall include the requirement that each party shall promptly communicate by e-mail to all other parties full particulars as to any observation of nits or head lice, and details as to steps taken to deal with the problem.

[360]. Natasha Myers shall notify the Applicant in writing if she obtains any employment. She shall provide the Applicant with copies of her tax returns and notices of assessment on an annual basis, by June 30th.

[361]. Court staff are directed to forward a copy of this judgment to the Children’s Aid Society of Hamilton for inclusion in their files relating to:

a. Historical contact by Natasha Myers and Michael Dowling to the child Parrish, who is the subject of this proceeding.

b. Historical and unknown future contact by Natasha Myers and Michael Dowling to the 10 year old twins Alexis and Billie (who are not the subject of this proceeding).

c. The scheduled birth of Natasha Myers’ baby on August 4, 2014.

[362]. If any party wishes to address any residual issue other than costs, arrangements should be made within 10 days to have this file added to my list in court to be spoken to, with all parties in attendance.

[363]. Any party claiming costs shall serve and file written submissions within 21 days of date of this judgment. Responding submissions should be served and filed within 14 days thereafter. Any reply to be served and filed within 7 days.

Pazaratz, J.

Released: April 2, 2014

COURT FILE NO.: F1612/10

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

MICHAEL COCHRANE

Applicant

And

NATASHA MYERS

AND

TERESA CAMPEAU

AND

EDWARD McSHERRY

Respondents

REASONS FOR JUDGMENT

Pazaratz. J.

Released: April 2, 2014