ONTARIO
SUPERIOR COURT OF JUSTICE
FAMILY LAW APPEAL
COURT FILE NO.: 2945/13
DATE: 20140411
B E T W E E N:
E.M.A.
Mr. David Godard
Appellant
- and -
N.A.M.P.
In Person
Respondent
HEARD: April 2, 2014
REASONS FOR JUDGMENT
[Appeal from the Interim Order of the Honourable Justice R. Zisman
dated April 24, 2013]
Fragomeni J.
[1] On April 24, 2013 the Honourable Justice R. Zisman gave the following judgment:
There will therefore be an order varying the orders of Justice Fisher April 27, 2006 and Justice Maresca dated December 22, 2005 as follows:
The respondent N.A.M.P. shall be granted custody of the children M.G.1 born […], 2000, T.G. born […], 2001 and M.G.2 born […], 2005;
The children shall continue to reside in the home of the applicant E.M.A. until the last day of school in June 2013;
Upon the Respondent providing satisfactory proof to the court on June 13th, 2013 that she has obtained suitable accommodations or providing proof of the date that those accommodations will be available, the date for the transition of the children’s primary residence to the home of the respondent shall be determined;
Pending the children residing in the primary care of the respondent, the children shall continue to spend time at the home of the respondent three out of four week-ends in accordance with the court order of Justice O’Connell dated August 3, 2012 except that if any of the weekends is a statutory holiday the access shall be extended to Monday at 6:00 p.m.;
The parties shall share all of the driving for the access visits. While the children reside in the care of the applicant, the respondent shall be responsible for picking up the children at the beginning of each access visit and the applicant shall be responsible for picking the children up at the end of a visit; once the children are in the primary care of the respondent, the applicant will pick up the children at the beginning of each access visit and the respondent will pick them up at the end of each visit; the applicant and respondent will both remain in the car at the pick-up and drop-off;
Once the children are residing in the primary care of the respondent, the applicant shall have access for the first week-end of each month from Friday at 5:30 to Sunday at 6:00 p.m.to be extended to Monday at 6:00 p.m.
The parties shall keep each advised of any change in their address, telephone number, email address or any other contact information;
The respondent will consult with the applicant regarding any major decisions with respect to the children including but not limited to their education, health and religion; if the parties do not agree the respondent shall be entitled to make the final decision;
The respondent shall advise the applicant of the names and contact information of any professionals involved in the children’s care and development;
The respondent will execute any necessary consents to enable the applicant to obtain copies of the children’s school reports directly from the school;
The applicant will be permitted to attend any of the children’s school or church concerts, extracurricular activities or any other special events;
The applicant will provide to the respondent the children’s original health cards, birth certificates and social insurance cards;
Regardless of the regular access schedule the children shall reside with the respondent on the following days:
a) Mother’s day
b) Christmas Eve and Christmas Day
- Regardless of the regular access schedule the children will spend time with the applicant on the following days:
a) December 26 and 27th
b) One day during the Easter and Thanksgiving week-end
c) Two non-consecutive weeks in the summer
Both parties shall be reasonable in adjusting the access schedule to accommodate any reasonable requests for special occasions and provide the other party with as much notice as possible. The children’s best interests shall be a priority in any such arrangements. If any such change results in the applicant missing any time with the children a make-up visit shall be offered;
The children shall be free to contact either the applicant or respondent when in the care of the other party;
Such further and other access as may be mutually agreed upon;
For the summer of 2013, the children shall attend summer camp in accordance with the arrangements made by the applicant.
[2] The children did move back into the home of their mother N.A.M.P. (“mother”) in August 2013 and continue to reside with her.
[3] The trial of this matter took place over two days, March 19 and 21, 2013. Justice Zisman heard testimony from: the grandmother, E.M.A. (“grandmother”); the mother; Roy Reid a clinical investigator at the Office of the Children’s Lawyer (the “OCL”); P.G., the children’s father; E.G., P.G.’s sister; and G.Y., the mother’s new husband.
[4] The appellant grandmother appeals the decision of Justice Zisman on the following grounds as set out in her Notice of Appeal filed May 24, 2013:
The learned trial judge:
(i) failed to consider the best interests of the children;
(ii) failed to consider the views and preferences of the child T.G. to remain residing with the appellant grandmother;
(iii) failed to give sufficient weight to the recommendations of the OCL; and
(iv) erred in allowing the clinical investigator, for the OCL, Roy Reid, to give viva voce evidence at trial, such evidence not disclosed in a report and not provided to the appellant in advance.
[5] It is important to set out the background and chronology of the proceedings to provide a context for the discussion that follows. Justice Zisman sets out that background and chronology in her reasons at pp. 2 and 3 as follows:
• The mother is currently 38 years old. She met J.G. (“father”) in 1997 when she was 22 years old while she was working as an exotic dancer. They began to date and shortly thereafter began to live together. The mother was aware the father was involved in drug dealing.
• Prior to the birth of M.G.1, the mother and father moved into the residence of the grandmother. They moved in and out of that residence from time to time.
• The relationship between the mother and father was volatile. During the relationship the father was arrested and incarcerated several times for drug related offences and various other offences.
• In 2004, the mother was charged with impaired driving causing death and dangerous operation of a motor vehicle causing death. She was released on bail and resided with the father. During this time she became pregnant with M.G.2 and began to use crack cocaine with the father.
• The mother permanently separated from the father in July 2005 after being assaulted by him.
• In early 2005, the children’s aid society became involved and the children were placed in the temporary care and custody of the grandmother.
• On April 27, 2005 the grandmother obtained custody of M.G.1 and T.G. with no access to the either parent without further court order. Neither the mother nor father attended court.
• On December 22, 2005 the grandmother also obtained custody of M.G.2. The mother was granted access as agreed upon between herself and the grandmother.
• On April 12, 2006, the mother pleaded guilty to the charge of dangerous driving causing death and received a sentence of 2 years and probation for 3 years. She was required to do 100 hours of community service and banned from driving for 10 years.
• The mother was released on parole in December 2006 and remained in a half-way house from 2006 to 2008.
• In 2007, the mother commenced a motion to change to obtain access to the children. On a temporary basis, she was granted supervised access but as she failed to exercise access, her motion to change was dismissed.
• The mother commenced this motion to change requesting supervised access as the outstanding order did not permit her any access without further court order.
• At the first appearance on May 4, 2011, the parties agreed that the mother would have reasonable access at the sole discretion of the grandmother and that initially the access would be exercised in the grandmother’s home and that the mother would also have telephone and computer access to the children.
• On August 11, 2011, the parties agreed that the mother have access on alternate Saturdays for 4 hours with pick up and drop off at the supervised access centre and that the access was to be exercised at specified places in the community. An order was also made appointing the Office of the Children's Lawyer.
• At the case conference on May 11, 2012, the parties executed temporary minutes of settlement consenting to an order in accordance with the recommendations of the Office of the Children's Lawyer with some minor changes.
• At the court attendance on May 28, 2012 the grandmother’s motion to set aside the consent order made May 11, 2012 was dismissed. On a temporary basis, the mother’s access was specified to be on alternating week-ends from Friday to Sunday and the mother’s access was to be reviewed at the next court attendance.
• On August 3, 2012 the temporary order for access to the mother was increased to three week-ends out of four.
• The matter was then adjourned to a trial management conference on October 31, 2012. At the trial management conference before me, counsel for the mother was clear, both in oral representations and in his trial management conference brief, that the mother was seeking custody of the children. It was the grandmother’s position that she retain custody of the children and that the mother have supervised access.
• Trial dates were set for the week of March 18th, 2013. In view of the passage of time since the Office of the Children's Lawyer report of May 9, 2012 and the interviews of the children in January and February 2012, I requested that the children be interviewed again by the Office of the Children's Lawyer so that the court would be aware of the children’s more recent views and preferences.
[6] Justice Zisman then sets out a summary of the relevant evidence and plan of care of the mother and a summary of the relevant evidence relating to the grandmother and her plan of care.
[7] The OCL filed a report dated May 9, 2012. Justice Zisman sets out Mr. Reid’s conclusions at pp. 9-11 of the judgment.
[8] Mr. Reid summarized his conclusions at pp. 17 and 18 of his report as follows:
The history of this case and the history between the children, their mother and their grandmother indicate that there has been substantial conflict and it has been heightened during the recent past. E.M.A. had taken on the role beyond that of a grandmother and became the children’s primary caregiver following their mother’s incarceration and failure to comply with the recommendations put forth by the Children’s Aid Society following her discharge from custody. E.M.A. has experienced a number of challenges since taking on the role of parenting the children. This was documented in the report received from the Children’s Aid Society of Halton. It is clear that E.M.A. has been trying to parent the children under very difficult circumstances. In particular, this has been even more challenging due to the acrimonious relationship between M.G.1 and her grandmother. E.M.A. continues to express concerns about N.A.M.P.. Many of those concerns; however are historical in nature; concerns about N.A.M.P.’s drug use and lifestyle were not evident during the course of this investigation. However, E.M.A.’s continues to harbor feelings of mistrust towards N.A.M.P.. As a result, while she does support the children rebuilding their relationship with their mother, she continues to express the view that the contact with N.A.M.P. should be supervised. She also stressed that any substantial contact between the children and their mother needs to occur at a pace that she feels is manageable for the children. It is unfortunate that the conflict between E.M.A. and N.A.M.P. continues to leave the children feeling torn. N.A.M.P. acknowledged having lived a life that was self destructive, not only to herself, but in particular to her children. She voiced that her past behaviour has caused substantial harm to herself and also to her children. She emotionally expressed that those “mistakes” that she has made in the past are in the past. She has taken steps to rebuild her life but also the child/parent relationship that has been harmed due to her past behaviour. N.A.M.P. is now in a stable relationship. She has now secured employment and is also in a stable residence. This investigation did not find any evidence that N.A.M.P. is engaged or has recently engaged in the destructive behaviour that has been a part of her history. The information received from a number of collaterals that have been involved with her in the past and currently, reports that she has made substantial changes in her life towards the betterment of herself and to rebuilding her relationship with her children. N.A.M.P. feels that she is now ready and able to be the parent to her children she was not previously. It is thus the writer’s view, that she should have the opportunity to rebuild her relationship with her children; however it is very clear that rebuilding cannot take place within the confines of the access arrangements that are currently in place. M.G.1, T.G. and [M.G.2] have experienced significant turmoil in their young lives. They have been fortunate to have a grandmother who has for the past seven years been supportive and worked diligently to parent them, despite the fact that their mother and their father were not present to parent them. It was clear however, that continuing to have the children reside with their grandmother without planning for their future would be short sighted as E.M.A. may not be able to continue to provide care for the children on a long term basis. The children will need to begin to establish a relationship with their mother that goes beyond a couple of hours, every other Saturday. Steps should be taken to rebuild the relationship with the children and their mother, to a point where the children will eventually be able to have expanded access with the mother, including overnight access. This will be a challenging task, one that required due diligence and careful planning in order to ensure that this happens in a manner that is respectful to the relationship that the children have established with their grandmother but also allows for the grandmother to continue to remain a part of the children’s lives and for their role (sic) [mother] to begin to lay(sic) [play] a more integral role in their lives. [square bracketed words added]
[9] Mr. Reid recommended that the grandmother retain sole custody of the children and that after a year, the current custodial arrangement be reviewed with steps taken towards a joint or shared custodial arrangement and that the OCL prepare an updated report.
[10] Justice Zisman sets out in her reasons events that had taken place subsequent to the May 9, 2012 report. Those events are:
The mother and grandmother have not been able to accommodate special requests regarding access arrangements:
• The mother requested keeping the children for the Monday of the Thanksgiving weekend, the grandmother refused as the court order only provided access until Sunday
• The mother accommodated the grandmother’s request for a weekend so that the family could go to Great Wolf Lodge but when the mother gave up a weekend because of a winter storm the grandmother did not offer her a make-up weekend.
The grandmother has not included the mother in the children’s special events, education or medical appointments or shared information:
• The grandmother would not permit the mother to attend T.G.’s baptism despite T.G.’s request and then in her testimony minimized the importance of this event
• The grandmother did not invite the mother to attend the parent teacher meeting and then minimized its importance
• The grandmother did not initially give the mother the children’s report cards but eventually provided them
• The grandmother did not invite the mother to the appointment with Dr. Cadman, the children’s new psychiatrist
• The grandmother did not advise the mother of the children’s appointment at ROCK for counselling or invite her to attend
• The grandmother took the position that she advised the mother of information about the children in correspondence sent to her counsel but as the custodial parent she should be the first to attend all medical and counselling meetings.
[11] Justice Zisman then reviews the oral testimony of Mr. Reid as it relates to his interviews with the children and their views and preferences. I will deal with each child individually.
M.G.1
She was happy to meet with Mr. Reid and she was tearful and emotional. In his opinion she was a typical 12 year old but she is the child most impacted by the conflict between her mother and grandmother;
M.G.1 is in Grade 7 and doing well in school;
She stated her mother is kind and generous and does not yell;
Her grandmother calls her “mental”, compares her to her mother in a negative way and tells her she will end up like her mother;
Her grandmother is very negative and difficult to live with;
Although she has made good friends and would miss them she wanted to live with her mother;
Even if she was separated from her siblings she wanted to live with her mother and see her siblings.
T.G.
She was articulate but not as tearful or emotional;
She is a typical 11 year old, very articulate and vibrant but like an “old soul”;
She is introspective and like her sister, she is caught in the conflict between her grandmother and mother;
T.G. is in Grade 6 and also doing well in school;
She misses her mother and enjoys access with her but misses her friends and attending events like birthday parties;
She would prefer alternate week-end access with her mother;
She gets along pretty well with her grandmother. Sometimes her grandmother talks about her mother and tells her she should be thankful she raised her rather than being taken to Children’s Aid Society (“CAS”);
She did not want to make either her grandmother or her mother sad;
She wanted to live with her grandmother because all her friends are there;
She was worried about being safe in Brampton because of all the shootings;
She did not explain why she had changed her mind since the first interview about living with her mother;
She did not express any concerns about her moving with her mother except missing her friends and that her grandmother had cared for her.
M.G.2
M.G.2 is 8, is in Grade 2 and is doing well in school;
He likes his grandmother’s home as his friends are there but he does not like his grandmother yelling at him or his siblings;
He does not like it when his grandmother yelled at his mother and he is sad they don’t get along;
He does not misbehave at his mother’s home but at his grandmother’s he throws things;
When asked about his wishes he did not mention living with either his grandmother or mother;
He wished his grandmother would be nice all of the time;
He would be happy if he lived with either his grandmother or mother.
[12] All three children expressed to Mr. Reid that they all wanted the conflict between their mother and grandmother to be over.
[13] Justice Zisman’s analysis of the issues commences at para. 88, with articulating that all decisions relating to custody and access of children are determined solely by what is in the best interests of the children. She reviews the relevant provisions of the Children’s Law Reform Act, namely R.S.O. 1990, c.C.12 ss. 24(2), (3) and (4).
STANDARD OF REVIEW
[14] In Sferruzzi v. Allan, 2013 ONCA 496 33 R.F.L. (7th) 1, Gillese J.A. sets out the following, at para. 43:
The Supreme Court of Canada has confirmed the narrow scope of appellate review in all family law matters relating to custody and access: see Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014, at para. 11. An appellate court is entitled to intervene only where the trial court committed a material error, seriously misapprehended the evidence, or made an error in law: Van de Perre, at paras. 11-12.
[15] I am not satisfied that appellate intervention is warranted in this case.
[16] Justice Zisman carefully and thoroughly reviewed the testimony of the grandmother and mother and made findings of fact that are supported by the record. She was entitled to do so and is owed deference because she did not misapprehend the evidence.
[17] In reviewing the testimony of the grandmother, Justice Zisman made the following findings and observations:
Much of the grandmother’s focus throughout the case related to the mother’s past conduct; and
Unfortunately the grandmother is simply not able or willing to let the past go.
[18] Justice Zisman sets out the serious difficulties the mother has had in the past including her drug use, transient lifestyle, domestic violence, and her incarceration after pleading guilty to a very serious charge of dangerous driving causing death. Justice Zisman states that the mother accepted responsibility for the crime.
[19] Justice Zisman then notes that the mother has worked extremely hard to educate and rehabilitate herself.
[20] Justice Zisman sets out the concerns she has with respect to the grandmother’s continued custody of the children at paras. 97 and 98 as follows:
However, the grandmother seems to have had many difficulties dealing with the children’s emotional needs. Each of the children has reported concerns about their grandmother yelling at them. There was a verification of inappropriate physical discipline by the children's aid society and several incidents that required the involvement of the children's aid society. The grandmother’s own son was concerned enough about the family dynamics that he called the society. I have considered that the grandmother always co-operated with the suggestions for interventions such as arranging counselling for the children, attending parenting classes and arranging for and following the treatment recommended by Dr. Bahkt, the children’s psychiatrist and that she has now arranged for new psychiatrist.
However, there is a distinct difference between obtaining treatment for a child’s emotional needs and having an insight and understanding of those needs. Both M.G.1 and T.G. have repeatedly alleged that their grandmother calls them “mental”. Although the grandmother denies ever calling them this, I reject her evidence. Both girls have been consistent over the span of the year between the interviews by Mr. Reid that this is what their grandmother calls them and they have no reason to lie about this. M.G.1 has also stated several times that her grandmother hurts her when she compares her to her mother and when she makes disparaging comments about her mother. What is even more disturbing is that the feelings of both M.G.1 and to a lesser extent T.G. about how their grandmother acts towards them, what she says and the effect on them were all in the report of Mr. Reid and yet a year later it does not appear that the grandmother changed her behaviour or attitude. I find that the grandmother does not have the ability to meet the children’s emotional needs and in a particular her lack of understanding of M.G.1’s emotional needs is a significant and troubling concern.
[21] Justice Zisman also expressed concerns about the grandmother’s cognitive abilities.
[22] Further at paras. 101 and 102, Justice Zisman states:
I also find that the grandmother lacked the insight to understand the importance for the children to see that the grandmother and mother were getting along and that their grandmother was prepared to include their mother in their lives. Despite the recommendations of Mr. Reid that it was important for the grandmother to include the mother in the children’s activities, educational and medical issues, the grandmother did not permit the mother to attend T.G.’s baptism or the parent/teacher interviews or attend the medical appointment with the children’s new psychiatrist.
I find that the grandmother has squandered every opportunity she has had over the last year since the Office of the Children's Lawyer report was released to show that even if the children remained in her primary care, the mother would be an important part of the children’s lives.
[23] With respect to the mother, Justice Zisman notes:
The mother has shown that she has the ability to regulate the children’s behaviour;
She accepted her evidence and her husband’s evidence that they did not have any problems with the children’s behaviour during the access visits and that this evidence was consistent with the statements made by the children to Mr. Reid and his own observations;
She was impressed by the mother’s evidence in that she had a good understanding of the emotional needs of the children, the difficulties they have had in their young lives and the effect of not being raised by their mother and father; and
The mother’s own educational background has also provided her with the ability to not only understand the children’s needs but also to be able to access the proper community and professional supports to assist them.
[24] The trial testimony of the mother, is compelling as it relates to the changes she made to leave her past behind and take the necessary steps to be able to parent the children and care for them. The following testimony is informative and relevant:
Q: While you were at Grand Valley, did you engage in any kind of treatment programs?
A: Every kind of treatment and program that I could get involved in. Immediately when I got there, I believe it was my second or third day, I had made an appointment with the psychologist. I had spoken with the substance abuse counselors, got into a program called WOSAP, that’s the Women Offender Substance Abuse Program, happens in three different levels. I also became involved in the church facility, things of that nature, any programming that I could take. I also did 118 Bible studies. I worked. I was classified a couple of different times until I was eventually fence cleared so I was allowed to work at stores and the canteen. I travelled outside of the institution with the Warden’s permission to share my testimony at different places.
Q: Okay, so you became aware that there was a court order that actually said you were being denied access?
A: Correct.
Q: Okay, so what did you do after that? Did you go back to school? Were you working?
A: I, I did.
Q: When was that in relation to your release from the halfway house?
A: So that was in 2007 so I was out for a short period of time. Not very long after I was released into the community, there was a church just up the street from the halfway house. They run a program there called Regeneration Outreach and they serve the community breakfast and do and ID bank and have clothes, and so I began to volunteer there to get back involved with the community. I met the Street Outreach Team who I became a part of a few committees with some of the ladies directly involved with the homeless and the drug addicts and the sex trade workers trying to assist people in that walk of life. In 2008 I decided to go back to school. I was, I was certain and I was – it was confirmed for me by several people that in order for me to come back to court I would have to build a substantial foundation in which to come forth and say why I wanted to be back with my children and what I could provide as a mother in the best interests of my children.
Q: So did you make a plan?
A: I did.
Q: And when did you start to kind of make that plan? Approximately what date was it?
A: Just before the start of the school year in September…
Q: Of….
A: … of 2008.
Q: Okay, so we’re now at September of 2008 and what school did you apply to?
A: Sheridan College.
Q: And which, which campus?
A: The Davis Campus in Brampton.
Q: And were you accepted?
Q: I was.
Q: And were you accepted as a mature student or how did that work?
A: Yes. I – well, I tested and I, and I passed all of their entrance exams and so I was immediately accepted into the Community Development Outreach Worker Program.
Q: And how were you able to fund that education?
A: I got a loan through the Ontario Student Loans.
THE COURT: Sorry, Community Development Outreach Program?
A: Yes.
THE COURT: Okay.
MR. BHATTACHARYA: Q: So let me fast forward. Did you complete that program?
A: I did. I graduated with honours and I did international placement.
Q: Okay, so just tell me about the period of time after you started Sheridan College until you finished your diplomas in – and, I’m sorry, when did you graduate?
A: 2010.
Q: 2010. So just tell me a little bit about that.
A: I, I, of course, worked with the place where they started in Regeneration Outreach Community doing lunch, clothing closets, ID clinics. I was on a support committee for women who are living on the streets and who are involved in sex work and addiction. I volunteer at Redemption which is another location that makes lunch and suppers for the community. I am now a cleared and certified volunteer with Correctional Services Canada with regards to community chaplaincy. I’ve kept up with all of this.
MR. BHATTACHARYA: Q: Your education that you received and your experience that you’re getting in your chosen field, are these things that you’re using as a resource to help you restore your relationship with your three children?
A: Absolutely.
Q: Okay. Now, aside from your, your education, tell me about some of the other support that you’ve been able to get in the community to help you achieve a goal of restoring your relationship with M.G.1, T.G. and M.G.2.
A: Well, I had wonderful support of my church obviously.
Q: Which church is that?
A: Bramalea Christian Fellowship.
Q: And are you a member of that congregation?
A: I am.
THE COURT: So it’s the Bramalea….
A: Christian Fellowship.
THE COURT: Thank you. Okay.
MR. BHATTACHARYA: Q: Yes?
A: Um….
Q: How large would that congregation be, any sense?
A: It’s – we’re just short of 900.
Q: And do you volunteer for, for, for things in that congregation?
A: Yes. I’m very involved within service at the church.
Q: And what about their programs for children?
A: So the children take part in everything they can on the weekends that they’re with me.
Q: So M.G.1, T.G. and M.G.2 are familiar with the Bramalea Christian Fellowship Church?
A: Yes, they are.
Q: How often would you say you’ve taken them there?
A: I take them every single weekend that they’re with me. We don’t miss church.
Q: Okay, and what, what other community support have you got?
A: So with the volunteer work, with the community chaplaincy, I have worked with and made friends with several people in that aspect. Some of them have the same training and also a great deal more and have been able to connect me to different professionals with respect to mental health, with, with self-care for myself to ensure that, you know, I don’t let these things really boil up and stress me out so I can’t function and deal with things properly. Through places that I volunteer – from my school I’m still connected to professors from…
Q: This is at…
A: …Sheridan College.
Q: …Sheridan College? Yes.
[25] Justice Zisman recognized that the children have lived in a stable environment with their grandmother for most of their lives. The grandmother has managed to meet their day to day needs. The grandmother’s plan has the advantage of permitting the children to remain in familiar surroundings.
[26] Justice Zisman also acknowledges that the status quo custodial arrangements have always been important and that there is a heavy onus on the mother as she seeks to disturb that status quo.
[27] Justice Zisman found that the views and preferences of the children, especially M.G.1, deserve a great deal of weight.
[28] With respect to M.G.1, Justice Zisman found that it would be detrimental to M.G.1’s emotional well-being if she remained in her grandmother’s care. Justice Zisman did not err in so doing and this finding does not warrant appellate intervention.
[29] Justice Zisman’s finding with respect to M.G.2 is also supported by the record. At para. 107 Justice Zisman states:
In view of M.G.2’s age and his neutral preferences that is, he is fine living with either the mother or grandmother, I put little weight on his wishes except to the extent that if he is required to move and live with his mother he will adjust easily.
[30] With respect to T.G., Justice Zisman notes the following at para. 108:
With respect to T.G.’s views and preferences, they appear to have changed over the year from a wish to reside with her mother to a preference to continue to reside with her grandmother. I have some concerns that the change in T.G.’s views may have been influenced as it is unusual for a child to speak about being worried about crime in Brampton where her mother lives. But importantly, T.G. has not indicated any concerns about her mother, she enjoys her access visits with her mother and her desire to remain in her grandmother’s home is based on her wish not to leave her friends. I accept the mother’s evidence that the children make friends easily and that she would facilitate the children’s contact with their friends by permitting sleep-overs, something she is already doing. I also take a common sense approach that most adults have not maintained their friendships from Grade 6 and if the friendship is that strong it can survive the short distance between Burlington and Brampton.
[31] A significant factor in determining that the status quo should be changed relates to the issue of sibling separation. Justice Zisman finds that the children have a close and loving relationship. She finds that it would not be in these children’s best interests to be separated from each other. Justice Zisman states, at para. 109 that, “[i]n view of the strongly held views of M.G.1 and the more neutral views of the other children, this factor is significant in my determination that the status quo should be changed.”
[32] Justice Zisman was entitled to make that finding, the record supports that finding and appellate intervention is not warranted.
[33] I am satisfied that Justice Zisman considered the best interests of the children. I am satisfied that Justice Zisman considered the views and preferences of the children.
[34] The recommendations of the OCL as well as the views and preferences of the children are factors the trial judge considered.
[35] However, it is the trial judge’s duty to determine what is in the best interests of the children. A trial judge cannot abrogate her responsibilities in that regard to the OCL or to an 11 year old child. Those voices must be heard, but the trial judge’s decision cannot be delegated to them.
[36] The final area I wish to deal with relates to the judge’s analysis relating to the issue of joint custody.
[37] Justice Zisman reviewed the guiding legal principles set out in Kapalanis v. Kaplanis (2005), 2005 1625 (ON CA), 249 D.L.R. (4th) 620 (Ont. C.A.) and Ladisa v. Ladisa, (2005) 2005 1627 (ON CA), 193 O.A.C. 336. At para. 119 of her reasons, Justice Zisman states:
Unfortunately based on what has transpired since the Office of the Children's Lawyer report, it is clear that these parties are simply unable to communicate or co-operate at the present time. They have not been able to agree to engage in counselling over the past year as had been recommended in the Office of the Children's Lawyer report. The grandmother has not included the mother in the children’s school events or medical appointments. The parties have not even been able to co-operate regarding the access. For example, there have been ongoing accusations about problems during the access pick up and drop off, the grandmother has refused to agree to any extra access times for the mother and despite the fact that the mother does not drive the grandmother never offered to share in the driving. This history does not bode well for the imposition of a joint decision regime.
[38] I am satisfied that Justice Zisman did not misapprehend the evidence on this issue and did not commit any material error in fact or in law. The record supported that conclusion and appellate intervention is not warranted.
[39] I conclude these reasons by echoing what Justice Zisman set out at para. 121 of her reasons. The grandmother’s role in parenting these children and the sacrifices she has made is commendable and she should be proud of what she has done for these children in the very difficult circumstances that existed early on in their lives. As Justice Zisman noted at para. 121, however, at this stage in their lives it is in their best interests that the “mother assumes her role as the children’s primary parent and that the grandmother enjoys her role as their grandmother.”
[40] I close by repeating a submission made by the mother at the appeal hearing when she said, “I am no longer defined by my past.”
[41] The children have certainly benefitted from that and will continue to benefit from that. The mother demonstrated to Justice Zisman that she in fact is not defined by her past and the steps she has taken to be able to fulfill the very important role of mother to her three children have been successful.
[42] There is no doubt that the grandmother’s presence in the children’s lives must continue and be meaningful; that relationship is especially important as the children grow into young adults.
[43] For all of these reasons the appeal is dismissed. The order made by Justice Zisman, including the access schedule set out, does not warrant any appellate intervention.
Fragomeni J.
Released: April 11, 2014
COURT FILE NO.: 2945/13
DATE: 20140411
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
E.M.A.
- and –
N.A.M.P.
REASONS FOR JUDGMENT
Fragomeni J.
Released: April 11, 2014