Ontario
Superior Court of Justice
Court File No.: 714/11
Date: 2014/02/11
BETWEEN:
D.M. and T.M.
Applicants
– and –
M.P.B.
F.L.
S.S.
Respondents
James D. Almas, for the Applicants
Self-represented Respondents
Virginia L. Workman, for the Office of the Children’s Lawyer
HEARD: Dec. 9, 10, 11, 12, 13, 16, 17, 18, 19 & 20, 2013; Jan. 6, 7, 8, 9, 10, 13, 14, 15, 16, 17, 20, 21 & 22, 2014
The Honourable Mr. Justice D.J. Taliano
INTRODUCTION
[1] This Application, which was commenced on November 2, 2011, by D.M. and T.M. (“the grandparents”), only sought access to their grandchildren, M.B., born on […], 2000, K.B., born on […], 2005, and D.B.L., born on […], 2011.
[2] However, as time passed and events unfolded, the grandparents amended their Application to seek custody of M.B. and D.B.L. on February 24, 2013, expressly reserving their right to assert a custody claim of K.B. in the event that meaningful access was not offered. At the opening of trial, the grandparents sought and received an order permitting an amendment to their pleadings to include a claim for custody of K.B..
[3] Cross-claims dated January 13, 2012 for custody of all three children have been made by M.P.B. (“M.P.B.”), who is the mother of the three children, and her partner F.L. (“F.L.”), who is the father of D.B.L..
[4] S.S. (“S.S.”), who is the father of K.B., seeks custody of K.B. in his Amended Application dated January 22, 2013, as well as an order permitting him to take her out of the Niagara Region, initially to Shilo, Manitoba, subsequently to Toronto and now to London, Ontario. The father is a member of the Canadian Armed Forces and has been posted to London for the next nine months after which time he will be subject to further posting. It was his acceptance of a job in the military and the prospects of moving himself and K.B. out of this region that prompted the applicants to assert a claim for custody of K.B..
BACKGROUND OF PARTICIPANTS
[5] D.M. and T.M. have been married for 13.5 years. They are both 58 years of age and live in Grimsby, Ontario. D.M. is currently employed full-time and works as a human resource manager from 7:30 a.m. to 4 p.m. Mondays through Fridays. Her income is $73,000 per year. T.M. was employed full-time for over 30 years until recently, when he was downsized. He is currently looking for employment and expects to be able to find employment. Although D.M. is the biological maternal grandmother to all three children, her husband T.M. is a step-grandparent but has played a meaningful role in the lives of all three grandchildren since their birth and will be referred to as a grandparent for the purposes of this judgment.
[6] D.M. testified that M.P.B. is one of her three biological daughters. M.P.B., who was born on […], 1979, was injured in a fall from a three story window when she was 19 months of age while in the care of a babysitter. M.P.B. sustained a serious and permanent head injury. Although she functions reasonably well, M.P.B. has partial paralysis, a permanent limp and restriction of function in the fingers of one hand. She has had to endure many surgeries over the course of her life. She started to have seizures at the age of 16 when she was also subject to serious mood changes, some of which were violent involving thrashing and lashing out at people.
[7] As a result of the injuries, she received a financial settlement which came in to pay when she was 18 years of age. At that time, she moved out of her parental home. The move concerned her mother because she did not think that M.P.B. had the maturity to function on her own nor the capacity to handle the income she was receiving of approximately $45,000 per year. Nevertheless, M.P.B. moved into rental accommodations with various friends in Hamilton. The extent of her instability is reflected in the fact that over a period of two years, she moved nine times and was often robbed by her so-called friends in the process. The accommodations were often unsanitary.
[8] M.P.B. became pregnant with M.B. by the age of 20 although the father was and remains unknown. M.P.B. moved in and out of the grandparents’ home when she had M.B. and later when she gave birth to K.B.. Accordingly, in their infancy, both M.B. and K.B. lived with their grandparents for a period of four and two years, respectively. At her parents’ home, M.P.B. had the help she needed to look after the two children in addition to the help and support of M.P.B.’s sister E.B.. As a result, although D.M. and T.M. had full time jobs, they assumed significant parenting duties for both children.
[9] Even when M.P.B. was living outside of her parents’ home, it was D.M. and T.M. who did the shopping for groceries and ensured that the children got to their medical appointments and recreational activities. It was the extended family who frequently cleaned M.P.B.’s house to ensure the safety of the children and did the dishes when things fell behind in order to maintain sanitary conditions in the home. As M.B. got older and developed an interest in and an ability for soccer, it was the M.s who ensured that she got to practices and games since M.P.B. did not drive. The M.s, E.B. and M.P.B. all lived in Grimsby which made it convenient for everyone.
[10] It frequently occurred that when D.M. returned home from work, M.P.B. would turn the children over to her saying “here she is all yours” and she would leave to do other things. During this period, there were numerous telephone calls, on a daily basis, between the M. household and M.P.B. and although at times relations between them were strained, M.P.B. relied heavily on her parents and sister to raise her children. It is clear that the M.s were not simply grandparents. They were co-parenting both M.B. and K.B..
[11] E.B. testified that she and her sister M.P.B. had a very close relationship although it was stormy at times. She described one incident although it was many years ago, when M.P.B. chased her with a knife. Nevertheless, they lived side-by-side for three or four years and her two children (aged nine and six) developed a close relationship with M.P.B.’s children. E.B. also described a particularly close relationship with K.B. because she was chosen as her godmother and she cut her umbilical cord at the hospital. E.B. saw K.B. almost every day of the week and she often assisted with housekeeping to keep the house safe, ensured that the laundry was done and that there was sufficient food in the house. As well, when K.B.’s father got custody of K.B., she looked after K.B. on school days both before and after school as a daycare provider. She has provided the same care for D.B.L. since his care has been transferred to her parents.
[12] M.P.B. is 33 years of age. In the accident that was previously referred to, she sustained a significant cognitive impairment. At the present time, she has problems with anxiety and depression. Her condition is described in reports authored by her psychiatrist, Dr. Ahmed, which were filed as Exhibits 20, 21 and 22. The doctor noted her self-reported symptoms of anxiety and depression, irritability which gets her into arguments and fights, fragmented attention, and trouble concentrating. His diagnosis was that she suffers from a major mood disorder. She is taking the following medications: 125 mg Zoloft once daily, 200 mg Carbamazeipine twice daily and .5 mg Clonazepam three times daily. Throughout his clinical notes he described her insight and judgment to be “fair”.
[13] M.P.B.’s partner, F.L., is 34 years old. He reported to Dr. Ahmed that he had impaired cognitive understanding when he was younger and had mid grades in school. He reported a history of ADHD and had been prescribed Concerta 54 mg OD for depression.
[14] F.L. is the son of J.L. and V.L. who are unquestionably fine, responsible people. They all testified at this trial. The parents have faithfully attended the trial and they have done everything they could to support Francis, M.P.B. and D.B.L. both in and out of court. The L. family members were all born in the province of Quebec and they are fluently bilingual. J.L. testified that his bilingualism was the key to his successful business career. He and V.L. decided early on that their children would also have the benefit of a bilingual education and upbringing. That being the case, it is of critical importance to the L. family that D.B.L. be afforded the same advantages. The only negative presented by the senior L.s is that they are smokers, although not in the presence of the children. However, they do smoke in their home and, when the children visit, they smell of cigarette smoke afterwards which disturbs the adult caregivers as well as M.B. who has understandably expressed negativity about visiting for this reason.
[15] On a sadder note, F.L. had an accident several years ago. Following the break-up of a relationship and after having too much to drink, he climbed a pole and upon reaching the top he slipped and fell to the ground. He was in a coma for 2.5 days and remained in hospital for 3 days. Although F.L. testified that he feels he has made a full recovery from his fall, Dr. Ahmed reports that F.L. completed testing for both depression and mania and he found that his depression scale was significantly elevated. His mania scale was “moderately significant”. He scored 6 out of 14 for bipolar spectrum disorder and he reported that his symptoms caused him serious problems. His Focus Well-being chart included both anxiety and depression symptoms. The doctor observed that F.L. was “downcast” and his affect was “labile”. F.L. complained of repetitive and senseless thoughts, constant worry, irritability, tension, fearful feelings, trouble concentrating and making decisions, sadness, lack of interest in things, feeling of hopelessness; that he felt trapped, depressed even when good things happen to him. He was diagnosed as having “major mood spectrum disorder and bipolar spectrum disorder”.
[16] S.S. is K.B.’s father and he is 32 years of age. He was not involved with K.B. for the first year of her life because of questions concerning his paternity of the child. Once that issue was resolved, he became an access parent while he balanced his work life in the military reserves. His access was every second weekend in addition to an overnight on alternating weeks. When he was dating M.P.B. there were episodes of excessive drinking and misuse of drugs. However, substance abuse issues are not a factor in his custody application. His access role changed dramatically in December 2011 when K.B. was temporarily turned over to his primary care on consent of M.P.B. and with the approval of the Children’s Aid Society of Niagara (“CAS”). K.B. has been in his care since that time. However, he has now taken a full time position with the Canadian military and in February 2013 was posted to Shilo, Manitoba. Because of the difficulties posed by this custody dispute, he has received several compassionate transfers and his current posting is in London, Ontario for the next nine months. If he is awarded custody of K.B., she will be forced to move from the Niagara Region, first to London and thereafter wherever he is posted.
[17] C.S. (“C.S.”) is married to S.S. and is 29 years of age. She is pregnant and due to deliver in the summer of 2014. She has been involved with K.B. since December 2011 when K.B. was turned over to S.S.’s care. Her role in K.B.’s life has evolved from being S.S.’s friend, to becoming engaged to S.S. in September 2012 and finally as his wife in when she became K.B.’s primary caregiver when S.S. was away. Although she has been dedicated to K.B.’s care, her decision-making regarding access has been protective of S.S.’s position and damaging to K.B.’s emotional wellbeing. As a result, her relationship with K.B. has had its problems which I will detail in a few moments.
[18] She is an intelligent woman and if she had been involved with K.B.’s care as a new born infant, I have no doubt that K.B. would have received dedicated and well informed care. However, she took over the management of a child who had emotional attachments elsewhere and she failed to understand or appreciate how important it was to K.B. to maintain those attachments. The end result has been unfortunate for K.B. and the long term impact on her is uncertain.
(Decision text continues exactly as in the original judgment through paragraphs [19]–[141], including the EVENTS, THE REPORT OF THE OFFICE OF THE CHILDREN’S LAWYER, CURRENT POSITION OF MR. BUTT, and DECISION sections, concluding with the final orders awarding custody of M.B., K.B., and D.B.L. to the grandparents, setting out access principles for the parents, and ordering child support.)
Taliano J.
Released: February 11, 2014
COURT FILE NO.: 714/11
DATE: 2014/02/11
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
D.M. and T.M.
Applicants
- and -
M.P.B.
F.L.
S.S.
Respondents
REASONS FOR JUDGMENT
Taliano J.
Released: February 11, 2014