CITATION: TN v BRAC, 2015 ONSC 2087

COURT FILE NO.: 393/13

DATE: 2015/04/02

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

T.N.

Self-represented Applicant

Applicant

- and -

B.R.A.C.

Luigi De Lisio, for the Respondent

Respondent

HEARD: June 9, 10, 11, 12, 13 & November 19, 20, 21 & 26, 2014

The Honourable Madam Justice W.L. MacPherson

REASONS FOR JUDGMENT

Introduction

[1] This is a motion to change brought by the respondent father, B.R.A.C..

[2] Under the order of Justice R.D. Reilly dated May 4, 2012, the applicant mother, T.N., was granted custody of the child, S.R.C.. The father was granted liberal and generous access to the child which on a gradually increasing basis provided for alternating weekend and mid-week access.

[3] Based on an income of $110,000.00 per year, the father was to pay child support of $958.00 per month. In addition, the father was required to pay spousal support of $1,400.00 per month.

[4] The child has been in the de facto care and custody of the father essentially since February 2013. On March 15, 2013, Justice Reid made a consent without prejudice order granting interim custody of the child to the father, with the mother’s access to be supervised through Pathstone Mental Health. The cost of the supervised access arrangements were to be paid by the father. The child support obligation was suspended.

Issues

[5] The Motion raises the following issues:

1. Has there been a material change in circumstances that would warrant the father being granted custody of the child on a final basis or should the child be returned to the custody of the mother?

2. If a change in custody is ordered, should the mother’s access continue to be supervised?

3. What if any changes should be made with regard to child support and spousal support?

Background

[6] The parties resided in a common-law relationship for a four year period, ending in August 2008. The only child of the relationship, S.R.C., (“S.R.C.”) was born on […], 2007.

[7] Following the separation and for almost three years, the father had only limited involvement in the child’s life. The mother alleged that it was due to a lack of interest by the father whereas the father claimed that the mother thwarted all of his efforts to be involved with the child.

[8] Leading up to the trial at the end of April 2012, the father had been exercising only supervised access to the child through Pathstone Mental Health. In his final Order, Justice Reilly granted unsupervised liberal and generous access to the father.

[9] The first weekend access was to take place Saturday May 26, 2012 from 1 p.m. to Sunday, May 27, 2012 at 6 p.m. and for the following two weekends (June 16 and June 30) and by July 13, 2012 the weekend access was to increase to full weekends (commencing Friday at 5:00 p.m.) and every second weekend thereafter. In addition, the father was granted access on Thursday evenings for a three hour period. The order also dealt with a specific summer holiday visit from Saturday, August 18, 2012 at 9 a.m. until Monday August 27, 2012 at 6 p.m., together with a provision for equal sharing of other holidays such as Christmas, Easter and March Break.

Current Proceeding

[10] Both parties agreed that the difficulties with access occurred almost immediately after the previous trial ended, but each provided very different reasons for same. The father blamed the mother for not following the specified court order, whereas the mother testified that the child was reluctant to attend due to a fear of her father. The mother made allegations of physical abuse and sexual abuse of the child by the father and his girlfriend, all of which were investigated and were found to be unsubstantiated.

[11] The Office of the Children’s Lawyer (“OCL”) was asked to become involved on September 5, 2012 and the clinical investigator, Lori Cunningham, completed her report on February 6, 2013 which recommended that custody be changed to the father with supervised access by the mother.

[12] On February 6, 2013, after reading the OCL report which detailed the allegations made by the mother, the father refused to return S.R.C. following a weekend access visit. He was ordered to return the child by Justice Maddalena on February 27, 2013. However, as the Children’s Aid Society of Niagara had also been provided with a copy of the OCL report, and given their concern about the mother’s conduct, the Society took the position that if the child remained with the mother, they would take steps to apprehend the child. As such, on March 6, 2013, the child was ordered to remain with the father and further on March 25, 2013 Justice Reid made an order on consent, on a temporary without prejudice basis, granting the father interim custody of the child. The mother was to have supervised access through Pathstone Mental Health for the maximum period each week that could be accommodated by Pathstone, with the cost of same to be paid by the father. The mother has been exercising access to the child on Saturdays from 1 p.m. until 4 p.m.

[13] This trial took place over a nine day period commencing in June 2014 and finally finishing in November 2014.

[14] The majority of the evidence heard during this trial dealt with the issues of custody and access. In addition to hearing the testimony of each of the parents, the court heard from Lori Cunningham, a Clinical Investigator from the Office of the Children’s Lawyer; Ketrina Bell, the Family Service worker involved with the family since March 2013; Christine Stark, the Program Manager for the Pathstone Mental Health, the supervised access facility where the mother’s access has taken place; Carmela D’Andrea, the child’s current school principal; Dr. Christopher Lynett, the family physician for the mother and the child; and M.N., the mother’s brother.

Custody and Access

Difficulties with Access

[15] Prior to the trial in 2012, the father had had only limited access with S.R.C. all of which had been supervised, either by the maternal grandmother, E.N., or by Pathstone Mental Health. It was only after that trial that the father began having unsupervised access to the child. He confirmed that at first S.R.C. seemed a little bit timid with him, but she got better and better with each visit and very soon she was excited to see him.

[16] The first overnight weekend access was to take place on May 26, 2012, but an hour before the scheduled access, the maternal grandmother called to advise that S.R.C. would not be attending access as she was sick. The father did not believe that she was ill and so he contacted the police. The child was eventually made available, over an hour after the scheduled time.

[17] The father testified, that the mother would routinely bring the child late for the scheduled access, sometimes arriving one-and-a-half to two hours late.

[18] In addition, rather than just sending the child off for the visit, the mother and the grandmother engaged in long extended goodbyes with excessive hugging of the child and lots of tears. In the father’s words, the pick-ups and drop-offs were “a nightmare”.

[19] He confirmed that he would call the police when the access was not being permitted and on some occasions an incident report was done, but on other occasions, he was advised that as there was no police enforcement clause, nothing could be done.

[20] He also testified that initially he would allow the child to speak with her mother on the telephone during the access visits. The child would often become upset following the phone calls and he decided it would be better to limit this. Often as a result of not being able to speak with the child, the mother would then call the police and request a welfare check, and the father would let the police speak to the child to confirm that she was safe and not in any danger. This has continued, with the most recent check being done in the course of the trial in mid-June 2014.

[21] The mother agreed that there were problems with access as soon as the unsupervised access began and that S.R.C. did not want to go with her father. She attributed this to the fact that her father was mean to her, using corporal punishment (as he had with his other children) and that he repeatedly told the child that he would take her away from her mommy.

[22] The mother testified that she tried to honour the Court order and to release S.R.C. to her father. She also confirmed that while sending the child to her father took a prolonged time, it was because she was encouraging the child to attend the access. She would do this by assuring the child that her father did love her, and by telling the child that her father will do fun things with her this time. But despite this encouragement, the child expressed fear and reluctance to go for the visits.

[23] There were many examples of access difficulties provided by both of the parties, but for the court’s purposes, only a few will be highlighted.

[24] Following an access visit in mid-July 2012 the mother alleged that the child had disclosed that the father had slapped her across the face and had spanked her bum. The child wet herself as a result of being slapped and she was made to sleep in the same clothes. The mother reported this to the police and the CAS were also involved. A worker met with S.R.C., who did not confirm any of the allegations made by the mother.

[25] At an access visit on August 9, 2012, the mother began screaming at the father for money to cover extra expenses for the child, as she needed to buy a bedroom set and dresser for S.R.C.. The father said that furniture was not considered “extra expenses” and he was not working at the time and he could not pay for that. He confirmed that the yelling took place in front of S.R.C. and when he returned the child at 7:00 p.m. that same evening, the mother raised the subject again and even after he had dropped S.R.C. off and left the parking lot, the mother followed him in her car and continued to scream at him, with S.R.C. in the vehicle. The next day was also an access visit and when he arrived to pick up the child at 5:00 p.m., on August 10, 2012, Ms. T.N. continued to scream at him, so he left without taking the child. He did contact the police to report the incident and was advised that there was no police enforcement clause. Shortly after he returned home to Welland, the mother called and asked him to return to pick S.R.C. up. As his partner had taken the car to work, he had no vehicle and was unable to pick up the child. Around 9:00 p.m. that evening, unannounced, the mother brought S.R.C. to his home.

[26] In mid-August 2012 S.R.C. was scheduled to be away for the first time on an extended vacation with her dad and, according to the mother, the child did not want to go. The mother admitted that she was late in arriving as she had taken the child to buy some outfits for the trip. She tried to encourage her by reassuring her that her father would return her and would be nice to her. When they met at Tim Horton’s, she did tell the child she would miss her as would her Nanny. There were a number of events that took place that were concerning to the mother: the father refused to take S.R.C. into the washroom before he left; the father’s girlfriend, T.T., served her with court papers where he was seeking full custody and did so on the mother’s birthday; and they sped off in a reckless manner. The mother called the police as she was unsure where they were going and she had concerns over the father’s explosive behavior and drug use and she was fearful for the child’s safety.

[27] The mother acknowledged that she was able to speak to S.R.C. each evening while she was away. S.R.C. did indicate that she was having fun, but the mother had difficulty in speaking with the child without crying. The mother also confirmed that the child was returned to her as scheduled, and that she was so happy about that and to show S.R.C. how much they had missed her, they did a special Welcome Home cake and went to the Mandarin restaurant.

[28] The mother reported that in mid-September 2012, S.R.C. had complained that her father and T.T. has touched her pee pee, had inserted a straw in her pee pee and that her father had licked her pee pee. It was also alleged that T.T.’s two sons had touched S.R.C.’s pee pee. The police were contacted and after a delay of over an hour, the mother brought S.R.C. for an interview. The police expressed concern as to the veracity of the allegations as the child’s disclosure appeared to be scripted and she was unable to provide any context. The child was taken for a forensic examination at the Child Advocacy Assessment Centre on September 13, 2012. There was no physical evidence of sexual abuse, but instead a diagnosis of vaginitis was made and a topical cream was prescribed.

[29] The father learned about these sexual abuse allegations by the mother from a CAS worker. He was not aware what the allegations were and initially he was advised that no access was being permitted, but later S.R.C. came for her visit. He confirmed that the CAS worker came by the father’s home and spoke with S.R.C. and that it was clear to the worker and to the police, how excited the child was to be with him and how comfortable she was with him. He stated that the allegations that he had molested S.R.C. were unfounded as an adult friend had been babysitting and had been there the whole weekend that the events were to have taken place.

[30] On February 4, 2013, the mother alleged that the child arrived home from an access visit stating that her pee pee hurt and that her father had been touching her pee pee. The mother contacted the police who directed her to take the child to the hospital. A Pediatric Triage Assessment report was filed in the proceeding. The child attended at the Child Advocacy Center and after an extensive investigation was conducted, the allegation was not verified as the child could not provide any details or context and appeared to be speaking by rote.

[31] The OCL report was released on Friday, February 6, 2013 which coincided with the father’s regularly scheduled weekend access. He went to pick S.R.C. up on the Friday but no one would answer the door. The police did attend but he left without getting S.R.C.. Later, he got a call and went back to pick up the child. But, after reading the OCL report and seeing the ideas that were put in the child’s head by the mother about the sexual abuse allegations; the recommendations that the mother needed help; and feeling that S.R.C. should not be stuck in the middle of a battle between the two of them, he kept the child knowing that this was against the court order. He was in touch with CAS and they confirmed that if he returned the child, they would apprehend her. It was a tough decision to disobey the court order, but he could not, as a parent, continue to put the child in harm’s way and continue to expose the child to the extreme problems with pick-up and drop-off and the extreme anger of the mother. He also confirmed that his lawyer brought an urgent motion to obtain interim custody of the child.

[32] According to the mother, there was no basis for the father to have kept the child. This was another indication of the father’s repeated disregard for Court orders. The father has always threatened to take custody of the child and to keep S.R.C. from her, and that is exactly what he has now done, knowing that this would rip her soul out and traumatize the child, by taking her from a caring and loving home.

Parenting Skills

[33] The mother confirmed that she does not drink or do drugs. She has never been in trouble with the police nor does she have a criminal record.

[34] She also testified that she had been able to meet all of S.R.C.’s needs for the first six years of her life. She has parenting experience as the mother of another child, Hunter, who is 18 years of age, who was diagnosed many years ago with autism. She stated that she has provided a caring, nurturing, morally upstanding and loving home for both children.

[35] The mother stated that she had always ensured that S.R.C. was seen by her family doctor (Dr. Christopher Lynett) and had ensured that she had all of her vaccinations. The child was in good health. However she did suffer from eczema and, according to the mother, a dermatologist, Dr. Kowalchuk, had stated that the child should not be taken swimming.

[36] Dr. Lynett testified and confirmed that S.R.C. had been under his care from January 23, 2007 until October 26, 2012. He confirmed that S.R.C. was a healthy child and other than coming in for minor colds and flus there were no concerns. He did not have concerns about the child’s weight.

[37] Dr. Lynett reviewed his records for September 2012 to November 2012 and he confirmed that there were no medical reasons that would justify the child having missed half of the school days in that time period.

[38] He confirmed that he was aware of the sexual abuse allegations made in September 2012 as the mother had reported to him that the child had been molested by her father and his girlfriend. He did not re-evaluate the child as that had already been done by CAS and the police. He stated that the last physical examination that he had done of the child was on August 30, 2011 and that all was normal. Following the allegations being made, on October 17, 2012, he confirmed that his office was contacted by Sandra from the St. Catharines General Hospital Outpatient Children’s center as she was trying to reach the mother to arrange counselling for the child. The doctor also tried to reach the mother, but he also had difficulty contacting her and so there was no follow up on that issue. He was also made aware of the second sexual abuse allegation in February 2013, by the mother contacting him and by obtaining the hospital records.

[39] The mother testified that S.R.C. was enrolled in school at the appropriate age and that she is a bright child. According to the mother, she attended school regularly unless she was ill or was dealing with the sexual abuse allegations. Later when asked about the excessive absences shown in the child’s OSR, the mother explained that it had been due to the father taking her to a chlorine pool which was bad for the child’s skin. She indicated that when the child was in her care, there were no problems with itching and bleeding skin. She also blamed the absences on the fact that the father did not ensure that the child used ear plugs which caused her to get ear infections. The mother did provide a pharmacy history showing antibiotic prescriptions for September 4, 2012 and September 14, 2012, prescribed by doctors other than Dr. Lynett. Ultimately, it was her evidence that “it is pretty sad that a father would deliberately get his own child sick, just in order to make me look bad.”

[40] The mother acknowledged that they moved on a number of occasions, but stated emphatically that this was due to the fact that the father did not pay the court-ordered support and she was homeless for a few weeks until taken in by her brother, M.N..

[41] The mother testified that she would always cook healthy meals for S.R.C., and only as a special treat would they eat at McDonald’s and other fast food venues.

[42] The mother confirmed that since this proceeding began she had attended a parenting course (ABC Program – Beyond the Basics) attending six of eight sessions. She stated she was a very good parent and there was absolutely no reason that the child should not be in her care.

[43] Since the child has been with the father, she has been enrolled at Michael J. Brennan Catholic School. Carmela D’Andrea, the principal at S.R.C.’s school, testified that when S.R.C. first enrolled there, an academic assessment was done which confirmed that although the child was in senior kindergarten, she had low letter-sound recognition, was not able to read and her penmanship, colouring and cutting skills were very basic and not at a Senior Kindergarten level. As to the child’s current skill level, while she continues to be a bit behind academically, the gap is smaller than when she first arrived at the school. In her oral skills and math skills, she is on par with others students and is developing well. The delays appear to be in the reading and writing.

[44] Emotionally and socially, she confirmed that when S.R.C. arrived at the school in March 2013, she was a very quiet, timid girl who would not socialize with her peers. She now has a group of friends and is very social to the point that she often will not stop talking. She is a very happy, little girl.

[45] Ms. D’Andrea confirmed that S.R.C. is always neat and well-dressed. She is provided with appropriate food and there are no health concerns. The principal confirmed that she sees the father at school a minimum of two times per week. In addition, he keeps the school well-informed about S.R.C.’s health and reasons for any absences. As to the child’s attendance, she confirmed that between September 2013 and June 2014, there had been 11 absences, which would be on par with other kids as it was a “tough winter.”

[46] In comparison, Ms. D’Andrea noted that in the senior kindergarten year, (September 2012 to February 2013) when S.R.C. had been at her previous school, the OSR indicated there were 35 absences and 7 lates. In reviewing the February 2013 report card Ms. D’Andrea referred to the teacher’s comments that “S.R.C. was often absent from school which hinders her ability to follow along with what we are doing and to internalize the classroom routines. She is often not aware of what to do next and requires much re-direction in this area”. She confirmed that that is exactly what they found when the child began attending Michael J. Brennan School.

[47] When asked by the mother if S.R.C. was in fact a bright child, she indicated that she was an average child who was academically, more or less, the same as the other children. It was then suggested to Ms. D’Andrea that perhaps the father was forcing her to attend school in order to make the mother look bad. Ms. D’Andrea confirmed that in fact, S.R.C. was excited to be at school and clearly enjoyed being there, often coming in with a big smile.

[48] In cross-examination, the mother suggested that S.R.C.’s delays in school had to do with the father saying that he was going to take her away from her mommy. Ms. D’Andrea indicated that a child learns academics such as letter/sound association by reading and practicing both at home and at school.

[49] The father confirmed that the child is not currently enrolled in any activities. He thought it best to focus more on school and to get her into activities later. He noted that she does enjoy swimming at the Y in St. Catharines and also at Pearson Park. With regard to the mother’s complaint that the child should be prohibited from swimming, he confirmed that she does have eczema that is worse in winter. However, he makes sure that after swimming, the child takes a shower or bath and the necessary creams are applied where needed.

[50] He described S.R.C. as being a happy, silly, fun-loving kid. She loves the outdoors and is very active.

[51] As to the child’s weight, he confirmed that at five years of age, S.R.C. was 83 lbs. She was heavy and she knew it. Although he does not use the word diet, he confirms that he has encouraged her to eat healthy foods and to exercise and live a healthy life-style. He stated that when the child was with her mother and grandmother, she was taken to McDonald’s every day for lunch. He indicated that she is also learning good eating habits through school. She does get some treats but they are controlled.

[52] The father testified that it has not always been easy being a single parent as he has no family in the area to support him. Nevertheless, he testified that he is able to properly parent S.R.C., and that they have a close and loving bond. He denies that he uses corporal punishment with her, but he does set clear and consistent boundaries. He confirmed that S.R.C. has done very well and that she is very happy in his care.

[53] He also confirmed that they have established a good routine at home. When questioned by the mother, he confirmed that S.R.C. cleans her room and makes her bed. She helps to keep an organized house and work together doing dishes and taking the garbage out. He denied the suggestion that she is a “little Cinderella”, stating that she is learning responsibility and, as her father, he is teaching her to do this.

[54] As to his drug use, the father confirmed that he had used cocaine in the past, but he was never a regular user nor has he done so for more than six years. He acknowledged that he has smoked marijuana about four times since S.R.C. has been with him, but he has not done so in her presence nor while he was caring for her. He confirmed that he does smoke cigarettes daily, but he does not do it in the house or in the car, when S.R.C. is a passenger. He is aware that it is not healthy for the child to be around secondhand smoke. He also admitted to drinking alcohol on a monthly basis, but not to the point of intoxication.

[55] The father confirmed that he has a criminal record arising from incidents during the parties’ relationship. He testified that the mother was the violent one in the relationship and any physical contact between them came about from defending himself. Shortly after separation in 2008, he was charged with two counts of assault with a weapon and one charge of common assault. The first assault with a weapon charge related to an incident in 2006, when the mother had thrown a jar of hand cream at him, he threw it back at her, hitting her in the eye. The second incident occurred about six months prior to separation. The mother came at him with a knife and he defended himself with a broom, resulting in the mother having bruises on her wrists. The final incident occurred about a week prior to separation when the mother had punched him in the face causing a black eye, and he reacted by pushing her to the ground. Shortly after this incident, he left the family home and asked for a separation. It was only when he refused the mother’s request to reconcile, that he was arrested and charged.

[56] The father confirmed that he pled guilty to the common assault charge and the Crown withdrew the other two charges. He was given a conditional discharge and was placed on 18 months’ probation. There were no breaches of the conditions, which had expired about six months prior to the trial in 2012. The father confirmed that he has no other criminal convictions.

[57] The mother did not testify specifically about these incidents, but she did state repeatedly that the father had been both emotionally and physically abusive to her throughout their four year relationship. In her meetings with the OCL, she disclosed that the father had slapped her across the face and that she has sustained black eyes and other bruises. She stated that she had made complaints at the time to the police, but charges were only laid after they had separated.

[58] The mother repeatedly expressed her concern that the father is violent and has an explosive temper. She is concerned that the child will be subjected to this and raised concern about the number of bruises that have been observed by her on the child, since she has been in the father’s care.

Ability to Encourage Relationship with Other Parent

[59] Both parents expressed that they encourage S.R.C. to have a positive and loving relationship with the other parent.

[60] There are multiple examples in the Pathstone notes of the father doing that. For a visit near Halloween, the father had the child dress up in her costume so the mother and Hunter could see it. Following Halloween, the child brought candies for the mother, albeit they contained peanuts and were not allowed in the access facility. When a visit was going to conflict with a birthday party the child was invited to, the father was noted to state that it was important for the child to spend time with her mom and the child confirmed that she wanted to go to the visit and not the party. On many visits, the notes record the father telling the child “go have fun with your mom” or after a visit when S.R.C. shared that she had indeed had a fun visit, the response was “now that’s what I like to hear”.

[61] When asked about these entries, the mother suggested that the father was programming S.R.C. and that he was only making those comments to make sure they were in the Pathstone notes.

[62] The mother did confirm that the child would bring her pictures, cards and small gifts, but she seemed to suggest that this was not necessarily as a result of the father’s actions, but was coming more from S.R.C. because of their close bond to one another. Eventually, she did acknowledge that these actions would not happen if the father did not allow it.

[63] With regard to the mother being able to encourage S.R.C. to have a positive relationship with her father, the Pathstone notes are replete with the mother making many negative comments about the father or about how he does things (i.e. types of meals he prepares) or how he does not do things (i.e. not applying cream for the eczema). In fairness, the notes do focus on the mother as they capture a weekly three hour visit and in the words of the mother, she feels like they are under a microscope at the visits as “all eyes” are on them.

[64] However, in cross-examination by the father’s counsel when asked if the mother believes that S.R.C. loves her father, it was abundantly clear that the mother had considerable difficulty admitting to this. In answer to the suggestion that she had difficulty admitting the child loves her father, the mother’s response was:

“I would imagine she loves her dad but I don’t know because if, if something really did happen with that alleged assault, I mean I don’t know. Like, I mean, I don’t know, like I’ve never been sexually assaulted as a child, thank God, and if I had been would I love the perpetrator? No, I don’t know what happened there. I’m not pointing fingers. I know – I will say from my perspective if I was seven and my father took me away from my mother I would have a lot of hate and anger inside. Would I tell my father that if my father was strict and he was going to slap or beat me? Absolutely not. But I just feel that even children have the right to feel the way they feel. I’m not saying she doesn’t love her father, I would encourage that she does, but I think it’s the way a parent treats a child is how they love their parents. S.R.C. has expressed that she loves her dad but I know how much she really loves me and I don’t, I can’t really answer that for her. But I know she’s been through a lot and I would never try to tell her not to love her dad, and I don’t want to talk to her about adult issues. I’m – like I said, Mr. DeLisio, even if she was home I – S.R.C. has the right to love her father and her mother, I’ve encouraged that the whole time, but this is before this ever happened so I don’t know what my little girl is feeling underneath.”

Other Family Members

[65] The father has no family members who reside in the Niagara area. He is no longer in a relationship with T.T..

[66] He does maintain contact with his older children, A. and K. . He has made trips back to the East coast with S.R.C.. K. has also travelled to Ontario. Both children advised the OCL of a very positive relationship with their father.

[67] The father confirmed that he has no difficulty with S.R.C. having contact with certain members of the mother’s family including the mother’s brother, Scott, and his wife, Jody, as well as the mother’s sister, Christine, and her daughter, Amanda. He has arranged for S.R.C. to see these family members from time to time and he will continue to allow such contact as long as they support his relationship with S.R.C. in a positive way.

[68] The father is not opposed to Hunter being present for access visits. However, he does not like the child to be around the maternal grandmother, E.N., nor around the mother’s brother, M.N., and his wife, G.N.. He knows that S.R.C. loves her nanny, but he is concerned about the negative comments that the grandmother and uncle have made and will continue to make about him. He emphasized that S.R.C. needs to have positive relationships in her life and not be in the middle of the conflict.

[69] The mother lives with Hunter. Her mother, E.N. stays with them 3 or 4 days each week. She expressed that her mother misses S.R.C. terribly and there is no reason that she should not be allowed to be at the visits. She acknowledged that the relationship between S.R.C.’s father and her own mother was not very good and that her mother disliked him, but was justified in being angry with him as he had done such terrible things to her daughter (Ms. T.N.) and granddaughter. She explained that her mother cannot understand how the father can be so evil acting like Satan’s son.

[70] E.N. was not called as a witness by the mother. However, there were many negative comments attributed to her by others involved. A prior CAS worker (Ms. McGarr) noted that the maternal grandmother was not seen as a positive support after the worker had attended at an access exchange that went perfectly fine, but the grandmother insisted on describing the child as being in distress and how hard it was to send S.R.C. with such a “bad man”. Similarly in the Pathstone notes, it is recorded that the grandmother called in June 2014 advising that the mother is ill over not having the child. She requested that the staff tell the father to be nice and not to get angry with the child when she cries for her mother and stating that what the father does to the child is not right. The Pathstone notes also record that during a visit on July 26, 2014, the grandmother tells S.R.C. that “it won’t be like this forever” and later explains that “she is talking about her coming home for good”. The mother was upset when the staff intervened to tell the grandmother not to make such comments.

[71] At trial, the mother agreed that it was appropriate for the worker to intervene, but she explained that the grandmother did not know the rules. The mother confirmed that she has told the grandmother that they are not to speak about adult issues around S.R.C., but she is 72 years of age, she loves her granddaughter and sometimes she speaks before she thinks.

[72] The mother’s brother (M.N.) testified that his sister is a good loving mother and that S.R.C. should be returned to her care as a little girl needs her mother. He expressed that the number one concern should be for S.R.C.. Although he has not seen the child for more than a year-and-a-half, he had previously been present for access times, and S.R.C. appeared to be afraid of her father. Nevertheless, Mr. T.N. stated that he has always encouraged the child to go on the visits and to have a positive relationship with her father.

[73] As to his view of the father, he noted that in 2007 he had seen the father take Percocet with alcohol and in 2008 he had observed him to use cocaine at a family function. He also recalled a situation in 2008 where he had overheard the father being aggressive with his sister and he was so concerned that he went to their home.

[74] He indicated that his sister was distraught over the sexual abuse allegations and that he encouraged his sister to have these investigated. He stated that he could not understand how a parent could prevent a child from having a relationship with her whole family.

[75] In cross-examination, he agreed that he had not seen the father since the parties separated in 2008 except for testifying at the previous trial in 2012. He also agreed that he had not seen S.R.C. interact with her father in almost two-and-a-half years. But he stated that this was due to the father’s own actions and the only reason he has kept them from seeing S.R.C. is out of hatred and payback and he is not considering the child’s wellbeing.

Evidence of Lori Cunningham

[76] Ms. Cunningham has been doing clinical assessments for the Office of the Children’s Lawyer for 14 years. She estimated that she had done approximately 200 written assessments in that time. She confirmed that she authored two reports in this file – the report of February 6, 2013 and an addendum dated February 26, 2013. The reason for the addendum was that at the conclusion of her investigation, she learned that Niagara Family and Children’s Services (FACS) was commencing a child protection investigation. Given the serious concerns for the wellbeing of the child articulated in the OCL report, it was decided to release the report immediately. At the time that the OCL report was released information from the Niagara Regional Police had not been received. In the addendum, a summary of that information is included in the report.

[77] Ms. Cunningham confirmed that following her investigation into these matters, she made the following recommendations:

i) Sole custody to the father, B.R.A.C..

ii) Supervised access to the mother, T.N., for one year at Pathstone. The Office of the Children’s Lawyer to complete a review prior to changing to unsupervised access.

iii) Ms. T.N. to attend for a psychiatric assessment and to follow treatment as recommended.

iv) Ms. T.N. to attend counselling and parenting programs which will support her in understanding S.R.C.’s needs.

v) S.R.C. to attend counselling, preferably with an art therapist or play therapist, the therapist to receive a copy of the report.

vi) S.R.C. to be supported in attending school on a regular basis and pursuing a healthy lifestyle.

vii) Niagara Family and Children’s Services to receive a copy of this report. At the conclusion of the addendum, Ms. Cunningham confirmed that the information subsequently provided by the Niagara Regional Police Services supports the recommendations made in the report dated February 6, 2013.

Cross-Examination by Father’s Counsel

[78] After reviewing her recommendations, Ms. Cunningham was asked why she recommended that FACS should be provided with a copy of her report. She explained that as she did the investigation, she had some concerns for S.R.C. and felt that they should have a copy of the conclusions. Further, she confirmed that she became aware that as of February 5, 2013, a child protection investigation was going to ensue and she felt her report would be helpful to their investigation of allegations made by the mother against the father.

[79] Ms. Cunningham confirmed that there were some immediate concerns, namely, ongoing allegations against the father by the mother in the face of investigations which determined the allegations to be unfounded. There was also evidence of the child being coached to say negative things about the father. However, the child did not understand what she was saying. She would state “my daddy is a bad man” but then exhibited happiness when in the care of her father. The child did not hesitate to cuddle with her father. She was easily engaged in activities with him.

[80] Ms. Cunningham then explained the emotional impact that this situation has on a child. The child was under duress at the access exchanges because she had two parents whom she adored. If she did not protest about going with the father, the mother would become angry. If she did protest about going with the father, the father would be disappointed. The child was caught in an impossible situation in which she would always disappoint one parent.

[81] There was also a concern that between September and November 2012, less than half of the school year, the child had missed 25 days of school. The explanation given by the mother was that the child had been involved in addressing the sexual abuse allegations. The other explanation was that the father had not purchased snow pants so that the child could go to school. In speaking with the teacher, Ms. Cunningham confirmed that as a result of the absences, S.R.C. did not understand school routines and was not making progress in her academic studies.

[82] Another concern was that in following up with the family doctor, Dr. Lynett, she was advised that the child’s last checkup had been in 2011. This did not appear to be consistent with the fact that if the mother was so concerned about the father’s behaviour toward S.R.C. in 2012 and 2013, one would have expected better attendance at the family doctor. Further, the mother did not follow up with the recommendation from the family doctor for the mother to obtain a psychologist for S.R.C. after the first allegation of sexual abuse had been made.

[83] There was also a concern related to S.R.C.’s diet. The child was very fond of McDonald’s food and the mother indulged her frequently. At six years of age, the child was more than 80 lbs. In addition to the physical impact that such obesity could have on a child’s health, there was also the potential for bullying and socially difficult situations in the future.

[84] Ms. Cunningham confirmed that she considered all of the collateral sources including mental health reports and CAS records and discussions with the workers. Based on all of this information, she seriously questioned the mother’s ability to support a relationship between the child and her father. She was also concerned regarding the mother’s psychological wellbeing based on the police reports and non-compliance such as avoiding answering the door when the police arrived.

[85] She noted that in interviewing Ms. T.N., while she was very engaging and fully participated in the interviews, her stories tended to be repetitive and to remain the same. She would allege physical abuse, but this was unsubstantiated. She would then allege sexual abuse and this would be investigated by the CAS and would also not be verified. The mother held fast to her view that the child had been sexually abused and could not take a different view. As a result, Ms. Cunningham had a concern that despite no abuse being substantiated, the mother could and would not stop telling S.R.C. that these things had happened.

[86] Ms. Cunningham confirmed the observation visit between the mother and S.R.C. and that there was a kind, warm and gentle interaction between the mother and child. However, in the middle of the visit, S.R.C. looked at the worker and stated “my daddy is a bad man”. The OCL advised S.R.C. that they would have a chance to talk about that at another time.

[87] With regard to observation visits at the father’s home, Ms. Cunningham confirmed that there were two of these. At the first visit, when the OCL walked in S.R.C.’s face registered shock. Ms. Cunningham reassured her not to worry, that she wouldn’t say anything. She explained that the concern of S.R.C.’s was that the OCL would tell her father what S.R.C. had said about him while the OCL had been at the mother’s home. While S.R.C. was quiet at the beginning, spontaneously, she went and sat on her father’s knee and hugged him.

[88] Ms. Cunningham confirmed there was a second observation visit at the request of the mother. The child appeared to be happy and comfortable in the father’s care. At one point, the child came and sat on her father’s lap, snuggling close with him. When asked, the child confirmed that she was having a great time.

[89] Ms. Cunningham confirmed that based on her observation visits and the information obtained from the collaterals, she had no concerns about the father having the child in his care and being granted sole custody.

[90] Ms. Cunningham was asked about the 2011 police report which referenced the father being hospitalized. She confirmed that this information had been received after the first report was released and so she had contacted the father, who confirmed that he had been on medication for depression and shortly after that began having some thoughts of harming himself for which he was hospitalized briefly. He was taken off of that medication and has not required any further treatment. She was satisfied with the explanation and did not feel S.R.C. was in danger and had no concerns regarding the father’s mental health.

[91] When asked to explain why the mother should have supervised access, she expressed a concern about the mother’s psychological wellbeing. The main concern was about S.R.C. receiving ongoing information about her father that portrayed him in a negative way.

[92] She confirmed that the terms set out in her report were a pre-condition to the mother exercising unsupervised access which included a review after one year by the OCL as well as the mother obtaining a psychiatric assessment.

[93] Ms. Cunningham also confirmed that the police reports received subsequent to the first report did support the recommendations made in that report.

Cross-Examination by Ms. T.N.

[94] Ms. T.N. cross-examined Ms. Cunningham extensively over a period of two days.

[95] Ms. Cunningham confirmed that she did take into consideration the mother’s allegation there had been a history of abuse by the father against the mother. She noted that both parents had alleged the other to be violent and aggressive and so she could not verify which version was correct. She did take this into consideration in recommending that the child should not be a witness to violence between the parents and that any access exchange should be through a third party.

[96] When it was suggested that Ms. Cunningham was biased against women, she confirmed that she has recommended custody for both sexes. She also confirmed that both men and women can alienate children and that it is not limited to one gender or the other.

[97] When asked about the drug use by the father, Ms. Cunningham confirmed that the mother had raised this and that the father had admitted to using cocaine in the past. However, Ms. Cunningham confirmed that there was no evidence that this was a current problem. She confirmed that she has experience in dealing with people who use drugs and so she relied on her own observations from meeting and speaking with the father. She also relied on the CAS workers’ reports as well as the police reports. She confirmed that there was no basis to recommend the father do drug testing as there were no symptoms about current use.

[98] When asked about the basis for the OCL requesting mother to have a psychiatric assessment, Ms. Cunningham confirmed that this was based on her observation of the mother’s behavior, discussions with the mother, as well as information received from the collaterals. The most important indicator was that the mother was unable to integrate information and in particular, that no sexual abuse had happened to S.R.C. and yet continued to program S.R.C. that it had. Ms. Cunningham expressed that her concern came from the fact that sexual abuse allegations were investigated; S.R.C. was taken to the hospital for a full medical review; the doctor told the mother that the cause of the redness in the genital area was due to poor hygiene and a topical cream was prescribed. Once the CAS and police investigation had concluded that nothing had happened, that should have been the end of it. In fact, the mother lost the prescription for the topical cream prescribed and could not follow through with that. The mother was avoidant for the months following the investigation, refusing to meet with the CAS worker and failing to follow through with the recommendations of CAS and Dr. Lynett for the child to obtain counselling and see a psychologist.

[99] Ms. Cunningham confirmed that she was aware of a second allegation of sexual abuse being made in early February 2013 at or about the time that she was completing her report. Ms. Cunningham confirmed that when a child makes allegations, as a parent there is an obligation to report these concerns. However, once the concerns have been investigated and a parent is advised that there is no foundation to those concerns, to persist in raising these issues becomes harmful to the child.

[100] When the mother raised the possibility that it was the father alienating S.R.C., Ms. Cunningham explained that there would be no benefit to the father to coach the child to say he was a bad man. She then referenced the Pathstone notes where S.R.C. reported “I told them I want mommy, no daddy.”

[101] When asked about concerns for the child’s safety and the father’s suicide attempt, Ms. Cunningham confirmed that it was not a suicide attempt but in fact that the father had suicidal ideation. The OCL confirmed that she had not been aware of the police report and after reading this in the report, it was important for her to follow up with the father. He explained that it was an upsetting time for him and that he had seen a doctor for depression. He was admitted to hospital and after reviewing the drug he had been prescribed, he was taken off of his medication. She noted that she is aware that some medications can cause suicidal ideation. She was satisfied that the father was not suicidal and that he was mentally stable.

[102] At different points in the cross-examination the mother raised the issue of the father not paying child support. Ms. Cunningham confirmed that all parents have an obligation to support their children. But as she had previously explained to the mother, financial issues were not part of the OCL’s report.

[103] With regard to her recommendation that S.R.C. should participate in play therapy, Ms. Cunningham confirmed that she suggested this to assist S.R.C. with adjusting to the move from the mother’s home to the father’s home. While it was an important part of the adjustment process, she confirmed that it was not to investigate allegations of sexual abuse as these had been investigated and were unfounded. She emphasized that to continually investigate these allegations would be harmful to the child.

[104] Ms. Cunningham confirmed that play therapy can be difficult to obtain and failing to do so is not necessarily an indication of bad parenting as it would depend on how easily S.R.C. adjusted to the move to father’s home. With regard to counseling for S.R.C., Ms. Cunningham reiterated that it was to assist with the transition from one house to another and was not to be done, as suggested by the mother, to be “on the safe side” about the allegations of abuse as to continue to question a child about this can be harmful.

[105] Ms. Cunningham confirmed that she had considered the mother’s concern that the father had used corporal punishment and was strict with S.R.C.. She confirmed that the CAS had investigated this and were satisfied that this form of punishment was not used by the father. The OCL had also discussed the allegations with the father’s older children (A. and K.) and were satisfied that this had not been the father’s practice with them.

[106] While the OCL was aware that the father had been absent for the child’s first three years, two different reasons for the absence were provided by each parent and both were put in her report. It was not that she believed the father over the mother, she simply could not verify whose version was correct. Even with such a lengthy absence, she did still recommend custody to the father. Even though the mother had been the primary caregiver for the first six years of the child’s life, the OCL also had to weigh that against the emotional distress that S.R.C. was in while in the mother’s care. She believed that the mother’s behaviour of making persistent unfounded allegations would continue to escalate to the detriment of S.R.C.. Each allegation would cause more damage to the child. Ms. Cunningham stated made this recommendation of custody to the father, not to persecute the mother, but to help S.R.C..

[107] Ms. Cunningham confirmed that she did consider the comments and concerns of the maternal grandmother (E.N.) and the brother and sister-in-law (M.N. and G.N.). She confirmed that S.R.C.’s statements replicated verbatim what the grandmother had stated “my mother gives me love; my father shows me fear.” The concerns expressed did not match up with her observations of S.R.C. with her father, nor did they match with the Pathstone observations. What this did was to put S.R.C. in a really difficult position as she was not able to tell the people that she loved that she had a good time with her father. Ms. Cunningham detailed the negative coping strategies that were exhibited by S.R.C. and the particular difficulties faced by the child at access transitions. This was a time of extreme emotional distress because the child was under the microscope of both parents. Ms. Cunningham confirmed discussions with both parents about finding a way that S.R.C. could enjoy a relationship with her father but also so that she could more easily separate from her mother. Ms. Cunningham confirmed that the child was caught in the middle. To understand the child’s behaviour, she indicated that when the child was with her mother, she had to say she was not happy with the father. She had to look upset when leaving the mother so that the mother would be okay with her leaving. If she looked upset, she knew her father would be upset but then once they were down the road, she would settle in and enjoy the visit. When she returned from the visit, she had to tell the mother that she did not have a good time with her father. In response to the mother’s suggestion the OCL could not know this unless she was clairvoyant Ms. Cunningham confirmed that this is common maladaptive behaviour observed in children caught in high conflict situations.

[108] The mother suggested that the OCL had shown a bias in favour of the father in not recommending a psychiatric assessment be done by the father. Ms. Cunningham confirmed that there was no evidence to support such a recommendation. However, there was evidence in the police reports, from the CAS worker and records, from the Pathstone observation notes as well as the OCL’s own discussions with the mother to support a psychiatric assessment being required. One example of the mother’s concerning behaviour was her failure to produce S.R.C. for an access visit. The police attended at her home and she did not answer the door. When the OCL asked the mother about this, she confirmed that if she did she would have, she would have had to produce S.R.C. for access. The concern was the impact this behaviour would have on S.R.C. to be inside the house hiding there while the police knocked on the door and the mother refusing to answer. This was not the first instance where the mother had done this. When such behaviour takes place, as part of her investigation, the OCL looks for a possible explanation for this behaviour. One possibility is that the mother is an anti-social person. Another possibility is that she is suffering from an illness. That was the reason for recommending further investigation being done by a psychiatrist. The OCL confirmed that she is not qualified to do such an assessment nor is she able to order that this be done but she can make a recommendation that such an evaluation be conducted.

[109] With regard to this same incident, the OCL confirmed that on that particular day, the basis for the mother not allowing the father to have access was a concern that the father was using drugs because his spelling was “off” in texts that he had sent to the mother. The OCL spoke with the father and was satisfied that he was not under the influence of any drugs. The OCL told the mother this, but she still refused to produce the child. This was an example of even when an explanation was provided to the mother, she was not able to hear the message, assimilate that information and change her behaviour.

[110] When the mother denied the suggestion that she could be anti-social given that she was friendly with the worker and with the police and was in attendance at court as required for the trial, the OCL noted some examples of her conduct that were concerning: to program a child to believe there had been a sexual assault by the father or had been made to lie in bed in her own pee and to continue to do so after medical, CAS and police confirmed that it had not happened; for not taking the child to school because she did not have snow pants; hiding in the house when police attended; not cooperating or responding to the CAS; not being able to support a relationship between S.R.C. and her father. The OCL stressed that she was not saying these things to suggest that the mother was a bad person but to show examples of the mother having difficulty in integrating new information and then making different kinds of decisions for the benefit of her child.

[111] When asked by the mother about her recommendations in the face of S.R.C. having said she would die if she had to go and live with her father, the OCL confirmed that the mother had said S.R.C. had said this and it was in her report. However, S.R.C. also said her father is a bad man but when the OCL went to the father’s house, S.R.C. was concerned that she had said that because S.R.C. was having a wonderful time with her father. In order to cope with the stress of moving back and forth between her parents, S.R.C. needed to tell her mother negative things about her father. There were references in the Pathstone notes where the child would be skipping and laughing and then say “daddy is a bad man” and on another day when she referred to her father as a “scum bag” but did not know what that meant. She would often use words in reference to her father or phrases that she did not understand. At another time, where S.R.C. repeated “my mother shows me love; my father shows me fear”, when the OCL asked her what is fear, S.R.C. said “I don’t know.” At that age, you would expect a child to say “scary” but it was a very specific phrase and not a phrase that would come out of a child’s mouth. It appeared to the OCL that the phrase and other negative comments about the father had been programmed into the child.

[112] From Ms. Cunningham’s perspective, it appeared to her that the mother and maternal grandmother believed that the father was a bad man because they believed he had sexually abused S.R.C.. They told S.R.C. that her father was a bad man. S.R.C. would simply repeat these words but did so out of context and without understanding what she was saying.

[113] The mother repeatedly asked the OCL about comments attributed to S.R.C. that her father puts her in a timeout because she cried about missing her mom or putting her to sleep in her wet bed that she had peed in. The OCL indicated that she did not believe those things were happening in the father’s home, but that S.R.C. felt she needed to say negative things to the mother even when she had enjoyed her visit at her father’s. Making such comments were indicative of the child not coping well and contributed to emotional instability for the child.

[114] The OCL was asked about her observation visit with both parents. She confirmed there are three factors she looks for at the observation visit, an opportunity to meet with the child; to observe relationships between all the parties living in the house and to observe how each of the mother and father parents the child. The mother suggested that there were numerous examples of how the OCL was more favourable toward the father in her report.

1. The mother noted there was no description of S.R.C.’s bedroom in her home even though it had just been freshly decorated and the OCL had commented to the mother that it was very nice. The OCL confirmed that she may have made that comment in an effort to engage the parent in the process, but it was not favouring the father over the mother. The father had made an allegation about the mother’s house being full of garbage so she did make a point to comment that her house was clean and tidy. In her report she does look for evidence to either support or deny an allegation made. In the case of the father, she did comment on the child’s bedroom in his home being very nice because there was a concern about whether there were appropriate sleeping arrangements for the child.

2. The mother commented as to the length of the report being much longer for the father’s observation visit and painting him in a more positive light. The OCL confirmed that it was probably twice as long because there had to be two visits. She also confirmed that there were more people to observe. She confirmed that the request for a second visit came about after the OCL had offered feedback to the mother and she did not believe that it was accurate that the child was comfortable and happy in her father’s care. That was the reason the OCL did a second visit.

3. The mother suggested that the observation visit of the father’s home was praising him and more positive in his favour. The OCL confirmed that she simply recorded the observation of what she saw. S.R.C. sat on her father’s lap, did cuddle with him and felt that it was important to put this in the report because of the mother’s allegation that S.R.C. was afraid of her father. Her observations were that the child was very comfortable with the father.

[115] When it was suggested by the mother that the father was just putting on a show for the OCL, Ms. Cunningham indicated that she is not easily manipulated and she did not believe it would be possible for the father to stage the visits and sustain behaviour for the period of time that the OCL was there. The OCL was satisfied that what she had observed in the father’s home was not a “one off” but was an accurate reflection of the relationship between him and S.R.C., which was also confirmed by the Pathstones observation notes of their supervised visits.

[116] With regard to her process for making recommendations, and the suggestion that the OCL had made up her mind at the beginning and that the mother was not treated fairly, the OCL confirmed that she does not form an opinion at the beginning but in fact observes, reads everything, talks to the child, talks to the parents and takes in information. She takes a few months to reflect about the case and to also give feedback to the parents to see how each of them responds. The process is not about liking one parent over the other. She stated that only after doing all of that, she follows the evidence to come to a conclusion and to develop a set of recommendations to assist the child. After going through that process, she concluded that there was no reason for S.R.C. not to have a relationship with her father.

[117] As to the reason for the mother’s access to be supervised, the OCL noted that there was concern about the mother’s ongoing negativity about the father, including discussions about the mother’s belief that the father had sexually abused S.R.C. and programming the child to believe this. If that did not stop, S.R.C. was at risk emotionally from these ongoing allegations. While she remained in her mother’s care, S.R.C. would not have an opportunity for a relationship with both parents and every child has the right to have such a relationship.

Evidence of Ketrina Bell

[118] Ketrina Bell was a family support worker for Children’s Aid Society of Niagara (CAS) and was the worker for the N./C. family commencing March 18, 2013. She confirmed that the previous worker had been an intake worker, Sara McGarr, and that the file was initially opened on February 4, 2013 based on allegations made by mother that the child had been sexually abused by the father and his partner, T.T..

[119] Prior to this involvement, she confirmed that there had been an extensive history with the family with multiple contacts relating to allegations by the mother against the father; relating to custody and access and also regarding difficulties with pick-up and drop-off of the child. She confirmed that all allegations were investigated and were not verified. With each of these previous contacts, the mother declined ongoing involvement by the CAS indicating that she had sufficient support and ongoing services were not required.

[120] With regard to the allegations of sexual assault, she confirmed that the allegation was made by the mother. After reviewing the Niagara Health System report dated February 22, 2013, she confirmed that this was consistent with what she had been told about the allegations of sexual assault. In summary, S.R.C. had returned from a visit at her father’s home and described her “pee pee” as being sore. Her vaginal area was red and the mother had taken the child to the hospital. Ms. McGarr had attended with the child at the Child Advocacy Center where an extensive investigation was conducted, with the result that the allegation was unfounded and not verified. Ms. Bell confirmed that in many cases, the file would then have been closed but given the way in which S.R.C. presented during the interviews, mainly speaking as an adult; appearing to be repeating what she had been told; not being able to provide any context or details; there was a concern that the mother was involving S.R.C. in the custody and access issues.

[121] She confirmed that the CAS had been provided with a copy of the OCL report and as it had been suggested by the OCL that the mother complete a psychiatric assessment, the CAS could assist the mother in obtaining the necessary services required.

[122] Ms. Bell confirmed that the Society was concerned about the child remaining in the mother’s care and they had applied for a warrant to apprehend the child, but this had been denied by the Justice of the Peace as there was an ongoing custody proceeding. Subsequently, the parties agreed that S.R.C. would remain in her father’s care and the CAS agreed to arrange for access at the CAS office until supervised access could be arranged through Pathstone Mental Health.

[123] Ms. Bell confirmed that there has been an open file ongoing until such time as the custody and access issues have been dealt with. Since that time, Ms. Bell indicated that her involvement with the parents has been as follows:

Contact with Father:

[124] She has met a minimum once per month at the father’s home. In addition and as a result of concerns raised by the mother, there have been numerous additional unannounced visits at the father’s home.

[125] Ms. Bell confirmed that in addition to meetings at his home, she has also maintained contact by telephone with the father. Ms. Bell indicated she has a good relationship with him as he appears to be honest and up-front with her and he openly shares concerns with her regarding S.R.C.. She also confirmed that the father had been compliant with all requests of the CAS.

[126] Ms. Bell confirmed that at first S.R.C. was very shy and seemed hesitant to speak with her. But over time, S.R.C. has become more comfortable with the worker. She confirmed that she has met alone with the child, as well as in the presence of her father. In cross-examination, when asked if perhaps S.R.C. was afraid to tell the worker about physical abuse by the father, the worker stated that given the level of comfort between her and the child, she is confident that S.R.C. would tell her if that was going on.

[127] As to the relationship between S.R.C. and her father, Ms. Bell has observed them on many occasions laughing and joking around with one another. She described their relationship as very playful and very comfortable. S.R.C. often would hug and kiss her father. With regard to discipline, she confirmed that the father would tell S.R.C. to behave and to listen when the worker was asking questions, however, there was no indication that corporal punishment was being used, nor had S.R.C. ever expressed fear her father.

[128] Ms. Bell confirmed that she had not observed any violence nor did she have any concerns about Mr. B.R.A.C. having a temper. In cross-examination, when asked if perhaps the father was just not allowing that side to be shown, Ms. Bell responded that if there were anger issues, it would not matter who was around and that it would be obvious.

Contact with Mother:

[129] Ms. Bell confirmed that since her involvement in the file (March 18, 2013) until her testimony on June 10, 2014, there have been 31 complaints about the father made by the mother to CAS. This number would have included both voicemail messages left by the mother as well as direct conversations.

[130] The concerns can be summarized as follows: the father’s drug use; the father smoking in the home; child being taken swimming and concerns about the child’s skin condition not being treated; father not feeding the child properly and child losing weight; child not being properly dressed and having long, dirty finger nails; multiple safety concerns – child taken on adult roller coaster at Marineland and allowed to go on monkey bars; multiple reports about bruising on the child and insisting that she be examined by a doctor; child is unhappy and depressed, she misses her mother and grandmother; and generally that the father is unfit and the child is regressing in his care.

[131] Although I have not itemized each complaint, I have attached as Schedule “A” to this judgment, the chronology and summary of the complaints, as it is illustrative of the repetitiveness of the complaints and the frequency of same.

[132] Ms. Bell confirmed that as each concern was received, she would assess it to determine if further action was needed. With regard to the father’s drug use and specifically cocaine, this was seen as historical and there was no evidence to the worker from her regular contact with the father that drug use was an issue.

[133] With regard to smoking in the house, she had met with the father and his then partner, T.T., and confirmed that they do not smoke in the house and only do so outside. They also do not smoke in the car when the child is there. She confirmed that whenever she was in attendance at the home, there was no apparent smell of smoke.

[134] With regard to bruising on S.R.C., Ms. Bell met at the father’s home and did observe a bruise on the child’s left forearm and a bruise on her right knee. She was given an opportunity to talk in private and the child explained the bruise on her left cheek came from a friend doing a cartwheel. The bruise on her right knee was from tripping up the stairs but she could not say where the bruise on her arm came from. Ms. Bell was satisfied with the answers and she was satisfied with the manner in which the child and father presented themselves with regard to these allegations.

[135] When asked about other bruises observed on S.R.C., and her response being “I don’t know” or “I don’t want to talk about the bruises.” Ms. Bell confirmed that kids often don’t know how they get bruises and their answers are often “I don’t know where it happened.” When asked by the court, Ms. Bell confirmed that none of the bruises she had observed caused her to have any concern.

[136] With regard to the meal issue, she was satisfied that the child was being properly fed as she would often attend the home after school and would observe the child having a snack or if it was later, would observe what the family was eating for dinner. In cross-examination, when asked if she was on a diet by the father, she indicated it did not appear that it was restricted but that it was healthy food that was given.

[137] With regard to the eczema, this was an ongoing and repeated concern and the worker indicated that she was satisfied both from talking to the father and talking to S.R.C. that this condition was worse in the winter but that cream was applied and the condition was being treated. S.R.C. often spoke to the worker about how much she enjoyed swimming.

[138] Similarly and with regard to complaints by the mother about taking the child to Marineland and on an adult roller coaster, it was confirmed that the mother had called the police as this had, in her view, been an unsafe activity. Ms. Bell followed up with the child and confirmed that she seemed to have enjoyed her time at Marineland and was not, as suggested by the mother, made to go on the roller coaster against her will.

[139] Ms. Bell confirmed that she had no concerns regarding S.R.C.’s safety and well-being in the care of her father.

[140] Ms. Bell was asked whether there would be concerns if the mother was granted custody of S.R.C. and she confirmed that there were, as the mother’s seemed unable to separate her issues and feelings about the father and be able to focus on S.R.C.’s needs and a positive relationship with her father. The worker confirmed that although the mother had stated that she has encouraged the father/daughter relationship, the mother has also continued to express fear about the relationship and fear that the father would be physically abusive toward S.R.C.. Ms. Bell confirmed there was nothing in her observations and contact with the father that would give credence to the mother’s anxiety.

Evidence of Christine Stark

[141] Christine Stark is the program manager for Pathstone Mental Health the agency that oversees the Supervised Visitation and Exchange Niagara (SVEN) program. She confirmed that when a court order is made for supervised access, an intake interview takes place with each parent at which time they are advised about the policies and procedures that would apply for the visits. She confirmed that she was familiar with both of the parents in this case.

[142] Ms. Stark confirmed that the supervised access visits are supervised by staff and/or trained volunteers. The ratio of observers to families is one observer to two families, with a maximum of three families in the room in St. Catharines.

[143] The observer’s notes from Pathstone Supervised Access Visits from March 18, 2013 to April 3, 2014 were filed as Exhibit 4. The observer’s notes from April 5, 2014 to and including June 10, 2014 were filed as Exhibit 5. Finally the observer’s notes from June 14, 2014 to November 13, 2014 were filed as Exhibit 14.

[144] It is evident from the Pathstone Notes, which I have reviewed, and which were subject to exhaustive review by Mr. De Lisio and extensive cross-examination by the mother, that:

1. S.R.C. is always happy to see her mother; she exhibits happiness upon arriving at the visits and there is much love and affection shown between the mother and child.

2. The mother engages the child in numerous age appropriate activities including multiple games, colouring, play dough, bubbles; they enjoy playing together both inside and outside the center.

3. There are multiple references in the notes to the multitude of food that is brought by the mother for the three hour visits. This has included pizza, subs, Tim Horton’s wraps, as well as puddings, cupcakes, cakes, fruit cups, fruit and yogurt. (On April 17, 2014 on a Motion before me, it was necessary to specify the need for the food to be brought to the visits to be “healthy” and “in reasonable quantities” from an approved list of food/drinks)

4. The mother and the maternal grandmother (when she was there) would become very emotional during the visits. This would include becoming teary, excessive hugging and kissing, especially at the conclusion of the visits which in turn caused the child to become very emotional and tearful. The notes reflect that the staff have on multiple occasions had to become involved to speak to the mother about trying to reduce the amount of emotion that she shows during the visits, to stop speaking to the child about how sad she is about not being able to be with her and to focus on the needs of the child and make an effort to make the transition as easy as possible for the child.

5. The mother was routinely late in arriving at the visits, sometimes by only a few minutes, but sometimes by closer to half an hour. The procedure is in place for the visiting parenting to arrive 15 minutes before the visit begins and this needed to be addressed multiple times with the mother until there was some improvement.

6. The staff was required to intervene on a few occasions, when the mother would make inappropriate comments to the child, such as “I won’t be happy until you come back home” or when the maternal grandmother was at a visit and expressed, “it won’t be like this forever” “you will be coming home for good.”

7. The mother also had to be reminded on many occasions to not discuss what takes place at the father’s home (i.e. what meals he provided; to ask that he give her chocolate milk like mom does) and to focus on the visit with the child. There were multiple references to the child making comments where she is clearly aware of weight and calories and eating a healthy diet and also an understanding that dad favours one type of meal plan that mom does not approve of. Some examples of these were: “dad doesn’t allow chocolate milk because it gives me a fat tummy”; when given pizza or other food at the visit, “I don’t want to be fat.” Or “Why, don’t you want me to be skinny?” In response to the mother’s comments, “You need to eat more. Your pants fell off the last visit.” S.R.C.’s response was, “Because I’m skinny now.” And “I want to be skinny.”

8. There were also multiple entries with regard to the mother observing bruises on the child and asking the child about them. The mother had to be told on multiple occasions not to discuss the bruises with the child, but she continued to do so. Ms. Stark confirmed that if the staff noted bruises on the child, a critical incident report was required and they were obligated to report this to the CAS. This is what happened on September 28, 2013 in relation to two small bruises on the child’s arm. However, there were many times when the mother questioned the child about bruises, which were not observed by the staff. At some visits, even the child told her mother, “you are not supposed to talk to me about my bruises”.

9. Another issue that arose was the mother wanting to cut the child’s “long and filthy” nails. When the child loudly objected to the mother cutting her nails and said that she wanted to keep them long to scratch daddy’s back, the staff intervened and told the mother to stop cutting her nails. The mother was very upset with the staff having interfered, commenting that as a mother for 18 years she knew best and she should not even be in the supervised access program. Ms. Stark commented that if the staff had observed that the child had long dirty nails, they would have reported that in the notes also. In fact, from the notes, what made the child cry was the mother’s insistence on cutting her nails and the mother placing a negative connotation on the child scratching the father’s back. As is also clear from the notes, ultimately, when asked, the father had no difficulty with the mother cutting the child’s nails and even putting nail polish on them.

10. There are many occasions in the notes when the mother expresses her fear and concern for the child being allowed to do certain activities with her father such as: going on monkey bars; going on the roller coaster at Marineland. The mother’s response to the child’s story would be to point out: “That is dangerous. You should only be on the kiddy rides. Don’t worry me. Tell your father not to take you on those rides.” The mother would (in front of the child) insist that the staff speak to the father about this.

11. The mother also raised concerns with regard to the child’s medical health and the father’s failure to address these issues. There was reference to the mother emphasizing that the child had complained of a sore bum, but the notes confirm that the father was aware and was taking the child to the doctor that day. There were many references to the mother’s displeasure at the child being taken swimming and stating that this is not right, and that she will be speaking to the child’s doctor. On one visit, the mother commented that the child’s hands were noticeably red and the child confirmed that they were burning. When the mother told S.R.C. to remind her father to use the cream, the child confirmed “He does put the cream on me.”

12. There were also many references in the notes to the child screaming while inside the washroom. The mother seemed to suggest that this was an indication of the child’s unhappiness while in her father’s care and wanting to be back with her. In reality it is clear that S.R.C. did this to let the staff know that she was finished in the washroom, and they explained other methods that would be more suitable.

13. The father and child were observed to be very affectionate with each other (with hugs and “I love you’s”) at the beginning and end of the visits. On one occasion, S.R.C. came out from a visit and expressed that she had forgotten to hug him on the way in and so gave him two hugs, to make up for that. The father was noted to be very encouraging as the visits began, telling the child to have fun with her mom and it was noted that he was very positive when S.R.C. would report that she had had a good visit.

[145] The mother testified that there was a lot missing in the Pathstone notes. She attributed comments to S.R.C. such as: she is missing home; she wishes that the Pathstone girls would disappear; and she said prayers to Jesus that her father would disappear – but none of those comments appear in the notes. The mother believed very strongly that some of the observers were biased against her and disagreed with many of the interventions they made during the visits.

[146] When asked, the mother was not immediately able to agree that S.R.C. was happy to see her father at the end of the visits. When she was referred to the Pathstone notes that referenced that happening, she commented that she had not observed that for herself and so could not say for sure.

[147] The mother confirmed that the father had given permission for Hunter to be at the access visits, but she indicated that Hunter finds it overwhelming to be at the visits with so many people and having the girls observing them and he also has a hard time emotionally saying good-bye to S.R.C..

[148] The mother confirmed that the visits are extremely difficult for her as well, but she still goes to them. She agreed that she has missed a number of the access visits and that it would be her mother who called to cancel the visit. As she explained “when you don’t have your child living with you 24/7 and that is what you are used to, it tends to make you sick…as I have a strong emotional bond with my child”. She confirmed that her family doctor had not diagnosed her as being sick due to separation from her daughter, but he is aware of how she feels.

Mother’s Follow Through on OCL Recommendations

[149] Dr. Christopher Lynett has been the mother’s family physician since January 2001. From his records, he confirmed that the mother had complained to him about a deteriorating relationship with her spouse due to heavy drinking and drug use and that she complained that her spouse was being emotionally and physically abusive. Other than that, the mother did not seek any treatment from him for that, nor did he recall seeing any photos of any bruises.

[150] Dr. Lynett indicated that the mother had previously been diagnosed with social anxiety disorder, panic attacks and high stress due to dealing with a special needs child. Although she was prescribed anti-depressant medication, none of them worked for her. He noted that the mother presented as level headed and there was no evidence of drug or alcohol abuse.

[151] He confirmed that the mother indicated that the court had requested that she obtain a psychiatric assessment and after making a referral to a psychiatrist, Dr. Alphie Pallen, a report was received, which he reviewed with the mother on November 22, 2013. Dr. Lynett confirmed that the report did not diagnose the mother with any psychiatric illness, but did suggest that the mother be referred by the family doctor to St. Joseph’s Hospital for psychological testing. After meeting with the mother and based on his knowledge of her health and her family situation, Dr. Lynett did not make the referral as he believed that she did not need to go to St. Joseph’s as any difficulties were related to the stress of not having her daughter in her care.

[152] On cross-examination, Dr. Lynett confirmed that the mother had not disclosed her complete history of anxiety, panic attacks or depression to Dr. Pallen. He also agreed, that the report stated: “This is a situation where [the patient] wants custody and it is a situation where she is not going to divulge psychiatric history or illness to jeopardize her prospect of getting custody of her children”. Dr. Lynett also confirmed that while Dr. Pallen concluded that “the patient does not endorse any symptoms to make a diagnosis of psychiatric illness” it was clarified that this was “from the history available and without collateral history” and “this does not mean that she may not suffer from a psychiatric illness but at this stage she has not divulged any information to make a diagnosis.”

[153] Dr. Lynett confirmed that he had not been shown the OCL report by the mother. When the father’s counsel showed him the recommendation in the report that the mother was to follow treatment as recommended by the psychiatrist, Dr. Lynett acknowledged her failure to do so was, in part, his doing as he did not believe that she needed to go to St. Joseph’s. However, he confirmed that the purpose of such referral would be to conduct psychological testing and obtain a higher psychiatric evaluation at a major centre.

Father’s Follow Through on OCL Recommendations

[154] Since the child came into his care, the father attempted to place the child in play therapy at a church in Welland. The other children were only three to four years of age. As she was six years of age, she was not able to be enrolled in that program. He was then referred to the Niagara Health System, but was advised that S.R.C. was also too old for their programs.

The Law

[155] As there was a final order for custody in favour of the mother, in determining whether there should be a change of custody from an existing order, the Supreme Court of Canada in Gordon v. Goertz, [1996] 2 S.C.R. 27, sets out the threshold that must be met:

A judge must be satisfied that:

a) there is a change in the condition, means, need, or circumstances of the child or in the ability of the parents to meet the needs of the child;

b)That the change is material and affects the child; and

c) the change was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order.

Once the threshold test is met, the court must then embark upon a fresh inquiry into the best interests of the child, having regard to all of the relevant circumstances relating to the child’s needs and ability of the respective parents to satisfy them.

[156] The relevant legislation for determining the best interests of the child is the Children’s Law Reform Act and in particular section 24 which states:

24. Merits of Application for Custody or Access – (1) 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).

(2) Best Interests of Child - The court shall consider all of 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;

iii) persons involved in the child’s care and upbringing;

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 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 or of 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.

(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.

(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.

(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

1. Has there been a material change in circumstances that would warrant the father being granted custody of the child on a final basis or should the child be returned to the custody of the mother?

[157] Having heard the evidence, I am satisfied that there has been a material change in the condition, needs and circumstances of the child as well as a change in the ability of the mother to meet those needs.

[158] It was evident from the OCL report that the child being placed in the difficult situation of not being able to express affection for her father, she was beginning to use maladaptive techniques for dealing with the incongruity in her life. She was enjoying the time with her father and loved him, but she was not allowed to express this and was being met with an overwhelmingly negative picture of her father by her mother and likely her maternal grandmother. Clearly, this was having a material and profound impact on the child.

[159] As to the foreseeability of this happening, I would expect that the father would suggest that this had been happening since day one and only confirms his position that the mother was acting from the beginning to exclude him from the child’s life. In Justice Reilly’s decision, he had considered alienation by the mother and optimistically expressed, “I prefer to believe that mother has not tried to alienate her from you and that is not a factor that need concern the court”. However, after commenting about the expectation that with the passage of time the father will be able to play a full role in the child’s life, he continued, “If you are in any way prevented by inappropriate behavior on the part of the mother from achieving that goal, then the court may well consider a variation of the custody regime.”

[160] I am satisfied that there has been a material change in the circumstances of the child and in the ability of the mother to meet the needs of the child. Having met that threshold, the next step is to determine what custody order will meet the needs of S.R.C. and ultimately what order will be in her best interests.

[161] There is no question that the mother loves S.R.C. and as she stated multiple times throughout this proceeding, this eight year old child is her universe and her life. That was apparent from the mother’s evidence and confirmed throughout the Pathstone notes and by the OCL. If the degree of love professed for a child were the sole criteria for awarding custody, then the mother would succeed in her quest to regain custody of the child. But that is not the only consideration.

[162] Similarly, while the length of time that a child has lived in a stable environment is another consideration and the child has lived the longest part of her life (the first six years) in her mother’s care, that does not necessarily support a custody order being made in the mother’s favour. The court must not just compare the length of the time periods that the child has been in each parent’s care, but must also consider the nature of the respective environments and the ability of each parent to provide the child with guidance and education.

[163] While the mother submits that she was meeting all of the child’s needs, it is clear that she was failing to meet her needs on many fronts. From all of the evidence heard, it was abundantly clear that the mother was not getting the child to school and that this was seriously affecting the child academically and socially. The mother showed no understanding of the impact that these absences were having on the child. The mother had no shortage of explanations for the child’s significant absences essentially laying all of the blame on the father (no snow pants; no child support; physical and sexual abuse; taking the child swimming and causing the child to become ill). None of these excuses were born out by the evidence.

[164] As evidence of the mother’s illogical thinking, she believed that the child’s delays in reading and writing could be due to the father threatening to take her away from the mother; she believed that the father was intentionally making the child sick by taking her swimming, just to cause her to miss school and make the mother look bad; she suggested that the child’s good attendance record while in the father’s care, should be seen as the father forcing the child to go to school in order to make the mother look bad.

[165] It was also clear that the mother had difficulties setting boundaries for the child. This was apparent in the way in which she routinely indulged the child with fast food while the child was in her care. That inability to set boundaries continued during the supervised access visits, to the point that the mother had to be directed by court order as to what types of food and quantity of food was appropriate. Further and rather than promoting healthy eating for the child, the mother persisted in suggesting what the child should be allowed to eat at the father’s home (i.e. chocolate milk and not “yucky” fish and meat) and implied that the father was mistreating the child for limiting treats and preparing healthy meals.

[166] The mother did not indicate whether the child had any chores to do while she had been in her care, but it was apparent from her questioning of the father that she believed that he was being mean to S.R.C. by making her do “harsh” chores such as making her bed and taking out the garbage, rather than accept that the father was acting appropriately by teaching her some important life skills.

[167] In determining the best interests of the child, the court must consider violence and abuse in the parties’ relationship as well as any violence toward any child. After hearing all of the evidence, I am left with contradictory statements as to the nature of the parties’ relationship. While the father did plead guilty to common assault, it appears that the events giving rise to the charge were minor, occurred in advance of the separation and the father did abide by all terms of the peace bond. As such I do not consider that as having a negative impact on the claim for custody.

[168] I am also cognizant of the fact that there was some evidence that the mother has exhibited violent tendencies, both with this father and with the father of Hunter, as is evident from the Police Occurrence reports.

[169] There was no cogent evidence presented to support the mother’s contention that the father has been physically abusive toward the child. Nevertheless, the court was left with no doubt that the mother believes that the father is physically abusive toward S.R.C.. This is apparent from the mother’s constant scrutiny of S.R.C. during the visits and the repeated comments about each bruise that is observed (even though the mother has been told not to do so) and the repeated complaints to the CAS. Despite being assured by CAS who had been able to meet privately with S.R.C. and despite the police doing multiple welfare checks on S.R.C., the mother cannot accept that no physical discipline is being used by the father.

[170] The court was also left with little doubt that the mother continues to believe that the father did sexually abuse the child. Throughout these proceedings, whether in the course of the mother’s testimony or even when reading about the sexual assault allegation in the OCL report or noting reference to “sexual assault” in the Pediatric Triage assessment, the mother became extremely emotional. It is understandable that the idea that one’s child might have been sexually abused would be upsetting. However, even after the police and CAS have conducted a thorough joint investigation, involving a physical examination of the child and being told that there was no evidence to support a finding that sexual abuse had occurred, the mother simply has not been able to accept that this did not happen. As she explained, the sexual assault is “deep in her heart” and while she hopes that it did not happen, she knows what her daughter said to her and so, in her mind, it must have happened.

[171] There are other aspects of the mother’s conduct in relation to these allegations that are disturbing. There was delay in bringing the child to the police. There were strong indications that the child had been coached about what to say as she was unable to provide details or context. Even if after the first allegation had been made, the mother truly believed that something inappropriate had taken place, the lack of follow up in having the child see a psychologist was troubling especially when both the local hospital and family doctor had tried to assist her in arranging this.

[172] The mother began by suggesting to the court that she had made an appointment with a psychologist and the only reason that she had not gotten the child in to see them, was because the child had been placed in the father’s care. However, when pressed for the date and with whom the appointment was made, the mother changed her testimony to state the child was only ever on a waitlist and no appointment was ever scheduled. This was one of many instances where the mother, when caught in a lie, would then give a contradictory statement or would come up with some preposterous explanation for her conduct, usually blaming the father.

[173] Another worrying aspect of the mother’s continued belief that the child had been sexually abused by the father is that she did not see how that would have any impact on her ability to parent S.R.C.. If granted custody the mother confidently stated that she would never raise the subject again with the child, and if the topic did come up, she would arrange for the child to be interviewed by a psychologist in order “to get to the bottom of what really happened.” Even by suggesting there needs to be further investigation, is a clear indicator to the court that the mother does not understand the harm that is done in repeatedly asking the child about the abuse allegations. However, this theme was also apparent in that the mother believed that the recommendation by the OCL for play therapy was to allow for S.R.C. to open up about the allegations. In fact, as explained by the OCL the real purpose was to assist S.R.C. with the transition from one home to another. On all of the evidence presented, the child adjusted easily to the father’s home and there was no need for play therapy.

[174] The court has given careful consideration to the OCL report and the testimony of Lori Cunningham. Despite extensive efforts by the mother to verify ways in which the report was biased, even suggesting impartiality because the date of the report coincided with the father’s birthday, there was absolutely no evidence of favoritism. The OCL report dealt with both parents in a fair and even-handed manner. The court has no hesitation in accepting the findings of the OCL as to the harmful actions of the mother in perpetuating the abuse allegations and in accepting the recommendations made by the OCL.

[175] The most troubling factor as disclosed in the OCL report is the mother’s inability to integrate the information given to her that the sexual and physical abuse did not happen and the mother’s inability to understand the emotional harm that was being done to S.R.C. by perpetuating the belief that the abuse did occur. The mother believed that the father had been sexually and physically abusive to the child and it is abundantly clear that she conveyed that belief system to the child, creating anxiety and fear for the child. For the child to be returned to that environment is not in her best interests.

[176] The last consideration that weighs in favour of the father being granted final custody is the fact that he recognizes the importance of the child having a close relationship with her mother. There were multiple examples of this. Most telling was the exchange that took place at the end of an access visit regarding a birthday party that overlapped with the next access visit. When given a choice, most children would be hard-pressed to forgo the birthday party, but the father guided the child to a decision to ensure that she would attend the visit with the mother. On the one hand, that speaks to the close relationship between the child and the mother and that S.R.C. obviously enjoys the visits. On the other hand, it also shows that the father does ensure that the mother-daughter bond is given priority. Other gestures by the father such as dressing the child up in her Halloween costume for an access visit or having the child take cards and gifts to the mother on special occasions have no doubt had a similar effect of promoting a positive rapport with the mother and child.

[177] In sharp contrast to the father’s conduct was the mother’s inability to say anything positive about the father. She had great difficulty acknowledging that the child loved her father or even that the child showed affection toward the father at the beginning and end of the Pathstone visits. When confronted by the notes that indicated that to be the case, the mother did not hesitate to put a negative connotation on it – the father knew that would be recorded in the notes and he was manipulating the child to show him affection. There was absolutely no evidence of that and, in fact, the court finds that the father gave his evidence in a straightforward manner. He did not present an idealized picture of the situation (being a single parent could be hard at times) nor did he always paint himself in a positive light ( by admitting to have smoked marijuana when asked by the court). His evidence was candid and credible.

[178] A child has the right to have a relationship with both parents. The court is left with no doubt that if the mother were granted final custody of the child, she would be unable to suddenly change her behavior and be able to encourage a positive relationship with the father.

[179] Taking all of the above factors into consideration, the order that will promote the best interests of S.R.C. is to make a final order of custody in favour of the father.

2. If a change in custody is ordered, should the mother’s access continue to be supervised?

[180] The father would hope that eventually the access could be exercised on an unsupervised basis, but for now he believes that it is best for the visits to continue to be supervised through Pathstone. He expressed that the staggered drop-off and pick-up times is good as it shields the child from any conflict. He also expressed concern that if the supervision did not continue the mother might say inappropriate comments about him and engage the child in discussions about adult issues. The father also expressed concern about the negative comments that the maternal grandmother would make, subjecting the child to unnecessary negativity and sabotaging his relationship with the child.

[181] The mother is strongly opposed to the access visits continuing. She believes that there is no reason for supervision and noted that she has gone from being a full-time mother to seeing S.R.C. for three hours week. She submitted that her maternal rights have been invaded. She also noted that S.R.C. is being deprived of a relationship with Hunter and her nanny and other family members.

[182] In many circumstances, the need for supervision is a temporary one and once any concerns that required the supervision have been addressed, the access can progress to unsupervised visits. I do accept that the supervised visits are restrictive both as to time and place, which is not ideal on a long term basis. However, given the circumstances of this case, the need for supervision continues.

[183] It was apparent from all of the evidence (the mother’s testimony; the mother’s conduct at the supervised visits as set out in the Pathstone notes; the CAS involvement; and the OCL report) that the mother continues to make inappropriate comments to the child about her bruises and repeats negative comments about the father. The mother appears to have no insight into the harm that her conduct has caused to the child in the past, nor does she comprehend the continual harm that she will do by promoting her beliefs about the sexual and physical abuse to S.R.C.. The mother also does not appear to understand how the ongoing negative comments about the father would interfere with the child’s bond with her father. Absent this insight, the court has no confidence that the mother would be able to control the maternal grandmother and prevent negative comments being made to the child.

[184] It may be that rather than a wilful refusal to change her conduct, there may in fact be a reason for the mother’s lack of insight, the cause of which can be ascertained by the mother undergoing the psychological testing recommended by Dr. Pallen. Although the mother would suggest that this is unnecessary as Dr. Pallen did not diagnose any psychiatric illness, I give that conclusion minimal weight as it was clear the mother was not forthcoming with the psychiatrist.

[185] Although Dr. Lynett accepted some responsibility for not referring the mother to St. Joseph’s in accordance with Dr. Pallen’s recommendation, I do not fault him for that, as the mother chose not to share the OCL report with him. I have no doubt that if Dr. Lynett had been provided with that additional information, he would have had no hesitation to make the referral.

[186] The mother’s access shall continue to be supervised by Pathstone Mental Health in St. Catharines for a minimum of three hours each week. As the need for supervision is not as a result of the father’s conduct, he should not have to pay for that cost. As such, effective May 1, 2015, the cost of the access visits shall be paid by the mother.

[187] As an incident of the access, the mother shall attend for psychological testing at St. Joseph’s Hospital in accordance with the recommendations of Dr. Pallen. She shall attend at her family physician, Dr. Christopher Lynett, who shall be provided with a copy of the OCL Report dated February 6, 2013 together with a copy of these reasons for judgment, so that he can make the appropriate referral.

[188] The mother shall follow any treatment and counselling recommended by St. Joseph’s Hospital, Dr. Lynett or others involved in her mental health care.

[189] It may be that in the future, once the mother gains some insight into the impact of her actions on S.R.C. that the access can progress to being exercised on an unsupervised basis. At this time, the current regime of weekly supervised access visits is what is in the best interests of the child.

3. What, if any, changes should be made with regard to child support and spousal support?

[190] Under the court order of Justice Reilly made on May 4, 2012 and based on an income of $110,000.00, the father was ordered to pay child support of $958.00 per month and spousal support of $1,400.00 per month commencing June 1, 2012. The spousal support was to be paid for a period of four years, ending on May 1, 2016.

[191] In addition, the court imposed terms on the mother, such that she was required to provide to the father by February 1st and July 1st each year (Beginning February 1, 2013) clear evidence of faithful attendance in an academic program and acceptable progress in such program, with failure to provide such evidence to be deemed a material change in circumstances and justifying a motion by the father to have the court reconsider the mother’s entitlement to spousal support.

[192] In 2012, the father was employed with S[…] Inc. working on the N[…] (“B[…]”) Project. When the project finished and in March 2012, the father’s employment came to an end. In the previous six years and while the tunnel project was underway, the father had been able to earn a substantial annual income.

[193] Although the court did impute income of $110,000 to the father in 2012, his actual income has not approached the same level in any of the subsequent years. In fact, in 2012 the father’s income was $60,045, comprised of income from S[…] Inc., three other employers and EI benefits. In 2013, the father’s income was $31,260 from three different employment positions and EI benefits. In 2014 to the date of the trial (November 2014), the father’s income was almost $30,000 from two different employers and EI benefits.

[194] The father testified that he is a member of the construction union and that the B[…] project was a once in a lifetime employment opportunity. When that ended, he confirmed that he has continued to seek employment. It was his evidence that when he does work, he can earn $25.00 to $29.00 per hour. However, the jobs are usually for limited periods of time until a project is completed and then if no other jobs are available, he must apply for EI benefits. He acknowledged that he would likely be able to make a higher and steadier income if he moved outside of the Niagara region, travelling to a western province or even to Newfoundland. Even remaining with this area, he did obtain employment in Cayuga for a period of time, but this was difficult for him as this involved a daily drive of over two hours. He found that it was not easy to find reliable babysitters for S.R.C. to ensure that she was taken to school and properly cared for until he returned from work.

[195] I accept that the father’s financial situation has changed since the order of May 4, 2012 was made. I accept that he has been unable to obtain similar employment and earn a similar income and that such jobs are not available in the Niagara region. To require him to travel outside of the Niagara area to try to earn that level of income is not realistic given that he has the full-time care of S.R.C.. This has been the situation for the past two years and based on the final custody order being made, the father will continue to be solely responsible for the child’s care.

[196] Ordinarily, absent any changes in the father’s income, the expectation would be that spousal support would simply continue to be paid in accordance with the order. However, the entitlement to spousal support was specifically prefaced on the mother taking certain steps to upgrade her education. It is apparent from the oral reasons of the trial judge that this was not simply a suggestion, but rather a clear obligation that was being imposed on the mother.

[197] After explaining that there would be no retroactive spousal support paid given that the mother had effectively lived in the father’s home that was maintained by him for four years, and then noting that it would be unusual that she would receive any spousal support beyond the four year period of cohabitation, Justice Reilly continued:

“You are receiving that and more because in my view it’s appropriate in these circumstances. It’s appropriate so that you can make of yourself what you want to make of yourself and what you’re capable of making of yourself. However, if you are not telling the truth, if you can’t follow through on those intentions, then it’ll be over and done with. Because you’re getting more than you’re probably entitled to as a matter of law and you will follow through with the terms and conditions that I’m about to touch upon, failing which, spousal support will be terminated I’ll virtually guarantee you.”

“You have to follow through and make good on your promise. That’s why I directed that you have what I, in my view, is a support order at the very generous end of the spectrum. You have to come across now and demonstrate that you’re worth it and I think you are. You have to demonstrate that you are in a program and that you’re being successful in that program. You don’t have to get the Dean’s Medal as first in your class; but, you’ve got to demonstrate that you’re serious about this and successful. Otherwise, Mr. De Lisio will move before a court for a termination of spousal support based on a material change in circumstance. He’ll repeat the words which will be followed by, in my view, any one of my colleagues.”

[198] The mother testified that she left high school at 17 or 18 years of age. She has a Grade 10 level of education and was mid-way through Grade 11 when she left school. Since then she has taken no other courses of education. The mother acknowledged that the first step in any re-education program would be to obtain a high school equivalency through an adult learning program and then proceed to college or university. The mother testified that she hoped to obtain training in the health care field such as in nursing or as an ultrasound technician.

[199] The mother testified that she was last employed in 2004 just before meeting the father. She had worked in the meat department of Food Basics for about one year; she worked briefly for a few weeks at Tim Horton’s; and she did telemarketing for a carpet cleaning company.

[200] She also testified that she had done some modeling in Toronto. When asked about this, she confirmed that she had a portfolio and potentially had some work as a model for romance novel covers, but she did not actually pursue this as a career nor did she ever earn any income, as the father was fearful that she would run off with Fabio.

[201] Finally, the mother had done some house-cleaning and also did some home daycare while the parties were together, but she stopped doing this as the father was earning a good income.

[202] The mother did not file an updated Financial Statement, nor did she file proof of her income. She testified that she has been on Social Assistance since April 2012, when the father stopped paying support. She is currently receiving Social Assistance of $590 per month. She receives $1,000 per month for Hunter through ODSP as well as child support of $406 per month from his father. She also receives the GST rebate every three months.

[203] The mother testified that she had attended at St. Thomas Adult Learning Center some time in 2013. When pressed, it became evident that all that she had done was to make an enquiry about enrolling, but she took no steps to actually enroll in an adult education program. As such, to the conclusion of the trial, she had done nothing to advance her education.

[204] The mother provided various explanations for failing to do so. In 2012, she indicated that she was distraught over the father’s failure to pay support and to being evicted from her home and having her vehicle repossessed. Further, she noted that given what she has been through with S.R.C., citing the sexual abuse and physical abuse allegations as well as the emotional upset caused by seeing the constant bruises and the emotional turmoil caused by the child being taken from her care, it was her evidence that it has not been possible for her to take any steps to return to school.

[205] It was her evidence that if S.R.C. is returned to her care, she will then be “whole” and will then be able to turn her attention to advancing her education, which she is confident that she will pass with flying colours.

[206] The onus on the mother was not substantial. She needed to enroll and attend a course of education. The first deadline for providing proof of enrolment and success was February 1, 2013. No such evidence was provided as no steps were taken. Even having missed that first deadline, another one-and-a-half years have passed (to the end of the trial), but the mother has still not met the terms imposed by Justice Reilly.

[207] The allegations of physical and sexual abuse were unfounded and yet the mother persisted in advancing these claims, to the emotional detriment of the child. She has no one but herself to blame for the child being removed from her care in February/March 2013, nor should she have been surprised, as Justice Reilly was very clear in his reasons, that if she took steps to interfere with the father/daughter relationship, custody could be reversed. In all of those circumstances, the court cannot accept that the mother has presented any reasonable justification for failing to meet the obligation placed upon her to advance her education.

[208] In all of the circumstances, I find that the mother has not abided by terms of the May 4, 2012 order as she has not taken any steps to attend school, and I further find that there has been a material change in circumstances such that spousal support should be terminated as of February 28, 2013.

[209] Although the father’s income was not at the level that was imputed to him, nevertheless, it is appropriate that the order remain in force with any adjustment to coincide with the first reporting period on February 1, 2013. Accordingly, the father should pay spousal support of $1400.00 per month from June 1, 2012 to and including February 1, 2013 and thereafter the spousal support is terminated.

[210] Similarly, the father was obligated to follow the May 4, 2012 order with regard to child support, with the sum of $958.00 per month being payable from June 1, 2012 to and including February 1, 2013.

[211] The child support obligation of the father was suspended under the interim order of Justice Reid on March 15, 2013. As the child has been with the father more or less continuously since February 6, 2013, and will be remaining in the custody of the father, the father’s obligation to pay child support shall be terminated effective March 1, 2013.

[212] The final issue to be determined under the heading of support is the mother’s obligation to pay child support for S.R.C..

[213] As set out above, the mother has not been employed outside of the home for more than 20 years. She is currently 42 years of age and she has a Grade 10 education. She stated that she is not able to work full-time as she has two children to care for. She wants to be available for the Saturday access visits with S.R.C., which would limit the jobs that she could accept. The mother admitted that she has not applied for any employment positions.

[214] The mother’s current source of income is Ontario Works. While she has additional income available to her household, this is clearly income arising from Hunter’s disability and an amount paid for his support and should not be considered for purposes of determining the mother’s obligation to pay child support for S.R.C..

[215] When asked about whether she believed she had an obligation to pay child support, the mother had considerable difficulty answering this. On the one hand, she did not want to even think of a scenario where S.R.C. would not be in her care. On the other hand, she stated that it would be gut-wrenching if she were forced to work at a minimum wage job to pay child support to the father, when S.R.C. will not even receive the money. In her mind, all children should be with mothers unless they are unfit and all fathers should pay child support.

[216] Under the Family Law Act and the Child Support Guidelines, every parent has an obligation to contribute toward the support of their child in accordance with their income or the income that they should be able to earn. It would certainly be within the court’s power to impute income to the mother based on a minimum wage job, with an annual income in the $20,000 to $23,000 range, which would result in a child support obligation of $160.00 to $180.00 per month in accordance with the Guidelines.

[217] I have taken into consideration many factors, including the respective financial situations of the mother and the father; the high level of animosity felt by the mother toward the father; the fact that the amount to be ordered, is relatively nominal and will not significantly advance the child’s standard of living; and that any child support order will likely have a significant impact on the future relationship of the parents, at a time when the child needs to have the conflict between the parents reduced and not amplified. Accordingly, and after considering all of the circumstances of this case, I find that this is one of those rare situations where it is appropriate that no child support shall be ordered.

[218] However, in the event that the mother’s financial situation was to improve, it may be that child support should be payable in the future and the issue of child support may be revisited. In order for the father to be aware of any changes in the mother’s financial circumstances, the mother shall advise the father in the event that she obtains employment and she shall also annually provide a copy of her income tax return and Notice of Assessment to the father, on or before June 30 in each year, commencing in June 2016.

Order

[219] The order of Justice R.D. Reilly dated May 4, 2012 shall be varied to provide the following:

1. The respondent/father shall have sole custody of the child, S.R.C., born […], 2007.

2. The applicant/mother shall have access to the said child, to be supervised by Pathstone Mental Health in St. Catharines, for a minimum of three hours each week.

3. The applicant/mother shall pay the cost of the supervised access through Pathstone Mental Health effective May 1, 2015.

4. As an incident of that access, the applicant/mother shall attend for psychological testing at St. Joseph’s Hospital in accordance with the recommendation of Dr. Pallen. The applicant/mother shall provide a copy of the report of the Office of the Children’s Lawyer dated February 6, 2013 together with a copy of these reasons for judgment to her family physician, Dr. Christopher Lynett, so that he can complete the referral to St. Joseph’s Hospital.

5. The applicant/mother shall follow any treatment and counselling recommended by St. Joseph’s Hospital, Dr. Lynett or others involved in her mental health care.

6. The terms of the mother’s access may be amended on consent of the parties or upon further court order.

7. The child support payable under paragraph 13 of the said order shall be terminated effective February 28, 2013.

8. The spousal support payable under paragraph 15 of the said order shall be terminated effective February 28, 2013.

9. There shall be no further spousal support payable by the respondent/father to the applicant/mother.

10. There shall be no child support payable by the applicant/mother at this time.

11. The applicant/mother shall advise the respondent/father should she obtain any employment and she shall provide to the respondent/father a complete copy of her income tax return and notice of assessment on an annual basis on or before June 30th, commencing in June 2016.

12. SDO to issue.

Costs

[220] The father has been successful in the motion to change. If he is seeking costs, he shall deliver written submissions to my chambers, at 59 Church Street, 4th Floor, St. Catharines, Ontario, L2R 7N8, within 20 days of the release of this judgment. The mother shall provide her responding submissions 20 days after receipt of the father’s submissions. The written submissions are not to exceed three typewritten, double-spaced pages, excluding the Bill of Costs and Costs Outline. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves.

MacPherson J.

Released: April 2, 2015

Schedule “A”

• April 3 – father smoking in the home. Did not return child’s earrings.

• April 11 – taking child swimming. Should not be in chlorine water due to eczema. Smoking in the home.

• April 16 – father does drugs.

• April 19 – father unfit. S.R.C. told mother not being treated well.

• May 1 – father trying to get S.R.C. to call T.T. “mom.”

• May 18 – Please have S.R.C. checked carefully. He is unfit. Find out what she is being fed.

• May 10 – maternal grandmother called; S.R.C. is regressing and needs to come home because there were backward letters on the Mother’s Day card.

• May 28 – CAS is not taking mother’s concerns seriously. CAS is against the mother. Wants S.R.C. to have a physical and an accurate weight. S.R.C. is sad that she is not with her mother.

• August 29 – mother has safety concerns. Child went to Marineland. Was afraid on a roller coaster. She banged her nose and was bleeding. Continues to be allowed to swim in chlorine pool.

• September 6 – S.R.C. taken to a pool. He should not be letting her shower.

• September 19 – S.R.C. losing weight too fast. Her pants are falling off. Father uses food as a punishment. S.R.C. had a picture of her brother, Hunter, and T.T. has thrown it away.

• September 28 – bruises on upper arms. Mother blamed father.

• October 3 – concerns about child’s meals; clothes falling off; bruises; mice in the home and father killing one in front of S.R.C.; dry skin. Father is violent and S.R.C. is afraid. S.R.C. needs full physical with urine and blood tests. Father is a good actor and is putting on a good face for the worker.

• October 5 – S.R.C. is being neglected; long dirty nails; when mom tried to cut them, S.R.C. said she needs to keep her nails long to scratch her father’s back. S.R.C. is not eating enough; her pants are falling off; continues to swim and chlorine is bad; S.R.C. crying lots at visit.

• October 7, 2013 – always hungry; wants to come home with mother; not dressed properly; neglected.

• October 8 – skin problems; discussion re Dr. Kowalchuk.

• October 9 – mother concerned for S.R.C.; never had weight problems when with mother; needs physical.

• October 28 – S.R.C. has been in swimming pool; height and weight requested; smoking by father.

• October 29 – concerns re weight of child and smoking.

• November 3 – two messages; severely dry hands and child not happy; child depressed and unhappy; father killed skunk and uses cocaine.

• November 7 – concerns re child safety; father won’t let S.R.C. cry; he is mentally abusive because he punishes her for crying at the visits.

• November 20 – the list of complaints was made to the service director, Ms. Bell’s supervisor, including smoke; not being fed; physical abuse; mice in the home; OCL was biased against mother; and father’s drug use.

• November 25 – meeting with service worker, mother and worker, to express concerns.

• December 10 – S.R.C. gets pains in stomach at school and cries and throws up.

• December 14 – child had stomach pains at access visit and was not taken to the doctor. When speaking to afterhours worker, it was suggested that if she was seriously concerned, she could ask the NRP to do a safety check but was cautioned that this is intrusive and to think about it. Immediately the mother expressed that this was a medical emergency and she would call the police to require them to attend.

• January 18, 2014 – mother called to report S.R.C. cried a lot and wants to come home. Needs to be taken to the doctor because of problems with her private parts; skin on her feet and hands are dry.

• February 12 – request for worker to speak with Dr. Kowalchuk. Once mother signed the release on April 2, 2014, it was indicated that Dr. Kowalchuk had not seen S.R.C. since November 2012. If further information was required, the worker would need to speak with the family doctor, Dr. Lynett. When asked about any concerns for S.R.C. being in the pool, it was indicated that she could go in but this could exacerbate the eczema condition. If it was very bad, she should only swim in salt water, but if it was not bad at the time, it was fine for her to swim. He advised that the parent keeps calling and as she is not an active patient, they must go through the family physician.

• June 1 – voicemail message that S.R.C. said she was not happy and wants to come home. Father lets her hang upside down on the monkey bars which are dangerous.

• June 9 – phone call from mother that there had been a visit where she observed bruises. She was concerned that the father was not feeding the child.