CITATION: McGlade v. Henry, 2015 ONSC 3036
NEWMARKET COURT FILE NO.: FC-12-042142-00
DATE: 20150512
CORRECTED: 20150525
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MEGAN McGLADE
Applicant
– and –
MATTHEW HENRY and GILLIAN HENRY
Respondents
Karen L. Tobin, for the Applicant
Sheila L. Bruce, for the Respondents
HEARD: November 17, 18, 19, 20, 21, 24, and 26, 2014
F. GRAHAM J.:
CORRECTED REASONS FOR JUDGMENT
The text of the original judgment was corrected on May 25, 2015 and the description of the correction is appended.
Brief Background and Issues
[1] Trace is a four year old boy.
[2] The parties are his mother (Ms. McGlade), his father (Mr. Henry), and his paternal grandmother (Ms. Henry).
[3] Ms. McGlade served notice upon Mr. Henry in late November of 2012 that she was seeking sole custody of Trace.
[4] On December 7, 2012, Kaufman J. ordered, on consent, on a temporary without prejudice basis, that Trace would generally be in the care of Ms. Henry, except that Ms. McGlade would have care of Trace each Monday and Wednesday from 4 p.m. to 7 p.m., and on alternate weekends from Friday at 4 p.m. until Sunday at 5:30 p.m., and Mr. Henry would have care of Trace during alternate weekends as arranged with Ms. Henry.
[5] On May 14, 2013, Rogers J. ordered, on a temporary basis, after an argued motion, that until July 1, 2013, Trace would reside with Ms. McGlade on Mondays and Wednesdays from after school until school the next morning, and on alternate weekends, from after school on Friday until school Monday morning, and that starting July 1, 2013, Trace would reside with Ms. McGlade during the period of Monday to Wednesday, every week, and alternate weekends, from after school on Friday until Monday morning.
[6] The latter schedule remains in place.
[7] Ms. McGlade picks Trace up after school on Mondays after he spends a weekend with the Henrys and she takes Trace to school on Thursdays.
[8] At the outset of the trial, the parties agreed to change Trace’s surname from McGlade to McGlade-Henry and Ms. McGlade abandoned an application to move Trace’s residence to Sudbury.
[9] Ms. McGlade seeks sole custody of Trace. Mr. Henry and Ms. Henry seek joint custody with each other and with Ms. McGlade.
[10] The Henrys also seek a variation of the residence schedule such that Trace would be with them an additional day every week (starting after school on Wednesdays rather than after school on Thursdays).
[11] Ms. McGlade also seeks child support from Mr. Henry.
Detailed Historical Background (2009 to 2013)
[12] Trace’s parents met in the summer of 2009 on an on-line dating website.
[13] Ms. McGlade was then living with her mother in Sudbury, where she had grown up, and was working part-time with the intention of attending school that fall to finish her high school credits. She did not like living in Sudbury and wanted to live in the Toronto area. She was 19 years old.
[14] Mr. Henry was living with his mother in Whitby, and was working intermittently as a stand-up comedian. He worked in Sudbury occasionally. He was also 19 years old.
[15] Ms. Henry was 40 years old at that time.
[16] Ms. McGlade and Mr. Henry met in person in Sudbury in August of 2009.
[17] In October of 2009, Ms. McGlade realized that she was pregnant.
[18] Around that time, Ms. Henry took the young couple on a trip to California.
[19] Ms. Henry testified that Ms. McGlade and Mr. Henry were “babies” at that time and required her guidance. She decided that she would not allow Mr. Henry to “run from his responsibilities”.
[20] Ms. McGlade wanted to have the baby and Mr. Henry supported her decision. He wanted her to move to Whitby to live with him, and Ms. McGlade agreed.
[21] In November of 2009, Ms. McGlade moved to Whitby.
[22] Ms. Henry did not want the young couple living with her daughter, Noelle, at Ms. Henry’s home, so she bought the couple a house in Whitby, about five minutes away from her home, and paid for furniture, including baby furniture, chosen by them.
[23] On May 10, 2010, Ms. McGlade was getting her home ready for expected visitors when she went into premature labour. Trace was born in the Oshawa hospital the next day. He remained in intensive care for ten days because he was premature and required tube feeding.
[24] While in the hospital, Ms. McGlade informed Ms. Henry that the paediatric nurse told her not to use baby powder on Trace because it could get into his lungs. Ms. Henry did not accept the nurse’s advice and put baby powder on the baby against Ms. McGlade’s wishes.
[25] Upon leaving the hospital, the parties moved in with Ms. Henry for a short while so they could benefit from her experience as a mother. She helped take care of the baby and showed the parents what to do, although Mr. Henry had changed diapers before.
[26] Ms. McGlade had felt somewhat depressed prior to Trace’s birth and she felt the same afterward. Despite her doctor’s recommendation, before the birth, to take anti-depressants, Ms. McGlade chose to wait until after Trace was born so that there could be no possible negative side effects for him.
[27] Ms. McGlade had some difficulty breast feeding the baby. Ms. Henry gave her some advice but she still had difficulty. Ms. Henry bought two breast pumps for Ms. McGlade. A lactation consultant, retained by Ms. Henry, advised Ms. McGlade to take a drug that would help her milk flow. Ms. Henry, who had breast fed her children, was concerned that the medication might have a negative effect on the baby and opposed the taking of the medication. Mr. Henry said that Ms. McGlade should make the decision. Ms. McGlade wanted to take the medication. She was satisfied that the drug was safe for the baby. She did not take the medication, however, because she wanted Ms. Henry’s approval.
[28] In addition to Ms. McGlade, Ms. Henry and Mr. Henry each got up during the night to feed the baby at times.
[29] After a short while, Ms. Henry suggested that the couple should move back to their own house, which they did.
[30] After the move, Ms. McGlade and Mr. Henry frequently took Trace to Ms. Henry’s home to visit and stay with Ms. Henry.
[31] Mr. Henry testified that when he arrived home late at night, after working, he would often find that Trace was staying at his mother’s house. He thought that was a good idea because it allowed Ms. McGlade an opportunity to rest so she would not be too tired to care for Trace during the day. He noted that Ms. McGlade never objected to Trace being with Ms. Henry.
[32] Ms. Henry testified that Trace was often with her overnight because Ms. McGlade would ask her to care for him because she was tired. Ms. Henry testified that this happened four or five times a week regardless whether Mr. Henry was with Ms. McGlade or not.
[33] At a certain point, Ms. Henry gave Ms. McGlade $5,000 to “pamper herself”.
[34] When Trace was about three weeks old, Ms. McGlade took him to Sudbury for a visit. While she was there, Mr. Henry sent her a message by text ending their relationship and Ms. Henry telephoned Ms. McGlade’s mother and told her that the couple’s house was a mess, with dog feces and dirty diapers strewn about, and suggested that Ms. Henry should care for Trace until the house was cleaned. Ms. McGlade’s mother did not agree that Ms. Henry should care for the child.
[35] Ms. Henry responded that she would retain counsel.
[36] As a result, Ms. McGlade obtained legal advice and commenced an action for sole custody in Sudbury. She was advised not to allow Mr. Henry or Ms. Henry to have the child unsupervised because Ms. Henry owned properties outside of Canada and might leave Canada with the baby.
[37] Ms. McGlade permitted Mr. Henry and Ms. Henry to spend time with Trace in a Tim Horton’s in Sudbury on several occasions while Ms. McGlade sat nearby. She found that Ms. Henry was confrontational during those visits.
[38] At the Sudbury courthouse, Ms. Henry was confrontational toward Ms. McGlade outside the courtroom. Ms. Henry told Ms. McGlade’s mother that Ms. Henry would ensure that Trace had everything.
[39] Ms. McGlade’s mother helped Ms. McGlade with Trace while Ms. McGlade was in Sudbury. She provided diapers and formula and helped care for Trace.
[40] Eventually, Ms. McGlade obtained a temporary order for sole custody.
[41] After that, Mr. Henry, Ms. Henry, and Noelle visited the child in Sudbury every weekend until Mr. Henry told Ms. McGlade that he wanted to reconcile.
[42] Ms. McGlade agreed to consider reconciliation and took Trace back and forth between Sudbury and Whitby during the fall of 2010. She allowed Mr. Henry and Ms. Henry considerable time with Trace when she was in Whitby.
[43] Eventually, Ms. McGlade began living in Whitby with Mr. Henry again. She eventually abandoned her court action in Sudbury.
[44] Ms. Henry paid the couples’ utility bills, their grocery bills, and all their needs for the baby.
[45] Trace’s physician told Ms. McGlade that Trace’s foreskin should not be pulled back before he was three years old. Despite being repeatedly reminded by Ms. McGlade about the doctor’s advice, both Henrys repeatedly pulled back Trace’s foreskin. Subsequently, Trace resisted being washed in that area, tried to avoid wearing diapers and eventually, refused to let anyone, including his doctor, touch his foreskin.
[46] Mr. Henry testified that, as happened before the separation, when he arrived home late at night, after working, he would often find that Trace was staying at his mother’s house. He said that this would happen four or five times a week when he was working.
[47] As noted earlier, Ms. Henry stated this happened regardless whether Mr. Henry was at home with Ms. McGlade or not.
[48] Ms. Henry made all the doctor’s appointments for Trace while Ms. McGlade was living in Whitby.
[49] Eventually, Ms. Henry suggested that Trace should live with her from Monday to Friday and with his parents on weekends. Ms. McGlade and Mr. Henry were upset by that suggestion and did not agree.
[50] In May or June of 2011, while Ms. McGlade was in Sudbury for a visit, Mr. Henry ended their relationship by means of a message on Facebook.
[51] Ms. McGlade testified that Mr. Henry suggested that Trace should spend three out of every four weeks with Ms. McGlade in Sudbury and one week out of every four with Mr. Henry and Ms. Henry in Whitby. Ms. McGlade said she agreed. She testified that Ms. Henry then telephoned Ms. McGlade and said that she was being selfish to want three of every four weeks with Trace.
[52] She said that despite her view that the schedule proposed by Mr. Henry was in Trace’s best interests, Ms. McGlade agreed to Trace spending half of his time in Sudbury with her and half of his time in Whitby with the Henrys, with an exchange every two weeks, because she wanted Ms. Henry’s approval.
[53] Mr. Henry testified that he and Ms. McGlade agreed to an equal split of Trace’s time and that Ms. Henry was not involved in the discussion.
[54] Ms. McGlade was living with her mother in Sudbury at that point. She felt depressed.
[55] Ms. Henry asked to take Trace on some international trips over two weeks in length and Ms. McGlade agreed.
[56] Around July of 2011, Ms. McGlade’s mother told her that she should apply for public assistance, establish her own home, and work or go to school, in order to exercise responsibility for herself and Trace.
[57] Ms. McGlade responded by phoning Ms. Henry for help.
[58] Ms. Henry flew to Sudbury and looked for places for Ms. McGlade to live. She rented Ms. McGlade an apartment across the street from Ms. McGlade’s mother’s residence. Ms. Henry paid the rent of $800 per month for a year and bought furniture chosen by Ms. McGlade. Ms. Henry also gave her $200 per month toward expenses and provided her with the use of Mr. Henry’s car, and paid the car insurance.
[59] Ms. McGlade’s mother did not approve of Ms. Henry’s generosity to Ms. McGlade.
[60] Ms. McGlade enrolled in an adult education programme in Sudbury. She also enrolled in the Healthy Babies programme in Sudbury and followed a nurse’s advice to enrol Trace with an early intervention team that assessed premature babies’ needs. She initiated the involvement of a speech pathologist and a paediatrician in Sudbury.
[61] After a period of time living in Sudbury and having Trace with her half of the time, Ms. McGlade did not feel depressed any longer. She testified that she started feeling able to stand up to Mr. Henry or Ms. Henry if they tried to pressure her concerning Trace.
[62] For about a year, Ms. Henry travelled back and forth between Whitby and Sudbury every two weeks with Trace for the purpose of exchanges. Occasionally, Ms. McGlade and Mr. Henry met in Parry Sound for exchanges.
[63] On one occasion, Trace stayed with the Henrys for longer than two weeks at Ms. McGlade’s suggestion because she was not feeling well.
[64] Mr. Henry testified that when Trace was in Whitby, Trace lived with Mr. Henry most of the time and was only with Ms. Henry if Mr. Henry was working or if Ms. Henry wanted to give him a break. He said that he worked in Sudbury on occasion during that period but he did not seek to visit Trace while he was there because he would drive five hours to Sudbury, arrive a half hour before the show, do the show, and then drive back.
[65] At a certain point, Ms. Henry wanted to take Trace to Guyana and she wanted him to travel under the surname “Henry”, but Ms. McGlade had registered his surname on his birth certificate as McGlade, and she would not consent to changing his name to Henry, although she was agreeable to a hyphenated surname, which upset the Henrys.
[66] Ms. McGlade testified that Ms. Henry responded that she would no longer give Ms. McGlade financial support for Trace because she would not give money to a “McGlade”.
[67] Ms. McGlade responded that she would not speak with Ms. Henry again.
[68] A few days later, Ms. Henry apologized and said that she would support Trace in any way she could.
[69] Ms. Henry testified that Ms. McGlade never refuses Ms. Henry permission to travel with Trace. Ms. Henry has travelled extensively with Trace, starting when he was a baby.
[70] In the spring or early summer of 2012, Ms. McGlade decided that she would like to take a registered massage therapy programme at Georgian College in Barrie.
[71] Ms. Henry said that Barrie was too far from Whitby for her to easily help with Trace, and suggested that she and Ms. McGlade should both find residences in York Region instead. Ms. McGlade agreed and looked for a place to live with the assistance of her mother and, later, with Ms. Henry.
[72] Ms. Henry owned a house on a twelve acre parcel of land in Mount Albert that pleased Ms. McGlade. As a result, it was agreed that Ms. McGlade would live there rent-free and expense-free with Trace. Ms. Henry also provided Ms. McGlade with $500 per month, the continued free use of Mr. Henry’s car, and the free use of a cell phone.
[73] Ms. Henry paid a contractor to fence in a large backyard on the property and to make other improvements for Ms. McGlade and Trace.
[74] Ms. McGlade’s parents gave Ms. McGlade some clothing, diapers, and other supplies for Trace.
[75] The parties agreed that Trace would go to Montessori school in Aurora in the fall of 2012. In order to prepare him for that experience, they agreed that he would attend two weeks of Montessori summer camp in Aurora.
[76] Ms. Henry enrolled Trace into the camp and the school while Ms. McGlade was still in Sudbury. Ms. Henry paid for both programmes. She enrolled Trace under the surname “Henry”.
[77] Mr. Henry testified that Ms. Henry took Trace to the camp in the mornings and Mr. Henry picked up Trace after camp and took him out for wings.
[78] Ms. Henry moved to Aurora. She testified that she moved to Aurora because her daughter had been accepted to attend Pickering College High School in Newmarket.
[79] Mr. Henry moved into the family home in Whitby where he was raised and where he was living when he met Ms. McGlade. His accommodation there is paid for by Ms. Henry. The other house in Whitby is rented out. Mr. Henry said that Ms. Henry told him that he was not mature enough to live alone in the other house.
[80] Ms. Henry paid to have Ms. McGlade’s furniture shipped to Mount Albert from Sudbury.
[81] In August of 2012, Ms. McGlade moved into the Mount Albert house.
[82] In September of 2012, she started college preparation courses at the Georgian Learning Centre. Her classes were either from 9:30 a.m. to 4:30 p.m. or 5 p.m. to 9 p.m. Ms. Henry paid for the programme and provided Ms. McGlade with school supplies.
[83] Mr. Henry testified that, at that point, Trace was with Ms. McGlade on weekdays and Mr. Henry and Ms. Henry shared the weekends with Trace.
[84] Around that time, Ms. McGlade learned that Mr. Henry had a new partner which caused her to feel depressed, take anti-depressants, and smoke some marijuana to cope with her feelings when Trace was not with her.
[85] Ms. McGlade told Ms. Henry that she was feeling depressed so they agreed that Trace would spend more time with Ms. Henry.
[86] Trace’s teacher at that time observed that Trace was unsettled, distracted, made no eye contact, had no verbal skills, engaged in a lot of high pitched screeching if he didn’t get what he wanted, tended to run around the classroom, tried to leave the classroom, did not socialize with his peers, had a problem sitting in a circle, constantly flushed the toilet, and tried to climb things.
[87] The teacher spoke with Ms. Henry about her concern and suggested that Trace see a speech pathologist to address the high pitched screeching that was disruptive to the class.
[88] The teacher testified that Ms. Henry was the person who usually dropped off and picked up Trace from school, although Ms. McGlade or Mr. Henry would do so occasionally.
[89] In October of 2012, Ms. McGlade was having trouble keeping the furnace going at the Mount Albert house because of a problem with the thermostat. As a result, she agreed that Trace should live with Ms. Henry full-time until the thermostat was fixed because it was sometimes too cold for Trace.
[90] Ms. Henry testified that she had the thermostat fixed but Ms. McGlade still wanted Trace to stay with Ms. Henry. Ms. Henry testified that Ms. McGlade wanted Trace to stay with Ms. Henry because Ms. McGlade had trouble getting up in the morning to go to school and taking Trace to his school.
[91] Ms. McGlade then went to Sudbury for a couple of weeks. She felt better while she was there. When she returned to Mount Albert she felt depressed again.
[92] Her doctor referred her to the Canadian Mental Health Association. She enrolled in cognitive behavioural therapy to learn techniques to cope with anxiety and depression (e.g. meditation) and she joined a depression support group. Ms. Henry paid for Ms. McGlade’s therapy.
[93] In early November, at a meeting between the parties and Trace’s educators, it was decided that it would be beneficial for Trace to sleep at Ms. Henry’s home on school nights so he would have consistency.
[94] Ms. Henry suggested, and Ms. McGlade agreed, that Trace should continue to live with Ms. Henry full-time and Ms. McGlade could visit him after her classes ended at 4:30 p.m.
[95] Eventually, the parties agreed that Ms. McGlade would have access with Trace at Ms. Henry’s house on Mondays and Wednesdays and alternate weekends, and Mr. Henry would have access there on Tuesdays and Thursdays and alternate weekends.
[96] Also in November of 2012, Ms. Henry paid for a speech and language assessment for Trace. Trace was assessed as presenting a moderate expressive language delay. Weekly therapy was commenced at Ms. Henry’s expense.
[97] Trace’s teacher noticed an improvement in Trace’s behaviour once he was sleeping at Ms. Henry’s and taking speech therapy. He became calmer, sat more, and could speak a few words rather than screeching. It was the teacher’s view that Ms. Henry was Trace’s primary caregiver throughout the school year. She noticed that Trace happily ran to Ms. Henry’s arms when she picked him up from school but he was a bit reluctant to go to Ms. McGlade at first, until the pickup schedule was better established.
[98] That November, Ms. Henry took Trace to see a paediatrician because Trace would not allow his foreskin to be touched. The physician advised that a report had to be filed with child protection authorities because Trace would not allow the doctor to touch his foreskin. Ms. Henry testified that child protection authorities went to her home, Mr. Henry’s home, and Ms. McGlade’s home.
[99] At this point, Ms. Henry refused to give Trace to Ms. McGlade, when she arrived to pick him up from Ms. Henry’s home, because of the on-going investigation. Ms. Henry said that she did not feel at liberty to tell Ms. McGlade about the on-going investigation.
[100] Ms. McGlade testified that Mr. Henry also refused to give Trace to her and called Ms. McGlade “trash”.
[101] Ms. McGlade called the police for assistance. They would not remove Trace from Ms. Henry’s home but advised Ms. McGlade to seek assistance from the court if she wished.
[102] Ms. McGlade served Mr. Henry with notice that she was seeking custody of Trace.
[103] That same day, Ms. Henry went to the Mount Albert house and told Ms. McGlade that she could not live there any longer and demanded the keys for Mr. Henry’s car on the grounds that Ms. McGlade had been smoking marijuana in the car. Ms. Henry subsequently served her with a notice of eviction, effective in thirty days, on the basis that Ms. McGlade had been using marijuana on the premises. She also stopped paying Ms. McGlade the $500 per month stipend and she stopped providing the use of a cell phone.
[104] Ms. Henry then brought a motion to have primary residence for Trace on the grounds that Ms. McGlade no longer had a residence or a means of transportation.
[105] The result was the temporary order made by Kaufman J. on December 7, 2012, mentioned earlier, that stipulated that Trace was generally in the care of Ms. Henry, subject to certain times that he was with Ms. McGlade or Mr. Henry.
[106] Ms. McGlade sought assistance from a programme then called Pathways, now called 360 Degree Kids, which provides assistance to persons between the ages of 18 and 24 in York Region.
[107] With their help, she started a paid co-op education programme, engaged in counselling, applied for Ontario Works successfully, and obtained an apartment in Newmarket in January of 2013.
[108] In February of 2013, with assistance from her parents, Ms. McGlade obtained a van. Her parents started providing her with about $200 per month.
[109] Ms. McGlade’s housing worker at 360 Degree Kids testified that Ms. McGlade was very diligent about finding housing and completing the co-op education programme. She felt that Ms. McGlade had done very well at 360 Degree Kids and was impressed that Ms. McGlade was still working for her co-op employer at the time of the trial.
[110] Ms. McGlade’s caseworker at 360 Degrees Kids, a family therapist, testified that her first impression of Ms. McGlade was that she was “determined” to be a good mother and that she was a bit sad that she wasn’t getting that opportunity due to Ms. Henry’s substantial involvement in Trace’s life. The caseworker felt that Ms. McGlade was experiencing anxiety about not having sufficient control as a mother. The caseworker talked with Ms. McGlade about child development stages and setting goals as a mother, how to achieve those goals, and about the challenge of relating to someone who was not really on her side, and standing up for herself to achieve her motherhood objectives. The caseworker found that Ms. McGlade was a willing participant in counselling, would initiate meetings, use resources, and attend on time. She found that Ms. McGlade’s confidence as a mother grew from January to April of 2013 when the caseworker went on maternity leave.
[111] In March of 2013, Trace’s teacher recommended an early childhood intervention to Ms. Henry.
[112] By May of 2013, Ms. McGlade had a permanent part-time job which was a continuation of her co-op placement. at Stitch It, and she also worked part-time at Target. She was also receiving a $500 per month stipend again from Ms. Henry.
[113] Ms. McGlade asked the Henrys for more time with Trace because she had a home and a suitable vehicle but they refused on the basis that a change in the schedule would be inconsistent for Trace.
[114] As a result, Ms. McGlade brought a motion for more time with Trace. The result was the May 14, 2013 order of Rogers J., mentioned earlier, which remains in place. It stipulated that until July 1, 2013, Trace would reside with Ms. McGlade on Mondays and Wednesdays from after school until school the next morning and on alternate weekends from after school on Friday until school Monday morning, and that starting July 1, 2013, Trace would reside with Ms. McGlade during the period of Monday to Wednesday every week and alternate weekends from after school on Friday until Monday morning.
[115] Ms. McGlade admitted that Trace was reluctant to go with her at exchanges for some time after that order. He would cry and want to stay with Ms. Henry. Ms. McGlade would try to calm him by explaining that he would see Ms. Henry again soon. Mr. Henry testified that he said the same thing.
[116] Ms. McGlade testified that she understood that it was initially difficult for Trace to leave Ms. Henry (with whom he frequently travels internationally, and who, according to Ms. McGlade, gives him anything he wants, including his own pony and any toy he points out while in a store) to live with Ms. McGlade (who is a student, working part-time, and supported by Ontario Works), but she persevered in adjusting his expectations.
[117] In May of 2013, at the suggestion of Trace’s teacher who was concerned about possible autism, Ms. Henry paid for a psychological assessment of Trace.
[118] Trace had been exhibiting more unusual behaviours at school that caused his teacher to suggest the assessment. He had a tendency to line up canned goods and other items, he regularly turned bicycles upside down and watched the spokes spin, he was often preoccupied with watching running water, and he had toileting difficulties. His language and social communication milestones were delayed as were his cognitive skills. He continued to not socialize much with peers, and he continued to lack eye contact with caregivers.
[119] The assessor diagnosed Trace with mild to moderate range autism spectrum disorder and made a number of recommendations for caregivers to assist Trace.
[120] In June of 2013, Trace’s first year teacher wrote to Ms. Henry about a regression in Trace’s behavior. She testified that she wrote to Ms. Henry alone, and not to Ms. McGlade as well, because Ms. Henry was funding Trace’s fees for the school and Ms. Henry had always been the school’s main contact.
[121] In the summer of 2013, Ms. Henry made contact with an early interventionist service for York Region for assistance with Trace’s needs. A caseworker, with an honours degree in psychology and a diploma in advance studies in children with special needs, met with Ms. Henry, at Ms. Henry’s home, in August.
[122] In September, the caseworker went to Trace’s school to consult with his teachers. Since then, the caseworker’s work with Trace has taken place at Trace’s school where she observes.
[123] In 2013, she saw Trace every two weeks. When she started, she noted that Trace had a problem sitting and staying in a circle with the other children – he’d run and throw his body into some bean chairs because that is a way for him to seek sensory input. There was also concern that he could not feed himself appropriately and he was not socializing well with peers. He also had language challenges.
[124] At the suggestion of the Montessori school, Ms. Henry hired a one on one early childhood educator to be with Trace in the classroom to assist him. Ms. Henry said that the one on one educator provides Trace with consistency at school and has been a big help.
[125] Once Trace’s one on one educator was placed in the classroom, the York Region caseworker’s visits became less frequent – starting at once every three weeks, and then once a month.
[126] The Henrys both completed an introductory course about autism and then they completed the first level of the Autism Intervener Course offered by the Geneva Centre for Autism in Toronto. Ms. Henry paid for the Geneva course and offered to pay for Ms. McGlade to attend as well but Ms. McGlade said that she would take a course at Kerry’s Place in York Region. Mr. Henry testified that Ms. Henry paid for his course at Geneva but he donated $300 cash (his income from about four shows) to the programme because he liked the programme.
[127] Mr. Henry was asked what techniques he learned at the Geneva course but he could not recall anything specific. He testified, nevertheless, that he suggests techniques to Ms. Henry and Ms. McGlade and added, “I hope they’d do the same for me”.
[128] In the fall of 2013, Trace had trouble adjusting to moving up a level at his school with his peers. His new teacher set up a meeting with the parties and it was agreed that for the fall, Trace would stay in the classroom he had been in the previous year during mornings and spend afternoons in the classroom his peers had moved on to.
[129] In the fall and winter of 2013, Ms. McGlade was a student and working three jobs (Stitch it, East Side Mario’s, and Muchos Burritos). She found that it was very challenging and tiring to have three jobs and care for Trace, but she did her best.
Recent Background (2014)
[130] In January of 2014, Trace transitioned well to the next level at his school on a full-time basis.
[131] In early 2014, Ms. McGlade decided that she wasn’t spending enough time doing “fun” things with Trace because she was so busy, so she made it a priority to regularly do simple things such as go to the park with him, and, subsequently, she has found that he is happier to go with her at exchanges.
[132] Ms. McGlade’s mother and sister testified that Trace is very close to his mother and he does not like being separated from her.
[133] At the time of the trial, Ms. McGlade was working only at Stitch It, because she wants to do well in school to qualify for college.
[134] Mr. Henry would like to take the broadcasting and contemporary media course at Durham College. He is upgrading his English for that purpose and he is preparing to do voice over work and classes at Second City in Toronto. He has been working as a stand-up comic for about nine years. He testified that he does up to two or three shows a week including a show every Tuesday. He said that his income is about $10,000 per year. His financial statement indicates that his income last year was about $7,000 and that his current annual income is about $12,000. He said that he spends his income on food for himself, his cell phone and cable, and Trace’s needs as much as he is able (i.e. clothes and wings at dinner). He said that Ms. Henry supplements his income whenever he needs money.
[135] Ms. Henry testified that Mr. Henry needs a lot of encouragement to finish school.
[136] Mr. Henry said that Trace “didn’t really object” to going with him on at exchanges although “maybe he said ‘no’ once or twice” but “he was not really crying”. He admitted that sometimes Trace wanted to go with Ms. McGlade instead.
[137] Mr. Henry spent about a month last summer working at a comedy festival in Europe. He visited with Trace by Facebook. Trace was with Ms. McGlade or Ms. Henry during that period.
[138] Mr. Henry testified that he took Trace to Niagara Falls and Great Wolf Lodge. He said that he may have forgotten to obtain Ms. McGlade’s consent for those trips.
[139] Ms. Henry has made all of Trace’s appointments with education and health professionals despite encouraging Ms. McGlade and Mr. Henry to take this initiative. She said nothing to Ms. McGlade or Mr. Henry about the need for Trace to have the usual age four immunization to see whether either of them would do anything about arranging it. Six months after Trace turned four, neither of his parents had made arrangements for his immunization, so Ms. Henry did.
[140] Ms. McGlade testified that Trace has “fits” when she refuses to give him what he wants (e.g. chocolate milk). By “fits” she means that he cries, sometimes falls to the floor and moves his arms and legs. She ignores this behaviour and then he calms down and she distracts him with something else. She believes he acts this way because he is used to being given whatever he wants by Ms. Henry.
[141] Mr. Henry testified that he has never seen Trace have a “fit” as described by Ms. McGlade. He said that if Trace is upset, Mr. Henry comes down to Trace’s shoulder level, makes eye contact, and says that Trace can do something else in order to “divert his attention from wrong behaviour”.
[142] Ms. McGlade is currently of the view that she and the Henrys are mostly able to agree about decisions concerning Trace although they do not agree about his hair care or about his foot wear when he is dropped off at school during the winter.
[143] Mr. Henry is of the view that Trace should decide the length and style of his hair. Ms. McGlade doesn’t agree with that but she is willing to abide by his wishes although she believes that Trace’s hair should at least be uniform in length.
[144] Ms. Henry and Mr. Henry are of the view that it is acceptable to drop Trace off for school during the winter in running shoes because he does not have far to go between the car and the school. Ms. McGlade believes that he should be wearing boots.
[145] Ms. McGlade notes, however, that the parties are able to make many decisions jointly and, she points out, they are able to take turns taking Trace to swimming lessons and speech therapy. With the prior agreement of the other parties, Ms. Henry arranged for and pays for the swimming lessons.
[146] Ms. McGlade believes, nevertheless, that Ms. Henry, and sometimes Mr. Henry, communicate with her in aggressive and condescending manner that is inconsistent with the respect she should receive as an adult and a parent of Trace.
[147] She points to a text sent to her by Ms. Henry in January of 2014 that advised her that the school had informed Ms. Henry that Ms. McGlade had neglected to send a sweater with Trace that day and there were no extra pants and underwear on hand at the school for Trace. Ms. Henry’s text asked Ms. McGlade to please take those items to the school and thanked her.
[148] Ms. McGlade also points to a text sent to her by Ms. Henry in February of 2014 that urged her to send fruit with Trace’s school lunches and to read the notes posted by the teacher outside of Trace’s classroom when Ms. McGlade drops him off or picks him up because he was supposed to be dressed in a certain manner two days that month that Ms. McGlade took him to school but he was the only student not dressed appropriately on both dates.
[149] Although Ms. McGlade is of the view that Ms. Henry’s tone was derogatory in those texts, the court does not agree. There may have been a hint of frustration in Ms. Henry’s tone, but it was not out of place.
[150] Ms. Henry had provided Ms. McGlade with plenty of clothes for Trace that she could have sent with Trace that day in January and the parties had agreed to put fruit in Trace’s lunches, and it is Ms. McGlade’s responsibility to read the notes outside the classroom.
[151] Ms. McGlade explained that she finds it quite challenging to be a student, work part-time, and be a parent to Trace.
[152] Undoubtedly, that is a very significant challenge but it is one that she must meet. It is not appropriate nor in Trace’s best interests, for example, for him to be the only child in a classroom who isn’t appropriately dressed on special occasions or to be without proper clothing in the winter.
[153] It may be that Ms. McGlade’s main concern was actually that the teacher was expressing her concern to Ms. Henry instead of Ms. McGlade – but Ms. McGlade could have asked the teacher to communicate with her directly. That has taken place since and Trace’s current teacher now contacts Ms. McGlade by text. In addition, Ms. McGlade currently speaks with Trace’s teacher often when she picks Trace up from school on Mondays, Tuesdays, Wednesdays and alternate Fridays.
[154] Ms. McGlade noted that she now sends fruit to school with Trace every day. She also noted that Ms. Henry provided her with a blender so that she could make fruit shakes for Trace.
[155] Ms. McGlade expressed general concern that teachers at Trace’s school have had a tendency to contact Ms. Henry about issues involving Trace instead of contacting Ms. McGlade. Ms. McGlade feels that this is inappropriate because she is Trace’s mother whereas Ms. Henry is his grandmother. She believes the teachers contact Ms. Henry because Ms. Henry pays Trace’s school fees and because Ms. Henry registered Trace and put herself as the primary contact, Mr. Henry as the secondary contact, and Ms. McGlade as the tertiary contact.
[156] Ms. Henry explained that she put the contacts in that order because Ms. McGlade was still living in Sudbury when she initially registered Trace for summer camp and school. She said that she forgot to change the form when Ms. McGlade moved to York Region.
[157] The court found that the testimony of both of Trace’s teachers indicated a tendency to communicate with Ms. Henry rather than Ms. McGlade, in part because Ms. Henry pays the school fees, in part because Ms. Henry has cultivated an alliance with the teachers, in part because Ms. Henry is a mature and responsible adult, in part because Ms. Henry is very attentive to Trace’s needs and the school’s priorities, and in part because Ms. Henry has a very close relationship with Trace who is always very happy to see her.
[158] Ms. McGlade expressed the same concern about Trace’s one on one classroom early childhood educator although she noted that the one on one educator does contact her with information about Trace after she contacts Ms. Henry. The one on one educator did not testify, so the court had no opportunity to hear her perspective, but it seems likely that the educator contacts Ms. Henry first for the same reasons that the teachers do.
[159] Ms. McGlade also expressed concern about Ms. Henry’s lack of interest in the Vaughan Centre for Autism in that Ms. McGlade had heard about. Ms. McGlade felt it would be helpful for Trace to attend there one day per week because the teachers at the Montessori school and Trace’s one to one educator have no training in autism. Ms. Henry’s response to that suggestion from Ms. McGlade was that she was concerned that the programme might not be appropriate or helpful for Trace and might teach him certain autistic behaviours but, according to Ms. Henry’s testimony, she invited Ms. McGlade to provide her with more information about the programme but Ms. McGlade did not do so.
[160] Ms. Henry’s counsel made a point of drawing the court’s attention to Ms. McGlade’s lack of diligence with respect to sending fruit in Trace’s lunches and not dressing him appropriately on special school dress days. She also drew attention to Ms. McGlade’s non-attendance at several school meetings about Trace and her forgetfulness about sending snow pants with Trace to school on snowy winter days (including twice during the trial).
[161] Ms. McGlade explained that she is very busy with work, her own schooling, and taking care of Trace and, as a result, she sometimes forgets to attend to certain things. She said that she missed a meeting at Trace’s school and forgot to send snow pants with Trace on two occasions because she was in a hurry to get to work or to prepare for court in the morning. She also noted that Ms. Henry had pressed her to attend one of the meetings with Trace’s teacher at a time that was not convenient to Ms. McGlade which easily could have been re-scheduled. The teacher verified later that the meeting could have been re-scheduled easily.
[162] The court is concerned about Ms. McGlade’s failure to ensure that Trace had snow pants when they were needed. Regardless of work or court obligations, her priority must be to ensure that her child is safely dressed.
[163] The court is also concerned, however, by Ms. Henry’s lack of empathy about Ms. McGlade’s work schedule and the meeting time conflict that could easily have been resolved by simply changing the meeting to a time that was convenient to Ms. McGlade. The court finds that Ms. Henry was inflexible and unfairly critical of Ms. McGlade with respect to that meeting.
[164] Ms. McGlade makes a point of helping Trace with his homework from the speech pathologist. She also tends to follow suggestions made by Trace’s teacher. She makes a point of having Trace play with other children to improve his socialization skills. She takes Trace to Sudbury to visit with her family once or twice a month. She gets advice from her mother who has some experience working with children with special needs.
[165] Currently, Ms. McGlade receives $960 per month from Ontario Works and $500 per month from the federal government. She earns just under $200 per month from her part-time job. In addition, Ms. Henry gives her $500 per month and her parents give her around $200 per month.
[166] Ms. Henry pays for all of Trace’s school clothes – including a school uniform and a snowsuit. Ms. McGlade purchases Trace’s other clothes from the stipend provided by Ms. Henry.
[167] Ms. McGlade testified that she would not be able to survive financially in York Region without the voluntary assistance she is receiving from Ms. Henry and her parents.
[168] Ms. McGlade testified that she did not feel depressed at the time of the trial because her depression is situational and she was feeling well.
[169] Ms. McGlade testified that she follows all of the psychological assessor’s recommendations to assist Trace to meet his autism challenges. She uses the “first – then” method, she has pictures around her home as teaching tools, she has a “stop” sign at her door, she uses a blackboard for writing words, she gives Trace lots of warnings before transitions between activities, and she provides consistent routines. She signed up at Kerry’s Place, an autism support centre for parents, and supports the work of the speech pathologist and early intervention team. She goes to all of Trace’s paediatrician appointments with the Henrys.
[170] Ms. Henry testified that she understands that Trace is a visual learner. She also understands that he likes to feel different textures. She noted that consistency is important for Trace and noted that if change is anticipated (e.g. to the content of his lunch) it is good to give him a choice between alternative changes rather than simply make a change. She also mentioned the “first…then” technique which she employs. She noted that every room in her home has posters with pictures to help Trace, although he does not need to rely on the pictures as much now because he has learned new behaviours. She uses the countdown method before Trace’s bedtime.
[171] Mr. Henry was asked what techniques he learned during Trace’s speech therapy sessions but he could not give a specific answer. He said that at home he tries to teach Trace how to play basketball using step by step instructions (“dribble, step back, then shoot”) and he tries to get Trace to repeat words in songs. He also said that they play Simon Says at a park.
[172] Mr. Henry testified that he picks up Trace from school on Thursdays and that sometimes he drives Trace to school on Friday mornings. He said that on the Henrys’ alternate weekends he spends Saturdays with Trace in Whitby unless he has to work, in which case Trace spends Saturday with Ms. Henry in Aurora. He said that he and Trace visit relatives in the Whitby area, they play lots of basketball, they clean the fish tank at the house, he takes Trace with him when Mr. Henry gets his hair cut, and they go places like the zoo, park, and aquarium. He said that Trace tends to be with Ms. Henry overnight Saturday nights and she takes him to church on Sunday mornings. He testified that he and Trace watch football on television in Whitby on Sunday afternoons and he takes Trace to Ms. Henry’s home in Aurora Sunday nights so he can take Trace to school on Monday mornings.
[173] He said that Ms. Henry parents him about being a parent and that she makes appointments for Trace because Mr. Henry would forget to do so.
[174] He said that he and Ms. Henry do not always agree about decisions concerning Trace (e.g. she feels that Trace’s hair should be cut and Mr. Henry thinks that Trace should attend a public school) but he accepts his mother’s view that the Montessori school is best for Trace. He stated that he does not currently disagree with Ms. Henry about any significant parenting issues and that they make decisions together.
[175] Trace’s teacher since January of 2014 testified that Trace has been doing “amazingly well” at school since September. She noted that a gate needed for Trace in June of 2014 was no longer required. She is seeing Trace have conversations with peers and initiate conversations with teachers. She said that he is very bright academically and his math skills are good although his reading is not as strong. She finds that Trace’s one on one educator keep Trace on task but notes that Trace does not need the one to one educator present all day any longer – she now does not attend for the first half hour of the school day. The teacher noted that Trace has a very good relationship with his one on one teacher and his teacher. She observed that Trace used to have a “meltdown” when he received a timeout from his one on one educator but now he complies and apologizes for his behaviour. She noted that most of the time Ms. McGlade picks up and drops off Trace. Ms. Henry or Mr. Henry attend on Thursdays and Fridays. The teacher noted that Ms. Henry has many questions about Trace’s progress whereas Ms. McGlade has asked a couple of times how Trace is doing. She added, however, that there are no longer issues about Trace’s behavior that require discussion with his caregivers. The teacher noted that when Ms. Henry picks up Trace, they celebrate seeing each other – she gets down to his level and he runs into her arms. She observes a similar reaction to Mr. Henry or Ms. McGlade – maybe a kiss on the cheek. She commented that Trace’s favourite word is “Nana” which is his name for Ms. Henry.
[176] She also noted that when a non-caregiver came to pick up Trace from school the previous week when the parties were at court, Trace cried and yelled “mommy” and “nana”.
[177] Trace’s current teacher commented that Trace may stay in Montessori school until and including grade eight as long as he is funded. She noted that the school is set up for children with learning disabilities and disadvantages as well as children without such challenges. All of the school’s materials are designed to work with senses. She is confident that the school meets Trace’s needs. Both of his teachers demonstrated an awareness of certain autism teaching techniques such as “first….then” and posters and his current teacher commented that mild autism is best addressed by working with the senses and she observes Trace coming out of a lack of awareness. She believes that the Montessori process is the best for Trace at the primary stage. She notes that he is very happy at school and constantly singing. He loves “being a bluebird” and picking colours and orchestrating other children to “flap their wings”. She stated that a change of schools would be detrimental to Trace on all aspects of his development.
[178] She noted that Trace is always clean and in uniform when dropped off at school.
[179] All of the parties and Trace’s teachers agree that Trace has been progressing very well since he was diagnosed with autism spectrum disorder in May of 2013. He now makes good eye contact with caregivers, he is starting to socialize with peers, he is learning behaviours such as proper toilet use, and he is less restless in class and more attentive. His language and motor skills have improved dramatically.
[180] Ms. Henry testified that she has Trace’s vaccination card but she would give a copy to Ms. McGlade or Mr. Henry if they asked. She said Ms. McGlade told her that it was best for Ms. Henry to keep the card because Ms. McGlade might lose it. Ms. Henry added that Ms. McGlade has Trace’s health card even though Ms. McGlade has lost Trace’s health card three times and she lost his birth certificate once.
[181] The York Region caseworker now visits Trace’s school once every six to eight weeks and calls Ms. Henry to find out how he is doing at her home. The caseworker will continue to monitor Trace’s schooling until he is six years old. She expressed the view that the one on one educator is very helpful and dedicated to Trace’s goals and assisting the classroom teacher. In her view, the one on one educator is an essential team member with respect to Trace’s progress and meeting his needs.
[182] The caseworker was at the school in November of 2014 and observed Trace addressing students, teachers, and the caseworker by name. He also waved at teachers and they waved back. The caseworker was very impressed by Trace’s improved socialization. She was also impressed with improvements in his language skills. He now expresses himself in full sentences and engages in reciprocal conversations with peers. The caseworker indicated that Trace should continue with speech therapy because the average language skills of his peer group are increasing over time. She also observed that Trace is eating better and dressing himself better. He also can do an activity for fifteen minutes before needing a change. She also noted that his fine motor skills have improved dramatically.
[183] The caseworker mentioned that she has the sense that Ms. McGlade feels left out from the caseworker’s involvement with Trace even though she provides copies of her notes to all three parties and is open to communication from any of them.
[184] At the time of trial, the caseworker was in the process of updating her annual assessment of Trace but was waiting for his residence schedule to be determined because she wanted to know the identity of his caregivers. The court has some difficulty understanding her position given that the only live issue about Trace’s residence schedule is whether he will be with the Henry’s one more day per week. Regardless of that decision, Trace will continue to reside with the same caregivers.
Positions of the Parties
[185] Ms. McGlade believes that she should have sole decision making authority for Trace because she is his mother, whereas Ms. Henry is a grandparent, and, since separation, Mr. Henry has abdicated his decision making authority as Trace’s father to Ms. Henry, except for his strongly held view that Trace should be in charge of his own hair length and style. Ms. McGlade testified that it frequently feels to her as if she had the child with Ms. Henry, rather than with Mr. Henry.
[186] Ms. McGlade submits that a claim for sole custody by a biological parent has a preferential status over a custody claim by anyone else, including a grandparent, for joint custody.
[187] Ms. McGlade believes that her proper role as Trace’s mother is inappropriately suppressed by Ms. Henry’s overwhelming directive influence over Trace’s life. Ms. McGlade suggests that she needs sole custody or she will always give in to Ms. Henry’s views because she does not have the mental, physical, or financial resources to oppose Ms. Henry, who always gets her way.
[188] Ms. McGlade wants peace and no arguing. She says she is afraid to make suggestions because an argument will start with Ms. Henry. She believes that joint custody will result in endless court actions and that sole custody is the only way to avoid every issue becoming a dispute with Ms. Henry.
[189] She also believes that Ms. Henry focuses entirely on Ms. McGlade’s mistakes instead of what she does right.
[190] Ms. McGlade notes, for example, that she took care of Trace for an extended period while she lived in Sudbury and she accessed family resources there, and she has been co-operative with the recommendations of Trace’s healthcare providers and his speech therapist. Furthermore, she has fought to maintain her parental role in Trace’s life by pursuing legal recourse, committing herself to manage her situational depression by accessing mental health resources, and on her own initiative accessed various services to get her life on track for Trace’s benefit. She submits that she has never relinquished her parental role in making decisions for Trace and she has never withdrawn completely from participating in his care. She does not share Mr. Henry’s reservations about her not having the ability to parent Trace independently, and she has plans in place for Trace’s care should Ms. Henry stop assisting with Trace’s care, even though that is not anticipated.
[191] She concedes that she missed a small number of meetings and has forgotten some clothing items for Trace on occasion, but emphasizes that she generally manages to ably juggle various employments and caring for Trace while pursuing her education. She underlines that Ms. Henry exhibited very little interest in trying to schedule the meeting with the teacher at a better time for Ms. McGlade in their text exchange in Exhibit 7.
[192] In short, she believes that neither Ms. Henry nor Mr. Henry support her role as Trace’s mother.
[193] Moreover, she underlines that everyone agrees that Trace has been doing very well at school since the order of Rogers J. on May 14, 2013, which allowed Trace to reside primarily with her. And she notes that she has provided a stable home environment for Trace since that date. She submits that she has shown a present ability to meet Trace’s needs – housing, emotional, educational – and lead a responsible lifestyle for a significant period of time. She notes that she seeks and accepts assistance from various resources, including Ms. Henry, whose resources far exceed her own. She emphasizes, however, that acceptance of help from a better resourced person is not a surrender of custodial rights to that person. Ms. Henry, for example, testified that she needed and accepted help as a young mother from her parents, but they did not seek custody of her children.
[194] As well, Ms. McGlade suggests that she has consistently prioritized Trace’s interests over her own interests. She submits that examples include: her consent to Kaufman J.’s order of December 17, 2012 when she did not have a home for Trace, and her consent to all requests by Ms. Henry to travel and spend time with Trace.
[195] She notes that the Henrys, on the other hand, did not agree to increase her time with Trace once she had a home, a vehicle, government assistance, and employment in place.
[196] She concedes that Ms. Henry is willing and able to provide for Trace, but she is concerned that Trace is spoiled by Ms. Henry, which is not in his best interests. She is concerned, for example, that the “fits” that Trace has exhibited, while decreasing over time, are a product of Ms. Henry’s overindulgence of Trace’s wishes. She suggests that Trace will learn financial responsibility, sacrifice for financial reasons, and the reality of working for a living, from her, not from Ms. Henry, and that these are important lessons for Trace.
[197] She is also concerned that Ms. Henry, by paying for various services, has created alliances with service providers that serve to marginalize Ms. McGlade’s role as a parent and undermine her involvement in Trace’s care. She submits that the way Ms. Henry does this is disempowering to her and notes that Ms. Henry does nothing to counteract that effect. She notes, for example, that Ms. Henry initiated contact with the York Region early intervention worker, met with the worker at Ms. Henry’s home and then at the school with Trace’s educators, forming a team, without Ms. McGlade’s involvement. Furthermore, Ms. Henry signed the team report on July 4, 2013 at Exhibit 24 as Trace’s “parent/guardian” even though Rogers J.’s order of May 14, 2013 requires signed consents from all the parties for services for Trace.
[198] She underlines that Ms. Henry enrolled Trace for Montessori school and speech therapy and observes that those service providers refer to him as Trace “Henry” in a number of significant documents; Exhibit 16 (meeting notes produced by school on November 5, 2012), Exhibit 15 (letter produced by teachers on December 4, 2012), Exhibit 22 (letter produced by speech clinic on December 5, 2012), Exhibit 19 (letter produced by teacher on March 1, 2014), and Exhibit 3 (letter produced by speech therapist on May 2, 2014) although Trace’s legal surname was McGlade from birth until the parties consented, on the first day of the trial, to a final order changing his surname to McGlade-Henry.
[199] Ms. McGlade submits that Mr. Henry pursues his unprofitable career goals while very often delegating his parental responsibilities to Ms. Henry who is always prepared to parent on Mr. Henry’s behalf. She underlines that he carries almost no financial or other responsibility for Trace – and pays no child support. She contrasts his behaviour to her own where she subordinates her educational goals to caring for Trace.
[200] She submits that the only decision Mr. Henry has prevailed on against Ms. Henry’s wishes is allowing Trace to decide about his hair style and length which causes inconvenience for Ms. McGlade who cares for Trace day to day. She argues that the Henrys act in concert to overrule her on any decision and will continue to do so.
[201] She underlines that Mr. Henry conceded that he has made no independent effort to access services or supports for Trace and that he often refers Ms. McGlade to Ms. Henry to obtain information about Trace’s services.
[202] She testified, however, that she would be willing to agree to Trace being with the Henrys on alternate Wednesdays after school and she has no objection to Ms. Henry taking Trace on Disney cruises during March breaks. She does not agree, however, to Trace being with the Henrys every Wednesday after school.
[203] Mr. Henry testified that he does not believe that Ms. McGlade would be capable of making all of the arrangements for Trace that Ms. Henry makes. He testified that neither he nor Ms. McGlade could meet all of Trace’s needs because they are young and need to grow and because they are not in a financial position to meet Trace’s needs.
[204] Mr. Henry said that all three parties sharing joint parenting would “be a dream” for him because his mother has been part of Trace’s life from the start, Trace has done much better than he could have done without her involvement, and Trace deserves her assistance for the rest of his life. He added that he is the product of a very close mother-son relationship so he understands that it is also very important for Ms. McGlade to have a role in Trace’s life.
[205] Ms. Henry testified that she told Ms. McGlade that she will continue to care for Trace whenever he is available in the future regardless of the result of the trial and that Ms. McGlade responded that she would not prevent Ms. Henry from having time with Trace regardless of the result of the trial.
[206] Ms. Henry testified that she understands that Ms. McGlade and Mr. Henry are Trace’s mother and father and she has never tried to replace Ms. McGlade as Trace’s mother. She noted that she has been involved with Trace since the start and urged the court to allow her to continue her established role with Trace. She said that she has made very many arrangements for Trace and she is worried that he will get “lost in the system” if her role is reduced and she wants him to be “all he can be”. She observed that she puts forth an effort every day for her children and that if Ms. McGlade and Mr. Henry were like that for Trace, there would be no necessity for a court to decide custody. She does not believe that her constant involvement has enabled Ms. McGlade and Mr. Henry to rely on her to take care of Trace.
[207] Ms. Henry agrees that Trace has progressed since May of 2013 but she submits that there is no one cause that can be isolated to explain his success – such as Ms. McGlade’s claim that his success is a result of her having primary care.
[208] She submits that she has always asked Trace’s parents for permission before she enrolls Trace into anything. She notes that early intervention was recommended by the school.
[209] She underlines that she and Mr. Henry are seeking joint custody and they both have been involved in attending meetings with service providers and transporting Trace to and from school, service providers, and swimming lessons.
[210] She submits that the text at Exhibit 7 is example of her wanting Ms. McGlade to attend a meeting at the school rather than trying to prevent Ms. McGlade from attending.
[211] She submits that she has been the most constant person in Trace’s life even though he has been residing with Ms. McGlade more than half the time since May of 2013. She submits that if that constancy is changed by her not having custody then Trace’s continued progress will be threatened.
[212] She suggests that Ms. McGlade would have difficulty coping with full decision making for the first time – especially with a young child with special needs.
[213] She underlines that the status quo for all of Trace’s life has been de facto joint custody because all of the parties have participated in all significant decisions such as, for example, the parental access schedule when Trace was living with Ms. Henry.
[214] With respect to joint custody, she submits that the parties have had no disagreement about; Trace’s religion, his attendance at Montessori school, Trace residing with Ms. Henry when there was a heat issue at the Mount Albert house, health care, speech therapy, having a psychological assessment, having a one on one educator with Trace in class, Trace’s geographic area of residence, and Trace’s extracurricular activity – swimming – and they take turns taking him to swimming. She suggests that this shows that Ms. McGlade is not being excluded from decision making.
[215] She submits that for Ms. McGlade to obtain sole custody she would have to show that sole custody would be better for Trace than the current arrangement.
[216] Ms. Henry suggests that although Ms. McGlade participates in the current arrangement, Ms. McGlade simply went along with what was in place, as opposed to organizing the current arrangement.
[217] Ms. Henry submits that buying a home for Ms. McGlade and Mr. Henry and allowing them to pick out their own furniture showed support for Ms. McGlade’s role as a mother and she notes that she was under no obligation to do that.
[218] She underlines that she arranged for a lactation consultant and bought two breast pumps to support Ms. McGlade’s maternal wish to breast feed Trace.
[219] She submits that she was involved in Trace’s life more than most grandparents right from the start – even before he was born.
[220] She notes that she got up for night feedings and diaper changes. And, further, when Ms. McGlade returned to Whitby, Trace spent many overnights with Ms. Henry.
[221] She mentions that she gave Ms. McGlade $5,000 to spend on herself – thus supporting Ms. McGlade as a mother.
[222] She notes that she has made all of Trace’s doctor’s appointments, although, mostly, all three parties have attended the appointments.
[223] She observes that when Ms. McGlade called her from Sudbury about her disagreement with her own mother, Ms. Henry went to Sudbury, helped Ms. McGlade find an apartment for herself and Trace, paid the rent for a year, and paid for furniture chosen by Ms. McGlade; all to support Ms. McGlade’s role as a mother.
[224] She notes that when Ms. McGlade wanted to move south at the end of that stay in Sudbury, Ms. Henry helped her find a place to live, provided her with free accommodation, paid to prepare the house for Ms. McGlade and Trace, registered Trace for camp and school while Ms. McGlade was still in Sudbury, and provided supplies; all in support of Ms. McGlade’s role as a mother.
[225] She mentions that she gave Ms. McGlade a blender so she could make fruit shakes for Trace and she showed Ms. McGlade how to do that.
[226] She submits that she was justified in taking back Mr. Henry’s car given the evidence that marijuana had been used in the vehicle, and evicting Ms. McGlade from the Mount Albert house for the same reason.
[227] She underlines that her involvement in Trace’s life has never waned – she has been with him a great percentage of the time since his birth.
[228] She submits that joint custody is appropriate where the level of conflict between decision makers is not sufficiently high to be contrary to the best interests of the child and she suggests that that is the present situation.
[229] She submits that there are not any serious communication problems between the parties. She concedes there have been some inappropriate communications between Mr. Henry and Ms. McGlade but she emphasizes that those were very few over time and there is, at present, no evidence of any on-going communication issue as all three parties are co-operating about taking Trace to swimming and speech therapy.
[230] She underlines that the texts in Exhibit 30 show positive communications between herself and Ms. McGlade.
[231] She submits that given Trace’s special needs, having three caregivers share joint custody is beneficial for him. She suggests that for the court to rule that Ms. McGlade should have sole custody, the court would have to find that Ms. McGlade was a better caregiver than all three parties combined.
[232] She emphasizes the fact that neither Ms. McGlade nor Mr. Henry did anything about arranging Trace’s age four immunizations and submits that shows the importance to Trace of having all of them jointly involved in his care. He benefits from them all being involved, she argues, and he should continue to do so.
[233] She suggests that there has been no need to follow up on Ms. McGlade’s suggestion about the Vaughan Centre for Autism because Trace is doing so well that he does not need more resources.
[234] In the final analysis, she submits that it is in Trace’s best interest to have a more mature caregiver who is always available to help out.
[235] She also argues that biological parents do not have preferential status over anyone else, including grandparents, in relation to custody or joint custody of their children.
Law in relation to Custody and Access
[236] Section 24(1) of the Ontario Children’s Law Reform Act (CLRA) requires that applications in respect of custody of and access to a child shall be determined on the basis of the best interests of the child in accordance with the balance of section 24.
[237] Section 24(2) stipulates that the court shall consider all the child’s needs and circumstances, including, relevant in this case;
• the love, affection and emotional ties between the child and each person entitled to or claiming custody of or access to the child,
• the child’s views and preferences, if they can reasonably be ascertained,
• the length of time the child has lived in a stable home environment,
• 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,
• the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing,
• the permanence and stability of the family unit with which it is proposed that the child will live,
• the ability of each person applying for custody of or access to the child to act as a parent,
• the relationship by blood between the child and each person who is a party to the application.
[238] Section 24(3) stipulates that a person’s past conduct shall be considered only if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent.
[239] Some additional guidance is also provided by the Ontario Child and Family Services Act (CFSA) (Section 37(3)) which stipulates that when a person is directed under that legislation to make a determination in the best interests of a child, the person shall take into consideration the following circumstances relevant to this case,
• the child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs,
• the child’s physical, mental and emotional level of development,
• the religious faith, if any, in which the child is being raised,
• the importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family,
• the child’s relationships and emotional ties to a parent, relative, other member of the child’s extended family or member of the child’s community,
• the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity,
• the child’s views and wishes, if they can be reasonably ascertained,
• the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent,
• any other relevant circumstance.
[240] Section 20(1) of the CLRA stipulates that except as provided otherwise in that Act, the father and mother of a child are equally entitled to custody of a child.
[241] In Re Moores and Feldstein et al 1973 CanLII 535 (ON CA), [1973] O.J. No. 2113 (O.C.A.), Dubin J.A. reviewed the development of the law in Ontario with respect to competing claims for custody of children between biological parents and other persons.
[242] His Lordship noted that English common law had developed a preference for biological parents seeking custody whereas in English equity the test was simply the best interests of a child.
[243] Dubin J.A. observed that the English common law principle was initially adopted by the Supreme Court of Canada.
[244] In Hepton v. Maat 1957 CanLII 18 (SCC), [1957] S.C.R. 606 (S.C.C.), for example, Cartwright J. stated that the biological parents of a child have a right to custody which could only be lost by abandoning the child or otherwise conducting themselves in a manner that established that it would be improper for the child to be with them and that effect must be given to their wishes unless “very serious and important reasons” require that, having regard to the child’s welfare, they must be disregarded.
[245] Dubin J.A. noted, however, that, by then, the law in England was moving toward the equity position.
[246] His Lordship cited McKee v. McKee 1951 CanLII 305 (UK JCPC), [1951] A.C. 352, wherein Lord Simonds stated:
“It is...the law of England…that the welfare and happiness of the infant is the paramount consideration in questions of custody…To this paramount consideration all others must yield.”
[247] Similarly, Lord Justice Danckwerts, in Re Adoption Application 41/61 [1963] Ch. 315, stated,
“There can be only one “first and paramount consideration” and other considerations must be subordinate. The mere desire of a parent to have custody of his or her child must be subordinate to the consideration of the welfare of the child, and can be effective only if it coincides with the welfare of the child. Consequently, it is not correct to talk of a pre-eminent position of parents in relation to custody.”
[248] Dubin J.A. observed that these principles were affirmed as the law in England by the House of Lords in J. v. C. [1970] A.C. 668 wherein Lord MacDermott stated,
“…that means an end of any presumption in law respecting parental rights and wishes so far as the test of welfare is concerned”.
[249] Dubin J.A. was troubled by the seemingly formulaic approach taken by the Supreme Court of Canada and distinguished the Supreme Court’s decisions on the basis that they related to factual contexts where the Court was satisfied that a return of the children to their biological parents would mean the children were being returned to a stable family unit where the welfare of the children was assured, or the case was so evenly balanced that a demonstrated and unimpaired bond of affection should prevail. His Lordship concluded, therefore, that the Supreme Court had not intended to lay down a general formula to apply in custody contests between biological parents and other persons, but, rather, it is the duty of courts to view all the circumstances relevant to what is in the interest of the child.
[250] His Lordship concluded in that case,
“In my view, since the evidence does not show that the child will benefit by the mere fact of its blood relationship with its mother, it cannot be said that the welfare of the child in its broadest sense will best be served by its being returned to her.”
[251] Some years later, in King v. Low 1985 CanLII 59 (SCC), [1985] S.C.J. No. 7, the Supreme Court expressed doubt about the factual distinction drawn by Dubin J.A. in relation to the Supreme Court’s earlier jurisprudence about custody contests between biological parents and other persons, but, nevertheless, McIntyre J. speaking for the court observed,
“It seems to me indisputable that there has been a significant move away from reliance upon the parental preference of the common law….This trend has relied for its justification on the equitable parens patriae jurisdiction of the Court which has elevated the concept of the welfare of the child to the paramount position.”
[252] McIntyre J. concluded,
“In my view, which I find supported in modern authority in this country and in the United Kingdom: see Re Moores and Feldstein….and J. v. C. [1970] A.C. 668 (H.L.)….the Court in questions of contested custody, including contests between a natural parent and adoptive parents, must consider the welfare of the child the predominant factor and give it effect in reaching its determination.”
[253] McIntyre J. gave the following guidance,
“…the dominant consideration to which all other considerations must remain subordinate must be the welfare of the child. That is not to say that the question of custody will be determined by weighing the economic circumstances of the contending parties. The matter will not be determined solely on the basis of physical comfort and material advantages that may be available in the home of one contender or the other. The welfare of the child must be decided on a consideration of these and all other relevant factors, including the general psychological, spiritual and emotional welfare of the child. It must be the aim of the court, when resolving disputes between rival claimants for the custody of a child, to choose the course which will best provide for the healthy growth, development and education of the child so that he will be equipped to face the problems of life as a mature adult. Parental claims must not be lightly set aside, and they are entitled to serious consideration in reaching any conclusion. Where it is clear that the welfare of the child requires it, however, they must be set aside.” [emphasis added]
[254] Although the Supreme Court considered the same issue in Droit de la famille – 320 (sub. nom. Charron v. Vignaux-Fines) 1987 CanLII 20 (SCC), [1987] 2 S.C.R. 244, the analysis involved judicial interpretation of the Quebec Civil Code and, therefore, is not of assistance.
[255] Does the CLRA modify the principle set down by McIntyre J.?
[256] Section 19(a) of the CLRA sets out the purpose of its custody provisions, relevant to this discussion, as follows,
“to ensure that applications to the courts in respect of custody….for children will be determined on the basis of the best interests of the children.”
[257] Neither this section nor any other section of the CLRA mentions a custodial preference for biological parents. Yet, section 48(2) states,
“As between a parent of a child and a person who is not a parent of a child, the parent has preferential treatment to be appointed by a court as a guardian of the property of a child.”
[258] Thus, if a custodial preference for biological parents had been intended by the legislature, one would think a similar provision would have been promulgated.
[259] In fact, as set out above, sections 24(1) and (2) taken together stipulate that determination of a child’s best interests shall include consideration of a number of factors including, per section 24(2)(h),
“the relationship by blood or through an adoption order between the child and each person who is a party to the application”.
[260] Thus, under the CLRA, consideration of whether a party is a biological parent of a child is but one of a number of factors a court must consider in determining the best interests of a child.
[261] The same conclusion was reached by the Ontario Court of Appeal in Law v. Siu 2009 ONCA 61, [2009] O.J. No. 245.
[262] In short, therefore, the principle set down by McIntyre J. has not been modified by statute in Ontario.
[263] Nevertheless, it may be, in a given case, depending on all of the other factors, that the effect of section 24(2)(h) could be that a party’s biological connection to a child might effectively be the deciding factor in relation to the child’s best interests and, therefore, custody.
[264] An example of that effect can be found in Vanderhoek v. Stark [1999] O.J. No. 4479 wherein Aston J. found that, having regard to the specific factors enumerated in section 24(2), there was no basis on the evidence at trial, to prefer one side or the other, because any advantage to each side was effectively offset by an advantage on the other side. Aston J. found that the factor that tipped the scales was the closer degree of blood relationship between the child and his biological parent compared to the more distant degree of blood relationship of the biological grandparents. Aston J. was of the view that this difference of degree was not specifically enumerated as a factor under section 24(2) but could be considered because section 24(2) is not an exhaustive list of factors relevant to the best interests of a child.
[265] While this court is respectfully of the view that the degree of blood relationship is a factor enumerated under section 24(2)(h), the effect is the same.
[266] Accordingly, Ms. McGlade and/or Mr. Henry do not have general preferential custodial status over Ms. Henry simply because they are the biological parents of Trace, but the difference in their blood relationships with Trace will be one of the factors considered by the court in determining Trace’s best interests. Nevertheless, Ms. McGlade’s claim for sole custody will be given serious consideration because she is a biological parent of Trace, and Mr. Henry’s claim for joint custody will be given serious consideration for the same reason.
[267] The law also indicates that grandparents should not be given preference in relation to custody solely because they are more mature, have more parenting experience, and have access to greater material resources than biological parents, because, otherwise, grandparents would often be in a favoured position compared to adequate biological parents, and the closer blood relationship between adequate natural parents and their children would, in many cases, be susceptible to being outweighed by those considerations (see, for example, M.(A.) v. P.(L.R.) [1995] S.J. No. 290 (Sask. Q.B.)).
[268] As between Ms. McGlade and Mr. Henry, the court will bear in mind section 20(1) of the CLRA which stipulates, “Except as otherwise provided in this Part, the father and the mother of a child are equally entitled to custody of the child”.
[269] None of these imperatives imply, however, that Ms. Henry’s claim for joint custody should not be given serious consideration. In fact, in all of the circumstances of this case, her claim also deserves serious consideration.
Custody Factors
Love, Affection and Emotional Ties with Trace
[270] It is obvious from the evidence that Trace has a very strong bond with Ms. McGlade and with Ms. Henry.
[271] When a third party arrived to pick him up at school recently, he screamed, “mommy” and “nana”, referring to Ms. McGlade and Ms. Henry.
[272] In relation to Ms. Henry, he has told his teacher that his favourite word is “nana”. When Ms. Henry picks Trace up from school there is celebration of love.
[273] Both women have been very involved with Trace’s upbringing since before his birth and Trace has spent a great deal of time with each of them.
[274] Trace has a strong bond with Mr. Henry. He is happy to have Mr. Henry pick him up at school, just as he is happy to be picked up by Ms. McGlade. He enjoys spending time with Mr. Henry and he enjoys their activities together.
[275] Mr. Henry has also been involved with Trace’s upbringing since before his birth, although not as involved as the two women. Trace has spent a significant amount of time with Mr. Henry, but not as much time as he has spent with his mother and grandmother.
[276] All three parties have a very strong love for Trace.
Trace’s Views and Preferences
[277] Trace’s views and preferences are unknown to the court. Given his age, that is not surprising.
Length of Time Trace has lived in a Stable Home Environment
[278] Since Rogers J.’s order of May 14, 2013, made a year and half prior to the trial, Trace has mainly resided with his mother. Her testimony indicates that she has provided him with a stable home environment throughout that eighteen month period and there was no evidence to the contrary.
[279] During the same period, Trace resided with Ms. Henry and Mr. Henry for less than half the time. Based on their evidence, the court finds that Trace spent most of that time with Ms. Henry rather than with Mr. Henry. Their testimony indicates that they provided him with a stable home environment throughout that period and there was no evidence to the contrary.
[280] Prior to May 14, 2013, the court finds that Trace was living mainly with Ms. Henry for a period of about ten months after Ms. McGlade arranged to move to Mount Albert. During that period, Ms. Henry provided Trace with a stable home environment.
[281] Ms. McGlade had some difficulty providing Trace with a stable home environment while she was living in Mount Albert but she established such an environment for him early in January or February of 2013.
[282] Before that, she and Ms. Henry provided stable home environments for Trace for about a year while Trace was residing with Ms. McGlade in Sudbury and, mainly, with Ms. Henry in Whitby, with a regular exchange every two weeks.
Provision of Guidance, Education, the Necessaries of Life, and Trace’s Special Needs
[283] Ms. McGlade has accessed service providers for Trace (Healthy Babies, paediatrician in Sudbury, speech pathologist in Sudbury, early interventionist in Sudbury, 360 Degree Kids, Ontario Works) and she has engaged in counselling to address situational depression so that she can work, study, and provide for Trace. At times, she has worked several jobs concurrently to provide the necessaries of life for Trace.
[284] Ms. McGlade has been teaching Trace that he should not expect to obtain everything he wants. Whether her guidance in this regard is simply the same guidance that is generally helpful in preparing children for the path to adolescence and adulthood, or whether this guidance is particularly important for Trace because Ms. Henry and Mr. Henry take a different approach, it is important and helpful for Ms. McGlade to be providing this guidance. Undoubtedly, it has not been easy for Ms. McGlade to take this position, particularly in view of Trace’s special needs, and because he is likely treated in an overindulgent manner by Ms. Henry, but the court finds that she has persevered and Trace is gradually accepting the truth of this important value, as demonstrated by the reduction in his “fits”.
[285] Ms. McGlade has been very supportive of the steps taken by Ms. Henry in relation to Trace’s education and special needs and the court finds that she has done her best to advance his education despite the challenges of being a part-time student, part-time worker, and having a limited income, which have caused her to make some mistakes. Those mistakes include not dressing Trace appropriately for special dress-up days at school and not always providing him with fruit with his lunch or with appropriate extra clothes. Those mistakes need to be addressed but the court finds that she is capable of doing that and willing to learn from her mistakes.
[286] Ms. McGlade, on her own initiative, suggested enrolling Trace in the Vaughan Centre for Autism one day per week. Unfortunately, Ms. Henry showed no real interest in investigating that possibility which discouraged Ms. McGlade from taking the idea any further.
[287] The court would have been interested in learning about the Vaughan programme and does not understand why Ms. Henry was not interested as well. Ms. Henry’s testimony that she doesn’t see the need to look into the programme because Trace is doing very well in his current programme is not a satisfactory answer. Ms. Henry has the necessary time and personal resources available to investigate the programme and, in the court’s view, she should do so rather than simply accepting the status quo if there might be a useful supplemental programme available. Ms. McGlade makes a valid point that the Montessori teachers and the one on one educator with Trace at his school are not trained in autism spectrum disorder, although they suggested the psychological assessment and have been collaborating with the early interventionist worker from York Region.
[288] Otherwise, however, Ms. Henry has been the moving force behind enrolling Trace in camp, school, church, and extracurricular activities. She has paid for those activities, as required, and she paid for Trace’s psychological assessment and she pays for his speech therapy. Further, she hired and pays for Trace’s one on one classroom educator.
[289] In addition, she has been remarkably financially generous with her support for Ms. McGlade and Trace. She bought a house and furniture for them and Mr. Henry in Whitby and paid the household expenses. She gave Ms. McGlade $5,000 with which to “pamper herself” when she was feeling depressed. She helped Ms. McGlade find an apartment in Sudbury and paid the lease for a year and paid for furniture chosen by Ms. McGlade. She provided Ms. McGlade with the use of Mr. Henry’s car and sent her a monthly stipend of $200 per month in Sudbury. She helped Ms. McGlade find a home in York Region and renovated the property so that Ms. McGlade and Trace could live there expense-free while she provided Ms. McGlade with a monthly stipend of $500, continued free use of Mr. Henry’s car, and free use of a cell phone.
[290] All of this financial support from Ms. Henry very significantly assisted with the provision of education and the necessaries of life for Trace and addressing his special needs.
[291] Both Ms. McGlade and Ms. Henry modified their home environments in accordance with recommended techniques to teach appropriate home behaviours to children with autism spectrum disorder. They both demonstrated an interest in, and awareness of, such techniques.
[292] The evidence does not indicate that Mr. Henry has been as involved with understanding autism teaching techniques although he did accompany his mother to two programmes about autism and gained some understanding about the disorder.
[293] Ms. Henry has made all of Trace’s professional caregiver appointments in York Region. Mr. Henry has made no effort to do so and considers himself to be incapable of doing so because he will forget. Ms. McGlade has not done so but she did raise the subject of the Autism Teaching Centre and she made appointments for Trace while they were residing in Sudbury.
[294] Ms. Henry has travelled extensively with Trace and he likely learns from those trips.
Proposed Plan for Trace’s Care and Upbringing
[295] The parties’ focus during the trial was on Trace’s current challenges and circumstances and Trace’s present and historical care.
[296] It seems reasonable to infer from Ms. McGlade’s evidence that she intends to continue working part-time and studying part-time in the short and medium term and being involved in Trace’s life, health, education, and activities, and related decision making, as much as much as she can.
[297] She would like to be the final decision maker for all major decisions concerning Trace because she is his mother, she loves him very much, and she believes that is her responsibility.
[298] She would like to enroll Trace in the Vaughan Centre for Autism for a day per week so he can have some regular exposure to professionals trained to assist children with autism.
[299] She has contingency plans in place in the unlikely event that Ms. Henry withdraws her significant support for Trace.
[300] It seems reasonable to infer from Ms. Henry’s evidence that she intends for Trace to continue at his current Montessori school until he completes grade eight because she believes that the programme and teachers there are quite beneficial for Trace.
[301] It is also seems reasonable to infer that she would like Trace to reside with her as much as possible and that she will continue to access religious, health, education services and extracurricular activities for him, as well as travel, as much as she can.
[302] It is also reasonable to infer from Mr. Henry’s evidence that he intends to try to advance his career as a stand-up comedian, through study and working, while seeing Trace when his other pursuits permit - because he and Trace enjoy their time and activities together.
[303] The court finds that Mr. Henry would be content to allow Ms. Henry to make plans for Trace although he would like to be consulted and approve her plans before they proceed.
[304] The court finds that all three parties would continue to have interest in, and support, Trace’s education, health, and extracurricular activities.
Permanence and Stability of the Family Unit
[305] Ms. McGlade has established a stable family unit comprised of herself and Trace. She is a young woman, so there may be changes in the future, but there is no basis in the evidence upon which to find that the stability of her family unit will be less than permanent. She does rely, however, on financial support from her family and Ms. Henry.
[306] Ms. Henry has also established a stable family unit comprised of herself and Trace in Aurora, and Mr. Henry, who lives in a separate house she owns in Whitby, whom she supports financially. Her daughter, who is attending the University of Edinburgh, is part of the family unit as well. Ms. Henry is also a relatively young mature woman, so there may be changes in the future, but there is no basis in the evidence upon which to find that the stability of her family unit will be less than permanent. The court was not provided with any information about her income, but the evidence suggests that she is in a comfortable financial position.
[307] Mr. Henry has, to a lesser extent, established a family unit consisting of himself and Trace. He is, however, dependent on Ms. Henry for financial support, including housing and he travels for work. He is a young man, so there may be changes in the future, but there is no basis in the evidence upon which to find that the stability of his family unit will necessarily change as a result.
Ability to Act as a Parent
[308] Ms. Henry is quite capable of acting as a parent to Trace and has been doing so since his birth. She is a mature woman and an experienced and committed mother. She takes the initiative to attend to all of Trace’s needs and she has the resources to satisfy those needs.
[309] She provided Trace’s mother and father with the free use of a house and free furniture near her home to ensure that Trace was well cared for despite the youth of his biological parents. She provided free housing and furniture and a car in Sudbury and Mount Albert for Ms. McGlade and Trace. She flew back and forth between Whitby and Sudbury with Trace every two weeks for about a year. Before that she traveled to Sudbury weekly to see him. She registered Trace in and paid for Montessori camp and school. She liaised with his teachers. She made all of his doctor’s appointments in York Region. She signed him up and paid for swimming lessons. She arranged and paid for his psychological assessment. She arranged and paid for his speech therapy. She arranged and paid for her and Mr. Henry to take two autism programmes. She arranged and paid for a one on one educator to be with Trace in class. She provides Ms. McGlade with a monthly stipend so that she can care for Trace. She takes Trace on international trips. She monitors and reminds Ms. McGlade about Trace’s needs at school and professional appointments..
[310] On the other hand, there was uncontradicted evidence that she ignored the advice of a nurse and Trace’s biological mother not to put baby powder on Trace when he was a vulnerable premature baby and she (and Mr. Henry) ignored the advice of Trace’s doctor and Trace’s biological mother not to pull on his foreskin until he was older.
[311] Further, there is uncontradicted evidence that she overindulgently gives Trace anything he wants and, as a result, he has been prone to behavioural acting out when he does not get what he wants.
[312] Additionally, although she is always glad to have Trace spend time with her when his mother or father are not available, the evidence indicates that she may have, intentionally or unintentionally, disempowered them, at least to some extent, by taking a controlling and directive approach in relation to Trace and using her superior resources to do so.
[313] The court does not doubt that she has Trace’s best interests at heart, but she might, intentionally or unintentionally, not be advancing those best interests at all times.
[314] On the other hand, the court bears in mind that the result of her decision to do nothing about arranging Trace’s four year old immunization to see whether his parents would do so – was that they did not. Accordingly, there may be good reason that she has been controlling or directive – because Trace’s parents have not been diligent about acting on their responsibilities concerning Trace.
[315] This reasoning leads to a conundrum, however; has Ms. Henry had to act as a parent because Ms. McGlade and Mr. Henry have not acted responsibly as parents, or has Ms. Henry’s actions as a parent caused Ms. McGlade and Mr. Henry to not act responsibly as parents – by undermining their parental authority?
[316] Ms. McGlade urged Ms. Henry not to put baby powder on Trace and not to pull on his foreskin but she was ignored by the child’s paternal grandmother when Trace was a newborn. That might be a difficult and undermining start for any young mother.
[317] When Ms. McGlade was in Sudbury, however, she accessed appropriate resources for Trace without Ms. Henry’s assistance. And when Ms. Henry took away all of her support in late 2012, Ms. McGlade accessed appropriate resources in York Region in early 2013 and established a stable home environment for Trace without Ms. Henry’s assistance.
[318] When Ms. McGlade proposed consideration of the Vaughan Centre for Autism as a possible resource for Trace – which may or may not be advantageous for Trace – Ms. Henry essentially dismissed the idea out of hand without knowing anything about the programme, although she has more time and resources to investigate the programme than Ms. McGlade.
[319] Still, Ms. McGlade did not dress Trace properly for two dress-up days at his school and she has not always provided him with proper extra clothes for school.
[320] In addition, she seems ready to commit Trace to a day a week at the Vaughan Centre for Autism without having visited it or obtained written information about the programme.
[321] The court finds that Ms. McGlade has the ability to parent Trace, but not as strong an ability as Ms. Henry – which is not surprising given Ms. Henry’s higher level of maturity and experience and her greater resources and time.
[322] Mr. Henry was dismissive of his ability and Ms. McGlade’s ability to responsibly parent Trace independently. The court accepts Mr. Henry’s assessment of his own parenting ability.
Relationship by Blood
[323] Ms. McGlade and Mr. Henry are the biological parents of Trace and have been regularly involved with his care before and since his birth.
[324] Ms. Henry is the biological paternal grandmother of Trace and has been regularly involved with his care before and since birth.
Trace’s Physical, Mental and Emotional Needs
[325] Trace’s physical needs are currently being met by all three parties. They all take him to swimming lessons. Both his parents take him to parks to play and Mr. Henry plays basketball with him.
[326] His mental needs are also being met through his school and speech therapy and the efforts of all three parties although Ms. Henry has been instrumental in accessing and paying for those services and his psychological assessment.
[327] His emotional needs are being met by his strong attachment to all three parties.
Trace’s Physical, Mental and Emotional Level of Development
[328] Trace has had some challenges with motor skills, learning, and emotional acting out but all of those areas are being addressed appropriately by all of the parties and the services that have been accessed.
Trace’s Cultural Background
[329] No evidence was led at trial about Trace’s cultural background.
Trace’s Religious Faith
[330] Ms. Henry arranged for Trace to be baptised at her church with the agreement of the other parties who attended. Ms. Henry takes Trace to church regularly.
Trace’s Relationships with his Parents and his Security as a Family Member
[331] As noted previously, Trace has a strong relationship with all three parties and all three parties are providing a loving family environment for him. There is nothing in the evidence to suggest that Trace does not feel completely secure as a family member with all three parties.
Trace’s Relationships and Emotional Ties to his Parents, Relatives, Extended Family and Community
[332] Trace has a strong emotional relationship with all three parties. He has contact with relatives and extended family on his mother’s side and on his father’s side. The depth or strength of those relationships and emotional ties was not a focus of the trial. No evidence was led about his relationships or emotional ties within his community although he is starting to have conversations with his classmates and he happily greets the teachers at his school throughout the day.
The Importance of Continuity in Trace’s Care
[333] The evidence indicated that continuity is particularly important to Trace as a feature of autism spectrum disorder.
[334] The court finds that it is very important for Trace to have continued regular and significant contact with all three parties. It would be disruptive to his development to lose contact with any of them.
[335] The court also finds that it is important for him to continue at the Aurora Montessori school where he is known, comfortable, has been given significant and meaningful attention and consideration by the staff, and has been progressing very well.
[336] Similarly, the evidence indicates that it is important for Trace to continue to benefit from the assistance of his one on one educator at the school. There has been a slight reduction in the time she is with him in the morning – which is a positive sign – but the evidence is clear that her presence is essential to his progress at his current school. Ms. Henry is to be commended for making this resource available for Trace.
[337] The court does not accept the submission by the Henrys that there has been a de facto status quo of joint custody since Trace’s birth, given that Ms. McGlade did not agree with the application of baby powder or the manipulation of Trace’s foreskin, and given that she obtained a temporary order for sole custody in Sudbury that was in place for a period of time, and given there is no evidence that the parties consulted and reached agreement about all important aspects of Trace’s care while he was residing in Sudbury and Whitby during alternate two week periods.
[338] On the other hand, it may be accurate that a de facto status quo of joint custody has been in place since Ms. McGlade decided to move to Mount Albert, but there is no evidential basis upon which to find that Trace is aware of any particular de facto arrangement or that, in the absence of a significant change to his daily life, he would notice a change from such a de facto arrangement.
Risk of Harm to Trace by being Removed, Kept Away From, or Returned to a Parent
[339] Trace would suffer emotional harm if he were to be removed from or kept away from any of the three parties.
[340] He is at no risk of harm in the care of any of the parties although Mr. Henry would need significant help and Ms. McGlade would likely need some assistance to parent Trace alone for a sustained period of time.
Any Other Relevant Circumstance
[341] Ms. McGlade and Ms. Henry do not agree with Mr. Henry’s view that Trace should be able to decide his own hair length and style but they have gone along with his view.
[342] Admittedly, this is a minor issue, but, in the court’s view, it is not appropriate to delegate this decision to a four year old. Certainly, Trace’s views and preferences should be considered but the ultimate decision for a child of his age should be made by an adult who is capable of weighing relevant and possibly competing considerations.
[343] The court is concerned that Ms. Henry registered Trace in Montessori camp and school under her surname and that the school and speech pathologist have continued to use her surname, including in documents prepared for trial, at a time when Trace’s surname was McGlade. In doing so, she was either intentionally undermining Trace’s relationship with Ms. McGlade, or, of equal concern, it did not occur to her that she was undermining that relationship.
[344] The court is also concerned that Ms. Henry has formed alliances with Trace’s professional caregivers that seem to undermine Ms. McGlade’s authority as his biological mother.
[345] For example, Ms. Henry initiated contact with the York Region early intervention worker and had an initial meeting with her at Ms. Henry’s home, in the absence of Ms. McGlade, but the worker has not attended Ms. McGlade’s home or met with her separately. When asked whether she had met with Ms. McGlade at her home, the worker testified that she had not because her work was focused on Trace’s school environment rather than his home environment. Yet, the worker testified later that her annual review about Trace was on hold because she needed to know where Trace was going to be living after the trial.
[346] As another example, Trace’s first teacher wrote a letter on school letterhead that was critical of Ms. McGlade and was filed by Ms. Henry’s counsel at the trial (Exhibit 18). The teacher eventually admitted, during cross-examination, that she had never written a similar letter, on school letterhead, critical of a parent before. She claimed, nevertheless, that she did not recall whether she had written the letter at the request of Ms. Henry.
Custody Analysis
[347] Custody has evolved to mean final decision making authority about serious matters affecting a child. The usual major areas of decision making authority have been distilled to religion, health, and education, although there may be other areas in a specific case.
[348] All of the parties agree that Ms. McGlade should have some form of custody of Trace.
[349] Having regard to the factors set out in section 24(2) of the CLRA and bearing in mind the factors set out in section 37(3) of the CFSA, the court does not disagree.
[350] The difference between the parties is whether Ms. McGlade should have sole custody or whether Mr. Henry and/or Ms. Henry should have joint custody with Ms. McGlade and with each other.
[351] Generally, joint custody may be appropriate where it is in a child’s best interests for more than one person to have custody and all persons with custody are able to communicate appropriately with each other and make decisions together based on the best interests of the child.
[352] The court’s role in a custody case is to decide what is in the child’s best interest at that time. While historical information may be of assistance, it is the present time that matters, with an eye to the future, but keeping in mind that the future cannot be predicted with certainty. If circumstances change in a material way over time, then a motion to change is available to bring the issue of the child’s best interests back before the court.
[353] Ms. McGlade and Trace have a very strong emotional bond. She is his biological mother. For the past year and half, Trace has lived primarily with his mother and she has provided him with a stable family unit and home environment throughout that time. In order to do so, she has worked up to three part-time jobs at a time while studying to improve her education. She has accessed service providers to assist her in providing a stable home for Trace (360 Degree Kids, Kerry’s Place, and Ontario Works) and she has accepted help from her family and Ms. Henry for the same purpose. She has supported the significant steps taken by Ms. Henry in relation to Trace’s education and special needs (paediatrician, camp, school, psychological assessment, speech therapy, one on one educator, early intervention, and swim lessons). She followed the recommendations of the psychological assessment and modified her home and parenting techniques accordingly. She has persevered in teaching her son that he should not expect to get everything he wants. She is capable of acting as a parent to Trace and has been doing so since before he was born although she will likely continue to need some need assistance. Her involvement in Trace’s life has provided him with significant continuity. She has made some mistakes along the way but the court believes that she is capable of learning from those errors – particularly if they are pointed out to her by someone other than Ms. Henry.
[354] The reason for the latter observation is that Ms. Henry has, likely unintentionally, taken steps that have undermined Ms. McGlade’s self-esteem and authority as Trace’s mother.
[355] Although Ms. Henry recognizes that she is Trace’s grandmother, not his mother, and she underlines that Trace calls her “nana” and not “mommy”, and she validly points to her remarkable generosity toward Ms. McGlade and Trace, and points out that her generosity has had the effect of supporting Ms. McGlade’s role as a mother; she has also taken steps inconsistent with Ms. McGlade’s role as Trace’s mother.
[356] Although it was some time ago, Ms. Henry should have realized that it would be hurtful and disempowering for Ms. McGlade, as a young new mother, to watch helplessly as Ms. Henry applied baby powder to Trace contrary to a health care professional’s warning and contrary to Ms. McGlade’s wishes. Ms. Henry should have realized, as well, that when she and Mr. Henry ignored another health care professional’s warning and Ms. McGlade’s wishes, and manipulated Trace’s foreskin, their actions would have the same effect.
[357] Ms. Henry should also have realized that seeking to have Trace travel under the surname “Henry” and registering him for camp, school, and, later, speech therapy under her surname would have the same effect. She should also have realized that not changing the contact list at the school to make Ms. McGlade a primary contact would have the same effect.
[358] More recently, she should have realized that engaging the early intervention caseworker, meeting with her alone at her home, and signing an early intervention plan as Trace’s “parent/guardian”, despite an order requiring Ms. McGlade’s signature for any new services, would have the same effect.
[359] She should also have realized that being inflexible and critical toward Ms. McGlade about attending a non-urgent meeting with Trace’s teacher, at a time that was extremely inconvenient for Ms. McGlade, which could easily have been rescheduled to a more convenient time for Ms. McGlade, would have the same effect.
[360] She should also have realized that asking Trace’s teacher to write a letter, on school letterhead, that is critical of his mother would have the same effect (the court finds that did occur).
[361] On the other hand, Ms. Henry has a very strong emotional bond with Trace. She is his biological paternal grandmother and, like many grandparents, although to a greater extent than most, she tends to spoil her grandchild. She is a mature, experienced, independent and very capable parent. She has provided Trace with a stable family unit and home environment and she has provided assistance to Ms. McGlade and Mr. Henry to do the same. She traveled back and forth between Whitby and Sudbury over an extended period of time to facilitate shared parenting of Trace. She arranged for his baptism and she cultivates his religious faith. She has accessed a number of service providers for Trace (paediatrician, camp, school, psychological assessment, speech therapy, one on one educator, early intervention, and swim lessons) and she apparently has the time and resources to do so without difficulty. She took two autism courses at the Geneva Centre in Toronto and she modified her home and parenting techniques in accordance with the recommendations of the psychological assessor. Oddly, however, she did not look into the Vaughan Centre for Autism despite being in a position to do so without difficulty. Her involvement in Trace’s life has, nevertheless, provided him with significant continuity.
[362] Trace has a very strong emotional bond with Mr. Henry. He is Trace’s biological father. Although he has been involved in Trace’ life as a father since before Trace was born, he has played a less significant role caring for Trace than Ms. McGlade and Ms. Henry. He does not consider himself capable of parenting Trace independently because he is “young and needs to grow”. He has made no independent effort to access services for Trace. He admitted that he had to leave the house Ms. Henry bought for him and Ms. McGlade because Ms. Henry did not believe that he was mature enough to live there alone.
[363] The court finds that he intentionally attempted to diminish Ms. McGlade’s parenting a number of times during his testimony. He suggested that it was mainly when he was away working that Trace spent overnights with Ms. Henry, while Ms. McGlade was living in Whitby. Ms. Henry’s evidence, however, was that Trace spent overnights with her at that time regardless whether Mr. Henry was working or not. The court accepts her evidence. Mr. Henry implied that he was more knowledgeable about autism learning strategies than Ms. McGlade and Ms. Henry but he was unable to identify any of the techniques he had learned at the Geneva Centre. He did not hesitate to tell the court that Trace had cried and resisted going with Ms. McGlade at exchanges but when asked, during cross-examination, if Trace had acted the same way going to him, he was evasive, stating that Trace “didn’t really object”, and “maybe he said ‘no’ once or twice”, and he was “not really” crying. The court does not accept his testimony in that regard, nor does it accept his testimony that Trace spent most of his time with Mr. Henry, rather than Ms. Henry, when Ms. McGlade was living in Sudbury and Trace was in Whitby for two weeks at a time. His description of how he spends time with Trace now was likely closer to the truth. The court also does not accept his claim that Trace has never had a “fit”, as described by Ms. McGlade, in his presence. He claims that he doesn’t always agree with his mother’s views about Trace, but the only recent disagreement he could identify was about Trace choosing his hair style and length, a decision which, in itself, indicates a degree of poor judgment on his part, although it is not a major issue. Nevertheless, Mr. Henry’s continued involvement in Trace’s life provides significant continuity for Trace.
[364] Despite the court’s critical assessment of some of Mr. Henry’s testimony, the court wishes to be very clear that Mr. Henry plays an important role in Trace’s life and development and he has been doing so since before Trace was born. His presence and involvement throughout Trace’s life, his status as Trace’s biological father, the fun times they have together, his compassion for Trace’s challenges, his very evident love for his son, all demonstrate that it is crucially important for Mr. Henry to continue to be as involved as he can be in Trace’s life. He is an important role model for Trace.
[365] As Trace’s biological father, Mr. Henry’s views about custody deserve serious consideration.
[366] Mr. Henry’s view is that he would not be an appropriate candidate for sole custody of Trace but he is an appropriate candidate for joint custody of Trace, along with Ms. Henry and Ms. McGlade.
[367] After serious consideration of all of the evidence, however, the court finds that, despite being Trace’s biological father, it is not currently in Trace’s best interests for Mr. Henry to share custody with Ms. McGlade alone or Ms. McGlade and Ms. Henry. By his own admission, he needs to gain more maturity to be a major decision-maker for Trace.
[368] The views of Ms. Henry, Trace’s biological paternal grandmother, and Ms. McGlade, Trace’s biological mother, also deserve serious consideration.
[369] There are a number of factors indicating that it would be in Trace’s best interests for Ms. Henry to share joint major decision-making with Ms. McGlade and there are a number of factors indicating the contrary.
[370] The court must bear in mind, however, that the most significant factors favouring Ms. Henry are her greater maturity, her greater parenting experience, and her greater access to material resources.
[371] As indicated earlier, a grandparent should not be given preference in relation to custody solely due to these factors because, otherwise, grandparents would often be in a favoured position compared to adequate biological parents, and the closer blood relationship between an adequate natural parent and his or her child would, in many cases, be susceptible to being outweighed by these considerations.
[372] In the final analysis, these factors must be weighed carefully along with all other relevant considerations.
[373] Aside from these considerations, and Ms. Henry’s very strong emotional ties with Trace, the most significant consideration in Ms. Henry’s favour is that she has accessed educational and medical services for Trace that Ms. McGlade has not accessed.
[374] Although the court is of the view that Ms. Henry should have, and still should, investigate the Vaughan Centre for Autism, and although the court has been critical of ways she has, likely unintentionally, undermined Ms. McGlade’s role as a mother with several of Trace’s education service providers, the court finds that Ms. Henry is capable of adjusting her behaviour to be more considerate of the importance of Ms. McGlade’s role as Trace’s mother (as shown by the civil communication in the texts in Exhibit 30) and to avoid unintentionally undermining that role, in the education context, for the sake of Trace’s best interests.
[375] With that in mind, the court finds that Ms. Henry’s continued involvement in Trace’s education is vital for Trace’s best interests.
[376] Accordingly, Ms. McGlade and Ms. Henry shall have joint custody of Trace with respect to his education, but, in an effort to ensure that Ms. McGlade’s shared custodial role in education is not undermined by Ms. Henry, Ms. McGlade shall be the primary contact person for Trace’s education service providers.
[377] With respect to Trace’s health, bearing in mind Ms. McGlade’s history of accessing health services for Trace while they were in Sudbury, and bearing in mind Ms. Henry’s disregard of the views of Ms. Henry and health professionals early in Trace’s health care, the court finds that it would be in Trace’s best interests for Ms. McGlade to have sole custody of Trace with respect to his health, including hygiene, and, therefore, she will be the primary contact for his health care providers.
[378] Although Ms. Henry has been instrumental in Trace’s religious upbringing, the court finds that it would be in Trace’s best interests for Ms. McGlade to have sole custody with respect to Trace’s religious faith. Whether Ms. McGlade will continue to support Ms. Henry’s efforts in this regard will, no doubt, be influenced by how Ms. Henry respects Ms. McGlade’s parental role.
[379] The court also finds that any other major decisions involving Trace’s welfare should be made solely by Ms. McGlade.
[380] In short, Ms. McGlade will be Trace’s primary custodian, subject to shared custody with Ms. Henry in relation to education.
[381] The court finds that it is in Trace’s best interests for all three parties to have full access to all information and reports directly from Trace’s service providers, provided that Ms. McGlade is the primary contact for the service providers.
[382] To ensure this occurs, Ms. Henry and Mr. Henry will be required to direct Trace’s service providers to have primary contact with Ms. McGlade.
[383] Ms. McGlade will be required to direct the service providers to maintain secondary contact with Ms. Henry and Mr. Henry.
[384] In summary, the court finds that it is in Trace’s best interests to strengthen Ms. McGlade’s maternal role, while maintaining Ms. Henry’s vital role in relation to his education, and encouraging all three parties to continue to nurture their critically important emotional ties with Trace.
Access
[385] The only access schedule issue argued during the trial was whether Trace should be in the care of the Henrys one more day per week so that his regular residential schedule would be split precisely half time with Ms. McGlade and half time with the Henrys.
[386] To accomplish that goal, the Henrys seek an order that Trace’s mid-week time with them should start after school on Wednesdays instead of after school on Thursdays.
[387] Ms. McGlade testified that during pre-trial negotiations she was willing to agree to Trace being with the Henrys one more day every second week, starting after school on the Wednesday following Trace’s alternate weekend with the Henrys, but she was not agreeable to an extra day every week.
[388] The court is not satisfied, however, that a change to Trace’s regular residential schedule would be in his best interests.
[389] To reinforce the court’s determination that Ms. McGlade shall be Trace’s primary custodial parent, the court finds that it is in Trace’s best interests to spend a majority of time during his regular schedule with Ms. McGlade, as he has been doing since July 1, 2013, and thriving.
[390] Although Ms. McGlade’s compromise offer of one extra day every second week with the Henrys would also result in Trace being with her more than half the time during his regular residential schedule, the court finds that it is in Trace’s best interests to have consistency in relation to the day he is first picked up from school by the Henrys each week.
[391] Thus, Trace’s primary residence will continue to be with Ms. McGlade in accordance with the existing schedule.
[392] The Henrys’ written submissions also raised the issue of the school March break.
[393] During the trial, Ms. McGlade testified that she would consent to the Henrys taking Trace on a Disney Cruise during March breaks. The court accepts that this is in Trace’s best interests, subject to a time limitation, unless Ms. McGlade agrees to additional time.
[394] The Henrys’ written submissions also addressed Christmas, Mother’s Day, Father’s Day, and other travel.
[395] Unfortunately, these issues were not argued orally and the only evidence directly on point came from Ms. McGlade who testified that, on the advice of counsel, she did not accept the Henry’s offer to spend some time with Trace during Christmas of 2013 because she did not want to breach the court order that was in place.
[396] Rather than ignore these issues, however, the court, in an effort to assist the parties, will make orders based on the limited information available, but it will be left in the hands of the parties to negotiate these issues more fully.
Child Support
[397] Based on his estimated current income of $12,000 set out in Exhibit 25, Mr. Henry shall pay child support to Ms. McGlade for Trace commencing June 1, 2015, in the amount of $40 per month, in accordance with the Child Support Guidelines.
Orders
The following orders are made on a final basis:
Trace Cameron McGlade’s name is changed to Trace Cameron McGlade-Henry.
Ms. McGlade shall be Trace’s primary custodian.
Ms. McGlade shall have sole custody of Trace except in relation to his education.
Ms. McGlade and Ms. Henry shall have joint custody of Trace in relation to his education.
Ms. McGlade shall be the primary contact, and Ms. Henry and Mr. Henry shall be secondary contacts, for all of Trace’s service providers. The parties shall each inform Trace’s service providers of this arrangement without delay.
The parties shall each have full access to Trace’s information and records directly from his service providers.
Trace’s primary residence shall be with Ms. McGlade.
Trace shall continue to regularly reside with Ms. McGlade every week from the time his school usually starts on Monday morning until the time his school usually ends on Thursday afternoon, and on alternate weekends from the time his school usually ends on Friday afternoon until the time his school usually starts on Monday morning. He shall continue to reside with Ms. Henry and/or Mr. Henry for the balance of each two week period.
As an exception to the regular residential schedule, Trace may go on a Disney Cruise with Ms. Henry during each school March break as long as Ms. Henry provides Ms. McGlade with at least three months advance written notice and provides her with a complete written itinerary for the trip at least one month in advance, and provided that each trip, including travel time, shall not exceed a total of nine days in length unless Ms. McGlade agrees otherwise in advance and in writing.
Ms. McGlade shall, without delay, provide international travel consent for Trace, as may be requested by Ms. Henry, for the purpose of a school March break Disney Cruise, provided that any cost involved in executing such consent is paid in advance by Ms. Henry.
As an exception to the regular residential schedule, in odd numbered years, Trace shall be with Ms. McGlade on December 24th from 3 p.m. until December 25th at 3 p.m., and he shall be with Ms. Henry and/or Mr. Henry from December 25th at 3 p.m. until December 26th at 3 p.m.
In even numbered years, Trace’s exceptional residential schedule during the period of December 24th to December 26th shall be the opposite of the schedule for odd numbered years.
As an exception to the regular residential schedule, Trace shall be with Ms. McGlade each Mother’s Day from 10 a.m. until 7 p.m. and with Mr. Henry each Father’s Day from 10 a.m. until 7 p.m.
Trace may travel with Ms. McGlade, Ms. Henry, or Mr. Henry anywhere in Ontario provided the other parties are given an advance written itinerary if Trace will spend one or more overnights more than ten kilometres away from Newmarket, Aurora, Whitby, or Sudbury.
Commencing June 1, 2015, Mr. Henry shall pay Ms. McGlade child support in the amount of $40 per month in accordance with the Child Support Guidelines for one child based on an annual income of $12,000.
Mr. Henry shall provide Ms. McGlade with a copy of his complete income tax return with all attachments by June 1st for the previous taxation year, commencing in 2015 in relation to 2014, and he shall provide her with a copy of every Notice of Assessment and Re-Assessment he receives hereafter, within 30 days of receipt.
A support deduction order shall issue.
Costs
[398] If the parties are unable to agree about costs, a party may serve and file a brief written submission as to costs within 21 days, in which case the other parties shall have 21 days to serve and file brief written responses, in which case the first party shall have 14 days to serve and file a very brief written reply.
F. Graham J.
Released: May 25, 2015
CORRECTIONS
Page 11, Para 118, Line 6 now reads: … continued to not socialize…
Page 15, Para 160, Line 1 now reads: … attention to Ms. McGlade’s lack…
Page 16, Para 169, Line 2 now reads: … assist Trace to meet his…
Page 19, Para 182, Line 2 now reads: … also waved at teachers…
Page 31, Para 282, Line 1 now reads: … she and Ms. Henry provided…
Page 35, Para 314, Line 1 now reads: … other hand, the court bears…
Page 39, Para 355, Line 1 now reads: … Although Ms. Henry recognizes…
Page 39, Para 356, Line 1 now reads: … Ms. Henry should have…