CITATION: M.L.P. v. C.J.P., 2016 ONSC 1203
COURT FILE NO.: FS-14-5396
DATE: 2016-02-17
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
M.L.P.
Mark Van Walleghem, for the Respondent, mother
Respondent
- and -
C.J.P.
Cheryl Siran, for the Applicant, father
Applicant
David Elliott, as agent for the Children’s Lawyer
HEARD: February 9 and 10, 2016,
at Kenora, Ontario
Madam Justice H.M. Pierce
Reasons for Judgment
Introduction
[1] The principal issue to be determined is whether the existing order for custody of and access to J.A.C.P., born […], 2003, should be varied. Specifically, the court must consider whether it is in the best interests of the child, known as J.A.C.P., to move from his current home in Dryden, Ontario, where he lives with his mother, to Kitchener, Ontario to take up residence with his father. The present order for the child provides that the parties have joint custody of him with his mother providing day-to-day care.
[2] The father moves to change the existing order, to have sole custody and daily care of J.A.C.P.. In response, the mother pleaded that she should have sole custody of J.A.C.P., with the father’s access to be supervised at Dryden. At trial, these claims were abandoned. The mother’s position is that there is no material change in circumstances to justify varying the order, apart from her claim for child support.
[3] Terms of access are at issue if either party is successful. Secondly, the court must consider child support obligations if the existing order is changed. Both parties are of modest means. The current order provides that the father pay no child support because he pays for the child’s flights to southern Ontario on a frequent basis. At trial, the mother asks that the father’s income be imputed at a higher rate for purposes of child support. While the claim for child support was pleaded, her claim to impute income was not.
[4] The Office of the Children’s Lawyer provided counsel for the child, assisted by a social worker, in order to present the child’s views and preferences at trial.
The Previous Court Order
[5] On June 28, 2013, Mr. Justice J. McDermot made an order on consent varying a previous order. This order provided that the parties have joint custody of J.A.C.P., and granted the mother leave to move with the child to the Dryden area of northwestern Ontario. The father’s support obligation was rescinded so that he could better pay for access costs specified in the order.
[6] As to access, the father was entitled see the child one weekend per month to coincide with holiday weekends as well as more extensive visits at Christmas, March Break and 28 days during the summer. The order required the mother to transport the child at her expense to the airport at Thunder Bay and pick him up after access with the father. As the order acknowledges, this is about 3 ½ hours of road travel in good weather. To complicate matters, the mother has never had a driver’s licence and so must rely on others to drive the child or travel with him by bus.
[7] The order requires the father to meet the child in Toronto, return him to the airport after access, and pay for plane fare and ground transportation. Some of these arrangements necessitated taking the child out of school in order to facilitate access.
[8] In addition, the father is entitled to telephone and electronic access to the child.
[9] The frequency of travel and the distances involved are very onerous for the child and costly for the parents; accordingly, they should be reviewed.
Has There Been a Material Change in Circumstances?
[10] The leading case on variation of custody is Gordon v. Goertz, 1996 191 (SCC), [1996] 2 S.C.R. 27 (S.C.C.). In that case, the court considered the principles underlying a request to move a child from Canada to Australia. The court held that the threshold question was whether there had been a material change in the child’s circumstances, such that the child’s needs were altered or the ability of the parents to meet the child’s needs had changed in a fundamental way that materially affected the child. In addition, the court held that the change must not have been foreseen or reasonably contemplated by the judge who made the initial order: paras. 12 – 13.
[11] If the court is satisfied that the threshold test has been met, then the child’s custody may be considered afresh: para. 17.
[12] In this case, the father argues that there are material changes arising out of the mother’s inadequate care of the child and the child’s wish to live with him. The mother argues that there is no material change in circumstances as a change in the child’s views was within the reasonable contemplation of the judge who made the initial order. As well, she submits she has always had to work to support herself and that her care of the child is appropriate given the constraints on her time as a result of employment.
[13] In my view, the threshold test has been met. The original order was made on consent, so the court made no review of the child’s care. The child agreed to relocate to Dryden with his mother because he knew that was what she wanted. The mother was the child’s primary caregiver at that point. There was no suggestion that her care was inadequate. The child and his siblings lived in the Barrie area while the father also lived in southern Ontario and had regular access to the child.
[14] The mother’s move to northwestern Ontario created a large geographic barrier to access that had not previously existed. The failure of the mother to cooperate with the detailed scheme of access in the order could not have been foreseen. Nor could it have been foreseen that the mother’s care for the child would become problematic, as I will explain.
[15] Accordingly, the court must now consider what is in the best interests of the child with respect to custody and access.
Custody
[16] The test for considering custody is the best interests of the child, having regard to the factors set out at s. 24 of the Children’s Law Reform Act, R.S.O. 1990, c. C. 12, (as am.). The relevant sections provide:
The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4).
The court shall consider all the child’s needs and circumstances, including,
(a) the love, affection and emotional ties between the child and,
(i) each person entitled to or claiming custody of or access to the child,
(ii) other members of the child’s family who reside with the child, and
(iii) persons involved in the child’s care and upbringing;
(b) the child’s views and preferences, if they can be reasonably ascertained;
(c) the length of time the child has lived in a stable home environment;
(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;
(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;
(f) the permanence and stability of the family unit with which it is proposed that the child will live;
(g) the ability of each person applying for custody of or access to the child to act as a parent; and
(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application.
- A person’s past conduct shall be considered only,
(a) in accordance with subsection (4); or
(b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent.
- In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,
(a) his or her spouse;
(b) a parent of the child to whom the application relates;
(c) a member of the person’s household; or
(d) any child.
- For the purposes of subsection (4), anything done in self-defence or to protect another person shall not be considered violence or abuse.
The Child’s Emotional Attachments
[17] J.A.C.P. is now 12 years old. He is described as bright, mature, articulate, truthful and likeable. His mother says that he is a compassionate boy, sensitive to the feelings of others. He is athletic and particularly likes to play soccer. There is no question that the parents love J.A.C.P. and that J.A.C.P. loves his parents.
[18] Currently, there is no other person residing with the mother and J.A.C.P. in their home. When J.A.C.P. and his mother moved to Dryden in July, 2013, J.A.C.P.’s half-sister, M., was also part of the household. M. is now 16 years old. About a year ago, she was apprehended on consent and found to be a Crown ward. The grounds for the finding were parent-child conflict. M. has been in care since that time. J.A.C.P.’s relationship with M. was turbulent when they lived together under the mother’s roof. At times, there were physical confrontations. The home is quieter now that M. no longer lives there. However J.A.C.P. continues to have contact with M., who is resident in Kenora, via text messaging.
[19] The father has lived with his mother about three years in a home she owns in Kitchener for. She is 71 years old and a widow. The father says she has a great relationship with J.A.C.P. and consents to the child coming to live in her house. The father also has an assortment of extended family living in southern Ontario with whom J.A.C.P. has contact.
[20] J.A.C.P. also has a good relationship with his maternal grandfather who lives in the Dryden area and whom he sees about twice a month. Although there is no detailed evidence about the maternal grandmother who lives in Thunder Bay, the mother’s evidence suggests that she is estranged from her. There is no specific evidence that the mother facilitates J.A.C.P.’s contact with her.
The Child’s Views and Preferences
[21] The child’s views and preferences were canvassed by his counsel, Mr. Elliott, and the social worker assisting him, Marjorie Matheson, who was qualified at trial as an expert witness. Ms. Matheson has a Master’s degree in Social Work and extensive experience in child welfare as well as with the office of the Children’s Lawyer.
[22] J.A.C.P. was interviewed alone three times by Ms. Matheson and Mr. Elliott: in May, July, and October, 2015. In addition, J.A.C.P. was observed interacting with both parents. Ms. Matheson’s investigation was supplemented by information from others involved with the family, including police, child welfare authorities, a probation officer, and school officials.
[23] Ms. Matheson testified that J.A.C.P. has consistently articulated that he wants to move to Kitchener to live with his father. He does not want to hurt his mother’s feelings, and has had difficulty in communicating his wishes to her. When he did attempt to speak to her about his wishes, he found that she was not open to hearing them.
[24] In October, 2015, J.A.C.P. told Ms. Matheson that he was upset when he had to return to Dryden in the fall after spending five weeks with his father in Kitchener. He reported that he made some friends in Kitchener and had some contact with his father’s relatives. By contrast, he indicated that he has few friends in Dryden and was involved in few activities.
[25] J.A.C.P.’s counsel submits that the child’s views have been strongly and consistently expressed and appear to be free of any parental coercion. He also submits that the views are reasonable in light of the child’s circumstances.
[26] J.A.C.P. revealed to Ms. Matheson that he felt lonely in his mother’s household, as she was often not home. Mr. Elliott characterized her parenting as laissez-faire. The child welfare authorities continue to keep a protection file open for J.A.C.P., in view of the mother’s parenting. The evidence also suggests that the mother has been uncooperative about arranging appointments with the Office of the Children’s Lawyer, even when Mr. Elliott and Ms. Matheson travelled to Dryden to accommodate her work schedule. For example, she objected to them meeting the child when she was not present but was not prepared to adjust her work schedule to meet with them.
[27] By contrast, Mr. Elliott submits that the father has attended to access vigorously and is attentive to the child’s needs, taking steps to prepare a home for J.A.C.P.. Having regard for J.A.C.P.’s age, Mr. Elliott submits that the child’s views and preferences should be given considerable weight.
The Ability and Willingness of the Parties to Parent
[28] The reasons that follow address the criteria in ss. 24(2) (d) and 24(2) (g) of the Act: 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 for the child; and the ability of each person applying for custody of or access to the child to act as a parent.
The Father
[29] The father is 37 years old. He completed grade 11, and is now employed in the building trade, framing houses in the greater Toronto area. Recently, his work has been part-time, working for a friend. Mr. C.J.P. intends to get back to work, which he hopes will be in the Kitchener area. In 2016, he projects his annual income will be $18,623. This rate is the same as he earned for part-time work in 2015. He has also done some renovations for his mother and looks after heavy work for her, such as snow shovelling and grass-cutting. Although Mr. C.J.P.’s denies it, generally his mother supports him.
[30] In hopes of J.A.C.P. coming to live with him, the father has contacted the middle school in his area which is about a kilometre from his residence. J.A.C.P. has been to see the school. The child has a room fitted out for him in his grandmother’s house. There is internet available for his school work. Mr. C.J.P. is prepared to help J.A.C.P. with his homework as required; indeed he has attempted to do so by telephone.
[31] Food is plentiful at the father’s residence. J.A.C.P. has made a couple of friends in the neighbourhood. He loves to run, so the father has inquired about a soccer club in Kitchener. As well, there are Brick Works modules in the Waterloo Region which the father hopes will foster J.A.C.P.’s interest in science and mathematics.
[32] During the summer of 2015, when the father wasn’t working, J.A.C.P. and his father visited Southampton where the father grew up. They swam at various swimming holes in the Kitchener area, went to the Exhibition and the Science Centre, and took bike rides.
[33] When they were in the Thunder Bay area last summer, the father took J.A.C.P. to see his maternal grandmother; he also stopped by the maternal grandfather’s home to say good-bye before they left for summer access. The father stated that he would continue J.A.C.P.’s contact with his maternal grandmother as he is aware that there are “differences of opinion” between the mother and the maternal grandmother.
[34] The mother agrees that J.A.C.P. has a strong bond with the father and enjoys his time with him. One of the complaints the mother has made is that the father calls J.A.C.P. too often and speaks to him too long. She feels the calls interfere with J.A.C.P. doing “kid things.” Currently, Mr. C.J.P. calls or texts in the morning to make sure J.A.C.P. is up in time to go to school and calls at the end of the day, sometimes for lengthy conversations. During these conversations, the father tries to ensure that J.A.C.P. has finished his homework; he also talks to the child about his day. There is no indication that J.A.C.P. objects to these contacts.
[35] J.A.C.P. tells his father that he is lonely, bored, and upset. The child expresses a sense of isolation as his mother’s home is some distance from friends and he is not involved in any activities. His mother’s home has no internet and no cable television. Mr. C.J.P. pays for J.A.C.P.’s cell phone and sends him spending money on a regular basis.
[36] Mr. C.J.P. has spoken with J.A.C.P.’s teacher in Dryden as he is concerned that J.A.C.P.’s grades are slipping. Before trial he went to the school to pick J.A.C.P. up and get his report card. The father stated that J.A.C.P. feels the Dryden school is okay, it is just not where he wants to be. He adds that J.A.C.P. has three friends in Dryden whom he speaks of regularly.
[37] There are certain instances when the father has suffered from bad judgment, whether in relation to J.A.C.P. or other children. These lapses reflect negatively on his ability to parent and are of concern when evaluating the best interests of the child. J.A.C.P. is at an age where he will look to his father as a role model for his behaviour and values.
[38] At Easter of 2014, J.A.C.P. objected to returning to his mother’s after the long weekend with his father. Mr. C.J.P. became concerned that J.A.C.P. was ill. He cancelled the ground transportation to the Toronto airport and later took J.A.C.P. to the hospital where he underwent psychiatric evaluation. There is some dispute about when he called to let the mother know that J.A.C.P. would not be coming home. The father permitted J.A.C.P. to remain with him until late in May, during which time the child was out of school. This was certainly bad judgment on the father’s part. It was in breach of the court order and significantly interfered with J.A.C.P.’s schooling. It also kept J.A.C.P. from his mother and heightened tensions between the parents.
[39] The father uses marijuana for recreational purposes about 2-3 times a week. He conceded that it was bad judgment on his part to roll a marijuana cigarette in front of J.A.C.P.’s step-sister, A., when she was a teen-ager. At the same time, the father expresses concern that J.A.C.P. might fall in with the wrong crowd and get on the wrong path. He does not seem to understand that his own involvement with recreational drugs sets a permissive tone for J.A.C.P..
[40] The father has a criminal record for domestic assaults. In 1996, he was given a conditional discharge and in 2000, he was sentenced to 45 days.
[41] In 2014, he was again convicted of common assault and sentenced to probation for 18 months. The circumstances of the offence are peculiar. The father was charged with sexual assault after he was alleged to have digitally penetrated his step-daughter when she emerged from the shower. The father denies touching the teen-aged girl but acknowledges that his behaviour towards her was inappropriate. His explanation for that incident is not credible. He pleaded guilty to common assault and was sentenced accordingly. He lacks insight into the harm caused by inappropriate touching and by sexualized discussions with his step-daughter.
[42] The father successfully completed his probation after sentencing. Ms. Matheson spoke to the probation officer who indicated that Mr. C.J.P. engaged in counselling and attended a “Caring Dads” program sponsored by the John Howard Society. The probation officer described him as an active participant who gained knowledge from the classes. Mr. C.J.P. acknowledged that he had not understood boundaries in the parenting relationship. Inappropriate touching has not arisen as an issue for J.A.C.P., but it is certainly a concern with respect to Mr. C.J.P.’s ability to be a role model for the child around issues of sexuality.
[43] Prior to the parties’ separation in 2008, the mother says the father was physically abusive. The father maintains the mother assaulted him. In fact, Ms. M.L.P. admitted that she hit the father; on one occasion when she said he backed her into a corner, she threatened him with a knife. The mother also described an incident of the father throwing her on the bed, placing his arm over her throat and his hand over her mouth and nose. The father denies these allegations, although he admitted to slapping the mother. Both parents have resorted to violence in interpersonal relationships.
[44] The mother claims the father punched J.A.C.P. in the stomach, causing injury. The father says he and J.A.C.P. were play-fighting and no harm was intended. This event took place before the current order was made, allowing for liberal access. Even if true, the mother later consented to the father having liberal access to J.A.C.P.. I conclude that the mother is not concerned that the father will hurt J.A.C.P.. There has been no allegation of assaultive behaviour toward the child since the current order was made.
[45] The mother contends that the father lacks respect for women. She says he shows this disrespect in name-calling directed at herself, her daughters, and Ms. Matheson. The father denies these allegations. J.A.C.P. is approaching adolescence. Increasingly, he will be looking to his father as a role model. If Mr. C.J.P. models disrespect for women, he can expect that J.A.C.P. will follow his example, with predictable negative results.
[46] It is clear that this family has been in conflict for many years. There is much evidence of dysfunctional behaviour by both parents, and much conflict between them. If they are unable to moderate their behaviour, J.A.C.P. will be burdened with negative role models that are not in his best interests.
[47] Nevertheless, I conclude that the father has the motivation to learn to be a better parent. He has the support of his mother, and he has demonstrated his commitment to J.A.C.P.’s social, educational and emotional needs.
The Mother
[48] The mother is almost 40 years old. She completed high school and has had some college education. She has had four children but did not raise her eldest son. Her eldest daughter, A., aged 19, does not live with her, and did not move with her to Dryden. M., aged 16, and J.A.C.P. moved with their mother from Barrie in the summer of 2013. There is no evidence that J.A.C.P. maintains a relationship with A..
[49] The mother currently works at the Legion in the bar and doing cleaning. Her regular hours are Tuesday and Thursday nights, and some Fridays. Now, while one of the staff is off sick, she shares Saturday and Sunday shifts with another person. For 1 ½ years before this job, she worked at a restaurant. This restaurant job ended on December 28, 2015. Her hours at the restaurant varied between a morning shift starting at 6 a.m. until 2 p.m. and afternoon shifts from 2 – 9 p.m. Unfortunately, neither shift was conducive to parenting children.
[50] The mother and J.A.C.P. live in a three bedroom mobile home. This has been their home for 1 ½ years. J.A.C.P. has his own room. He catches the school bus at a stop nearby.
[51] There are aspects of the mother`s parenting that are also troubling. These examples are set out below.
[52] The area child protection supervisor, Carmen Moody, testified that between October 23, 2013, and December of 2015, the child welfare agency received 18 referrals for child protection concerns at the mother’s home. Five of these referrals related to J.A.C.P.’s care. Eight protection concerns were verified. Two referrals came from J.A.C.P.’s school. Other referrals came from the police, either as a result of the father’s complaints to them or directly from other contacts, including the father.
[53] As previously indicated, serious parent-child conflict led to M.`s apprehension and consent to Crown wardship. M. was acting out, involved with drugs and alcohol and made serious suicide attempts. M. and her mother were involved in at least two physical altercations; the mother called the police after the second one and had M. charged. M. went to live with her maternal grandfather, who acted as her surety until she broke the rules there and was apprehended. J.A.C.P. was present for arguments between his mother and M..
[54] J.A.C.P.’s school was concerned that the mother was not pursuing proper medical care for the child after he hurt his arm doing cartwheels in May 2015. The mother denies this, saying that she took J.A.C.P. to the hospital where his arm was X-rayed. She testified that he was advised to wear a sling and that the hospital would contact her after the X-rays were read. She stated that the hospital never did contact her. The school called and e-mailed the mother about lack of follow-up but did not receive a response. In time, J.A.C.P. stopped wearing the sling and reported that his arm was not bothering him.
[55] On October 21, 2015, the school made another child welfare referral when J.A.C.P. didn’t come to school with his back-pack. He advised that he had been staying with a friend since the beginning of the week because the power at home was shut off. As well, he had no lunch. The school was concerned that the mother was not home all week.
[56] The mother conceded that the power was cut off in her home when her hours at work were cut and she couldn`t pay the bill. She stated that she was no longer receiving the child tax credit but did not explain why. She said that she didn’t realize that the power would be cut immediately when the bill was not paid. She paid the bill but it took a few days until the power was reinstated. She went to stay with her boyfriend, leaving J.A.C.P. to make his own arrangements. J.A.C.P. advised her that he was staying with a friend. The mother testified that she saw J.A.C.P. at her work.
[57] The evidence is clear that the mother made no effort to seek out alternate accommodation that included J.A.C.P., perhaps at her father`s home. Ms. M.L.P. did not contact the parent in the home where J.A.C.P. stayed to ensure that the parent agreed with J.A.C.P. staying temporarily. She did not inquire whether appropriate supervision was available, or investigate what arrangements would be necessary. She simply left it to J.A.C.P. to handle matters himself.
[58] The mother acknowledged that one night her home was lit by candles and heated by space heaters, agreeing that this was a fire hazard.
[59] One of the protection complaints dealt with inadequate food in the mother`s home. J.A.C.P. indicated to Ms. Matheson that his mother was out about four nights a week. He advised that sometimes she would leave meals on the counter but other times, nothing was left. J.A.C.P. was instructed not to use the stove; however, the mother stated that he could use a grille to cook his food. J.A.C.P. told Ms. Matheson that he was making more of his own food.
[60] Ms. M.L.P. indicated, defensively, that she would come home to feed J.A.C.P. or M. would make pizza, or that left-overs were available for him. She testified that if she made food for him to eat in her absence, often he would not eat it but would resort to junk food. She pointed to uneaten school lunches in his backpack.
[61] The mother explained that on Friday nights, J.A.C.P. “had plans” and he would not come home after school. Instead he would go to the arcade to spend time with friends. Two things were troubling about the mother’s approach to J.A.C.P.’s meals. Firstly, the mother did not seem concerned with the quality of J.A.C.P.’s diet from a health perspective. Secondly, there was no indication that the mother equated feeding J.A.C.P. with family time, or with providing him with nuture, guidance and supervision. The lack of food in the house and the haphazard manner in which J.A.C.P. was fed is symbolic of the mother’s seeming indifference to J.A.C.P.’s physical and emotional needs.
[62] On June 21, 2014, the police contacted the mother about her leaving J.A.C.P. alone. The child was frightened because he noticed someone walking around outside. It is telling that the child called his father for reassurance. Instead of understanding this event as an indication of J.A.C.P.’s needs, the mother was defensive about what she regarded as police interference. She testified that she went out in the afternoon to a fishing derby event. She added that M. was supposed to be at home. She stated that she spoke to J.A.C.P. a couple of times during the day. The mother seems to believe that telephone contact is an adequate substitute for in-person parenting.
[63] The mother agreed that J.A.C.P. was left alone when she worked evenings and when she goes out socially. She conceded that when she was only working a couple of nights a week, she might have gone out in the evening dating. She disputed that J.A.C.P. had reported being lonely in her home, and instead testified that the child said he was bored. In my view, her approach to J.A.C.P.`s feelings is part of a pattern of denial. She is so absorbed in her own needs that she fails to see and respond to J.A.C.P.’s needs.
[64] Another example of the mother’s tunnel vision relates to J.A.C.P.’s deteriorating performance at school. When he began school in Dryden, he was earning “As” and “Bs”. His teachers described him as bright and a good athlete. By May of 2015, his teacher described him as becoming emotionally withdrawn. By then, J.A.C.P. was performing at a “C” level. He was having trouble starting when the school day began and his homework was not completed. In short, J.A.C.P. was under-functioning. The school attempted to reach out to the mother about soccer camp for J.A.C.P. but got no response.
[65] By the fall of 2015, J.A.C.P.’s teachers and school principal were concerned that the child had become “edgy.” He was disrespectful, and was rough-housing with other children, to the extent that the school was concerned about bullying. J.A.C.P. had also withdrawn from sports.
[66] The school had long complained that Ms. M.L.P. was hard to reach, whether by telephone or e-mail. When the principal tried to set up a meeting with the mother to discuss these concerns, she was difficult to contact, irritable and defensive. In time, a meeting took place.
[67] The mother`s account of her meeting at the school differs from the account the school told Ms. Matheson. When the school officials raised concerns of J.A.C.P. bullying others, she blamed the “no touching” policy on the playground. She also believed the teachers were pressuring J.A.C.P. by threatening to take away his privilege of participating in track and field if his behaviour didn’t improve. She characterized the teachers as bullying J.A.C.P.. By denying the school’s concerns, she felt she was protecting J.A.C.P.. Unhappily, she did not see this meeting as an effort to communicate to her that J.A.C.P. was not coping at school and needed some parental guidance and support.
[68] The father was certainly wrong to withhold J.A.C.P. from the mother at Easter 2014. While the father’s behaviour cannot be condoned, it was the only occasion when the father did not return him after access. Nevertheless, the mother justified her decision to refuse the summer access in 2014 because she didn’t believe he would return the child. It was a game of tit for tat at J.A.C.P.’s expense. The father brought a motion for access.
[69] Incredibly, even though she knew that her son loved visits with his father, she stated the cancellation was not done out of maliciousness toward J.A.C.P.. This is another example of the mother’s self-absorption. She cannot see how her conduct affects the child. Even after access was ordered, the mother did not comply with the order, indicating that it was not convenient for her schedule. The mother seems to regard the court orders for access as being subject to her convenience or approval.
[70] Even though the access schedule is specified in detail, the father has had on-going difficulties in arranging access with the mother. At times, the mother refuses to commit to transporting the child for purposes of access. On occasion, the father has missed access or had to pay extra fees to change flights. Ms. M.L.P. does not see herself as responsible for these problems.
[71] The mother admitted that she refused Easter 2015 access, claiming that the schedule was too onerous and she couldn’t afford it. She stated that she offered the following weekend and an extra week during the summer. She has not considered how her wilful disobedience of the access schedule might interfere with J.A.C.P.’s schooling, or cause him disappointment.
[72] In the summer of 2015, the court ordered the mother to enroll J.A.C.P. in the local children’s mental health agency known as Firefly. The mother justified her failure to do so by saying that Firefly wouldn’t take J.A.C.P. without his father’s consent. However, she agreed that she didn’t take the child after the court ordered her to do so. Mr. C.J.P. testified that when he tried to speak to the mother about Firefly, she hung up.
[73] The child welfare social worker has attempted to work with the mother to address a number of concerns in the home. One of them was the mother’s failure to follow up J.A.C.P.’s dental care at the health unit. Another was failing to provide M. with glasses that she needed for school.
[74] The social worker recommended counselling for the mother with a goal of teaching her emotional regulation. The mother attended on one occasion in December 2013 when M. was acting out, and five more times during the period that the father was withholding J.A.C.P.. However, she did not follow through on any homework assigned and missed six appointments. When her social worker encouraged her to return to counselling, she responded, “Will counselling help me come to terms with putting my faith in some system that has failed me?” It is evident that Ms. M.L.P. has some deep-seated personal issues that she has not addressed.
[75] The mother has struggled with poverty, which having stable, full-time employment would alleviate. However, the critical issues with her care of J.A.C.P. are not financially-based. Rather, they arise from her failure to understand and respond to J.A.C.P.’s basic needs. I conclude that the mother is too self-absorbed to provide him, on a consistent basis, with the necessaries of life such as food and medical care, or the supervision, guidance and nurture that he requires.
The Plan Proposed by Each Parent
[76] The father has developed a plan for J.A.C.P. that is realistic, given his resources and J.A.C.P.’s needs. J.A.C.P. will attend the neighbourhood school and will be enrolled in soccer or other athletic endeavours. There are children in the area whom J.A.C.P. is getting to know. He has demonstrated his willingness to seek medical help for J.A.C.P. and to follow up. He has also demonstrated his willingness to work cooperatively with J.A.C.P.’s school.
[77] The father hopes to return to work in the Kitchener area so that he can be available to his son. He has the support of his mother who has a good relationship with J.A.C.P..
[78] He proposes that the access schedule will continue as he believes that J.A.C.P. needs to maintain a relationship with his mother as well as his other relatives. He is prepared to foster these relationships.
[79] Instead of the present monthly access, he suggests that there be fewer visits of longer duration. He also proposed that the mother have contact with J.A.C.P. by internet, Skype and telephone. Unfortunately, the mother does not currently have internet service.
[80] The mother did not present a plan for J.A.C.P.’s care. I infer that she believes the status quo is satisfactory. This, too, is an indication that she does not understand J.A.C.P.’s needs. It is evident that the mother is strapped financially. However, she seems unwilling to address care issues that are not financial in nature.
Permanence and Stability of Each Family Unit
[81] The father has presented a plan for J.A.C.P.’s care that is likely to be stable through his teen years as he has the support of the paternal grandmother, stable housing, and employment prospects. Neither parent is well-educated and will have to struggle to be self-supporting, let alone to support J.A.C.P..
[82] Ms. M.L.P. has been J.A.C.P.’s primary caregiver but it cannot be said that her home offers stability. She lives in a community where employment prospects are difficult, especially for those who lack skills and education. To her credit, she has taken the work available to her. Unfortunately, her hours of work have been a factor interfering with J.A.C.P.’s care. Although her father is supportive, she is estranged from her mother and lacks a support network. As well, she seems unable to make use of supports offered in the community, either for herself, or for J.A.C.P.. Instead, she sees the school, her social worker, the health unit and the children’s mental health agency as intruding in her life rather than trying to assist her.
Past Conduct: Violence and Abuse
[83] Each parent has behaved violently toward the other. These incidents occurred prior to the parties’ separation and are not on-going. The parents now have little or no physical contact with each other and so a recurrence is not likely.
[84] The mother alleges that the father deliberately injured J.A.C.P. some years ago. The father’s explanation is that they were play-fighting and any injury was not intentional. He contends that the mother’s allegations are exaggerated. As I have noted, this incident pre-dates the consent order for liberal access made in 2013. J.A.C.P. has not complained of any abuse at the hands of his father. The closeness of their relationship and J.A.C.P.’s desire to live with his father suggests that the relationship is one of trust.
[85] On July 3, 2015, the Dryden police investigated a complaint that the mother had assaulted J.A.C.P.. The circumstances as related by the mother are that she attempted to take J.A.C.P.’s cell phone as a disciplinary measure. J.A.C.P. refused to surrender the phone and a struggle over it ensued. It was alleged that the mother grabbed J.A.C.P.’s arm and dug her nails in; however, the child welfare authorities did not observe evidence of bruising or nail marks and so the incident was closed.
[86] The struggle over the cell phone appears to have been an isolated incident. I am not persuaded that J.A.C.P. is at risk of violence from his mother, although this may be an indicator of the mother’s difficulty in imposing discipline.
The Best Interests of the Child
[87] What custodial arrangement is in J.A.C.P.’s best interests?
[88] I have concluded that J.A.C.P.’s interests are best served by transferring his day-to-day care to his father, C.J.P.. An order shall issue accordingly. I have reached this conclusion for several reasons:
(1) the father has demonstrated a sustained commitment to J.A.C.P., even at a distance, by regular access, telephone and text communication; by seeking out health care as required; by contact with J.A.C.P.’s school, child welfare authorities, and even with police to ensure that J.A.C.P.’s needs are being addressed;
(2) he has presented a viable plan for J.A.C.P.’s care that addresses housing, education, recreation, nurture, and on-going contact with J.A.C.P.’s mother and her extended family;
(3) he has the support of his mother to assist with housing and day-to-day care of J.A.C.P. in his absence;
(4) he has shown a willingness to learn about and improve his parenting skills;
(5) he understands and responds to J.A.C.P.’s need for care, guidance, stimulation, and nurture;
(6) he has developed a trusting relationship with J.A.C.P., such that J.A.C.P. wants to be in his care.
[89] I have also concluded that the transfer of J.A.C.P.’s care should take place immediately. Although this change will disrupt J.A.C.P.’s school year, it is evident that J.A.C.P. has been waiting at least a year for this change to take place and has, through his behaviour, expressed frustration at the delay in the court process. In the meantime, his attitude at school has deteriorated and his grades have plummeted. He complains of loneliness. No good can come of delaying the move when J.A.C.P. is obviously reacting with frustration to his current circumstances. His father is ready to receive him and J.A.C.P. is ready to go.
[90] It is also evident that the mother has long been in denial about J.A.C.P.’s wish to live with his father. The trial of this case has made it abundantly clear what his wishes are. There is a risk that recriminations will follow.
[91] Of further concern is the fact that the mother has not been meeting J.A.C.P.’s need for care, guidance and supervision. There is no indication that the mother is willing to change. She has not taken any steps or made any proposals to improve her parenting.
Is Joint Custody Still Appropriate?
[92] An order for joint custody requires parents to work with each other respectfully in order to make decisions about their children. It is obvious in this case that these parents cannot do so. The mother has failed to abide by court orders for access repeatedly and has, from time to time, refused to accept or return the father’s phone calls. She states that the father calls her names. At least, once, the father has disobeyed a court order. Neither parent’s behaviour is indicative of respect or cooperation.
[93] J.A.C.P.’s best interests are served by his father having sole custody of him, so that the father has the authority to make decisions about the child as may be required.
[94] C.J.P. shall therefore have sole custody of J.A.C.P., born […], 2003.
Should Access be Varied?
[95] The mother’s case was premised solely on the position that there was no material change in circumstances. She did not present any position, in the alternative, as to what access arrangements should be if custody of J.A.C.P. was varied. She testified that the present access scheme was onerous for J.A.C.P. but submitted in closing that the access should remain the same.
[96] The father submits that the number of access periods during the year should be varied to allow for fewer visits but longer periods of time. Specifically, he suggests that there be longer periods of access at Christmas, March Break and summer. He also suggests that extended long weekends be ordered for Family Day and Thanksgiving, but that weekend access for September, November, and May be eliminated.
[97] He also agrees that child support should not be ordered at this time, given the mother’s income for 2015 is projected to be $13,440. Generally, I agree with these submissions. The current regime of access, on a monthly basis, is too onerous. It is tiring and has interfered with J.A.C.P.’s schooling. It is also expensive, given the distance between Dryden and Kitchener, and having regard for the cost of plane tickets and ground transportation. The mother has made it clear that she finds the travel schedule interferes with her work schedule and is difficult to manage when she does not drive. As well, the bus is expensive and the bus schedule does not necessarily coincide with the plane schedule in Thunder Bay.
[98] J.A.C.P.’s relationship with his mother and his mother’s family is important and must be sustained. The father has sufficient income, particularly if he returns to full-time work as he intends, to assist the mother with costs of access.
[99] So long as the mother resides in northwestern Ontario, she shall have access to J.A.C.P. as follows:
(1) the first half of the Christmas school vacation, commencing the day before the start of the school vacation in even-numbered years and in odd-numbered years, the second half of the school vacation, always having regard for the child’s wishes. The mother shall advise the father in writing by October 1 of each year of the proposed travel plans including arrangements for ground transportation for the child. Absent a medical emergency, there shall be no change to these plans;
(2) Family Day weekend, commencing the day before the long weekend;
(3) March Break, commencing the day before the school holiday;
(4) summer access commencing the day after the end of the school term until July 31st;
(5) Thanksgiving commencing the day before the long weekend;
(6) in each instance, the child shall be returned to the father at a reasonable hour no later than the day before school resumes;
(7) in each instance, the father shall obtain from the child’s teachers any school work that the child will miss during his absence from school;
(8) apart from Christmas which is specified above, the mother shall advise the father in writing at least one month before the child’s travel of the proposed travel plans and proposed ground transportation for the child and, absent a medical emergency, there shall be no change to these plans. The father shall purchase a plane ticket for the child at his expense for the Christmas, March Break and Thanksgiving access periods and shall arrange ground transportation for him to and from Pearson airport. The mother shall pay air fare for the child for Family Day and summer vacation access and shall arrange and pay for ground transportation for the child between her home and the Thunder Bay airport in time to pick up the child for or deliver the child from all access.
(9) If the child is unable, because of illness, to travel as the parents have arranged, the parent in whose care he is shall obtain and present to the other parent a medical certificate attesting to the parent that the child was medically unfit to travel. If the mother’s access was impeded by the child’s illness, alternate access shall be offered forthwith by the father.
(10) If either parent is unable to transport the child, he or she shall arrange for a responsible adult to accompany the child.
(11) The mother shall also be entitled to reasonable access to the child on reasonable notice if she is in southern Ontario, provided such access does not interfere with the child’s schooling;
(12) The mother shall be entitled to daily telephone, text, internet or Skype access to the child provided this contact does not interfere with the child’s schooling, bedtime, or daily routine.
(13) The local police force having jurisdiction shall locate, apprehend and return the child to the parent entitled to have care of him in accordance with the terms of this order if requested by the parent.
(14) If there is a material change in circumstances of either party or the child, the provisions for access may be reviewed.
Child Support
[100] Having regard for the mother’s current annual income of $13,440 and the costs of access, there will be no child support ordered at this time. The mother shall immediately advise the father of any change in her financial circumstances and provide proof of her change in income. Child support, retroactive to the date of the change in income, may be varied upon the application of either party.
Conclusion
[101] I am indebted to Mr. Elliott and Ms. Matheson, representing the Office of the Children’s Lawyer, for their help in this case.
[102] The order of Mr. Justice J. McDermott dated June 28, 2013, is varied in accordance with the above reasons. If the parties and the Office of the Children’s Lawyer cannot agree on costs, any party may apply to the trial coordinator within 30 days of the release of these of these reasons for an appointment to argue costs, failing which costs will be deemed to be settled. Counsel have leave to appear by teleconference or videoconference to argue costs if so advised. Costs submissions are not to exceed five pages in addition to bills of costs and offers to settle.
“Original signed by”____
The Hon. Madam Justice H.M. Pierce
Released: February 17, 2016
CITATION: M.L.P. v. C.J.P., 2016 ONSC 1203
COURT FILE NO.: FS-14-5396
DATE: 2016-02-17
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
M.L.P.
Respondent
- and -
C.J.P.
Applicant
REASONS FOR JUDGMENT
Pierce J.
Released: February 17, 2016
/cs