Court File and Parties
BARRIE COURT FILE NO.: FC-10-609-01 DATE: 20160711 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: B.C., J.M., and J.P. Applicants – and – S.W. Respondent
Counsel: B.C., J.M. and J.P., Self-Represented S.W., Self-Represented
HEARD: May 16, 17, 18, 19, 20, 24, 25, 26, and 27, 2016
Reasons for Decision
QUINLAN J.:
Overview
[1] Children can be profoundly harmed by family conflict. In this case, family conflict has resulted from a grandmother’s interference in her son’s marriage and her attempt to usurp the role of mother.
[2] B.C. (father) is the father of J., born […], 2006, and B., born […], 2012. He, along with his step-father, J.P. (grandfather), and his mother, J.M. (grandmother), were the original applicants in this family law proceeding leading to the final Order of May 31, 2010. They are the moving parties in this Motion to Change. The respondent, S.W. (mother) is the children’s mother.
[3] In order to protect the privacy of the children, in particular J. for whom the conflict has caused significant distress, I will refer to the parties and the children by their initials.
Chronology
[4] In 2010 after the parents separated for a second time, the mother took J., then the parties’ only child, with her. This prompted the grandparents, with whom J. had been spending much of her time, to join with the father to bring an urgent without notice motion for J.’s return and an application for custody. The mother was ordered to place J. in the care of the grandparents on a temporary basis, and after input from the Children’s Aid Society (CAS), the parties entered into final Minutes of Settlement on May 31, 2010. Final custody was granted to “both” parties equally, with parenting time equally shared between the father and the mother, the parties were to consult before making major decisions, and the grandparents were to be the second choice as daycare providers for the mother if the father was not available.
[5] The final Order obviously needs to be changed given the number of new events in the parties’ lives since that Order was made. The parents reconciled. B. was born on […], 2012. By the fall of 2013, the parents’ relationship had deteriorated again and they separated. The father moved in with the grandparents where J. had still been spending much of her time, and the mother and B. remained in the matrimonial home. Alleging a concern that the mother might leave the jurisdiction with both children, the father and grandparents brought an urgent without notice motion and a Motion to Change the final Order, seeking that the father have custody of the children, the children primarily reside with the father and grandparents, and the mother have access and be prohibited from leaving Barrie without a court order or consent. In her response to the Motion to Change, the mother sought custody with weekend access to the father. On December 5, 2013, the parties entered into temporary Minutes of Settlement which provided that primary residence of B. remain with the mother, primary residence of J. remain with the father, and there be alternating weekend access and one mid-week visit. The involvement of the Office of the Children’s Lawyer (OCL) was sought.
[6] Repeated motions followed, some with and some without notice: for contempt, supervised access, disclosure, March Break and summer access, orders to return J., take J. to appointments, administer medication to J., to change the temporary primary care of J., return primary residence to the father and grandparents, and for child support.
[7] The OCL investigated and in July 2014 made recommendations, including that the mother have custody of J. and B. and, in view of her plan to move from Barrie to Orangeville, that she be permitted to move within a 45-minute drive from Barrie. Since the fall of 2013 when the parents separated, B.’s primary residence had been with the mother and J.’s with the father. On August 21, 2015, Eberhard J. made a temporary Order covering all aspects of the interim care of the children. She ordered that the mother and father continue to have joint custody of both children, J.’s primary care be transitioned to the mother by September 2015, the mother have primary care of both children and the father have the children on alternate weekends. Eberhard J. set the matter for a trial management conference in October 2015 however, as a result of a number of issues the trial did not proceed in the November 2015 sittings and was adjourned to the May 2016 sittings.
The Law - Best Interests of the Children
[8] The father and the mother each seek sole custody of the children. The merits of an application for custody of or access to a child shall be determined on the basis of the best interests of the child.
[9] Subsection 24(2) of the Children’s Law Reform Act sets out the factors the court must consider in making an order for custody or access. This subsection reads as follows:
Best interests of child
(2) 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 reasonably be 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) any plans proposed 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.
[10] Although neither party sought joint custody, I have considered whether joint custody should be ordered. The Ontario Court of Appeal in Kaplanis v. Kaplanis, 2005 ONCA 1625, [2005] O.J. No. 275 sets out the following principles in determining whether a joint custody order is appropriate:
(i) There must be evidence of historical communication between the parents and appropriate communication between them. (ii) Joint custody cannot be ordered in the hope that it will improve communication. (iii) Just because both parents are fit does not mean that joint custody should be ordered. (iv) The fact that one parent professes an inability to communicate does not preclude an order for joint custody. (v) No matter how detailed the custody order, there will always be gaps and unexpected situations, and when they arise they must be able to be addressed on an ongoing basis. (vi) The younger the child, the more important communication is.
[11] Ultimately, the court must decide if a joint custody order is in the children’s best interests and consider the factors set out in subsection 24(2) of the Children’s Law Reform Act in reaching this decision.
[12] It is clear from the evidence that joint custody would not be appropriate: there is poor communication and the parties fundamentally disagree on too many issues affecting the children’s best interests: see Graham v. Butto, 2008 ONCA 260 and Roy v. Roy, 2006 ONCA 15619, [2006] O.J. No. 1872 (CA). A reasonable measure of communication and cooperation is not in place and is not achievable in the future to allow for a joint custody order, such that the best interests of the children could be ensured on an ongoing basis: see Warcop v. Warcop, 2009 ONSC 6423.
[13] The best interests of the children are met by having a loving relationship with both parents. Such a relationship should be interfered with only in demonstrated circumstances of danger to the children’s physical or mental well-being: see Pastway v. Pastway (1999), 49 R.F.L. (4th) 375 (Ont. Ct. (Gen. Div.)). The children should have maximum contact with both parents if it is consistent with the children’s best interests: see Gordon v. Goertz, [1996] 2 S.C.R. 27.
[14] There is a presumption that regular access by a non-custodial parent is in the best interests of children. The right of a child to visit with a non-custodial parent and to know and maintain or form an attachment to the non-custodial parent is a fundamental right and should only be forfeited in the most extreme and unusual circumstances: see Montgomery v. Montgomery, 1992 ONCA 8642, 42 R.F.L. (3d) 349 (Ont.CA).
The Evidence and Issues
The OCL Report
[15] On July 22, 2014, Adrienne Ambrozik, the clinical investigator engaged by the OCL to make an investigation in this proceeding, delivered her Report.
[16] Ms. Ambrozik concluded that the father had failed to adequately address his issues with alcohol and mental health and to respond to the CAS’ concerns about his ability to care for his children without the grandparents’ supervision. She found that the grandmother minimized the father’s issues with alcohol and mental health and blamed the mother for them: for example, the grandmother was not able to acknowledge that the father had threatened suicide even though she was aware that the grandfather had seen a “noose” hanging from the father’s basement ceiling after the parents had an argument.
[17] The investigator found evidence to support the mother’s claim that the grandmother had been unable to shield her animosity toward the mother from J. and had negatively influenced J. towards her mother. She determined that J. was clearly aware of the conflict between her mother and grandmother, and that the adult matters that the grandparents discussed with J. had led her to soil herself. The investigator noted that J. was aware that her grandparents planned to review the issue of summer access in court if J.’s mother would not agree and she concluded that the foregoing likely pointed to the reason J. had difficulty sleeping and required anxiety medication.
[18] The investigator found that the mother had insight into the likely need for J.’s anxiety medication: the exposure to adult information about the custody and access dispute, the parental separation, the “conflictual” relationship between mother and grandmother, and the birth of a new sibling. The grandparents, on the other hand, attributed J.’s anxieties to her not wanting to spend time with her mother. The father was unable to offer any reason J. might suffer from anxiety and deferred to his mother for an explanation.
[19] As a positive, the grandmother had taken responsibility for J.’s physical health. However, the grandmother repeatedly spoke negatively about the mother to the clinical investigator, CAS, the family doctor and other collateral contacts. As an example, the grandmother told the investigator she would not allow J. to remain in “that sweat box” (the mother’s apartment) for the summer to be treated “like a caged animal” by her mother.
[20] The investigator found that although the mother was able to take care of her own emotional health and appeared attuned to J.’s emotional needs, she did not provide adequate stimulation for her children and should seek counselling with the Children’s Mental Health Centre or enroll in a parenting course.
[21] The investigator noted that B. had resided primarily in his mother’s care and shared close and spontaneous relationships with J., his father and his grandparents. B. visited the applicants’ home regularly despite the conflict and distrust between the mother and the applicants.
[22] The clinical investigator concluded that the father could not be considered an appropriate custodial parent due to CAS’ concerns that he was not fit to provide independent care to his children because of his untreated mental health and alcohol issues. She found that despite the mother’s deficits in providing sufficient stimulation for her children, the mother was an appropriate and available parent, and the mother’s plan to move to Orangeville for employment and to distance herself and her children from the current conflict with the father and grandparents was not unreasonable.
[23] She recommended, among other things, that:
(i) the mother have custody of J. and B., and be permitted to move within a 45-minute drive from Barrie; (ii) the father have access under the supervision of the grandparents on alternate weekends and one evening per week; (iii) J. be allowed to travel with the grandparents to their cottage for two weeks in July 2014; (iv) J. transition to the mother’s primary care by September 2014; (v) the mother not smoke in the home; (vi) the mother obtain counselling or education with respect to providing adequate stimulation and the importance of commitment and consistency of care for the children; (vii) the father attend anger management counselling, Canadian Mental Health Association Addictions Services, A.A. or a similar program at least three times per week and attend with CAS to ensure compliance with their expectations; (viii) the grandmother obtain anger management counselling as well as personal counselling aimed at assisting the father with independence and providing the children with a conflict-free environment; and (ix) the grandparents receive counselling aimed at personal issues.
Findings in Relation to the OCL Report
[24] The applicants did not file a formal statement disputing the OCL Report. At trial they raised many concerns about the manner in which the investigation was conducted, and about the contents of the Report and its recommendations. I will deal with each of the applicants’ concerns in turn:
(i) “The OCL Report contains no analysis of the effect “such dramatic changes” in custody and primary residence would have upon the children, of the rights of the children to continue to have frequent access with the applicants and their extended family, and sought no opinion from the treating psychiatrist with respect to removing J. from her status quo”. I find that the investigator did consider these matters and reasonably determined that although the move would cause some anxiety to J., the benefits of having a gradual change into the primary care of her mother were much less worse than the current situation. The move from Barrie to Orangeville would provide the opportunity for a less conflict-ridden environment with less negativity where J.’s relationship with her mother could be allowed to flourish. The investigator supported her recommendations. She was impressed that B.’s relationship with the applicants was close and spontaneous and there were regular visits between B. and the applicants despite the conflict and distrust between the parties. The investigator had significant concerns about negative information that J. was receiving from the applicants about her mother and the manner in which the grandmother presented the mother in the interviews for the Report. The investigator testified that she did not know how much Dr. Rajkhowa, J.’s treating psychiatrist, was aware of the conflict within the home because he was not prepared to speak to the investigator due to his office policy; (ii) “The investigator demonstrated the existence of and was highly influenced by a personal relationship with the mother’s counsel”. The applicants point to phone messages left by the investigator on the applicants’ voicemail in which the investigator referred to all four parties and mother’s counsel by their first names and asked about make-up time for the mother’s access visit. I have reviewed the messages and considered the investigator’s evidence. I can find no support for this allegation; (iii) “The investigator did not seek the input or opinion of the treating psychiatrist”. The investigator testified that J.’s psychiatrist, Dr. Rajkhowa was not prepared to speak to her and he referred her to the family physician. She reviewed Dr. Rajkhowa’s notes and spoke to the family physician. In the circumstances I am satisfied that the investigator could not reasonably have done more; (iv) “The investigator did not speak with J.’s allergist”. The investigator testified that when Dr. Fischer, J.’s allergy specialist, received the request for information, his office sent the chart notes to her, a practice that was not unusual. I am satisfied that the investigator reviewed the chart notes and was able to obtain the relevant information and as such did not need to speak personally with Dr. Fischer; (v) “The investigator did not speak with any of the teachers at A[…] regarding J.”. The Report clearly indicated that the teachers had been advised by the School Board to not provide information to the OCL. In addition, the investigator spoke to the principal at A[…]; (vi) “The Report lists two individuals as professionals without reference to their personal relationship with the mother”. In the body of the Report one of the “professionals” was referred to as the mother’s friend. I find that the investigator reasonably listed the two individuals under the “Professional Collateral Information” section in view of their status as previous childcare providers; (vii) “The investigator interviewed the mother’s aunt, but none of the applicants’ friends, family or neighbours”. The investigator testified that because of the number of professional contacts and the fact that the applicants included the children’s father, grandmother and grandfather, she felt she had sufficient information with respect to the applicants. The mother, on the other hand, had specifically requested the investigator speak to her aunt and the investigator felt that in order to be balanced, it was fair to speak to someone from the mother’s family. I find her actions in this regard were reasonable; (viii) “The investigator reported contacting Catholic Family Services regarding J. when it was actually the father who was their client”. Although this typographical error appeared in the listing of “Professional Collateral Contacts”, it was clear from the body of the Report that the contact was made in relation to the father; (ix) “The investigator did not read the file notes of J.’s mental health therapist”. The investigator testified that she conducted a phone interview with J.’s therapist, Jody Copeland, and Ms. Copeland testified that the investigator accurately recounted their interview in her Report. Ms. Copeland testified and was asked about her notes. There was nothing beyond what was in the Report that in any way assisted the applicants; (x) “The investigator’s list of court documents did not include the final Order of May 31, 2010”. As the applicants were aware, the final Order was not typed until well after the OCL Report was delivered. The material provided to the investigator included the barely legible Minutes of Settlement that formed the basis of that final Order. Moreover, the investigator reasonably and appropriately considered the arrangement that was then in place for the children pursuant to the temporary Order of December 5, 2013. Contrary to the applicants’ assertion, the investigator was not confused about who had custody of J. before December 2013; (xi) “The investigator asked excessive questions about where B. received his curly hair”, which, when the applicants read in the Report that the mother had undergone prenatal screening at a hospital outside Barrie, led them to be concerned that the investigator was questioning B.’s paternity. The investigator testified that she had no doubts about B.’s paternity and was not given information that would bring his paternity into question; if there had been a discussion about family resemblances, she might have asked to see photographs. This was clearly not a concern to the investigator. The investigator testified that it may have been that prenatal samples or specimens were sent to the hospital outside of Barrie, and that the mother did not even attend. The mother was not cross-examined about this issue; and (xii) “The OCL Report is stale, unbalanced, biased and one-sided”. Although in a perfect world the trial would have been held closer in time to the completion of the Report, I find that the Report remains helpful both for its information and its recommendations. Having considered the evidence, I find that neither the Report nor the investigator’s evidence was unbalanced, biased or one-sided; the failure of the investigator to agree with the applicants’ position does not make it so. The recommendations in the Report, confirmed by the investigator’s evidence, were supported by the considerable collateral information provided to her and the observations she made in her investigation. Some of the recommendations have been implemented and there has been evidence of what has transpired since the Report.
[25] It was clear from the tone and content of the applicants’ cross-examination of the investigator that the applicants had little regard for Ms. Ambrozik or her recommendations. The grandmother’s animus towards Ms. Ambrozik was demonstrated when without any basis one of the first questions the grandmother asked was whether English was the investigator’s first language. I, on the other hand, found Ms. Ambrozik’s evidence to be fair, balanced and supported and her Report and recommendations to be helpful.
J.’s Education
[26] From Kindergarten to Grade 3, until June 2015, J. was a student at A[…] in Barrie and in a regular class with a regular curriculum. After she enrolled in her Grade 4 year at P[…] School in Orangeville in September 2015, testing was performed and an Individual Education Plan (IEP) was formulated. In the 2015 to 2016 academic year, J. was in Grade 4 at P[…]. Her last report card and her IEP from February 2016 disclosed that J. was at an early Grade 3 level; according to P.A., the principal of her current school, by mid-March 2016 J. was performing at a mid-Grade 3 level.
[27] The applicants attribute J.’s below-grade level to spending time with her mother through the summer of 2015, and to being in her mother’s primary care and in a less desirable school for this last academic year. The evidence, however, does not support this. As well as the many concerns raised in J.’s Ontario School Record (OSR) throughout J.’s schooling, Dr. Rajkhowa has referred to the possibility that J. has a learning disability.
[28] The principal at A[…] told the investigator in June 2014 that J. was struggling academically and had been working with a special education resource teacher for help with reading and writing. In June 2015, before J. spent time with her mother over the summer and before she transitioned into her mother’s primary care, the bulk of J.’s marks in academic subjects were C and C-. Although the vice-principal at A[…] testified that J. was at grade level in Grade 3 achieving mainly Cs, he confirmed that a mark of C is below the provincial standard.
[29] J.’s current principal, P.A., has an impressive background as an educator. She has been in the education field since 1988. She has been a teacher, a special education consultant, a special education coordinator, a vice-principal and a principal. She had the benefit of the OSR to assist her when she gave her evidence. P.A. testified that J. was in fact below grade level at her previous school. P.A. testified that achieving a C is not meeting grade level expectations and anything less than a B means Ministry standards are not being met.
[30] P.A. testified that there were concerns as to whether J. was at grade level from Kindergarten onwards, and there were difficulties with literacy and math from the beginning. Reports in the OSR show that in a standardized assessment done in Grade 2, J. scored in all areas below the tenth percentile.
[31] The OSR included a report from John Mattys, a psychometrist who performed testing on J. in Grade 3 and found strong indications of inattention and impulsivity. At a meeting held at A[…] on February 10, 2015 in J.’s grade 3 year, a plan was formulated to do a speech and language assessment in Grade 4, as well as an assessment of J.’s regulation skills. P.A. testified that typically these kinds of referrals are not indicated for children who are doing well academically. P.A. testified that a report in the OSR from Dr. Rajkhowa dated June 9, 2015 indicated that J. was having difficulties in school; P.A. testified that the oral reporting that J. was allowed to do is considered to be an accommodation. In that report, Dr. Rajkhowa noted his fear that with advancing grades, J. would likely be unable to keep up.
[32] After J. was enrolled in P[…], a number of tests were performed. J. scored at less than mid-Grade 2 levels in reading, writing and math, so an IEP was set up. The IEP also provides J. with non-academic accommodations because of J.’s diagnosis of ADD with co-morbid anxiety disorder.
[33] P.A. testified that J.’s level of functioning when she arrived at her current school “was not something new, not something [the school] invented, and not something she caught over the summer”. Although P.A. agreed that there is some summer learning loss, she testified that in her almost 30 years as an educator, including as a special education consultant dealing with thousands of students, she has never seen a summer learning loss of 18 months’ grade level.
[34] P.A. testified that J. has been receiving extra help in decoding, comprehension and reading strategies in a small group for 40 minutes daily. She has increased her scores from less than Grade 2 to mid-Grade 3. The intervention has been extremely positive. P.A. concluded that J. has been very well-resourced at her current school and is receiving support she did not receive at her previous school. Although P.A. does not think J. would perform at a Grade 4 level by the end of her Grade 4 year, P.A. described J.’s progress academically as “tremendous… she’s made substantial gains of more than a year… she is one of our success stories”.
[35] According to P.A., J. will continue to receive support until she reaches her grade level. Although J. is on the list for psycho-educational testing, P.A. testified that she is unlikely to receive it because the programming and interventions are working for her.
[36] Although the applicants focused on what they saw as J.’s emotional distress at changing schools, P.A. testified that J. is far more independent now: she has decreased the frequency of her meetings with a Child and Youth Worker, her attendances in the “hub room” (a room to which J. can remove herself) have lessened and J. transitioned well to her current school.
[37] A report from Dr. Rajkhowa dated May 9, 2016 was filed on consent. His report indicated that J. has been functioning well on her present medication. J.’s teacher, M.S., testified that J.’s hub breaks decreased from two times per day to none at all around Christmas 2015. At the time of the trial, J. was attending about once per day.
[38] In the logbook that accompanies J. back and forth between the parties’ homes, the mother has regularly provided information concerning J.’s schooling. Although initially there was some difficulty in the father being able to obtain information from the school, this appears to have been resolved.
[39] In November 2015, J.’s mother arranged for J. to attend Kumon, an independent tutorial program. Although the applicants were critical of the mother’s actions in this regard, stating that the mother should be providing this type of review herself, attendance at Kumon was part of the agreement the mother came to in October 2015 with Dr. Rajkhowa, a support he described as “likely to be helpful”. P.A. described Kumon as a “review and practice” tool and an excellent support.
[40] I accept that the grandparents have been proactive in J.’s education. From Grade 1 onwards they sought testing and later took steps to ensure J. received a computer to help with her ability to print. They paid for the referral to Mr. Mattys, the psychometrist from whom the diagnosis of ADD was obtained. However, the applicants are unable to accept that J.’s academic functioning is not the mother’s fault. The grandmother testified that they noticed a drastic decline in J.’s ability in the summer of 2015 when J. was spending more time with her mother. The grandmother testified that J. was home (meaning with them) for three days during the trial and could no longer tell time or give any money values and could barely read. This evidence flies in the face of the testimony from J.’s teacher and principal and it reinforces and confirms the extent to which the grandmother is prepared to cast blame on the mother.
[41] I accept P.A.’s evidence that J.’s academic functioning in September 2015 was not as a result of “summer learning loss” and that J. had been struggling academically for years. I find that J.’s transition into her mother’s primary care has not negatively affected her education or her school performance. Rather, there have been positive gains. I find that over the Grade 4 school year, since J. has been in her mother’s primary care, her educational needs have been properly addressed. She is receiving the necessary supports and is doing well.
J.’s Health
J.’s Mental Health
[42] J. has been under the care of Dr. Rajkhowa since February 2013, before her parents’ final separation. She has been diagnosed with ADD with co-morbid anxiety disorder. Although she may have a learning disability, psycho-educational testing has not been done to confirm this.
[43] J.’s medication has been adjusted a number of times: on October 26, 2015, Dr. Rajkhowa increased J.’s medication with a view to increasing her attention and concentration on school tasks. In December 2015, he told J.’s mother and grandfather that J. “needs consistency and support and calmer environments”. Dr. Rajkhowa concluded in his report that J. is functioning well on her present medication and her academic function has improved. His current recommendations are that J. continues on the present medication until her mental state has improved completely and she is functioning to the expected level in all areas, and that she attend at scheduled appointments for ongoing follow-up treatment.
[44] The clinical investigator testified that her concerns about J.’s anxiety were not derived from the treating psychiatrist’s diagnosis, but rather from the parental conflict she observed. She was troubled that J. had not been comfortable sleeping at her parents’ home and also that the grandparents did not encourage J. to do so. The investigator concluded from interviews with police, CAS and collateral sources that J. was definitely aware of the conflict between her grandmother and her mother. When the investigator met J., J. said and did things that the investigator thought were causing J. anxiety, upset, sadness and confusion. J. presented her mother in a derogatory light in the applicants’ presence. During the mother’s home visit with the investigator, J. said that her grandmother told her that she (J.) lives with her, not her mother; J. said she told her grandmother that she lives with both because “my mom is my mother”. The grandmother said things about the mother that concerned the investigator: for example, the grandmother described her home as a “mommy-free zone”. The investigator was of the view that the grandmother’s strong feelings would “leak out” to J. Jody Copeland, J.’s therapist, told the investigator that she had heard a lot of concerns from the grandmother about the mother’s parenting. Ms. Copeland had met with J. a number of times and felt J. was well-adjusted and high functioning.
[45] Considering the conflict between the adults and the environment in the applicants’ home (where the father’s care of the children needed to be supervised), the investigator concluded that the mother’s proposed move to Orangeville would result in less conflict and less negativity and would allow J.’s relationship with her mother to flourish. The clinical investigator thought that the mother had a better sense of J.’s anxiety and the reasons for it than did the applicants. Although the investigator agreed that a change in school could be anxiety-provoking, she thought it would be positive if there would be less conflict and less negativity for J. She was not surprised if J. experienced anxiety after the move to the new school: she testified that there were a lot of changes, J. is an anxious child, and it was a transitional period. Despite the fact that implementing her recommendations on a temporary basis did not take away J.’s need for anxiety medication, the investigator hoped that if the level of conflict decreased and J. had more stability, she would eventually no longer require anxiety medication.
[46] Although the grandparents have made efforts to assist J. in her struggles with her mental health, for example by arranging for J. to see Ms. Copeland, Dr. Rajkhowa and Kinark, I find that the evidence supports that the applicants have either had a major hand in creating J.’s difficulties with anxiety or have by their actions fueled them. I am very troubled that the applicants do not seem to recognize the negative impact on J.’s mental health of the conflict between the grandmother and the mother.
[47] As I have set out earlier, the investigator reported that J. was aware that her grandparents planned to review the issue of summer access in court if J.’s mother would not agree. J. told the investigator that she was not sure what she was doing for the summer, as “if Mom says no,” then they “have to talk to a judge because if she stays with Mom then she would have to stay in a small building for the summer”. J.’s mother told the investigator that J. arrived for access in the summer of 2014 very distraught and toting a binder full of photographs of her grandparents’ cottage. Shortly after, J. wet herself. J.’s grandmother acknowledged that J. phoned her mother to ask for permission to visit their cottage. She testified that they could not be responsible for what J. said; that J. was never prevented from calling her mother or told what she should say. I find that the grandmother has failed to take responsibility for involving J. in an adult issue. The applicants are or should be abundantly alive to the fact that this issue causes J. significant anxiety, but instead appear to be so invested in being able to take J. to their cottage that they have lost the ability to put J.’s interests first.
[48] The grandfather told the investigator that “they no longer discuss court” because in the past J. would respond to this by “wetting her pants”. In his evidence, he denied having discussed court with J. or having said this to the investigator and he offered an alternative explanation for J. soiling herself. I have considered the evidence and I accept the investigator’s reporting of the grandfather’s statement. The evidence satisfies me that the grandparents have discussed court and adult issues with J. and that they are aware that this has caused J. significant distress.
[49] I infer that the grandparents’ inability to separate themselves from J. has also likely contributed to J.’s anxiety. The grandmother testified that J. “made it clear” when the grandparents returned from a trip to Mexico in 2013 that they did not have her consent to go anymore. The grandmother testified that J. would not even let them go without her for a long weekend and that the only issue they had was if the mother wanted J. to stay at her (the mother’s) place. The grandfather described J. as being “kind of our life”. He testified that it must have been a “real scary time” for J. when the mother kept J. instead of letting her stay with the grandparents after the parents’ separation in 2010. Yet, after encouraging J. to be overly dependent on them, the grandparents refused to exercise mid-week access after the August 21, 2015 temporary Order and did not see J. for almost two weeks at a time. They testified that the drive from Barrie to Orangeville was “too far” to exercise mid-week access. Then they complained that J.’s anxiety increased by mid-October 2015, after a period where they had seen J. only one weekend after she transitioned into her mother’s care. This demonstrates either an utter lack of insight into J.’s emotional health or an attempt to ensure that the transition into her mother’s primary care failed.
[50] The grandparents insisted to the OCL and to the court that they have supported and encouraged a relationship between J. and her mother. I disagree. Their failure to do so has been long-standing. I share the investigator’s concern that the grandparents appeared to do nothing to encourage J. to sleep at her parent’s home years ago when she “refused to stay with her mother”. They seem to consider themselves to be better “parents” and so think there was nothing wrong in them taking over the raising of J. They are unable to accept that they have in no way supported and encouraged a relationship between J. and her mother.
[51] At the outset there were problems with the mother’s commitment to attending at and taking J. to appointments with Dr. Rajkhowa and with her acceptance of Dr. Rajkhowa’s opinion that J. needed medication. In order to allay her concerns, the mother turned to social media. I infer that the information she received through these contacts, combined with the mother’s attendances at J.’s appointments with Dr. Rajkhowa since J. has been in her primary care, have had the effect of the mother “buying in” to the process. I am satisfied that the mother now understands J.’s need for psychiatric treatment and medication and is prepared to ensure that J. receives the assistance she requires. Taking J. to counselling in the fall of 2015 demonstrated her insight into J.’s continued need for assistance with her mental health.
[52] J.’s mother testified that she is happy with Dr. Rajkhowa and does not plan to find a new psychiatrist for J. She understandably hopes that with less conflict and stress, J.’s medications will be decreased.
J.’s Asthma
[53] The applicants’ concern about the mother smoking in the home is another factor that continues to cause significant conflict. The grandparents testified that J. has been diagnosed with asthma. They complain of the mother’s unwillingness to accept that diagnosis. However, the mother’s understanding accords with the information provided to the investigator by Dr. Fischer, J.’s allergist: J. has been tested for asthma but did not clinically meet the criteria for the diagnosis.
[54] The grandparents testified that Dr. Ruddock, J.’s family physician, referred J. to a second family doctor who had “an interest in asthma”. They testified that the second doctor made a diagnosis of asthma in 2013, before the involvement of the OCL. A document shown to the investigator on cross-examination referred to a prescription for J. until her cough “resolved”. The grandparents pointed to a letter from Dr. Ruddock, written before his discussion with the investigator, which is premised on J. having asthma. That information is inconsistent with the information from Dr. Fischer’s file.
[55] The grandparents’ unrelenting focus on this issue is demonstrated by the following:
(a) the grandfather referred to a link between children having ear infections (which J. had) and a mother smoking during pregnancy; (b) the grandmother testified that J.’s asthma was worse after her visits with her mother; (c) the grandmother testified that they “cannot get the indoor smoking that affects J.’s health to stop”; (d) the grandfather testified that the applicants contacted CAS when J. was ill after a visit with her mother; he concluded that her illness was “obviously caused by cigarette smoke”; (e) the grandmother complained that the mother did not provide J.’s asthma medication to her, as confirmed by the fact that the prescription was not refilled; (f) the grandmother was concerned that the mother would not encase J.’s medication in a “gummy bear” and that this caused J. to “choke”; and (g) the grandmother testified that J. “never coughed at the end of August before” and attributed this to J. not living in a “proper environment”.
[56] The CAS worker reported to the investigator that during her involvement with the family in the fall of 2013, she did not smell smoke in the mother’s home. At trial she testified that if she smelled smoke, it was very faint. The CAS worker commented that smoking was an issue continually raised by the grandparents. Although the mother admitted to the investigator that she occasionally smoked in a confined area of her apartment with the door closed and the window open during the winter months, the investigator did not smell smoke in the mother’s home.
[57] The mother testified that she gave J. her prescribed medications based on her understanding of Dr. Fischer’s recommendation that one of the medications was to be given only on nights when J. had a chronic cough. She testified that she had not needed to refill one of the prescriptions because she had sufficient medication. Her evidence was that J. did not need to take her medication in a gummy bear because, as she noted in the logbook, J. is a “big girl”.
[58] The mother’s evidence that J. did not suffer from asthma symptoms after being in her care was supported by J.’s teacher, who testified that J. had a “random” cough like anyone, and by J.’s school attendance record showing only four days absent from the time in mid-September when J. transitioned to her mother’s primary care. I have considered the grandparents’ complaints of the degree to which smoking affects J.’s health and find them to be exaggerated. I find that the mother’s more balanced evidence on this issue, supported as it is, is to be preferred.
[59] I have considered what I should make of Ms. Copeland’s evidence that J. told her she did not like it when her mother smokes in the apartment because it would make her sick because of her asthma. That sounds remarkably like something the grandmother would say. In that same session, which took place around the beginning of the 2014 summer season, J. also said she was looking forward to going to her grandparents’ cottage. It was the only session in the approximately 14 months that Ms. Copeland saw J. that J. appeared “a bit fidgety”. Given what I have found to be the grandparents’ discussion of adult issues with J., their repeated complaints about the mother smoking in the home, and their unrelenting negativity about the mother, I can give no weight to J.’s comment.
[60] Even accepting the accuracy of the diagnosis of asthma, the evidence does not support that residing primarily with her mother has resulted in any negative impact on J.’s health.
B.’s Health, Development, and Activities for the Children
[61] B. turned four shortly after the trial ended. In the fall of 2013, the CAS noted that B. appeared happy in his mother’s care. At the time the investigator completed her Report, she had concerns that the mother was not providing sufficient stimulation in her home for either of the children. The applicants continue to have those concerns. The grandmother described B. as “delayed” and attributed this to the lack of stimulation in the mother’s home. She testified that even after a few days with the applicants, B.’s speech improves.
[62] The mother testified that she takes J. for swimming lessons and has taken both B. and J. swimming and skating. They go to the park and the splash pad, and visit and do activities with her fiancé’s large family. In the summer of 2015, she took the children to Petawawa for at least four nights and to Wasaga Beach. Although there is some question as to whether the mother took a full two weeks and four days holidays in the summer of 2015 as she had deposed in an affidavit filed in the proceedings, I accept that she was involved in the above-mentioned activities with the children and that she continues to be involved in activities with B. and J.
[63] In the spring of 2015, the CAS had no concerns about the mother’s home or the children’s health. It does not appear that the issue of the children’s stimulation was addressed. As B. is not yet in school, there is little recent independent evidence concerning his development.
[64] The father testified about programs in which he would like to put B. He testified that, as a family, they had found the programs on the Internet but he was not able to elaborate on the content of the programs. The applicants testified that as a family they go to the beach, take the children to their island cottage, and go to the park and to a fishing derby. They regularly bicycle with the children and the father has recently taken B. to a waterslide.
[65] The evidence demonstrated that the applicants provide a stimulating environment for both children and that the environment presented by the mother is adequate.
[66] I am troubled by the negative manner in which the applicants portrayed B.’s health when he arrived at their home for March Break in 2016. The father described B. as being “in major discomfort” when he arrived. He testified that the applicants took him to see the family doctor who diagnosed a major ear infection in both ears. The father was concerned as to why the mother hadn’t taken B. to the doctor before she dropped him off. He testified that, “The poor little guy did not get off the couch for the whole week.” On cross-examination it became clear that although B. arrived at the applicants’ home on a Friday, the applicants did not take him to see a doctor until the following Tuesday. The father explained that they were hoping B. would get better. The grandmother testified that B. arrived sick with a cold even though the mother had written in the logbook that B. had “no colds or flu”. The grandmother testified that she could not rely on the logbook and that the communication from the mother in the log book was not done in good faith. The failure of the applicants to take B. to the doctor for days after his mother dropped him off leads me to conclude that B. was not as sick as they portrayed. I find this is yet another example of their attempts to portray the mother’s parenting skills in a negative light.
Findings and Conclusions in relation to the Parents
The Father
[67] I conclude from the evidence that the father has been marginally involved in his children’s lives. He wanted to excuse himself from one home visit with the investigator before it was completed because of a social commitment of beer and cards at his “buddy’s” place. Even if the investigator arrived later than expected, in view of the fact that she would be providing recommendations about custody and access, this showed a lack of commitment and interest about recommendations she might make. The father withdrew himself from part of the second home visit to have a shower, because he was tired and dirty from work. In his evidence and in speaking to the investigator he could not offer any reason for J.’s problems with anxiety. At the trial he did not know her medications. He could not really explain to the investigator how he disciplined the children. Although he testified that there were programs in which he wanted to enrol B., he knew nothing about them. The grandmother’s involvement in J.’s physical and mental health and education and in the children’s activities has allowed the father to be an unengaged parent. As a result, the father has little insight into his children’s needs and limited involvement in their lives.
[68] In the course of the OCL investigation, information from the CAS, police reports and Dr. Ruddock, the father’s family doctor, raised serious concerns about the father’s drinking and his mental health: by his own account his excessive drinking led to three separations from the mother and police records confirmed two possible suicide attempts in 2013. On one occasion police took the father by ambulance to the hospital after he had piled furniture up under exposed beams in the basement and threatened to kill himself; on the night that the parents finally separated, while B. was upstairs sleeping, the father became intoxicated, caused extensive damage to the home and the police found a noose fashioned out of electrical cord in the basement. The father told the investigator and his probation officer that his three separations from the mother were due to his abuse of alcohol. In 2013, the father admitted to his probation officer that he had consumed six beer a day for ten years. Although the father later reported his alcohol intake was minimal, that reporting was followed by his being charged with and convicted of a drinking and driving offence. The father’s instability caused Dr. Ruddock to be concerned about the father’s contact with the children. Dr. Ruddock told the investigator that the father needed to totally abstain from alcohol and go to AA three times per week and that he was prepared to arrange for him to attend residential treatment. Dr. Ruddock told the CAS that he prescribed the father medication for anxiety and depression, however, he feared the father’s mental health issues were related to alcoholism. In 2013 the father told the CAS that he had been off work for a few months because of depression and anxiety and that he drank too much after work. In 2014 the CAS concluded that the father’s access to his children had to be supervised until his alcohol and mental health issues were addressed; CAS only closed their file because the grandparents agreed to act as supervisors.
[69] The father testified that he had never been diagnosed with depression and that he had addressed any issues he may have had with alcohol. I find his efforts in that regard were superficial and far from sufficient to alleviate the concerns raised: he did not follow up with Dr. Ruddock and the “several meetings” with Catholic Family Services and AA do not qualify as regular attendance or demonstrate an ongoing commitment to deal with the serious issues raised. It is clear from the information provided by Dr. Ruddock that a “couple” or a “few” sessions and meetings are insufficient to address his concerns around the father’s alcohol abuse, depression and anxiety. I find that the father requires long-term counselling to address his mental health and addiction issues. This background, combined with the lack of evidence that the father has followed Dr. Ruddock’s recommendations for extensive treatment, cause me to be concerned about the safety of the children if they are in the father’s unsupervised care. Although the concerns are dated, they are serious and shared by a number of professionals, including the CAS, the family doctor and the investigator. As a result, I am satisfied that at this time the father’s access continues to need to be supervised.
[70] The grandmother minimized the father’s alcohol and mental health issues in her evidence and in her discussions with the investigator. She told the investigator that the father was “OK now” and that the mother’s treatment of him while they had been together had led to his abuse of alcohol and mental health issues; she did not feel that the father was an alcoholic or a suicide risk and thought that the CAS was treating him like a “daemonic sexual predator”. Even though she was aware of the “noose” hanging in the father’s basement, the grandmother was not able to acknowledge to the investigator that he had threatened suicide on the night that the parents finally separated. The grandmother testified that she was pleased that the father had taken responsibility for his actions. I find he has utterly failed to do so, likely due in part to the grandmother’s inability to acknowledge that her son has serious problems that he needs to address.
[71] I infer that the father’s ability to have a positive relationship with the mother after their separation has been frustrated by the grandmother’s controlling behaviour and her extreme, negative feelings towards the mother. As noted by the investigator, the grandmother has a “powerful personality”. Without her interference and control and her focus on the mother’s perceived parenting deficits, the parents might have been able to communicate in a way that created a positive environment for their children, especially J. However, I conclude that the father’s inability to extricate himself from his own mother’s control has meant that he is unable at this time to forge a workable relationship with his children’s mother.
The Mother
[72] I find that the mother is providing a more stimulating environment for the children than she did at the time of the OCL investigation. She has continued to enrol J. in swimming lessons. She has enrolled J. in a group that is organized through the mother’s fiancé’s family’s church. She regularly takes J. to Kumon. The mother and her fiancé take the children skating, swimming, to the park and to the splash pad. They have taken the children camping and to the beach.
[73] I accept the investigator’s evidence that the mother is attuned to J.’s anxiety and the factors that exacerbate it. In her evidence she was able to provide an insightful, multi-faceted explanation for J.’s anxiety. Now that the mother is attending J.’s psychiatric appointments, I am satisfied that she recognizes the importance of J.’s prescribed medication and the need for J.’s continued attendance for counselling. I find that the mother understands that she is not to smoke in the home and I accept that she no longer does so. The evidence strongly supports that J.’s educational needs are being well met now that J. is in her mother’s primary care.
[74] The mother is now in a stable relationship and environment. She became engaged in December 2015 and it is not disputed that her fiancé encourages the children’s relationship with their father. I conclude that the mother has matured and developed now that she has been given the opportunity to fully engage as a mother.
[75] I am impressed by the mother’s willingness, despite all of the conflict caused by the grandmother’s interference and negativity, to continue her attempts to maintain the children’s relationship with their father and grandparents. It was obvious from the evidence that every interaction that the mother has with the grandmother, even in writing, is met with either outright or an undercurrent of criticism. The mother is understandably upset by the conflict between her and the grandmother. I agree with the mother when she testified that the grandmother “took away [her] opportunity to be a mom”. I find that the grandmother has usurped the mother’s role as a mother. Yet, despite the unrelenting negativity directed towards her, the mother still testified about positive things that the grandparents had done: they provided daycare and shopping when J. was young and continue to provide J. with educational help at their home.
[76] The grandmother criticized the mother’s communications in the logbook and described them as the mother “telling us”, “not cooperating or communicating”; she complained that the “constant barrage of information” about J.’s education was upsetting to them. I have reviewed the portions of the logbook that were filed as an exhibit. I find that the mother shared information in a respectful and open manner, although at times her frustration with the grandmother’s critical responses showed through. In response, the grandmother continued to display the negativity and criticism that I conclude has become the cornerstone of her relationship with the mother. As an example, the grandmother criticized what the mother recorded in the medication log, saying the purpose of the log was to “record meds with accountability and honesty”. Yet despite the grandmother’s negative responses, the contents of the logbook support my finding that the mother has continued to provide relevant information about the children to the applicants.
[77] I find the mother’s decision to move to Orangeville in order to remove herself and her children from the conflict between her and the grandmother was reasonable. Orangeville offers amenities for the children. J. is settled in school and the mother and the children are building roots there. I agree with the investigator that distance between the mother and the grandmother is in the best interests of the children. I find this to be the case regardless of the time it takes to drive from Barrie to Orangeville; the distance will hopefully assist to reduce the grandmother’s interference and the conflict to which J. has been subjected. The applicants made it clear that should the mother be awarded custody, they did not wish to have mid-week access. That is unfortunate because the distance is not so great that it is unmanageable.
[78] I have considered the importance of nurturing the sibling relationship between J. and B. The evidence is clear that the children enjoy spending time together. Before the temporary Order of August 21, 2015, each of the parents had primary residence of one child, a situation that would not contribute to the forming of a bond between the children. The sibling bond is especially important in this case because of the grandparents’ attempts to marginalize the mother’s role in J.’s life.
[79] I reject the applicants’ position that the mother has made choices that are concerning. It is understandable why the mother moved twice without notifying the father of her plans or her whereabouts because the applicants’ actions when the mother had moved on other occasions were intrusive and harassing: the evidence strongly supports that they complained to the City and to the CAS about the mother’s living arrangements. Although the applicants made much of the mother’s decision to allow a male with whom she was in a short-term relationship to babysit the children, there is no evidence that he posed any danger to the children.
[80] I find that the mother’s plan for the children to remain living with her is a solid one. The children have settled in to life in Orangeville and are doing well. Their mother has demonstrated that she is providing a loving, stable home for them. She is able to provide for them financially. J. is doing well in school and there are supports in place. The mother is ensuring that J. is regularly attending her psychiatrist in Barrie and recognizes the need for J’s counselling. The mother and her fiancé support the children’s relationship with their father.
Conclusions
Custody
[81] For the foregoing reasons, having considered the factors set out in the Children’s Law Reform Act, I find that it is in the best interests of the children that the mother has sole custody of both children and that they remain with her in Orangeville.
Access
[82] The father’s access requires supervision and the grandparents have historically been the supervisors. They are available to continue in this role. The evidence supports that there is a bond between the children, especially J., and the grandparents.
[83] Although there have been positive aspects to J.’s relationship with her grandparents, I conclude that overall the grandparents have compromised J.’s emotional health and caused her harm by their unwillingness or inability to shield J. from conflict and by the grandmother’s need to constantly portray the mother in a negative light. The evidence is clear that the grandmother does not appreciate the harm she is causing the children, especially J., by undermining the children’s relationship with their mother.
[84] Although the problems are mainly caused by the grandmother’s relentless negativity towards the mother, it is clear from the evidence that the grandfather takes his cues from the grandmother. He parroted her evidence about the mother’s deficits as a parent. He, too, blames J.’s problems with anxiety on not wanting to be with her mother. I find he does not have sufficient insight into the triggers for J.’s anxiety. I could not rely on the grandfather to ensure that the grandmother would support J.’s relationship with her mother and not continue to contribute to J.’s anxiety.
[85] Despite the focused recommendations made by the investigator almost two years ago and the transition of J. into her mother’s primary care almost a year ago, the conflict caused by the grandmother has not abated. I am concerned that the harm to J. will continue. As a result, I find that the grandparents cannot be appropriate access supervisors until they have demonstrated an appreciation of the stress that their conduct causes J. Regardless of the grandmother’s belief in the validity of her complaints about the mother, this puts J. in a loyalty bind. J. needs to have a sense of security that her mother is a fit parent. Hearing negative comments about her mother is clearly difficult for J., as demonstrated by J.’s reaction to the discussion about summer access and the fact that J., at the age of ten, has for years been under psychiatric care and on medication.
[86] I am satisfied that if the grandparents can learn to shield J. from their negativity about the mother, it would be positive for them to be part of both J.’s and B.s lives. As such, if they engage in counselling to gain an appreciation of how to control their behaviour for the benefit of the children, I would be prepared to give them another opportunity to act as access supervisors.
[87] In the interim, access is to be supervised by a third party agreed upon by the parents, failing which it will be for a minimum of four hours every other weekend through a supervised access centre.
[88] If the father wishes to move towards unsupervised access, he must obtain treatment for his alcohol and mental health issues. He is to provide the mother with proof from Dr. Ruddock, or if Dr. Ruddock is no longer practicing from the father’s current treating health care professional that he has adequately addressed these issues. If he and the mother are unable to agree on the appropriate terms of access at that time, the father may bring a Motion to Change after six months which may need to be heard in Orangeville.
[89] If the grandparents wish to resume their role as access supervisors, the grandparents are to engage in at least four sessions with a qualified counsellor who has had an opportunity to review these Reasons in full. Upon the grandparents providing proof to the mother in the form of a letter from the counsellor that this has occurred, and confirmation from the counsellor that they appear to have made a genuine effort to address the concerns I have raised about the stress they have caused J. by their negative comments about the mother and about their undermining of the children’s relationship with the mother, then the father may choose for them to recommence their role as access supervisors.
[90] If the grandparents recommence their role as access supervisors, and the mother has concerns about either of the grandparents’ conduct during access, the mother may return to court for an immediate motion to suspend access until a new supervisor is agreed upon by the parents or approved by the court. This motion may go immediately before a judge in Barrie without the need for a first appearance or a case conference and the judge may give directions as to how and where the matter shall proceed.
Child Support
[91] By Minutes of Settlement dated October 23, 2015, the father agreed to pay child support for the two children commencing September 2, 2015, in the amount of $512, based on income of $35,360. On November 13, 2015, the father lost his job. His financial statement discloses yearly income from employment insurance benefits of $24,864. Accordingly, commencing December 1, 2015, the father’s child support obligation for the two children, pursuant to the Child Support Guidelines, shall be set at $371 per month.
Order
[92] The mother shall have sole custody of J., born […], 2006, and B., born […], 2012 and shall be permitted to remain in Orangeville with the children.
[93] The father’s access to the children shall be supervised. The grandparents shall not be access supervisors unless and until:
a. they have engaged in at least four sessions with a qualified counsellor who has had an opportunity to review these Reasons in full; b. they have provided proof to the mother in the form of a letter from the counsellor that this has occurred and confirmation from the counsellor that they appear to have made a genuine effort to address the court’s concerns about the stress they have caused J. and about their undermining of the children’s relationship with their mother; and c. the father chooses to have them recommence their role as access supervisors.
[94] In the interim, access shall be supervised by a third party agreed upon by the parents, failing which for a minimum of four hours every other weekend through a supervised access centre.
[95] If the grandparents recommence their role as access supervisors, and the mother has concerns about the either of the grandparents’ conduct during access, the mother may return to court for an immediate motion to suspend access until a new supervisor is agreed upon by the parents or approved by the court. This motion may go immediately before a judge in Barrie without the need for a first appearance or a case conference and the judge may give directions as to how and where the matter shall proceed.
[96] Subject to the need for the father’s access to be supervised as set out above, the father shall have access to the children, which shall include the following:
(i) Every second weekend from Friday at 6:00 p.m. until Sunday at 6:00 p.m., commencing July 15, 2016, with access to be extended until Monday at 6:00 p.m. if Monday is a holiday; (ii) Telephone or Internet contact with the children every Tuesday at 7:30 p.m., unless this will conflict with a pre-scheduled activity, in which case the mother and father shall arrange an alternate schedule; (iii) In 2016, two weeks over the course of the summer, on dates to be agreed upon by the mother and the father. Commencing 2017, three weeks each summer, on dates to be agreed upon by the mother and the father by May 1 each year; failing consent, commencing the third full week of July for three weeks; (iv) The mother shall be responsible for transportation on Fridays and the father shall be responsible for transportation on Sundays (or Mondays if access is extended as per para. (i) above); (v) One-half of every Christmas Break, commencing Christmas Day at noon; (vi) Alternating March Breaks commencing 2017, from Friday at 6:00 p.m. until Sunday at 6:00 p.m.; (vii) The regular weekend access schedule shall not be affected by the summer, March break or Christmas access; and (viii) Such further and other access as the parents may agree upon from time to time.
[97] The mother and father shall keep each other informed as to their residential address and telephone number and notify the other whenever this information changes.
[98] The mother and father shall convey necessary information about the children to each other by means of a logbook. The grandparents shall not write in the logbook.
[99] No party shall speak negatively about the other party in the children's presence. All parties shall make their best efforts to prevent all third parties from doing so.
[100] No party shall smoke in the presence of the children or permit third parties visiting in their home to do so.
[101] Neither parent shall take the children out of the Province of Ontario without the prior written consent of the other parent, which shall not be unreasonably withheld.
[102] If either parent travels with the children out of the Province of Ontario, he/she shall provide the other parent with his/her travel and accommodation arrangements in writing prior to departure.
[103] The mother shall follow the medical advice of Dr. Rajkhowa and attend scheduled appointments as set by Dr. Rajkhowa and/or any specialist recommended by him.
[104] The children shall not be left in the care of any person impaired by alcohol or drugs. No one who has ingested alcohol in the preceding twelve hours shall drive the children in a vehicle or boat.
[105] Commencing December 1, 2015 and thereafter on the first day of each month the father shall pay child support to the mother for the children J., born […], 2006, and B., born […], 2012, in the amount of $371 per month. This amount is based upon the father’s current income of $24,864 and the Child Support Guidelines for two children.
[106] The mother and father shall maintain the children on any benefit plan available to her/him through employment for as long as it is available and shall provide proof to the other party forthwith of such coverage.
[107] The father shall provide the mother with his income information required under the Child Support Guidelines, to include his recent pay stub and Notice of Assessment, by no later than June 1 of each year, save and except for the year 2016 where he shall provide it by August 1, 2016. The parents shall then review their child support arrangements and make such a variation to child support as is required, based on the updated income information and the Child Support Guidelines. Pending determination of this issue, the father shall continue to pay his monthly child support obligation to the mother.
[108] Unless the support order is withdrawn from the Family Responsibility Office, it shall be enforced by the Director and amounts owing under the order shall be paid to the Director, who shall pay them to the person to whom they are owed. A support deduction order shall be issued.
[109] This order bears post-judgment interest at the Courts of Justice Act rate, effective from the date of this order. Where there is a default in payment, a payment in default shall bear interest only from the date of default.
Costs
[110] If the mother seeks costs and the parties are unable to agree on costs, I will receive written submissions from the mother by July 28, 2016, followed by responding submissions from the applicants by August 11, 2016. Costs Submissions shall be no more than three pages in length, exclusive of any Costs Outline or Offers to Settle. If no submissions are received by August 11, 2016, the issue of costs will be deemed to have been settled as between the parties.