CITATION: Eustace v Eustace, 2016 ONSC 5004

COURT FILE NO.: FS-12-4398-00

DATE: 2016-08-09

AMENDED: 2016-08-25

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Emerencia Yamuna Eustace Applicant

• and -

Ernest Jeyaprakash Eustace Respondent

Counsel: Dilani Gunarajah, for the Applicant Ajay Duggal and Harinder Dhaliwal, for the Respondent Hansa Joshi, for the Office of the Children’s Lawyer, for the child J.M.C.E.

HEARD: May 19, 20, 21, 22, 25, 26, 27, 28, 29, June 1, 2, 3, 4, 5, 8, August 17, 18, 19, 20, 21, November 10 and 12, 2015.

AMENDED REASONS FOR JUDGMENT

EMERY J

[1] At the centre of this case stands J.M., born on March 14, 2003. J.M. at this time is a 13 year old boy.

[2] J.M. lives primarily with his father, Ernest, and paternal grandparents in Brampton, Ontario. J.M. lives with his mother, Emerencia, on three out of every four weekends where she resides with her parents in Scarborough, Ontario. Except for certain modifications to the access schedule for the summer of 2015, this parenting arrangement has been in place for J.M. since Justice Price made the temporary order on December 19, 2014 that established this regime.

[3] Although both parents are from families of Sri Lankan ancestry, Emerencia and Ernest live in two different worlds. Emerencia and her parents lead lives of a traditional Sri Lankan family. They speak primarily the Tamil language in their home. Ernest and his parents have a more western based lifestyle. They speak primarily English in their home. J.M. lives in each of those worlds when he is living with that parent.

[4] Each of the parties seek sole custody of J.M., with limited access to J.M. for the other. Alternatively, Emerencia seeks a joint custody arrangement.

[5] Emerencia’s application contains claims for support and equalization between net family properties against Ernest. Ernest’s answer and related documents filed on financial issues were struck by Justice Snowie’s order at a trial management conference on May 11, 2015. Justice Snowie struck Ernest’s pleadings on financial issues because of his failure to make the disclosure of information required of him under the previous order made by Justice Price.

[6] The order striking Ernest’s pleadings was subsequently set aside by the Court of Appeal on January 4, 2016. The appeal was unopposed. In its decision to set aside the order under appeal, the court granted Emerencia leave to renew her motion to strike Ernest’s pleadings if any disclosure ordered by Justice Price remains outstanding.

[7] I do not know if Ernest has made the required disclosure to date, or if Emerencia has renewed her motion to strike his pleadings again. I am directing counsel for each party to advise me on such matters upon receipt of these reasons. I remain seized of this family law proceeding to hear the balance of the issues in this case when they are ready for trial.

[8] Even though Ernest’s pleadings on financial issues were struck at the time of the trial in 2015 on issues of custody and access, Ernest was permitted to participate fully at the trial. I was of the view that his pleadings with respect to the custody and access issues remained intact under Justice Snowie’s order. In any event, Ernest’s participation in the trial was necessary because the best interests of J.M. were involved. This position is consistent with comments made by courts in cases such as Sleiman v. Sleiman, [2002] 28 R.F.L. (5th) 447 (Ont. C.A.) and Bourassa v. McGee [2014] O.N.C.J. 393 that each parent must be involved in the trial where the best interests of the child are concerned despite an order striking the pleadings of one of them.

[9] The trial of the issues relating to the custody of, and access to J.M. therefore proceeded with the full participation of each parent, as well as the involvement of the Office of the Children’s Lawyer. The court heard witnesses from The Willow Center on the section 30 assessment prepared and issued under an order made by Justice Mossip, and social workers from the Peel Children’s Aid Society. The court also heard evidence given by J.M. himself in a judicial interview conducted under section 64 of the Children’s Law Reform Act.

[10] After all the evidence given on both sides of this emotional case, the sole question comes down to the following: what custody and access arrangement would be in the best interest of J.M. at this time of his life?

BACKGROUND TO RELEVANT ISSUES

[11] Emerencia and Ernest met in Singapore, and were married on May 3, 2001. It was an arranged marriage. Emerencia was living at the time in Sri Lanka and Ernest was living in Canada. After they were married, Ernest sponsored Emerencia to come to Canada in March 2002. Emerencia lived with her own parents until June 8, 2002, as it was against her religion to live with Ernest until they had been married in a religious ceremony.

[12] After Emerencia and Ernest were married in a religious ceremony, they went to live with Ernest’s parents at 54 Grandview Boulevard in Vaughan, Ontario. According to Emerencia, the trouble with Ernest’s parents started a week after she moved in, and that trouble led to trouble with her marriage with Ernest.

[13] J.M. was born on March 14, 2003 while Emerencia and Ernest were living at 54 Grandview.

[14] Ernest gave evidence that Emerencia and his mother had one, if not two altercations of a physical nature between them at 54 Grandview. The first occurred on the landing between the stairs of the first level and the upper level where the bedrooms were situated.

[15] Emerencia gave evidence that Ernest subsequently installed cameras at various points around the house, notably on the upper level, in the staircase where the landing is located between the first floor and the upper level, and in the basement of the home at 54 Grandview without her knowledge. Ernest does not dispute the installation of those cameras and the fact that he did not tell Emerencia that the cameras had been installed and that her actions were being monitored and recorded most of the time.

[16] Ernest relies on this evidence to show that Emerencia has an abusive nature towards those with whom she has a conflicting relationship.

[17] Emerencia denies having any altercation of a physical nature with Ernest’s mother. Emerencia points to the evidence of the installation and the recording of herself without her knowledge or consent as evidence of Ernest’s control.

[18] The family next moved to 34 Vernet Crescent in Brampton. At 34 Vernet Crescent, Ernest and Emerencia at first lived with J.M. in the unfinished basement of the house. Ernest gave evidence that a separate kitchen was installed for Emerencia as a place where she could cook for Ernest and J.M. However, there was a fully equipped kitchen on the main floor of the home where Ernest’s mother would make meals for all members of the family, including J.M.

[19] Emerencia gave evidence that the door between the basement and the main floor of the house on Vernet Crescent was locked at all times, and that she was not permitted to engage with other members of the family in the main part of the house.

[20] Emerencia and Ernest subsequently moved with J.M. and Ernest’s parents to 30 Moldovan Drive in Brampton, Ontario. The house at 30 Moldovan Drive is owned by Ernest’s father and sister, and is a two-storey home located on a suburban street in Brampton.

[21] It is at 30 Moldovan Drive that the defining nature of the marital relationship between Emerencia and Ernest prior to separation took its starkest form. Emerencia testified that she was generally confined from 2011 to the date they separated on July 26, 2012 to the basement of the home. That basement consisted of a finished kitchen, dining room and living room area, bathroom and two bedrooms. Despite a fully contained living unit in the basement, Ernest and J.M. resided primarily upstairs in the house with Ernest’s parents.

[22] Emerencia gave evidence throughout the trial of poor treatment she received from Ernest and his family at each of the three residences where she lived with them. Emerencia gave that evidence to show that Ernest intended to exclude her from J.M.’s life. This evidence is also intended to reflect on Ernest’s approach to parenting.

[23] The parties agree that they separated on July 26, 2012.

[24] J.M. has now lived in the home at 30 Moldovan Drive for more than half of his life.

[25] It is important to review the history of the litigation for the context of what court ordered structure is currently in place for J.M. to understand whether those temporary arrangements are working, and what terms might otherwise be better for J.M.

[26] Emerencia commenced her application for custody and access of J.M. as well as for financial relief on October 3, 2012. On an urgent motion before Justice Price on October 9, 2012, the court ordered that Emerencia have access to J.M. every other weekend from Friday evening at 6:00 p.m. to Sunday evening at 6:00 p.m. commencing from October 12, 2012. Ernest was to pick up and drop off J.M. at the Toys R Us store at Cedarbrae Mall for Emerencia to have that access. J.M. was ordered to otherwise reside with Ernest. Each parent was ordered to facilitate J.M.’s telephone access with the other parent and reasonable telephone contact by the other parent when J.M. was in their care. Justice Price imposed several conditions on each parent to facilitate this access. Justice Price also made an order requesting the involvement of the Office of the Children’s Lawyer (“OCL”).

[27] On October 30, 2012, Justice O’Connor confirmed that the order made by Justice Price on October 9, 2012 remained in force, and ordered Ernest to pay $2,000 a month in spousal support to Emerencia.

[28] After the disclosure meeting with the OCL, Emerencia brought a motion on October 22, 2013 for Ernest to provide her with full information about J.M.’s activities. This motion was adjourned by Justice Seppi to November 4, 2013. On the return of the motion, Ernest brought a counter-motion requesting that Dr. Rex Collins conduct a Section 30 assessment under the Children’s Law Reform Act. Justice Mossip ordered that a Section 30 assessment be conducted and completed with respect to J.M. by The Willow Centre. The Willow Centre is the clinic where Dr. Rex Collins, Ph.D., C. Psych., Karen-Jane Parker, M.Ed. and Marc Shiffman, Ph.D. practice as child psychologists and family therapists.

[29] During the time The Willow Centre was investigating, conducting and writing its assessment, Ernest stopped access on July 4, 2014 because of an incident involving Emerencia’s supervision or conduct while J.M. was learning to ride a bicycle. Emerencia therefore brought a motion on August 15, 2014 for contempt, and for reinstatement of access. At that time, The Willow Centre recommended that Emerencia’s access to J.M. be supervised by an agency such as Bartimaeus pending completion of the assessment report under Section 30.

[30] On August 15, 2014, on a motion brought by Emerencia I ordered that she have supervised access to J.M. on any Saturday at 12 noon until 6:00 p.m. until the disposition of the motion, with telephone access to J.M. The matter was further adjourned to August 22, 2014.

[31] On August 22, 2014, the matter was adjourned again to August 29, 2014 due to scarcity of court time to hear the motion. On August 29, 2014, Justice Edwards further adjourned the motion to November 17, 2014 to be heard as a long motion for three hours. At that time, Emerencia was ordered to pay $400 because she should have known that the motion would require a long motion date.

[32] On November 17, 2014, Justice Belleghem heard Emerencia’s motion. In an endorsement dated November 20, 2014, Justice Belleghem reinstated the access ordered by Justice Price in October 2012, and ordered that Emerencia take J.M. for counselling and that Ernest should pay for that counselling. Ernest’s motion for supervised access was dismissed. On that motion, Justice Belleghem awarded costs to Ernest in the amount of $3,500, net of the previous court order against Emerencia in the amount of $400.

[33] On December 16, 2014, the case was scheduled for a combined settlement conference and a trial management conference. That hearing was adjourned to December 19, 2014 before Justice Price.

[34] At that trial management conference on December 19, 2014, Justice Price considered Emerencia’s request for expanded access and Christmas access, Justice Price ordered that Emerencia have access to J.M. on the first, second and fourth weekend from Friday after school to the time when J.M. was to return to school on Monday morning. Ernest was ordered to be responsible for all travel, by himself, his parents or by taxi for J.M. to be paid by him. Emerencia would have access to J.M. which would commence at the end of his school week, and conclude when school started the following week. For greater clarity, Justice Price made the following orders on December 19, 2014 with respect to Emerencia’s access to J.M.:

7. On an interim and without prejudice basis:

a. J.M. shall reside with his father from Monday (or Tuesday, if Monday is a statutory holiday) at the commencement of school until Friday (or Thursday, if Friday is a statutory holiday) at the conclusion of school.

b. J.M. shall reside with Ms. Eustace on the first, second, and fourth weekend of every month (the weekend being the period beginning Friday (or Thursday if Friday is a statutory holiday) from the conclusion of school, or from 3:45 p.m. if not a school day), until Monday (or Tuesday if Monday is a statutory holiday) at the commencement of school, or until 8:30 a.m., if not a school day.

c. Mr. Eustace shall be responsible for all travel, by himself, his parents, or a taxi to be paid for by him at the time of transportation, and shall ensure that J.M. is at the appointed transfer location at the appointed time. Access that is to commence or end at the beginning or end of school shall involve transportation directly to or from Ms. Eustace’s residence to or from J.M.’s school.

[35] Justice Price further ordered special access for Emerencia to J.M. over the holiday season in December 2014, and until J.M.’s return to school on January 5, 2015. Justice Price also ordered that Emerencia hold J.M.’s birth certificate, social insurance card and travel documents, and that his OHIP card to travel with him between parents.

[36] At the time, the court heard that Ernest has failed to comply with the following orders pursuant to the order made by Justice Price on December 19, 2014:

1. He has failed to provide J.M.’s birth certificate, social insurance card and travel documents to Emerencia;
2. He has failed to provide his email address to Emerencia; and,
3. He has failed to provide Emerencia with an emergency contact person next after himself.

[37] Throughout her time living with Ernest, she would visit her parents once a month. She stated that she could not take telephone calls from her parents. When she went to visit, she would often stay overnight. In 2009, she attended her brother’s wedding in Sri Lanka. She made this trip without J.M., although she stated that she was not happy to attend this wedding without her son.

[38] Before Emerencia left to attend the wedding, Ernest required her to sign a 52-paragraph commitment before she was permitted to travel to Sri Lanka. She states that various requests highlight the degree of control that Ernest exercised over their lives. For instance, paragraph 9 reads:

9. I will be responsible of all clothing by keeping it clean, washed, ironed and properly arranged not dumped and piled. I will do the laundry regularly. I will readily heed to my husband’s advice and will not argue assuming I know it all, in this matter.

[39] In paragraph 22, she was required to agree to the following requests with respect to her conduct toward J.M.:

22. I will not cause any mental or physical anguish to my son, through acts such as intentionally frightening, pinching, holding his arms tight until red, any form of physical or mental abuse, excessively loud shouting or screaming, losing my temper, or fighting, or arguing with others in front of him. I will not make him fearful of me in order to control his behaviour.

[40] In paragraph 35, she was asked to commit to a more cooperative attitude with Ernest:

35. I will discuss matters directly with my husband without moaning, complaining, nagging or arguing to get my way. I will not force decisions by turning around phrases, acting sullen, morose or trying to pick on unrelated perceived (imaginative) faults of others.

[41] Most telling was paragraph 52:

52. I alone will be responsible for all arising circumstances, because of my leaving this marriage.

[42] Upon her return, she continued living in the basement in the house on Moldovan Drive. It was at Moldovan Drive that she describes how Ernest’s parents would take on the function and role of parents for J.M., and notably where Ernest’s mother would substitute herself for Emerencia.

[43] Emerencia describes the basement apartment in the house on Moldovan Drive as consisting of a kitchen, living area and two bedrooms, one for Ernest and herself, and the other for J.M. She describes how the windows were always locked. She would leave once a week, to go to church. While living in the basement, she never tried to learn anything herself, stating that Ernest and his parents never allowed her to learn anything further to better herself.

[44] Much of the evidence given at trial concerned Emerencia’s perception of the control that Ernest and his parents would exercise over her life before separation. That control was directed towards Emerencia and little evidence was given about excessive or untoward control Ernest and his parents exerted over J.M. Much of the evidence that was ruled inadmissible was not relevant to either the position of Emerencia or the position of Ernest.

[45] Emerencia states that all of the treatment she received from Ernest and his parents she fears will be the same treatment they give to J.M. This is the reason she gave in evidence why the conduct of Ernest and his parents is relevant in the case.

[46] J.M. had his first allergic reaction while at Emerencia’s parent’s home during Christmas, 2010. After that time, J.M. was diagnosed with an allergy to tree nuts, peanuts, beans and legumes. This is an important aspect of the parenting plans and how they have been carried out by each of J.M.’s parents.

[47] Emerencia left the marriage on July 26, 2012 when she did not return to 30 Moldovan Drive after visiting with her parents for her birthday. Ernest had driven her to her parents’ house in Scarborough. She did not bring J.M. on that visit. She states that she decided that she could not live the way she was living at 30 Moldovan Drive and therefore decided to stay with her parents.

[48] At the time, Emerencia’s parents lived in a one-bedroom apartment.

[49] Shortly after the date of separation, Ernest retained David Eisenkrein. Mr. Eisenkrein wrote a letter dated July 29, 2012 explaining that Ernest would not agree to her request that he allow J.M. to live at her parents’ home in Scarborough, for a number of reasons. Mr. Eisenkrein stated that it was not in J.M.’s best interest, that he should continue to reside in his own home where he enjoys stability and routine. Mr. Eisenkrein also called Emerencia’s attention to the fact that J.M. had experienced a number of anaphylactic allergic reactions when he had visited her parents’ residence on previous occasions. The letter went on to explain that it would be irresponsible for Ernest to allow J.M. to reside there or to attend that residence for extended periods of time without first ensuring that J.M.’s medical conditions were understood and respected.

[50] This letter is also significant because it notes that Ernest has facilitated telephone access between Emerencia and J.M. daily since Emerencia had left the home, and contained an offer to provide access for Emerencia to J.M. at 30 Moldovan Drive. The letter also indicates that Ernest was in the process of preparing a court application to deal with custody, access, property and other issues.

[51] On August 21, 2012, Mr. Eisenkrein wrote to Ms. Gunarajah, counsel retained by Emerencia, to return Emerencia’s personal identification documents and to advise her of arrangements that had been made with respect to the storage of her personal belongings or delivery to her.

[52] Under separate cover, Mr. Eisenkrein provided Ms. Gunarajah with a safety plan prepared by Ernest for Emerencia to follow when J.M. was visiting with her for access.

[53] On September 21, 2012, Mr. Eisenkrein sent Ms. Gunarajah a medication schedule for her to follow when J.M. was visiting her while he had a cold.

POSITION OF EACH PARENT

[54] Emerencia and Ernest accuse each other of acts or omissions that reflect the nature of that person. They each connect the negative aspects of the other person to that person’s ability to act as a responsible parent. They have traded accusations of unacceptable conduct that span the duration of the relationship between them, along with allegations of personal behavior and parental failings to accommodate J.M.’s best interests.

[55] Where possible, I also recognize where one party or the other has given evidence of what efforts that party has made to parent J.M. responsibly, when the parties have not preoccupied themselves with criticizing the other.

Applicant mother

Before Separation

[56] Emerencia gave a substantial amount of evidence at trial about the mistreatment she received from Ernest and his parents when she lived in each of the three residences with them during the marriage. Her evidence of how she was isolated from the rest of the family and separated from J.M., the control that Ernest exerted over her manifested by the 52 conditions he compelled her to sign. She points to the clandestine installation of cameras at 34 Vernet and 30 Moldovan Drive to illustrate continuous indicators of how controlling and insensitive Ernest can be. Emerencia also described how the dynamic within the Eustace family was an insidious attempt to replace her with Ernest’s mother as a parent, and for the family as a whole to marginalize her from J.M.

After Separation

[57] Emerencia gave evidence that she has been able to make a life for J.M. in the home that she shares with her parents in Scarborough, Ontario. Emerencia stated that she would arrange for him to attend school, and that she would allow Ernest to have access to J.M. provided he is willing and able to meet her conditions.

[58] Emerencia denied that she had acted improperly or recklessly when she took J.M. to the Mandarin Restaurant without fully satisfying herself that J.M. would not be exposed to foods that would trigger his allergies.

[59] Emerencia also denies that she acted rashly when she pushed J.M. aggressively while teaching him to ride a bicycle on the occasion raised by Mr. Eisenkrein’s letter dated June 18, 2014, thereby causing him to suffer abrasions, and aggravating an existing groin injury when he fell. Two weeks later, Mr. Eisenkrein again wrote to Ms. Gunarajah on June 30, 2014 to note Emerencia’s inappropriate behaviour when she jumped from behind a bush and pushed J.M. while he was riding a scooter, causing him to crash.

[60] Emerencia takes the position that she is just as fit a parent as Ernest, and can provide a life for her son that is in his best interests. She states she would not marginalize Ernest and a custody arrangement with J.M. living primarily with her would not allow Ernest to marginalize her as J.M.’s other parent.

Respondent father

[61] Ernest has taken a very strict approach to what would be in J.M.’s best interests for custody. Ernest relies heavily on the status quo. He describes how J.M. has a full life living with Ernest and his parents on Moldovan Drive in Brampton. He attends St. Gregory the Great Catholic Academy in Vaughan. Ernest gave evidence that he reads with J.M., helps J.M. with his homework, enrolls J.M. in extracurricular activities, and ensures that J.M. receives an informed education as well as enjoying a fully-engaged family life.

[62] Ernest also supports and encourages J.M. to participate in sports. J.M. participates in karate, swimming, and soccer. Contrary to Emerencia’s evidence that J.M. has reportedly told her about playing basketball, J.M. does not play basketball. Ernest points to this statement as an example that Emerencia is either fabricating what J.M. is telling her, or that she has misunderstood the sports and interests J.M. enjoys.

[63] J.M. also has his own room at 32 Moldovan Drive. This provides him with privacy, as well as the benefit of the house as a whole to interact with other family members.

Before Separation

[64] Ernest intended to give evidence that Emerencia had either emotional, psychological or personal challenges that compromise her ability to properly parent J.M. The intended evidence was introduced in the form of footage from the security cameras that Ernest had recovered from the security cameras installed at 34 Vernet Crescent and at 30 Moldovan Drive. That footage was not admissible as evidence and I do not consider it here. Ernest also introduced one segment of footage and two still photographs showing Emerencia coming into contact with J.M.’s face, and a resulting scratch to his cheek. That footage and those still photographs were admitted as evidence because they were relevant to her interaction with J.M. and her parenting ability.

After Separation

[65] Ernest also relies upon evidence that J.M. has been injured while on access visits to the apartment where Emerencia resides with her parents. J.M. would report to his father that he would suffer injuries when his cousin would play roughly with him. This resulted in Ernest taking J.M. to the doctor. J.M. would complain to his father that he had been hurt because his cousin was not disciplined, controlled or supervised by adults during those visits.

[66] Ernest takes the position that he can provide J.M. with the parenting that will serve J.M.’s best interests.

[67] Ernest expressed the view that Emerencia is seeking custody of, or equal parenting time over J.M. to increase her financial claims against Ernest. I did not take this view into consideration as those claims were not before me at trial.

Office of the Children’s Lawyer for J.M.

[68] The Children’s Lawyer called Trisha Ryan, the worker assigned to J.M.’s case. Ms. Ryan supports the position taken by Emerencia for sole custody, or alternatively for joint custody with Emerencia having primary care of J.M.

[69] In cross-examination, Ms. Ryan conceded that she formed her opinion in November 2014 after she had read the assessment report prepared by The Willow Centre team. Ms. Ryan had visited the parties approximately four times, two of which were to assess the situation with respect to the conditions of the apartment for access visits with J.M. Ms. Ryan had not spoken to the present CAS worker assigned the case, Mr. Percy Yiadom.

[70] It is not insignificant that J.M. refused to speak with Ms. Ryan, or to Ms. Joshi, counsel appointed by the Office of the Children’s Lawyer to represent him.

The Willow Centre Team

[71] Justice Mossip made the order on November 4, 2013 that The Willow Centre prepare an assessment report regarding the custody and access issues concerning J.M. under s. 30 of the Children’s Law Reform Act. Justice Mossip’s order appointed The Willow Centre as a team to prepare this report. The three principals from The Willow Centre, being Dr. Rex Collins, Sara-Jane Parker and Marc Shiffman made various contributions towards the preparation of the report, and all were called as witnesses to testify at the trial.

[72] In the assessment report and in the evidence each of those assessors gave, The Willow Centre team opined that J.M. finds himself in the middle of an ongoing external conflict between his mother and his father and the father’s parents. This external conflict in turn has created an internal conflict within himself which is detrimental to J.M.’s growth and wellbeing. The Willow Centre team reached their collective opinion after conducting all of the interviews and testing discussed in the assessment report.

[73] The assessors were satisfied that each parent loves J.M. and cares deeply for him. Unfortunately, the dispute between Emerencia and Ernest has transcended the level where they act as J.M.’s parents, to Ernest’s parents who, to paraphrase the conclusions in the report, now supersede Emerencia and act as surrogate parents to J.M.

[74] At the end of their 69-page report, The Willow Centre team set out the following recommendations:

1.) It would be in J.M.’s best interest if Ernest and Emerencia live physically close enough to each other so that J.M. could spend an equal amount of time with each of them;

2.) At least until their authorities as parents had been re-established, contact with the paternal grandparents be supervised, brief and limited;

3.) That Emerencia and Ernest work with the parenting co-ordinator or parenting coach familiar in the Sri Lankan culture who can help them implement a parenting plan and to resolve any conflicts that arise.

4.) That individual therapy/counselling for each J.M., Ernest and Emerencia, as well as parent-child psychotherapy for J.M. and each of his parents be arranged. The Willow Centre team also added that support for J.M.’s grandparents would also be helpful if they would accept it.

5.) If Ernest isn’t willing or able to separate from his parents in order to provide J.M. with a home closer to his mother, and away from his paternal grandparents, that the court give consideration to award sole legal custody of J.M. to Emerencia with the understanding that all major decisions in regard to J.M.’s care be discussed with Ernest before a final decision is made. If a joint decision could not be reached on a major decision, that issue would be brought to a parent co-ordinator for mediation or, if necessary, arbitration.

6.) If Ernest continues to live with his parents and sole custody of J.M. is given to Emerencia, that access visits between J.M. and his father take place in a neutral place on a frequent and regular basis at least until Ernest and Emerencia’s authority as parents has been clearly established and his paternal grandparents are able to support J.M.’s need to have a relationship with his mother, and not to undermine her authority.

[75] The Willow Centre concluded by stating that if Ernest and his family are unable to support J.M. to have a meaningful relationship with Emerencia, J.M. is at considerable risk of becoming more resistant to spending time with her and, in their opinion, is at risk of continuing to suffer emotionally no matter what decision is made with respect to custody and access issues.

[76] Conversely, if J.M. is required by the court to leave his grandparents’ home to live with his mother, he is at risk of becoming more withdrawn and may become depressed as well as more oppositional and defiant. The Willow team stated that he may also attempt to provoke an anger response as well as rejection from his mother in an effort to resume living at his grandparents’ home. While the Willow team recognized that this environment is the more comfortable and familiar to him, he has from infancy been over-indulged and treated as “fragile and special” by his father’s side of the family.

[77] The Willow team concluded that Ernest is the person who is in the position to exercise the most power and influence to make it possible for J.M.’s trajectory and development to be altered in a more positive direction. Ernest is best suited to enhance the possibility for J.M. to have a healthy relationship with both his parents and his extended family on both sides. It was the Willow team’s final recommendation that, before a final decision about custody and access was made and a detailed parenting plan created, that the family be referred to and asked to participate in one of the intensive family intervention programs now available for families in which a child is resisting contact with the parent. It would appear the parties chose to engage the trial process instead.

Social Workers from the Peel CAS

[78] The Peel Children’s Aid Society has been involved with this case since at least 2010. At trial, the current case worker, Percy Yiadom was called to testify. The caseworker before Mr. Yaidom, Edward Cera, was also called to testify, as well as the initial intake worker, Krystal Sarraciani. Much of the evidence given by the CAS workers followed detailed notes they had taken over the course of their involvement with this family.

J.M.

[79] I extended an invitation to J.M. through Ms. Joshi, his lawyer appointed by the OCL to represent him, and through Ernest, to attend court and testify on a day agreeable to counsel and convenient to J.M. The judicial interview took place on August 17, 2015 and was conducted under s. 64 of the Children’s Law Reform Act to ascertain the views and preferences of J.M. on the issues before the court.

[80] The judicial interview took place on the record. At my suggestion, J.M.’s parents excused themselves so that J.M. could speak candidly. In a surprising twist, J.M. also asked if all of the lawyers, including Ms. Joshi, would please exit the courtroom. The judicial interview therefore took place between J.M. and myself, with the court registrar and the court reporter in attendance.

[81] Each of the parties has been provided with a transcript of that judicial interview and the views and preferences of J.M. should be well-known. In essence, J.M. wishes to continue living with his father in the house at 30 Moldovan Drive with his grandparents. He loves his mother, but he advised the court that she is always mean to him. She yells at him. She scares him. From time to time, she also hits him.

[82] J.M. also informed the court that he does not have his own room to sleep in when he is visiting overnight with his mother. He shares that bedroom with his mother and her sister’s family.

[83] He states that the apartment where his mother and her parents’ live is dirty and that there are stains everywhere.

[84] By comparison, the house where he lives with his father and his grandparents is clean. He has his own room. All of his belongings are in his room.

[85] J.M. goes to school in Vaughan and he is driven to school and picked up each day.

[86] J.M. wants to do well at school. He wants to grow up to have a good career and “stuff”. He wants to get better at his sports, and to try out for other sports. This would allow him to make new friends in the sports he plays.

[87] J.M. states that he has not made any friends at his mom’s apartment or through his mom. He has no friends when he goes to visit his mother. He just has his mother and his cousin to play with during those visits.

[88] He states that his mother’s parents, being his maternal grandparents, greet him when he arrives, but they never talk to him during those visits. They speak to him in English, but they also speak Tamil. J.M. told the court that he does not speak Tamil, and does not know any words in that language. He states that when his mother and her parents are talking at the apartment, they generally talk in the Tamil language. He does not know what they are talking about when they are speaking in Tamil.

[89] In contrast, his father speaks to him in English. J.M. considers English to be his first language. However, J.M. told the court that he is also learning French and Italian in school.

[90] J.M. also volunteered the following (page 18 of the transcript):

THE COURT: Okay. Anything else you wanted to tell me?

J.M.E: Yes.

THE COURT: Yes. Go ahead.

J.M.E: My mother a while ago, she, she threatened to kill me.

THE COURT: That’s very disturbing.

J.M.E: I know. I got scared.

THE COURT: What were the circumstances around that? What happened before she said that?

J.M.E: I was playing with my DS and watching T.V. She was in the kitchen, and she was like doing something in the kitchen. Then after a bit I was going to the bathroom and I came out. She was there waiting for me, and she just – and starts yelling at me, saying that, “Oh, you know, if you do this, I’m going to…” – she said, like, three words in Sri Lankan and, like did an action of killing me. And then she said she was going to kill me and my dad and her.

THE COURT: When was this, J.M.?

J.M.E: A while ago.

THE COURT: Can you be more specific? What grade were you in? Was it close to Christmas time? Or was it close to summer time?

J.M.E: It was around spring-ish.

THE COURT: Spring-ish of what year?

J.M.E: I think last year I think.

THE COURT: So last year, 2014?

J.M.E: Yes.

[91] J.M. informed that court Emerencia had never said anything like that before, and had never said anything like it since.

[92] J.M. expressed the preference about what visiting rights be given to his mother in the following terms:

a.) That he see her for a few hours at a time.

b.) He would like that visit to be in a mall.

c.) He wishes he could only see her, and no one else like her sister or her parents. Just her.

d.) He does not want the visits to be at his mother’s apartment. He does not like overnight visits.

[93] J.M. told the court that he could see himself as being happy living with his father in the home where he and his grandparents live in Brampton until he graduates from high school.

ANALYSIS

The Law

[94] Emerencia and Ernest are married. Therefore, the provisions of the Divorce Act, R.S.C. 1985 c.3 apply to the relations between them. In the matters before this court, section 16 of the Divorce Act specifically applies with respect to any order this court is asked to make with respect to custody of, access to and the parenting for J.M.

[95] Emerencia has made a claim in her application for joint custody of J.M. as an alternative to her claim for sole custody. Ernest was unequivocal in his claim for a temporary and a final order that he be awarded custody of J.M. in his answer. At trial, there was no serious position asserted by either party and certainly no evidence was given to support a claim for joint custody. That is not surprising given that Emerencia and Ernest do not and cannot communicate with each other when it comes to J.M. For all of the reasons explained by the Court of Appeal in Kaplanis v. Kaplanis, [2005] O.J. 275, the ability to communicate between parents is vital if the court is to make an order awarding joint custody of a child. It is clearly not the appropriate order to make in this case.

[96] Where parents are competing to have the court order sole custody of a child to one of them, Section 16(8) of the Divorce Act states in mandatory language that the court shall take into consideration only the best interests of the child, and when determining those best interests the court shall take into account the conditions, means, needs and other circumstances of the child.

[97] The Divorce Act recognizes that the parties as parents of the child should each have as much contact with the child as is consistent with his best interests. This means that the best interests of the child are superior to the desires of the parents. Section 16(10) of the Divorce Act states as follows:

16(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

[98] This mandate, often known as the “maximum contact principle” is an important consideration in this case.

[99] The Children’s Law Reform Act is provincial legislation that also guides the courts in making determinations of custody and access with respect to a child. In particular, Section 24 provides guiding principles applicable to this case. Section 24(2) speaks to the needs and circumstances of the child to determine the best interests of the child in the following terms:

24(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) 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. 2006, c. 1, s. 3 (1); 2009, c. 11, s. 10.

[100] Both the Divorce Act and the Children’s Law Reform Act seek to discourage the use of the past conduct of any person when making a decision about the parenting of a child unless that conduct is relevant to the ability of that person to parent a child. Paragraph 16(9) of the Divorce Act reads as follows:

16(9) In making an order under this section, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child.

[101] Similarly, Section 24(3) of the Children’s Law Reform Act states that:

(3) 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. 2006, c. 1, s. 3 (1).

[102] This statutory framework provides the basis on which I must assess the evidence given at trial, both from the parents who testified and the professional witnesses who gave evidence.

[103] J.M. also gave evidence at a judicial interview under Section 64 of the Children’s Law Reform Act. The court, where possible, is mandated to take into consideration the views and preferences of the child to the extent that the child is able to express them.

[104] Although there is no comparable section in the Divorce Act, I found Section 64 to be applicable as J.M. is the subject of the conflict between his parents. His views and preferences are of central importance as he is 13 years of age and aware of himself and his place in the world. Section 24(2)(b) directs the court to consider the views and preferences of the child if they can be reasonably ascertained. J.M.’s views and preferences were therefore given, and he was clearly heard.

Custody

[105] In a decision released on November 18, 2015, Justice Chappel of this court released Khairzad v. McFarlane, 2015 ONSC 7148. I adopt as the modern view expressed by Justice Chappel in Khairzad of what custody of and access to a child means:

[21] The applicable legislation in this case in regard to the issues of custody, residence and access is the Children’s Law Reform Act (R.S.O. 1990, C. C-12, as amended) (“the Act”). Section 20 of the Act stipulates that except as otherwise provided for in Part III, Ernest and mother of a child are equally entitled to custody of the child. Section 20(2) provides that the entitlement to “custody” encompasses the rights and responsibilities of a parent in respect of the person of the child. Custody has been described as a “bundle of rights and obligations,” referred to as “incidents of custody” in the Act, which includes the right to physical care and control of the child, to determine the child’s residence, to discipline the child, and to make decisions about the child’s education, religion, medical care and general health and activities (Young v. Young (1993), [1993] 4 S.C.R. 3; Chou v. Chou, [2005] O.J. No. 1374 (S.C.J.); Harsant v. Portnoi, [1990] O.J. No. 1144, 74 O.R. (2d) 33 (H.C.J.)).

[22] An award of sole custody to one parent grants decision-making rights to that parent, generally to the exclusion of the other parent to interfere in carrying out these rights and responsibilities (Kruger v. Kruger (1979), 11 R.F.L. (2d) 52 (Ont. C.A.)). The term “joint custody” is used to describe situations where both parents are given full decision-making authority and responsibility in all areas respecting the child. Section 20(3) of the Act provides that where more than one person is entitled to custody of a child, “any one of them may exercise the rights and accept the responsibilities of a parent on behalf of them in respect of the child.”

[23] The entitlement to “access” is defined in section 20(5) of the Act as including “the right to visit with and be visited by the child and the same right as a parent to make inquiries and to be given information as to the health, education and welfare of the child.”

[106] J.M. requires structure and stability in his life. These are necessary components for parenting a child during his formative years, and of particular importance for a child at the doorstep of adolescence. Structure and stability provide the guidance and support for a person as he crosses the threshold from childhood to the adult he will become.

[107] In custody cases where the court is exercising jurisdiction under the Divorce Act, s. 16(8) mandates that any decision must be made in the best interests of the child by reference to the condition, means, needs and other circumstances of the child.

[108] Each case turns on its own unique set of facts. However, the ultimate issue for the court to determine is what order meets the best interests of the child in the particular circumstances of the case. In considering those circumstances, the focus is on the best interests of the child, not the interests and rights of the parents: Gordon v. Goertz, [1996] 2 S.C.R 27 (SCC).

[109] The Divorce Act requires only that the trial judge respect the maximum contact principle under s. 16(10) to the extent that such contact is consistent with the best interests of the child. If there are other factors that indicate that such maximum contact would not be in the child’s best interests, the court can and should restrict contact: Young v. Young, [1993] 4 S.C.R. 3.

[110] In this case, the challenge before this court is to find the balance between J.M.’s best interests if sole custody is granted to Ernest or to Emerencia, and what defined access with the other parent would be in J.M.’s best interests in terms of time, frequency and circumstances.

[111] With these statutory principles in mind, the court is able to determine the best interests of the child by applying the needs and circumstances set out in s. 24(2) of the Children’s Law Reform Act to identify the co-existing requirements of making reference to the condition, needs, means and circumstances of a child in s. 16(8) of the Divorce Act.

a. Love, Affection and Emotional Ties

[112] In this case, Ernest has provided compelling evidence that there is a strong bond between himself and J.M. The love, affection and emotional ties between them as father and son are irrefutable. Ernest’s evidence establishes that there are equally strong bonds between J.M. and Ernest’s parents. Ernest as the father and Ernest’s parents as the grandparents were involved with J.M.’s care and upbringing in addition to Emerencia prior to the date of separation, and they have collectively been the primary caregivers to J.M. since that date.

[113] Emerencia has also provided evidence of a strong bond with J.M. that reflects the love, affection and emotional ties between herself and J.M. However, little if any evidence was given about whether that bond exists between Emerencia’s parents and J.M., or between J.M., Emerencia’s sister and her children. In fact, there is evidence that there is only discomfort between Emerencia’s nephew and J.M., more in the recent past when J.M. would complain about injuries suffered from his rambunctious cousin than now.

[114] It is significant to note from the outset that neither party called their own parents or any sibling, or the parents or any sibling of the other party as witnesses.

[115] Upon considering all of the evidence given by Ernest and Emerencia, as well as the evidence given by CAS workers and members of The Willow Centre team, Ernest has provided evidence of a more positive and nurturing family context for J.M. to date, and the best prospects for J.M. under this factor for the immediate future.

b. J.M.`s View and Preferences

[116] It is clear from the judicial interview conducted under. Section 64 of Children’s Law Reform Act that J.M. wishes to continue living with his father at the home on Moldovan Drive. It was important for J.M. to have an opportunity to express himself, his views and preferences on the one question in this case: What order for custody and access would be in J.M.’s best interests going forward? It is also important that J.M. knows that his views and preferences are valued, and that his wishes are taken seriously and will be considered when making this determination.

[117] I am mindful of J.M.’s stated views and preferences that he loves his mother, but that he is afraid of her and wishes only to have limited visits with her in terms of the length for those visits, and where they will occur. Although he did not express himself negatively about Emerencia’s parents, the evidence I heard did not support any view that he had any current wish to have visiting time with them of significance.

[118] Although J.M. made his views and preferences known, it is equally important that he understand that those views and preferences must be taken into consideration along with a great many other factors that go into determining what is in his best interests. All factors must be considered to decide what custody and access terms would be best for him in defining his human relationship with both sides of his family. It is for this reason that I have taken his views and preferences into account and have given them significant weight. However, I have not considered those views and preferences to be conclusive.

[119] What may be best for J.M. now and in the long run cannot be subject only to the wishes expressed by J.M. at this point in time in his life. Having interviewed him, I am confident that J.M. understands that at 13 years old he can’t always get what he wants. Knowing he has been heard and his wishes have been taken into account, he must accept the court will order what he needs.

c. Stable Environment

[120] Ernest gave evidence that he has been involved fully with J.M.’s medical care since birth.

[121] The evidence is clear and consistent that Ernest and his parents have provided a stable home environment for J.M. throughout his life, particularly at the house on Moldovan Drive for the last five years. There is no dispute that Ernest and his parents are able and willing to provide J.M. with guidance as he enjoys life as a young person within the family in his greater social and recreational circle, and in pursuit of education at St. Gregory’s.

[122] In particular, Ernest has encouraged J.M. to read extensively. He testified how his family, including his parents and J.M.’s aunt, have encouraged J.M. to develop his interest in reading over the years.

[123] Ernest and his parents provide J.M. with the necessaries of life, and are vigilant about any risk to exposing him to tree nuts, peanuts, legumes or other items that would trigger his allergies.

[124] By comparison, Emerencia gave little evidence about the stability of what J.M. could expect if he was to live with her family. There was little evidence about the family dynamic inside the home, and little evidence about J.M.’s life if he would go to school in Scarborough.

[125] I am persuaded by Emerencia’s evidence that she is vigilant about J.M.’s allergies when he stays with her. However, I find that Ernest and his family have a greater awareness of the risk J.M.’s allergy presents.

d. Guidance and Education

[126] Ernest testified that he has enrolled J.M. in various sports and that J.M. participates actively in soccer, swimming and karate. Ernest volunteered as a coach in the soccer league in which J.M. plays, and Ernest and his father attend J.M.’s soccer games to support him.

[127] Ernest also testified that J.M. is interested in music, and that his grandmother plays guitar with him and his aunt lets J.M. play her keyboard.

[128] The court also heard about J.M.’s love for nature and how Ernest takes him to a nearby stream and also encourages J.M. to watch nature shows to learn about the greater world around him.

[129] Emerencia gave little evidence about the details of providing guidance to J.M. as a parent. J.M. generally plays on his electronic device when he is with his mother on access weekends. Emerencia asks J.M. from time to time about sports he is playing, and gave evidence that J.M. described how he played basketball when Ernest’s evidence indicated that he does not.

[130] Since Emerencia began to live separate and apart from Ernest in July 2012, it is unfortunate that she has not provided evidence of her ability to provide J.M. with “guidance and education,” the “necessaries of life” and to address any special needs J.M. may have.

e. Parenting

[131] J.M. will be entering grade seven at St. Gregory in September 2016. Ernest testified that he has an open communication with J.M.’s teachers. He attends parent-teacher meetings on a regular basis and in the last parent-teacher meeting, Ernest was told by the teachers that J.M. needs to improve in mathematics. Ernest stated that the entire family encourages J.M. to do well at school, and that the entire family is J.M.’s sounding board with respect to achievements he earns from and at school.

[132] Ernest stated that when it comes to discipline, it is enough if he talks to J.M. to make him realize that he did something wrong. He usually does this by sitting down and going through the process with him using words.

[133] Ernest testified that if sole custody of J.M. was awarded to him, J.M. would continue to live at the home on Moldovan Drive now as before. He has his own room at the home on Moldovan Drive. There already exists a stable home environment where J.M. would continue to live and thrive.

[134] Emerencia has provided no evidence as to how she would encourage J.M. with his interests in music, reading or sports.

[135] Emerencia concentrated much of her evidence on Ernest’s conduct with respect to her. She provided little or no evidence of the plan she proposed if she were granted sole custody of J.M. for his care and upbringing. Emerencia did not provide any details about her plan to enroll J.M. in a school, or how he would commute to St. Gregory in Vaughan from her current home in Scarborough, or to any other school she would arrange for him to attend. She provided no plan for acquiring her own apartment, or arranging for adequate and proper living space to accommodate J.M. as a 13-year-old boy who requires privacy and respect.

[136] The court heard testimony that Ernest’s mother would remain in the bathroom to supervise J.M. when he bathed as a child. Regardless of what custody or access order is made, no parent or grandparent should remain in the bathroom with J.M. while he is bathing unless he is too ill to bathe himself. At 13 years old, he is entitled to his privacy.

f. Permanence and Stability

[137] Ernest testified that his role as J.M.’s father follows the profile of a typical parent. He is a friend to J.M. while sharing his interests. He is a guide to J.M. at times when he must make important decisions relation to J.M.’s medical care, school and education. However, he also testified that he explains things about religion and faith to J.M. and takes seriously his role in providing structure to J.M.’s life as a parent.

[138] Ernest also gave evidence that Emerencia has only attended J.M.’s school once to speak with his teachers. The court heard no evidence that Emerencia has made a serious attempt to visit the school or arrange a parent-teacher meeting with J.M.’s teachers since she separated from Ernest.

[139] Emerencia has never worked in Canada. Although the court heard evidence that Ernest encouraged her to pursue her education and to attain high school equivalency, it would appear that Emerencia has chosen not to do so until recently.

[140] J.M. is a person in his formative years. From the standpoint of the ability and willingness of each party to provide J.M. with guidance and education, the necessaries of life and to meet his special needs, I accept Ernest’s evidence that he has the greater ability and willingness to provide what J.M. requires to meet his condition, needs, means and circumstances.

[141] Ernest testified that St. Gregory the Great Catholic Academy, only provides classes until J.M. graduates from grade eight if he continues there as a student. Ernest has already started to inquire about suitable high schools for J.M. to attend after he completes grade eight. Ernest told the court that one is in King City, and the other is in Vaughan.

[142] Ernest also testified that it is his intention and wish that J.M. explore a career for himself, and that he would support and encourage J.M. to achieve his goal.

[143] Emerencia relied heavily on the assessment report and the evidence of The Willow team as part of her case. While that report and the evidence of its authors was persuasive, the evidence given by The Willow team was not conclusive. In Behrens v. Stoodley, [3 R.F.L. (5th) 8 (Ont.C.A.)], Justice Sharpe confirmed that a trial judge must make the final determination about accepting or rejecting assessor’s report and opinion of what would serve the best interests of the child. The court held that the evidence that unfolds over the course of a trial will provide the trial judge with a fuller picture than what normally is available to the assessors.

[144] It was also held in Tacit v. Drost (1998), 43 R.F.L. (4th) 242, that an assessor’s recommendation as to custody is only one factor a trial judge must consider. See also Woodhouse v. Woodhouse, [29 O.R. (3d) 417 (Ont.C.A.)] at page 435.

[145] The court in Jennings v. Garret, (2004), [5 R.F.L. (6th) 319] and para. 90 (Ont. S.C.), Justice Blishen enumerated a list of criteria which a “good assessment” should include:

1. Interviews with each parent and anyone living with the person seeking custody or access (e.g. new partners);
2. Interviews with the child and observation of interaction between parents and children;
3. Contact with others who have had significant involvement such as teachers or family doctors, as well as relatives who have a significant role in the lives of the children, such as grandparents;
4. A review of significant records or reports about the children or their parents; and
5. Psychological tests on parents and perhaps children, if a registered psychologist is involved.

[146] The assessment report in this case was dated October 21, 2014. Although the trial commenced on May 19, 2015, the trial was extended to November 12, 2015. With the passage of time, J.M.’s needs, means and circumstances were quickly evolving. Those needs, means and circumstances he made known to the court when he expressed his views and preferences on custody and access at the judicial interview. The material review and the interviews and testing conducted for the basis of the report occurred even earlier. Therefore, the report and the evidence given in respect of it by members of The Willow team at trial may have been out of date by half a year or more. This is a factor I am able to take into consideration: R.(M.) v. H.(S.), [1997 32 R.F.L. (4th) 127 (OCJ)].

[147] I may also disregard an assessor’s evidence if an assessor lacked proper credentials, deployed an improper methodology, or failed to take on the role of a neutral assessor, if shown to clearly favour one side over the other: Imamura v. Remus (2004), 12 R.F.L. (6th) (SCJ).

[148] Much of the assessment report discusses how Ernest has marginalized Emerencia’s role as J.M.’s mother by his conduct. I do not consider that discussion to compromise the report where it makes a comment on Ernest’s ability to parent. Indeed, there is much for Ernest to learn from such constructive criticism. I have reflected the intentions of The Willow Team in orders I shall make for counselling in due course. However, to the extent The Willow Team discusses Emerencia’s narrative about Ernest’s conduct without regard to parenting, I have disregarded that narrative as evidence of past conduct should not be considered under Section 16(9) of the Divorce Act, or s. 24(3) of the Children’s Law Reform Act.

[149] I am not saying I had any issue with either of the assessors who gave evidence with respect to their credentials, or that they deployed an improper methodology. However, I formed the distinct impression that the assessors, individually and collectively, favoured Emerencia and her parents in the course of their enquiry, which is reflected in the assessment report and their evidence at trial. This is borne out by the observation that in the report that it would be best if Ernest were to move out of his parents’ home and closer to where Emerencia lives with her parents to enable a greater sharing of parenting with Emerencia. There is no corresponding recommendation that Emerencia move from the apartment she shares with her parents to live closer to the home on Moldovan Drive where J.M. currently resides. If the thought is to dislodge J.M. from the influence of his paternal grandparents, this one-sided recommendation would seem to prefer Emerencia’s parents over Ernest’s parents, even though neither of those grandparents gave evidence at trial.

[150] While the assessment report met the list of criteria to constitute a “good assessment” under those factors enumerated by Justice Blishen in Jennings v. Garret, the recommendations made by the assessment report are simply one source of information in the form of opinion evidence for me to take into consideration along with the whole of the evidence given at trial.

[151] The court must also consider the ability of each person applying for custody of or access to a child to act as a parent. Emerencia offered little evidence as to how she would provide parenting to meet J.M.’s needs, means and circumstances. The court is concerned with the evidence about Emerencia striking J.M. from time to time in the past. The court is also concerned about the living conditions in the apartment where she lives with her parents in Scarborough. In contrast, the court heard evidence from Ernest that the home environment he has provided for J.M. has been relatively stable for J.M., and that J.M. seems happy and that he thrives in that home environment. Ernest gave evidence that he is a central character in J.M.’s life, and that he has been effective in his ability to constructively discipline J.M., to make decisions for J.M. and to provide the necessaries of life for J.M. to meet his condition, means, needs and circumstances. In summary, Ernest has given evidence before this court that he can provide and does provide the structure and stability that J.M. will benefit from as he enters the teenage years.

[152] There is no doubt in my mind that the evidence favours Ernest to be the custodial parent. I find as a fact that J.M.’s best interests will be served by awarding sole custody to Ernest.

Access

[153] Emerencia has asked for access as a last resort on the terms permitted by the temporary order of Justice Price on December 19, 2014.

[154] Although Ernest has been given sole custody, there is still a tension between the limited access he would like Emerencia to have with J.M., and the generous access that Emerencia seeks. That tension must be resolved according to law, as the principles set out in s. 16(10) recognize the importance of the custodial parent to encourage access of the other parent to a child.

[155] It became increasingly apparent in the course of the trial that Ernest, while carrying out the access terms of the temporary order made by Justice Price to the letter, was a reluctant participant in terms of honouring the spirit of that order. In the context of analyzing the question of sole custody versus joint custody of a child, Chappel J. observed in Khairzad v. McFarlane that the court must delve below the surface to consider the source of conflict by stating that:

[31] In analyzing the ability of the parties to communicate, the court must delve below the surface and consider the source of the conflict. The Ontario Court of Appeal has clearly stated that one parent cannot create conflict and problems with the other parent by engaging in unreasonable conduct, impeding access, marginalizing the other parent, or by any other means and then claim sole custody on the basis of lack of cooperation and communication (Lawson, Supra.; Ursic v. Ursic, 2004 CarswellOnt 8728 (S.C.J.), aff’d [2006 CarswellOnt 3335 (C.A.)]; Andrade v. Kennelly, 2006 CarswellOnt 3762 (S.C.J.), aff’d 2007 ONCA 898, 2007 CarswellOnt 8271 (C.A.)).

[156] The courts have historically frowned upon the efforts of one parent to discourage by action or inertia a child’s responsiveness to the efforts of the other parent to obtain and enjoy access to that child.

[157] In A.A. v. G.G., [2010] O.J. No. 835 the court awarded sole custody of the children to the father in a case where the mother had deliberately and negatively affected the father’s role in the family and his relationship with the children. The court in A.A. v. G.G., mindful of the mandatory requirement for providing an order allowing maximum contact with each child under section 16 (10) of the Divorce Act, recognized that the court shall give effect to the principle that a child of the marriage should have as much contact with each parent as is consistent with the best interests of the child.

[158] The court, informed with the best interests of the child, shall take into consideration the willingness of the custodial parent to facilitate the child’s contact with the noncustodial parent. The court in A.A. v. G.G. recognized that the “maximum contact principle”, as it has been called, is mandatory but it is not absolute. The powers of a judge on the custody or access claim is subject to awarding such contact as is consistent with the child’s best interests. Any other arrangements not in the best interests of the child should be restricted accordingly to the extent that the child’s best interests are served.

[159] In A.A. v. G.G., the mother had conducted herself to minimize the father’s role in the children’s lives. Conversely, the willingness of the father to accommodate the mother’s access to the children supported the conclusion of the court that there was a greater likelihood that the father would actively support generous and liberal access to the mother. This was a contributing factor for the court to award sole custody of the children to the father.

[160] The Court of Appeal in B.V. v. P.V., [2012] O.J. No. 1778 (Ont. C.A.) also recognized that a custodial parent is acting responsibly and in the best interests of the child by ensuring maximum contact of the child with the noncustodial parent.

[161] It is just as important for J.M. to have his mother, Emerencia in his life as it is for him to reside primarily with his father. In accordance with the assessment report by The Willow Centre team, J.M. must realize that it makes him a complete person to see his mother consistently. He must learn to respect her role as his mother, the views she expresses, and what she contributes as the access parent towards his best interests.

[162] Emerencia herself should not see access as a consolation prize, but as a way to play a meaningful role in J.M.’s life. In this way, Emerencia will make a consistent and complimentary contribution to assist J.M. to grow into the person he is to become.

[163] Although Emerencia would like to have three out of every four weekends with J.M., I find that having consecutive weekends away from weekend activities that J.M. might have with his father or with his social circle and recreational activities involving music, sports and other extracurricular activities may detract from J.M.’s development in those fields. Instead, in order to ensure that Emerencia has regular and consistent access, I am ordering that J.M. shall visit with Emerencia every other weekend from 10 a.m. on Saturday morning until 6 p.m. on Sunday night, provided that Emerencia can satisfy the OCL that the sleeping arrangements for J.M. for Saturday night are gender and age appropriate. Unless and until those sleeping arrangements are made, then the access visit for that weekend shall only be from 10 a.m. to 8 p.m. on Saturday.

[164] In view of the living arrangements at the apartment where Emerencia lives with her parents, I cannot condone overnight visits until appropriate sleeping arrangements for J.M. that are gender and age appropriate are in place. Therefore, I am requesting that the OCL remain involved as J.M.’s lawyers to ensure, directly or in consultation with the Peel CAS, that all sleeping arrangements and other accommodation are suitable for access visits.

[165] I am also requiring Emerencia to make the effort to meet Ernest half-way in the travel arrangements for the performance of access visits. Emerencia shall either attend personally at a mutually agreed upon location to pick up, or arrange to have J.M. picked up at 10 a.m. on the first day of any access visit. The exchange may take place at an agreed upon location such as at Yorkdale Mall, accessible by car and by public transit. At the end of each access visit, Ernest shall pick J.M. up at Emerencia`s residence at the specified time.

[166] I order that Ernest provide a written report to Emerencia each month that will travel with J.M. on the last access visit of each month to provide her with current information about J.M.`s health, education and welfare. This report shall also contain information about J.M.’s performance at school, a description of his extracurricular activities and all planned extracurricular activities for the following month.

[167] I am granting special access to Emerencia on Good Friday and on Mother’s Day and December 26each year between 10 a.m. and 8 p.m. Where those days immediately precede or immediately follow a weekend when Emerencia would be having access with J.M., the access visit will be added to that weekend, provided that all other terms of this order are met.

[168] When J.M. is residing with one parent, that parent shall facilitate communication between 6 p.m. and 7 p.m. by J.M. with the other parent over the telephone, by Skype or FaceTime.

[169] I further order that where J.M. is residing with one parent, that parent shall not physically discipline J.M., threaten to discipline J.M., threaten to reprimand J.M. for any statement he makes about the other parent, or denigrate or disparage the other parent to J.M.

[170] It will be a term of this order that each parent shall comply strictly with J.M.’s diet to ensure that he does not encounter any foods that J.M. is allergic to, or permit any circumstance that may cause him to have an allergic reaction.

[171] In order that J.M. and Emerencia have a context in which to learn how to relate to each other and to build on their relationship as mother and child, I am ordering that Emerencia and J.M. engage in counselling with a qualified therapist or counsellor in parent and child reunification treatment approved by the OCL at least once a month, or in such frequency that the counsellor may determine for a period of one year, commencing in September 2016. Each of those monthly sessions, or if more than one session a month, at least two such sessions shall occur at the end of the week before, or on the weekend that Emerencia does not have an access visit with J.M.

[172] I am not ordering that a counsellor learned in the Sri Lankan culture provide cultural or culturally-oriented counselling to Emerencia and J.M. Little if any evidence was given about Emerencia’s intent to teach J.M. about his Sri Lankan heritage, and there was no evidence that J.M. would not learn about his Sri Lankan heritage on visits with Emerencia or from Ernest and his parents.

[173] I also consider it important that Ernest and J.M. obtain counselling on how to relate to Emerencia and to respect her role as J.M.’s mother. I am therefore making an order that Ernest and J.M. seek counselling from a qualified therapist or counsellor for family sensitivity treatment at least once a month for one year, commencing September 2016. Ernest and J.M. shall attend to learn how to be sensitive to and respectful of Emerencia’s role as J.M.’s mother, and to accept the importance of J.M.’s relationship with both parents.

[174] The economic disparity between Ernest, who is employed and resides with his parents in a home in Brampton, and Emerencia, who is unemployed and resides with her parents in an apartment in Scarborough, is evident. Their disparities will likely affect the ability to pay for the counselling I have ordered. Therefore, I am ordering that the cost of counselling for Emerencia and J.M., and the counselling for Ernest and J.M. shall be borne by Ernest for one year, commencing in September 2016.

[175] I do not know what the future holds for Emerencia, and her intentions to obtain employment and to arrange for living accommodation on her own. I want to give Emerencia the opportunity to show the court that she has the willingness and ability to provide J.M. with guidance and accommodation to meet any of his needs to expand access. I am therefore making an order that she may apply for an access review in two years. This will allow her one year after the year of counselling to show that she can or has put into practice what she has learned. Therefore, these orders as to the custody of, and access to J.M. are subject to review after June 1, 2018.

J.M.’s Documents

[176] In view of my orders, Ernest shall retain all of J.M.’s passport and other original documents, but shall provide a notarial copy of his health card, blood-type card, social insurance card, and membership cards for any of J.M.’s extracurricular activities to Emerencia. J.M.’s health card shall travel with him at all times.

CONCLUSION

[177] Having regard to all the evidence, I have determined that the following custody and access terms are in J.M.’s best interests:

1. Ernest shall have sole custody of J.M.
2. Ernest shall retain J.M.’s passport and all other original documents. Ernest shall provide a notarial copy of J.M.’s health card, blood-type card, social insurance card and membership cards for any of J.M.’s extracurricular activities to Emerencia. J.M.’s health card shall travel with him at all times.
3. The OCL is requested to remain involved as J.M.’s lawyers.
4. Emerencia shall have access to J.M. every other weekend from 10 a.m. on Saturday morning until 6 p.m. on Sunday night, provided that Emerencia can satisfy the OCL that the sleeping arrangements for J.M. over Saturday night are gender and age appropriate. If those sleeping arrangements are not satisfactory, then the access visit for that weekend shall only commence at 10 a.m. and end at 8 p.m. on Saturday.
5. Emerencia shall either attend personally at a mutually agreed upon location to pick up, or arrange to have J.M. picked up at 10 a.m. for any access visit. Ernest shall pick up J.M. at Emerencia’s residence at the specified time at the end of the access visit.
6. Ernest shall provide Emerencia with a written report each month that will travel with J.M. on the last access visit of each month to provide current information about J.M.’s health, education and welfare. This report shall include information about J.M.’s course performance and marks at school, a description of all J.M.’s extra-curricular activities since the immediately preceding report, and all planned extra-curricular activities for the month following.
7. Emerencia shall have special access to J.M. on Good Friday and on Mother’s Day and December 26 (Boxing Day) each year between 10 am and 8 pm. Where those days immediately precede or immediately follow a weekend when Emerencia will be having an access visit with J.M., that access visit will be expanded to add that day to that weekend, provided all other terms of this order are met.
8. When J.M. is residing with one parent, that parent shall facilitate communication between 6 p.m. and 7 p.m. for J.M. with the other parent over the telephone, Skype or FaceTime.
9. When J.M. is residing with one parent, that parent shall not physically discipline J.M., threaten to discipline J.M., threaten to reprimand J.M. for any statement he makes about the other parent, or denigrate or disparage the other parent to him.
10. Each parent shall comply strictly with J.M.’s diet to ensure he does not encounter any foods that J.M. is allergic to, or permit any circumstance that may cause him to have an allergic reaction.
11. Emerencia and J.M. shall engage in counselling with a qualified therapist or counsellor in parent and child reunification treatment approved by the OCL at least once a month, or with such frequency that counsellor may determine for a period of one year, commencing in September 2016. Each monthly session, or if more than one session a month, at least two such sessions shall occur at the end of the week before, or on the weekend that Emerencia does not have an access visit with J.M.
12. Ernest and J.M. shall seek counselling from a qualified therapist or counsellor for family sensitivity treatment at least once a month for one year, commencing in September 2016. They are to learn how to be sensitive to and respectful of Emerencia’s role as J.M.’s mother, and to accept the importance of a child’s relationship with both parents.
13. The cost of the counselling for Emerencia and J.M., and for Ernest and J.M. shall be borne by Ernest.
14. The custody, access and terms ordered herein are subject to review after June 1, 2018.

COSTS

[178] The parties are encouraged to settle any claim for costs between them. However, any party may seek costs by filing submissions in writing by August 31, 2016. Any other party may file written submissions in response by September 21, 2016. All written submissions shall be limited to three pages, not including time dockets and disbursement receipts, and may be sent by fax to my judicial assistant, Mr. Christopher Charles, at 905-456-4834 in Brampton. No submissions in reply will be permitted without prior leave of the court.

JUSTICE M.G. EMERY

Dated: August 9, 2016 Amended: August 25, 2016