Court File and Parties

Court File No.: 514/11 Date: 2017-02-23 Ontario Superior Court of Justice

Between: K.A., Applicant – and – L.L.B., Respondent

Counsel: Keith R. Newell, for the Applicant Marlene J. VanderSpek, for the Respondent

Heard: January 23, 24 and 25, 2017

The Honourable Mr. Justice D.J. Gordon

Reasons for Decision

[1] The issues requiring determination are the nature of father’s access, sole custody being with the maternal grandmother, and child support.

Factual Background

[2] A.L.A. is 8 years of age. Her father is K.A. He is 31. Her mother was C.B. C.B. passed away in 2012 at the age of 28. A.L.A. resides with her maternal grandmother, L.L.B., who is 57.

[3] K.A. and C.B. were in a common law relationship from 2004 until C.B. passed away. A.L.A. is their only child. Both K.A. and C.B. have, or had, learning difficulties or cognitive issues. Nevertheless, A.L.A. was in their care following birth.

[4] In July 2009, C.B. became ill. She required medical care and hospitalization. As K.A. was spending considerable time with C.B. and dealing with her health issues, he asked Y.B., the paternal grandfather, to care for A.L.A. Y.B. did so until April 2010, when he delivered the child to L.L.B. Y.B. and L.L.B. have been separated for a number of years. A.L.A. has remained in the care of L.L.B. since. The parties agree that such should continue and consent to a final order awarding sole custody to her.

[5] K.A. is employed as a store clerk, on a part-time basis, with Food Basics. He also receives financial assistance from the Ontario Disability Support Plan. His total income, at present, is $22,870.00 per annum. K.A. resides in an apartment with his common law spouse, T.R. T.R. also has a learning disability or cognitive delay. She is the mother of a 2 year old child. The child resides with her father.

[6] L.L.B. resides with A.L.A. and also her son, M.B., age 24. Her source of income is Ontario Disability Support Plan due to rheumatoid arthritis.

Litigation History

[7] K.A. and C.B. commenced this case by application issued July 28, 2011, seeking an order for custody. The answer of L.L.B. is dated August 24, 2011. She also requested an order for custody and, as well, child support and asked that any access granted to K.A. and C.B. be supervised.

[8] The parties have appeared in court on at least 30 occasions. As later discussed, little was accomplished.

[9] The following temporary orders were granted:

(a) February 14, 2012 – Scott J. (i) Office of The Children’s Lawyer requested to provide services; (ii) on a without prejudice basis, K.A. and C.B. to have supervised access to A.L.A., for up to 2 hours per week at Pathstone Supervised Access Centre; and (iii) leave granted to L.L.B. to withdraw her claim for child support.

(b) March 15, 2013 – MacPherson J. (i) supervised access by K.A., as ordered on February 14, 2012 reinstated; and (ii) K.A. to provide copy of 2012 tax return and other income disclosure.

(c) July 8, 2013 – MacPherson J. (i) on a without prejudice basis, K.A. to pay child support to L.L.B. of $100 per month on annual income of $15,200, commencing July 1, 2013; (ii) K.A. to provide further income disclosure; and (iii) on a without prejudice basis, L.L.B. to have custody of A.L.A.

(d) October 18, 2013 – Turnbull J. (i) L.L.B. to have custody of A.L.A.; (ii) K.A. shall have access to A.L.A. for 2 hours weekly on Fridays between 5:00 and 7:00 p.m., supervised by his parents, or one of them; (iii) A.L.A. not to be taken out of St. Catharines; and (iv) K.A. to provide a direction authorizing release of records pertaining to A.L.A. by Family and Children’s Services.

(e) April 9, 2015 – Reid J. (i) Office of the Children’s Lawyer requested to update its report.

[10] The Office of the Children’s Lawyer accepted the court’s request, providing a section 112 Courts of Justice Act, investigation and report on two occasions. John Thompson was the clinical investigator assigned. He provided reports dated January 2, 2013 and March 21, 2016.

Issues

[11] At some point, perhaps after the initial investigation and report by Mr. Thompson, the focus of this case changed. K.A. conceded that it was best for A.L.A. to remain in the custody of L.L.B. He consents to a final order in this regard. The parties also resolved the quantum of child support payable by K.A., despite the order granted on February 14, 2012, but do not agree on the commencement date.

[12] The primary issue addressed at trial was the nature of K.A.’s access to A.L.A. on a go forward basis. K.A. seeks a final order for unsupervised access, monitored by one or both of his parents, on alternate weekends after a transition period and on other specified terms. L.L.B. asks that the access of K.A. continue to be supervised but wants same to occur at Pathstone Supervised Access Centre.

Legal Principles

[13] Every custody or access case must be determined on the basis of the “best interests of the child” as provided in section 24, Children’s Law Reform Act, as follows:

24. MERITS OF APPLICATION FOR CUSTODY OF ACCESS -- (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4).

(2) BEST INTERESTS OF CHILD -- The court shall consider all the child’s needs and circumstances, including,

(a) the love, affection and emotional ties between the child and,

(i) each person, including a parent or grandparent, 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) any familial relationship between the child and each person who is a party to the application.

(3) PAST CONDUCT -- A person’s past conduct shall be considered only,

(a) in accordance with subsection (4); or

(b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent.

(4) VIOLENCE AND ABUSE -- In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,

(a) his or her spouse;

(b) a parent of the child to whom the application relates;

(c) a member of the person’s household; or

(d) any child.

SAME -- For the purposes of subsection (4), anything done in self-defence or to protect another person shall not be considered violence or abuse.

[14] This test has been addressed in several leading appellate decisions. In MacGyver v. Richards (1995), 11 R.F.L. (4th) 432 (Ont. C.A.), Abella J.A., as she then was, at para. 27, described it in this manner:

27. Clearly, there is an inherent indeterminacy and elasticity to the “best interests” test which makes it more useful as legal aspiration than as legal analysis. It can be no more than an informed opinion made at a moment in the life of a child about what seems likely to prove to be in that child’s best interests. Deciding what is in a child’s best interests means deciding what, objectively, appears most likely in the circumstances to be conducive to the kind of environment in which a particular child has the best opportunity for receiving the needed care and attention. Because there are stages to childhood, what is in a child’s best interests may vary from child to child, from year to year, and possibly from month to month. This unavoidable fluidity makes it important to attempt to minimize the prospects for stress and instability.

[15] McLachlin J., as she then was, expanded on that concept in Gordon v. Goertz, [1996] 2 S.C.R. 27 (S.C.C.), at para. 20, saying:

20 The best interests of the child test has been characterized as “indeterminate” and “more useful as legal aspiration than as legal analysis”: per Abella J.A. in MacGyver v. Richards (1995), 11 R.F.L. (4th) 432 (Ont. C.A.), at p. 443. Nevertheless, it stands as an eloquent expression of Parliament’s view that the ultimate and only issue when it comes to custody and access is the welfare of the child whose future is at stake. The multitude of factors that may impinge on the child’s best interest make a measure of indeterminacy inevitable. A more precise test would risk sacrificing the child’s best interests to expediency and certainty. Moreover, Parliament has offered assistance by providing two specific directions -- one relating to the conduct of the parents, the other to the ideal of maximizing beneficial contact between the child and both parents.

[16] McLachlan J. had previously addressed the principle of maximum contact in Young v. Young, [1993] 4 S.C.R. 3 (S.C.C.), at para. 204:

204 Third, s. 16(10) of the Divorce Act provides that in making an order, 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." This is significant. It stands as the only specific factor which Parliament has seen fit to single out as being something which the judge must consider. By mentioning this factor, Parliament has expressed its opinion that contact with each parent is valuable, and that the judge should ensure that this contact is maximized. The modifying phrase "as is consistent with the best interests of the child" means that the goal of maximum contact of each parent with the child is not absolute. To the extent that contact conflicts with the best interests of the child, it may be restricted. But only to that extent. Parliament's decision to maintain maximum contact between the child and both parents is amply supported by the literature, which suggests that children benefit from continued access: Michael Rutter, Maternal Deprivation Reassessed (1981), Robin Benians, "Preserving Parental Contact: a Factor in Promoting Healthy Growth and Development in Children", in Jo Tunnard, ed., Fostering Parental Contact: Arguments in Favour of Preserving Contact Between Children in Care and Their Families (1982).

[17] At para. 206, she concluded:

206 I would summarize the effect of the provisions of the Divorce Act on matters of access as follows. The ultimate test in all cases is the best interests of the child. This is a positive test, encompassing a wide variety of factors. One of the factors which the judge seeking to determine what is in the best interests of the child must have regard to is the desirability of maximizing contact between the child and each parent. But in the final analysis, decisions on access must reflect what is in the best interests of the child.

[18] In Gordon v. Goertz, McLachlan J. further considered maximum contact, at para. 24 saying:

24 The second factor which Parliament specifically chose to mention in assessing the best interests of the child is maximum contact between the child and both parents. Both ss. 16(10) and 17(9) of the Divorce Act require that "the court shall give effect to the principle that a child of the marriage should have as much contact with each former spouse as is consistent with the best interests of the child". The sections go on to say that for this purpose, the court "shall take into consideration the willingness of [the applicant] to facilitate" the child's contact with the non-custodial parent. The "maximum contact" principle, as it has been called, is mandatory, but not absolute. The Act only obliges the judge to respect it to the extent that such contact is consistent with the child's best interests; if other factors show that it 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, at pp. 117-18, per McLachlin J.

[19] Access is the right of the child. In M.(B.P.) v. M.(B.L.D.E.) (1992), 42 R.F.L. (3d) 349 (Ont. C.A.), Abella J., at para. 28 expanded on the concept:

28 But the central figure in the assessment is the dependent child. And that is why, despite the fact that s.24(2)(g) refers to “the relationship by blood or through an adoption order between the child and each person who is a party to the application,” the existence of such a relationship guarantees no rights to custody or access. The rights in custody and access are those of the child: see Bernard M. Dickens, “The Modern Function and Limits of Parental Rights” (1981) 97 Law Q. Rev. 462. Ideally, this will mean an ongoing and positive relationship with both parents.

[20] Similarly, in MacGyver v. Richards, supra, at para. 38, Abella J.A. said:

38 The child's best interests must be assessed not from the perspective of the parent seeking to preserve access, but from that of the child entitled to the best environment possible. It is a mistake to look down at the child as a prize to be distributed, rather than from the child up to the parent as an adult to be accountable. This by no means eliminates the adult’s wishes from the equation; it means that those wishes cannot be accommodated. It is the child's right to see a parent with whom she does not live, rather than the parent's right to insist on access to that child. That access, its duration and quality, are regulated according to what is best for the child rather than what is best for the parent seeking access.

[21] With these principles in mind, the starting point for consideration ought be normalized access. The analysis of the evidence would then determine whether such access should be restricted or terminated. Normalized access, such as alternate weekends, holiday and other time allows the parent child relationship to develop and grow, a benefit to the child in having the support of two parents and stability in her life.

[22] Given L.L.B.’s position that K.A.’s access ought be supervised, the caselaw provides guidance. In M.(B.P.) v. M.(B.L.D.E.), at paras 33 and 34, Abella J.A. said:

33 The purpose of supervised access, far from being a permanent feature of a child’s life, is to provide “a temporary and time-limited measure designed to resolve a parental impasse over access. It should not be used … as a long-term remedy”: Norris Weisman, “On Access after Parental Separation” (1992) 36 R.F.L. (3d) 35, at p. 74. Yet no other form of access is even thinkable for this child. In the absence of any, let alone a significant demonstrable benefit to the child, and based on the solid evidence of four years of harassing, insensitive, disruptive, and harmful behaviour from the father, Wright J. made no error in terminating access by the father to the child based on the material change reflected in the child’s stress.

34 It is not a question of what standard should be used to deprive a parent of access, it is a question of what standard should be used in deciding what form of access, if any, should be ordered. The answer is clear from the statute: the standard is the child’s best interests. (See, also, Craig v. Antone, a judgment of the Ontario Provincial Court (Family Division), released April 9, 1987, per Vogelsang Prov. J. [reported at, 7 R.F.L. (3d) 409]; Lusher v. Lusher, a judgment of the Ontario Provincial Court (Family Division), released February 29, 1988, per Main Prov. J. [reported at, 13 R.F.L. (3d) 201])

[23] In Young v. Young, McLachlan J., at paras. 207 and 220 added the following comments:

207 It follows from this that the proposition, put to us in argument, that the custodial parent should have the right to forbid certain types of contact between the access parent and the child, must fail. The custodial parent's wishes are not the ultimate criterion for limitations on access: see King v. Low, [1985] 1 S.C.R. 87, at p. 101. The only circumstance in which contact with either parent can be limited is where the contact is shown to conflict with the best interests of the child.

210 I conclude that the ultimate criterion for determining limits on access to a child is the best interests of the child. The custodial parent has no "right" to limit access. The judge must consider all factors relevant to determining what is in the child's best interests; a factor which must be considered in all cases is Parliament's view that contact with each parent is to be maximized to the extent that this is compatible with the best interests of the child. The risk of harm to the child, while not the ultimate legal test, may also be a factor to be considered. This is particularly so where the issue is the quality of access -- what the access parent may say or do with the child. In such cases, it will generally be relevant to consider whether the conduct in question poses a risk of harm to the child which outweighs the benefits of a free and open relationship which permits the child to know the access parent as he or she is. It goes without saying that, as for any other legal test, the judge, in determining what is in the best interests of the child, must act not on his or her personal views, but on the evidence.

[24] In Jennings v. Garrett, 2004 CarswellOnt 2159 (Ont. S.C.J.), Blishen J. provided a helpful summary of factors considered in other cases in terminating access, at para. 135, namely:

135 In considering these cases and others, the factors most commonly considered by the courts in terminating access are the following:

1. Long term harassment and harmful behaviours towards the custodial parent causing that parent and the child stress and or fear. See M.(B.P.) v. M.(B.L.D.E.), supra; Stewart v. Bachman, [2003] O.J. No. 433 (Ont. C.J.); Studley v. O’Laughlin, [2000] N.S.J. No. 210 (N.S. Fam. Ct.); Dixon v. Hinsley, [2001] O.J. No. 3707 (Ont. C.J.).

2. History of violence; unpredictable, uncontrollable behaviour; alcohol, drug abuse which has been witnessed by the child and/or presents a risk to the child’s safety and well being. See Jafari v. Dadar, supra; Maxwell v. Maxwell, [1986] N.B.J. No. 769 (N.B. Q.B.); Abdo v. Abdo (1993), 126 N.S.R. (2d) 1 (N.S. C.A.); Studley v. O’Laughlin, supra.

3. Extreme parental alienation which has resulted in changes of custody and, at times, no access orders to the former custodial parent. See Tremblay v. Tremblay (1987), 10 R.F.L. (3d) 166 (Alta. Q.B.); Reeves v. Reeves, [2001] O.J. No. 308 (Ont. S.C.J.).

4. Ongoing severe denigration of the other parent. See Frost v. Allen, [1995] M.J. No. 111 (Man. Q.B.); Gorgichuk v. Gorgichuk, supra.

5. Lack of relationship or attachment between noncustodial parent and child. See Studley v. O’Laughlin, supra; M.(B.P.) v. M.(B.L.D.E.), supra.

6. Neglect or abuse to a child on the access visits. See Maxwell v. Maxwell, supra.

7. Older children’s wishes and preferences to terminate access. See Gorgichuk v. Gorgichuk, supra; Frost v. Allen, supra; Dixon v. Hinsley, supra; Pavao v. Pavao, [2000] O.J. No. 1010 (Ont. C.J.).

[25] At para. 137, she went on to say:

137 Most of the factors listed above would also be relevant to a consideration of supervised access. As the termination of access is the most extreme remedy to be ordered in only the most exceptional circumstances, the court must carefully consider the option of supervision prior to termination. It is possible through a supervision order to do the following: protect children from risk of harm; continue or promote the parent/child relationship; direct the access parent to engage in programming, counselling or treatment to deal with issues relevant to parenting; create a bridge between no relationship and a normal parenting relationship; and, avoid or reduce the conflict between parents and thus, the impact upon children.

[26] L.L.B. challenges the second report of the clinical investigator from the Office of the Children’s Lawyer. The intended purpose of such a report is to assist the court as follows: (a) ascertain the views and preference of the child, if possible; (b) conduct a fact finding investigation; and (c) present recommendations.

[27] The reports are part of the evidentiary record. Mr. Thompson also testified. I permitted cross-examination by both counsel, taking the view Mr. Thompson was a court appointed witness.

[28] Evidence of an investigator or assessor has been addressed in several decisions by the Court of Appeal. In Cade v. Rotstein (2004), 50 R.F.L. (5th) 280, the panel, at para. 5, said:

5 The central issue here was whether the respondent should be entitled to move to New York with the children. The trial judge carefully considered the factors enumerated in Gordon v. Goertz, [1996] 2 S.C.R. 27 (S.C.C.) and found that it would be in the best interest of the children to allow the respondent to move to New York and to take the children with her. The appellant argues that the trial judge erred by failing to accord sufficient weight to the expert report of Dr. Weir. We do not agree. The trial judge was not bound by the recommendations of Dr. Weir, particularly as the trial judge found that evidence simply did not support significant factual assumptions made by Dr. Weir with respect to the capacity of the parties to undertake childcare duties. It is well-established that trial judges are to be accorded a high degree of deference in this area and we see no material error in law or in his appreciation of the facts in this case that would justify us to interfere.

[29] Similarly, in Coyle v. Danylkiw, 2006 O.J. No. 2061, the panel, at para. 8, said:

8 With respect to the weight to be attached to the custody assessor’s evidence, in our view, there was no error by the trial judge. The weight to be attached to the evidence of any expert is a matter for the trier of fact. The trial judge did not simply dismiss the evidence out of hand. She gave detailed reasons for why she did not agree with the assessor’s conclusion and why she found it lacking in many respects. While the appellant submits that the trial judge misapprehended some of the evidence and gave unfair weight to some issues, we are satisfied that the conclusion was supported by the record. To take one example, the trial judge took an entirely different view of the impact of the July 2001 incident than did the assessor. The assessor did not consider it significant; the trial judge did. Whether or not we would have placed as much emphasis on the incident as did the trial judge is beside the point. The weight to be attached to the impact of the incident was for the trial judge. The trial judge could not simply delegate her fact-finding responsibilities to the assessor.

Discussion

[30] With those principles in mind, I turn to the evidence presented at trial. The focus, of course, is the child. In the discussion of her best interests, given the nature of the issues raised by the parties, it is necessary to review K.A.’s situation, L.L.B.’s concerns and the clinical investigation.

(i) A.L.A.

[31] As previously stated, A.L.A. is now 8 years of age. She resides with her maternal grandmother and sees her father, in a supervised setting, for two hours each week. The evidence about A.L.A. comes primarily from K.A., L.L.B., K.A.’s parents, D.A. and A.A., and Mr. Thompson. Except for the evidence from the clinical investigator, much of what was said about A.L.A. was anecdotal in nature. No school reports, medical reports or other documents were tendered in evidence. While L.L.B. disputes some parts of Mr. Thompson’s report, she does not challenge his comments about A.L.A.

[32] K.A. describes A.L.A. as a friendly, caring and well-mannered child. He says she gets along with family and friends, that she loves everybody. K.A. reports A.L.A. as wanting to stay longer on the access visits.

[33] K.A.’s parents echo these comments. They supervise the access visits and indicate A.L.A. enjoys spending time with her father but would like longer visits.

[34] L.L.B. reports A.L.A. to be a bright, inquisitive, articulate and caring child. She says A.L.A. had behavioural issues and development delay in 2009 when she first came to live with L.L.B.’s former spouse, such being dealt with by him. L.L.B. also mentions behavioural issues at school as hereafter discussed. L.L.B. indicates A.L.A. does not want to go on access visits with K.A. but that the child’s wishes are a couple of hours with him every other week.

[35] When Mr. Thompson conducted his first clinical investigation in 2013, A.L.A. was 4 years of age. In his report, Mr. Thompson presented the following observations:

THE CHILD:

A.L.A. is a bright and happy girl who turned four years old in December. She is attending junior kindergarten and appears to be enjoying school. While she suffers from allergies and frequent ear infections, she is generally healthy.

Observation Interviews:

A.L.A. was seen at L.L.B.’s home on a weekday morning during the summer school break.

A.L.A. ate lunch and played games with L.L.B. during the visit. She was enthusiastic about her plans for the day and their activities together. A.L.A. appeared very comfortable with L.L.B. and often sought physical contact.

L.L.B. took advantage of learning opportunities as they arose and effectively re-directed A.L.A. as needed.

A.L.A. was seen with C.B. and K.A. at Pathstone Supervised Access Centre. A.L.A. was very excited to see her parents and greeted them enthusiastically. A.L.A. roughhoused with C.B. and K.A. and enjoyed being tickled by her father. They completed a puzzle and played outside on the playground. Throughout the visit A.L.A. was happy and very active. She appeared comfortable with K.A. and C.B. and seemed to be enjoying herself.

At different times during the visit C.B. and/or K.A. would attempt to re-direct A.L.A. with little success. For example, early in the visit A.L.A. was throwing toys at them at across the room. Both parents asked her to stop repeatedly but made no further efforts when A.L.A. ignored them.

On another occasion, A.L.A. fell and began crying. Although they called A.L.A. to them and checked for injury, neither approached her and only physically comforted her when A.L.A. asked for a hug.

K.A. and C.B. helped A.L.A. get ready to go when asked to do so by staff and A.L.A. enthusiastically greeted L.L.B. following the visit.

Interview of A.L.A.:

A.L.A. was spoken with at home. She was happy to talk about her family and toys and to show this investigator around her home. She spoke positively about L.L.B. and Uncle M.B. and described a day to day routine in the home that was age appropriate.

[36] At the time of Mr. Thompson’s second clinical investigation, in 2016, A.L.A. was then 8. In his report, he provided additional comments, namely:

THE CHILD:

A.L.A. is a bright and cheery eight year old girl who presents as social and friendly.

A.L.A. is doing well in school and has adjusted to her new school this year. According to her principal, she is well liked by her peers and presents with no behavioural issues. A.L.A. is healthy, though she suffers from asthma which is well managed and stable.

Observation Interviews:

A.L.A. was seen with L.L.B. at home on a weekday after school. During the visit L.L.B. helped A.L.A. settle in from school and review her homework for the night. Together they studied for an upcoming spelling test and did homework. L.L.B. and A.L.A. talked about A.L.A.’s new school and her friends. They also explored ways in which A.L.A. could make new friends and resolve conflicts and prepared an emergency escape plan for their new apartment.

The after school routine appeared very familiar for A.L.A. who seemed to expect to do homework and relax after arriving home. She was responsive to direction from L.L.B. and appeared very comfortable with her. L.L.B. took advantage of and created learning opportunities and was very aware of A.L.A.’s friends and school activities.

A.L.A. was seen with her father and his parents at McDonald’s during K.A.’s regular Friday afternoon access. During the visit K.A. and A.L.A. played in the play space; climbing on the equipment and playing basketball before and after sitting down for dinner together.

During the visit A.L.A. was very active and appeared to be having fun. She was engaged with K.A. in play and sought his attention and participation. At times K.A. was clear in his direction to A.L.A. and she responded well (asking her to not climb on the shoe rack in the play area for example). At other times K.A. was less direct and A.L.A. ignored him (encouraging her to leave the play area to eat dinner for example).

Interviews With The Child:

A.L.A. was seen and spoken with during both observation interviews and was interviewed in private.

A.L.A. spoke positively about L.L.B. She was able to describe activities they enjoy together and an age appropriate, child focused routine. A.L.A. also spoke positively about her access with K.A. She reported that she enjoys McDonald’s as well as going bowling or to the park.

A.L.A. appeared aware of the conflict between K.A. and L.L.B. For example, she noted the role of this clinician was ‘to stop K.A.’s visits’ and that her uncle (M.B.) ‘says K.A. is a bad word’ and is not a good person. She also believed that K.A. was going ‘to cry to whoever is deciding’ so that he would be able to see her in an unsupervised setting and noted that ‘grandma says’ that she is not allowed to go to Niagara Falls and that K.A. would ‘get in trouble’ if he took her there. She could not recall having gone in the past.

[37] Carl Glausser was called as a witness by counsel for L.L.B. He is the principal of the elementary school A.L.A. attends. Mr. Glausser has known the child since 2015.

[38] Mr. Glausser reports A.L.A. to be a nice student who has experienced emotional issues on occasion. Such, he said, were resolved by teacher intervention. Several notes from teachers in 2013 and 2014 were identified by L.L.B. regarding such emotional or behavioural problems. Teachers who had involvement with A.L.A. were not called as witnesses. Nor was the school counsellor, who L.L.B. disclosed, at trial for the first time, as meeting weekly with A.L.A.

[39] L.L.B. attempts to connect A.L.A.’s emotional problems to K.A. by saying such occur on Fridays before the access visits. Her evidence is not persuasive in this regard. Such is not independent and any such connection was not verified by those directly involved as they were not called as witnesses. Mr. Thompson did not identify behavioural issues in 2016.

[40] It does not surprise me that A.L.A. is experiencing some emotional difficulty. As Mr. Thompson reports, A.L.A. is aware of the conflict between her father and grandmother. Mr. Thompson identified inappropriate comments from A.L.A. that are obviously from L.L.B.

[41] There are several possible causes for A.L.A.’s emotional upset. It may be the stress of the pending visit with K.A., or the comments from L.L.B. or even the limitations on her visits. The limited evidence does not support a conclusion as to the probable cause. What cannot be denied is the unnecessary stress for this child resulting from the ongoing dispute between the parties. Both are at fault and must understand their personal animosity towards each other is not in the best interests of this child.

(ii) K.A.

(a) Learning Disability of Cognitive Delay

[42] The primary objection by L.L.B. to expanded access in favour of K.A. is her perception of his cognitive delay. K.A. describes it as a learning disability. Mr. Thompson identified a concern with respect to K.A.’s cognitive functioning but said the precise diagnosis is not important when the issue is access as opposed to primary parenting.

[43] I agree with Mr. Thompson’s comments. Indeed, there is little difference between the general description of a learning disability and cognitive delay. Both involve difficulty in acquiring knowledge and skills due to a mental condition. What is important is K.A.’s ability to understand his parenting role and what he needs to do in providing care for his daughter.

[44] No medical records were provided by K.A. The former and present counsel for L.L.B. had requested production of K.A.’s O.D.S.P. file. Such did not occur. No motion was presented to compel disclosure.

[45] In his correspondence dated December 23, 2014, Dr. Abu Shalma referred to his patient, K.A., as having a “learning disability”. However, K.A. had then only been a patient for three months and, further, I doubt a family physician is qualified to express a medical opinion on K.A.’s condition.

[46] School records, limited in scope, reveal K.A. did not pass either the reading or writing components of the Grade 9 literacy test in 2000. Primary school reports indicate K.A. was placed in a “Specific Learning Disabilities Class”. Yet K.A. did graduate from high school with remedial assistance.

[47] K.A. has been steadily employed as a part-time clerk at Food Basics for the past 14 years. He lives independently and handles his own finances. K.A. uses prescription medication to control anxiety but is otherwise healthy. He has some problems with memory. In 2014, K.A. participated in an eight week “creative parenting course” with Bethlehem Housing and Support Services.

[48] K.A. has the support of his parents. No doubt, their parenting role was the primary reason for K.A. being able to complete his education to the best of his ability and to him achieving independence. They have continued to assist K.A. by supervising his access with A.L.A. and are prepared to continue in this capacity.

[49] I observed K.A. while he testified. He understood questions put to him in examination-in-chief and in cross-examination and was able to respond clearly and in some detail for the most part. Anxiety was apparent on occasion when K.A. was challenged in cross-examination; however, nothing inappropriate followed.

[50] Cognitive ability would be of concern if K.A. was the custodial parent of A.L.A. However, I am not persuaded L.L.B.’s concern is valid. I conclude K.A. does have the ability to parent in a secondary role provided he continues to benefit from the assistance of his parents. No real problems were reported as having occurred in the access visits that have now been regularly occurring for five years.

(b) T.R.

[51] When Mr. Thompson was conducting his second clinical investigation, K.A. had only just commenced a relationship with T.R. In result, Mr. Thompson was then not in a position to comment on any involvement of T.R. with A.L.A.

[52] K.A. and T.R. are cohabiting. They are engaged. According to K.A., T.R. also has a learning disability. She is the mother of a two year old child. He was apprehended at birth and presently resides with the father. T.R. sees him monthly. K.A. does not plan on leaving A.L.A. alone with T.R. as they have not yet “bonded”.

[53] L.L.B. says this new relationship demonstrates poor choices by K.A., according to her counsel. I disagree. T.R. is part of K.A.’s social network. It is not unexpected that K.A. would embark on a new relationship. Quite the contrary. On this limited evidentiary record, it would be improper to conclude T.R. is a negative factor in relation to K.A.’s access with his daughter. What is important, however, is to ensure the proper support system is in place given T.R.’s past inability to parent her son.

(c) K.A.’s Niece

[54] Some years ago, a niece of K.A. was sexually assaulted by her brother. The niece is now 12 years of age. K.A. says A.L.A. has never been involved with the niece’s family due to this event, save on one occasion when the niece stayed overnight at his parents’ residence. There is no evidence to the contrary.

[55] Sexual assault by a family member is of obvious concern. A.L.A. must be protected from her male cousin. This is the plan K.A. says he has and will continue to follow. This plan is appropriate in the circumstances at this time. At some point in the future, A.L.A. should be allowed to spend time with her female cousin unless there is some reason that suggests otherwise.

(d) Other Child

[56] In December 2015, an application was issued by A.R.H. against K.A., seeking an order for custody of, and support for, L.H., born July 2014. She alleged K.A. was the father of her child. In his answer, K.A. acknowledged a relationship with A.R.H. but said it commenced in January 2014 when A.R.H. was already pregnant. He denied being the child’s father.

[57] At a case conference on April 1, 2016, a consent order was granted by MacPherson J. directing paternity testing.

[58] K.A. did not attend court as scheduled on June 2, 2016 or September 22, 2016. In result, on the latter date, his answer was struck by Scott J.

[59] An uncontested trial took place on November 8, 2016. Reid J. granted a final order declaring K.A. to be the father of the child L.H., awarding sole custody to A.R.H. and no access to K.A. and directing K.A. to pay monthly child support of $183.00 commencing January 1, 2016.

[60] L.L.B. says, through her counsel, this other child is a further example of K.A. not appreciating the consequences of his actions and of concerns regarding his parenting ability, particularly his lack of access.

[61] K.A. denies being the father of L.H. He says the paternity test confirmed his position and that he was unaware the court case continued.

[62] The paternity test report was not tendered in evidence at trial. Nor was the affidavit of A.R.H. filed on the uncontested trial, or a transcript of her evidence. A.R.H. was not called as a witness.

[63] There is a presumption of validity regarding court orders. K.A. provided an explanation that cannot be said to be unreasonable. Regardless, I am not persuaded this is a relevant matter in terms of the issues in this case, particularly on an incomplete evidentiary record.

(e) Family and Children’s Services

[64] Family and Children’s Services (“FACS”) has been involved with this family. Some records were tendered in evidence; however, no agency workers were called as witnesses as those involved are no longer employed at FACS. The extent of their involvement is less than clear as only selected documents were referred to at trial.

[65] K.A. stated that FACS workers came to see A.L.A. after she was born but no action was taken. He and C.B. continued to parent A.L.A. until C.B. became ill in July 2009, a total of approximately 8 months.

[66] In August 2009, FACS commenced an investigation as a result of a family complaint. No action was taken as A.L.A. was then with her grandfather, Y.B. In March 2010, Y.B. contacted FACS as K.A. was requesting the return of the child. Again, no action was taken as A.L.A. was in the care of Y.B. and then L.L.B.

[67] It is unclear what investigation was pursued by FACS in the Spring of 2010. Correspondence from the agency workers to C.B. and K.A. and to L.L.B., both dated April 28, 2010 indicated any concern regarding the parents caregiving skills had not been verified, yet they reported such concerns “may arise” if A.L.A. was returned to them.

[68] Similar reports followed on June 14, 2011, resulting from L.L.B contacting FACS in February 2011 to advise that C.B. and K.A. were pursuing a custody application.

[69] In October 2013, L.L.B. again contacted FACS to report that her daughter, C.B., had passed away twelve months earlier and to express a concern with K.A. exercising access to A.L.A. at his parents’ home. The worker made inquiry and determined the access arrangements were appropriate.

[70] It also appears FACS had some involvement during the time period of C.B.’s illness. Case notes dated April 8, 2010 and March 16, 2011 were presented in evidence. The first case note reports comments from a personal support worker indicating K.A. was having difficulty in changing C.B.’s catheter. Both case notes also refer to the ongoing custody dispute. No action appears to have been taken by FACS.

[71] K.A. says he has not been contacted by FACS for some time. Indeed, there are no records to suggest any involvement by the agency since 2013.

[72] There is no dispute regarding custody. In result, the FACS records add little to the issue of access. It is not surprising FACS was previously involved with this family. There are no reports to suggest FACS has any concerns with respect to K.A.’s access.

(f) Alcohol/Tobacco

[73] L.L.B. raises a concern as to alcohol abuse, particularly by K.A.’s parents, even suggesting K.A. suffers from fetal alcohol syndrome. These comments are purely speculative. No evidence was tendered to support the allegations. Nor were K.A. and his parents successfully challenged in this regard.

[74] K.A. does not smoke. His father does but not in the presence of A.L.A.

(g) K.A. – Dealing with A.L.A.’s Health

[75] A.L.A. is said to suffer from asthma, according to L.L.B. L.L.B. also says K.A. does not have the ability to manage A.L.A.’s health issues.

[76] Mr. Thompson made inquiry of A.L.A.’s physicians in the first clinical investigation. Dr. Pirbhai is A.L.A.’s allergist, who reported A.L.A. to be “allergic to cats, dogs and dust, has had some bronchitis and her adenoids are enlarged slightly”. He further advised that A.L.A. was not “immune compromised”, a then concern of L.L.B. The family physician, Dr. Alnhisis indicated A.L.A. was a “healthy” child but experienced “frequent ear infections and suffers from allergies”. He added that A.L.A.’s condition required treatment only to manage symptoms.

[77] L.L.B. confirms such treatment, reporting such to be prescription medication. No puffer is required.

[78] K.A. is aware of A.L.A.’s allergies, reporting that his parents have similar problems. He has cats in his apartment. There are no animals at his parents. His father smokes, but not in the house or vehicle and not in A.L.A.’s presence.

[79] It appears little information has been provided to K.A. regarding A.L.A.’s asthma or allergies. L.L.B. says she asked K.A.’s family to meet in public to discuss, an unreasonable suggestion given the high conflict. The information could have been provided through counsel.

[80] There are no current medical reports as to the present status of A.L.A.’s asthma or allergies. Presumably, it is no worse than in 2013. No medical concerns were then raised as related to K.A.’s access. The cats, however, will have to leave K.A.’s apartment, if the allergist so opines, if A.L.A. is going to spend time in K.A.’s apartment.

(h) Breach of Court Order

[81] On October 18, 2013, a consent order was granted by Turnbull J. directing K.A.’s access now be in the community, supervised by his parents. This order also provided that A.L.A. was not to be taken out of the City of St. Catharines. Shortly thereafter, K.A. and his parents took A.L.A. to Niagara Falls during a two hour access visit, returning her to L.L.B. on time.

[82] K.A. said he was unaware of this term in the order at the time, that he did not intentionally disobey. His parents made similar comments.

[83] K.A. was in the courtroom when the order was granted and would have signed the consent. K.A. was represented by duty counsel on that court appearance. For some unknown reason, the order was not issued until January 14, 2014.

[84] Despite L.L.B.’s complaint, I am not persuaded this one violation of a court order has a significant bearing on the present issue of access. No other breaches have been reported.

(iii) Children’s Lawyer

[85] The order granted by Scott J. on February 14, 2012 requested the involvement of the office of The Children’s Lawyer. Subsequently, the order granted by Reid J. on April 9, 2015 requested their further involvement.

[86] John Thompson was the clinical investigator assigned. His reports are dated January 4, 2013 and March 21, 2016. The focus of the initial clinical investigation was to address the competing claims of K.A. and L.L.B. for custody. When K.A. abandoned that claim and, instead, opted to pursue access only, the second clinical investigation was pursued.

[87] The recommendations of Mr. Thompson, as set out in his second report, are as follows:

1. That L.L.B. have sole custody of A.L.A.
2. That L.L.B. consult with K.A. regarding all parenting decisions and proceed unilaterally only when an agreement cannot be reached
3. That K.A. be made aware of all service providers involved with A.L.A.
4. That A.L.A.’s access with K.A. move from supervised to unsupervised and then expand to every second weekend from Friday after school to Sunday at 7:00 PM over a three month period
5. That access only be cancelled by L.L.B. in the event of an emergency or illness as documented by her physician
6. That A.L.A., L.L.B. and K.A. attend counselling in a combination determined by the counsellor. Counselling to focus on assisting K.A. and L.L.B. to improve communication and joint parenting.

[88] In the course of his investigations, Mr. Thompson met with the parties and the child. He interviewed relatives and other contacts in the community and reviewed documentation from a number of agencies and other service providers.

[89] As the issue is now access, Mr. Thompson’s discussion in the second report is of interest, all of which is reproduced as follows:

DISCUSSION:

L.L.B. and K.A. agree that A.L.A. is well cared for and appears to be thriving in the care of her grandmother. A.L.A. has been very fortunate that L.L.B. was willing and able to step in to a parenting role when it became necessary for someone to do so. At this time, neither party is seeking a change in her primary residence and there is no reason to believe that such a change is necessary or would be beneficial for A.L.A. This report therefore recommends that A.L.A. remain in the care of L.L.B.

Beyond this issue, however, there is very little agreement or good will between L.L.B. and K.A. It is notable that the previous Report of the Children’s Lawyer, prepared by this Clinician notes that:

Through a series of very unfortunate events, A.L.A. has become the focal point of a longstanding and hostile conflict: a conflict that shows no sign of abating. This is exceedingly unfortunate. It has denied A.L.A. a relationship with her father and the opportunity to know her mother before her death. It has also denied her the opportunity to know her paternal grandparents and other extended family. This conflict has also likely redirected a great deal of time, energy and resources away from parenting.

It is extremely regrettable that this conflict has continued as it has. A.L.A. deserves to have her family in her life in a meaningful way. All of her family. And both she and the adults in her life would benefit immensely from some resolution to this ongoing conflict.

More specifically, K.A. and L.L.B. disagree with respect to K.A.’s access and his role in parenting. L.L.B. suggests that K.A. brings nothing ‘to the table’ for A.L.A. and should therefore have a very limited role in A.L.A.’s life. She feels access can only safely take place in a supervised access centre such as Pathstone and suggests that K.A. need have no other role in A.L.A.’s life.

It is notable that the previous Report of the Children’s Lawyer, authored by this Clinician, stated that

This ongoing conflict appears to be clouding the view of each of the parties towards one another and the situation itself. Therefore, many of the concerns raised by L.L.B. and K.A., while clearly heartfelt and sincerely held, appear to be the [sic] based on little more than speculation fuelled by ill will. This is particularly true of L.L.B.

It is unfortunate that the myriad allegations appear to have continued unabated in the intervening three years. Specifically, L.L.B. continues to allege that K.A. has Fetal Alcohol Syndrome and now suggests he also suffered from Oppositional Defiant Disorder and continues to base her allegation on little more than rumours about K.A.’s mother’s alcohol use when she was pregnant more than 20 years ago. L.L.B. also suggests that K.A. and his parents are alcoholics, again, based on little more than neighbourhood rumours and her own intuition. It is worrisome that L.L.B. is seeking to limit K.A.’s contact with A.L.A. to the extent she is based on what is essentially speculation.

Having said that, it appears that, whether the result of a learning disability as suggested by K.A. or Fetal Alcohol Syndrome or a cognitive delay as suggested by L.L.B., K.A.’s cognitive functioning seems to be a concern. Specifically, K.A. continues to struggle to set reasonable limits and expectations for A.L.A., as was discussed in the previous report. This was observed by this Clinician during the observation interview and similar observations were reported by Pathstone staff during K.A.’s supervised access.

However, these concerns to [sic] not appear to rise to the level where K.A.’s contact with A.L.A. can only safely take place in a supervised access centre. K.A. may need assistance with parenting, such as the support of his parents or a parenting course. However, it appears that K.A. is capable of caring for A.L.A. on his own with that support in place. He is a loving parent, attentive to A.L.A.’s needs and clearly wants what is best for her. It is difficult to agree that K.A. and his parents taking A.L.A. to Niagara Falls for example, places her at risk of harm.

It is also difficult to agree with L.L.B.’s suggestion that K.A. brings ‘nothing to the table’ for A.L.A. and that he only has a place in her life if he demonstrates that he belongs ‘on the team’. Rather, K.A. has a place in A.L.A.’s life as her father and A.L.A. has a right to have him in her life. Further, however, important L.L.B. is in A.L.A.’s life, she is not the only family that A.L.A. has. A.L.A. has paternal grandparents, uncles, aunts, cousins who love her and wish to be a part of her life.

Therefore, whether A.L.A. resides with her father or not, she has a right to know him and his side of her family and to have her father participate in her life in a meaningful way. L.L.B.’s suggestion that they visit for two hours once per week in a supervised setting does not allow that to happen. This report therefore recommends that K.A. exercise expanded and unsupervised access with A.L.A.

[90] L.L.B. served a dispute to Mr. Thompson’s second report, challenging several facts and complaining as to the manner of the investigation.

[91] As the facts, as set out in the passage above, L.L.B. says: (a) she stated she was suspicious that K.A. suffers from fetal alcohol syndrome and asked Mr. Thompson to follow up on her concerns; and (b) the statement K.A. “does not bring anything to the table” was taken out of context. Such was said regarding concerns with the sexual assault by K.A.’s nephew. L.L.B. also says she told Mr. Thompson that K.A. “does not bring anything to her table” by exposing A.L.A. to an inappropriate home environment with an open Children’s Aid Society file.

[92] In my view, even if L.L.B. correctly states her comments, nothing turns on her dispute in this regard. Further, these matters are more appropriately addressed in the section that follows.

[93] L.L.B.’s complaint regarding the clinical investigation is as follows: (a) failure to make further inquiry as to K.A.’s intellectual disabilities, including Dr. Gregg, the family physician, who advised FACS of this concern, in 2011, that neither parent had the capacity to care for a child; (b) assumption K.A. is capable of caring for A.L.A. on his own without a support in place and based on little to no evidence; (c) failure to make adequate inquiry regarding the sexual assault by K.A.’s nephew; (d) failure to make further inquiry as to alcohol consumption by K.A. and his parents; (e) failure to make adequate inquiry regarding K.A.’s current spouse, T.R., and her child; (f) failure to make adequate inquiry with respect to K.A.’s purported other child; (g) failure to obtain or review updated police and FACS records; (h) failure to give sufficient weight to A.L.A.’s views and preferences; and, (i) placed undue weight on information provided by K.A. and collateral sources based on speculation, hearsay and innuendo.

[94] Some of these items were previously addressed. Others were not canvassed at trial by counsel for L.L.B. Regardless, I am not persuaded there is merit to L.L.B.’s complaints. Rather, her objection is that Mr. Thompson did not agree with her position. These complaints ignore the fact that Mr. Thompson is an experienced social worker, following considerable training and education. He has been a clinical investigator for The Children’s Lawyer for almost twenty years. It is also to be noted that Mr. Thompson came to the same conclusion as others, including the doctor and social workers, with respect to K.A.’s ability to perform the role of a primary parent.

[95] On my review of Mr. Thompson’s reports and his evidence at trial, I am satisfied his clinical investigation was appropriate and his findings of fact were correct.

(iv) Family Feud

[96] The aforementioned excerpt from Mr. Thompson’s second report clearly identifies family conflict. In his first report, Mr. Thompson said “this dispute has the feel of an extended family feud”.

[97] There is an obvious and lengthy history of conflict between the two families. It goes beyond K.A. and L.L.B. as noted in Mr. Thompson’s reports and in the evidence at trial. Of greater interest is the conflict since A.L.A. was born.

[98] K.A. did not allow L.L.B. to visit with her daughter and granddaughter at the hospital following the birth of A.L.A. Similarly, he did not allow L.L.B. to visit C.B. in the hospital prior to her death. Of concern, as well, was K.A.’s refusal to recognize L.L.B. in the obituary notice for C.B. Now, the dispute is with C.B.’s ashes. K.A. refused to share with L.L.B.

[99] L.L.B. would not allow K.A. to visit A.L.A. thus necessitating this proceeding. She denied K.A. access following the death of C.B., contrary to the existing court order, necessitating another motion to re-instate. L.L.B. continues to find justification to restrict K.A.’s involvement with A.L.A. and it is clear she wants complete control.

[100] K.A. recognizes that both he and L.L.B. are at fault for this conflict. L.L.B. does not. Both parties claim that their first priority is the best interests of A.L.A. Their conduct, however, indicates the family conflict is impeding their ability to place the child first.

[101] I share Mr. Thompson’s frustration in this regard. The conflict has elevated since the death of C.B. Mr. Thompson reported on inappropriate comments by A.L.A., the source of which was obviously L.L.B. The parties fail to recognize the impact of their conflict on the child. If this petty family feud continues, it will likely cause emotional damage to her.

Analysis

(i) Access

[102] This case has taken far too long to come to trial, almost six years. In that period of time, little has occurred. The child has an absolute entitlement to permanency planning. Her best interests have not been served. Indeed, they have been ignored.

[103] K.A. seeks regular, unsupervised access to his daughter. L.L.B. wants further restrictions on K.A.’s access by returning it to a supervised access centre.

[104] Supervised access, as a permanent or long term plan, is restricted to the rarest of cases. This is not one of them. I am of the strong view that K.A.’s access ought to have been increased over the past several years. Now the transition is delayed and unnecessarily complicated.

[105] K.A. has cognitive limitations but he has much to offer as a parent. With the help of his parents, K.A. has done well in maximizing his ability to function in the community. He has a job and he lives independently. K.A. has regular exercise access with A.L.A. Activities are limited due to the short amount of time. There are no serious complaints about access. K.A. does have support, such being provided by his parents. K.A. is entitled to have access that would allow him to contribute as a parent and maintain a father-daughter relationship.

[106] Of greater importance, A.L.A. is entitled to access with K.A. that is meaningful and beneficial, such being difficult to accomplish in a weekly two hour visit. A.L.A. has the right to know her family and have relationships with all such members, including grandparents. On the evidence presented, I am satisfied A.L.A. enjoys time with her father and wants the access expanded. I reject L.L.B.’s evidence to the contrary.

[107] To continue to restrict K.A.’s access, or place even more limitations on it, would be to improperly support the stereotype that all persons with cognitive limitations are unable to parent. This myth must end as, in this case, K.A. is clearly able to contribute as a parent and be an important role in A.L.A.’s development.

[108] By all accounts, A.L.A. is doing well as a result of the parenting skill of L.L.B. But, at eight years of age, A.L.A. has been made aware of family conflict. She knows who her father is and, to some extent, who her mother was. But L.L.B.’s controlling nature is not helpful for the full development of this child.

[109] I conclude that it is in the bests interests of A.L.A. to expand access with K.A., such to continue in the community. I agree with Mr. Thompson that the goal must be normalizing access by way of unsupervised access on alternate weekends. However, I am reluctant to direct such access to immediately occur following a transition period. Rather, it would be more appropriate for the court to monitor the transition access, by way of review, before normalized access becomes permanent.

[110] The evidence clearly identifies the need for counselling. A.L.A. is in the middle of a family conflict and counselling will be of assistance to her and in improving her relationships with family members. Such should also assist K.A. and L.L.B. in improving communication and focusing on parenting. Lastly, counselling will also assist the court in monitoring the progression of access.

[111] For the first time, L.L.B. disclosed at trial that A.L.A. sees a counsellor at school. No detail was provided. L.L.B. also reported that once her former spouse provides certain documentation, A.L.A. may be provided with an aboriginal counsellor. Again, no details were provided.

[112] While I am reluctant to impose another counsellor, it appears the need for counselling is the result of problems with the family. Counselling, at this stage, should focus on these matters for the betterment of the child.

(ii) Child Support

[113] The parties agree that K.A. should pay to L.L.B. child support in the monthly amount of $183.00 on his income of $22,870.00. They disagree on the commencement date.

[114] K.A. proposes such support ought be paid commencing January 1, 2017. L.L.B. says it ought start as of January 1, 2014. K.A. has been paying child support of $100.00 monthly since July 1, 2013, pursuant to the consent order granted July 8, 2013. K.A.’s income was then $15,200.00, according to this order.

[115] It appears K.A. began receiving O.D.S.P. payments in 2013, hence the higher income than referred to at the time of the order above.

[116] While K.A.’s income is modest, so too are his expenses. He should have voluntarily increased his child support payments once his O.D.S.P. application was approved and certainly by January 1, 2014. An order now will create a small amount of arrears. Such ought not be a significant burden.

Summary

[117] For these reasons, a final order is granted on the following terms (the order when issued to contain the proper names and date of birth):

1. The Respondent, L.L.B., shall have custody of A.L.A., born ________________
2. The Applicant and Respondent shall each bestow primary importance to the needs and convenience of the child, and shall bestow secondary importance to his or her own needs and convenience. The parties shall not speak negatively about the other party in the presence of the child.
3. Either party may seek information regarding the child’s health and education directly from the child’s doctors, school, counsellors, or other care providers free from interference by the other as is age appropriate with respect to the child. The parties shall advise each other in advance on major plans and arrangements relating to the child and generally on all important matters, including the child’s health, residence, education, activities and religion.
4. The Applicant, K.A., shall have access to A.L.A. as follows: (a) commencing February 26, 2017 every other Sunday from 10:00 a.m. to 4:00 p.m., supervised by one or both of his parents, D.A. or A.A.; (b) commencing June 4, 2017 every other Sunday from 10:00 a.m. to 7:00 p.m., monitored by one or both of his parents, D.A. or A.A.; (c) while exercising access, and within 12 hours prior, there will be no smoking or consumption of alcohol or non-prescription medication by K.A.; (d) during periods of access, no one will be allowed to smoke or consume alcohol or non-prescription medication in the presence of the child; (e) access may be exercised in the community, or within 132 kilometres of St. Catharines, or at the residence of D.A. and A.A., but shall not occur at the residence of K.A.; (f) on any access exercise outside of St. Catharines, one or both of his parents, D.A. or A.A. must be present; (g) A.L.A. shall not be left alone with T.R.; (h) N.W. shall not be present on any access period; (i) access may be reviewed on or after September 1, 2017 with the objective of the Applicant, K.A., having overnight access on alternate weekends and a sharing of holidays.
5. Counselling shall be immediately arranged for A.L.A. and the parties, the expense for same to be equally shared by the parties.
6. Each party shall provide contact information, including email addresses and telephone numbers where they may be reached, such to be done within 10 days.
7. The Respondent, L.L.B., shall provide the Applicant, K.A., with a copy of A.L.A.’s health card within 10 days.
8. Commencing January 1, 2014 and on the first day of each and every month thereafter, the Applicant, K.A., shall pay to the Respondent, L.L.B., child support for the child, A.L.A., born ________________ , the amount of $183.00, based upon his annual income of $22,870.00 and the Child Support Guidelines.
9. The Applicant, K.A. shall provide the Respondent, L.L.B. a copy of his Income Tax Returns, together with a copy of all attachments, and Notices of Assessment and Re-assessment on an annual basis, by June 1st of each year commencing with the 2016 taxation year in June of 2017, to determine child support payable for the following year in accordance with the Child Support Guidelines. Any adjustment of child support and section 7 special and extraordinary expenses shall take place on July 1st of each year.
10. The parties shall share on a pro-rata basis, the special expenses of the child, A.L.A., born ________________, as defined by section 7 of the Child Support Guidelines, which expenses are necessary to meet the child’s special needs and may include but not limited to medical, dental and post-secondary education costs. The section 7, special and extraordinary expenses of the child shall not be incurred without the consultation and consent of the other party, which consent shall not be unreasonably withheld.
11. That unless the support Order is withdrawn from the Office of the Director of The Family Responsibility Office, it shall be enforced by the Director and the amounts owing under the support Order shall be paid to the Director, who shall pay them to the person to whom they are owed.

[118] In final submissions, counsel for L.L.B. sought an order directing K.A. to provide L.L.B with the ashes of C.B. As this relief was not claimed in the pleadings, I am unable to grant the request. Surely, common sense can assist the parties in overcoming this personal matter.

[119] If the parties are unable to resolve the issue of costs, counsel are directed to deliver brief written submissions to my chambers in Kitchener within 30 days of the release of this decision.

D.J. Gordon J. Released: February 23, 2017