Creasor v. Reidl, 2017 ONSC 6715

Court File No.: FS-13-54-0002 Date: 2017-11-09 Ontario Superior Court of Justice

Between: David Joseph Creasor, Applicant – and – Jodi Theresa Reidl, Respondent

Counsel: David Williams, for the Applicant D. Andrew Thomson, for the Respondent

Heard: July 31 – August 4, 2017; October 10 – 13, 2017

Decision on Motion to Change

E.J. Koke J.:

OVERVIEW

[1] The parties have one child, Rosalie Creasor, who was born on December 15, 2008 and is now almost 9 years old. Pursuant to the final order of Justice S. O’Neill dated December 18, 2013 and the interim order of Justice J. Wilcox dated November 14, 2014, the parties were granted joint custody of Rosalie. The order of Justice O’Neill also provided that the parties were to comply with their parenting agreement dated August 24, 2012. The parenting agreement provided that Rosalie would reside primarily with Mr. Creasor. Since August, 2012 Rosalie has lived primarily with Mr. Creasor.

[2] This proceeding is a result of a motion to change brought by the respondent mother, Jodi Theresa Reidl, for an order granting her custody of Rosalie, as well as child support and section 7 expenses. In his Answer, Mr. Creasor’s requests custody of Rosalie, with access to Ms. Reidl every other weekend, and child support and section 7 expenses. The trial of these issues took place over a period of 8 days. The court heard from 21 witnesses.

BACKGROUND

A. History of the Parties’ Relationship: 2000 - 2017

[3] Mr. Creasor is 39 years old and Ms. Reidl is 40. They met in Ottawa in the year 2000, where they both attended post-secondary institutions. Mr. Creasor obtained a diploma in Civil and Construction Engineering and has his certification as an Applied Science Technologist. After obtaining a diploma in leisure services Ms. Reidl enrolled in the Health Sciences program at the University of Ottawa, but remains several credits short of completing her degree.

[4] After graduation Mr. Creasor worked as a construction foreman in the Ottawa area, building bridges. Several years later he was offered a position with a construction company which was building bridges in and around the Town of Burks Falls, Ontario, in the district of Parry Sound. The parties moved back to this area, which brought them closer to their families. In 2007 they purchased a home together in the village of Katrine, which is located just south of Burks Falls.

[5] Mr. Creasor’s job took him away from home a considerable amount of time, and after their daughter Rosalie was born in 2008 he began to look for employment which required less travel. In November, 2011 he obtained a position as Manager of Public Works and Facilities for the village of Burks Falls, and has continued to hold this position since that time.

[6] Ms. Reidl has been employed in a number of different positions following her return to the district of Parry Sound. She has worked at LCBO stores in the area, mostly on a part time basis. She also worked as a nanny, a retail clerk in a store specializing in collectibles and memorabilia, as a shipping and receiving coordinator at the JW Marriott resort in the Town of Rosseau and as a clerk in an M&M store. She was unemployed at the time she testified in July, 2017 but advised the court that once school started in September she would be working for an organization called Muskoka Family Focus which operates before and after pre-school and kindergarten programs. Her counsel confirms that she is presently working for Muskoka Family Focus on a part time basis.

[7] The parties separated in February, 2011, shortly after Rosalie’s second birthday. Mr Creasor purchased Ms. Reidl’s interest in the matrimonial home in Katrine, and following the separation Rosalie has lived with him most of the time.

[8] The parties entered into a Parenting Agreement on August 24, 2012. They were both represented by counsel. The agreement provided that they would jointly parent Rosalie, and that important decisions about Rosalie’s welfare would be made together, including decisions about her education, major non-emergency health care, major recreational activities and religious activities. The agreement provided that Rosalie would continue to reside primarily with Mr. Creasor.

[9] Following their separation, the relationship between the parties became increasingly fractious, and a considerable degree of litigation ensued which preceded this motion. On two occasions, in 2015 and 2017, the court request the involvement of the Office of the Children’s lawyer (the “OCL”). The OCL assigned Carole Vaillancourt as clinical investigator, and on both occasions she prepared a comprehensive report.

[10] In her July 12, 2017 report Ms. Vaillancourt reports that since 2010, various detachments of the OPP have been contacted approximately 32 times to deal with matters ranging from custody disputes, domestic disputes and allegations of assault. She also notes in this report that since 2012, the two child protection agencies involved, the Nipissing and Parry Sound Children’s Aid Society and the Simcoe Muskoka Family Connexions (formerly Family, Youth and Child Services of Muskoka) have had a minimum of 15 calls.

[11] The parties have been unable to communicate effectively for many years and it is clear to the court (and I believe to the parties as well) that joint custody of Rosalie is no longer possible. A custody order granting one of them custody is necessary.

[12] In the winter of 2014 Mr. Creasor met Stephanie Nasturzio. Ms. Nasturzio has a Masters degree in Kinesiology and is employed as an occupational therapist in the Muskoka/Parry Sound area, working with children. Coincidentally she had worked with Rosalie before she had met Mr. Creasor. Mr. Creasor and Ms. Nasturzio started dating and eventually they moved in together. On March 29, 2016 Ms. Nasturzio gave birth to Cassandra Nasturzio-Creasor, a younger half-sister to Rosalie.

[13] In February, 2014 Ms. Reidl met Trevor Murray. Mr. Murray is employed in sales. He and Ms. Reidl started dating and they married in September, 2017. They have no other children.

B. Prior Involvement of the Courts

1. Initial Application by Mr. Creasor…August 15, 2013

[14] Mr. Creasor commenced an application on August 15, 2013, requesting an order from the court granting him a divorce, custody of Rosalie and support. He alleged that Ms. Reidl suffered from mental health issues, was unstable, and was unable to secure a consistent home for herself. He also alleged that she had been charged with assaulting him, had threatened to hurt both herself and Rosalie, and had made false complaints of harassment against him to the police but he had been exonerated and never charged.

[15] Ms. Reidl responded by requesting an order granting her sole custody of Rosalie and support. In support of her claim she alleged that Mr. Creasor had assaulted her on numerous occasions. She also alleged that Mr. Creasor had made a false allegation to the police that she had shaken Rosalie and as a result her access was terminated pending further investigation by the police. Following the investigation she was again permitted access. She was working part time at the LCBO and living with her parents. She also requested child and spousal support.

[16] On December 18, 2013 O’Neill J. issued a final order, requiring the parties to comply with their parenting agreement of August 24, 2012, which provided that Rosalie would reside primarily with Mr. Creasor.

2. Motion by Mr. Creasor dated April 24, 2014

[17] On April 24, 2014, approximately four months after Justice O’Neill’s order of December 18, 2013, Mr. Creasor brought a motion requesting an order from the court that Ms. Reidl return Rosalie to his care, as well as an order finding Ms. Reidl in contempt of Justice O’Neill’s order.

[18] In support of his motion Mr. Creasor repeated his previous allegations that Ms. Reidl suffered from mental illness. As a result, she would disappear for days at a time and would regularly be late for work at the LCBO. During the first year following their separation she would show up at his home drunk, ostensibly to see Rosalie, but would then ask him for more alcohol. She was on medication for her illness.

[19] At the time, Rosalie was enrolled in full time senior kindergarten at M.A. Wittick elementary school in Burks Falls. Ms. Reidl had moved to Bracebridge, which is a 45 minute drive south of Burks Falls on Hwy 11. What prompted the motion was that Ms. Reidl had care of Rosalie on Monday, April 7, 2014 but had not driven Rosalie to school that day. She had not returned Rosalie to his care and Rosalie had not attended her school on any days thereafter. Ms. Reidl had not provided him with her address or her new phone number in Bracebridge. As late as April 23, 2013 he had contacted all of the schools in Bracebridge and asked if Rosalie was present, with no results.

[20] Mr. Creasor later discovered that Ms. Reidl had enrolled Rosalie in Senior Kindergarten at Monck Public School in Bracebridge on April 16, 2014. Following the motion, Rosalie was returned to the care of her father. The evidence at the motion indicated that although she was enrolled at Monck Public School for almost two weeks, she only attended her new school on two days.

[21] Ms. Reidl responded to the motion by repeating her earlier allegations that Mr. Creasor had subjected her to physical and verbal abuse, and he had once charged her with historical assaults involving both him and Rosalie. The charges were scheduled for trial but eventually withdrawn. She also alleged that Mr. Creasor had not paid her child support, as required by the parenting agreement and that he was creating difficulties for her in exercising access. Finally, she stated that Rosalie had told her partner, Trevor Murray and her parents that she had been spanked by Mr. Creasor and that Mr. Creasor had also spanked the dog.

[22] As a result of Mr. Creasor’s alleged abusive behaviour she had decided that it was not in Rosalie’s best interests that she be returned to the care of her father following her access visit with her mother. Accordingly she kept Rosalie and enrolled her in a school in the Town of Bracebridge, where she was now living. She had contacted the OPP and the CAS and was advised that they intended to interview Rosalie with respect to the abuse allegations. She had also decided to take Rosalie to Kathy Maindonald, a counselor, to help Rosalie cope with the abuse which Rosalie had allegedly witnessed when Ms. Reidl and Mr. Creasor were living together.

[23] Mr. Creasor replied to the above allegations by denying that he spanked Rosalie or the dog. He also stated that the charges of abuse against Ms. Reidl were withdrawn at his request because he was attempting to be conciliatory towards her.

[24] On April 28, 2014 Wilcox J. ordered that Rosalie be returned to Mr. Creasor’s care as per the terms of the parenting agreement and in accordance with Justice O’Neill’s order of December 18, 2013. The order included a police enforcement clause.

3. Motion by Mr. Creasor dated June 17, 2014

[25] On June 17, 2014, less than two months after the aforementioned order of Justice Wilcox, Mr. Creasor filed a further motion claiming the following relief:

a) Requiring Ms. Reidl to ensure that Rosalie attend school when in her care;

b) Finding Ms. Reidl in contempt of the previous court orders, with regard to the access and custody provisions of the orders.

c) Compelling Ms. Reidl to complete the settlement with respect to releasing her interest in the matrimonial home.

[26] In support of his motion, Mr. Creasor filed school records confirming that Rosalie had been absent from school on 44 days and late for school on 21 days during the 2013 – 2014 school year, while in the care of Ms. Reidl. In contrast, she had been absent 2 days for lice treatment and 5 sick days during the same period of time while in his care.

[27] Mr. Creasor also alleged that his lawyer had sent the sum of $22,000 to Ms. Reidl’s lawyer to purchase her interest in the matrimonial home, as per Justice O’Neill’s order, but thereafter it was discovered that a writ had been filed against Ms. Reidl for more than $10,000 by BMO, and as a result the transfer of her interest in the home to him could not take place. According to Mr. Creasor, Ms. Reidl was refusing to pay off the debt to BMO with the monies she had receiving from him.

[28] Ms. Reidl responded by filing an affidavit dated July 22, 2014 in which she stated that the parenting agreement was no longer working. She also alleged that Mr. Creasor was not treating Rosalie’s genital infection properly, and that he was not equipped to do so and that he was not dressing her appropriately.

[29] She submitted that in her view it was in Rosalie’s best interests that she live with her and her partner, Trevor Murray in their new condominium in Bracebridge, during the week, and that Mr. Creasor have weekend access. Also, she submitted that Rosalie should attend Monck Public School in Bracebridge.

[30] On July 25, 2014 Justice Ellies made an order adjourning the motion and granting temporary custody of Rosalie to Mr. Creasor, with access to Ms. Reidl at times as mutually agreed.

4. Motion by Ms. Reidl dated October 7, 2014

[31] On October 7, 2014 Ms. Reidl brought a motion requesting an order granting her temporary custody of Rosalie, permitting weekend access to Mr. Creasor, permitting her to enroll Rosalie in a school in the Town of Huntsville, Ontario. She also requested an order appointing the Office of the Children’s Lawyer. The grounds in support of the motion included the following:

a) Mr. Creasor was attempting to alienate Rosalie from her.

b) It was more convenient to have Rosalie attend school in Huntsville because her parents’ home was on the bus route, and Mr. Creasor was spending a significant amount of time at the home of his girlfriend, Stephanie Nasturzio, who lived in Huntsville.

c) The CAS had opened an investigation due to a conflict of interest since Stephanie Nasturzio was an occupational therapist who received referrals from the school board.

d) The OPP was again investigating Ms. Reidl’s allegations of historical assaults against her by Mr. Creasor while they were living together.

[32] The evidence filed in response to the motion included a copy of a letter which the parties had received from Family, Youth & Child Services of Muskoka (“FYCSM”) which was investigating the complaints concerning Rosalie’s care. The letter stated, among other things, that Mr. Creasor was to stop permitting Ms. Reidl to have access to Rosalie “if Jodi and Trevor continue to subject Rosalie to multiple interviews regarding concerns already investigated or if Rosalie is used to gather information to support their case”. Also, included Mr. Creasor’s responding materials was a letter from Mr. Creasor’s lawyer to Ms. Reidl’s counsel that despite the aforementioned warning, Jodi continued to question Rosalie about his new girlfriend and had arranged to take Rosalie for a drive around town in search of Ms. Nasturzio’s place of employment. Once Ms. Reidl determined Ms. Nasturzio’s place of employment, she contacted Ms. Nasturzio’s superiors and made complaints that Ms. Nasturzio was in a conflict of interest because she had seen Rosalie.

[33] Mr. Creasor’s lawyer did not deny that Mr. Creasor was withholding access but pointed out that Mr. Creasor had been granted temporary custody by Justice Ellies and that he was willing to re-instate access if Ms. Reidl would provide assurances that she would conduct herself appropriately.

[34] On November 24, 2014 Justice Wilcox signed a temporary order, on consent, that the parties would again have joint custody of Rosalie, and Ms. Reidl would have access three weekends out of four.

5. Motion to Change by Ms. Reidl dated April 7, 2015

[35] On April 7, 2015, Ms. Reidl filed her Motion to Change the orders of Justice O’Neill (December 18, 2013) and Justice Wilcox (November 24, 2014).

[36] In support of her motion that Rosalie reside with her Ms. Reidl repeated her previous allegations that Mr. Creasor had assaulted her, was providing inappropriate care for Rosalie and was interfering with her access. Also, he had now been charged with several historical assaults, including a sexual assault. Furthermore, there was now a no contact order in effect and since the parties could no longer communicate it was not possible to make decisions concerning Rosalie’s care jointly.

[37] Mr. Creasor responded to the motion to change by stating that he provided a loving and stable home to Rosalie, and ensured that her academic and health care needs were made. He repeated his allegations that as a result of Ms. Reidl’s neglect, Rosalie missed 44 days of school and was late 21 times during the 2013 – 2014 school year. Thus far, in the 2014 – 2015 school year, Rosalie had been absent 24 times and late 9 times. Almost all of her absences resulted from Ms. Reidl’s failure to take her to her school in Burks Falls following an access visit.

[38] Mr. Creasor also alleged that Rosalie’s doctor had recommended that she have her adenoids removed but Ms. Reidl was refusing to grant her consent.

[39] With respect to the criminal charges against him, Mr. Creasor stated in his response that the allegations against him were fabricated, and were made in response to the earlier criminal charges against Ms. Reidl. He also alleged that Ms. Reidl was continuing to alienate Rosalie from him by speaking negatively about him during access visits, and that this conduct was confirmed in interviews which Rosalie had with the CAS and with Cathy Maindonald.

[40] On August 5, 2015 Justice Wilcox issued a temporary order that Rosalie was to continue to live with Mr. Creasor during the week and Ms. Reidl was to have access on alternate weekends. Also the adenoid procedure for Rosalie was to proceed as medically recommended.

6. Motion by Mr. Creasor dated March 4, 2016

[41] On March 4, 2016 Mr. Creasor filed an emergency motion, requesting an order suspending the temporary order of Justice Wilcox dated August 5, 2015. He requested an order that Ms. Reidl return Rosalie to him forthwith, granting him custody, and suspending access to Ms. Reidl pending further order of the court.

[42] In support of this motion, Mr. Creasor filed an affidavit in which he stated that Rosalie was supposed to be returned to his care on Sunday, February 28, 2016, but Ms. Reidl had failed to return her.

[43] When Mr. Creasor’s lawyer was able to contact Ms. Reidl’s lawyer on Monday, February 29, 2016 he was advised that Rosalie was not feeling well, but could be returned that evening. By Thursday, Rosalie had still not been returned to his care, and had not attended school that week. Mr. Creasor states that eventually he sought the assistance of the OPP in Bracebridge. The OPP informed him that they did speak to Ms. Reidl who attended at the detachment without Rosalie and informed the OPP that she had no intention of bringing Rosalie back. He was advised that in the circumstances the OPP could provide no further assistance.

[44] Attached to Mr. Creasor’s affidavit in support of the motion was a letter dated July 31, 2014 from Maria Gulli, an intake and assessment worker with Family, Youth and Child Services of Muskoka.

[45] In her letter, which was addressed to Mr. Creasor and Ms. Reidl, Ms. Gulli reports that her agency had conducted a child protection investigation involving the family. She reported that it was the view of the society that Rosalie was likely to be emotionally harmed as a result of Ms. Reidl’s actions, which were viewed by the agency as inadequate. She stated that in her interview with Rosalie, Rosalie expressed concern because she would have a lot of information to remember when her mother later asked her what she discussed with Ms. Gulli. Rosalie informed Ms. Gulli that she would be required to retell her mother what Ms. Gulli and the police had talked to her about. Rosalie also reported to Ms. Gulli that she feels caught in the middle of a fight between her father and her mother. She reported that her mother thinks that her father is “bad”, Trevor thinks her father is “bad” and “they want me to think that he is bad”. She stated that “I don’t think he is bad”. Finally, she reported that the society was unable to confirm the allegations by Ms. Reidl of physical abuse by Mr. Creasor against Rosalie.

[46] Ms. Gulli recommended the following:

a) That Mr. Creasor cease to provide access to Ms. Reidl if she and Trevor continue to subject Rosalie to multiple interviews or if Rosalie is used to gather information to support their court case, such as driving around looking for the home or place of employment of Mr. Creasor’s girlfriend.

b) Ms. Reidl and Mr. Murray to attend counselling to develop insight on how their actions in their custody and access dispute was burdening Rosalie with adult concerns;

c) Mr. Creasor to attend counselling with Rosalie and Ms. Maindonald;

d) Medical information to be exchanged via a communication book.

e) Ms. Reidl and Mr. Murray to immediately cease any put downs and criticisms of Mr. Creasor, and quizzing Rosalie about the other parent’s activities.

[47] On March 4, 2016 Justice R.D. Gordon signed an order in response to the emergency motion. He ordered that Ms. Reidl return Rosalie to Mr. Creasor forthwith, and that Rosalie was to reside with Mr. Creasor. The order included a police enforcement provision. The matter was scheduled to be returnable on March 11, 2016.

[48] On March 21, 2016, after hearing submissions, Justice E.J. Koke issued an order that Rosalie was to live with Mr. Creasor pending trial of the Motion to Change, and that access could continue as per the order of Justice Wilcox dated August 5, 2015, but in the event Ms. Reidl again refused to return Rosalie after a weekend visit, without lawful excuse, subsequent visits would be supervised. Ms. Reidl was ordered to pay costs of the motion.

[49] Ms. Reidl subsequently filed a complaint against Ms. Gulli, alleging that her complaints had not been handled properly. The complaint was mediated and Ms. Reidl was provided with a different case worker.

7. Motion by Mr. Creasor dated January 31, 2017.

[50] On January 31, 2017 Mr. Creasor brought a motion for an order permitting him to obtain a passport for Rosalie. In addition, he requested an order permitting him to travel with Rosalie to South Carolina from March 12 to March 20, 2017, during the March School Break.

[51] Ms. Reidl had refused to grant consent for obtaining the passport, notwithstanding the fact that the trip was planned in such a way that it would not affect Ms. Reidl’s access.

[52] In her response, Ms. Reidl cited two reasons for her refusal to grant her consent. Firstly, she did not want Rosalie travelling to the United States with a “convicted criminal” and secondly she was concerned that Rosalie might be traumatized by potential U.S. “security intervention”.

[53] The background to Ms. Reidl’s comment that Mr. Creasor was a “convicted criminal” was explained by Mr. Creasor in his testimony at the hearing. Mr. Creasor testified that he had agreed to plead guilty to two charges of simple assault in relation to the allegations of historical assault by Ms. Reidl, on the basis that there would be a joint submission that the penalty would consist of a suspended sentence with 15 months’ probation. He admitted that there had been some mutual pushing and shoving during the time he lived with Ms. Reidl, and he could recall two incidents when he struck Ms. Reidl by way of a defensive or reflex action. He had initially intended to plead not guilty to the charges and proceed to trial but when he was informed that the legal costs to defend himself would be between $20,000 and $30,000 he chose to accept the Crown’s offer of a joint submission on sentence, with no custodial time. Also, before arranging the trip to Myrtle Beach he had been assured by U.S. Immigration that given the nature of the charges and the sentence he would be permitted to cross the border.

[54] The second reason provided by Ms. Reidl for refusing to consent to the trip was that she did not want to be out of communication with her daughter for the eight days she would be out of the country.

[55] The motion was scheduled before Justice R.D. Gordon. In his endorsement Justice Gordon found that in his view it was “a given that a family trip to a new place was in the best interests of the child”. He granted the requested relief, subject to a requirement that arrangements be made for Rosalie to telephone her mother on arrival in the U.S. and several times during her vacation. He ordered costs of the motion to be paid by Ms. Reidl.

CUSTODY ISSUE

A. The Evidence of other Professionals involved with the Family

[56] Although it is not necessary to provide a summary of the evidence of all 21 witnesses, it is my view that it would be helpful to provide a review of the evidence and reports of the OCL clinician, Carole Vaillancourt, and the evidence of Cathy Maindonald, who is Rosalie’s counsellor. They are third parties who are both trained to work with children, and they can provide a degree of objectivity which is helpful to the court in deciding the custody issue.

1. Carole Vaillancourt and the OCL Reports

[57] On November 24, 2014 Justice Wilcox made an order requesting the involvement of the Office of the Children Lawyer. The OCL agreed to this request and assigned Ms. Carole Vaillancourt as the Clinical Investigator.

[58] Ms. Vaillancourt was assigned as a clinical investigator a second time, following the order of Justice Wilcox on January 10, 2017.

[59] Ms. Vaillancourt has been employed with the OCL full time since 2004. Prior to joining the OCL she obtained her Masters degree in Social work, and before that she worked as a child protection worker with CAS in the district of Algoma for a period of more than four years.

[60] Ms. Vaillancourt prepared two reports in response to these assignments. One is dated June 26, 2015 and one is dated July 12, 2017. She testified as a witness at the hearing. I will deal with the two reports separately.

Report of June 26, 2015

[61] In preparing her report and recommendations Ms. Vaillancourt undertook the following steps:

a) Conducted an interview with Mr. Creasor in February, 2015 and conducted a second interview in March, 2015

b) Conducted an interview with Ms. Reidl in February, 2015 and conducted a second interview in March, 2015

c) Made an observation visit at Mr. Creasor’s home. Mr. Creasor, Rosalie and Ms. Nasturzio were present for the visit;

d) Made an observation visit at Ms. Reidl’s home. Ms. Reidl and Rosalie were present and Mr. Murray was present for the first part of the visit;

e) Interviewed Rosalie at school on two occasions;

f) Interviewed in person Stephanie Nasturzio, Trevor Murray, Laurie Forth (Principal at M.S. Wittick Public School), Melissa Ellis Vankooy (Rosalie’s teacher), Sue and Jim Creasor (paternal grandparents) and Frank and Shirley Reidl (maternal grandparents).

g) Conducted telephone interviews with Amanda Zamira (day care provider), Dr. Pamela McDermott (medical psychotherapist), Cathy Maindonald (Child Counsellor), Mary van de Langerijt (outreach worker at Chrysalis), Dr. Dann Morton (family physician), Tabitha Dixon (Crown office), Dr. Faizal Bawa (family physician), Caroline Pattison, (Principal , Monck Public School), Peter Gelderbloem (counsellor) and Dr. David Dempster (family physician);

h) Reviewed a number of written reports, including reports of the OPP (Huntsville, Almaguin Highlands and Bracebridge Detachments), M.A. Wittick Junior Public School, Community Care Access Centre, Family , Youth and Child Services of Muskoka files, Family , Youth and Child Services of Muskoka and Nipissing and Parry Sound Children’s Aid Society’s files;

i) Held a disclosure meeting with the parties and their counsel on May 28, 2015.

[62] Summaries of some of the more pertinent interviews were included in Ms. Vaillancourt’s report.

[63] Ms. Vaillancourt describes Rosalie as a “lovely little girl”, who has been surprisingly resilient given the adult conflict that surrounds her. Ms. Vaillancourt expressed concern about the number of times Rosalie has had to speak to the CAS and Police authorities, especially since the allegations have, for the most part, been very similar and were found to be unsubstantiated or already addressed and dealt with.

[64] The report reflects that one of Ms. Vaillancourt’s greatest concerns was Rosalie’s absenteeism from school. She notes that in 2014 she was absent 47 days and up to May 28, 2015, she had missed 26 days. This was in addition to many days that she was late. She noted that the absenteeism and late arrivals overwhelmingly occurred when she was in her mother’s care, and that because of her lack of attendance Rosalie was not able to receive the occupational therapy services available to her. She pointed out that Ms. Reidl chose to move to Bracebridge knowing her daughter’s school was in Burk’s Falls and that when Ms. Reidl enrolled Rosalie in school in Bracebridge in April, 2014 she only brought her to school on two days. Also, her investigation revealed Ms. Reidl had never asked the school for homework or exercises she could do at home with her daughter during those times that Rosalie was in her care and not attending school. In summary, it was Ms. Vaillancourt’s belief that Ms. Reidl does not prioritize Rosalie’s education.

[65] With respect to Mr. Murray, Ms. Vaillancourt reported that he seemed extremely invested in the custody and access matter. He was zealous in his description and condemnation of Mr. Creasor and actively contacted the authorities with allegations which had overwhelmingly been unsubstantiated. He actively attempted to locate Ms. Nasturzio’s home, driving around town looking for it with Rosalie, and Rosalie had reported to her that Mr. Murray, along with Ms. Reidl, had told her that her father was “bad”.

[66] Ms. Vaillancourt notes that there were now 7 criminal charges against Mr. Creasor for assaults prior to his separation with Ms. Reidl and that these charges were the result of recent allegations brought forward by Ms. Reidl. She notes that the CAS had not acted against Mr. Creasor despite the allegations, which Mr. Creasor had denied. Mr. Creasor believed that these charges were no more than an attempt on the part of Ms. Reidl to obtain custody of Rosalie.

[67] Ms. Vaillancourt also noted that Rosalie has spoken highly of Ms. Nasturzio and that her child counsellor, (Ms. Maindonald) had noted an improvement in Rosalie’s outlook when Ms. Nasturzio entered her life.

[68] Ms. Vaillancourt reported that although Mr. Creasor was not initially keen about counselling for Rosalie, he was later convinced of its benefits. She expressed concern about the fact that although Ms. Reidl had initiated the counselling, after the counselling sessions started Rosalie often missed the appointments while Rosalie was in her care.

[69] According to Ms. Vaillancourt, Rosalie’s “safe place” as per Ms. Maindonald is her father’s home.

[70] Ms. Vaillancourt concluded her first report with the following comments:

Rosalie clearly loves both parents and enjoys the time with them. It is unfortunate that given the adult dispute, it is unhealthy for her to be exposed to the conflict. Although both parents have had their part in this conflict, it appears that Ms. Reidl has actively exposed her daughter to these disputes. The degree of police involvement speaks to the high conflict to this situation. It seems unlikely that Ms. Reidl will stop since she has repeatedly brought forth the same allegations, despite these being deemed unfounded. Rosalie must be protected or her emotional health will be at greater risk than it already is.

[71] Ms. Vaillancourt’s recommendations included full custody of Rosalie to Mr. Creasor, with access to Ms. Reidl alternate weekends after school on Friday until Sunday at 4:30.

Report of July 12, 2017

[72] Ms. Vaillancourt conducted her second investigation in a very similar way to the first, interviewing the parents, health and education providers, conducting observation visits and interviewing Rosalie.

[73] In the concluding or “Discussion” portion of her report she again describes Rosalie as “an amazing little girl who had demonstrated considerable resilience in the face of much conflict”. She expressed concern however that Rosalie’s resilience was waning, and noted that Rosalie is having issues with enuresis and these seemed directly associated with the stress she was exposed to.

[74] Ms. Vaillancourt describes it as fortunate that Mr. Creasor had encouraged Rosalie to speak to her counsellor, Cathy Maindonald, and believes that this has been helpful for Rosalie.

[75] With respect to Ms. Reidl, Ms. Vaillancourt notes that she is an educated woman who is underemployed, and that she has had a history of jobs that are below her education level and has not maintained many of these positions for more than a few months or a year or two. Ms. Reidl informed her that she suffers from PTSD as a result of the abusive relationship with Mr. Creasor. Ms. Vaillancourt notes that although this is a serious disorder Ms. Reidl has not seen a psychiatrist to have this diagnosed.

[76] Ms. Vaillancourt reports that the relationship between Mr. Creasor and Ms. Reidl has been tumultuous, involving police involvement. She states that it is noteworthy that the allegations which resulted in Mr. Creasor now having a criminal record were dated and brought to light during the custody and access matter. She notes that the unhealthy relationship between Rosalie’s parents has persisted and that Rosalie was being victimized as a result.

[77] With respect to Rosalie’s present situation, Ms. Vaillancourt reports that Rosalie is active in extra – curricular activities. Her doctor reported that Ms. Reidl had taken Rosalie to see him on a number of occasions but he has never suspected that Rosalie has been physically abused.

[78] With respect to her education, Ms. Vaillancourt reports that Rosalie is attending a new school in Huntsville and that she is doing very well. Her attendance is excellent and her grades are good and the teacher and principal spoke of excellent communication with Mr. Creasor and Ms. Nasturzio. In fact, her teacher feels that the environment they provide is the environment where Rosalie should be and that she notices that Rosalie was often sad prior to her access visits with her mother.

[79] The school’s contact with Ms. Reidl has been less than ideal, according to Ms. Vaillancourt. Ms. Reidl informed the teacher early in the year that she would be gaining custody and although she wanted to be apprised of all the information from the school, she never followed through with requests for information.

[80] Following his convictions for assault, Mr. Creasor was required to attend a PARS program (Partner Assault Response Program) and Ms. Vaillancourt notes that he followed through and completed the program.

[81] Ms. Vaillancourt notes that allegations of Rosalie’s physical abuse have been made for many years, to both the CAS and the police. She notes that these allegations have never been substantiated, despite many openings and interviews.

[82] Ms. Vaillancourt also noted that Ms. Reidl has historically kept Rosalie from school, failed to return her to her father after visits, attempted to prevent Rosalie from getting medical procedures and attempted to prevent Rosalie from attending family vacations. She notes that at the end of February, 2016/early March, 2016, Ms. Reidl did not return Rosalie. She claimed that it was because Rosalie was ill, but she did not bring her to the doctor until March 4, 2016. Furthermore, she had attended at the police detachment on March 3, 2016 and advised the Bracebridge OPP that she was not returning Rosalie because Rosalie was being abused.

[83] Of concern to Ms. Vaillancourt is that Ms. Reidl has not allowed Rosalie to attend her extracurricular activities while in her care. She notes that Ms. Reidl’s lack of participation and encouragement have impacted Rosalie and that this has been a missed opportunity for Ms. Reidl to develop a bond with her daughter.

[84] With respect to the issue of custody and access Ms. Vaillancourt had this to say:

The emotional abuse of this child must not be allowed to continue. Court orders and warnings have not deterred the mother and her partner from saying negative things to this child about her father. For Rosalie to state that her mother and Mr. Murray think her father is a “criminal” clearly indicates that she has heard these terms from her mother and step-father.

What is clear to this assessor is that this child is being subjugated to ongoing emotional abuse at the hands of her mother and step-father. She had reported to her counsellor for months that both her mother and stepfather say very negative things to her about her father. The stress of this ongoing negative talk has caused her physical ailments such as wetting her bed. Ms. Reidl and Mr. Murray have in the past been warned by the society that they are harming Rosalie, but warnings have provided no change in their behaviours. Rosalie is considered lower than an exchange student in their home. Her passion for hockey is completely disregarded. Her love for her father, step-mother and half-sister is condemned. Rosalie has reported to several people, including her counsellor, her friend’s mother and the assessor, that her mornings at her mother’s home are spent alone watching television while her mother sleeps.

To say that Ms. Reidl and Mr. Murray were resistant to this assessment is an understatement.

[85] Ms. Vaillancourt’s recommendations again included sole custody of Rosalie to Mr. Creasor. With respect to access, the recommendation was that Ms. Reidl’s access should occur at a supervised access centre. She also recommended that Ms. Reidl should attend for counselling and request a psychiatric consultation. In the event she attended for counselling and psychotherapy and the reports from her counsellor and Supervised Access Centre were positive, the OCL could provide an update in the future to assess if access should be expanded.

[86] Ms. Vaillancourt was examined and cross-examined with respect to her two investigations and the reports which followed. In my view, she was not seriously challenged with respect to any of her observations and recommendations. Throughout, she presented as an informed, objective and credible witness, whose objective was to determine the best interests of Rosalie.

2. The Evidence of Cathy Maindonald

[87] Cathy Maindonald is a registered psychotherapist who has provided counselling services to Rosalie since March, 2014. She was initially retained for 10 sessions, but was sent a new referral in September, 2016 by Rosalie’s physician who was concerned that Rosalie’s anxiety was manifesting itself in her enuresis. She has seen Rosalie 11 times since September, 2016. Ms. Maindonald spoke to Ms. Vaillancourt in relation to both of Ms. Vaillancourt’s reports and a summary of her observations as she relayed them to Ms. Vaillancourt are contained in these reports.

[88] Ms. Maindonald testified that although Ms. Reidl is the parent who initially sought counselling for Rosalie, she was not consistent in attending when Rosalie was in her care. On the other hand, Mr. Creasor was initially resistant to counselling for their daughter, but had a change of opinion and is diligent in ensuring that Rosalie attends at the counselling sessions. She explained that the last time she spoke to Ms. Reidl was the previous summer and she was informed by Ms. Reidl that she wanted to find a new therapist for Rosalie

[89] Ms. Maindonald testified that her goal was to teach Rosalie to deal with her painful and upset feelings in a healthy way. She uses a rating system based on an approach called Eye Movement Desensitization and Reprocessing (EMDR). Using this rating system, the number 1 is considered great and the number 10 is considered terrible. During her counselling sessions, Ms. Maindonald would ask Rosalie about how she rates her loved ones on different topics, including her feelings of love, safety and security.

[90] Of concern to Ms. Maindonald was that her visits to her mother upset her. Rosalie expressed that her mother was not helping her attend the activities she loved, such as hockey and soccer. Also, when she visited her mother she would have to stay in her room and make her own breakfast, because her mother would sleep in until late morning. Rosalie also informed Ms. Maindonald that her mother was angry at her father and saying bad words about him, but she did not believe that her mother “was saying the truth”.

[91] According to Rosalie, the only persons who she believed were helping her were her father and Ms. Nasturzio and she had started doing things to help herself as well.

[92] Ms. Maindonald reported to Ms. Vaillancourt that during the initial visit in October, 2016, Rosalie rated school, her friends, her father and step-mother as 4’s on the rating scale, and her mother and Mr. Murray as 5. During the next session her father was rated as a 2 (1 is considered “great”), Ms. Nasturzio as a 4, Ms. Reidl as an 8-9 and Mr. Murray as an 8.

[93] Ms. Maindonald testified that at every session Rosalie mentioned to her that her mother would not bring her to her hockey or to any parties she had been invited to and did not do any activities with her...this made her feel like a bad child.

[94] By December, 2016 Rosalie and Ms. Maindonald talked of three feelings that describe the adults in her life. She associated loneliness with her mother because she has nothing to do at her mother’s home. She associated sadness with Mr. Murray because he uses bad words for her father and her hockey. She used the terms joyful and happy when referring to her father and Ms. Nasturzio.

[95] Around February, 2017 her mother was telling her that her father was a criminal and that she would not be allowed to go to Myrtle Beach with a criminal.

[96] In Ms. Maindonald’s opinion, Rosalie is subjected to emotional abuse during every visit with her mother and Mr. Murray. Also, her needs, such as being provided with breakfast are not being met. Ms. Maindonald was so concerned about Rosalie’s welfare that she reported the situation to the CAS.

B. Analysis of Children’s Law Reform Act Factors

[97] Pursuant to section 24(1) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (the “Act”), the merits of an application for custody is to be determined on the basis of the best interests of the child. That determination is to be made after considering all of the child’s needs and circumstances, including those delineated in subsection 24(2) of the Act and an applicant’s past conduct in accordance with subsection 24(4), or if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent.

[98] In making my decision, I have considered each of the factors set out in section 24, and have addressed the arguments of the parties in the context of those factors. My analysis is as follows.

S. 24(2)(a) – Love, Affection and Emotional Ties

[99] Section 24(2)(a) requires that I consider the love, affection and emotional ties between the child and each parent claiming custody, other members of the child’s family who reside with the child, and persons involved in the child’s care and upbringing.

[100] It is clear to me that Rosalie loves and is loved by both of her parents. Although there was little offered in the way of evidence of affection between Rosalie and either of the parties, I have little doubt that each share a genuine affection with her.

[101] I note that during her counselling sessions, Ms. Maindonald would ask Rosalie about how she rates her loved ones on different topics, including her feelings of love, safety and security. It is of concern to me that Ms. Maindonald reported to Ms. Vaillancourt that during the initial visit in October, 2016, Rosalie rated her father and step-mother as 4’s on the rating scale, and her mother and Mr. Murray as 5. During the next session however, her father was rated as a 2 and Ms. Nasturzio as a 4, Ms. Reidl as an 8-9 and Mr. Murray as an 8.

[102] These reports by Rosalie to Ms. Maindonald suggest that she is conflicted with respect to her feelings about her mother and Mr. Murray.

[103] I note that Rosalie has been in the primary care of her father since the separation over five years ago. In such circumstances, it may be reasonable to infer that she shares a somewhat closer bond to Mr. Creasor. He is also the parent who ensures that she is enrolled in hockey and soccer, and takes her to her games. However, a score of an 8 or a 9 is a very low score on a scale of 1-10, with a 1 representing the highest or best score.

[104] The other members of her family who live with Rosalie include Mr. Creasor’s partner, Stephanie Nasturzio, and her younger half-sister Cassandra, who is one and a half years old.

[105] Persons who have observed Rosalie’s interaction with Cassandra, such as Ms. Vaillancourt have testified about the close relationship which has already developed between Rosalie and her younger half-sister. The evidence is that Rosalie plays a big role in Cassandra’s life, picking her up, carrying her around, feeding her, helping to change her diaper and playing in the sand box with her.

[106] Similarly, the evidence is that Ms. Nasturzio has also developed a close and supportive relationship with Rosalie. She takes her to activities, and last summer she coached Rosalie’s soccer team. She also helps Rosalie with her homework, teaches her how to care for her baby sister and plays indoor and outdoor games with her. In my view, Ms. Nasturzio provides Rosalie with a positive female role model…she is a well-educated woman who is cultivating a stable and successful career and home life.

[107] The other person involved in Rosalie’s care is Ms. Reidl’s husband, Trevor Murray. Unfortunately, and according to Ms. Vaillancourt, Ms. Maindonald and CAS workers, the role he has chosen to play in the fractious relationship between Ms. Reidl and Mr. Creasor has not been constructive or helpful. Although he did not even meet Mr. Creasor in person until the recent court hearing, the evidence from the police and CAS records is clear that he made repeated attempts to convince the CAS and the police that Mr. Creasor was an abusive and neglectful parent, most if all of which were proven to be unsubstantiated. I accept the evidence of the CAS workers and Ms. Maindonald that Rosalie informed them that both he and Ms. Reidl have said negative things about Mr. Creasor to her, and have attempted to cast him in a negative light. I also conclude that he was the driving force behind Rosalie’s “letter to the judge” requesting that she be permitted to live with her mother, and that he made comments to Rosalie which led her to conclude that he could arrange to have her father assaulted.

[108] I use the word “unfortunate” to describe the role played by Mr. Murray because I believe he could have played a more positive role in Rosalie’s life, and perhaps been a moderating influence in the ongoing fractious relationship between Rosalie’s parents. Instead he chose to say and do things which undermined the character of Rosalie’s father, notwithstanding the fact that the only thing he knew about Mr. Creasor was based on hearsay. I was pleased to hear that he approached Mr. Creasor in the corridor outside the court room during the trial, and offered to shake his hand. I view this as a conciliatory gesture on his part, and perhaps if he had demonstrated an earlier willingness to be more open and fair in his assessment of Mr. Creasor he could have opened the door to better understanding and improved communications between Rosalie’s parents.

[109] I remain hopeful that Mr. Murray’s conciliatory gesture arose from the fact that he had finally had an opportunity to see and observe Mr. Creasor in person, and to watch him testify. It is not too late for him to assume a more positive role in the future.

[110] With respect to the testimony of the grandparents, uncles and aunts, it does not appear that they have played a significant role in Rosalie’s life. Although her grandparents have been available to babysit, I do not have the impression that they have been involved in many activities. Rosalie has a passion for soccer and hockey, but her grandparents have rarely or ever attended her soccer or hockey games.

S. 24(2)(b) – the child’s views and preferences, if they can reasonably be ascertained.

[111] Rosalie did not testify at the hearing. However, her views and preferences can be ascertained to a significant extent through the professionals who have been involved in her life.

[112] Ms. Vaillancourt reports at page 11 of her July 12, 2017 report the following:

She said she is not really happy to go to her mother’s house. Her mother does not let her play hockey because she says it is too dangerous. Mr. Murray has told her that he had hurt himself playing hockey as a child. She added that she loves both hockey and soccer but her mother and Mr. Murray have only taken her once to her hockey games.

[113] As already noted, Ms. Maindonald reported that in relation to her feelings of love, safety and security, Mr. Creasor was rated as a 2, on a scale of 1-10, with 1 being the highest or best score and 10 being the lowest or worst score. Ms. Nasturzio was rated as a 4, Ms. Reidl and 8-9 and Mr. Murray as an 8. These scores speak volumes about Rosalie’s preferences and feelings and confirms that she experiences a high degree of security, love and safety when she is in the company of her father and Ms. Nasturzio.

[114] Ms. Andrea Shirtliff, a protection worker with the CAS met with Rosalie on three occasions in her home. She explained that Rosalie appeared happy at her father’s home but repeatedly used the word “worry” in relation to her communications with her mother.

S. 24(2)(c) – The length of time the child has lived in a stable home environment

[115] Rosalie has lived primarily with her father for more than 5 years, in accordance with the terms of the Parenting Agreement entered into by her parents on August 24, 2012. During that time Mr. Creasor has moved once.

[116] The evidence is that Rosalie has developed into a good student, popular with her classmates and teachers, and is passionately involved in a number of extra-curricular activities, especially hockey and soccer. Both Mr. Creasor and Ms. Nasturzio help Rosalie with her homework, and encourage her extra-curricular involvement, with Ms. Nasturzio coaching her soccer team last summer. She has been a loving older sibling to Cassandra for more than a year and a half.

[117] Mr. Creasor has now been employed as Manager of Public Works and Facilities for the Village of Burks Falls for six years, and Ms. Nasturzio is gainfully employed as an occupational therapist, working with children. Mr. Creasor and Ms. Nasturzio have a child together, and there is no evidence that they are not happy together or that their relationship is unstable. If custody is granted to Mr. Creasor, there is every reason to believe Rosalie will continue to enjoy a stable home environment.

[118] The professionals who have been engaged in relation to the custody and access issues in this case have expressed concern about Rosalie’s continued exposure to adult conflict by her mother and Mr. Murray. Ms. Shirtliff explained that she had discussions with her supervisor, and together they would have initiated action in court to compel their recommendations in this situation, had the matter not already been before the courts. Their recommendations include supervised access by Ms. Reidl.

S. 24(2)(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.

[119] Mr. Creasor, together with the support of Ms. Nasturzio, have demonstrated an ability and willingness to meet Rosalie’s needs financially, without requesting or requiring any financial support from Ms. Reidl. They ensure that Rosalie attends school, they assist her with her homework, they support her in her sports activities and they attend with her and ensure that she continues to receive counselling as recommended. When Rosalie’s doctor recommended that she have her adenoids removed, Ms. Reidl objected and Mr. Creasor was forced to bring a motion to the court for consent to do so.

[120] Of particular concern to this court has been Ms. Reidl’s failure and refusal to ensure that Rosalie attend school on a consistent basis. Without seeking the consent of Mr. Creasor, Ms. Reidl unilaterally removed Rosalie from her school in Burks Falls and enrolled her in a school in Bracebridge. Although Rosalie was enrolled for a period of approximately two weeks, she only attended on 2 days.

[121] As previously noted, Rosalie missed 44 days of school and was late 21 times during the 2013 – 2014 school year. These absences occurred primarily as a result of Ms. Reidl’s failure to take her to school following an access visit. There is also evidence that notwithstanding Rosalie’s passion for hockey and soccer, Ms. Reidl refuses to take her to her games on the weekends she exercises access, and has only ever attended two hockey games.

[122] Ms. Reidl admitted that she has not requested a copy of Rosalie’s latest report card and Rosalie’s teacher informed Ms. Vaillancourt that Ms. Reidl informed her that she wanted to be apprised of all the information from the school, but she never followed through with requests for information.

[123] As stated by Justice R. Gordon at par. 44 in Hawkins v. Schlosser, 2012 ONSC 2707, to have an ability to act as a parent, the person must “be willing to undertake the care of the child, be able to recognize what is in the child’s best interests and to the extent reasonably possible, act in the best interests of the child even where those interests conflict with one’s own”.

[124] Ms. Reidl has never provided a reasonable explanation for her failure to ensure that Rosalie attended school on a regular basis. At various times, she had blamed her failure on migraines and on her reluctance to drive in wintry conditions. Even if the court was prepared to accept that she suffers from migraines and does not like to drive in the winter, certainly some alternate arrangements could have been put into place to ensure that Rosalie attended school.

[125] I note that Mr. Creasor was forced to bring a motion to court for approval to have Rosalie’s adenoids removed, a medical procedure recommended by the family doctor. He was also forced to bring a motion for approval to take Rosalie to South Carolina on a family holiday. Ms. Reidl has never provided a reasonable or satisfactory explanation as to why it was necessary for Mr. Creasor to obtain court orders for such matters, which were clearly in Rosalie’s best interests. Mr. Reidl’s explanation that one of the reasons she would not consent to the South Carolina trip was because she did not want to miss out on her telephone calls with Rosalie, is a clear example of Ms. Reidl placing her own needs and desires above those of Rosalie. I also question why she has been so reluctant to attend Rosalie’s hockey and soccer games.

[126] In conclusion, although I believe Ms. Reidl does love her daughter, her actions suggest that she is often unable to make the effort and sacrifices which are to be expected from a good parent, and she is often unable or unwilling to consider Rosalie’s best interests when they conflict with her own.

S. 24(2)(e) – the plan proposed by each person applying for custody or access to the child for the child’s care and upbringing

[127] Mr. Creasor’s plan is to continue the present arrangements for care, and once an ability and willingness to meet Rosalie’s needs is demonstrated by Ms. Reidl, discussions of extended access and even co-parenting could be entertained. He has a flexible schedule with steady employment.

[128] In my view, the evidence supports Mr. Creasor’s willingness to encourage a good relationship between Rosalie and Ms. Reidl, and that he understands that it is important for Rosalie’s development as a person that she experiences such a relationship.

[129] For example, in 2013 Ms. Reidl was charged criminally with a number of offences involving Mr. Creasor. Mr. Creasor responded by writing an email to the Crown Attorney, imploring her to drop the charges. His words speak volumes about how important he felt it was that Rosalie have a positive view of her mother. I have excerpted the first paragraph of his email which is as follows:

Ms. St. Pierre I explore (sic) you not to charge the mother of my child. My little girl needs to believe that her mother is a good mother, someone she can look up to. If Jodi does well in life this is good for my daughter. If Jody gets charged this may affect Jodi and her career which will indirectly affect Rosalie.

I make a great effort for my daughter to have good self-esteem, confidence and be free from anxiety. If she believes her mother is a good person and has all these qualities, then my daughter, Rosalie will believe that she is in a way part of her mother, as she is her daughter.

[130] In my view, Ms. Reidl will have to make significant changes in her life if she is to present as a positive role model to Rosalie. There is ample evidence before the court that she has consistently engaged in criticizing Mr. Creasor in front of her daughter. She is now 40 years old and has now remained several credits short of completing her university degree for many years. Her employment history is checkered, consisting primarily of part time positions requiring minimal skills. She has been accurately described as “underemployed” by Ms. Vaillancourt. Her failure to ensure that Rosalie attended school on a regularly basis suggests that she does not place a high value on education, and her failure to attend Rosalie’s hockey and soccer games, which are very important to Rosalie, has been hurtful for her daughter. According to Rosalie, when she is at her mother’s, she spends much of Saturday morning alone, because her mother chooses to sleep in.

[131] Is it also my view that Ms. Reidl would benefit from taking some parenting courses and engage in counselling.

S. 24(2)(g) – the ability of each person applying for custody of or access to the child to act as a parent.

[132] This section overlaps with the previous sections. I have already noted that Ms. Reidl’s failure or refusal to ensure Rosalie’s attendance at school and participation on her sports teams suggests to me that she is not prepared to make the effort and undergo the sacrifices which are necessary in order act as a good parent.

[133] I also note that although Ms. Reidl initiated the counselling with Ms. Maindonald, she was not consistent in ensuring that she attended her sessions after the first 2 or 3 sessions. Her evidence, that she attempted to contact Ms. Maindonald about the missed appointments and that the appointments conflicted with her schedule is not convincing, especially in light of Ms. Maindonald’s testimony that Ms. Reidl had informed her that she was looking for a different counsellor.

[134] Being a good parent requires an ability to look inward and be honest with oneself. What also troubles me about Ms. Reidl is her tendency to make excuses and blame others when things do not go in her favour, and for her failure to accept responsibility for any failures on her part. For example, following Ms. Vaillancourt’s first report for the OCL, which did not paint a very flattering picture of her, she requested that a different investigator prepare the second report. This was refused and thereafter Ms. Vaillancourt faced considerable difficulty in obtaining the necessary cooperation from her and Mr. Murray so she could complete her investigation and report. As already noted above, in relation to the preparation of the second Vaillancourt report, Ms. Vaillancourt stated “To say that Ms. Reidl and Mr. Murray were resistant to this assessment is an understatement.”

[135] Similarly, when she was apparently not pleased with the outcome of Rosalie’s counseling sessions with Ms. Maindonald, she indicated that she wanted a different counsellor for her daughter, and stopped taking Rosalie to her appointments. She also blamed her schedule for her missed appointments. She filed a formal complaint against Marie Gulli, a worker with the CAS who she alleges did not take her complaints seriously, and she demanded a different worker. When the Crown did not proceed with all the charges against Mr. Creasor, she blamed the failure of the prosecutor to do so on the fact that a new prosecutor was appointed to handle the case.

[136] In contrast, it was my observation that throughout his evidence, Mr. Creasor was quite prepared to own up to his own failures. For example, he admitted to spanking Rosalie when she was younger, and he was prepared to accept direction from the CAS and learn better methods of administering discipline to her. He admitted that there had been “pushing and shoving” during the marriage, and he pleaded guilty to charges of assault and thereafter successfully completed the PARS program as part of his sentence. Unlike Ms. Reidl, he continues to see a professional counsellor on a regular basis.

[137] Also, Mr. Creasor has demonstrated a willingness to be conciliatory. Ms. Reidl has waged what I can only describe as a campaign to have Mr. Creasor charged with assault for many years. When he was ultimately convicted, she referred to him as a “criminal” in front of her daughter, refused to allow Rosalie to travel to South Carolina with him, and has used the charges as a springboard to bring her Motion to Change. In marked contrast, and as I have already noted, when she herself faced criminal charges in 2013 Mr. Creasor pleaded in writing with the Crown Attorney to drop the charges, because he believed a conviction would have a negative impact on his daughter’s development and self-esteem. Shortly thereafter, the charges were withdrawn.

[138] The willingness to set aside one’s own interests in favour of the needs and interests of a child, to admit mistakes and to be conciliatory are important and necessary parenting qualities. Unfortunately, Ms. Reidl’s actions do not reflect these qualities.

S. 24(3)(4) Past Conduct and Violence and Abuse

[139] The sections in the Children’s Law Reform Act dealing with past conduct and violence and abuse are as follows:

Past Conduct

S.24 (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,

Violence and Abuse

S.24 (4) 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.

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

[140] On November 12, 2015 Mr. Creasor pleaded guilty to two charges of assault against Ms. Reidl. The charges were historical and pre-dated the separation of the parties, having occurred in 2008 or 2009. Pursuant to section 24(4) of the Act I am required to take these assaults against Ms. Reidl into consideration in determining the best interests of Rosalie.

[141] Mr. Creasor admitted at the custody trial that he was involved in some incidents in which he and Ms. Reidl pushed and shoved each other during the relationship, and on this basis he decided to plead guilty, and accept a sentence based on a joint submission by the Crown and his lawyer. By doing so, he would not be required to spend a significant amount of money defending himself against the charges, and the agreed upon sentence did not involve any custodial time.

[142] The facts which were read into court at his criminal hearing painted a picture of him as the instigator of both of the assaults. At the custody hearing he testified that he could only recall two incidents when he may have struck Ms. Reidl, and in both cases his actions were of a defensive nature or occurred as a reflex action, and were made in response to Ms. Reidl striking him unexpectedly.

[143] Although Mr. Creasor’s counsel informed the court that Mr. Creasor was not disputing the facts as read into the record at his criminal trial, his counsel qualified this by also stating the following on the record… “But I can certainly advise you that he no longer has a clear recollection of events that happened in 2008 to 2009”.

[144] For the following reasons, I am prepared to accept Mr. Creasor’s evidence that his actions were of a defensive nature or occurred as reflex action, and to accept his evidence in relation to the charges where it differs from Ms. Reidl’s allegations.

a) Ms. Reidl is an intelligent and strong willed person who loves her daughter Rosalie. If Mr. Creasor’s nature was such that he had a tendency to violence, she would never have signed the Parenting Agreement, which provided that Rosalie would reside primarily with her father. The allegations of assault did not begin until she decided she wanted custody of Rosalie.

b) Mr. Creasor does not have a criminal record, and there is no other evidence of violent behaviour in his history.

c) Mr. Creasor presented as a very credible witness. I observed that it was difficult for him to answer questions which reflected negatively on Ms. Reidl. This is consistent with his plea to the Crown Attorney to withdraw the criminal charges against Ms. Reidl. During a lengthy examination in chief and cross-examination, he did not demonstrate any emotions which could be equated with anger or a quick temper. To the extent he displayed emotions, the emotions can best be described as sadness, and at times the circumstances he was testifying about caused him to become teary.

d) Ms. Reidl was motivated to have the courts make a finding of guilt against Mr. Creasor. She had previously made allegations of assault and violent behaviour against Mr. Creasor which were found to be unsubstantiated. When he was ultimately charged, she very quickly thereafter used the fact that he was facing criminal charges as a basis for bringing her Motion for Change of Custody.

e) In his testimony Mr. Creasor described Ms. Reidl as someone who would frequently and unexpectedly use violence against him, particularly when he was in vulnerable position, such as behind the wheel of a vehicle. He described an incident where she unexpectedly kicked him in the head while he was bent over putting on his boots. In my view, Ms. Reidl failed to effectively challenge these allegations when she gave her evidence. I accept the evidence of Mr. Creasor that he was subject to assaults by Ms. Reidl and I would not be surprised if he was forced to use some force to defend himself from time to time.

f) Rosalie has made it clear in her counselling sessions with Ms. Maindonald that she has a deep affection for her father, and that her father’s home is her “safe place”. Rosalie would not make such statements if her father was a violent man.

[145] I have considered the fact that Mr. Creasor pleaded guilty to two historical allegations of assault against Ms. Reidl. Whether his actions are best described as defensive actions, or reflex actions, I am not prepared to give them much weight in deciding the issue of custody of Rosalie. I reject the submissions of counsel for Ms. Reidl that the two convictions should be viewed as evidence that he is a person of bad character. In considering Mr. Creasor’s character, any reflection of his character based on these alleged assaults must be balanced against all of the evidence, including the fact that he attended and successfully completed the PAR program and the evidence that he pleaded with the Crown Attorney to drop the criminal charges against Ms. Reidl.

C. The OCL Reports…are they biased against Jodi Reidl?

[146] In his final submissions, counsel for Ms. Reidl argued that the reports from the office of the Children’s Lawyer were fundamentally flawed and biased against his client. Accordingly, counsel submits that the recommendations should be ignored.

[147] I did not detect any such bias. As described above, in conducting her investigations and preparing her reports and recommendations, Ms. Vaillancourt relied on numerous sources of information, in addition to the CAS workers who had been involved with the family. These sources included family members, teachers, counsellors, Rosalie herself, the parties, Ms. Nasturzio, Mr. Murray, personnel from the Crown Attorney’s office, family doctors, day care providers and neighbours and friends. These sources were all valid and helpful sources who were in a position to provide relevant information. It is not unusual for expert evidence of this nature to be based to a significant degree on the findings and reports of others.

[148] In my view, what gave Ms. Vaillancourt’s reports and investigation validity was the consistency of the information she received from these sources, whether the source was a CAS worker or a family member. Generally, Rosalie was described as a bright and mature young girl, a good student, a committed soccer and hockey player, a loving sister to Cassandra and appeared to be very happy in her home and school environment. These are all relevant considerations in determining the best interests of a child.

[149] Ms. Reidl submits that Ms. Vaillancourt’s comment that Ms. Reidl is an educated woman who is underemployed and has a history of jobs that are below her education level is gratuitous and irrelevant and of no assistance to the court.

[150] I disagree. The comment was of assistance to the court. It is an observation by Ms. Vaillancourt which is supported by the evidence. It is relevant because it reflects on Ms. Reidl’s motivation level, and her apparent inability to follow through with commitments. As such it is directly related to a major concern raised at trial, which was Ms. Reidl’s unwillingness to ensure that Rosalie attends school on a regular basis. It also reflects on her ability to be a good role model. For example, by not working at any one job on a consistent basis, by not completing her own degree and by keeping her daughter from attending school on a regular basis, Ms. Reidl is sending a message to Rosalie that education, maintaining steady employment and completing a course of study is not a priority in her life.

[151] Ms. Reidl also takes issue with the fact that there was no effort on the part of Ms. Vaillancourt or Ms. Maindonald to determine the veracity of the statements made by Rosalie to her counsellor. Again, I disagree that this suggests bias. Rosalie is 8 years old, almost nine. She has never been described as dishonest or untruthful. If she tells a number of individuals that she has heard Ms. Reidl say negative things about her father, it is not improper to give such statements some weight.

[152] In conclusion, let me say that in making my decision, I have considered all of the evidence from all of the witnesses, whether they be neighbours, family members or professionals trained to deal with children. In weighing the evidence I have considered whether the evidence is based on hearsay, and whether the evidence comes from persons who may not be able to be completely objective, such as the evidence from family members. I must say, that in the end, the evidence which emerged was remarkable for its consistency.

D. The Law regarding Custody (The Best Interests Test)

[153] Section 29 of the Children’s Law Reform Act provides:

ORDER VARYING AN ORDER

S. 29. A court shall not make an order under this Part that varies an order in respect of custody or access made by a court in Ontario unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child.

[154] Once the court determines that there has been a change of circumstances, the second stage of the inquiry is to determine the best interests of the child in accordance with section 24 of the Act.

[155] In this case, both parents are requesting that they be granted sole custody. By doing so they both recognize that the terms of the Parenting Agreement, which provided that they have joint custody, is not working and does not meet the needs of Rosalie.

[156] I agree, in my view there has been an unforeseen change in their circumstances which is having a detrimental effect on the emotional and physical health of their daughter. Rosalie has the feeling that she is trapped in the middle, between two warring parties. Simply put, her parents can no longer communicate in a way that ensures that her best interests are met. She cannot even go on a vacation or obtain consent for an approved medical procedure without a court order. I find as a fact that there has been a material change in circumstances.

E. Disposition of the Custody Issue

[157] Neither Mr. Creasor nor Ms. Reidl is perfect. They are not expected to be in order to be granted custody. What I am to determine is with whom Rosalie is more likely to develop into a happy and healthy person

[158] When I consider all of the factors set out in Section 24 of the Act, it is my view that Rosalie’s best interests are best served by granting sole custody to Mr. Creasor. I have come to this conclusion for a number of reasons, which include the following:

a) Mr. Creasor, (together with Ms. Nasturzio) ensure that she attends school regularly:

b) Mr. Creasor encourages her participation in extracurricular activities such as soccer and hockey and attend these activities.

c) Mr. Creasor, as evidenced by his email to the Crown Attorney, encourages Rosalie to have a healthy respect for her mother;

d) Mr. Creasor and Ms. Nasturzio present as positive role models. They are both employed on a full time basis in responsible positions and encourage Rosalie to do well at school and participate in sports programs. Ms. Nasturzio encourages Rosalie to send cards to her mother on special days and has coached her soccer team.

e) Rosalie has developed a close bond with her step sister, Cassandra, and this bond would be compromised if she only saw her sister on an occasional basis;

f) Rosalie has stated that she considers her father’s home to be her “safe place”;

g) Rosalie has resided primarily with her father since the parties separated. Under his care and guidance she has developed into a mature, bright and motivated young girl. Although she faces some challenges with respect to anxiety, this is not surprising, given the degree of conflict to which she has been exposed. Her father encourages and supports her in attending counselling sessions.

[159] With respect to access, although I am concerned about the negative comments Rosalie has been subjected to about her father from Ms. Reidl and Mr. Murray, I believe the benefits of unsupervised access outweigh this concern. Rosalie has developed relationships with both Ms. Reidl’s parents and Mr. Murray’s parents, and with her uncles, aunts and cousins on Ms. Reidl and Mr. Murray’s side of the family. Mr. Murray’s parents regularly host Sunday afternoon dinners for their extended family at their home, and Rosalie would not be able to attend these dinners if access was supervised. In my view, it would not be in Rosalie’s best interests to deprive her of the opportunity to spend time with these members of her family. Unsupervised access however is to be subject to a requirement that Ms. Reidl engage in counselling for no less than a year. In my view, Ms. Reidl would benefit from counselling with a focus on the following:

a) Her alleged PTSD;

b) Improving her parenting skills, with a focus on establishing priorities i.e. to ensure that Rosalie attends school on a regular basis;

c) Her anger towards Mr. Creasor, and her need to paint him in a negative light.

[160] Ms. Reidl’s counsellor should be apprised of the OCL reports and this decision.

[161] Ms. Reidl should confirm with the CAS and with Mr. Creasor within 48 hours of the release of this decision that she is prepared to engage in counselling, and thereafter to advise them of the name of the counsellor who she has engaged. In the event Ms. Reidl is not prepared to engage in counselling, access should be restricted to supervised access for two hours every other weekend at a mutually convenient time and place

[162] In the event Ms. Reidl agrees to attend counselling, the terms of access are to include:

a) Access every other weekend from Friday after school to Sunday at 6 pm. In the event Ms. Reidl’s care of Rosalie falls on a weekend that does not require Rosalie to be in school on Friday and /or Monday because of statutory holidays or school professional development days, her weekend shall be extended to include those days.

b) Regardless of the scheduled weekend schedule, Rosalie’s Christmas vacation from school shall be divided equally between the parties. In 2017 and in subsequent odd number years, the first half of her vacation (beginning the day school ends and continuing for one half of the number of day until school resumes), shall be spent with her mother and the second half shall be spent with her father. In even numbered years the first half of her vacation will be with her father. Pick up and drop off shall be at 6 pm.

c) Regardless of the scheduled access, in 2018 and in subsequent even numbered years, Rosalie shall be in the care of her mother during the school spring break, from 6 PM on the day school ends to 6 PM on the Sunday before school resumes. In 2019 and in subsequent odd numbered years, Rosalie shall be in the care of her father during school spring break for the same period of time.

d) In the event Mother’s day falls on a weekend when Rosalie is scheduled to be with her father, Rosalie shall spend the day with her mother, from 10 A.M to 6 P.M.

e) In the event Father’s day falls on a weekend when Rosalie is scheduled to be with her mother, Rosalie shall spend the day with her Father, from 10 A.M to 6 P.M.

f) Beginning in 2018 and in each year thereafter, the eight week period following the completion of the school year shall be shared between the parties in alternating two week periods from Saturday noon to Saturday noon two weeks hence, with the first two week period being spent with the father. On completion of the eight week period, Rosalie shall be with her mother from Saturday noon until Sunday at 6 p.m. and every second weekend thereafter from Friday at 6 p.m. to Sunday at 6 pm., extended for long weekends and school professional development days as outlined above.

g) Ms. Reidl shall be responsible for picking up Rosalie at her father’s residence at the commencement of all periods of time when she is to be in the care of her mother.

h) Mr. Creasor shall be responsible for picking Rosalie up at her mother’s residence at the conclusion of all periods of time when she is to be in the care of her mother.

i) Each parent shall encourage Rosalie to call the other parent while in their care and shall ensure there is a phone made available to her for that purpose.

[163] I shall remain seized of the implementation and enforcement of this order and of any future proceedings to vary this order, unless there is an emergency or I am not available.

THE CHILD SUPPORT ISSUE

[164] Both parties claim child support and s. 7 expenses from each other in the event they are granted custody. The evidence before me is that Ms. Reidl is presently working part time. It is not likely that she is in receipt of sufficient income to pay child support or section 7 expenses. If her situation should change, Mr. Creasor is permitted to bring a motion for child support and s. 7 expenses.

COSTS

[165] If the parties cannot agree on costs of the motion, they are to file written costs submissions within 15 days, limited to 5 pages in length plus attachments. Thereafter, they have 10 days to reply to each other’s costs submissions.

Justice E. J. Koke

Released: November 9, 2017