Portelli v. Grady, 2017 ONSC 7281

CITATION: Portelli v. Grady, 2017 ONSC 7281 COURT FILE NO.: FS-16-164 DATE: 2017-12-07

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Darleen Portelli, Carmen Portelli and Estate of Jennifer Darleen Portelli Applicants

– and –

Michael Steven Grady Respondent

COUNSEL: Deborah L. Ditchfield, for the Applicants Filomena Andrade, for the Respondent

HEARD: September 19, 2017

BEFORE: The Honourable Justice R. John Harper

Reasons for judgment

Issue

[1] Custody and access to the child Mikayla Jennifer Portelli Grady ("Mikayla"), born January 3, 2008 (age 9).

[2] The dispute is between the maternal grandparents, Darleen Portelli ("Darleen") and Carmen Portelli ("Carmen"), and Michael Steven Grady ("Michael").

Background

[3] The natural parents of the child are Jennifer Portelli ("Jennifer") and Michael Steven Grady. They were married on August 2, 2007. They separated in the summer of 2009.

[4] The mother, Jennifer, died on April 26, 2016 at the age of 47.

[5] After the mother and the father separated, the mother had sole custody of Mikayla. The father had access to the child. That access was pursuant to a consent order of Justice Kent dated April 20, 2012. The Order of Justice Kent gave sole custody of the child to Jennifer with the imposition of a duty to consult with the father on major decisions including health, education, religion, extracurricular activities and general welfare of the child.

[6] Access included alternating weekends from Fridays to Sunday evenings. In addition, there was access to two evenings during the week. That Order also provided extended holiday access.

[7] Paragraph 7 of that Order stated:

And this Court Further Orders that the Respondent shall refrain from consumption of alcohol for twenty four (24) hours prior to access with the child and throughout the period of access.

[8] The Order also contained a specific provision that the father was to be responsible for monitoring the child and not exposing her to an environment of excessive alcohol consumption, not to an adult who is impaired by alcohol, nor to a person or persons known to him to use or possess any and all illegal substances.

The Parenting History after March 2016

[9] From March 8, 2016, the child started to reside with her mother at the home of the maternal grandparents in Brantford due to the mother's illness. At that time, Jennifer was diagnosed with terminal cancer and only given a few months to live. As the mother became increasingly ill, Darleen took over much of the day-to-day care of Mikayla.

[10] The father, Michael, was not told about Jennifer's terminal illness. Jennifer and her parents were concerned that if Michael knew about the extent of Jennifer's illness, he would try to get the child to move in with him in Cambridge, Ontario and take over custody of the child.

[11] Jennifer engaged the services of a grief counselor, Ms. Russell. This counselling was in order to help Jennifer deal with the fact that she was terminally ill. After a few sessions with Ms. Russell, Jennifer asked if Mikayla would like to have Ms. Russell start counselling with her. Mikayla agreed and she has been receiving grief counselling with Ms. Russell ever since.

[12] Shortly before Jennifer died, she attended at her cousin Steve Portelli's office. Steve Portelli is a lawyer with the Brantford law firm of Hughes Amy. Steve Portelli drafted a last will and testament for Jennifer. In the will, she made her parents executors and trustees. She also expressed the wish that her parents, Darleen and Carmen, have custody of Mikayla and made them guardians of Mikayla's property. Jennifer's will directed Darleen and Carmen to bring an application for custody of Mikayla within a 90-day period from the date of her death.

[13] Darleen testified that she was not aware that she and her husband were directed to have custody nor guardianship of Mikayla until after Jennifer's death when Steve Portelli showed her Jennifer's will.

[14] Since March 8, 2016, the child has resided with her maternal grandparents in Brantford. She has access with her father. The first access regime was the same as that agreed to by the mother and father and entered as the court Order of Justice Kent dated April 20, 2012.

The Circumstances of the Parties and the Child

[15] The maternal grandmother, Darleen Portelli, is 71 years of age. The maternal grandfather, Carmen Portelli, is 74 years old. Michael Grady is 47 years old. Michael's common law spouse is Angela Vernon who is 41 years old.

Darleen Portelli

[16] Darleen stated that she is in generally good health and that she is very active. She testified that she has not had any major surgeries that have limited her functioning in any way. She has been diagnosed with type two diabetes. She sees her doctor about this condition and takes medication to control it. She had a stress test that did not reveal any heart issues as a result of her diabetes. She conceded that if her condition is untreated, she would be at higher risk for heart issues and her life expectancy could be reduced.

[17] Darleen has been married to Carmen for over 50 years. She retired early at age 63 in order to be able to assist with the care for her grandchildren. Her daughter Lynn has a child, Isabella (Bella), who is the same age as Mikayla (9).

[18] During the marriage to her husband Carmen, they had four children; two boys, Mark and Matthew, and two girls, Lynn and Jennifer. Mark and Matthew also have children. Prior to her retirement, Darleen worked mostly part-time at a supermarket for many years. However, her marriage with Carmen was largely traditional and she stayed at home to care for the children and later, the grandchildren.

[19] Darleen describes her extended family as being very close. They all live in the Brantford area. They see each other often, especially at holidays and other special events. She added that when they have not seen each other for any length of time, they have an impromptu get-together such as a BBQ in order that there are not lengthy lapses of time without seeing each other.

[20] Darleen and her daughter Jennifer were very close. Darleen has also closely bonded with her granddaughter Mikayla. I have no question that Darleen loves and wants the best of everything for Mikayla.

Carmen Portelli

[21] Carmen Portelli is 74 years of age. He was born in Malta and came to Canada when he was five years old. He has lived in the City of Brantford since that date. He worked throughout the marriage as a sales person in the metal industry until he retired at age 67.

[22] Carmen stated that he is in good health. He has high cholesterol and he takes medication for this condition. He also works out at the gym and has done so for at least the last five or six years. He goes to the gym five days a week for three hours per day. He does two hours of exercises with weights and at least a half hour of cardio exercise.

[23] Carmen conceded that if his cholesterol is not kept in check by medication and his rigorous workout regimen, he would be at a higher risk for heart issues. There is no evidence that Carmen has not faithfully adhered to both his medications and his exercise regime.

[24] Carmen also described a close extended family. He stated that he and his wife were very close to their daughter Jennifer. Both Mikayla and their other granddaughter Bella are frequently together. They have many of the same interests as they are the same age.

Michael Grady

[25] Michael will be 47 years old in November. He lives and works in Cambridge, Ontario. He was married to Jennifer on August 2, 2007. They had one child, Mikayla. Jennifer and Michael separated in the summer of 2009. From the date of separation, Mikayla lived primarily with her mother Jennifer in Brantford.

[26] Michael works for a supermarket in Cambridge, Ontario. He also lives in Cambridge with his common law spouse Angela. He is presently an assistant manager at one of the stores in that city. He earns approximately $80,000 per annum. He originally told the Office of the Children's Lawyer (OCL) and stated in his direct examination that his hours of work were as follows:

7 a.m. to 4 p.m. on Mondays; 7 a.m. to 11 p.m. on Tuesdays; He does not work on Wednesdays; 7 a.m. to 4 p.m. on Thursdays; He works three out of four Saturdays; On occasions he works on Sundays 7 a.m. to 11 p.m.

[27] He claimed that he could change his work schedule to start at a later time if he was given custody of Mikayla. However, he had not as yet put any formal request in writing.

[28] Michael has lived in a common law relationship with Angela since approximately 2010. She has two children from another union. Her children are Alexandra and Mackenzie. Alexandra attends university in Thunder Bay. Mackenzie is still in high school and resides with Michael and Angela. Michael states that he has acted as a parent to Angela's children since they moved in with him in 2010.

Angela Vernon

[29] Angela is 41 years of age. She works at an automobile manufacturing plant. She works two shifts, days and afternoons. Her day shift runs from 6:50 a.m. to 3:20 p.m. Her night shifts are from 5:45 p.m. to 2:15 a.m.

[30] Angela supports and encourages Michael to get custody of Mikayla.

Custodial Arrangement from the Birth of Mikayla until the Separation of Jennifer and Michael in 2009

[31] Shortly after the birth of Mikayla, Jennifer was hospitalized due to heart failure. As a result, Darleen became the primary caregiver of Mikayla. Carmen had to work and he helped out as much as he could when he was not working.

[32] When Jennifer was out of hospital, Darleen continued to assist in Mikayla's caregiving. I find that in the first two years of Mikayla's life, Darleen and Mikayla closely bonded. This bond went beyond the loving relationship of a grandparent; Darleen acted as a parent for many months of the child's early years.

[33] Immediately after the separation of Jennifer and Michael, Jennifer and Mikayla moved in with her parents, Darleen and Carmen. During this period, Darleen was once again extensively involved in the day-to-day care of Mikayla who was only two years old at the date of separation. This living situation lasted for approximately six months. Carmen then purchased another home in Brantford and Jennifer and Mikayla moved into that home.

[34] Michael stated that he never had problems with access between the date of separation with Jennifer in 2009 and the Order of Justice Kent on April 20, 2012. However, Jennifer started a court action in 2010. Within that action, there was a Section 112 OCL investigation. The report of the investigator, Peter Martyn, was filed in evidence in these proceedings.

[35] That report captures the core of the conflict between Jennifer and Michael at the date of their separation in September 2009. The report, at page 2 stated in part:

Ms. Portelli stated that one of the primary factors that resulted in them separating was Mr. Grady's alcohol use and subsequent behaviour when under the influence, including infidelity. Mr. Grady does not deny that his drinking has caused him difficulties both in terms of his relationship with Ms. Portelli, but also with respect to his employment. However, Mr. Grady also feels that the treatment program he attended at the insistence of his employer has been very beneficial to him. He does not consider himself to be an alcoholic but realizes his drinking has caused significant problems in the past.

[36] The conflict that resulted in the Consent Order of Justice Kent, dated April 20, 2012, centred on Mr. Grady's attempts to increase his access and Jennifer's concerns for Mr. Grady's history of alcohol abuse. Jennifer was also concerned that Michael's work schedule did not allow him to be with the child during the times he was seeking to have the child.

[37] That core conflict persisted and was evident in the terms of the parties' minutes of settlement that led to the Order of Justice Kent.

[38] Justice Kent's Order of April 20, 2012 provided the following:

4. The Respondent or his partner, Angela Vernon, the Respondent's mother Gerry Hutton, the Respondent's sister, Star Hancock or the Respondent's father Steve Grady, shall attend to pick up the child for access exchanges.

5. The Respondent shall refrain from consumption of alcohol for twenty-four (24) hours prior to access with the child and throughout the period in which he has access.

6. The Respondent shall be responsible to monitor that while the child is in his care the child shall not be exposed to an environment of excessive alcohol consumption, nor to an adult who is impaired by alcohol, nor to a person or persons that are known to him to use or possess any and all illegal substances. The Respondent shall be responsible for removing the child from such a situation.

7. The Respondent shall be responsible for providing care for the child, Mikayla, during his access visits. The Respondent shall not delegate his care giving of Mikayla to anyone else during his access visits, other than Angela Vernon with the exception that Mikayla may be left in the care of extended family occasionally, for periods not exceeding 3 hours. The approved extended family members are:

(a) Mikayla's grandfather, Steve Grady and her grandfather's spouse, Jan Grady;

(b) Mikayla's aunt, Star Hancock, and her husband, Mikayla's uncle, Al Hancock;

(c) Mikayla's grandmother, Gerry Hutton and, her spouse, Mike Hutton.

The Respondent shall notify the Applicant if and when care of Mikayla is delegated to an approved extended family member and provide her with contact information for the extended family member caring for Mikayla.

[39] Access occurred in accordance with the Order of April 20, 2012. Many of the access exchanges took place at the home of Darleen and Carmen. Mikayla was often cared for by her maternal grandparents while Jennifer was working or travelling to work in Hamilton.

[40] Jennifer was diagnosed with terminal cancer in or about February 2016. On March 8, 2016, Jennifer and Mikayla moved into Darleen and Carmen's home in order for Jennifer's parents and family to assist her and care for Mikayla through this difficult period of palliative care.

[41] Michael was not told that Jennifer was diagnosed with terminal cancer until a couple of weeks prior to Jennifer's death on April 26, 2016.

Discussions with Michael Prior to Jennifer's Death

[42] Mark Portelli is Jennifer's brother. Mark testified that he wanted to talk to Michael in order to make things as peaceful as possible for Mikayla over this difficult period. Michael agreed in his testimony that they had three conversations in this short time frame about Mikayla.

[43] Both Michael and Mark testified that the first discussion was very emotional. Michael had no idea that his former spouse was terminally ill. They both agreed that since Mikayla did not know how serious her mother's illness was, nothing would be discussed with her. Michael also stated that he told Mark that he would not think of uprooting Mikayla from her grandparents. Michael emphasised that he added: "for now."

[44] They had a second meeting at a Tim Horton's on Highway 24. At this meeting, Mark stated that he did not want Michael's common law spouse Angela present. When Michael explained why she was there, he stated that Angela is his support; "she is my backbone." Mark also testified that Angela insisted that she was there because Mark is too easy and people will take advantage of him. He said she was present because she wanted to ensure that Michael did not get taken advantage of. Angela denied that she stated that she was present because Michael might be taken advantage of.

[45] The dispute over custody of Mikayla started to escalate from this point forward.

[46] Two days following the death of Jennifer, on April 28, 2016, Michael and Angela picked up Mikayla for an access visit. Mikayla was returned later that evening. According to Mark, the child was very upset. Mark stated that Mikayla came to her grandparents crying. She told them that Angela had told her that she was going to live with them and Mikayla did not want that to happen. Mark sent a text to Michael at his work. He stated that his parents were now dealing with a very upset little girl. Michael replied that he would ask Angela about what she said to Mikayla. According to Michael, Angela only asked Mikayla if she had ever thought of living with her dad. Angela's testimony was similar to Michael's. However, Angela stated that when she asked Mikayla if she had ever thought of living with her dad, Mikayla asked if she could bring her pets with her. According to Angela, Michael heard her say that. Michael testified that he only heard the child state that the "two old boys should meet". That was a reference to pets living in the respective houses.

[47] Despite many hours of testimony dedicated to who said what to whom about Mikayla's mother dying and where she was going to live, in my view, none of that is material to the main issues that I must decide. The interactions between the maternal side of the family and Mr. Grady and his spouse, since 2009, range from strained to outward conflict. The child Mikayla has been caught in the middle of what she perceives as a war between the adults she cares most about in her life. The untenable position that Mikayla has been placed must be looked at from the perspective of the severity of the losses she has experienced at such a young age.

Mikayla's Losses

[48] When Mikayla was only two years old, her parents separated. According to the OCL investigator, Mr. Glory To, Mikayla has no memory of her living with her parents when they were together. She only recalls visiting her father.

[49] When Mikayla was born, her mother had heart failure and was hospitalized. The maternal grandmother Darleen became the primary caregiver to Mikayla during this early period of the child's life. This lasted for a period of approximately three months.

[50] Jennifer and Mikayla went to live with Jennifer's parents when she separated from Michael in August 2009. This lasted for a period of approximately six months. Once again, Darleen played a significant childcare role.

[51] Jennifer's parents then purchased a home in Brantford and Jennifer rented that home from them. Jennifer and Mikayla resided in that home until February 2016. During the period of time that Jennifer and Mikayla lived in that home, Darleen continued to be a caregiver for Mikayla during the periods of time that Jennifer was either working or prior to and after her work. Darleen stated that she retired early in order to help with the care of both Mikayla and her other granddaughter, Isabella.

[52] Shortly after Jennifer was diagnosed as terminally ill, Jennifer and Mikayla moved back to live with Darleen and Carmen. The maternal grandparents continued to play a significant caregiving role from that period of time until the present.

[53] Mikayla saw her father during the access times that were set out in the Order of April 20, 2012.

Bereavement Support

[54] After being diagnosed as terminally ill and being given a time period of only weeks to a few months to live, Jennifer engaged the services of Maureen Russell. Maureen Russell is a bereavement support worker. She testified at this trial.

[55] Maureen Russell has been a clinician at a hospice supporting people who are dying and their families for the last 18 years. She has a bereavement certificate and has taken continuing education frequently. Her certificate was from Mohawk College. She was later on the advisory Board for a one-year period. She has supported thousands of people over the years in dealing with their own and family members' death. I found Ms. Russell's testimony to be fair and sensitive to the needs of Mikayla. Her involvement has always been focused on Mikayla's needs.

[56] Ms. Russell was asked by Jennifer to support her and Mikayla in dealing with her dying. Mikayla was agreeable to meet with Ms. Russell and according to Ms. Russell, they quickly built up a rapport. Ms. Russell's goal was to assist in telling Mikayla about her mother's serious illness and then to support her through the grieving process.

[57] According to Ms. Russell, Mikayla has been distracted by the issue of where she is going to live. She is aware of the conflict between her father and her grandparents. This conflict and uncertainty has impeded Mikayla's ability to go through the grieving process. The conflict needs to stop in order for Mikayla to gain the tools that she needs in order to live with the death of her mother.

The Adult Conflict

[58] Much of the evidence was devoted to the nature of the conflict that has developed between Carmen and Darleen Portelli and Michael Grady and Angela Vernon. In my view, the evidence brought forward by Michael Grady was more a reflection of what his needs were than a recognition of Mikayla's needs. Michael sees much of the conflict as a reflection of the grandparents' desire to marginalize and unduly criticize his parenting.

[59] I find that the maternal grandparents, Darleen and Carmen, are focused on Mikayla's needs. However, their participation in the conflict is not solely a reflection of their view of what is in the best interests of Mikayla. Darleen and Carmen have been impacted by the original conflict between Jennifer and Michael that led to their separation. They were and are still supporters of Jennifer and have taken on Jennifer's concern with respect to Michael's alcohol issues and their perceptions of his lack of parenting skills.

From the Father's Perspective

[60] The following represent some of the issues raised by the father, Michael, that he submitted were material for my considerations:

a) Marginalizing of him as a parent

Michael feels that the maternal grandparents marginalize him as Mikayla's father.

They do not consult with him on health and education. Nor do they discuss activities the child is involved in.

They don't give him extra time with Mikayla when he has asked for it.

They don't encourage or promote Mikayla to be with her father.

They promote a sense of fear and insecurity in Mikayla by discussing with the child safety rules she should live by when with her father. He complains that the grandparents are rigid and smothering when it comes to dealing with Mikayla.

b) The age and health of Carmen and Darleen

Carmen and Darleen are 74 and 71 years of age, respectively, and they have health risks that would limit their life span. He argues that the child should be moved to his custody now in order for her not to have to go through another death of a caregiver.

c) Parental rights

Michael feels that as the father, he should have custody of the child and should have custody from the date of death of the mother. He submits that grandparents' relationships with a child should be at the discretion of the parent.

From the Grandparents' Perspective

[61] Much of the evidence of Darleen and Carmen Portelli focused on the remnants of concerns that their daughter Jennifer had about Michael's behaviour as impacted on his ability to parent. Some of the issues that Darleen and Carmen submitted that were material for my consideration were:

a) The father's lack of parenting skills

The maternal grandparents feel that Michael has an excessively laid back approach to parenting. As a result, he puts Mikayla at risk. Some of the examples Darleen gave are as follows:

Darleen stated that Michael allows Mikayla to play on the trampoline at his house in an unsafe manner. It is recommended that only one person at a time be on that apparatus. Nevertheless, Michael does not adhere to that recommendation. On one occasion, the child came back to the maternal grandparents from an access visit with her toe very swollen and sore. The grandparents took the child for a check on the toe and found out that it was broken.

On another occasion, the child came home with small chips on her teeth after an access visit. The grandparents took the child to a dentist. The chips had to be fixed.

The child returned on another visit with a splinter in her foot that the grandmother had to remove.

Analysis of the Peripheral Issues

[62] The grandparents' complaints as set out above do not amount to concerns that Michael's parenting is lacking. Children play and children get hurt at times when they play. The examples that are set out above are heightened in the minds of the grandparents as a result of the incidents occurring within the context of this tug-of-war over the child's custody.

[63] There is no doubt that certain minimum safety rules should be put in place in order for a child to be safe in the residence she is living at the time. These are rules of common sense that should be a guide for both the father and the grandparents and not the subject of a court order. Some of those rules are:

a) The child should not swim alone without the supervision of an adult;

b) The child should always wear a life jacket when in a moving boat;

c) The child should always play on a trampoline in a manner consistent with basic rules and guidelines set to by the manufacturer of that trampoline;

d) The child should always wear a prescribed helmet when riding a bicycle;

e) The child, given her present age, should never be outside of voice contact distance from her caregiver or her residence while playing outside unless accompanied by another adult.

[64] These are basic norms that should be adhered to without the need of a court order.

[65] Similarly, if a child is injured, that injury should be communicated to the other caregiver in order for the other caregiver to properly be in a position to deal with the child when she returns.

[66] Common sense cannot be ordered by a court but should be an expectation with respect to parental decision-making.

The Father's Alcohol Issues

[67] The issue of Michael's improper use of alcohol was a major factor in the breakup of the marriage. Michael had two alcohol-related convictions; one in the 1990s for driving while under the influence. The other was in 2002 for public intoxication.

[68] Carmen, Mark and Darleen Portelli all testified that Michael became so intoxicated at one of their family members' wedding that he became belligerent and had to be assisted from the wedding by two male adults. Michael agreed that he had too much to drink on that occasion. However, his testimony about this incident was focused on deflecting his inappropriate consumption of alcohol and behaviour by his assertion that Carmen Portelli was drunker than he was that night.

[69] In January of 2009, Michael was the manager of a Zehrs grocery store in Stoney Creek, Ontario. As a result of an alcohol-related incident at an office Christmas party, Michael was disciplined by his employer. He was demoted to Assistant Manager. He received a "final letter of reprimand." The letter detailed that on the occasion of the party, he drank to excess, kissed female employees and became confrontational with another attendee at the party. He abused his position of authority by taking money from the "kitty" in order to have sufficient funds to buy others drinks.

[70] Michael was required to attend a program at a hospital entitled: "Coping Skills/Relapse Prevention Program" at the Addictions and Concurrent Disorders Centre. He was diagnosed as having "alcohol abuse, binge pattern." Michael filed a certificate of completion for that program; however, he did not provide any other reports from the operators of the program.

[71] As a result of the concerns that Jennifer had concerning Michael's history of alcohol challenges, the minutes of settlement that resulted in the Court Order of Justice Kent in April 2012 placed restrictions on Michael's ability to consume alcohol.

[72] He could not consume alcohol 24 hours prior to access with Mikayla, and he was not allowed to consume alcohol while Mikayla was with him on access. He had to ensure that Mikayla was not in the presence of anyone who was drinking to excess.

[73] Michael conceded that he did drink alcohol when he was prohibited from doing so by the Order of Justice Kent. However, he expressed the view that because he limited himself to one or two beers at the most, that was acceptable.

[74] I find Michael's behaviour regarding the consumption of alcohol not acceptable. The Court Order did not say that one or two beers were permitted. It said "no consumption of alcohol" for the specified periods. I have two concerns with the position that Michael took with respect to his drinking when prohibited. The first is a concern as to whether he is willing and able to obey court orders. The second is that his insistence that he can drink any amount of alcohol in the face of a prohibition not to, draws me to the inference that his struggles with abusing alcohol are not historical. I find that Michael has placed his inappropriately rationalized needs to give himself permission to drink above those of his child.

The Father's Lack of Insight into Mikayla's Present Needs

[75] Michael verbalizes that he is aware that Mikayla is going through a traumatic time due to the death of her mother. However, I find that he lacks insight into Mikayla's present need to remain with her grandparents given the extent of her loss; the significance of her attachment to her grandparents as primary caregivers; and her sense of comfort and security in remaining in what she considers to be "her home".

[76] I find that the father's lack of insight into these significant needs of Mikayla has been a significant contributor to the conflict instead of being directed toward cooperation with the most important people in Mikayla's life at this time.

[77] Michael and his common law spouse, Angela Vernon, are conducting themselves in a manner that is centred on their perception of their rights and their needs instead of being child-centred. Michael testified that: "I should be Mikayla's superhero" instead of just a father who the child visits. Angela insisted that the child should be with Michael because he is her father.

[78] Evidence that Mikayla is caught in the middle of a war zone that must end was highlighted by a video taken by Angela on September 24, 2017. Mikayla was at her father's home for that weekend. However, she asked her father to take her home to her grandparents by late morning on that day. Her father told her that he wanted her to stay with them as he had plans to do things together later that day. Mikayla insisted that she wanted to return to her grandparents instead.

[79] Angela, Michael and Mikayla then had lunch. The child continued to ask to be taken home and her father said no. All three then went to the park and Angela and Michael tried to engage Mikayla in playing games. Mikayla would not participate. According to Angela, Mikayla was rude so they returned from the park to their home. Mikayla kept insisting on going to her grandparents. An argument started to escalate. Angela subsequently carried Mikayla into her bedroom for a time out. When Michael later took Mikayla's phone and IPad from her, the child went into a rage. She kept hitting her father and yelling and screaming. Angela took out her phone and started to record the incident. That action was a catalyst to Mikayla going into an explosive rage. She screamed and yelled and threatened to call the police on her father and Angela. Angela told her to go ahead as she had it all on tape. Mikayla then she slapped Angela in the face.

[80] In her direct examination, Angela testified that she did not feel that her videotaping the child heightened the conflict. She stated that when Mikayla saw her taping she calmed down. That testimony was not borne out by the video.

[81] I find that the taping incident is a prime example of how the conflict between the adults has placed this child in in a boiling pot of extreme emotions. The significant adults in Mikayla's life must recognise her needs and conduct themselves with the primary goal of meeting her needs.

The Report of Mr. Glory To, the Clinical Investigator with the OCL dated January 31, 2017

[82] Mr. To is a very experienced child welfare professional. He has worked for many years and at numerous child protection agencies in Ontario, reaching supervisory and directorship levels. He has prepared numerous Section 112 reports for the Office of the Children's Lawyer. His report, dated January 25, 2017, was filed as evidence. Although he did not complete an update to his report due to insufficient time, he did conduct further interviews of the child at the end of August and beginning to mid-September 2017. Those interviews were considered as part of the evidence.

[83] Mr. To described Mikayla as a typical 8- to 9-year-old. She was sociable and friendly. He felt there were a number of important issues that impact on Mikayla's needs. She continues to be quite sad about her mother's death. She has not been able to properly grieve as a result of the uncertainty of where she is going to live. Mikayla misses her mother terribly and being with her maternal grandparents brings her an element of comfort. Her sorrow is somewhat lessened but not erased.

[84] Mikayla also finds comfort in retaining her expanded environment that she is used to. Her cousin, Bella, who she describes as her best friend is the same age as Mikayla and she frequently visits Mikayla in her grandparents' home. Darleen has been a constant caregiver for both girls.

[85] Mikayla wants the schedule of when she visits with her father to remain the same. She told Mr. To that if she has to stay overnight on the Wednesday evening, she will if that will make all this stop. Nevertheless, she expressed to Mr. To that she would like to have a choice on whether she stays overnight on the Wednesdays.

[86] Her views and preferences have been clear and consistent. She wants to remain with her grandparents. She loves her father and does not want to hurt him. However, she does not want to move out of "her home".

[87] According to Mr. To, Mikayla wants to visit her father. She is very aware of what the adults want. Mr. To testified that he did not feel that Mikayla's views and preferences are unduly influenced by her maternal grandparents. However, she is aware of these court proceedings and wants nothing more than the conflict to end.

[88] Mr. To testified that Mikayla has been in a position not unlike children living through a war. All the children want is for the bombs to stop falling. They do not care who is dropping them. They just want them to stop. This imagery is regrettably a significant feature of far too many custody disputes. I cannot agree more: the bombs must stop falling!

[89] Mr. To recommended that the child remain with Darleen and Carmen. He also recommended that Mikayla's contact with her father and his spouse be gradually increased. That increase is not a function of time. It is to be measured by gains made by the parties.

[90] According to Mr. To, the two households need to be similarly structured so that Mikayla is provided with a consistent and comfortable environment in each. That does not mean that the parties must parent Mikayla in an identical manner. It does mean that certain basic rules of discipline, safety and routine are similar.

[91] I accept much of Mr. To's analysis and recommendations. However, I do not feel that a court can or should make orders that regulate the day-to-day functioning in a custodial or access parent's home other than on significant issues that impact on a child's health, safety and welfare. These issues include situations where:

(a) Substance abuse is an issue;

(b) Basic safety requirements are not being adhered to;

(c) Adult conflict seriously impacts on a child's emotional wellbeing.

[92] In this case, I find that the issues relayed in para. 91 (a) (b) and (c) are present and need to be addressed in my Order.

The Law and Analysis

[93] The focus of a custody dispute is on the best interests of the child; not the interests, rights and entitlements of the parents.

[94] I agree with the analysis of the law as detailed by McGee J. in M.R. v. A.L. and G.L., 2017 ONSC 85. Commencing at para. 34, Justice McGee stated:

[34] The Children's Law Reform Act is not limited in scope to biological parents. As provided for until December 8, 2016, section 21 (1) of the Act read that "[a] parent of a child or any other person^[4] may apply to a court for an order respecting custody of, or access to the child or determining any aspect of the incidents of custody of the child.

[35] The criteria to be considered when determining a claim under the Act is set out in section 24 (2) of the CLRA:

24 (2) The court shall consider all the child's needs and circumstances, including,

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

(i) each person entitled to or claiming custody of or access to the child,

(ii) other members of the child's family who reside with the child, and

(iii) persons involved in the child's care and upbringing;

(b) the child's views and preferences, if they can reasonably be ascertained;

(c) the length of time the child has lived in a stable home environment;

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(e) the plan proposed by each person applying for custody of or access to the child for the child's care and upbringing;

(f) the permanence and stability of the family unit with which it is proposed that the child will live;

(g) the ability of each person applying for custody of or access to the child to act as a parent; and

(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application.

[95] I find that the maternal grandmother, especially, has played the role as primary caregiver to Mikayla for many years. She is more than a grandparent; she is a psychological parent of this child. Even prior to March 2016, Mikayla knew her maternal grandparents' home to be her home. From birth, Mikayla was primarily nurtured by Darleen. From age two, when her parents separated, Mikayla resided at her maternal grandparents' home for significant periods. Mikayla has lived with her grandparents since March 2016.

[96] Mikayla's close friends and extended family are frequent visitors with Mikayla at her maternal grandparents' home. Many of her activities are in the area of her grandparents' home.

[97] The most significant feature of my decision is Mikayla's present needs. Firstly, she is a child who lost the person who she loved most in her life. That has been taken away from her. This represents a huge trauma in this young child's life. I agree with Mr. To that she needs to feel that she is safe and comfortable. That place is with her grandparents, Darleen and Carmen. If that is taken away from her now, it would represent an additional loss that she would have to overcome. She has not dealt with the first significant loss as of yet.

[98] A change of her custody at this time would not meet her present needs of comfort, security and consistency.

[99] Secondly but equally as important is the need for the conflict to end. Her father, Michael, and his spouse, Angela, need to support Mikayla living with Darleen and Carmen. That message must be sent to this child in a manner that is meaningful.

[100] Darleen and Carmen must support Mikayla visiting her father as frequently as possible. That message must be sent to the child in a manner that is meaningful.

[101] Michael and Angela need to engage in counselling in order to assist them in dealing with their feelings and reactions to events and the feelings and reactions of Mikayla given the complexity of her emotional state. They also need to learn to be able to communicate with Darleen and Carmen in a manner that focusses solely on the child.

[102] Darleen and Carmen need to engage in counselling in order to be able to deal with their feelings about Michael and Angela. They need to gain an understanding of how they can support maximizing the relationship of Mikayla and her father and his spouse Angela. Ancillary to this is gaining communication skills that will place them in a position where they are able to focus on the child's needs which includes this important relationship.

[103] The views and preferences of the child are also a significant factor that I do consider in this case. I find that Mikayla's views are reasonably ascertained and they are not unduly influenced by any individual. They are influenced by her difficult circumstances that feature loss followed by conflict, instead of loss followed by understanding.

[104] When considering children's views and preferences, I am mindful of the case law that directs courts to properly consider what children are saying about their life when it is appropriate. Benotto J stated in R.G. v. K.G., 2017 ONCA 108 at para. 67,

This appeal demonstrates the importance of the emerging movement to incorporate the voice of the child in all matters concerning minors. The degree to which the court will follow the wishes of the child will depend upon the age and level of maturity of the child and will be subject to the judge's discretion as she seeks to determine the child's best interests. When, as here, the child is months away from her eighteenth birthday, a continuation of litigation involving her indicates more about the parent's needs than the child's.

The Ancillary Issues

Alcohol

[105] I find that the concerns of the grandparents with respect to the issue of alcohol use by Michael has validity. Given Michael's history that included a diagnosis of alcohol abuse and binge drinking, his cavalier approach to complying with alcohol probation in a court order allows me to infer that he continues to have struggles with alcohol.

[106] There will be a continued prohibition of consumption of alcohol when the child is residing with Michael.

Safety

[107] I find that the maternal grandparents' reaction to safety concerns when Mikayla is with her father are excessive. However, their reactions are understandable given the poor communication that exists between the father and the grandparents. I need only cite one example to illustrate this point. Mikayla was playing on the trampoline at her father's home. She fell and hurt her toe. The father did not communicate this fact to the grandparents. The child's toe continued to hurt and was swollen on return to the grandparents. The child was brought to the doctor and it was determined that she had a hair line fracture of a bone in her toe. Sharing of information between the father and the grandparents could have reduced safety concerns and relegated this incident to what it should have been which is that a child had an accident while playing and needed to be monitored.

[108] The need to need to incorporate basic safety guidelines in both households should reduce the mistrust and concern over how the other caregiver is parenting in this regard.

Communication and Consultation

[109] I find that the father and grandparents have not demonstrated communication at a level that would allow for any court to have confidence that they can share in decision-making at this time. They need to utilize a communication tool such as "Our Family Wizard". This will allow for the opportunity to have child-centred communication and consultation with each other about issues that impact on the child.

[110] At this stage, the goal for an expansion of communication and consultation can only be driven by a wish that sufficient trust be developed in each household.

[111] Consultation and communication is a two-way street. Michael must also reach out to the maternal grandparents to communicate to them events that involve Mikayla that are significant.

[112] Michael cannot be a passive bystander awaiting information about his child from the grandparents about education, health and other major issues. An access parent must be proactively involved in his or her child's life. He has the ability to attend parent-teacher conferences and other school events. He has the ability to attend meetings with the child's health practitioners and counselors and seek information that is not otherwise protected by a claim of privilege.

[113] The Children's Law Reform Act, section 20(5) states:

Access

20(5) The entitlement to access to a child includes the right to visit with and be visited by the child and the same right as a parent to make inquiries and to be given information as to the health, education and welfare of the child. R.S.O. 1990, c. C.12, s. 20 (5); 2016, c. 23, s. 2 (4). (Emphasis added.)

[114] Section 20(5) is often ignored by parents, not understood and not followed by educators and health practitioners. Access parents should resort to this statutory right in order to proactively be involved in their child's life.

Joint or Sole Custody

[115] In making a determination of whether a joint custody order is appropriate, there must be evidence that the parties are able to communicate to the degree that joint custody in the sense of shared decision-making is realistic and workable in the child's best interest. The Ontario Court of Appeal in Kaplanis v. Kaplanis (2005), 2005 1625 (ON CA), 249 D.L.R (4th) 620, [2005] O.J. No. 275 (Ont. CA) stated at para. 11,

The fact that one parent professes an inability to communicate with the other parent does not, in and of itself, mean that a joint custody order cannot be considered. On the other hand, hoping that communication between the parties will improve once the litigation is over does not provide a sufficient basis for the making of an order of joint custody. There must be some evidence before the court that, despite their differences, the parents are able to communicate effectively with one another. No matter how detailed the custody order that is made, gaps will inevitably occur, unexpected situations arise, and the changing developmental needs of a child must be addressed on an ongoing basis.

[116] In my view, joint custody should be a goal that Darleen, Carmen, Michael and Angela should be working to achieve. However, at this stage, no one has demonstrated that they have the present ability to make a shared decision-making scheme work. All of the significant parenting figures must make gains that will place them in a position to share major decisions concerning this child.

[117] In Facchini v. Bourre, 2015 ONSC 763, Hambly J. stated at para. 43:

The arguments in favour of increased authority over the child by the access parent are closely related to those which support a presumption in favour of joint custody... They rest on the premise that the relationship of authority and obligation that existed between each of the parents and the child during the marriage should and can continue, despite the fact that the parents may no longer be willing or able to cooperate on its exercise. While joint custody may remain an ideal solution in proper cases, particularly when parents are willing and able to cooperate, such premises are often based on illusion rather than reality and may, in the words of Thorson J.A., amount to "a triumph of optimism over prudence" (Kruger v. Kruger, supra, at p. 681).

[118] In this case, to order joint custody at this stage would be a triumph of optimism over prudence.

Child Support

[119] After Jennifer died, Michael stopped paying any child support. He did not pay the maternal grandparents from May 2016 until the Interim Order of Justice Thompson dated April 20, 2017. He agreed in his testimony that he owes the grandparents 11 months of past child support. He now owes 12 months in past unpaid support and an ongoing base amount of support based on his income of $80,766.00 plus any section 7 claims.

Order

[120] As a result of the above analysis, I make the following Order:

1. Darleen Portelli and Carmen Portelli shall have sole custody of the child, Mikayla Jennifer Portelli Grady, born January 3, 2008.

2. Michael Steven Grady shall have access with Mikayla as follows:

a) Weekends

Alternating from 6 p.m. Fridays to 7 p.m. Sundays;

b) Weekdays

On the Wednesday following the Weekend Access, from after school until 8 p.m.

On the following Wednesday from after school until return to school Thursday morning.

3. The respondent shall adjust his work schedule in order to be able to provide child care for Mikayla on the Wednesday overnight access.

4. Canada Day, August Civic Holiday and Labour Day shall form part of the summer holiday schedule provided herein.

5. The respondent shall provide to the applicants his weekly work schedule and if there are any changes, he will notify the applicants immediately of same.

6. Commencing the summer of 2018, for two weeks in July and two weeks in August, not to run consecutively, the respondent shall have access with Mikayla so long as the respondent is not working and is available to care for Mikayla.

7. The respondent shall advise the applicants by April 1st of his chosen weeks for the upcoming summer holidays. In making plans, the respondent will take into account the child's camp and other scheduled activities i.e. bible camp scheduled yearly during the week preceding the Civic holiday.

8. The respondent shall not book summer vacation during the last week of summer holidays, in order for Mikayla to be at home with the applicants so they are able to get her ready to go back to school.

9. Commencing in 2018, in even numbered years from Easter Saturday at 7:00 p.m. until Easter Sunday at 7:00 p.m. and commencing in 2019, Easter access in odd numbered years from the Thursday evening prior to Good Friday at 4:00 p.m. until Easter Saturday at 7:00 p.m.

10. Christmas access in odd numbered years from December 24th at 4:00 p.m. until December 25 at 12:00 p.m. and in even numbered years from December 25th at 12:00 p.m. until December 26th at 6:00 p.m.

11. Father's Day from 9:00 a.m. until 7:00 p.m. and provided the applicants shall have Mikayla each Mother's Day from 9:00 a.m. until 7:00 p.m.

12. March Break to alternate each year between the parties. Mikayla will reside with the respondent on his respective year only if he or his partner, Angela Vernon, is available to care for Mikayla during that said week.

13. Thanksgiving access in even numbered years from Friday at 4:00 p.m. until Saturday at 7:00 p.m. and in odd numbered years from Saturday at 7:00 p.m. until Thanksgiving Monday at 7:00 p.m. and vice versa for the applicants.

14. The applicants shall have Mikayla on Jennifer Portelli's birthday, being October 19th.

15. The applicants shall have Mikayla on the anniversary of Jennifer Portelli's death, being April 26th.

16. All other holiday periods to be shared equally between the parties.

17. The specific access provisions in paragraphs 6 to 16 shall override the regular access provisions in paragraph 2 (a) and (b).

18. If either the applicants or respondent plan a vacation outside the Province of Ontario with Mikayla, that party will give the other a detailed itinerary at least 30 days before the beginning of the vacation, including the address and telephone numbers and details as to how to contact Mikayla during the trip. If either party plans a vacation within the Province of Ontario with the child, that parent will give the other 48 hours' notice of the planned vacation, including the address and telephone numbers and details as to how to contact the child during the trip.

19. The applicants shall advise the respondent regarding any major decisions for the child, inclusive of decisions regarding health, education, religion, extracurricular activities and general welfare of Mikayla.

20. Neither party nor the respondent's partner or families are to make disparaging remarks about the other party or families within earshot of Mikayla.

21. The respondent shall refrain from consumption of alcohol for twenty-four (24) hours prior to access with Mikayla and throughout the period in which he has access.

22. The parties shall communicate with one another through the App, Our Family Wizard. The purpose of this is to allow the parties to discuss the child's general well-being, bedtime routine, diet, health and activities. The respondent and applicants will only communicate with each other and not through Mikayla.

23. In the event of an emergency, whichever of the parties has the child in their/his care are to make contact with the other party as soon as possible.

24. Both parties shall allow the child reasonable but regular contact via telephone or other electronic device with the other party.

25. Neither party shall discuss adult issues with or in front of the child.

26. The respondent shall maintain Mikayla as a beneficiary on any extended health benefits he may have available to him through his employment.

27. The respondent shall name the applicants as beneficiaries in trust for the child, Mikayla, on any life insurance that he has through his employment or privately.

28. The respondent shall pay to the applicants, retroactive child support for Mikayla, from May 1, 2016 to September 30, 2017 in the amount of $7,290.00, which retroactive child support is calculated as follows:

Respondent's 2016 Income = $80,677

Monthly child support of $729.00 x 16 months (May 1, 2016 to September 30, 2017) $11,644.00

Credit of child support payments of $729.00 x 6 months ($4,368.00)

Retroactive child support $ 7,290.00

29. Starting October 1, 2017, and monthly thereafter, based on the respondent's income of $80,677.00 per year, the respondent will pay to the applicants child support for Mikayla in the amount of $729.00 pursuant to the Child Support Guidelines.

30. The respondent shall provide yearly disclosure of his income by February 28th each year and pay basic child support to the applicants based on his income for the prior year. Increased or decreased child support shall be retroactive to January 1st of the current year.

Costs

[121] If counsel can't agree on costs, they may arrange with the trial co-ordinator for a date and time for submissions of those costs to be heard orally. A summary of the costs to be submitted 1 week in advance of that date and to be no longer than 5 pages in length.

R. J. Harper, SCJ

Released: December 7, 2017