M.R. v. A.L. and G.L., 2017 ONSC 85

CITATION: M.R. v. A.L. and G.L., 2017 ONSC 85

NEWMARKET COURT FILE NO.: FC-08-29481-02

DATE: 20170104

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

M.R.

Applicant

– and –

A.L. and G.L.

Respondents

Applicant – Self-represented

A.E. Tonello, Counsel for the Respondents

S. Codas, Counsel for the OCL

HEARD: November 21, 22, 23, 25, 28, 29, 30, 2016

McGEE J.

Reasons for decision

Decision

[1] The parties to this Motion to Change are an applicant mother and respondent paternal grandparents. At issue is the custody and parenting schedule of a 13 year old identified as “G.” (for girl.) Her father is deceased. The parties agree that a 2009 final Order incorporating Minutes of Settlement is no longer working. It updated a parenting schedule within an earlier final order, and continued the parties’ joint custody. It also provided that G. continue to attend a private school hereinafter referenced as ‘the school.” Conflict over school, faith instruction and extracurricular activities has been significant. For very different reasons, each party now seeks an order for sole custody and a changed parenting schedule.

[2] I award the paternal grandparents sole custody, vary the parenting schedule and make other incidental orders.

Overview

[3] G. was born in 2003. She lost her father to a tragic accident in 2006 when she was two and a half years old. The relationship between her parents had been at best, unsteady. It is fair to speculate that G.’s childhood would have been marked by some level of parental conflict, even if he had survived.

[4] After her father’s death, the paternal grandparents stepped in to provide for G. in the place of their oldest son. Within a very short time, the mother – father tensions transitioned into a series of mother – grandparent clashes, each one being resolved by every increasing generosity on the part of the grandparents.

[5] Over the years, the respondent grandparents have volunteered an astonishing array of benefits for the mother: unfettered possession of a condominium and a vehicle for her use in caring for G., private school education for G, monies for the mother’s tuition and licencing fees; and the payment of many other expenses on her behalf, from dental fees, to legal fees to a $20 doctor’s fee for a school note.

[6] The grandparents are recent immigrants to this country, of the stuff that legends are made. Without benefit of capital or formal education, they have built a financially successful business that is a cornerstone of their community. Now in their seventies, they each continue to be a force within that business, their church and the community. They aspire to provide the best education, extracurriculars and opportunities for each of their five grandchildren. No one is to be left behind.

[7] The grandparents’ generosity has provided the mother with a level of stability not previously known to her. Over time, she has been able to leave the worst of her past behind. But she continues to struggle. Her relationships with others are limited and often marked by conflict. Her last intimate partner relationship ended in domestic conflict. She has been unable to sustain employment. Money provided to her, for her education has been diverted. She has grandiose visions of a future in which she heads an in-person, corporate franchised dating service; but in the last two years she has sustained her household on child tax credits and a widow’s pension – much of which is expensed on alcohol and tobacco.

[8] Neither has the grandparents’ generosity bettered the mother’s view of them, or their importance to G. The mother has “allowed” them only the weekly times that were provided for in the final Order, and rarely more. She has pursued litigation to remove G. from her school and actively undercut the grandparents’ parenting. She wishes to explore additional financial support, including transfer of title of the condominium to G.

[9] This second Motion to Change is part of a litigation continuum that has carried on since G. was three years old. Most recently, the mother and the paternal grandparents executed lengthy Minutes of Settlement in December 2008 that continued a 2006 Order for joint custody. The Minutes updated G.’s residential schedule, provided for travel consents and included terms that the grandparents would continue to provide financial assistance to the mother. The grandparents waived the considerable outstanding costs awarded to them in the prior litigation.

[10] On January 28, 2009 the 2008 Minutes were incorporated into a final Order that included additional terms. Seven months later, more terms were added; the whole of which became the final Order of June 8, 2009. That order continued the prior terms for joint custody and private school education.

[11] The 2009 final Order contained addition terms: the grandparents would not only pay G.’s school and extracurricular expenses, but also the utilities, taxes and maintenance costs of the condominium. They agreed to provide a new vehicle to the mother every few years, so long as their granddaughter required transportation. Their only refusal was to the mother’s demand that they pay for a housekeeper of her choosing.

[12] Within this proceeding, the grandparents originally asked only to expand and structure their time with G., and to prevent further disruption to G.’s education and extracurriculars. The mother countered with a claim for sole custody, with access to the grandparents at her discretion. She sought an order that G. be registered in a public school without the consent of the grandparents. She claimed dental expenses and child support from the grandparents in addition to the benefits already provided, as they “stood in the place of a parent.”

[13] The mother aggressively continued those financial claims well into trial. To the exclusion of issues affecting G., she opened her evidence and submissions seeking orders to better ascertain the extent of the respondents’ means.

[14] On consent, the final Order sought by the grandparents now includes sole custody. Both parties acknowledge that there is no prospect of co-parenting. Over time the grandparents have come to realize that their efforts to co-parent are causing harm to G. The mother denies that her actions have ever harmed G. and disavows “any conflict in her home.” She wishes to end joint custody so that she is at liberty to exercise her “motherly rights.”

[15] G. is ably represented in this proceeding by the Office of the Children’s Lawyer. It is their second involvement. It has been a critical assignment. The Office is commended for assigning the same social worker who was involved in 2014 and 2015. The continuity enables a reliable comparison of G.’s views and preferences over time, and within changing circumstances.

[16] The clinician has observed a marked deterioration in G. since she concluded her last involvement in February 2015. G. is exhausted from the relentless conflict. Now 13, she is “done:” 9 ½ on a scale of 10. Her teachers report that she is shutting down at school. She is not herself. She is at the point of giving up on herself and her future.

[17] G.’s only salvation is the barn where she part boards her horse. It is her thread of hope. It is where she feels alive. Her grandmother drives her there every Tuesday and Thursday after school, and on Saturdays. Her mother is prepared to support her time at the barn, provided that the grandparents continue to pay for it, arrange for transportation; and that it does not interfere with the mother having other plans. G. is worried that it might. The mother’s evidence at trial convinces the court that it will.

[18] For the reasons set out below, I order that G. shall be in the sole custody of her paternal grandparents, effective immediately. G. shall be primary resident with her grandparents. The parenting schedule with the mother shall be suspended for 30 days inclusive of the period of vacation now being enjoyed with the grandparents.

[19] The suspension period is to provide G. with a peaceful transition period, during which she can adjust to new routines at home and at school. It is hoped that G. can put herself to the formidable task of rescuing her school year, while she looks forward to a more certain and conflict free stage of life.

[20] During the suspension period, the grandparents are encouraged to arrange for confidential counselling for G. to help her evolve her relationship with an enmeshed mother, who will be crushed – and I expect, very surprised - by this decision. It will not be easy. The release of this decision may not end the conflict.

[21] At no time during the trial – even when pressed - could the mother acknowledge, or even speak of her daughter’s experience of this conflict. She is absolutely blind to it. She processes this litigation strictly as a contest of parenting status in which she has done nothing wrong. As the sole surviving parent, she is certain that she must be awarded sole custody. Over and over again she spoke against the paternal grandparents trying to take her child away, just because they have money.

[22] I accept the mother’s sincere belief that G. would be harmed by the loss of her only surviving parent. But G. is not losing her mother. An award of sole custody to the grandparents in no way diminishes the importance of the mother – daughter relationship. Rather, it removes the need for the parties to make decisions jointly. The grandparents will now make all parenting decisions, removing the primarily source of conflict, so caustic to G.’s childhood.

[23] Ordering G. into the primary care of her grandparents will place G. with caretakers who have empathy for G. and understand the devastating effects of chronic family conflict. I am satisfied that the grandparents will actively take steps to shield G. from the conflict, support her relationship with her mother and that they will provide G. with certainty and stability. G. will be able to return to being a child.

[24] Again, it will not be easy. I expect that the mother will continue this litigation through the courts, and indirectly through G. The mother stated repeatedly during her evidence that a court cannot chose a grandparent over a biological parent. It is this false certainty that has emboldened her to make ever increasing personal and financial demands on the grandparents, and to actively engage G. in this conflict. These behaviours will not be easily changed.

[25] But if all parties can accept this next chapter in G.’s life, it may well prove to be the foundation upon which a clever, independent, caring and creative young woman comes of age. At a minimum, the court hopes that this decision will provide G. with some measure of respite from the chronic conflict that has to date stolen much of her childhood.

Reasons

Material Change Found

[26] Section 29 of the Children’s Law Reform Act, R.S.O. 1990, C.12 states that,

[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.

[27] Joint custody is predicated on the assumption that parties can sufficiently collaborate to make best interests decisions on behalf of a child. The breakdown of joint custody can unto itself constitute a material change in circumstances.[^1]

[28] If the threshold requirement of a material change in circumstances is met, the judge must then enter into a consideration of the merits, and then make the order that best reflects the interests of the child.[^2]

[29] All parties to this Rule 15 Motion to Change agree that there has been a material change in circumstances since the 2009 final Order. The present award of joint custody is harming G. She is shutting down at school, and adopting negative coping strategies to survive the relentless tensions between her mother and grandparents.

[30] The present devolution of G.’s circumstances could not have been foreseen in 2009. Although G. has known from a very early age that her mother and grandparents’ relationship was conflictual; the present extent of its damaging consequences could not have been anticipated. Conflict now erupts on virtually every issue.

[31] I accept the submission of the OCL that G. is a child who is presently in crisis, and that the crisis is a direct result of the incessant conflict between the parties. She has been forced into that conflict as a decision-maker. She has been deliberately drawn into this litigation as an advocate for her mother. The court finds that there has been a material change in circumstances that has affected G., necessitating a fresh inquiry.

[32] That inquiry must consider all the relevant considerations relating to G.’s present needs and the ability of each party to satisfy them. The inquiry is to be based on the evidence of the new circumstances following the date of the final Order sought to be varied: June 8, 2009.

Fresh Inquiry and Applicable Law

[33] Each case turns on its own unique circumstances. The focus is on the best interests of the child, not the interests, rights and entitlements of the parents.[^3]

[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.[^5]

[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.

Evidence Regarding the Mother’s Claim for Custody

[36] The mother sees herself as a victim, who is “doing the best that she can.” She was often evasive and non-responsive, particularly when pressed on G.’s interests being different from her own. She was unable to acknowledge that G. might have a separate experience of an event, so her responses always circled back to those of her own. She was not child-focussed.

[37] Examples of being unable to acknowledge G.’s interests as separate from her own were frequent, and included:

(a) the appropriateness of eliciting, and advocating a 10 year olds’ choice of school;

(b) requiring G. to write a letter to her child’s counsel with views that reflected those of the mother;

(c) refusing to agree that forcing a child to make arrangements for visits with the other side exposes a child to conflict;

(d) being non-responsive when asked if she discussed the residential schedule with G;

(e) down-playing G.’s exposure to conflict;

(f) denying any personal role in escalating tension with the grandparents; and

(g) stating with certainty that there was no conflict in her home – even in the face of G.’s expressed views and preferences that she was experiencing the conflict as a 9½ on a scale of 10.

[38] The mother often took long pauses before answering. She frequently justified her responses by asserting that she was not a lawyer and was doing the best that she could. But the questions posed were rarely, if ever, legal in nature. Other times she was combative and oppositional.

[39] For example, the mother refused to accept the evidence of a principal regarding abusive emails to the school, citing that she was being faulted for just being a mother trying to defend her daughter. She denied involving G. in the choice of school – something the evidence demonstrated that she had been doing at least since 2014. On the day before the last scheduled meeting with the OCL: October 12, 2016, she had her daughter write a letter to the OCL which was to be shown to the Judge. When she was shown a copy of the letter in her cross-examination, she refused to acknowledge anything wrong in her actions. She countered that a mother should be able to ask a child how her day was at school.

[40] One example was particularly troubling. The grandparents provide a new model vehicle for the mother every three years. The mother’s usage had prematurely worn the tires. She demanded that new tires be installed at their expense. The grandparents made an atypical refusal, first suggesting that it was the mother’s responsibility, then suggesting that secondary market tires would suffice. The mother reacted dramatically. In the school parking lot, while G. was seated beside her, she confronted the grandmother and came just short of a physical altercation. Later she had G. speak to her grandparents and ask why “they were trying to kill them.” Even at trial, the mother proposed that the grandparents’ refusal to purchase new tires confirmed their lack of concern for G.

[41] This example best demonstrates the mother’s lack of insight and its connection to her escalating sense of entitlement. The conflict is now so pervasive that it has had a dampening effect on G.’s school, faith and extracurricular activities.

[42] Even so, the mother’s attitude to education is perplexing. School placement has been a lightning rod for this litigation. For reasons that are her own, the mother disdains G.’s enrollment in a private school. She sees no value in G. continuing in the school that she has attended since she was three years of age - despite a 2009 consent to the contrary. The mother undercuts the value and objectives of the school. She has indicated to G. that she does not need to complete schoolwork, that her school is too hard and that she should change to a public school.

[43] The mother has been twice denied an order (sought without notice) to change G.’s school: January 8, 2014 and July 2014. School placement was fully argued September 17, 2014 and the mother’s motion was dismissed with $1,800 of costs. During the summer of 2016, the case management justice ordered that an educational assessment be completed to better understand G.’s learning profile. The assessor testified at trial that the school curriculum is well within G.’s ability. She is a bright and talented girl. The mother does not oppose this view, yet she presses again for an order that G. be removed from the school.[^6]

[44] Meanwhile, the mother has no alternative educational plan. She tendered no evidence at trial that G.’s educational needs would be better served elsewhere, or that she would not have exactly the same challenges at a public school. As recently as May 2016, she was wholly unaware what public school would be open to G.’s registration. She displayed no knowledge of the local high schools, or how one ought to go about choosing one.

[45] The mother has behaved badly at G.’s school. She has sent abusive emails. In May of 2014 she attended the school unannounced, went to her daughter’s class and called out an 11 year old who she believed had been bullying G. The child was understandably frightened. The principal was dispatched and a protocol put in place. Since then, the school has spent a great deal of time managing the mother and attempting to win her support for G.’s education. It is apparent that they care very deeply for G. and are committed to her success.

[46] Only at the near conclusion of the trial was the mother prepared to agree that G. could finish her current school year at her present location. She was not prepared to commit further. She wants to keep her options open. She testified that G. can finish the current year at the school, but after June 2017, “we’ll see.”

[47] That sense of changeability is well understood by G. For the most part, she can manage change, and stay flexible enough to adjust to her mother’s humours. G. very much wants to please her mother. But school placement is not something that can be up in the air forever. Three years of uncertainty has taken its toll. G. has shut down at school, not certain whether she will continue to attend, or even whether she ought to. She is failing her year.

[48] And there is another area of her life in which constant changeability has proved destructive: the part boarding of her horse. It is a responsibility that G. takes seriously, and that anchors her faith in the world. Nothing matters to her as much as the barn. It is her safe place, a place in which she comes alive.

[49] Her mother supports G.’s riding, provided that it does not interfere with her plans. The court listened closely to the mother’s evidence. At no time did the mother demonstrate any understanding of what the horse means to G., or the importance of meeting her obligations at the barn. It was absolutely clear that when it came to the barn, the mother was also keeping her options open, based on her interests and her plans, not her daughter’s best interests.

[50] Those interests and plans are in flux. The mother could provide no details about her future but to say that it would depend on this decision. It is difficult to project her plans. The mother shows little inclination to independently provide for herself, or for G. Since June 2009, she has entered the workforce only twice: four months as a security guard and about 18 months as a mortgage agent. Neither were remunerative. She lists her only asset as the ring given to her by G.’s father. She has never paid down her 10 year old student debt.

[51] In 2015, her only income was government assistance in the amount of $520 per month. When it was pointed out in cross-examination that $520 would barely cover her stated tobacco and alcohol expenses, she stated that she received money from “friends.” No details were provided. No current loans were shown on her Financial Statement.

[52] The mother was pressed for details of her plan should she be granted sole custody. She was evasive in her answers. Depending on the court’s decision, she might move from the condominium, change G.’s school or reconsider her next steps. She offered no defined parenting schedule.

[53] In her closing submissions, she did propose certain evenings for the grandmother to continue to take G. to riding, provided that nothing else came up. She wanted special override provisions should her family visit from the East Coast. None were offered for paternal family events. She asked for a month of summer vacation and for the grandparents to pay for a summer camp of her choosing. She did not think that the grandparents should have any scheduled summer vacation.

Evidence Regarding the Grandparent’s Claim for Custody

[54] G. and her grandparents enjoy a stable, positive attachment in which G. is supported and given responsibilities in an age appropriate manner. They shield her from conflict, and exercise good judgement in her parenting. They require her to meet certain standards of conduct and accountability at home, in the community and at the barn. Their home is interconnected with that of an active, mutually supportive extended family.

[55] The peaceful and loving bond between G. and her grandparents was amply demonstrated. In a school published collection of stories and poems, G. penned a brief autobiography in which she described her grandparents as her “role models.” Together the grandparents spoke of their hope and belief that G. will someday graduate from university or college.

[56] The court saw no evidence that the grandparents have used their financial means to their own advantage, only to G.’s.

[57] The grandmother gave direct, spontaneous and responsive answers throughout her evidence. She demonstrated considerable knowledge of the day to day practicalities of G.’s life: her routines, responsibilities at school, special events, friends, personal interests and her passion for the barn. She was clear that G. should not be involved in adult decisions, such as school placement; and that she and her husband had never discussed the litigation with their granddaughter.

[58] At the same time, the grandmother acknowledged her and her husband’s role in the conflict. She testified that “G.’s life has been one big mess” and that “everything has been crazy in her life.” She spoke with great emotion of her fear that “G. has given up”, a concern consistent with that expressed by a school principal and the OCL clinical assist.

[59] Without exception, the grandmother has always interacted positively with the school, reinforced the school’s expectations and never involved G. in adult decision making. When needed, she arranged for a tutor to assist G. in her studies. It is only at the grandparents’ home that G. has her friends over.

[60] The grandmother moves with the times. She is empathetic and kind. She has learned a great deal over the years. At a profoundly deep level she has come to understand how the conflict has affected G., and the imperative of transporting her away from that despair.

[61] The grandmother has never missed a riding lesson, always makes sure that G. gets where she needs to be, and prioritizes G.’s activities over her own. On Tuesdays and Thursdays after school, the grandmother prepares and packs G.’s dinner, drives to the school, sits quietly amongst G. and her friends while G. eats and finishes homework, takes her to riding, and then drives her back to her mother’s residence. On Fridays she picks G. up from school, brings her home for an overnight, and takes her to the stables for the Saturday.

[62] The grandfather demonstrated a similar insight into G.’s circumstances. The deep feelings that he holds for all his grandchildren were palpable.

[63] A bit more traditional, he seeks to impart the generations old qualities of faith, love, perseverance, hard work, structure and reliability. He talked of the lessons of the garden, chores, and of a having a working faith to guide one in life.

[64] The grandfather worries that G. is not able to have a “normal life” and is constantly under pressure. He likened G.’s situation to that of being a parcel always being passed back and forth. He spoke of G. as an “innocent.”

[65] The grandfather’s recounting of G.’s early inability to show affection was of particular note. He spoke of his three years of effort to teach G. to say, “I love you.” He truly recognizes the toll that the conflict has taken on his oldest grandchild.

Findings and Order

[66] No single criteria set out in Section 24 of the Children’s Law Reform Act is determinative. The court must balance all of a child’s needs and circumstances within the unique circumstances of that child’s life. Although no party made reference to Chapman v Chapman and Chapman[^7] or Justice Brownstone’s very helpful direction within Barber v Langal and Hurst, [^8] I will take a moment to address the considerations unique to custody and access claims between a parent and grandparents.

[67] Generally speaking, courts should defer to parental autonomy unless there is already a significant and positive grandparent and grandchild relationship, and there are compelling reasons for its maintenance. When such compelling reasons are present, a parent ought not be permitted to arbitrarily limit or terminate the grandchild - grandparent relationship.

[68] This is not a claim for access. G. has enjoyed a stable and continuous residence with her grandparents since she was about three years old. There is a significant and positive relationship. The mother concedes that the grandparents stand in the place of a parent. Each of the grandparents are direct, involved and active caretakers. Granting sole decision making to the grandparents will dramatically lessen the conflict, stabilize G.’s school placement, and create predictability in her extracurricular activities. A transition to their primary care is clearly in her best interests.

[69] The evidence of the OCL clinical assist is that G. is being actively harmed by the present circumstances and desperately wants a change. G. knows how her mother feels about a change in custody and worries very much about her reaction. Very much. G. has never expressed any concerns with her grandparents’ reaction to a change in custody.

[70] The evidence suggests that a change in primary residence will be very difficult for the mother. For this reason, the court shall impose a short transition period during which G. will not be required to spend time with her mother. Thereafter, the regular schedule shall begin. The court does this to protect G. from her mother’s initial reactions to the release of this decision. As suggested in the overview, the grandparents ought to consider arranging for counselling for G. to assist her in managing a non-residential relationship with her mother, and any other issues that arise following the transition.

[71] Final Order to go as follows:

1. Paragraph 2 of the final Order of Justice Perkins dated June 8, 2009 is varied to give the grandparent respondents A.L. and G.L. custody of G. They shall be solely responsible for all health care, general welfare, educational and extracurricular decisions.

2. Effective immediately, G. shall be primarily resident with the respondent grandparents.

3. The applicant mother is to make available to the grandparents for pick up by January 8, 2017 all items necessary for G.’s return to school; and by January 15, 2017 all of G.’s personal belongings. G.’s personal belongs shall including her passport, health card and birth certificate: notarial copies of the two latter items to be provided to the mother.

4. The applicant mother’s consent to any renewal of G’s passport is dispensed.

5. The applicant mother’s consent to G. travelling outside of Canada for any period less than 30 days is dispensed.

6. Paragraph 12 of the June 8, 2009 final Order is terminated and replaced with the following parenting schedule:

Parenting Schedule

(a) Commencing Saturday January 28, 2017 and on every other (i.e. alternating) Saturday thereafter, the applicant mother shall pick up G. at the respondents’ residence at 6 p.m. and deliver her to school on the next school day.

(b) Commencing Monday January 30, 2017 and on every Monday thereafter, the applicant mother shall pick up G. from school at the end of classes and deliver her to school the next morning.

(c) Commencing Friday February 3, 2017 and on every other (i.e. alternating) Friday thereafter, the applicant mother shall pick up G. after school at the end of classes and deliver her to the grandparent’s home by 8:30 a.m. the next morning. Upon the mother failing to deliver G. by 8:30 a.m. on any Saturday, the Saturday return shall be cancelled and G. shall be returned by 8:30 p.m. Friday.

(d) The above schedule shall continue during the summer (non-school) months with the following adjustments:

(i) On alternating Saturdays the applicant mother shall pick up G. at the respondents’ residence at 6 p.m. and return her to their residence by 1:00 p.m. on Tuesday unless G. is enrolled in summer camp, in which case the mother will drop her off and pick her up at camp on the Monday, and then drop her off at camp on the Tuesday.

(ii) On alternating Fridays the applicant mother shall pick up G. at the respondent’s residence at 1:00 p.m. (or the end of the camp day, if she is in camp) and deliver her to the grandparent’s home by 8:30 a.m. the next morning. The prior provision for failing to deliver G. by 8:30 a.m. on any Saturday continues.

(iii) The mother shall have three weeks of holidays each summer, which may be consecutive. She is to advise the grandparents by email of her chosen weeks by March 1 of each year. If she fails to advise by March 1, then her choice of weeks is subject to the grandparent’s consent and need not be consecutive.

(e) G. shall be in her mother’s care on the following special days. In the event of a conflict between special days and other scheduling above, special days prevail except during summer holidays.

(f) G.’s birthday: starting in 2017, and every odd year thereafter, on the weekend of, or following her birthday, Saturday 6:00 p.m. until return to school Monday.

(g) Mother’s Day: if G. is not otherwise with the applicant on this weekend, G. will reside with her mother every Mother’s Day weekend from Saturday 6:00 p.m. until school Monday.

(h) Father’s Day: if G. is not otherwise with respondents on this weekend, G. will reside with respondents every Father’s Day weekend from Saturday 6:00 p.m. until school Monday.

(i) Family Day weekend: in even years, applicant picks up G. at respondents’ residence 6 p.m. Saturday and delivers her to school Tuesday morning; odd years same with respondents.

(j) Victoria Day weekend: in even years, applicant picks up G. at 6 p.m. Saturday and delivers her to school Tuesday morning; odd years same with respondents.

(k) School spring break/March break: if G. has a two-week break, she will reside with applicant in first week in odd years, starting at school closing on Friday, and with respondents second week starting at 4 p.m. Friday. In even years, the process will reverse. If G. has only one week, the parties shall alternate years, the applicant having even years.

(l) Easter weekend: G. will reside with respondents from end of school on the Thursday before Easter weekend until her return to school on the following Tuesday during odd years, even years with the applicant.

(m) Thanksgiving weekend: G. will reside with applicant on Thanksgiving even numbered years and with the respondents in odd-numbered years from time of her leaving school on Friday before Thanksgiving until her return to school on Tuesday.

(n) Christmas break: G. will reside with respondents in first half of Christmas break in odd numbered years and in the second half in renumbered years; the reverse will apply in the following year. The first half will commence on G.’s last day of school in December and terminate at 1 p.m. on the day that is the half-way point of the Christmas break; the latter point marks the start of the second half which will terminate on the morning of G.’s scheduled return to school in January.

(o) Christmas Eve, Christmas morning: regardless of above Christmas break schedule, G. will reside with respondents on Christmas eve/morning until Christmas day at 1 p.m., and with applicant from 1 p.m. on Christmas day until 9 p.m. Boxing Day in odd numbered years, reverse in even numbered years.

7. Counsel for the respondent is to issue and enter this order, which may contain the full names of the parties and G’s birthdate – which have been removed from these reasons to protect G’s privacy, but may be necessary to enforce its terms. The applicant’s consent to the form and content of the order is dispensed.

Costs

[72] Each of the parties shall serve and file their costs submissions, (which shall not exceed three pages in length, excluding Offers to Settle and Bill of Costs). The respondents’ submissions shall be served and filed on or before January 20, 2017, the applicant’s responding submissions by February 10, 2017 and reply submissions (if any) by February 28, 2017. All costs submissions shall be filed in the Continuing Record.

Justice H. McGee

Date: January 4, 2017

[^1]: Wreggitt v. Belanger, 2001 20827 (ON CA). [^2]: Gordon v. Goertz, 1996 191 (SCC), [1996] 2 S.C.R. 27. [^3]: Kaplanis v. Kaplanis, 2005 1625 (ON CA). [^4]: Emphasis added. It is well settled that grandparents are included within the scope of “any other person:” Beaumont v. Fransden, 1995 Carswell 4307 (Ont. Prov. Div.), Stead v. Puritch, 2006 ONCJ 410, Osbaldeston v. Osbaldeston, 2007 ONCJ 82 and Tipping v. McNutt, 2009 ONCJ 475. Counsel for the grandparents brought to the court’s attention two cases in which a court gave sole custody to grandparents over a birth mother: S.R and D.R. v. R.J. and T.R., 2003 2226 (ONSC) and Brown v. Brown, upheld on appeal 2007 ONCA 125. [^5]: Fun fact: A week and a day after this trial concluded, The Children’s Law Reform Amendment Act (Recognizing Relationships with Grand-parents), 2016, S.O. 2016, c. 28 (formerly Bill 34) came into force. Two changes of interest: subsection 21(1) of the Act is amended by adding the words “including a grandparent” after “any other person;” and subclause 24(2) (a) (i) of the Act is amended by adding “including a parent or grandparent” after “each person”. These changes further articulate the class of persons who may seek an order for custody or access; but do not extend, or give them any special standing. The best interests test in 24(2) prevails. [^6]: In a closing statement the assessor went a step further and suggested that G. might get lost in a larger school and would not have the same level of educational and personal support. [^7]: 2001 24015 (ON CA), 2001 CarswellOnt 537 (ONCA) [^8]: 2009 ONCJ 631