BRACEBRIDGE COURT FILE NO.: FC-12-231-00
DATE: 20190822
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
NN
Applicant
– and –
DL
Respondent
Self-represented
Self-represented
HEARD: May 13, 14, 15, 16, 17, 21, 22, 23, 24, 27, 28, 29, 2019
REASONS FOR DECISION
WILDMAN J.:
OVERVIEW
[1] Ms. N and Mr. L[^1] are former drug addicts: Mr. L’s word is “junkies”. They both admit they have a horrible history of drug abuse. Ms. N’s first four children were made Crown wards. Mr. L was not part of his own son’s early life, as Mr. L was a member of a well-known criminal motorcycle gang. Later, the motorcycle club “released” him to work for a prominent “gangster”, who supplied drugs to criminal gangs for distribution throughout Ontario. Both parties have criminal records and have spent time in jail. Mr. L’s record includes crimes of violence and weapons charges. Ms. N’s record includes a charge of possession of oxycontin for the purpose of trafficking. Suffice to say, the stories of their lives, both before and after they got together, are gripping and horrific.
[2] Ms. N and Mr. L started living together in February 2008 and married on June 4, 2011. They were both addicted to prescription painkillers and frequently did street drugs and abused alcohol. Dangerous drugs were involved. One or both of them has mentioned using cocaine, crack, heroin, morphine, and oxycontin.
[3] In early 2009, Ms. N became pregnant with G. Mr. L continued to use drugs throughout Ms. N’s pregnancy. Although Ms. N was less clear with the court about her drug use during pregnancy, Mr. L says she continued to do drugs with him, including on the day of G’s birth. G was born with oxycontin in her system.
[4] All of this is the bad news. The good news is that both parties have made significant strides to crawl out of the black holes that were their former lives. It appears that Mr. L’s last criminal conviction was in August of 2007 and Ms. N’s was in April of 2009.
[5] The Children’s Aid Society (“CAS”), who was previously involved with this family, placed G with her paternal grandparents when she was born. However, the CAS worked with Ms. N and Mr. L, and eventually returned G to her parents’ care and closed their file. The CAS has continued to monitor Ms. N and Mr. L throughout this litigation and they are still satisfied that there are no protection concerns with either parent caring for G at this time.
[6] This is a remarkable result. Overcoming their addictions and changing their lifestyles cannot have been easy. Both parents should be extremely proud of themselves and the progress they have made.
[7] Mr. L credits the change in his life to God. His conversion to a life of faith began with a series of “miracles”[^2] that occurred the day that G was born: an intervention that “saved” the family en route to the hospital; events that happened in the delivery room; “signs” that happened afterward, which stopped Mr. L from using drugs that night; and a subsequent, inexplicable vanishing of his need for drugs, with no withdrawal symptoms or cravings whatsoever.
[8] Mr. L told the court about the day of G’s birth in vivid detail. G almost died. Although the parties differ about the amount of time during which she stopped breathing, they both agree it was prolonged and frightening. Mr. L says G’s body turned black. He says that one doctor in the delivery room discarded his gloves in the waste can and left, as he felt there was nothing more that could be done to save G. The remaining doctor told them, even if G survived, she would have suffered brain damage and would be disabled.
[9] Mr. L tried to shield Ms. N from seeing G’s body. He began openly praying to God and, to this day, he remembers the exact words that he uttered in that prayer. He pledged that if G lived, he would devote his life to God.
[10] Almost immediately, G began breathing and her body turned pink. Not only has she lived, she is now 9 years old and has no disabilities.
[11] Mr. L says that God saved two people that night: G and him. Following the miracle in the delivery room, Mr. L left G and Ms. N at the hospital and drove back to the motel where he and Ms. N were living. As he was driving home, he says his first thought was that he could “get a rock” and he wouldn’t have to share the crack with Ms. N. Then he realized what he was thinking and began to cry, saying to God that His miracle had been wasted on him because he was a junkie. Despite his promise, he couldn’t even remain clean for a few hours.
[12] Mr. L was in tears. He had been raised in a Christian home and his parents are good, religious people. He had made a promise to God. In an attempt to distract himself, he turned on the car radio station. Immediately, the song “Amazing Grace” began playing: the most beautiful version that he had ever heard.
[13] Mr. L took that as a sign that Jesus was with him. When he got back to his motel room, his body began “screaming” for crack. In a powerful and defining moment, he took his crack pipe, threw it away and got down on his knees to pray. He fell into a deep and wonderful sleep and, when he awoke the next morning, he had no cravings for drugs. He says this is “impossible”, as breaking a crack addiction is incredibly difficult. It is unheard of for a crack addict to experience no withdrawal symptoms or cravings when he stops taking the drug. Mr. L credits this miracle to God’s intervention.
[14] Since then, Mr. L has tried to live a clean lifestyle. He suffers from chronic pain, as a result of his years of street fighting for the motorcycle gang and a subsequent workplace accident but, with a doctor’s assistance, he has weaned himself off morphine. He now has a prescription for medical marijuana, which he buys online. Mr. L uses marijuana daily to address his chronic pain. He smokes one “joint” after G goes to bed and wakes up to smoke another at about 3:30 a.m. He says he needs to wait four hours after smoking to drive a car, so this allows him to get G to school in the morning and gets him enough sleep that he can get through a workday. He occasionally smokes a joint during the day at work to relieve his pain but that is “about to stop” as his employer, who is his brother, says that the “government is cracking down on safety issues”.
[15] Ms. N also says that she is no longer involved with any illegal or non-prescription drugs. She has been on methadone for several years and attends at the Ontario Addiction Treatment Centre (“OATC”) for weekly drug testing and monthly appointments with a counsellor. She has produced a series of random drug screens covering almost all of the weeks in the two years since separation. With the exception of one positive result for morphine on July 30, 2017, the screens all show positives for methadone (“EDDP”)[^3] but are clear for all other drugs. The urine screens are not testing for alcohol.
[16] Ms. N admits that she is an alcoholic. I was impressed with her honesty. She admits that she has had problems with alcohol in the past and says, “Once an alcoholic, always an alcoholic”. However, she denies that she ever drinks to excess now, particularly when G is in her care. In part due to frequent calls by Mr. L, the CAS has often dropped by Ms. N’s home for announced and unannounced visits. Although the worker had sometimes observed that Ms. N has consumed some alcohol, the worker has never been concerned or found her to be inebriated.
[17] Mr. L has also called the police frequently to attend at Ms. N’s home and she has never been found to be “even close to intoxicated”.
[18] Mr. L also drinks occasionally, although he says he never drinks when G is with him. However, Mr. L is convinced that Ms. N is still consuming drugs other than methadone, and that she cannot be trusted to care for G, as she may be high or inebriated. He feels she may, advertently or inadvertently, allow G access to drugs or alcohol. He also believes Ms. L drives a motor vehicle with G in the car, despite not being licensed to do so. He is relentless in trying to “prove” all this and has called the CAS so many times that they have, apparently, sent him a “cease and desist” letter. Mr. L has also called the police so often that they have told him that if he calls with another groundless complaint about Ms. N, he is going to be charged with criminal harassment.
[19] The parties separated around June 10, 2017. Although they both lived in MacTier for a short time after the separation, Mr. L remained in the family home in MacTier and Ms. N now lives in Orrville, which is approximately 40 minutes away by car. Pursuant to a June 29, 2017 order of Wood J., G has been dividing her time between her parents’ homes for the last two years. She lives with her mother from Sunday night to Thursday morning, and with her father from Thursday after school to Sunday at 5:30 p.m. This means that, four days a week, G has been driving 40 minutes each way to get to school in MacTier from her mother’s home. As Ms. N doesn’t drive, she was originally paying someone to drive G. However, Mr. L was uncomfortable with the person providing the transportation, so Mr. L’s parents, who are in their eighties, have been doing the driving for much of the past year.
[20] Where do we go from here? What is the parenting plan that will be most likely to keep G safe and stable and maximize her chances for future success?
THE ISSUES TO BE DECIDED
[21] The parties can’t agree about a residential schedule for G.
[22] Mr. L originally wanted me to implement the recommendations of the Office of the Children’s Lawyer (“OCL”). Ms. Ambrozic, the Social Worker assigned to conduct the OCL clinical investigation in this case, recommended that G live with Mr. L and that he be granted sole custody. She also recommended that Ms. N’s time with G be reduced, so that G would be with her mother for no more than two consecutive days at a time. Ms. Ambrozic recommended that G be with her mother from Friday after school to Sunday evening on the second weekend of each month, and from Wednesday after school until Friday morning in the remaining weeks of the month.
[23] However, by the end of the trial, Mr. L was taking the position that Ms. N should only be with G one weekend a month, and only after she and her partner, “CS”, had provided clear drug and alcohol tests, from a facility other than the Ontario Addiction Treatment Centre, as he believed Ms. N was somehow cheating their testing system.
[24] Ms. N would like G to live with her and attend a new school, Humphrey Public School, as G told the OCL that attending Humphrey was her “#1 wish”. G also told the OCL that she did not want to change the current living arrangement, as she would like to continue the four-day/three-day split between her parents’ homes each week.
[25] The parties also can’t agree about how decisions about G should be made. As the “sole custody parent”, Mr. L wants to make all the decisions, after giving Ms. N an opportunity for input. Ms. N believes that they can make decisions together.
[26] If Ms. N is awarded custody, she is asking for child support from Mr. L. Although no support has been paid since separation, she is not asking for any support prior to the release of my decision. If Mr. L is awarded custody, he is not asking for child support, as Ms. N has insufficient income to pay him anything.
THE LAW
[27] Neither party has claimed a divorce[^4]. They have both made their claims under the Children’s Law Reform Act (“CLRA”)[^5]. Any decision about custody and access must be made solely on the basis of “best interests of the child”. In other words, the focus of my decision needs to be on what is best for G, not what is best for, or fair to, her parents.
[28] The CLRA gives some direction to the court about how to approach decisions related to the “best interests of a child”.
Merits of application for custody or access
24 (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4). 2006, c. 1, s. 3 (1).
Best interests of child
(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, including a parent or grandparent, entitled to or claiming custody of or access to the child,
(ii) other members of the child’s family who reside with the child, and
(iii) persons involved in the child’s care and upbringing;
(b) the child’s views and preferences, if they can reasonably be ascertained;
(c) the length of time the child has lived in a stable home environment;
(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;
(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;
(f) the permanence and stability of the family unit with which it is proposed that the child will live;
(g) the ability of each person applying for custody of or access to the child to act as a parent; and
(h) any familial relationship between the child and each person who is a party to the application. 2006, c. 1, s. 3 (1); 2009, c. 11, s. 10; 2016, c. 23, s. 7 (1, 2); 2016, c. 28, s. 2.
Past conduct
(3) A person’s past conduct shall be considered only,
(a) in accordance with subsection (4); or
(b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent. 2006, c. 1, s. 3 (1); 2016, c. 23, s. 7 (2).
Violence and abuse
(4) In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,
(a) his or her spouse;
(b) a parent of the child to whom the application relates;
(c) a member of the person’s household; or
(d) any child. 2006, c. 1, s. 3 (1); 2016, c. 23, s. 7 (2, 3).
DISCUSSION
ROADMAP
[29] The discussion about a parenting plan to meet G’s best interests will be divided into four parts: Schooling; Weekend and Holiday Time; Parenting Responsibilities; and The Label.
[30] I have considered all the factors outlined in s. 24 of the CLRA. While I might normally go through each of the factors and review the evidence related to each parent’s plan within that framework, this case requires a different approach because the answer to where G should be going to school is so clear. The decision about schooling will dictate much of the parenting plan, so it is important to tackle that question first.
[31] Following the discussion about schooling, I will consider the schedule for G’s weekend and holiday time. I will discuss the parenting concerns regarding each parent and whether there should be any restrictions or conditions on either of them to address those concerns.
[32] I will then discuss the decision-making responsibilities of the parents, to try to determine how best to balance each parent’s wish to be involved in G’s upbringing with creating a workable parenting plan to minimize conflict and ensure that G’s needs are adequately met.
[33] Finally, I will assign a “label” to the parenting plan that I have created. As I have explained to the parents, the word “custody” is a loaded word, which may mean different things to different people. It is far more important to define the schedule and responsibilities than it is to argue about whether the label “sole custody”, “custody” or “joint custody” is appropriate.
PART ONE – SCHOOLING
Overview
[34] G will be entering Grade 5 in September 2019. Her father thinks she should stay in her current school (MacTier Public School – “MacTier PS”), which she has attended since she began school. Her mother proposes that G get a “fresh start” at the school in Ms. N’s home’s catchment area (Humphrey Public School – “Humphrey PS”).
[35] Based on the evidence that I heard, I am satisfied that the only realistic option is for G to continue to attend MacTier PS. I am also satisfied that, if G is attending MacTier PS, it is not reasonable for her to be commuting 40 minutes or more each way from her mother’s home in Orrville, when her father’s home is a short walk from the school, particularly as her mother does not have a driver’s licence and relies on others for transportation.
[36] Even if G were to move to Humphrey PS, she would still have a 35-minute bus ride each way. While many rural students are bussed to school, the commuting time is particularly unbeneficial to G, who has been identified as “chronically absent” by her school due to the number of times she is late or absent from school. It is in G’s best interests that her home base is at her father’s home during the school week to minimize the opportunities for lateness and absences.
[37] In addition to minimizing her commute to school, there are several other factors that favour G continuing at MacTier PS. The school is familiar with some of her special challenges and already has a counsellor working with G, both individually and in her peer group, to address some of these issues. Mr. L seems to be more available and responsive to the school and his parents are nearby to assist as backup caregivers. Finally, Ms. N was in imminent risk of losing her housing during this trial, so it is unclear where she will be living and how that would affect her plan for G’s schooling.
[38] Mr. L has lived in the same home in MacTier for the last several years. It is where G was living when her parents separated. The home is owned by Mr. L’s parents and they confirm that he has never missed paying the mortgage or other housing costs that he is required to cover. Mr. L has no plans to move in the near future, as he works for his brother’s company in MacTier. This means that G is likely to be able to attend the same school up to Grade 8, if she is living with Mr. L.
[39] Mr. L’s plan offers G more stability and certainty moving forward to try to assist her to thrive in her educational endeavours.
Discussion
Location, Transportation and Backup Care
[40] As previously mentioned, Ms. N’s home in Orrville is about a 40-minute drive from G’s school in MacTier. Because Ms. N’s home is outside the school district, there is no bus available to get G to MacTier PS. Ms. N does not have a valid driver’s licence, so she has been paying people to drive G back and forth to school. Ms. N says she has paid $6,500 for G’s transportation. This is an inordinately large expense for Ms. N to bear on her limited income, particularly when there is the option for G to stay in MacTier during the school week, so that there will be no transportation costs.
[41] The issue of who was driving G to school has created a lot of conflict between her parents. In particular, one of the drivers was an older gentleman (“Mr. D”). Mr. D is a long-time family friend of Ms. N’s and one of his great-grandchildren was a friend of G’s. Mr. D has no criminal history and has raised, or helped to raise, 16 children, grandchildren and great-grandchildren (many of whom have been placed with him and his wife through CAS).
[42] At some point in the past, Mr. L took offence to something that Mr. D supposedly said about a teenage girl and began publicly accusing Mr. D of being a “pedophile”, physically threatening him, and calling the police and CAS. He confronted Mr. D one day at the school, in G’s presence. On at least one occasion, due to Mr. L’s accusations, Mr. L’s father (“ML”) and Ms. N’s stepmother (“CN”) showed up at Ms. N’s home and physically blocked the driveway, so that Mr. D could not enter when he arrived to pick up G for school. Police and the CAS were called. G was exposed to the whole unfortunate and stressful incident, with Ms. N ultimately needing to escort G to Mr. D’s vehicle on the road and physically help her get in, over the objections of ML and CN.
[43] None of this was Ms. N’s fault. I find that there were no reasonable grounds to suggest that Mr. D posed any safety risk to G and Ms. N did nothing wrong in arranging for him to drive G to school.
[44] This is just one example of Mr. L’s inexcusable behaviour and lack of control. I accept Mr. D’s shock and denial about the lewd comment that Mr. L suggested Mr. D made. However, even if he had said what was alleged, that does not make him a “pedophile”. I will deal with Mr. L’s similar accusations against other individuals later but, suffice to say, it does not speak well of Mr. L as an individual or as a parent.
[45] However, the bottom line is that Ms. N does not have a way to get G to school in MacTier without incurring considerable expense and stress.
[46] Fortunately, after the problems Mr. L created relating to Mr. D, Mr. L’s parents stepped in and have assisted Ms. N by coming to pick G up for school in the mornings. As will be discussed later below, both Ms. N and Mr. L agree that Mr. L’s parents are wonderful people, and this is one example of how committed they are to their granddaughter’s well-being. They make the roundtrip drive from MacTier to Orrville, every morning from Monday to Thursday to get G to school. Monday to Wednesday, Mr. L returns G to Ms. N after school, and G stays with her father from Thursday after school until Sunday.
[47] However, this is not a viable long-term solution. Mr. L’s parents are in their eighties and are, understandably, hoping that they will not be required to do this driving any longer.
[48] The school in MacTier is close to Mr. L’s home. If G lives with her father during the school week, she will easily be able to get back and forth to school.
[49] Mr. L works close by and can get to the school quickly, if any issue arises that requires a parent’s attention or attendance.
[50] Mr. L’s parents also live near the school and are available to pick G up, if she is ill or if Mr. L is unavailable or working. When G is in her father’s care, G and Mr. L have family dinner with his parents on Thursday nights. G has a wonderful relationship with her grandparents and the OCL confirmed that G is very happy and well cared for when she is with them. It is in G’s best interests to spend regular time with her grandparents, as they are a much needed source of stability and comfort to her.
[51] A move to Humphrey PS would still entail a 35-minute bus trip each way. Ms. N does not have a driver’s licence and her partner is not available during the week to assist her, if G needed to be picked up from school for some reason. Ms. N indicates that she is either working or planning to return to work. There is no “backup” caregiver that can be available in the same way that Mr. L and his parents are available in MacTier.
[52] The logistics and geographical considerations favour G having her primary residence in MacTier during the school week rather than having her commute to school from her mother’s home.
Uncertainty about Ms. N’s Housing
[53] Since shortly after separation, Ms. N has lived with a gentleman (“CS”) at a property in Orrville. Before he became involved with Ms. N, CS purchased this home from Ms. N’s father (“BN”). The purchase was funded by BN taking a mortgage back on the property. The mortgage is now held by BN and his wife, CN.
[54] At the time of trial, CS had missed several mortgage payments but was trying to bring the mortgage up-to-date. However, on April 25, 2019, BN and CN had obtained a judgment against CS for possession of the home. They also served CS, Ms. N, their “tenant” and G with Eviction Notices to vacate the property. When CN testified on May 28, 2019, she said they were just waiting for the Sheriff to physically remove everyone from the property, as they were not “going willingly”.
[55] Ms. N told the court that she and CS were desperately trying to come up with the money to pay out her father and CN’s mortgage. She provided proof that she and CS were working with a mortgage broker and that an appraisal had been completed. Although Ms. N seemed confident that “it was all approved”, as of the last day of trial, no firm arrangements were in place.
[56] CN did indicate that “this would all go away”, if she and BN got their money, including costs. However, her other actions indicate that CN is clearly aligned with Mr. L. He says that she and her husband have paid his past legal fees. CN has shown up at Ms. N’s home and tried to stop Mr. D from driving G to school. She has called CS’s employer with a complaint that could have affected his job. Given CN’s apparent interest in having G live with Mr. L, I am uncertain whether she and BN were really willing to negotiate a resolution of their lawsuit that would permit Ms. N and CS to stay in the Orrville home. I am also unclear whether Ms. N and CS were able to obtain another mortgage and pay CN and BN out. As of the last day of the trial, Ms. N’s future living arrangements were completely up in the air.
[57] On the other hand, as mentioned, Mr. L’s housing is stable. He lives in a home in MacTier owned by his parents. Mr. L pays the mortgage and Mr. L’s father confirmed that Mr. L has not missed any payments. G has lived in this home for years, as this was Ms. N and Mr. L’s joint residence prior to the separation. MacTier PS is a short walk away, and both Mr. L’s parents and his brother live close by. Mr. L also works for his brother in MacTier.
[58] The uncertainty about Ms. N’s living arrangements and financial situation are further reasons to favour giving G the stability of a home base with her father during the school week.
Attendance
[59] I heard evidence from G’s school principal, Ms. Wheaton, including a review of G’s attendance records. They are concerning.
[60] In the 2015/16 and 2016/17 school years, Ms. N, Mr. L and G were still living together in the home in MacTier, which is located so close to the school. Mr. L was the primary breadwinner for the family and Ms. N was the primary caregiver for G. Part of Ms. N’s responsibility was to get G to and from school.
[61] In 2015/16, G was absent from school 33 days and late 42 days. In 2016/17, G was absent 41 days and late another 41 days.
[62] Following the parties’ separation in June of 2017, G was attending school from her mother’s home in Orrville, Monday through Thursday, and from her father’s home on Friday. In the 2017/18 school year, G was absent 17.5 days and late 46 days. Of these, two absences and six lates were on Fridays, when she would have been going to school from her father’s home.
[63] In the 2018/2019 school year, G was absent 25 times and late 19. She was also “granted” an additional 15 days of excused absences, probably due to weather or appointments. Of the total unexcused absences, 3.5 absences and two lates were on Fridays.
[64] None of these figures includes days where buses were cancelled for inclement weather. The school is aware of the distance that G is travelling, and grants her a day off from school on any day for which the buses were not running, so that the absence does not count negatively towards her attendance record.
[65] Ms. Wheaton advised that any student who is absent more than 18 days in a school year is considered to have “chronic absence”. This means G has been “chronically absent” every year other than last year, when she was only one-half day short of meeting the definition.
[66] Ms. Wheaton says that G’s attendance record has had an impact on her academic performance, as well as her social relationships. Although Ms. N suggested that G’s lateness is not really an issue that would affect her school performance, Ms. Wheaton disagreed, noting that, when G arrives late, she misses important school announcements and the ability to settle in and prepare to start the school day with the rest of her class. She also misses quite a bit of the language and math “foundational” work that is done at the beginning of the day, during which the students build the basic skills to approach their assignments. Without that foundation, G is struggling and has often been unable to participate in testing to assess how well she is mastering the curriculum.
[67] Ms. Wheaton says the attendance and lateness issues have been brought up repeatedly with Ms. N. As noted, although there was some improvement in 2017/18, she was still only one-half day short of being “chronically” absent and she had an alarming number of days where she was late. In 2018/19, G’s attendance declined again, and she still had a significant number of “lates”. While some of these absences and lates were on Mr. L’s days, the overwhelming majority were during the time that Ms. N was responsible for getting G to school.
[68] It is in G’s best interests to try another arrangement, to see if her chronic absences and lateness will improve.
Communication Issues
[69] Ms. Wheaton also told the court that getting in touch with Ms. N has always been a problem for the school. Ms. N does not have a landline and admits that she has had an ongoing problem maintaining a cell phone, due to budgetary and other issues. In her words, she is “not very good with cell phones”.
[70] The OCL made a similar observation. She tried repeatedly to contact Ms. N but could not get a response. Ultimately, she had to make contact with Ms. N through Mr. L. As the OCL observed, one would think that Ms. N would be particularly anxious to make a good impression on the person who was doing an assessment for the court case about who should have custody of G. One might also think that a parent who is pursuing a custody claim would want to ensure that she is able to be contacted by her daughter’s school.
[71] This is not just an historical concern. Ms. Wheaton gave an example of a recent issue in which the school had trouble reaching Ms. N. G had to have some sort of paperwork returned to school about testing. G had not returned it, so the school reached out to Ms. N by phone and through email, as Ms. N had requested. They received no response. When questioned by the school about the paper, G told them that it was “in the burn pile”. The school had to contact Mr. L, who promptly arranged to have the paperwork completed and delivered.
[72] Ms. N tried to respond to this by saying that she had sent the paper with G in her backpack. She said that she didn’t know she had to respond to the email. Although she acknowledged that communication with her has been problematic in the past, she seemed unable to appreciate how important it is that she demonstrates she has rectified the problem by promptly acknowledging and responding to email communications that she receives from the school. It would have taken her a matter of seconds to reply with an email that the paper was in G’s backpack, which would have allowed the school to have a more productive discussion with G about why she had not returned it.
[73] Ms. N’s failure to respond to the OCL, and the difficulties that the school has had reaching her, are not acceptable. While I know she loves G, Ms. N has not established that she is capable of being organized and available enough to meet G’s educational needs.
[74] On the other hand, Ms. Wheaton says that Mr. L has always been available when the school has tried to reach him, he responds promptly, and he is appropriate in addressing whatever issue has been raised.
[75] Ms. Wheaton also said that Ms. N often appears to be avoiding her or the other staff when she attends at the school. However, Mr. L makes a point of checking in with the school most days when he comes to pick up G.
[76] Mr. L’s availability and responsiveness to the school makes him the more logical choice to be the parent with primary responsibility for G’s educational needs during the school week.
Discipline
[77] Another example of Mr. L’s responsiveness and involvement with the school occurred recently, when G was involved in an incident with another student and then lied about it to both the school and her father.
[78] G was issued an “in-school suspension” for making an inappropriate hand gesture at a student who was visiting from another school. Ms. Wheaton said that, despite witnesses observing what had happened, G refused to “take ownership” and insisted that she did not do what the school said she did.
[79] Ms. Wheaton said that Mr. L. appeared at the school the next morning with G to discuss what had happened. Initially, Mr. L insisted that his daughter was telling the truth and she should not have been suspended but, eventually, G admitted to both him and the Vice Principal that she had made the gesture.
[80] Mr. L says that G is learning to lie from her mother, as he believes Ms. N is a chronic liar. However, I do not accept that the “problem” is that simple. It is not unusual for children to test limits and try to avoid getting into trouble by lying. While obviously not good behaviour, I am less concerned that G was caught lying, or that she made a gesture at another child, than I am with her parents’ response to incidents like these. This was a “teachable moment”: an opportunity to help G understand how to treat others and learn that lying is a not an appropriate response to getting in trouble.
[81] Although Mr. L originally believed that G had been “wrongfully accused”, I am impressed that he took the time to attend at the school with G to try to sort out the issue. He accepted that he was wrong when G admitted, in front of him and the Vice-Principal, that she had been involved in the incident. Mr. L handled the whole situation responsibly.
[82] Ms. Wheaton has also confirmed that Mr. L is always respectful in his dealings with her and other staff and responsive to any communications from the school regarding G.
[83] On the other hand, Ms. Wheaton has had less consistent results with Ms. N. As I have already mentioned, the school has difficulty reaching her to discuss issues with G, and when they do, Ms. N does not always react appropriately.
[84] Ms. Wheaton said that, Ms. N. is “sometimes” respectful of the school personnel. She recalls one occasion, in particular, where Ms. N acknowledged that G was playing a part in the problems that she was having with peers at school, and told Ms. Wheaton that she (Ms. N) would be having “more conversations” with G about those issues.
[85] However, Ms. Wheaton also shared that there have been other occasions when Ms. N has been quite combative or avoidant with her or other staff. On one occasion, Ms. N became very upset about an issue and “yelled” at a member of Ms. Wheaton’s staff. On other occasions, when Ms. Wheaton has reached out to Ms. N to deal with issues regarding G, Ms. N. has become very upset with her. According to Ms. Wheaton, Ms. N. has often refused to hold G accountable for her (G’s) actions. Instead, Ms. N has insisted that the problems are due to G being bullied and the failure of the school to do enough to assist G.
[86] I find that Mr. L’s interactions with the school are more productive than are Ms. N’s. I am satisfied that Mr. L is more likely than Ms. N to respond appropriately, and in a timely manner, to communications and issues raised by the school regarding G. This holds far more promise for improving G’s challenges at school than continuing to have Ms. N assume the primary parenting role during the school week.
Bullying
[87] I am concerned that “bullying” seems to be an issue for G. Ms. Wheaton said that there have been a lot of “negative social interactions” between G and her peer group, during which G has been bullied and has also been accused of bullying others. The school has brought in a Child and Development Counsellor (“CDC”) to work with the girls in G’s class to try to alleviate the bullying issues by using restorative justice principles to change the group dynamic.
[88] The CDC has also been trying to have individual sessions with G to help her with her own personal issues. They work on things like self-esteem and helping G to talk about to whom to go to if she has a problem. Ms. Wheaton says the counsellor talks to G about anything that might be bothering G and together, they work through “various scenarios” to help her in her social development and problem-solving skills. Unfortunately, because the counsellor is only in the school once a week, if G is absent that day, she does not have the opportunity to work with the CDC.
[89] G told the OCL that her #1 wish was to go to Humphrey PS. Perhaps that is because of the “bullying” issues. Ms. N suggests that it is because Mr. L has told “everyone in town” that she (Ms. N) is a crackhead and a whore, which has caused G problems with her peers.
[90] Regardless of the reason, it is clear that G needs help with developing positive peer relationships.
[91] I agree that Mr. L has not helped G with his public accusations against Ms. N and CS. However, even if a move to Humphrey PS would give G a fresh start, it is not realistic. The problems with Ms. N’s housing, G’s chronic absenteeism and lateness while in Ms. N’s care, and the difficulties that the school has had making contact with Ms. N, all make it obvious that possible benefits that might be gained by a move to Humphrey PS are outweighed by the demonstrated inability of Ms. N to meet G’s educational needs.
[92] It is also very possible that G’s difficulty in positively interacting with others could follow her to a new school. G has been through a lot and both of her parents have challenges that impact their ability to parent and assist G with skills to promote healthy interpersonal relationships.
[93] The ability to continue to work with her CDC is an important resource for G, which is another reason why it is better for her to stay at MacTier PS than to move to Humphrey PS.
Conclusion
[94] The stability offered by remaining at MacTier PS far outweighs the benefits to G of relocating to Humphrey PS, particularly when there is no certainty that her mother will be able to remain in that catchment area, in the immediate future, or for the balance of G’s public school career.
[95] The transportation difficulties and problems that the school has had dealing with Ms. N make it clear that it would be better for G to have her home base in MacTier during the school week. Her father and paternal grandparents are nearby and can offer G more stability and support than can her mother, to try to help G cope and, hopefully, thrive in her school studies.
PART TWO – WEEKEND AND HOLIDAY TIME
OVERVIEW
[96] If G is going to live with her father during the school week, what should her schedule be for weekends and holidays? Her mother wants to spend as much time as possible with G. Her father believes that Ms. N’s time with G should be very limited.
[97] Despite Mr. L’s behaviour and past, Ms. N’s position was consistent throughout the trial. She is not trying to restrict his time with G. She says G loves her father and “every little girl needs a daddy in her life”.
[98] However, Mr. L has raised many concerns about Ms. N. They include problems related to substance abuse; past parenting; emotional wellbeing and morality; and interpersonal relationships. I will discuss the evidence relating to both parties surrounding these issues, in order to try to decide how much time with her mother is in G’s best interests.
Mr. L’s False Allegations
[99] Before I begin the discussion about Mr. L’s allegations about Ms. N, some context is necessary. Mr. L has a demonstrated history of making false accusations about people, which impacts on my assessment of the credibility of his allegations against Ms. N.
[100] I touched on this issue previously in paragraph 42, when I discussed Mr. L’s objection to Ms. N’s friend, Mr. D, driving G to school. Mr. L was offended by something that he thought Mr. D had said and took the extraordinary step of accusing Mr. D of being a pedophile. Mr. L caused Mr. D considerable stress and problems in his personal life, as the CAS (who had placed several of Mr. D’s children and grandchildren with him and his wife) conducted an investigation into Mr. D. They found the allegations to be groundless.
[101] Unfortunately, this is not the only time Mr. L has done this.
[102] As a young boy, Mr. L was sexually abused in MacTier on two occasions. Understandably, these reprehensible acts have had long-term effects on him. Although he says that he “buried it” for a while, Mr. L believes that the suppressed rage and shame he felt contributed to his descent into the drug world and his affiliation with the motorcycle gang. When he was first with the gang, he would channel his anger into fighting matches, in which he and another man would fight for the entertainment and gambling enjoyment of the gang members. The fight ended when either he or the other fighter could no longer move. Mr. L was very successful.
[103] His childhood abuse has left Mr. L hypersensitive to any comments or behaviour by an adult towards a child or teenager that Mr. L believes have a sexual overtone. This is understandable.
[104] What is not understandable, or excusable, is Mr. L’s response. He publicly accuses men of being pedophiles. This is extreme and unwarranted, but Mr. L continues to make these accusations with no evidence to justify them and no regard for the potential consequences.
[105] In addition to the accusations against Mr. D, I have heard of several other examples of Mr. L making unwarranted allegations against men.
[106] According to police notes, in 2014, Mr. L learned that a man doing work on his house had been charged with a sexual assault against a female in the past. Mr. L wrote an email to the man’s employer, informing him that the man was a “statutory rapist” and “diddler”. The police had to warn Mr. L to stop.
[107] After he and Ms. N separated, Mr. L used passwords he had discovered in G’s room to access Ms. N’s private accounts and messages. He discovered through Facebook Messenger that Ms. N was upset with her partner, CS, about something CS had said to Ms. N’s teenage daughter, “E”, which Ms. N was worried could be misconstrued. It is important to note that Mr. L had no details of what had supposedly happened, other than to know that Ms. N was concerned about CS having been in E’s room and having said something to her.
[108] CS was asked about this during the trial. He responded thoughtfully and appropriately. He said that E was worried that boys would not want to date her. CS tried to reassure her by saying that she was an attractive girl and, as a man, he knew that there would be boys who would be interested in her.
[109] Ms. N told CS that he had to be very careful when dealing with teenage girls. She felt that, unintentionally, he could convey the message to E that he found her sexually attractive. CS said he realized he had not thought about that perspective, appreciated the input, and it would not happen again.
[110] As mentioned, Mr. L did not know about any of the specifics of the issue or how it had been resolved. He only knew that Ms. N was upset with CS about something to do with E. Rather than make inquiries, Mr. L reacted by posting a public comment under a picture of CS on social media: “This is what a pedophile looks like”.
[111] Mr. L also called CS’s employer to warn him that CS should not be around children. This was particularly problematic for CS as much of the work that he was doing was at or near schools. CS was concerned that the call could have contributed to his subsequent job loss.
[112] Mr. L called CS’s employer as a witness in the trial to address my concern about the impact that Mr. L’s call might have had on CS’s job. The employer said that the call was not the reason that CS was laid off. Mr. L felt this exonerated him, but the concern still remains about his willingness to make serious and potentially damaging allegations about someone, without any reasonable evidence to support them.
[113] The employer also confirmed that Mr. L had also called him and accused him (the employer) of being a pedophile at one point. Mr. L had discovered an unknown number on G’s phone[^6]. Mr. L called the number and, when the employer refused to identify himself to this unknown caller who was berating him, Mr. L accused him of being a pedophile, several times.
[114] The carelessness with which Mr. L makes this serious allegation against people is shocking. It also tells me a lot about Mr. L. It is understandable that his abuse as a child, and then his experience as a member of a criminal organization, would cause him to perceive the world as a dangerous place. He is hypervigilant about any perceived threat and not very balanced in his assessment of the potential “danger”. He becomes suspicious very easily and does not listen to reason. Once he forms an opinion, often on little or no evidence, he is insistent that he is right, and quite cavalier about the effect of his accusations.
[115] Another example of this is the “Go Fund Me” page that Mr. L publicly posted on social media about this litigation. It begins with a large picture of Mr. L and G, with the caption, “Custody of my daughter”. In his rather long, rambling message, Mr. L appeals to the public and his 750 Facebook friends to help him fund this litigation.
[116] The statements on this page are inflammatory and contain many inaccuracies. They are incredibly personal, and Mr. L seems to have given no regard to the effect they would have on both Ms. N and G in the community. They include:
My 9 yr old daughter’s mother is an alcoholic and is in a methadone treatment program for the last 8 years for oxycotin (sic) addiction, to date she has shown no interest in bettering herself for our daughter and even though we are court ordered not to used (sic) drugs or alcohol when in a caregiving role, there is evidence she drinking (sic) daily. Amongst the items left by her in the family home when she left me for another man is a hypodermic needle and two snorting straws, what am I to think?
I have a video of my little girl with a homemade crack pipe in her hands and in the video she puts the bowl of the pipe in her mouth, this was photographed in the home of her mother and, I can tell by her facial expressions, it wasn’t tobacco being smoked in that bowl.
[117] The Go Fund Me page includes further personal details about G’s family situation and the litigation. It includes a discussion about the CAS being involved with the family. It talks about the recommendations of the OCL. There is a misleading reference to Ms. N’s “parents” (CN and BN) supposedly having been denied a relationship with G, except through Mr. L, and a disclosure that they had paid Mr. L’s legal fees up to that point.
[118] When questioned about this during the trial, Mr. L simply volunteered to take the post down. He seemed to feel that this solved the problem, even though his friends had circulated the funding request, so the page continued to be available through other sites. He did not seem to appreciate the damage that might already have been done to G in a small community, by having these allegations about her and her mother circulated publicly.
[119] Mr. L showed no remorse and, more importantly, no self-awareness of how damaging it is to publicly make allegations like this with very little regard to whether or not they were true. For example, Mr. L had absolutely no evidence that Ms. N was drinking daily. He was publicly telling the community that G had been affected by drug use from the pipe. Although this is definitely not clear from the video, the statement that G had used a crack pipe and ingested something inappropriate certainly may have caused concerns for other parents in the community and cannot have helped G with her peer relationships. Mr. L also revealed that the CAS was involved with his daughter, which should have been kept confidential.
[120] I was also made aware of Mr. L’s almost obsessive method of dealing with his concerns. The OCL Social Worker said she was receiving so many calls, emails and texts from Mr. L that she couldn’t count them all but there appeared to be approximately 28 before she had met with either of the parties and 240 afterwards.
[121] In November of 2018, the CAS wrote a letter to Mr. L and CN (Ms. N’s father’s wife) cautioning them about repeated frivolous referrals to CAS. The OCL report indicates that, despite warnings, their behaviour continued. The complaints were viewed by CAS as unfounded attempts to gain an advantage in the custody/access dispute. Concern was expressed that, when there was any disagreement with Ms. N’s decisions, they would place G in the middle of the parental conflict. The CAS indicated in the letter that they considered the repeated complaints malicious and that if they continued, the police might consider “coercive action”.
[122] The police have given Mr. L his final warning. If Mr. L calls them with any more false allegations about Ms. N, he is going to be charged with criminal harassment.
[123] I do not believe that Mr. L is intentionally making things up. My impression is that he lacks any objectivity or judgment. He is so embroiled with “winning custody” to “protect” G from Ms. N, that he escalates any “possibility” into a “certainty” in his own mind. He catastrophizes, rather than considering alternate explanations, trying to discuss or solve the issue, or attempting to keep things in perspective. He convinces himself that there is a problem that does not exist and then becomes obsessive about trying to prove that he is right.
[124] This is the context in which I turn to Mr. L’s allegations about Ms. N. He believes that, despite being G’s primary caregiver since birth, she should now see her only one weekend a month.
Substance Abuse
[125] Mr. L’s main concern relates to his suspicions about Ms. N’s drug and alcohol use. This may be understandable, as both he and Ms. N consumed illegal drugs and drank to excess while they were together.
[126] The OCL Social Worker, Ms. Ambrozic, had similar concerns, which seem to be at the root of her recommendation that Ms. N should not have G in her care for any period in excess of two consecutive days and nights. Ms. Ambrozic did, however, recognize the “close relationship” between Ms. N and G, so she recommended that consideration be given to increasing Ms. N’s access if Ms. N became involved in a parenting course and individual counselling; attended AA/NA meetings; maintained her sobriety; presented consistently with appropriate behaviour; and improved her ability to communicate with school and other resources.
[127] Ms. Ambrozic conducted a very thorough investigation and filed a lengthy report, that was very helpful to the court in understanding the background of this family.
[128] There were several red flags that, understandably, caused Ms. Ambrozic to be concerned that Ms. N was not maintaining a sober, clean lifestyle. As previously noted, Ms. Ambrozic had a great deal of difficulty reaching Ms. N to begin the assessment, and, ultimately, had to turn to Mr. L to get Ms. N to contact her. By this time, Ms. Ambrozic had been inundated by calls and emails from Mr. L providing voluminous information about Mr. L’s perspective that Ms. N was continuing to drink and use drugs. Included in this was the disturbing video that Mr. L had discovered on G’s phone, in which G was filmed with what appeared to be a homemade crack pipe that she had discovered in the bedroom of her teenage half-sister, “E”, at Ms. N’s home.
[129] Ms. Ambrozic also received information from the school about their problems reaching Ms. N and the ongoing absenteeism issues for not only G, but also E, while she resided with Ms. N. E was involved with drinking and drugs while she was living with her mother and, ultimately, ended up moving back to British Columbia. E apparently made a comment to the CAS worker that it was “better” there.
[130] CN, Ms. N’s father’s wife, was also repeatedly contacting Ms. Ambrozic, insistent that G should be living with Mr. L rather than Ms. N.
[131] All of this, combined with Mr. L’s unrelenting insistence that Ms. N was still “using” and drinking, caused Ms. Ambrozic to be concerned about what was going on in Ms. N’s home and whether G would be safe in Ms. N’s care.
[132] However, the evidence in this trial did not establish, on a balance of probabilities, that Ms. N has or will put G at risk. Although she may not be responsible enough to handle parenting during the school week, that does not mean that she is still mired in her addictions.
[133] Ms. N admits she is a former drug addict. Currently, she is on a methadone program, supervised by OATC, and has provided weekly drug screens to the court covering the past year, which show that she has tested negative for all drugs, other than methadone.
[134] Ms. N is also a self-professed alcoholic. Despite this, she drinks “occasionally”. She is adamant that neither she nor her partner, CS, drink to excess.
[135] Mr. L is ever-vigilant about these issues. He has arranged to receive regular reports from someone working at the store near Ms. L’s home, whenever Ms. L buys alcohol, including beer. He has called CAS and the police to check on her.
[136] Yet, despite this, there is no evidence before me, other than Mr. L’s suspicions, that Ms. N is using any drugs other than methadone or that she is drinking to excess.
[137] There is no evidence at all that Ms. N has used any drugs, other than methadone, since her separation from Mr. L, with the exception of the one positive reading for morphine on July 30, 2017, which would have been just after separation.
[138] Mr. L believes Ms. N is somehow cheating on her drug testing. His suspicions are buttressed by the discovery of a toilet seat cover in the home after Ms. N left. This led him to a theory that Ms. N was collecting “clean” urine each week from someone, perhaps G, to pass her drug tests. He has talked to friends and researched on the internet about how to cheat on drug testing, so he is convinced that it can be done.
[139] While it is possible that Ms. N could do that, a possibility is not enough. Mr. L’s theory does not explain how, if the urine was collected from G or someone else, it consistently tests positive for EDDP (Methadone). It does not explain how Ms. N is getting the urine into an approved testing centre, where their reputation depends on their screening process. They are apparently so vigilant about the testing that Ms. N says a representative is physically in the room with her while she urinates.
[140] I understand that the court needs to exercise caution about receiving urine test results without hearing directly from the person who conducted the testing[^7]. However, there is a difference between child protection cases, where the Children’s Aid Society has a lawyer who can arrange for a representative from the testing facility to attend the trial, and a trial between two self-represented litigants, struggling with courtroom procedure and finances. At the Trial Management Conference (“TMC”) in this matter, the presiding judge endorsed that Ms. N was “to provide drug test results from June 2017 on to date of trial”. There was a further endorsement that certain exhibits, including “drug tests from methadone clinic” could be introduced without calling the record keeper.
[141] If Mr. L, who was represented by a lawyer at the TMC, wished to object to the validity of the test results, this issue should have been raised at the TMC, and a representative from OATC should have been added as one of the required witnesses. Given the lack of objection to their admissibility at trial, and in light of the TMC judge’s endorsements, I am prepared to accept the testing results that Ms. N produced.
[142] If there had been other indicia of drug use, such as erratic behaviour, interactions with the law, reports from her tenant, Ms. C of missing narcotics in the home, or reports from Mr. L’s community contacts of Ms. N purchasing drugs, I might be giving less weight to the clear screens that have been produced. However, absent any of these red flags, I accept that Ms. N has attended at OATC and provided weekly urine tests, which have not indicated that there is any ongoing drug use, other than methadone.
[143] I also note that the OCL spoke directly with Dr. Lisa Graves, Ms. N’s physician at the OATC. She indicated that Ms. N had been receiving methadone prescriptions from her since April of 2016 and from a prior doctor back to 2012. Dr. Graves reported that Ms. N was very good at attending and rescheduling appointments, with the last missed appointment being in May of 2017 (around the time of separation).
[144] Dr. Graves confirmed that she sees Ms. N on a monthly basis for counselling, during which they discuss triggers, dosage and life challenges. She also advised that, since Ms. N has chronic pain, it is not unreasonable for her to have been on this medication for so many years. She indicated that Ms. N “has all her carries and can hold her dose until her next appointment”. Finally, she described Ms. N’s behaviour as positive and her involvement with the program as reliable.
[145] Mr. L also said in his closing arguments that he discovered a hypodermic needle and two “snorting straws” in the home after Ms. N left. However, he did not mention this in his evidence and Ms. N was not asked about either the toilet seat cover, needles or straws, so that she could give her explanation. I cannot give any weight to these allegations, as they did not form part of the evidence in this trial. However, even if this discovery had been properly introduced into evidence, it would be only minimally relevant, as this occurred over two years ago, before Mr. L and Ms. N separated.
[146] Mr. L also says that, on one occasion, he saw Ms. N bending down in the passenger seat of a vehicle. When she saw him, she sat up quickly and sped off.
[147] Again, while it is possible that this happened because Ms. N was consuming illegal drugs, that is pure conjecture on Mr. L’s part. There are other possible explanations for someone bending over in a passenger seat. There are also other explanations for Ms. N quickly driving away, including that Ms. N did not want to see Mr. L.
[148] Mr. L also mentions an incident, years ago, when he and Ms. N were running a Narcotics Anonymous meeting in a local church. The meetings had to be shut down because cocaine residue was found in the women’s washroom. Mr. L was suspicious that Ms. N might have participated in the cocaine use, as she was in the washroom at one point during the meeting. Ms. N denied this and reminded Mr. L that someone else had been in the washroom after her.
[149] It is difficult to extrapolate from something that may or may not have happened years ago to the need for restrictions on Ms. N’s time with G now. Mr. L seemingly had no difficulty with Ms. N being the primary caregiver for G for years after this incident. To raise it now as a reason why Ms. N cannot be alone with G, in the total absence of any other evidence of current drug use, is not reasonable.
[150] The video in which G films herself going into E’s room, and picking up a plastic water bottle with a straw stuck into it, is probably the most concerning piece of evidence. It certainly looks like homemade drug paraphernalia.
[151] However, I am not satisfied that this video warrants a term that Ms. N’s time with G needs to be restricted or supervised.
[152] First, the “pipe” belonged to E or her friend. E no longer lives in the home. Less than two weeks after the video was discovered, Ms. N informed the CAS worker that E was moving back to BC. She also said that, should E ever move back to Ontario, Ms. N would want to arrange counselling for her, as she did not want G exposed to any drugs, if E were in the home. This was an appropriate response and eliminates any concern about G being exposed to drugs by E.
[153] Next, I am reassured that the CAS immediately intervened to investigate the situation. G was removed from Ms. N’s home. Ms. N said she had no idea what was going on.
[154] E was interviewed and said that her friend had left the “bong” at her house, which had been used to smoke tobacco. E admitted to smoking “pot” but did not feel she did this to an excessive degree. She also said that her mother had told her to lie and say the bong was for an art project, but E refused to lie and felt it would be better to be honest and deal with it.
[155] The CAS apparently seized the bong and examined or tested it. They confirmed that it had only been used to smoke tobacco. Although Mr. L does not believe the CAS did their job and properly tested the pipe, he has no evidence to support this. He could have called the CAS worker, Ms. Tidwell, as a witness to question her about this issue but did not do so.
[156] Absent any evidence to the contrary, I am prepared to accept that the CAS would not return G to a home where there was an allegation of crack cocaine use, as Mr. L suggests, without conducting a proper investigation into whether G was at risk. If both parties agree that the CAS said they had the pipe tested and there was no residue other than tobacco, I am not prepared to limit Ms. N’s time with G, purely on Mr. L’s hypothesis that the pipe was being used to consume other drugs.
[157] Mr. L is insistent that he sees G’s lip go numb in the video, which causes him to believe the bong has been used for smoking crack. That conclusion is not supported by the evidence. Despite reviewing the video several times, I could not say with certainty whether there was or was not any numbing of G’s lip or face. There does not appear to be but the quality of the video is not good enough to come to a definitive conclusion. Mr. L’s failure to acknowledge that concerns me.
[158] The CAS testing or examination did not detect the pipe having been used for crack. Neither G nor E showed any other signs of having been exposed to or using crack. Ms. N suggests that crack could not be smoked in a plastic water bottle without the bottle showing signs of melting or residue. G having been exposed to “crack” from this pipe seems highly unlikely. This is another example of Mr. L convincing himself of something based on pure conjecture on his part.
[159] Finally, there does not appear to ever have been a suggestion that Ms. N was using the pipe. Everyone agrees that it belonged to E, who is no longer in the home. The video is, of course, concerning but it does not support a finding that Ms. N is using drugs.
[160] However, I am concerned about Ms. N telling E to lie, which will be discussed in the sections below.
[161] Regarding alcohol use, the police have attended at Ms. N’s residence several times, at Mr. L’s request. Although, on a few occasions, they have noted that she had been drinking alcohol, she was never found to be “anything close to” inebriated.
[162] The CAS worker, Kaitlynn Tidwell, has also been dropping by Ms. N’s home for well over a year for announced and unannounced visits. Apparently, Ms. N’s home is on the route that Ms. Tidwell takes to and from work, so the visits occur at various hours of the day or evening.
[163] I did not hear from Ms. Tidwell directly, which causes me some concern about the weight to be put on evidence supposedly coming from her. However, due to the length of the trial, the parties decided that it was unnecessary to call the worker, as Ms. Ambrozic had reviewed the entire CAS file and talked to Ms. Tidwell. The OCL report provided detailed notes of the interactions that the CAS had with each of the parties and neither Mr. L nor Ms. N took issue with any of the contents. I am prepared to rely on them as reported through Ms. Ambrozic’s report, only when they set out facts that have been otherwise agreed upon or that are not controversial, primarily to help me understand why the CAS is taking the position that there are no protection concerns.
[164] However, I am not prepared to put any weight on important statements by someone who was not a witness at trial. As I tried to explain to the parties simplistically, there is a reason for the hearsay rule. The court needs to verify that the statement accurately captures what was said, what the context was, and the parties need to be able to ask questions about it.
[165] For example, I can put no weight on the “double hearsay” statement that E supposedly said it “was better” in BC. I am surprised that Ms. Ambrozic considered this relevant to her assessment of Ms. N’s parenting, as she mentioned it in her report and more than once in her testimony. If Ms. Ambrozic felt that E’s perspective about her experiences when living with her mother were important, Ms. Ambrozic should have made an attempt to contact E directly. Although Ms. Ambrozic’s report said that Ms. N did not proffer contact information for E, Ms. Ambrozic acknowledged in her testimony that she could be mistaken. Ms. N was insistent that she asked Ms. Ambrozic to talk to both E and her sister (“J”) directly, so I can understand why Ms. N was concerned that Ms. Ambrozic did not do so and, instead, placed some weight on E’s vague statement, as reported to her by Ms. Tidwell, that things were “better” since the move back to BC.
[166] The CAS notes confirm that, since Ms. N and CS began living together, Ms. Tidwell frequently attended at Ms. N’s home for announced and unannounced visits. Ms. Tidwell has never seen anything that would cause her a concern, including about either Ms. N or CS drinking to excess or using illegal drugs.
[167] Mr. L (and Ms. Ambrozic) noted that the police had discovered several cases of empty beer bottles in the back of CS’s vehicle. Mr. L seemed to think this supported his concern that Ms. N was drinking heavily. It was also noted that Ms. N and CS had taken empty bottles from the dump or recycling centre, which Mr. L seemed to think supported his contention that Ms. N lacks morals, as she “steals”.
[168] Ms. N provided a satisfactory explanation, which was supported by E’s statements to Ms. Tidwell. CS is a volunteer firefighter. His organization apparently collects “empties” for fundraising purposes, so he collects as many empties as he can, from various sources, in the back of his truck. He and Ms. N did not realize they could not take them from the dump and, when they were contacted about it, they returned them.
[169] Mr. L is also receiving reports from someone at the store near Ms. N that Ms. N frequently purchases cases of beer. Ms. N provided a satisfactory explanation for that, as well.
[170] On occasion, Ms. N earns some extra money providing care and doing errands for seniors. One of those seniors is Ms. C.
[171] After Ms. N began providing care to Ms. C, Ms. C was, unfortunately, injured in an attack by a pit-bull. Ms. N and CS agreed that Ms. C could move in to a bedroom in the basement of their house. Ms. C pays them rent and Ms. N continues to care for Ms. C and do errands for her. That includes picking up beer for Ms. C.
[172] Ms. C says that she is in a lot of pain from her injury and other problems. She deals with that pain by taking Percocet and morphine and drinking up to 10 beer a day.
[173] Ms. C also confirmed that Ms. N and CS rarely have alcohol in the house and do not share in the consumption of her beer.
[174] I am satisfied that most, if not all, of the beer that Ms. N is buying is for Ms. C.
[175] Finally, there was a concern about Ms. N allowing underage drinking.
[176] Ms. N rented a cottage for E’s 13th birthday party in August of 2016, which was prior to Ms. N’s separation from Mr. L. Apparently, there was underage drinking at the party. Ms. N said she was unaware of the drinking, and blamed the children of her former friend, HG. Ms. G said that Ms. N had supplied the teenagers at the party with alcohol. There were similar allegations about one or both of Ms. N’s daughters drinking at parties prior to the separation, when Ms. N and Mr. L were both in attendance. Mr. L has produced a picture of one of Ms. N’s daughters casually drinking what appears to be an alcoholic beverage, while sitting on a couch with G and Ms. N’s mother (although I give this limited weight as Ms. N is not in the picture and there is very little context for when and where the picture may have been taken).
[177] The issue of underage drinking is, of course, a concern. Ms. N, as the adult in charge at E’s party, should have been aware of whether the teenagers were drinking. Similarly, both she and Mr. L should have taken steps to ensure that her daughters were properly supervised and not drinking at other parties and community events.
[178] However, I note that, if this were sufficient concern to affect the amount of time G spends with each parent, Mr. L would also have a problem. He has admitted to drinking and smoking a joint with his own son, R, when R was underage.
[179] I also note that Mr. L admits that he occasionally drinks himself, although he is in NA/AA. Finally, I note that Mr. L would bring Ms. N “Canadian” (beer), while they were together and she was caring for G. As he was often out at night, it is difficult to understand why he was comfortable with Ms. N drinking while they were together but, now that they have separated, he is suggesting this is reason to severely limit G’s time with her mother.
[180] All of this satisfies me that both Mr. L and Ms. N continue to drink, at least occasionally. Mr. L has taken more steps to commit to ongoing sobriety than has Ms. N, as he participates in frequent online AA meetings. Ms. N said during the trial that she had taken recent steps to get a sponsor and would begin the AA program, if necessary. However, I agree with Mr. L that Ms. N’s half-hearted inquiries, only during the trial, do not indicate a strong commitment to pursuing sobriety.
[181] It is up to Mr. L and Ms. N to decide whether “occasional” light drinking is a wise choice for them, given their admissions that they have had problems with alcohol in the past. I am satisfied on the evidence before me that neither Mr. L nor Ms. N has abused alcohol since their separation, particularly while in a caregiving role to G. I am not satisfied that alcohol use is a reason to limit either party’s time with G.
[182] I am also satisfied that both parties have had a somewhat lax attitude towards teenage drinking. Some parents do allow their teenagers to drink while in their care, perhaps so that they are better able to supervise the experimental drinking that appears to be part of many teenagers’ lives today.
[183] While the Court is not condoning underage drinking, I am satisfied on the evidence before me in this trial that this has not been an ongoing issue nor has it been enough of a problem to limit either party’s parenting time with G.
[184] My suggestion is that Ms. N, in particular, become extra-vigilant about supervising G, and teenagers in G’s presence, with respect to both drinking and drug use. Both parents should do this, not because the court has ordered it, but because, with her parents’ history, it is particularly important that G not descend into the unhappy world of substance abuse. As responsible parents, who profess their love for G, Mr. L and Ms. N both have to step up to the plate and ensure that they have done everything in their control to save G from the terrible early start into drugs and alcohol that nearly ruined her parents’ lives.
Conclusion regarding substance abuse
[185] There is no credible evidence that would support a finding that Ms. N is using drugs, other than her methadone. She appears to be functioning reasonably well most of the time and shows no “markers” of having descended back into the world of her former addiction. She has had no criminal convictions in over 10 years.
[186] On the other hand, Mr. L admits that he is a daily user of cannabis for medical purposes. He smokes two “joints” at night, one shortly after G goes to bed and another in the middle of the night (2:00 – 3:00 a.m.). He says this gives him enough pain relief to sleep but is done at a time that it would not impact his ability to drive or get G to school.
[187] While Mr. L appears to be using his marijuana responsibly, I find it somewhat disingenuous that he feels that he should be permitted to smoke marijuana on a daily basis but no-one else can drink or use drugs, including marijuana, around G. It was particularly interesting to me that Mr. L “interviews” other parents if G is going for a playdate or sleepover with their children, to ensure that the parents will not be drinking. He then goes to the extraordinary measure of “snooping” around their backyards to see if there is any evidence of empty bottles, to satisfy himself that the parents have told him the truth. Yet, he feels that other parents should allow their children to stay overnight at his house with G, even though he will be smoking marijuana during the night, because “pretty well everyone in MacTier” knows he does this.
[188] This is a theme that will be repeated often in the discussion that follows. Mr. L is hypervigilant about the behaviour of others but appears to have limited insight into his own behaviour and how it might affect G. Mr. L says that G is completely unaware of his cannabis use and he does not have any plans to discuss it with her because she is too young.
[189] My conclusion about the issue of substance abuse is that both parties are to be commended for the progress they have made in breaking and addressing their addictions. I agree with the conclusion of the CAS that neither Mr. L nor Ms. N’s drug and alcohol use poses a risk to G at this time.
[190] However, the nature and seriousness of their past substance use requires that both parents remain cautious about using any drugs or alcohol. I agree with the recommendation of Ms. Ambrozic that it would be very beneficial for each of them to engage in some sort of program or counselling that will assist them to maintain a focus towards a drug-free lifestyle. I also recommend that they remain vigilant about any alcohol use, given their self-professed vulnerabilities. Maintaining a sponsor and participating in NA/AA meetings is one way to try to keep this focus. Should either or both of them choose not to participate in these programs, they should investigate other options. Ms. N should certainly continue her counselling with Dr. Graves and, perhaps, get some input about whether ongoing alcohol use is a concern.
[191] However, I wish to make it perfectly clear to Mr. L. Even if Ms. N chooses to drink alcohol, that is her business. There is no evidence to support a finding that Ms. N’s drinking has affected her ability to care for G since she has moved in with CS. I am not going to impose a condition that either Mr. L or Ms. N completely abstain from alcohol use, as it seems to me that such a condition would invite Mr. L’s continued vigilance about Ms. N’s life. It is far more important for G’s best interests that Mr. L let go of his need to control and investigate Ms. N’s actions than it is to try to impose an unrealistic and unnecessary condition that Ms. N abstain from any alcohol consumption.
Past Parenting
[192] Ms. N’s first four children were made Crown wards. Mr. L had no relationship with his son, “R”, for the first several years of R’s life.
[193] Happily, both parties have reconnected with their children. Ms. N’s son, “T”, lives nearby, as does R. Ms. N’s teenage daughters, J and E, have both lived with Ms. N over the past several years, apparently at different times. Ms. N alluded to a vague arrangement with their aunt in BC, who is the “custodial parent” for the girls, in which they have been given the opportunity to alternate their residences between BC and Ontario, for two years at a time. When they are not living with her, both J and E are in frequent contact with their mother by text or Facebook Messenger.
[194] Neither J nor E ended up staying with Ms. N. Ms. N says both had difficulties with their lifestyle before they left BC and problems with drugs and truancy continued when they came to live with her in Ontario.
[195] Both girls said very negative things about Mr. L. Even CN (who is aligned with Mr. L) reported to the CAS that Mr. L was “hurtful, vengeful and opinionated to J” after she attended Kingdom Hall with her grandparents and returned with a bible. E also reported to CAS that Mr. L was “grumpy” and unavailable during the time that she lived with him. HG, another of Mr. L’s witnesses, said that Ms. N often complained to her that, prior to separation, Mr. L was not invested in the relationship or parenting G. Mr. L himself confirmed that he often came home from work or school, had supper, and then left to go to his “Chess Club”. He said that this was to avoid conflict with Ms. N at home.
[196] It is troubling that J and E’s time with Ms. N did not work out. It concerns me that E’s attendance and marks at school seem to have dropped off while she was living with Ms. N. I have already discussed this issue previously, which helped lead me to the conclusion that Ms. N is not able to be the primary parent during the school week.
[197] However, Ms. N’s trouble parenting J and E as teenagers does not mean that Ms. N should be deprived of meaningful time with G, as Mr. L suggests.
[198] The OCL notes that G is very connected with her mother. When G was removed from Ms. N’s home for several days due to the “homemade pipe” investigation, G cried herself to sleep at night. Even Mr. L admitted that his involvement in AA had helped him to realize that G needed to know her mother, “regardless of her conduct”, and it would be devastating to G if his plan to limit her contact with Ms. N were accepted.
[199] Ms. N was the primary caregiver for G prior to separation. She spent far more time with G than did Mr. L and was responsible for most of the child-related responsibilities in the home. For example, it was agreed that Ms. N was the parent who taught G to swim and read, and who cared for her when she was sick.
[200] Ms. N seems to have some understanding of child development. Ms. N showed a good deal of insight into what might be going on with E, in particular. She said that E is a teenage girl, testing limits, and “butting heads” with her mother about rules.
[201] I was impressed with Ms. N’s child-centered response to the difficulties she has had in the past. She confirmed that, originally, she understood that she was not in a place to care for her children, which is why she agreed to the Crown wardship order. She also agreed with E’s statement that, at least for the time being, it was better for her to be back in BC, rather than in Ontario, where she was getting involved with “the wrong crowd” and getting in trouble. She was pleased that E had obtained a job and seemed happier, so she was prepared to put E’s happiness ahead of her own and agree to her remaining in BC.
[202] Mr. L is quick to focus on Ms. N’s problems parenting her own children but seems to ignore his own parenting issues. He admitted that he smoked “weed” with his son, R, when R was a teenager. When R was apparently being targeted by Mr. L’s former motorcycle gang in Ottawa a few years ago, Mr. L arranged for his former employer (the “gangster”) to set up a meeting between Mr. L and some gang members to sort it out. While the assistance he provided to his son was admirable, his threat to the gang members that he “did not know if he could control himself” if something happened to R is concerning, as it suggests Mr. L is still capable of threatening violence to resolve a difficult situation.
[203] I am also concerned about Mr. L’s “hands-off” approach to parenting. When asked about how he would deal with female development issues as G matured, he said that he would leave that to the school. When asked about the effect on G if she learned that her father was using cannabis every evening, he said it would be inappropriate to tell her, even though he believes “pretty much everyone in town knows”. The overall impression I had was that he was good about attending to G’s physical needs, such as food and housing, but awkward about how to talk to, and have more than superficial conversations with, his daughter.
[204] Mr. L may need to be more proactive about parenting discussions with his daughter. On the other hand, I am comforted that Ms. N appears to be much more attuned to these issues and willing to have open discussions with G about issues that she may face.
[205] Hopefully, their skills will complement each other. I have already found that Mr. L is more responsible and stable, so he is well suited to parenting G during the school week. If G can have significant time scheduled with Ms. N outside of school time, she will be able to deal with any emotional and developmental issues that G may have, which Mr. L seems less comfortable addressing.
[206] My impression is that both parties have parenting challenges. However, they have come a long way since their first children were born. I am satisfied that their prior experiences as parents are not sufficient to reach a conclusion that either of them is unable to parent G unsupervised. They both seem committed to her best interests and to ensuring that no harm comes to her.
Emotional Wellbeing and Morality
[207] Mr. L believes that Ms. N is a liar and is teaching G to lie. He feels that he is a “Man of Honour” and G will grow up to be a better person if she is raised by him and has limited exposure to Ms. N.
[208] I agree that Ms. N has demonstrated a loose commitment to the truth, at times. Examples include her telling E to lie to the CAS about the homemade pipe; driving without a licence; “borrowing” her father’s truck without telling him in advance and putting many more miles on it than were required; saying she thought “not drinking” in the court order meant not drinking to excess; and being evasive with the court about the reasons for her lateness on the first few days of trial.
[209] My impression is that this is a life skill that Ms. N has developed, which may have served her well in the past to get out of the many difficult situations that she has found herself in. She is often rather “scattered” and living in chaos, so when faced with a problem, her default reaction may be to try to “talk her way out of it”. She is bright and articulate, so I have no doubt that she is often quite successful.
[210] However, my impression of Ms. N as a witness in this trial was that she was generally very truthful. She was quite open about her failings. She admitted she was an alcoholic. She admitted that she drank contrary to the court order. She admitted that “she was no angel” and had been involved in an inappropriate lifestyle in the past. She admitted that she drove without a licence. She admitted to extremely personal sexual details about herself, which, for some reason, Mr. L felt he needed to ask her about.
[211] This gives me hope. Ms. N needs to work on her tendency to default to a lie, when caught in an uncomfortable situation. She needs to constantly remind herself that she will be a better parent, and person, if she is trustworthy rather than a liar. She needs to break the unproductive traits that have become ingrained from the past. She needs to break the “lying cycle” and not pass this negative coping mechanism on to G. It is wrong to lie, and she shouldn’t teach her children to lie.
[212] This includes driving without a licence. I recognize that, given her driving history, insurance may be very expensive for her to obtain. I recognize the financial reality of her living situation and how she may not be able to afford to get her licence and be insured again. I understand that she is living in a remote area and there must be a strong temptation to drive for a short distance, for example “just down the road” to the local store.
[213] However, Ms. N needs to accept that she should not do it. If she is caught driving without a licence again, it will make it even harder for her to get insured and relicensed in the future. Her criminal record has been clean for the last ten years. Even a Highway Traffic Act conviction will be a black mark against her. It will be further evidence that she is not able to behave as a responsible adult and parent. It will not be helpful to her. Ms. N should not continue to put herself at risk by driving, even for short distances, without a licence.
[214] Having said this, I am not satisfied that, even with the issues of lying and driving, it would be in G’s best interests to be deprived of the opportunity to spend significant time with her mother.
[215] I also note that Mr. L has some problematic behavior that is as bad, if not worse, than Ms. N’s.
[216] First, I am concerned about Mr. L’s anger management issues. His past history with the motorcycle gang includes an admitted propensity to violence. Although he has not been involved in any criminal or violent activity that I am aware of in the last several years, Mr. L admits that, when he returned to MacTier, he “called out” the man he believed to have sexually assaulted him, as he wanted to fight him on the street. He admits that, a few years ago, when his son, R, was in trouble with the motorcycle gang, he reacted by attending in Ottawa and telling the gang members that, if anything happened to R, Mr. L wasn’t sure “he would be able to control himself”. The police records indicate that, in 2014, Mr. L threatened his landlord that he would “knock (him) out” and “break (his) neck”, over a dispute about some property-related issues. When Ms. N moved in with their neighbour, “HG”, on separation, Mr. N “barged in” to the home, causing HG to call the police to warn him not to trespass. He has told CS that he was going to kill him.
[217] I observed Mr. L’s hair-trigger temper, when he was cross-examining Mr. D, the elderly gentleman whom Mr. L objected to driving G to school. When Mr. L was questioning Mr. D about supposedly saying something improper to the teenage girl, Mr. L suddenly began speaking rapidly and yelling. Mr. L confirmed that he had threatened Mr. D in the parking lot, saying “if (Mr. D) wasn’t a cripple”, Mr. L would have dragged him out of his car and beaten him up in the parking lot.
[218] I am also concerned about Mr. L’s obsession with his own life story and personal needs, which seemed to eclipse his ability to focus on G. He is, understandably, very proud of his achievements in moving towards a stable, productive life and breaking free of his addictions. Yet, he seems more focused on himself, than he is on G.
[219] His testimony illustrated this very clearly. He spent hours, telling the gripping story of his life, eloquently and powerfully. He talked about his challenges and what he has done about them. Yet, very little of this story was relevant to G and her needs. In fact, he barely mentioned her in his evidence, despite attempts by the court to focus him on evidence that would be relevant to his current parenting, rather than his past. I have no doubt that he loves G and wants to provide for her, but my impression is that he is so consumed by dealing with his personal demons that he has little emotional energy or skills left to delve deeper into his parenting of G than simply meeting her basic needs, such as eating, sleeping and doing her school work.
[220] An example of Mr. L’s lack of focus on G’s needs is the “Go Fund Me” page previously mentioned and the six-page petition he presented to the court. Mr. L prepared a petition headed:
This petition is in recognition of (Mr. L’s) abilities and competencies as a father to G.
Please sign if you believe (Mr. L) is a responsible, sober and loving father.
I the undersigned believe (Mr. L) to be a capable and caring father.
[221] Mr. L tearfully presented the petition to the court, on which he had managed to collect about 50 signatures from friends, family and members of the local community. He was emotional and “humbled” by the trust he believed the community placed in his parenting abilities.
[222] From an evidentiary point of view, the petition was of no weight to prove the point he was trying to make. The opinions of 50 lay people are not admissible or helpful to the court. There was no evidence of who these people are, what circumstances surrounded the collection of the signatures, and how these people would be in any position to judge his parenting. As I explained to Mr. L, unless people are qualified as “experts” by the court, they may only give evidence about facts that they have observed, not opinions.
[223] However, what was relevant was the fact that Mr. L went around town and collected signatures from people about this litigation, with no apparent appreciation for the effect this could have on G. How embarrassing this must be for this little girl, to have her parents’ dispute openly discussed in the community. This petition, combined with the Go Fund Me page commenting on her mother’s drug use and the CAS involvement in this case, were far more focused on Mr. L’s need to be publicly recognized and validated than they were on G’s needs.
[224] As he has made such an issue about it, I need to address Mr. L’s repeated insistence that he is a “Man of Honour”. This was a big theme of Mr. L’s evidence, as he felt it distinguished him from Ms. N, whom he views as a dishonourable person. He believes that it is preferable that G be raised by him, as he has more integrity than does Ms. N.
[225] Under cross-examination, Ms. N immediately agreed with Mr. L’s statements that his father and brother were “Men of Honour”. However, despite repeated badgering from him, she was hesitant to agree that Mr. L, himself, was a “Man of Honour”. However, I was very impressed by her reluctance to share negative details about Mr. L with the court, as she maintained her position throughout this trial that G “loves her daddy” and she did not want the court to place limits on G’s time with him.
[226] The court tried to explain to Mr. L that this line of questioning was not overly productive. His questioning should be directed towards parenting issues, not his need for validation with a nebulous title. At best, it was the court’s opinion about his personal characteristics that was important, not Ms. N’s, and his conduct was relevant only insofar as it related to his parenting.
[227] I do not accept that Mr. L has demonstrated that he is morally superior to Ms. N. I have heard about him “snooping” around the backyards of G’s friends, to try to verify whether their parents are telling the truth about not drinking. I have heard about him threatening innocent men and calling them pedophiles. I have heard about him secretly gaining access to G’s phone and computer, and copying private messaging between G, Ms. N and others. I have heard about him sending messages to people on Ms. N’s private accounts without identifying himself. I have heard about him secretly taping Ms. N having sex with him, then trying to blackmail her by masquerading as a friend of hers and writing to CS’s mother (who lives in another province) and offering to play the tapes for her.
[228] It is hard to reconcile all this with Mr. L’s insistence that he is a “Man of Honour”.
[229] Mr. L has made great strides since the days of his gang involvement. He is trying to be a good citizen and parent and, as he says, follow “The Golden Rule”. However, like Ms. N, he has some things he can work on to improve his ability to offer G appropriate moral guidance.
[230] My conclusion is that Ms. N’s moral failings are no more of a concern than are Mr. L’s. Insofar as they relate to parenting, no parents are perfect. It is in G’s best interests that she knows, and spends time with, both of her parents, despite their flaws.
[231] If Ms. N and Mr. L want to be the best parents they can be for G, it is important that they each continue to try to act “honourably” and be truthful, and teach G to do the same. It would be far more helpful for each of them to focus on his or her own behavior than it is to be scrutinizing the flaws of the other.
Emotional Stability, Interpersonal Relationships and Support Network
[232] The final area of concern raised by Mr. L is Ms. N’s difficulties in controlling her emotions, in sustaining relationships and in her lack of a support network.
FRIENDS
HG
[233] I was concerned by the testimony of HG, the neighbor who took Ms. N and G in, when Ms. N separated from Mr. L in the summer of 2017.
[234] It is very unfortunate that this friendship did not continue. What is even more unfortunate is Ms. N’s immature manner of dealing with HG, now that the friendship is over. I have heard about the confrontation outside G’s school, with Ms. N yelling at HG in the presence of both G and HG’s daughter (G’s former friend). Regardless of the cause of the argument, Ms. N’s behavior is inexcusable. This is not how she should teach G to deal with conflict.
[235] However, my impression is that HG has also contributed to the conflict. I have no wish to get into the conflicting testimony between Ms. N and CS versus HG about who is more of a “party girl” and who has more questionable moral standards in terms of sexual activity. It is completely unnecessary. What is more important is the way that Ms. N has dealt with HG, in light of the conflict. I was quite dismayed to learn that, even at the courthouse during the trial, Ms. N walked past HG in the waiting room and muttered a slur about her.
[236] HG talked about Ms. N yelling at E and G, when Ms. N was under stress. This is one of my biggest concerns about Ms. N. The OCL referred to her “emotional lability”, which I take to mean “instability”. Although she generally behaved very appropriately in court, at times she became quite agitated, raising her voice and speaking rapidly.
[237] This is a worry when parenting a child. Parenting is stressful and it is important for a child to be able to expect consistency and restraint from her parent, even in difficult circumstances. Ms. N absolutely has to work on this.
[238] However, I do not find that her emotional response to stress is so extreme that it requires her time with G to be curtailed or supervised. This is particularly true, given the lack of concerns raised by either CAS or G about Ms. N’s parenting of G since separation. There have never been reports of any physical discipline and G does not report being frightened of, or uncomfortable with, her mother, in any way. There have also been no reports about Ms. N having anger management issues by either of Ms. N’s other children, E and J, from the time that they were living with Ms. N.
[239] In fact, the concerns raised by E and J all relate to Mr. L. They talk about him being angry, “grumpy” and particularly unkind to J.
[240] Mr. L was at least as emotional as Ms. N during this trial, crying at various points almost every day. I have already referred to how alarming it was to witness him going from calm to yelling in a matter of seconds, when cross-examining Mr. D. I also remind Mr. L that he was very emotional during this trial.
[241] These emotions are understandable, particularly in a stressful trial situation. However, it is difficult for Mr. L to raise this as a concern regarding Ms. N, without recognizing that he has the same struggles.
[242] In summary, I appreciate the concerns raised by HG but find that her problematic relationship with Ms. N may have affected her impartiality. I also find that, while Ms. N needs to work on her emotional reaction to problems, so does Mr. L, so this is not a factor that gives Mr. L any advantage in my analysis of the time that G should be spending with each parent.
Mr. D and Ms. C
[243] I have already discussed the testimony of Ms. N’s friend, Mr. D, and her tenant, Ms. C. Both speak warmly of Ms. N and describe her as a “good mother”. They speak of her spending time with G, doing activities, homework and preparing meals.
[244] This reassures me that, although Ms. N has obviously had some problems with HG, she is not without friends.
PARENTS
BN and CN
[245] Interestingly, Ms. N’s father, BN, did not testify in this trial against his daughter. It was BN’s wife, CN, who gave evidence on Mr. L’s behalf.
[246] I have already reviewed the fact that BN and CN have sued Ms. N’s partner, CS, for possession of the home in which he lives with Ms. N. They have every right to do so, of course, because CS was in default on his mortgage payments.
[247] I agree with Ms. N that the timing of the lawsuit was unfortunate for her claim for custody of G. However, it is not surprising, given the disclosure by Mr. L in his Go Fund Me page that his legal bills were being paid by Ms. N’s “parents”.
[248] My impression is that the driving force behind the actions of the “parents” is CN. She may have good reason for her displeasure with Ms. N and CS but it is clear that she is aligned with Mr. L and is making a concerted effort to ensure that G is removed from Ms. N’s care.
[249] Initially, BN and CN were supportive of Ms. N. CS was an employee of theirs before his relationship with Ms. N began. They also gave Ms. N a job but, ultimately, fired both CS and Ms. N due to various concerns, including Ms. N bringing G to the jobsites. There was also some suspicion regarding a missing chainsaw (that was ultimately returned).
[250] CN is a very accomplished and capable businesswoman. She is organized and thorough. She is also used to being in charge. This was illustrated throughout her testimony.
[251] For example, as already discussed, at one point BN and CN were out of the country on vacation. Ms. N knew where the keys to their truck were and borrowed it, ostensibly to get to court. The mileage showed that the truck had also been used for other purposes. CN indicated that Ms. N and CS were not charged by the police with theft because BN did not want to have his daughter charged. However, it was clear that CN has not forgiven them for undermining her authority and taking the truck without her permission.
[252] On another occasion, BN and CN gave E a cellphone for Christmas. However, CN continued to try to control the use of the gift. She monitored the account, for which she and BN were paying, and noted that phone calls were being made by people other than E. They arrived at the home of CS and Ms. N several times, uninvited and demanding answers. Ultimately, CS told them to take back the cellphone and leave them alone.
[253] I have already discussed CN appearing at Ms. N’s home when she was trying to get G off to school with Mr. D. CN blocked the driveway to try to stop Mr. D from having access. Her rationale was that she didn’t think he was an appropriate person to be driving “their granddaughter” to school. With all due respect to CN, there were more productive ways for her to deal with any concerns. She was overstepping appropriate boundaries for a step-grandparent, in attempting to interfere with Ms. N’s parenting decisions in this way.
[254] Another example of CN being overly intrusive was her calling CS’s employer to tell him that CS was driving G in the company truck. She learned that this was allowed by his company policy. However, this really was none of her business.
[255] The impression I had was that CN is used to being in charge and does not like having her authority questioned. Clearly, she now has a vendetta against Ms. N, which is playing out through her attempts to have G placed with Mr. L.
[256] Ms. N is not blameless in this. As she freely admits, she has made mistakes in the past and this has, probably, legitimately caused CN to question whether G might be better off with Mr. L. Ms. N also has reacted negatively to CN’s interference. The “yelling and screaming” that CN says Ms. N has directly against her has not helped matters much.
[257] However, in the end, I am satisfied that CN has escalated issues unnecessarily and contributed to the poor relationship with Ms. N.
[258] Ms. N seems very concerned about the rift with her father. As she said about G and Mr. L, “every little girl needs her daddy”. Ms. N seems genuinely perplexed with why CN dislikes her so much but Ms. N says she is prepared to apologize for “whatever it is I have done”, in order to repair the relationship with her father. Whether or not her father is interested, or whether CN will stand in the way of Ms. N’s attempts to make amends, remains to be seen.
[259] However, for the purposes of deciding whether G should be spending time with her mother, I am not satisfied that the rift between Ms. N and her father (and CN) is sufficient reason to affect Ms. N’s parenting schedule.
ML and AL – The Paternal Grandparents
[260] I have already discussed how wonderful Mr. L’s parents have been to G. Mr. L shared a very touching story of trying to “lift the weight” from G’s shoulders about this litigation by having a Grandpa/Granddaughter chat with her. The essence of the talk was that she shouldn’t “take on mommy and daddy’s troubles” and, when she was with her him, she should just “be the little girl she is” and have fun being his granddaughter.
[261] I was impressed with Mr. L, Sr, who is obviously a kind and caring person and grandfather. Although he was concerned about Ms. N’s ability to maintain a clean and sober lifestyle, he was very reluctant to be drawn into criticisms of her.
[262] I also give Ms. N credit for recognizing what a support ML and AL have been to both her and G. Even though they are obviously aligned with their son, Ms. N refused to say anything negative about them and repeatedly talked about them as “wonderful people”.
[263] This gives some reassurance that, if people deal with Ms. N appropriately, she can maintain a positive relationship with them, despite differences.
CURRENT PARTNERSHIPS
CS
[264] Ms. N’s new partner is CS. They have been living together since shortly after Ms. N separated from Mr. L.
[265] I was extremely impressed by CS. He gave his evidence in a straight-forward, honest manner. He showed exceptional restraint during cross-examination, even when Mr. L asked him about very sensitive issues that, as far as I could tell, were of no real relevance, other than to test CS’s self-control, as well as his commitment to Ms. N.
[266] CS behaved admirably. His evidence is that he intends to continue in a long-term relationship with Ms. N, despite mistakes she may have made in the beginning of their time together. Although the police reports reveal that there have been some problems between the two of them, they are isolated and appear to have been a result of Ms. N’s volatility, rather than any misbehavior on CS’s part. The texts that I viewed between CS and Ms. N (which Mr. L surreptitiously obtained from G’s cell phone), show a level of warmth, honesty and commitment to working out problems that bodes well for their future relationship.
[267] I accept CS’s evidence that he only drinks occasionally, not to the point of intoxication, and he does not use any illegal drugs. Although HG suggested that CS and Ms. N drank excessively while they were staying with her, even if that is true, this was in the first few weeks of their relationship, immediately after Ms. N and Mr. L had separated. There is no evidence that alcohol use continues to be a focus of their relationship. Even if HG is correct in her recollection that CS drove a motor vehicle on one occasion after consuming several beer, I am satisfied that this would, at best, have been an isolated incident. CS has no alcohol related (or any other) criminal record and he understands that his employment is contingent on him maintaining a clean driving record.
[268] I was also impressed with CS’s focus on G. When the police told him that Mr. L could be charged for threatening to kill him, CS advised that he decided not to push it, because “it would hurt G if her father were charged.” CS appeared far more focused on the need to avoid conflict with Mr. L for G’s sake than did Mr. L. This certainly speaks highly of CS.
[269] I also note that the OCL observed the warmth between G and CS. She described him warmly greeting G on his return home, lifting her up with one arm, with G smiling and giggling and, ultimately, climbing up on his shoulders. He offered to help Ms. N with dinner and praised G about her school work. Overall, G seemed even more animated with CS than she did with her mother, and was generally playful and happy when in his presence.
[270] This satisfies me that CS is a positive in Ms. N’s plan for G. As CS tends to be at work from Monday to Friday, this is another reason why it is better to structure G’s time with her mother primarily on weekends, so that CS will be there to participate and provide a moderating influence, should there be any issue with Ms. N becoming emotional or drinking to excess. CS will also be able to assist with transportation, given Ms. N’s lack of a licence.
Summary
[271] Ms. N has had difficulty with conflict resolution and interpersonal relationships. However, she has also been able to form good relationships with her friend, Mr. D, and her tenant, Ms. C. She has now been in a relationship with CS for two years, which seems reasonably strong and healthy. CS is good with G.
[272] The evidence about Ms. N’s emotional volatility and difficulties in personal relationships is not ideal but it is not so overwhelming that it establishes that G should be denied time with Ms. N, or that their interactions need to be supervised.
DECISION ABOUT WEEKEND AND HOLIDAY TIME
[273] Having examined all of the evidence about Ms. N’s supposed “failings”, I am not satisfied that she needs to be supervised when she is with G. It appears that the benefits of G spending time with her mother, outweigh the concerns. On the evidence I have heard, I am also not satisfied that there needs to be a term requiring drug and alcohol screening before and after visits, as Mr. L requests.
[274] Both parents have some personal issues they need to work on. Fortunately, it seems that Ms. N and Mr. L’s parenting strengths may complement each other. Mr. L is well suited to maintaining structure and routine during the school week. Ms. N is a little more carefree and open with G, so her time with G is better scheduled on weekends and during holidays. It is also helpful to have G spending time in her mother’s care when CS is most likely to be off work.
[275] I recognize that G will also need to spend some “out of school” time in the town where she is going to school, so that she can develop friendships and independence by spending time away from both her parents. While I know that Ms. N would like to spend as much time as possible with G, the priority has to be G’s needs, so some time has to be built into G’s schedule for weekends in her hometown.
[276] I am therefore ordering that, on alternate weekends, beginning with the first weekend after school begins each year, G should be with her mother from Friday at 5:00 p.m. to Sunday at 5:00 p.m. Mr. L should deliver G to her mother’s home on Friday and Ms. N is responsible for arranging for her to be returned to Mr. L’s home on Sunday.
[277] On the second weekend of each month, G is to be with her mother from Saturday at 2:00 p.m. to Sunday at 5:00 p.m. The same transportation responsibilities apply. This will allow G to spend some Friday nights with her father, grandparents or friends in their town.
[278] On the fourth weekend of each month, G is to be with her father.
[279] Unless Mr. L and Ms. N agree otherwise, school holidays such as Christmas, Easter and March break should be split equally. G should alternate the period from December 24 at 2:00 p.m. to December 26 at 2:00 p.m. between her parents’ homes. This will allow G an uninterrupted period to enjoy the holiday festivities, without having to travel during Christmas day. If her parents cannot agree on who gets what year, Ms. N will have all even numbered years and Mr. L will have all odd numbered years, so that G will be with Mr. L from December 24 to December 26, 2019 and each alternate year thereafter. The balance of the Christmas break will be divided, so that each parent has one-half of the total time with G.
[280] “Long weekends” should follow the regular weekend schedule, with the return time being 5:00 p.m. on Monday, if it is a holiday.
[281] Unless the parties agree otherwise, school Professional Development days should not affect the regular weekend schedule. For example, if a Friday is a PD day, it should be spent with Mr. L (or his parents or other alternate caregiver as he may designate).
[282] Despite the limits imposed by the school schedule during the school year, it is in G’s best interests to continue to spend as much time with her mother, who has always been her primary caregiver. Fortunately, the summer holidays affords an opportunity to increase Ms. N’s parenting time.
[283] Summer holidays should be shared on a two-week/one week rotation. G should be with Ms. N from the Friday after school ends, for two weeks, until the second following Friday. She should then be with her father from that Friday until the following Friday. The 2/1 weekly rotation should continue for the rest of the summer. If there are less than nine weeks in the summer, G should always be returned to her father’s home on the Friday before school is to begin, so that she can settle in and get ready to begin the school year. Unless the parents agree otherwise, the exchange time should be 4:00 p.m. on Fridays, so that either party can take G away or enroll her in summer activities. This should also allow G an opportunity to spend extended periods of time with her grandparents at her “Favourite Place in the world” – The French River.
[284] All of this is, of course, contingent on Ms. N having suitable accommodation for G to stay with her overnight. If Ms. N has moved and there is any issue about whether there is a protection concern if G stays overnight at Ms. N’s new residence, CAS may be contacted. Hopefully, they will be prepared to inspect the residence and advise the parties whether the accommodation is adequate. If CAS does not have a protection concern, G will be permitted to stay there overnight. If CAS reports that G would not be safe at Ms. N’s new residence, G is to be with her mother from 10:00 a.m. to 8:00 p.m. on any day that she would normally be scheduled to stay overnight, unless the next day is a school day. If the next day is a school day, G is to be with her mother from 10:00 a.m. to 5:00 p.m. Ms. N is responsible for arranging G’s transportation.
[285] Given Ms. C’s consumption of multiple narcotics and alcohol for pain relief, she should not be caring for G on her own at any time.
PARENTING RESPONSIBILITIES AND COMMUNICATION REGARDING G
[286] As Mr. L will be caring for G during the school week, he needs to be able to make decisions about day-to-day issues regarding school. If a major educational decision needs to be made, such as moving her school, he should consult with Ms. N prior to making the decision. If the parties cannot agree, or there is no response from Ms. N within 48 hours of receiving notification of the issue in writing, Mr. L may make the final decision.
[287] Similarly, as G will be residing with her father during the week, when most medical and dental appointments need to be made, Mr. L will have the primary responsibility for making all of G’s appointments with doctors and dentists. If G requires medical attention when in the care of either parent, that parent should immediately notify the other parent by text and may then make any necessary decisions for urgent medical care that are necessary. Both parents may attend at any hospital or other medical facility or office when G has an appointment or is receiving urgent medical assistance. Ms. N should not attend the dentist’s office with G, unless Mr. L requests that she do so.
[288] Either party may expose G to any religious training, services or activities that he or she deems appropriate during the time that G is scheduled to be with him or her. If G participates in any significant religious ceremonies, such as baptisms, confirmations, plays or concerts, both parents should be advised as soon as it is scheduled and both parents are permitted to attend.
[289] Either parent may enroll G in any extracurricular activity that he or she wishes, provided that it will not affect G’s time with the other parent and there is no request that the other parent contribute to the expense. The other parent should be advised within 24 hours of the enrolment, as a courtesy. If the activity will affect G’s time with both parents, or there is a request that both parents contribute to the expense, G is not to be enrolled without the consent of both parties, such consent not to be unreasonably withheld.
[290] If the parties need to contact each other about a time sensitive issue regarding G, they should text each other. If Ms. N wishes to be involved in G’s care, it is her responsibility as a parent to ensure that she has a working cell phone at all times and that she checks it for messages frequently throughout the day.
[291] For non-urgent messages, the parties should use a Communication Book. It should travel back and forth with G, preferably in her knapsack. Each party should record any significant events that have happened with G while she was in that party’s care, such as school communications, events or achievements and medical or dental issues. Each party has a responsibility to check for the Communication Book as soon as G arrives in his or her care and notify the other parent by text if it is missing. If one parent fails to attend to his or her responsibilities regarding the Communication Book, this may be raised as a factor in any future Motion to Change the terms of this order. This is an essential part of the parenting plan and a chance for each parent to prove he or she is responsible and capable of working with the other parent to meet G’s best interests. All communication is to be factual, respectful and relate to issues regarding G only. The parties should remember that G, and a court, may read the book. It is not a mechanism for them to engage in unproductive exchanges regarding complaints about the other or his/her care of G.
[292] As the parents are co-parenting G, and G is being transported between their residences each week, neither should move any further than 75 km from the other’s residence without agreement or permission to do so. Each parent should keep the other informed of his or her residence and telephone number at all times, and advise the other in writing at least 30 days in advance of any intention to move.
THE “LABEL”
[293] The word “custody” is falling out of favour in Canada. The federal government has recently recognized the damage that the word “custody” can do to families by amending the Divorce Act[^8], to replace it with the concept of a “parenting plan”. It is expected that the Ontario government will follow suit and amend the provincial legislation with language more focused on the child than it is the rights of parents.
[294] However, as this application has been brought under the existing Children’s Law Reform Act[^9], I am required to use the language of that legislation. I also recognize that schools, doctors and other organizations may require an order that includes the word “custody” or “joint custody”.
[295] The essence of my decision is that both parents have strengths and weaknesses and it is in G’s best interests that both of them are involved in her upbringing in a meaningful way. I have tried to craft an order that will allow them to co-parent G, while trying to ensure a practical arrangement for important decisions about her to be made on a timely basis.
[296] I have no concern with Ms. N’s ability to work with Mr. L. She recognizes that “every little girl needs her daddy” and took great care in this trial to try to avoid attacking Mr. L, even when he did not reciprocate. She has been able to work reasonably with Mr. L about issues regarding G in the past. For example, Ms. N has agreed to changes in the schedule to allow Mr. L to take G to family events, including visits to the French River with her grandparents.
[297] The problem is Mr. L. I recognize that he has been exposed to some horrific things, both in his childhood and in his time with the motorcycle gang and drug world. This seems to have left him with a terrible view of the world and an unrealistic need to control it, rather than give G healthy skills to cope with life.
[298] Mr. L acknowledged, by the end of the trial, that he needs counseling to address his unresolved issues from the past. I am particularly concerned about his hypervigilance regarding Ms. N, extending to G. For example, his evidence about questioning the parents of G’s friends regarding alcohol consumption, then “snooping around” their backyards to verify their answers, showed an unhealthy, and unrealistic, need to control the situations G will meet in her life. His angry accusations about various men being “pedophiles” demonstrated a lack of judgment and balance in his approach to problems.
[299] I am also concerned about his lack of open communication with G. He said he was going to leave discussion of female development issues and drugs to the school. He has not discussed his nightly cannabis consumption with G, even though “everyone in the community knows”.
[300] Mr. L is going to be caring for G five days a week. He needs help, both from Ms. N and professionally. I am very concerned about his ability to effectively parent G, if he doesn’t receive some intensive counseling, both about his own personal issues and parenting a young girl.
[301] I am hopeful, now that the issues between them have been aired and decided, that Mr. L will be able to set aside his relentless vigilance about Ms. N and accept the need to work together to ensure the best future for G. It is the only arrangement that will meet G’s best interests and it is his responsibility as a parent.
[302] My preferred label for my order is “Parenting Plan”. However, to the extent that a different label is necessary, I order that Mr. L and Ms. N will have joint custody of G, on the terms I have set out above.
OTHER ISSUES
[303] As Ms. N has insufficient income to pay child support, Mr. L is not asking for any order for support. If Ms. N does obtain employment in the future, she should notify Mr. L and begin paying child support according to the Child Support Guidelines[^10].
[304] Neither party is requesting costs.
ORDER
[305] Order to go as follows:
The parties are to share joint custody of their daughter, G.
Until August 29, 2019, G will continue to divide her residence between her mother and father’s home on the existing schedule, with G spending Sunday to Thursday at her mother’s home and Thursday to Sunday at her father’s home, unless the parties agree otherwise.
On August 29, 2019, G will return to her father’s home and remain there until September 6, to complete the first week of school. Thereafter, G will reside with her mother on alternate weekends from Friday at 5:00 p.m. to Sunday at 5:00 p.m. and with her father from Sunday at 5:00 p.m. to Friday at 5:00 p.m., beginning with the weekend of September 6, 2019 (“the first and third weekend”).
G’s father is responsible for her transportation to her mother’s home on Fridays and her mother is to arrange for her transportation to her father’s home on Sundays. Ms. N is not to operate a motor vehicle without a licence at any time, if G is a passenger.
On the second weekend in every four-week rotation, G is to be with her mother from Saturday at 2:00 p.m. to Sunday at 5:00 p.m. The same transportation responsibilities apply, with Mr. L or his designate dropping G off at the beginning of her time with her mother and Ms. N arranging for G’s transportation back to Mr. L at the end.
On the fourth weekend of each four-week rotation, G is to remain at her father’s home.
There shall be no set times for telephone or computer access but, when G is with either her mother or father, she may initiate contact with the other parent at any time prior to one hour before her regular bedtime. However, if G contacts either Ms. N or Mr. L with a problem that she is having with the other parent, G should be encouraged to work out the issue with the parent with whom she is residing.
Both parents should recognize that they have different parenting styles. Each parent should be respectful of boundaries and decisions in the other parent’s home and not interfere with G’s time with the other parent.
If there is a situation of true urgency, where G’s safety may be at risk, the police or CAS may be called to investigate. However, if the investigation does not reveal a verified concern, this is an issue that may be raised in any future court proceedings to change G’s living arrangements.
Unless Mr. L and Ms. N agree otherwise, school holidays such as Christmas, Easter and March break should be split equally. G should alternate the period from December 24 at 2:00 p.m. to December 26 at 2:00 p.m. between her parents’ homes. This will allow G an uninterrupted period to enjoy the holiday festivities, without having to travel during Christmas day. If her parents cannot agree on who gets what year, G will be with Ms. N on all even numbered years and with Mr. L on all odd numbered years. This means that G will be with Mr. L from December 24 to December 26, 2019 and each alternate year thereafter. The balance of the Christmas break will be divided, so that each parent has one-half of the total time with G. If the parents cannot agree to the schedule to accomplish this, the parent with whom G did not spend Christmas day with may pick his or her time from the remaining days of the school break for that year.
“Long weekends” should follow the regular weekend schedule, with the return time being 5:00 p.m. on Monday, if it is a holiday.
Unless the parties agree otherwise, school Professional Development days should not affect the regular weekend schedule. For example, if a Friday is a PD day, it should be spent with Mr. L (or his parents or other alternate caregiver as he may designate).
Summer holidays should be shared on a two-week/one week rotation. G should be with Ms. N from the Friday after school ends, for two weeks, until the second following Friday. She should then be with her father from that Friday until the following Friday. The 2/1 weekly rotation should continue for the rest of the summer. If there are less than nine weeks in the summer, G should always be returned to her father’s home on the Friday before school is to begin, so that she can settle in and get ready to begin the school year. Unless the parents agree otherwise, the exchange time should be 4:00 p.m. on Fridays, so that either party can take G away or enroll her in summer activities, including spending extended periods of time with her paternal grandparents. If there are less than nine full weeks in the summer vacation, G should be returned to her father’s home on the last Friday of the summer break, so that she can spend the long weekend getting ready for the first day of school.
The preceding schedule will only apply if Ms. N has suitable accommodation for G to stay with her overnight. If Ms. N has moved, and there is any issue about whether there is a protection concern if G stays overnight at Ms. N’s new residence, CAS may be and requested to inspect the residence to advise the parties whether the accommodation is adequate. If CAS does not have a protection concern, G will be permitted to stay there overnight. If CAS reports that G would not be safe at Ms. N’s new residence, G is to be with her mother from 10:00 a.m. to 8:00 p.m. on any day that she would normally be scheduled to stay overnight, unless the next day is a school day. If the next day is a school day, G is to be with her mother from 10:00 a.m. to 5:00 p.m. Ms. N is responsible for arranging G’s transportation.
Once Ms. N obtains suitable housing for G to stay overnight, the regular schedule will resume. There will be no “make-up time” for any visits that have been missed.
Mr. L will be responsible for decisions about day-to-day issues regarding school. If a major educational decision needs to be made, such as moving G’s school, Mr. L should consult with Ms. N prior to making the decision. If the parties cannot agree, or there is no response from Ms. N within 48 hours of receiving notification of the issue in writing, Mr. L may make the final decision.
Mr. L will have the primary responsibility for making all of G’s appointments with doctors and dentists.
If G requires medical attention when in the care of either parent, that parent should immediately notify the other parent by text and may then make any necessary decisions for urgent medical care that are necessary. Both parents may attend at any hospital or other medical facility or office when G has an appointment or is receiving urgent medical assistance. Ms. N should not attend the dentist’s office with G, unless Mr. L requests that she do so.
Either party may expose G to any religious training, services or activities that he or she deems appropriate during the time that G is scheduled to be with him or her. If G participates in any significant religious ceremonies, such as baptisms, confirmations, concerts or plays, both parents should be advised as soon as it is scheduled and both parents are permitted to attend.
Either parent may enroll G in any extracurricular activity that he or she wishes, provided that it will not affect G’s time with the other parent and there is no request that the other parent contribute to the expense. The other parent should be advised within 24 hours of the enrolment, as a courtesy. If the activity will affect G’s time with both parents, or there is a request that both parents contribute to the expense, G is not to be enrolled without the consent of both parties, such consent not to be unreasonably withheld.
If the parties need to contact each other about a time sensitive issue regarding G, they should text each other. If Ms. N wishes to be involved in G’s care, it is her responsibility as a parent to ensure that she has a working cell phone at all times and that she checks it for messages frequently throughout the day.
For non-urgent messages, the parties should use a Communication Book. It should travel back and forth with G, preferably in her knapsack. Each party should record any significant events that have happened with G while she was in that party’s care, such as school communications, events or achievements and medical or dental issues. Each party has a responsibility to check for the Communication Book as soon as G arrives in his or her care and notify the other parent by text if it is missing. If one parent fails to attend to his or her responsibilities regarding the Communication Book, this may be raised as a factor in any future Motion to Change the terms of this order.
Maintaining the Communication Book is an essential part of the parenting plan and a chance for each parent to prove he or she is responsible and capable of working with the other parent to meet G’s best interests. All communication is to be factual, respectful and relate to issues regarding G only. The parties should remember that G, and a court, may read the book. It is not a mechanism for them to engage in unproductive exchanges regarding complaints about the other or his/her care of G.
Neither parent should move any further than 75 km from the other’s residence without agreement or permission of the court to do so. Each parent should keep the other informed of his or her residence and telephone number at all times, and advise the other in writing at least 30 days in advance of any intention to move.
G should not be left in Ms. C’s sole care at any time.
Both parents should ensure that any medications in the home, including those belonging to others, such as Ms. C, should be kept in a locked drawer, room or cabinet, to which G does not have access.
There will be no child support paid, as Ms. N has insufficient income to pay support at this time. If she finds employment, she should notify Mr. L within 60 days and commence paying child support 60 days after her employment began in the amount prescribed by the Federal Child Support Guidelines for her income. She should also provide Mr. L with a copy of her Income Tax Return and Notice of Assessment each year by July 1. Any failure to provide the required disclosure set out in this paragraph may result in child support arrears accruing from the date that the disclosure should have been provided.
There shall be no order as to costs.
All other claims made to date in this file are dismissed.
Either party may proceed with a divorce.
Court Staff shall prepare this order.
WILDMAN J.
Released: August 22, 2019
[^1]: I will be referring to the parties and witnesses by their initials throughout this decision, in the hope that their child, G, might be spared further embarrassment and harm. Her father, in particular, has already shared far too many of the intimate accusations and details of her parents’ lives in the small town in which G lives. It is not in G’s best interests to publicize them any further. G’s mother will be referred to as “Ms. N” and her father as “Mr. L”.
[^2]: Various words throughout the discussion of Mr. L’s faith are in quotations to indicate that they are his words. No disrespect to the powerful events that transformed Mr. L’s life is intended by the use of quotation marks.
[^3]: As the tests are random, they screen for different drugs each week. Not each test has checked for the presence of methadone but when that drug is checked, the test has always come back positive.
[^4]: As I explained to Ms. N, as neither party made a claim for a divorce, spousal support or anything related to property, I could not decide those issues in this trial. If either of them wishes to pursue any of those issues, they may still be permitted to make those claims after this decision is released. However, there may be time limits about how long they have to make those claims (“limitation periods”), so I strongly urge each of them to get some legal advice about making any other claims as soon as possible.
[^5]: R.S.O. 1990, c. C.12.
[^6]: It was subsequently learned that Ms. N or CS had used G’s phone to call into CS’s employer about work one night.
[^7]: See, for example, Minister of Community Services v. JM and RR, 2018 NSSC 31 and Catholic Children’s Aid Society of Toronto v. R.M., 2017 ONCJ 661.
[^8]: Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.).
[^9]: Children's Law Reform Act, R.S.O. 1990, c. C.12.
[^10]: Federal Child Support Guidelines, SOR/97-175.