COURT FILE NO.: F1248/17
DATE: 20191209
ONTARIO
SUPERIOR COURT OF JUSTICE
FAMILY COURT
BETWEEN:
Brett Owen Congdon
Leonard Reich, for the Applicant
Applicant
- and -
Amber Lynn Marie McWade and Parker Baarts
Edward Mann, for the Respondent, Amber Lynn Marie McWade
Parker Baarts, the Respondent, unrepresented, noted in default
Respondents
HEARD: October 7, 8, 9 and 10, 2019
Tranquilli J.
[1] This issues in this trial involve custody and parenting time in respect of three children, C.C., age 8, D.C., age 5 and E.C. age 4, pursuant to the Children’s Law Reform Act.
[2] The applicant Mr. Congdon and respondent Ms. McWade are the father and mother of the three children. After this application commenced, the mother reported that another individual was, in fact, the biological father of the youngest child, E.C. Parker Baarts was added as a respondent in September 2018; however, he did not deliver an answer or attend at trial. Mr. Congdon testified that he continues to look upon E.C. as his own child, as he has done since her birth. I therefore refer to the applicant and respondent Ms. McWade as the father and mother of all three children throughout the balance of these reasons.
[3] One of the only facts not in dispute at trial and which was on full display to the court is that the parents’ relationship was and is “toxic”. Their open contempt for one another was palpable in the courtroom. The evidence confirmed that each parent loves the children; however, they are unable to look beyond their personal grievances with one another. The evidence also amply demonstrates each child benefits from and wants a relationship with both parents. This poses a significant challenge in determining a parenting plan that is in the best interests of the children.
[4] The father seeks sole custody of the three children with a weekly access schedule for the mother that largely mirrors a schedule established during interim orders, as well as holiday access. The father initially sought an order permitting him to relocate to Cambridge, Ontario with the children; however, at trial he advised the court he would remain with the children in London. The father seeks principal decision-making as it relates to each child’s medical, educational and dental needs, arguing that the mother is incapable by reason of her mental health and/or substance abuse to make decisions in their best interests.
[5] The mother seeks sole custody of the children with weekend access to the Applicant on 3/4 weekends and access to E.C. on 1/4 weekends. The mother argued that access to E.C. should be different as the applicant is not E.C.’s biological father. The mother also seeks a permanent police assist order and a contempt finding as a result of the father withholding access. The mother submits that the father’s domestic violence and self-help triggered her instability as it relates to housing and past substance misuse but that she has abstained for many months
[6] The court received testimony from the father, members of the father’s extended family, a clinical investigator from the Office of the Children’s Lawyer, a child protection worker from the Children’s Aid Society of London and Middlesex and the maternal grandmother.
[7] Unfortunately, the mother found it challenging to participate at trial. She was late in attending trial and had to be cautioned for explosive outbursts during the testimony of some of the witnesses she was present to hear. She abruptly left the courtroom on the third day of trial during witness testimony, stating: “I can’t be here any longer.” She returned the next day but was uncooperative and emotional during her own examination in chief. She abruptly ended her cross-examination by the father’s counsel with the statement: “Cut to the chase, I’m done”. Although encouraged by the court to stay and complete her testimony, minutes later she again made ready to leave. She was warned that the trial would continue with or without her participation. She advised the court that the trial could continue, that she did not care and found it “boring”. She did not reattend trial thereafter and so the court was left without her response or explanation to several important questions and issues that arose in the evidence.
[8] The father presented as pleasant and cooperative in his testimony; however, he also showed a high level of defensiveness and portrayed himself as being an excellent father and free of common shortcomings. This was at odds with clear evidence of ongoing high conflict with the mother which has involved the police and child welfare. He acknowledged having had anger issues in the past but did not take responsibility for the ongoing conflict with the mother.
The Children
[9] C.C. is 8 years old and was in third grade at the time of trial. D.C. is 5 years old and needs speech language and occupational therapy support at school for developmental delay. An autism spectrum diagnosis is suspected, although not yet formally identified. E.C. is 4 years old and is in kindergarten at the same school as her brothers.
The Background Facts
[10] The father and mother are both 26 years of age. They each left high school and have not completed any further education. Both were unemployed at the time of trial.
[11] A significant amount of time at trial was focused on the history of their relationship, the circumstances of their separation and the conduct of parent in the months following separation. Although contextually important, I do not find it necessary to make findings of fact from this evidence. The circumstances were previously addressed throughout the course of several interim custody and access orders. In summary, it demonstrates the toxicity of their relationship which is at an extreme level.
[12] The parties began cohabiting during high school when their first son, C.C. was born. The parties disagree on their involvement as caregivers to the children during their relationship. They accused one another of irresponsible behaviour with illicit drug and alcohol abuse.
[13] The mother maintained that she was the primary caregiver to all three children during the relationship, that the father was not involved in any of the childcare responsibilities and that he only took on some responsibilities when she was forced to seek further education after he was fired. The father acknowledged that the mother was the primary caregiver while he was employed but testified that he was still an involved parent. He assumed the primary caregiving role after he lost his job and the mother went to school for training as a personal support worker in 2017. Both accused the other of neglect of the children’s health and education needs, particularly as it related to their son, D.C. who was showing speech delay. I was troubled that each party portrayed themselves as the responsible or involved parent yet then accused the other of neglect of the children’s health and educational needs. It is one example of both parties’ ongoing efforts to portray themselves in the best light possible and to refuse to admit any positive aspects of the other party’s parenting skills or contributions to the family.
[14] The parents separated following a domestic incident on September 5, 2017. It happened on C.C.’s first day of school. The mother and a family friend took C.C. to school and the younger children to daycare. The mother was dropped off at a private college to attend personal support worker training, with the plan that the family friend would pick up her and the children after class. The undisputed evidence is that the mother did not attend class but went to drink beer with a male friend in a nearby forest. The father testified that the family friend brought the mother and two younger children home later than expected that afternoon. He said the mother was clearly intoxicated, had several “hickeys” on her neck and had forgotten their eldest child C.C. The mother acknowledged a hickey and that she had consumed beer but not to the point of intoxication. She testified that she had not forgotten to pick up C.C. and that their family friend was on his way to get him from school after taking her and the younger children home.
[15] The parties agree that they argued after the mother’s arrival back home in front of the children; however, each accuse the other of being the physical aggressor in the incident. The father testified that she physically attacked him, leaving scratches and throwing a vacuum cleaner at him. He said the level of her violence left him with no choice but to immediately leave the house with the children. The mother testified that he grabbed her several times and shook her, leaving bruises. She went for a nap after the fight and awoke to find that the father and the children were gone.
[16] The father testified that he called his father in Cambridge, Ontario for help after leaving the family home with the children. He arranged to stay overnight with a relative in London. The next day the father briefly returned to the family home under police escort to retrieve some belongings. The father and children then moved in with his father and stepmother in Cambridge, Ontario. He started working for his father, enrolled the children in school and daycare in Cambridge and arranged for D.C. to be seen by a pediatrician.
[17] The mother filed a complaint with the police regarding the September 5, 2017 incident. On September 8, 2017, the father was charged with assaulting the mother. The father denied the allegations both in his defence to the charges and at this trial. The maternal grandmother testified she heard the fight over her daughter’s cell phone and later saw the bruises. However, she did not witness the altercation. At this trial the mother and the maternal grandmother identified photographs the maternal grandmother took of mother’s arms, apparently showing bruising from the fight on September 5, 2017. The quality of the photographs was such that I was unable to identify any injuries. I was also unsatisfied as to their reliability on such matters as when the images were taken and what other events may have arisen between the time of the separation and when the photographs were taken. In any event, the father was acquitted of the assault charges following a criminal trial in April 2018.
[18] The father commenced this application on September 12, 2017. The father, his stepmother and stepsister testified as to the necessity for the father’s move to Cambridge, the positive support for the children from the extended family and the improvement in the children’s quality of life as it pertained to their education and health care. The stepmother and stepsister contacted the mother to offer her supervised access to the children. The mother declined this offer. She did not think either the father or his family had any right to dictate her access to her children. The mother accepted their offer of Skype access with the children. The stepmother and stepsister testified the mother participated in the calls sporadically, that she frequently seemed distracted and that there often would be inappropriate adult situations in the background of the calls. The mother testified that she working as a food delivery driver to try to support herself in the family home abandoned by the father. She sometimes had to make the calls while she worked and could not always speak to the children when scheduled.
[19] The father led evidence that the mother spent her time during the months immediately following their separation consuming alcohol and drugs to excess and “partying” in the housing complex where the family had lived until the date of separation. He testified she caused extensive damage to the rental home. She was evicted and homeless. The mother blamed the father for the eviction as he stopped paying the rent after his abrupt departure.
[20] The mother admitted in her testimony that during this time, she used alcohol to numb the pain of losing her children, that she was arrested following an alcohol-fuelled brawl in the housing complex and was charged with impaired driving on another occasion.
[21] The father also led evidence to allege that the mother was involved in questionable commercial activities and filed social media postings in evidence. The mother left the trial before taking an opportunity to refute this allegation. I put little weight on this last allegation if the purpose was merely to embarrass her and question her character. I make no finding that she was, in fact, engaged in this activity. It may arguably have been relevant to their safety while they were in her care.
[22] However, I conclude that none of these past incidents and allegations are directly relevant to the determination of what is in the children’s best interests at this time. These concerns were previously before the court and addressed through a series of interim custody and access orders at. What needs to be evaluated is the impact of the interim orders as it relates to making a final disposition that is in the best interests of each child.
The Interim Orders
[23] My colleague Justice Mitrow case-managed this proceeding and issued no less than 11 interim custody and access orders between December 2017 and August 2018.
[24] Justice Mitrow addressed the father’s self-help in moving the children to Cambridge. Although the children remained in the father’s care, Justice Mitrow established terms for the mother’s parenting time and required the father to plan a move back London with the children. The father and children were back in London and temporarily living with the paternal grandmother by in or about April 2018. The interim orders also addressed the mother’s stability, required abstinence from drugs and alcohol, addiction counselling and her parenting time supervised by the paternal grandmother and later the maternal grandmother while she had no housing. The court ordered a clinical investigation by the Office of the Children’s Lawyer, which took place between February and July 2018.
[25] The interim orders gradually restructured the parenting regime to remove supervision requirements on the mother, to expand her parenting time and to establish an arrangement more akin to shared or parallel parenting, with assigned responsibilities to each parent and which would require some coordination between the parents. For example, in arranging for the children’s relocation to London, an interim order made the mother responsible for registering the child D.C. for speech language therapy. A further interim order required both parents to register for counselling to assist in their communications with one another.
Office of the Children’s Lawyer
[26] Christine Glogovic, clinical investigator with the Office of the Children’s Lawyer testified as to her investigation findings and recommendations regarding the parties’ parenting skills, custody and access as set out in report delivered in July 2018. Her inquiries included interviews of the parents, observations of each parent with the children, casual interviews of the eldest child and collateral interviews of extended family members of each parent. She obtained collateral information from the children’s schools, health care professionals, Addiction Services of Thames Valley, police services and the Children’s Aid Society of London and Middlesex.
[27] She testified that each child wanted a relationship with both parents and needed frequent contact with both parents.
[28] The investigator concluded that these young children, and particularly a child with special needs, requires predictability, consistency and mirrored routines and schedules in both homes. This requires a high level of effective communication between the parents. Instead, there was a high level of conflict that had not decreased over time.
[29] She recommended a parenting schedule that would provide the children with frequent access with both parents, provide less transitions for the children, minimize the parties’ contact with one another and ensure the children had routines and services in place.
[30] The investigator did not recommend joint custody due to the high degree of conflict. She concluded the father demonstrated some stability and he ensured the children’s needs were met. The mother told the investigator she had abstained from alcohol and crystal methamphetamine use for the last two months. Although she had not seen her counsellor, she reported that she planned to complete a drug screen and attend a 12-step program. The investigator concluded that the mother appeared to have made some gains in her life; however, she was concerned about the mother’s infrequent attendance to counselling and follow through.
[31] The investigator recommended that the father have sole custody of the children, with generous parenting time to the mother and involvement of the mother in the children’s care and activities. She emphasized in her report and her testimony that this was a “fragile” recommendation given her impression of the father’s strong negative feelings towards the mother and his stated desire to see her fail. However, the concerns of joint custody outweighed the concerns about sole custody at the time.
[32] The investigator acknowledged that her observations, assessment and recommendations were a “snapshot in time”. She was unaware of any developments since she delivered her report in July 2018 which may or may not affect her recommendations.
Interim Order – August 10, 2018
[33] Justice Mitrow noted there was helpful information from the Children’s Lawyer report and varied the interim custody and access terms in response. By order of August 10, 2018, he adjusted the interim parenting regime to provide that the children are in the interim care and control of each party on a two-week cycle where the children are in mother’s care on one week from 4:00 p.m. Wednesday to 6:00 p.m. Sunday and on the alternate week from 4:00 p.m. Wednesday to 4:00 p.m. Friday. The children are in the father’s care at all other times. This order was still in place at the time of trial.
[34] Justice Mitrow made no interim order as to custody but divided major responsibilities between the parties as follows:
a. The father is responsible for ensuring the children are enrolled in school, have medical care and to take the children to those medical appointments;
b. The mother had continued responsibility for ensuring that the child D.C. attended speech language therapy; and
c. The mother is responsible for ensuring that the children have necessary and routine dental care.
[35] Justice Mitrow required the parties to conduct access exchanges without any face-to-face contact, with any such exchanges outside of school occurring under the supervision of the maternal grandmother. He also ordered the parties to apply to Merrymount for supervised access exchanges.
[36] Finally, despite the mother’s statements that she had abstained from drug use, Justice Mitrow found there was evidence she needed ongoing addiction counselling and ordered her to continue to attend Addiction Services of Thames Valley and to enroll and participate in any programs or counselling offered by that service.
Impact of Interim Orders
[37] Unfortunately, the regime established through case management and the series of interim orders did not result in a stable or consistent routine for the children or an improvement in the interactions between the mother and father.
[38] I find that the following troubling incidents occurred, or situations continued despite the clear terms of the interim orders and particularly Justice Mitrow’s order of August 10, 2018:
a. The mother has not attended Addiction Services Thames Valley since May 2018. This is in breach of Justice Mitrow’s order. Despite her representation to the clinical investigator, there was no evidence of a drug screen or enrollment in a 12-step program. The mother did not address these concerns in her evidence beyond her bald denial that she is misusing drugs or alcohol. There is disturbing evidence to the contrary which I will address further in these reasons;
b. The mother took over seven months to arrange for a transfer of D.C.’s speech language therapy. She testified as to her efforts, but those efforts were inadequate and suggests she had other priorities. By the time a referral finally occurred, D.C. was too old for the program and had to wait for the necessary support through the school board;
c. The father registered with Merrymount for the supervised access exchange program; however, the mother did not. I received no explanation for this failure from the mother;
d. Neither party attended for the required communication counselling. The father testified that he previously took counselling at his own initiative and filed some evidence in support of that position. He said he was prepared to participate in further individual counselling if ordered; however, he could not see the point if mother did not;
e. The father unilaterally withheld the children from parenting time with the mother, contrary to Justice Mitrow’s order, for an approximate five-week period in June and July 2019. The father maintained that this was due to reasonable concerns about the mother’s activities while the children were in her care, including residing at a shelter, associating with inappropriate individuals and illicit drug use.
f. Despite the requirement for no face-to-face contact during access exchanges, both parents continued to engage in negative interactions in the presence of the children during the exchanges. Although access exchanges outside of school hours are to occur in the presence of the maternal grandmother and without face-to-face contact between the parents, the uncontradicted evidence is that the mother has regularly approached the father’s vehicle, where conflict predictably ensues. The father’s new partner videotapes these exchanges, which can hardly be said to help in calming the situation. Some interactions have involved the police:
• In June 2018 the mother reported to police that there was “confusion” as to who was to pick up their sons from school. She reported that the father attended her residence in a “rage” to pick up their daughter and left the parking lot driving erratically, almost striking a pedestrian. The police attended at the father’s residence and described that he was extremely uncooperative. He reluctantly brought the children to the door while he continued to verbally attack the police in the children’s presence.
• In July 2019 the father and mother each called 911 due to another confrontation during the first exchange that was re-established after the father withheld access. The father attended the exchange. The mother reportedly threatened the father, with the result that only their sons got out of the van during the conflict. The father left with their daughter crying and still in the van.
[39] My colleague devoted much time and attention to supporting this family through a challenging transition. It is very disappointing to see that this opportunity to establish a stable life for their children was squandered. The parties continue to allow their animosities to take a priority over the children’s best interests.
Events Since June 2019
[40] Child protection worker Jovanna Lojpur of the Children’s Aid Society of London and Middlesex testified regarding the Society’s involvement with the family since the separation in 2017. The Society never verified historical reported concerns relating to whether the mother was responsible for medical and dental neglect of the children. Ms. Lojpur was assigned to the family’s file in April 2019 and testified that the focus of the Society’s involvement at that time was on the parents’ ongoing high conflict and access issues.
[41] At the time of the worker’s initial involvement, the mother lived with the maternal grandmother and the grandmother’s partner. In June 2019, the mother told the worker that she had moved to Rotholme Women's and Family Shelter with the goal of securing her own housing. The maternal grandmother’s testimony indicated the move was prompted by conflict between her partner and her daughter. The worker made inquiries and concluded as of June 2019 that the mother’s plan to reside at Rotholme while the children were in her care was not a protection concern. She had no verified concerns about the mother’s stability, although the mother refused consent for disclosure from the Heartspace program at Addiction Services of Thames Valley.
[42] However, the father testified that he became concerned about the mother’s lifestyle when he learned of the children staying in a shelter with their mother through his eldest son and of their spending time with other people at an unknown location. The father withheld access to the mother because he was concerned about the children’s safety. The worker testified that the fact that the mother was at the shelter was not considered a risk. The worker attempted to interview the father; however, she testified that he was uncooperative with the Society. He refused to allow her into the home as he believed there were no concerns about the children while they were in his care.
[43] The parenting schedule was restored in late July 2019 after the mother brought a contempt motion. The Society became involved again on August 25, 2019, when it was contacted by a shelter worker to report concerns about the mother’s behaviour over the previous week. Although the concerns had not been verified, the shelter worker suspected the mother was using drugs or other intoxicants and was leaving the children unsupervised in another room. The mother was seen with a known drug dealer in the vicinity of the shelter. The concern which triggered the call was that the mother left the shelter with the children late in the evening, telling the shelter worker they were going to a friend’s place for a sleepover. The children were visibly distressed. The mother returned to the shelter with the children several hours later at approximately 5:30 am.
[44] The Society worker immediately met with the mother and shelter worker at Rotholme to review the concerns, particularly as it related to mother’s judgement in removing the children from the shelter overnight. Rotholme issued a 60-day suspension. The mother’s housing plans fluctuated over the next weeks, from staying with the maternal grandmother or with the friend with whom she had the sleepover. Her specific living arrangements remained vague at trial.
[45] The Society worker testified that the Society knew the mother was taking the children to stay with an individual who was known to the Society. The Society was not initially concerned about that arrangement; however, has now verified protection concerns regarding that individual’s drug use and inappropriate living arrangements. The worker testified that the Society was preparing a protection application against the mother, seeking a supervision order that would require the mother to live with the maternal grandmother while the children were in her care, abstain from drug use and limit conflict.
[46] The maternal grandmother testified that her daughter left her home in June 2019 due to conflict with the grandmother’s partner. The mother stays at her home during her parenting time and stays with her friends on the days while the children are in their father’s care. The grandmother stated her home would be open to her daughter and grandchildren for as long as needed. Her daughter and partner avoid one another during these visits. In her view, the children appear unaware of the discord and spend much of their time outside. The grandmother had taken responsibility for taking the children to school. She testified she did this to avoid conflict as the father’s new partner also takes her own daughter to the same school.
[47] The maternal grandmother witnessed some of the access exchanges. She acknowledged that her daughter had been late in arriving at some of the exchanges; however, in her view, the conflict is triggered by the presence of the father and his new partner, who records the interactions on her smartphone. Despite Justice Mitrow’s order, the grandmother did not want to be in the middle of the access exchanges. She also did not see why her daughter should not be at the exchanges, although she conceded that mother and father’s absence from the exchange would reduce the conflict and that she personally does not have any issues with the father’s partner.
Best Interests of the Children
[48] Section 24 of the Children’s Law Reform Act requires that the merits of this application be determined on the basis of the best interests of the child. I will consider each of the factors set out in that section that are relevant to the determinations. I have considered the whole of the evidence in accordance with these factors, but refer to specific evidence of note as it relates to certain of the factors:
Love, affection and emotional ties between the children and their parents, other members of their family and other persons involved in their upbringing;
[49] The Children’s Lawyer investigation confirms strong bonds of affection between each child and both parents. This was consistent with the evidence at trial. I find similar ties between each child and the maternal grandmother, who is involved with the children while they are in their mother’s care. When they are in their father’s care, they live with his new partner and her young daughter in her home. His partner testified. I concluded from her evidence that she is a consistent and positive influence in the children’s upbringing and that the children enjoy an affectionate relationship with her and her daughter.
The child’s views and preferences, if they can be reasonably ascertained;
[50] I accept the clinical investigator’s findings that each child wants to spend time with each parent. This was consistent with the evidence at trial. While the father has strong views about the terms on which the children should be in their mother’s care, he does not question that they want to and should spend time with her. I expect him to support those statements with action.
The length of time the child has lived in a stable home environment;
[51] The children’s home environment has been in flux since their parents’ separation in September 2017 but settled into a stable situation in some respect in the past year. The father has lived with a new partner and her daughter since September 2018. I was satisfied from the father’s and partner’s testimony that they have a supportive relationship and work cooperatively in maintaining a consistent routine and home environment for the children.
[52] The mother has experienced ongoing housing instability since the separation. Her limited evidence confirmed that she had hoped for assistance from a housing support worker at Rotholme; however, that would appear to have been put on hold with her temporary suspension from the shelter. The evidence of the children’s housing routine while in their mother’s care over the summer was not reassuring as it related to stability. I take no issue with the mother’s use of the shelter; the shelter can serve as a path towards a stable home environment. However, the uncontroverted evidence is that mother’s behaviour at the shelter and association with certain individuals created an unstable and unhealthy situation for the children.
[53] I find that this has fortunately been mitigated with the maternal grandmother’s involvement and willingness to provide ongoing support through her home while the children are in the mother’s care. I have questions about this as a long-term plan for stable housing given the acrimony between the maternal grandmother’s partner and the mother.
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;
[54] I accept the investigator’s observations and conclusions that the father has shown he is able to ensure each child’s needs are met. This continued to be the case at trial.
[55] In contrast, although the mother was assigned the specific responsibility of ensuring that D.C. had a timely referral to speech language therapy on his return to London, this inexplicably took over seven months to accomplish. I share the clinical investigator’s concern that this delay so early in his development could have a profound effect on his life trajectory.
[56] However, my concern about D.C.’s welfare is compounded by the father’s lack of involvement in following up to ensure that their son had a timely referral. His explanation that he needed to let the mother fail is troubling. While he may have meant that only that it showed that the mother was incapable of parental responsibility even when ordered by the court, it remains troubling that he knowingly did nothing to address his son’s needs (as opposed to criticizing mother’s inaction). It suggests a disturbing focus on his own emotional needs in priority to his children’s crucial needs. The terrible lack of communication between the parents is clearly harming the children.
[57] I accept that there are concerns about the mother’s ability to ensure the children attend school regularly and on time. This was demonstrated through the school records, showing that the majority of absences and “lates” fell on the mother’s parenting days. I did not receive an explanation from her on this issue. This had the unfortunate result of depriving D.C. of many of his speech language/occupational therapy sessions which were regularly scheduled at school on the days when he was in his mother’s care. His absences set him further behind in his development. I note that there are nevertheless “lates” and some absences that occur during father’s parenting time as well. However, I find that he is attentive to the children’s educational needs, follows up with the school and seeks the school’s guidance on improving their progress and ensuring D.C. has the necessary supports in place.
The plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;
[58] I am satisfied that the father’s current plan for custody and access is reasonable as it recognizes the children’s bond with their mother and her important role in their lives. The proposed parenting schedule is consistent with the status quo established through the interim orders, allows for shared or generous parenting time with the mother, and provides for information-sharing between the parents. There is equitable sharing of holiday time. The father lives with his partner near the maternal grandmother’s residence, which facilitates school attendance for the children and should promote easy access exchanges.
[59] His request for sole custody is consistent with the clinical investigator’s recommendation. His plan does not address how to minimize direct contact between the parents during exchanges or how the parents may be able to overcome this serious problem with professional assistance. This is a serious gap considering the impact of their conflict on their children’s lives.
[60] The mother’s plan seeks full custody and to limit father’s access to weekends only and with E.C., to only one weekend per month. Her limited testimony emphasized that she sees the children as “mine”. If she were granted custody, she would plan to move to another part of London once she obtained housing.
[61] This plan is entirely inconsistent with the children’s routines that were established through the interim orders and their noted enjoyment of time with both parents.
[62] Of the two plans, I find that the father’s plan better addresses the children’s needs.
The permanence and stability of the family unit with which it is proposed that the child will live;
[63] I am satisfied that the father is in a stable relationship with his partner and the children are established within that unit, along with the partner’s daughter.
[64] Although the mother fortunately has the maternal grandmother’s support to provide housing while the children are in her care, the stability of this arrangement is uncertain as a long-term plan. Due to this uncertainty and lack of information about mother’s circumstances, I find that the father’s family unit is more permanent and stable than the mother’s at present.
The ability of each person applying for custody of or access to the child to act as a parent;
[65] These are young children who are highly dependent on their parents for their physical, emotional, intellectual and social development. I agree with the clinical investigator’s conclusions that both parents have anger issues and that neither parent is consistently child focused. These conclusions were consistent with my observations of the parties and assessment of the evidence.
[66] Despite Justice Mitrow’s clear direction that there be no face-to-face contact at exchanges, each parent put themselves in a situation where contact and confrontation was inevitable. Both parents seem to be incapable participating in an access exchange without conflict which seems to be at risk at developing into violence. It is extremely troubling that both parents allow themselves to descend into a lack of control in front of their children and let their own emotions to disrupt the children’s enjoyment of time with a parent. Neither can be said to be modelling positive behaviour or appropriate coping skills for the children.
[67] The mother’s lack of participation at trial did not allow me to address whether she has an ongoing addiction issue. She admitted to an unidentified mental health diagnosis for which she said she was taking lithium. She denied current drug use or addiction and gave no explanation for her failure to attend for addiction treatment as ordered by Justice Mitrow. While there was no evidence that established current drug use, there was sufficient evidence to establish a concern given the admission of past use, the lack of treatment, recent events and her conduct at trial. She chose not to respond to these concerns with her lack of participation at trial.
[68] Her housing instability and lack of judgment in removing the children from the shelter overnight is concerning. She did not explain her lack of timely follow up on securing important speech therapy for her son or the issues with school attendance. I am not expecting perfection, but there were so many unanswered issues and her erratic behaviour at trial was such that I find that I find there is sufficient evidence of instability that calls her ability to parent at this time into question.
[69] I have concerns about father’s anger issues and his role in allowing conflict with the mother to take priority over the children’s interests. However, I conclude that he is currently able to act as a parent in attending to their needs. I recognize that the father has had some reason on occasion to be frustrated with the mother’s conduct or lack of follow through; however, in my view he would benefit from counselling in order to find a more constructive way to respond.
Any familial relationship between the child and each person who is a party to the application;
[70] I give no weight to the mother’s insistence that the father has no claim to E.C. He has clearly treated her as his daughter, and she looks to him as her father.
Whether the person has at any time committed violence or abuse against his or her spouse;
[71] The parties give conflicting versions of the altercation that led to their separation on September 5, 2017 and each claim physical injury. It is evident that there was physical conflict; however, the father was acquitted of the assault charge and the mother’s evidence at this trial was vague. I make no determination on this issue as it relates to a best interests determination of the children except to again register my concern about the impact of the dysfunction and general violence in the relationship on their children.
Determination of Custody and Access
[72] Considering all of the evidence in accordance with s. 24, I conclude on balance that it is in the children’s best interests for the father to hold sole custody at this time.
[73] The level of conflict between the parties is such that joint custody has never been a serious consideration and the trial evidence amply confirmed this view. As the children’s have strong bonds with their mother, I would have preferred that she carry responsibility for some of the major aspects of the children’s lives and decision-making in the children’s care. However, I find that she did not sufficiently meet those expectations under the interim order. I am concerned that D.C.’s development and the children’s education has already been put at risk by her inability to meet her responsibilities as a parent. She is simply not in a position to make decisions in her own best interests at this time, let alone for her children.
[74] I am concerned about the father’s behaviour towards the mother and that he understands that my order does not give him the power to control the mother’s participation in their children’s lives.
[75] I accept the clinical investigator’s recommendation for a parenting schedule that provides the children with frequent and regular access to each parent. This is consistent with the direction of the interim orders and carries on a familiar routine with the children. While there were issues with mother’s transience and choices over the summer 2019, this is mitigated through the maternal grandmother’s participation in facilitating the mother’s parenting time. Due to the unanswered questions about mother’s stability and judgement, I require that the mother’s parenting time be supervised by the maternal grandmother, including in the community.
[76] My impression of mother’s behaviour is that it has been exacerbated in part by her loss of her role since separation and that she has felt vulnerable and marginalized ever since. She was unfortunately unable to use the opportunities afforded to her through the interim orders to re-establish her role. While the mother needs to take responsibility for her actions and address her instability, I also find that the father’s conduct has unnecessarily continued the conflict to the detriment of their children.
[77] It is the father’s responsibility and duty to support and encourage the children’s relationship with their mother and to ensure that she is aware what is going on in their lives and has the opportunity to participate. This duty requires more than just words and expects his active engagement. If the father fails to fulfil that responsibility, I expect that the mother will seek the court’s review of the matter.
[78] It is my hope that the mother will be able to seek the necessary treatment, support or care that will allow her to fully resume her role and responsibilities as a parent in the future. For that reason, I have provided for her to have participation in decision-making relating to the children, although the father will have the final decision in the event of a disagreement at present. The father’s extended family testified that she was previously an attentive and caring mother who only seemed to go into an unexplained “downward spiral” in the year before separation. When she can realize stability in her mental health and housing, I consider that to be a material change warranting review of this order.
[79] The father and mother still require counselling, treatment or therapy in order to assist them in developing better communication skills. While their relationship as a couple is at end, they must find a way to establish skills that will allow them to have child-focused communications and interactions and to manage their reactions to the other’s behaviour. Bad conduct by one parent does not excuse bad conduct by the other parent. Someone needs to start taking responsibility for de-escalating the conflict. They each need to successfully complete individual counselling before either can be ready for group counselling. Their counsellor(s) or therapist(s) should have a copy of these reasons as part of their review of the history of the concerns and why this counselling is ordered.
Request for a Contempt Order and Police Assist Order
[80] I do not approve of the father’s unilateral withholding of the children from access in clear contradiction of the court order, particularly with the history the initial incident of self-help. He was represented by counsel. The expected course of action was to bring an urgent motion to address his concerns about the children’s safety, at which time the mother would have been expected to account for her plans and living situation. However, I am satisfied that the father’s concerns on this occasion were in good faith and were substantiated by the Society shortly after access was restored. For that reason, I make no finding of contempt.
[81] However, I caution the father that this decision does not endorse his actions and is not a licence for him to suspend parenting time of his own decision. It is my expectation that he will seek the court’s assistance should there be future concerns about the best interests of the children or compliance in connection with this order.
[82] I do not think it appropriate to provide for police enforcement of the parenting time in this order. In my view, s. 36 of the Children’s Law Reform Act allows for police enforcement in response to an existing or reasonably anticipated situation of unlawful withholding of the child. The wording of the section does not contemplate its use as a long-term, open-ended and instant remedy for possible future contempt of court. I am also concerned that such an order would be open for abuse by either parent to escalate a minor disagreement rather than to problem-solve. Most important, these young children have already been exposed to enough police involvement and have unfortunately witnessed their parents resort to calling the police when unable to manage and coordinate their parenting in a mature manner. This is hardly a model environment in which they should be raised. They deserve better from their parents. I agree with the maternal grandmother’s observations that: “they need to act like parents, grow up and work like parents.”
[83] A better long-term strategy that promotes the best interests of the children is for both parents to use therapeutic alternatives, such as the counselling I have ordered, to minimize the risks of future non-compliance and conflict during access.
Orders
[84] In accordance with these reasons, the following final orders issue:
The Applicant Brett Owen Congdon shall have custody of the children C.C. born November 20, 2011, D.C. born August 17, 2014 and E.C. born November 27, 2015.
The principal residence of the children shall be with the Applicant in London, Ontario. The Applicant shall not relocate the children from London, Ontario without prior written consent of the Respondent or prior order of the court.
The Respondent Amber Lynn Marie McWade shall have access to the children C.C., D.C. and E.C. as follows:
a. Alternate weekends from Friday after school until Sunday at 7:00 p.m.;
b. Every Wednesday from after school to 7:00 p.m.;
c. Alternate weeks during the summer school vacation, and the children shall be with the Applicant for the Labour day weekend;
d. One half of the two-week Christmas school vacation with the Respondent having the first week in even-numbered years and the second week in odd-numbered years;
e. One-half of the March Break school vacation;
f. Easter weekend shall be split into two-day periods and in even-numbered years the Respondent shall have the children from Thursday after school to Saturday at 7:00 p.m. and the Applicant shall have the children from 7:00 p.m. Saturday until 7:00 p.m. Sunday. In odd-numbered years at Easter, the children shall be with the Applicant from Thursday after school until Saturday at 7:00 p.m. and with the Respondent from Saturday at 7:00 p.m. until Monday at 7:00 p.m.;
g. Alternate Thanksgiving Day from 10:00 a.m. to 7:00 p.m. and the children shall be with the Applicant on Thanksgiving Day on even-numbered years and with the Respondent on Thanksgiving Day on odd-numbered years;
h. Such further and other times as the parties may agree;
i. The Respondent’s access on these occasions shall take place at the residence of the maternal grandmother, Lisa McWade or in the community under the supervision of the maternal grandmother, Lisa McWade;
j. Apart from pick-up at school on alternate Fridays and Wednesdays, all access exchanges shall be in the parking area of the residence of the maternal grandmother, Lisa McWade, currently at 83 Admiral Drive, London. Neither the Applicant nor the Respondent will be present at the access exchanges at 83 Admiral Drive, and the Applicant’s designate shall remain the vehicle during the exchange;
k. Neither party shall consume drugs or alcohol 24 hours prior to or during access;
The Respondent shall ensure that John McWade shall have no contact with the children while the children are in her care and control;
Both parties are responsible to ensure each child attends school, including on a timely basis, during the time in which the child is in that party’s care and control;
The Applicant shall be responsible for arranging all medical care, dental care and education for the children. The Respondent shall be entitled to all information from these service providers. The Applicant shall sign all consents required to enable the Respondent to obtain such information;
The Applicant will consult with the Respondent for her advice and opinion before making any decisions touching upon each child’s medical care, dental care, education, extracurricular activities, sports and hobbies. However, in the case of any disagreement between the parties, the Applicant will make the final decision;
The Applicant shall advise the Respondent of any professionals involved in the children’s lives and what services those professionals are providing, as well as any activities the children are involved in.
The Applicant and Respondent and all extended family members (with the exception of John McWade) are at liberty to attend all concerts, presentations or other school activities that are open to family members involving the children and the school.
The Applicant and Respondent and all extended family members (with the exception of John McWade) may attend any afterschool activities involving the children that are open to others.
In the event of a health emergency affecting the child, the party having care of the child shall immediately and promptly notify the other party. In the event of a health emergency during the time that a child is in the Respondent’s care, the Respondent is entitled to make any health care decisions considered to be urgent in the view of the health care provider while the Applicant is not available and shall take immediate steps to contact the Applicant to update the Applicant and involve him in any necessary further decision-making. Additional decisions will be made in accordance with paragraph 7 of this order.
Neither party shall speak negatively about one another or any of the children’s family members in the presence of or with the children.
Neither party shall speak about adult issues, such as the custody and access issues in this litigation or finances in the presence of or with the children.
The Applicant and Respondent will each enroll in, participate in and successfully complete individual counselling focused on child-focused communication and decision-making regarding issues relating to the children and follow any advice for further treatment, counselling or therapy advised by those individuals. A copy of these reasons shall be provided to each counsellor or therapist involved in this counselling.
Communication between the parties shall be by text or email only and shall be limited to child-focused issues regarding the children.
The Respondent shall attend Addiction Services of Thames Valley and shall enroll, participate in and successfully complete any programs or counselling offered or recommended by Addiction Services of Thames Valley.
When the Respondent demonstrates stability in housing, mental health and substance misuse, this shall be deemed to be a material change in the circumstances for the purpose of this order.
[85] A copy of these reasons and the order shall be provided to the Children’s Aid Society of London and Middlesex.
[86] Each party will bear its own costs of these proceedings.
“Justice K. Tranquilli ’’
Justice K. Tranquilli
Released: December 9, 2019
COURT FILE NO.: F1248/17
DATE: 20191209
ONTARIO
SUPERIOR COURT OF JUSTICE
FAMILY COURT
BETWEEN:
Brett Owen Congdon
Applicant
- and -
Amber Lynn Marie McWade and Parker Baarts
Respondents
REASONS FOR JUDGMENT
Tranquilli J.
Released: December 9, 2019