Court File and Parties

COURT FILE NO.: FC-17-1516 DATE: 2019/12/13

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Derek Warren Applicant

– and –

Ashley Hoskins Respondent

Counsel: Self-represented Judith Allen, counsel for the Respondent

HEARD: September 23, 24, 25, 26, 27, 30, October 1, 2, 3, and 4, 2019 (at Ottawa)

REASONS FOR JUDGMENT

SHELSTON J.

Overview

[1] The issues for this trial are the custody and access to the parties’ child, Kingston, born January 15, 2015, table child support and section 7 expenses, extended health coverage, security for the child support and costs.

[2] In the original application filed by the applicant (“father”), he sought sole custody of Kingston and his non-biological child, Stacey. On August 6, 2019, the father filed a withdrawal of all claims with respect to Stacey.

[3] On October 3, 2019, the parties executed minutes of settlement confirming the father’s withdrawal of all claims relating to Stacey, that there was no finding that the father has never stood in loco parentis to the child, that the mother released any claim of child support against the father and both parties agreed to pay their own costs with respect to any issue regarding Stacey arising in this litigation.

[4] At trial, the father’s position was that he should be granted sole custody of Kingston because of the mother’s inability to act as a protective parent and the mother’s interference with his relationship with his child amounting to alienation.

[5] The mother’s position is that she should be granted sole custody of Kingston because she has been the child’s primary caregiver since birth, she is the parent best able to care for the child and the father and his new wife, for the past three years or so, have been relentless in their attempt to attack the credibility of the mother and her parenting ability in their quest to be awarded sole custody of the child.

The father

[6] The father is 34 years of age. He is the biological father of two children namely, Kingston (4 years of age) and Desmond (10 years of age). He works as a parts manager on a full-time basis. He is married to Ms. Piquette, a federal public servant.

[7] Ms. Piquette has her own biological child, Jackson (6 ½ years of age) who resides with her and has access to his biological father. The father and his wife are expecting a child in April 2020. They live on a five-acre hobby farm in Fitzroy Harbour where Jackson attends St. Michael’s Elementary School.

The mother

[8] The respondent (“mother”) is 32 years of age. She is the biological mother of five children set out as follows:

(a) Cristiano, 14 years of age;

(b) Anthony, murdered and passed away on June 16, 2010 at 14 months of age;

(c) Stacey, 8 years of age;

(d) Kingston, 4 years of age; and

(e) Atlas, born in March 2019.

[9] Since September 2019, the mother has been employed as an aesthetician working 30 hours per week. She resides with Mr. John Gordon. Mr. Gordon has three children from a previous marriage. He is unemployed and in receipt of social assistance. The mother and Mr. Gordon are the parents of a one child, Atlas.

Trial witnesses

[10] During the trial, I received and have considered the evidence of the following individuals:

(a) the father;

(b) his wife;

(c) three child protection workers;

(d) Mr. Lefebvre, a Society supervisor;

(e) the Office of the Children’s Lawyer clinician;

(f) Brenda Hoskins, the maternal grandmother;

(g) Colin McDougal; Stacey’s grandfather;

(h) Peggy McDougal, Stacey’s step grandmother;

(i) Ms. Baldwin, Desmond’s mother;

(j) Mr. Marcantonio, Cristiano’s father;

(k) Mr. Pear;

(l) The mother;

(m) Mr. Gordon;

(n) Mr. Patenaude, a friend of the mother and Mr. Gordon; and

(o) Ms. Patenaude, a friend of the mother and Mr. Gordon.

Background

[11] The mother, at age 18, married Danny Marcantonio on July 2, 2005. The parties separated in 2009. The parties had two children namely, Cristiano and Anthony. Upon separation, the mother retained the physical custody of both children and Mr. Marcantonio had access.

[12] The father had a relationship with Ms. Baldwin that ended in 2010. They are the parents of one child, Desmond, born July 6, 2009. The child lives primarily with his mother and the father had access.

[13] In 2009, the mother started a relationship with Mr. Tyler Hunt. On June 16, 2010, Anthony passed away as result of injuries sustained while being babysat by Mr. Hunt. The Quebec Child Protection Authorities commenced child protection proceedings and removed Cristiano from the mother’s care and placed him with the maternal grandmother. Eventually, Cristiano was placed with his father under a supervision order. The child has never returned to the mother’s custody.

[14] Despite the death of Anthony, the mother continued a relationship with Mr. Hunt as she did not believe he was guilty of injuring the child. Despite a court order in the child protection proceedings that the mother and Mr. Hunt were not to have contact, the mother admitted that they were in contact. On April 6. 2011, Stacey was born and was immediately apprehended by the Children’s Aid Society (the “Society”) because of the concern about the mother’s failure to recognize the potential risk that Mr. Hunt posed to the baby.

[15] On September 29, 2011, Justice Beaudoin found Stacey to be in need of protection and ordered the child placed in the joint care and custody of the mother and the paternal grandmother subject to a supervision order. At one point, Stacey was returned to the mother under a supervision order in the child protection proceedings. One of the conditions in the supervision order was that Mr. Hunt was to have supervised access.

[16] In October 2011, the mother and father met. At this time, the mother was living with Mr. Hunt’s mother who temporarily had Cristiano in her care. The father was residing in the basement of his grandparents’ home. The father supported the mother in the litigation with the Society regarding Stacey including taking a parenting course.

[17] In November 2011, the Society became aware through Algonquin College that the mother had suffered injuries to her face and that she was seen at the college with Stacey and Mr. Hunt. After being advised that this contact was contrary to the existing court order, this relationship ended in November 2011.

[18] By April 2012, the father moved in together at the mother’s home. The father and mother cared for Stacey and would have access to Desmond and Cristiano usually on the same weekend. At this time, the mother told the father that she feared Mr. Hunt.

[19] On September 18, 2012, the mother disclosed to Ms. Gropp, a child protection worker with the Society, a long history of domestic violence by Mr. Hunt towards her.

[20] On December 14, 2013, a final custody order was issued in the child protection proceedings granting the mother custody of Stacey and Mr. Hunt having supervised access. In the same child protection proceedings, Mr. Marcantonio was granted custody of Cristiano and the mother was granted access three weekends per month.

[21] The parties married on March 29, 2014.

[22] The child Kingston was born on January 15, 2015.

[23] Until the parties separated on March 15, 2015, both parents played an integral role in raising and caring for both Stacey and Kingston.

[24] On March 15, 2015, the mother decided to end the relationship with the father. The mother started a relationship with Mr. Ladouceur, the father’s best friend.

[25] At separation, the father moved to his grandparents’ basement while, in early April 2015, the mother moved to a rental unit in the west end of Ottawa with Stacey and Kingston. From March 2015 until October 2015, the father had parenting time with Stacey and Kingston on alternating weekends.

[26] After separation, there were incidents involving the Ottawa Police Service and the Society based on allegations made by both parties. No proceedings were commenced as a result of these allegations.

[27] On September 12, 2015, the father met Ms. Samantha Piquette. Within a very short period, the father moved in with Ms. Piquette and her son Jackson at her residence in the Hunt Club area of Ottawa.

[28] Effective November 1, 2015, the mother and father agreed to alternate the children between residences on a week about schedule. At this time, Stacey was attending elementary school in Kanata and Kingston was being babysat by Mr. Ladouceur’s mother in Richmond.

[29] On the weeks that the father had both Kingston and Stacey, he would leave his residence in the south east part of Ottawa, drive Stacey to elementary school in Kanata, drop Kingston off at the babysitter in Richmond and drive to work. At the end of the day the father would reverse the schedule.

[30] The father continued to be very involved in Stacey’s life. When the child was in his care, he drove the child to her cheerleading activity in Kanata as many as three times per week. In addition, with the consent of the mother, most of the doctor appointments for both Stacey and Kingston were on his weeks. Further, whenever the mother needed someone to watch the children on her week, she turned to the father.

[31] By September 2016, Stacey was attending elementary school in Stittsville and Kingston was in daycare. In January 2017, the father and Samantha decided to move to Fitzroy Harbor to be closer to the children’s school and daycare. Prior to making such move, the father confirmed with the mother that she had no plans to change her residence.

[32] The parties’ relationship was good at this time. In the October/November 2016, the father had both children for three consecutive weeks as he watched them on one of the mother’s weeks when she was celebrating her 30th birthday.

[33] In preparation of a family trip to Disney in Orlando, Florida, in November 2016, Ms. Piquette met with the mother for the first time. During that meeting, the mother denigrated the father to Ms. Piquette alleging that he cheated with other women, lied, and would only be with her for her money. Ms. Piquette was taken aback at the degree of negativity towards the father stated by the mother. In December 2016, the father and Ms. Piquette took Kingston and Stacey to the vacation at Disney.

[34] In the April/May 2017 period, the mother told the father that she was afraid of Mr. Hunt. He was charged criminally for the death of Anthony but was out on bail as his criminal proceeding had not proceeded to the trial. She also told the father that her lease was ending and that she may be moving.

[35] In early May 2017, an incident occurred when Mr. Ladouceur roughly grabbed the mother’s son Cristiano by the arm. The mother decided to end of the relationship with Mr. Ladouceur. The mother contacted, John Gordon, to assist her in finding alternate accommodations.

[36] Mr. Gordon and the mother had been dating since January 2017. Mr. Gordon was married with three children and lived in Orleans.

[37] The mother with her children and Mr. Gordon rented a hotel room and spent a week looking for rental accommodations. By May 15, 2017, the mother moved with Stacey and Kingston from Stittsville to Orleans, close to Mr. Gordon’s three young children. Mr. Gordon separated from his wife at this time.

[38] The mother’s move with the children to Orleans was without notice to the father. The mother initially did not give the father her new address. Upon discovering that the mother had moved residences, the father inquired as to the effect of such move on the parenting schedule. The mother assured the father that there would be no change in his time with the children.

[39] The children continued to alternate residences and to attend school and daycare in Stittsville until the end of the school year in June 2017.

[40] On June 15, 2017, the mother attended at the father’s work with the children and indicated she was mentally unstable and asked him to care for the children. He agreed and after one week she asked that the children be returned to her care because she was better. The father agreed.

[41] On July 10, 2017, the mother called the father to say that she had broken up with Mr. Gordon as a result of an argument and that she considered moving with the children to Sault Ste. Marie, where her mother lived.

[42] The father was concerned that the mother would be moving the children away from Ottawa, that the mother may be using illicit substances, namely cocaine, and that the mother’s living arrangements appeared to be in flux. Consequently, the father commenced these court proceedings.

Litigation commences

[43] On July 21, 2017, the father instituted an application seeking, inter alia:

(a) sole custody of the children, being Kingston and Stacey;

(b) generous access to the mother;

(c) child support from the mother;

(d) an order that the mother not allow any contact, either direct or indirect, between the children, John Gordon and Tyler Hunt;

(e) the appointment of the OCL; and

(f) costs.

[44] On July 25, 2017, the father brought a motion seeking leave to bring an urgent motion before a case conference. Leave was denied and the matter was to proceed to a case conference on September 13, 2017.

[45] The same day, after court, the mother advised the father that she was unilaterally changing the week about schedule and that the father would have access to Kingston every second weekend from Friday at 6 p.m. to Sunday at 6 p.m. as well as time during the summer holidays. Further, she denied the father any access to Stacey.

[46] On July 26, 2017, Ms. Piquette contacted the Society raising concerns about the mother’s new partner, Mr. Gordon. The worker conducted a home visit with the mother, Mr. Gordon, Cristiano, Kingston and Stacey. The worker found that the children were happy, comfortable and no issues appeared to require further investigation. No further action was taken.

[47] During this period, Mr. Gordon was charged with uttering threats to cause death against his estranged wife.

September 2017 to March 2018

[48] The parties proceed to a case conference before Justice Summers on September 13, 2017 where she ordered:

(a) the appointment of the OCL;

(b) disclosure of the Society’s file related to Kingston, Stacey, Desmond and Cristiano;

(c) disclosure of the Lanark, Leeds and Granville Children’s Aid Society file relating to said children;

(d) financial disclosure;

(e) that the parties make arrangements for Stacey to attend counselling as soon as possible and that both parents be permitted to participate in same;

(f) permitted the father to contact Stacey’s school, doctors and other professionals to obtain information pertaining to her; and

(g) granted, on a temporary without prejudice basis, the father access to both children from September 15, 2017 at 5 p.m. to September 17, 2017 at 5 p.m. and every second weekend thereafter.

[49] In October 2017, Mr. Tyler was convicted of manslaughter and sentenced to six years of incarceration.

[50] On September 27, 2017, the Society received a subsequent referral regarding Mr. Gordon with allegations of sexual abuse on his own children. On October 12, 2017, Ms. Pierce, the child protection worker, attended at the mother’s home to interview the children. At that time, Mr. Gordon argued with the worker and was aggressive towards her which resulted in the interview being terminated. On October 14, 2017, Ms. Pearce interviewed Stacey and Kingston at which time neither child made any disclosure. Ms. Pearce testified this was the second time she had met Mr. Gordon and she felt very uncomfortable in his presence.

[51] On November 6, 2017, the OCL advised the parties that because the Society was currently investigating allegations of abuse or neglect, the OCL could not proceed until the investigation was completed. Further, the mother had failed to submit the required intake form.

[52] On December 13, 2017, the OCL decided they could not determine whether they could be of assistance because the mother again failed to provide her intake form.

[53] From September 2017 to June 2018, the relationship between the mother and father worsened. The father requested access at Christmas. The mother did not provide the father with any additional access.

March 2018 to September 2018

[54] From October 2017 to March 2018, counsel for the father inquired about counselling for Stacey. The mother did not reply.

[55] By letter dated March 23, 2018, counsel for the father raised the issue of the failure for counselling to have started and requested particulars of Stacey’s counselling so that the father could contact the counsellor. On May 15, 2018, the mother disclosed that she had unilaterally retained a counsellor who decided to withdraw because she did not have the proper qualifications to conduct the required counselling.

[56] The father continued to have access to both children until the Easter weekend 2018. At that time, the mother unilaterally, and in breach of the order of Justice Summers, terminated the father’s access to Stacey because Stacey did not want to attend access and that she would not force the child to go.

[57] On April 9, 2018, the OCL assigned a clinical investigator to conduct an independent inquiry pursuant to the order of Justice Summers dated September 13, 2017.

[58] After this unilateral action, counsel for the father wrote numerous letters requesting that the mother comply with the existing court order and access to Stacey to recommence. The mother refused.

[59] The father brought a motion returnable June 12, 2018, before me, where I ordered that the father would have access to Stacey on a graduated basis starting June 22, 2018 from Friday night at 5:00 p.m. to Saturday at 5:00 p.m.; the following Friday night at 5:00 p.m. to Sunday at 7:00 p.m. and commencing July 13, 2018 from 5 p.m. until Sunday, July 15, 2018 at 5 p.m. and every second weekend thereafter as well as one week in July and one week in August. Despite the court order the mother did not comply.

[60] I also made the following orders:

(a) that the father pay child support of $525 per month based on his income of $34,517;

(b) that, on consent, the father would have access to Kingston every second weekend as well as one week in July and one week in August; and

(c) that the father would have Kingston from December 25 at 1 p.m. to January 1 at 1 p.m. and in 2019 the Christmas schedule would reverse.

[61] Despite my order, Stacey did not have access to the father in accordance with the temporary order.

[62] On June 25, 2018, the father requested the two-week summer access provided for in my order dated June 12, 2018. No access occurred.

[63] On July 31, 2018, the father brought a motion, before me, seeking the resumption of access including the request for police enforcement. On consent of the parties, I ordered that the mother was to deliver Stacey to the father for a one-hour visit on August 4 and a one-hour visit on August 6 and the matter was then adjourned to return before me on August 8, 2018. The parties did meet and Stacey played with Kingston, Desmond and Jackson. I accept the evidence of the father’s wife, who was present at the exchange, that Stacey had changed and originally, she did not want to even speak with the three boys.

[64] On August 8, 2018, I heard an urgent motion brought by the father for the resumption of access. Despite my order of July 31, 2018, the access was not successful over the August long weekend. To ensure that access take place, I reluctantly ordered police enforcement of the access order. The access was to be for two hours on August 11, 18 and 25, 2018. Further, I ordered that the father have access to Stacey commencing September 7, 2018, every second weekend with the pickup and drop off at a McDonald’s restaurant. I ordered the mother to pay the father’s costs in the amount of $1,000.

[65] After this order, the child was brought to the access and refused to get out of the vehicle. On August 11, 18 and 25, 2018, Stacey never left the truck and the father stood outside the truck to try to speak to Stacey. On one occasion, the father called the Ottawa Police Service to enforce the court order without success because of the opposition of the child to leave the vehicle.

August 2018 to trial

[66] Justice MacEachern was appointed to case manage this matter. On September 6, 2018, with the consent of the parties, Justice MacEachern made a series of temporary orders, including an order that Stacey attend counselling. Specifically, the court ordered that the mother was to provide the father with three names of qualified counsellors who were willing to provide counselling to Stacey. The father was to pick one of the three counsellors. If he was not in agreement with the three proposed counsellors, he could provide the names of three qualified counsellors. The mother was then to select one of the proposed names and if they could not agree they would provide submissions to Justice MacEachern who would determine which counsellor would be appointed.

[67] In September 2018, Cristiano disclosed to a child protection worker, the following:

(a) there were incidents of John yelling and swearing at all three children;

(b) John has told Cristiano that “he hides behind his father like a pussy and that his father cannot protect Cristiano from John”;

(c) John has told Cristiano that “he will drop my dad right in front of me”;

(d) John has sworn at Stacey by telling her to “make her fucking bed”;

(e) John forced Cristiano to eat food he did not like, even if Cristiano has spit it up;

(f) Cristiano reported that his mother and John argue and yell a lot, that they often did not interact with the children, and that the mother will often ignore the children while she is on her cell phone;

(g) John and the mother have taken Cristiano’s phone away so he cannot contact his father while on access;

(h) his mother has threatened to call the police if he does not go for access;

(i) he does not want a relationship with his mother because she is rude and does not pay attention to anyone but John;

(j) in August 2018, he saw John grab Kingston’s head and rub it in a bed sheet soaked in pee when Kingston peed the bed. He heard John tell Kingston “stop peeing the bed”.

[68] Since September 2018, Cristiano has refused to attend access with the mother.

[69] On October 1, 2018, Justice MacEachern granted a divorce order between the parties.

[70] On October 19, 2018, Justice MacEachern conducted another case conference where she made a series of orders including:

(a) with the consent of the father, the father to pay the mother’s share of the retainer for Stacey’s counselling with Dr. Catherine Horvath in the amount of $880 on a without prejudice basis and that the father’s monthly child support be reduced by $200 per month on a without prejudice basis; and

(b) the mother to obtain a referral/prescription from Stacey’s family doctor for counselling and provide this to the father within 14 days so that he can access coverage for counselling expenses under his benefit plan.

[71] In the fall 2018, Mr. Gordon’s children made serious allegations against Mr. Gordon which necessitated an investigation by the Society. During that investigation, the Society investigated allegations made by Mr. Gordon’s children that Mr. Gordon had hurt Kingston.

[72] On November 8, 2018, Ms. Martinuzzi, a child protection worker, was directed to conduct an investigation concerning the allegations that Mr. Gordon had hurt Kingston. The worker interviewed Stacey on two occasions and no disclosures were made. However, the worker noted that in the second interview, while Stacey did not voice any concerns verbally, her nonverbal behaviour indicated a level of anxiety through watery eyes, clenching of fists and long, deep breaths when asked specific questions. The worker was concerned by the child’s reaction.

[73] Ms. Martinuzzi met Kingston on two occasions. No disclosures were made at the meeting at the offices of the Society.

[74] On November 29, 2018, the Society, after investigating, verified that Mr. Gordon’s three children where at risk of emotional harm by Mr. Gordon. Such verification was based on disclosures made by his three children. Based on the allegations that Mr. Gordon was having supervised access to his own children coupled with the allegations made by the mother’s son Cristiano against Mr. Gordon on December 18, 2018, the father brought an urgent motion seeking the temporary custody of Kingston and Stacey with supervised access to the mother. Justice MacEachern dismissed the motion preferring the matter proceed to a trial already scheduled for the third week of January 2019, just over a month away.

[75] On December 31, 2018, while in the care of the father for the Christmas break, Kingston made allegations that Mr. Gordon had hit him on the head, back and shoulder. After being interviewed by Ms. Martinuzzi, she verified the allegations. The father decided to keep Kingston in his care rather than return him on January 1, 2019 as previously agreed. The Society supported the father in his decision. On January 1, 2019, the father emailed the mother advising that he would be not returning the child because of the allegations made by the child and pending further investigation by the Society.

[76] On January 4, 2019, Kingston disclosed to Ms. Piquette that Mr. Gordon had hit his penis over his pants. The father texted the Society as to the disclosure. The father retained the child. The child was interviewed by Ms. Martinuzzi who confirmed the allegations.

[77] Both Stacey and Kingston were interviewed by the Ottawa Police Services. Stacey made no disclosure. The police found the disclosures made by Kingston to be credible and charges were laid against Mr. Gordon on January 11, 2019. The worker noted that Kingston was visibly scared of Mr. Gordon and wanted no further contact with him.

[78] Based on the disclosure made by Kingston, the Society sought to enter into a voluntary services agreement with the mother. The mother did not believe the allegations made by Kingston and considered them unfounded. The mother did not agree to various conditions requested in the voluntary services agreement and was not entirely in agreement to allow private interviews with the children in view of her concerns about alleged bias against Ms. Martinuzzi. Consequently, the Society commenced a protection application regarding Kingston and Stacey.

[79] As a result of the protection application commenced by the Society, at a settlement conference on January 14, 2019, Justice Minnema stayed the custody proceeding pending the disposition of the child protection proceedings.

[80] On January 16, 2019, I heard a motion in the child protection proceedings where I returned Kingston to the mother under a supervision order which included a condition that Mr. Gordon not have any contact with the child or reside in the same residence as the mother. The father returned the child that day.

[81] On January 21, 2019, Justice MacEachern dismissed a motion by the father to have the family case proceed to trial on the issue of custody and access. The trial was stayed pending the conclusion of the child protection proceedings.

[82] By letter dated February 4, 2019, Mr. Lefebvre, supervisor at the Society, wrote to the parents that the Society had verified the allegations of physical, sexual and emotional harm by Mr. Gordon towards Kingston. They also found that the mother had failed to protect her child. Further, the Society verified concerns about emotional harm to Kingston who expressed fear of Mr. Gordon and observed anxiety by the child before an access visit between him and his mother because he believed Mr. Gordon would be present.

[83] The mother retained the physical custody of both children and Mr. Gordon removed himself from their home. The father continued to have access to Kingston but no access to Stacey.

[84] By mid-March 2019, the Society proposed that Mr. Gordon would be allowed to have contact with Stacey. Later that month, the Society advised the father they were planning to permit access between Mr. Gordon and Kingston. In that month, the Society advised the father that they were changing their request to have the child placed under the care of the father to a supervision order to the mother.

[85] On May 3, 2019 the criminal charges against Mr. Gordon were withdrawn.

[86] The Society eventually decided to withdraw their protection application because there were no new disclosures by Kingston, that the mother and Mr. Gordon cooperated with the new worker and that Mr. Gordon took some courses to alleviate the concerns of the Society. By the end of June 2019, the Society had withdrawn their application.

[87] On July 2, 2019, the matter was placed on the September 2019 trial sittings.

[88] On July 24, 2019, the parties appeared before Justice MacEachern to canvass outstanding disclosure and to complete the Trial Schedule Endorsement Form. At that conference, the father indicated that he was considering not pursuing any claim towards Stacey as he had not had regular access to her since March 2018 and that all attempts to have access to her for short periods of time or for her to start counselling had not been completed. Justice MacEachern provided the father with a 10-day window to advise if he was withdrawing his claims. He did so on August 6, 2019 by filing a notice of withdrawal.

[89] At that same conference, on consent of the mother, the mother agreed that Cristiano’s statements to the Society and the OCL would be admitted as evidence at trial to avoid him from testifying.

[90] On October 3, 2019, during the trial, the parties signed the minutes of settlement where the father released any claim for custody or access to Stacey, the parties stated that the father was not in loco parentis to Stacey, the mother released any claims for child support against the father for Stacey and both parties agreed to pay their own costs with respect to any issue in this matter related to Stacey.

[91] The trial commenced on September 23, 2019 and was completed on October 4, 2019.

Credibility

[92] The father and mother have provided conflicting testimony as to events that occurred while living together and since they separated. I am required to make findings of fact and determine which party’s evidence is more credible and reliable. I can accept part of a witness’s testimony, all of it or none of it.

[93] I found the father’s overall testimony to be credible. While he was quite emotional, he provided a clear recollection of the events. On cross-examination, he answered the questions directly. However, there are two instances where his testimony was contradicted in a significant way. Firstly, he testified that after he had met Ms. Piquette in September 2015, he had no interest in reconciling with the mother after September 2015. However, in cross-examination, he confirmed that he sent an email to the mother on January 18, 2016 wanting her back, referring to her as his soulmate and indicated that he loved her dearly and wanted her back. Ms. Piquette testified that she was unaware that the father had sent the email to the mother.

[94] Secondly, the father testified that Kingston made a disclosure of physical abuse by Mr. Gordon on the morning of December 31, 2018. He advised that he contacted the general intake service at the Society and was advised that they would be sending a worker. He further testified that the worker attended at around 2 p.m., met the child alone and interviewed the child for 15 to 25 minutes. After meeting with the child, the worker met with the father and Ms. Piquette, advised that she had confirmed the allegations and advised him to keep the child. However, Ms. Piquette and the intake worker, Ms. Martinuzzi, contradicted the father’s version of events when they both testified that the meeting with the worker was prescheduled for 10 a.m. that morning.

[95] With respect to the testimony of the mother, I find that at times she was credible but that her testimony was contradicted as the following:

(a) when her son Anthony suffered severe burns as a result of Tyler Hunt spilling boiling water onto the child, the mother initially indicated that she was the one who spilled the water. She testified she did so to avoid a fight with Mr. Marcantonio;

(b) while she testified that she denied telling Kingston that “daddy is reserved for Derek,”, that evidence is contradicted by the last sentence of paragraph 51 of her affidavit dated July 25, 2017:

…..John also understands and accepts that Kingston should not be calling him daddy and John has agreed to take efforts to politely remind Kingston that his name is John and that daddy is reserved for the applicant who holds the most special role in his life.

(c) on the issue of counselling for Stacey, the mother testified that she did not have counsel and did not understand the requirements for counselling when various orders were made. However, that testimony is contradicted by a review of the orders on September 6, 2018 and October 19, 2018 which indicate that the respondent was assisted by duty counsel. On December 3, 2018, where the court ordered that Dr. Horvath conduct reunification therapy, the mother admitted that she was represented by a Ms. Squires. In addition, there is a correspondence exchanged between the father’s counsel and Mr. Bruce Simpson, counsel for the mother in the fall 2018 on the issue of counselling. I find that the mother had legal assistance and that her testimony on this issue was not truthful;

(d) the mother testified that Stacey was a straight A student in her current school. However, upon a review of her report card dated June 20, 2019, I note that it indicates that the child had 22 B’s and 15 A’s. I find that the mother was not truthful and exaggerated the child’s success;

(e) the mother’s evidence as to when the alternating weekly schedule started is contradicted by the evidence of Mr. Ladouceur’s mother, the father and Ms. Piquette who all confirm that the schedule started in November 2015;

(f) the mother’s evidence that she did not ask the father to care for the children on June 10, 2017 but rather in July 2017 for only one day is contradicted by the evidence of Ms. Piquette who contacted the Society in June 2017 regarding the concerns about the mother’s mental health; and

(g) the mother’s evidence that the father never wanted to participate in the cheerleading for Stacey is contradicted by the letter dated August 31, 2017 from Ms. Steinburg who confirmed that the father’s involvement was consistent and very supportive in that the child was punctual and well-prepared for any practice.

Report of the Office of the Children’s Lawyer

[96] Ms. Durnin was appointed the clinician to conduct the investigation for the OCL. Despite being appointed to conduct an investigation and prepare a report for the Court, the investigation was discontinued because of the actions of the mother and Mr. Gordon. Specifically, because the father was not having access to Stacey in accordance with a series of court orders, the clinician was not able to observe her interactions with the father. Further, the clinician was not permitted to obtain potentially pertinent collateral information regarding Mr. Gordon because he refused to sign the consents required for such disclosure. Finally, the final factor was that the mother refused to allow the clinician to interview Kingston alone.

[97] I found the testimony of Ms. Durnin to be very credible. She spent a significant period of time interviewing the parties, the children and contacting collateral information.

[98] On the issue of the disclosure requested by the clinician, Mr. Gordon refused to sign the consent forms as they were too broad in scope believing this would allow full access to his file with the Society. He was prepared to consent to the disclosure of the records pertaining to Stacey and Kingston, but nothing else. The clinician indicated that it was not possible to modify the consent forms and in order to conduct a full investigation of all potential caregivers living in the home, the consent forms needed to be completed. Modifying the consent forms as requested by Mr. Gordon would not allow the clinician to obtain information involving his involvement with the children.

[99] Ms. Durnin raised the following points:

(a) that this was the first time, after completing 70 clinical investigations, that a partner of a parent involved in such an investigation refused to sign a consent for the disclosure. In this case, Mr. Gordon refused to sign the consent that prevented the clinician from having access to the Ottawa Police Service or the Ottawa CAS records thereby preventing the clinician from reviewing potentially pertinent encounters between Mr. Gordon, Stacey, Kingston or other caregivers;

(b) she found Kingston interacted with the father in a positive and loving manner. She observed that Kingston interacted in a positive and appropriate manner with the father’s partner and the two other children in the home;

(c) she found that Stacey and Kingston engaged with the mother in a positive, appropriate matter and that she was attentive to their needs and provided care and supervision for them and that they appeared to engage in a positive manner with Mr. Gordon and his children;

(d) she was concerned that while the father gave consent to have Kingston interviewed in private, the mother insisted that she be within earshot of any interviews. At the father’s home, Kingston indicated negative feelings towards the mother, that she was being mean, that she was not his mother and that he expressed negative feelings towards Mr. Gordon. While in the care of the mother, Kingston would speak positively about the mother and Mr. Gordon when interviewed at his mother’s home however, the clinician noted that Kingston was aware of his mother’s presence and paused to look at her before answering some of the questions;

(e) the clinician indicated that Kingston, while at both parents’ home, offered reasons why Stacey did not want to come to the father’s home. At the father’s home, the child stated that Stacey did not come for visits because “John doesn’t want her to come here,” referring to Mr. Gordon. However, at the mother’s home, Kingston stated Stacey did not want to come because the father was not her real father;

(f) she was concerned that despite meeting Stacey on numerous occasions, the child could not provide any examples of the father acting inappropriate to her at any time. The clinician testified that Stacey spoke negatively about the father and confirmed that the mother told Stacey that the father was not her biological father and that the father called the police to seek to enforce access in the summer 2018;

(g) she had no parenting or safety concerns about the father but could not assess the mother or Mr. Gordon because of the lack of information;

(h) she found that when Kingston is in the mother’s home, he refers to the father as “Derek” or “bio dad” and he referred to Ms. Piquette as “other mom”;

(i) she was advised by the mother and Mr. Gordon that if the father stopped seeking access to Stacey, it would improve the situation between the caregivers and that they would do everything to encourage Kingston’s relationship with the father;

(j) with respect to Stacey, she indicated she did have a negative perception of the father and his home and that he would yell at her for no reason, that he lied to her and that he would force her to see him. The clinician was concerned that Stacey could not provide any details regarding times when the father yelled at her. She could not recall the activities that they did together and did not recall growing up with him despite living with him full-time from 2012 to 2015 and every second week from 2015 to 2017;

(k) she found that the mother and Mr. Gordon may be negatively influencing both children regarding the relationship with the father. The clinician was concerned that the mother and Mr. Gordon have not been fully cooperating with the clinician;

(l) she stated that it would be difficult to recommend reversing custody and primary residence at this time for Stacey due to her strong negative views about the father and her desire not to see him despite the clinician’s concerns that these feelings may have been inappropriately influenced. As Stacey was not observed in the father’s care, it was not possible to fully assess Stacey’s relationship with him;

(m) she found that the father has a stable and positive environment with his partner, Ms. Piquette;

(n) she did recommend that Stacey participate in a reconciliation counselling to improve her relationship with the father provided this should be supported by both parents and reconciliation should be allowed to continue;

(o) she was concerned as the Society records indicated that the mother failed to act protectively to her children with previous partners and that the Society was concerned about the truthfulness of the mother and her level of cooperation. The Society records indicated that the mother refused to work with the Society, refused to allow the Society to conduct private interviews of the children and refused to allow Stacey to be interviewed regarding concerns raised.

[100] Finally, Ms. Durnin made no recommendation regarding custody of Kingston because the report was discontinued as a result of the refusal of Mr. Gordon to sign the required consents for the release of the Ottawa Police Service and the Society files.

CUSTODY AND ACCESS

Legislative and Jurisprudential Considerations

[101] A court of competent jurisdiction may, on application by either or both spouses or by any other person, make an order respecting the custody of or the access to, any or all children of the marriage (s. 16(1) Divorce Act).

[102] The court may make an order under this section granting custody of, or access to, any and all children of the marriage to any one or more persons (s. 16(4) Divorce Act).

[103] In making an order under this section, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child (s. 16(8) Divorce Act).

[104] In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with the other spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such conduct (s. 16(10) Divorce Act).

[105] In addition to the provisions of the Divorce Act, subsection 24 (2) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (the “CLRA”), provides the court with a more detailed list of factors to consider in determining the best interests of children as follows:

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.

[106] The child’s best interests are not merely “paramount” – they are the only consideration in this analysis: Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27 at para. 28; Mattina v. Mattina, 2018 ONCA 641.

[107] The court must ascertain a child’s best interests from the perspective of the child rather than that of the parents: Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27.

[108] No one factor in the statutory definition of a child’s best interests is given statutory preeminence: Wilson v. Wilson, 2015 ONSC 479.

[109] A young child with attachments to both parents needs sufficient contact with both, without prolonged separations to maintain a meaningful and close relationship with them: Van Den Driessche v. Van Den Driessche, 2011 CarswellMan 255 (Q.B. Family); Wilson v. Wilson, 2015 ONSC 479.

[110] The court should consider the level of hostility and the extent to which that stability may undermine the child’s stability: Wilson v. Wilson, 2015 ONSC 479.

[111] The child should have maximum contact with both parents if it is consistent with the child’s best interests: Gordon v. Goertz 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27. The Court must view what is in the best interests of the child, not the parents. The “maximum contact” principle, as it is called, is mandatory, but not absolute. The maximum contact principle only obliges the judge to respect it to the extent that such contact is consistent with the child’s best interests; if other factors show that it would not be in the child’s best interests, the court can and should restrict contact: Young v. Young, 1993 CanLII 34 (SCC), [1993] 4 S.C.R. 3, at pp. 117-18, per Justice McLachlin.

[112] On the issue of the status quo of a child’s physical residency, I agree with the dicta of Riafi v. Green 2014 ONSC 1377, 2014 ONSC1377:

22. A parent who engages in self-help tactics despite the best interests of the child will generally raise serious questions about their own parenting skills and judgment. In many cases, courts conclude manipulative, selfish or spiteful parents simply can’t be entrusted with custodial authority they would likely abuse. Izyuk v. Bilousov (supra); Clement v. Clement 2010 ONSC 1113 (SCJ).

23. Where only a short amount of time has elapsed between the deliberate creation of a new status quo and the hearing of a temporary motion, the court will be more inclined to presume that a restoration of a previous successful status quo is appropriate. Kennedy v. Hull 2005 ONCJ 275, [2005] O.J. No. 4719.

24. The longer the child has been in a new situation (or city) – however it may have been created – the more closely the court will have to focus on the child’s best interests, as opposed to any violation of parental rights. Sodhi v. Sodhi (2002) 2002 CanLII 41503 (ON CA), 25 R.F.L. (5th) 420 (Ont. C.A.)

Analysis on custody and access

Status quo until July 25, 2017

[113] Status quo is a factor for the court to consider in its overall analysis of a child’s best interests.

[114] I find that from Kingston’s birth to November 1, 2015, the mother was the primary caregiver for the child.

[115] I find that commencing November 1, 2015, up to and including July 25, 2017, Kingston alternated residences on a weekly basis and both parties were the caregivers of Kingston.

[116] I accept the evidence of the father and his wife that the alternating weekly schedule started in November 1, 2015. This evidence is corroborated by the evidence of Mr. Ladouceur’s mother who was Kingston’s babysitter at the time.

[117] I accept the evidence of the father that he moved with Samantha from the Hunt Club area of Ottawa to the Fitzroy Harbor area based on the mother’s statement that she had no intention of moving the children’s residence. All this changed when she separated from Mr. Ladouceur and within a very short period of time had rented a home with Mr. Gordon and changed the children’s residence to Orleans.

[118] Prior to the commencement of proceedings on July 21, 2017, the parties were able to co-parent and both children were flourishing in this arrangement. The parents trusted and relied on each other. No issue was raised about the fact that the father was not the biological parent of Stacey.

[119] I find that prior to July 2017, the mother held out to third parties including the Society that the father was Stacey’s “daddy” and that the parties had an excellent relationship.

July 25, 2017

[120] After appearing in court on July 25, 2017, the mother acted unilaterally by denying access to Stacey and terminated the alternating weekly schedule for Kingston. These actions were without the consent of the father and, in my view, contrary to both children’s best interests.

[121] The mother argues that she has had the child in her care since July 2017 and that the status quo should not be interfered with. I disagree. The mother cannot benefit from a self help remedy as she has done in this case. The mother’s unilateral actions to terminate the parenting plan and impose a new plan were without the father’s consent and fundamentally altered a schedule that was in place from November 1, 2015 to July 26, 2017.

[122] I find no justification for the mother’s actions on July 25, 2017 to interfere with Kingston’s and Stacey’s relationship with the father. This action by the mother was selfish, punitive and not in their best interests.

[123] I find that the father proceeded through the litigation quickly as the original trial was to take place 18 months after the commencement of proceedings. As a result of the Society’s involvement from January to May 2019, the trial was delayed to September 2019.

[124] While the status quo of Kingston is an important factor, in this case the status quo was created by the unilateral act of the mother. Kingston has been in the current custodial arrangements since July 25, 2017, when he was 2 ½ years of age. At the date of the trial in September 2019, he was 4 ½ years of age. Due to his young age, I do not consider the unilateral status quo created by the mother to be an impediment to a custodial transfer if it is in the best interests of the child.

Mother’s efforts to alienate Kingston from the father since July 25, 2017

[125] I find that the mother has pursued a course of conduct to minimize the father’s involvement in Stacey’s and Kingston’s life.

[126] I find that the mother has allowed Mr. Gordon to assume the role as Stacey’s father within two months of moving in together based on Mr. Gordon’s personal belief that the non-biological father who no longer resides with the biological mother should not have any contact his non- biological child.

[127] Further, Mr. Gordon testified that he is present to protect Stacey. He made allegations that the father acted inappropriately with Stacey and that she needs stability. I do not find that the father acted inappropriately with Stacey. The allegations are without merit.

[128] I find that the mother allowed Mr. Gordon to replace the father as Stacey’s father figure within two months of moving in with him, I find that this action indicates a fundamental lack of understanding of the child’s relationship with the father and the potential negative effects on her best interests by such unilateral termination.

[129] Based on the evidence, by July 25, 2017, I find that the father was the psychological father for Stacey as he had been with her from February 2012 to July 25, 2017. I find the only change in circumstances was that the mother moved in with Mr. Gordon in May 2017 and his personal beliefs convinced the mother to such a drastic action. Such action was not in Stacey’s best interests.

[130] I find that the father has had a crucial and important role in the development of both Kingston and Stacey. Prior to July 25, 2017, the father was equally involved in all aspects of caring for the children.

[131] The fact that the mother has removed Stacey from the father’s life is an important finding because it has a direct influence on the future of Kingston. I accept the evidence of the OCL clinical investigator that had it not been for the close connection with Stacey remaining with the mother that she was considering a transfer of custody from the mother to the father. Ms. Durnin testified that she believed that the mother had intentionally alienated Stacey from the father.

[132] I find that the mother reduced Kingston’s parenting time with his father contrary to the best interests of Kingston. I find that up to July 2017, there was no basis to make any change in the custodial arrangements regarding the children. The mother had previously agreed that by her moving to the east end of Ottawa, the parenting schedule would not change. The father relied on the mother’s word before moving to Fitzroy Harbor in January 2017 to be closer to his children.

[133] I find that both parents have the ability to care for the physical care of their child Kingston. This is supported by evidence from many witnesses including the OCL. However, caring for a child is not restricted to a child’s physical care but also their emotional and psychological care.

[134] I do not find that the mother has the ability to provide for the emotional and psychological care of Kingston. In determining custody, one of the factors the court must take into consideration is the ability of each parent to foster and to encourage a child’s relationship with a parent. From July 2017 to trial, the mother did not do that. She terminated access to Stacey until September 13, 2017. She actively interfered in the relationship between the father and Stacey so that by March 2018, the child no longer wanted to attend access with the father

[135] The mother refused to allow Kingston and Stacey to have access with the father at Christmas 2017. On October 23, 2017, the father emailed the mother raising various issues including a request to discuss Christmas holidays. The parties attempted to resolve the issue without success. On December 13, 2017, counsel for the father emailed the mother attempting to negotiate the father having the children from January 1 at noon to January 7, 2018 at 5 p.m.

[136] Five days later, on December 18, 2017, the mother did not offer any extra time other than the regular access except that she was open to the father having the children being, “a little longer on the 24th and earlier on January 5th”.

[137] On December 20, 2017, counsel for the father requested that the mother reconsider her position. On December 20, 2017, the mother replied that she would not reconsider and that the regular schedule was in the child’s best interest. She stated in her email the following passage, “it’s actually very fortunate that Dereck’s (sic) regular scheduled access falls on Christmas Eve.”

[138] The father requested summer access in 2017 and 2018. The mother refused without explanation. As the trial was approaching, the parties entered into interim minutes of settlement on July 24, 2019 where the mother agreed that the father would have Kingston for two non consecutive weeks in August 2019.

[139] I find that the mother was aware of and did not intervene regarding the actions of Mr. Gordon towards the father with the children present as follows:

(a) I find that the father and his wife are scared and intimidated by Mr. Gordon at the exchanges for access. At an exchange in March 2018, Mr. Gordon threatened the father by saying “you better take that smirk off your face or I will take it off”;

(b) I find that Mr. Gordon flips his middle finger in the direction of the father and his wife at the access exchanges. Mr. Gordon did not dispute this testimony when he had an opportunity;

(c) I find that Mr. Gordon and the mother have acted inappropriately at the exchanges. I accept the evidence of the father and his wife that when Kingston is exchanged from the mother, Mr. Gordon carries the child to the father and on numerous occasions has said: “you don’t have to go if you don’t want to”. Neither the mother or Mr. Gordon denied that Mr. Gordon made that statement;

(d) I accept the evidence of Ms. Piquette that at the last access weekend with Stacey in March 2018, Mr. Gordon yelled at the father in front of all the children, “you are not her father.” Neither the mother or Mr. Gordon denied that Mr. Gordon made that statement;

(e) I accept the evidence of Ms. Piquette that at the Easter exchange in March 2018 she told the mother, “none of this has to be done this way,” to which the mother responded, “yes until you try to take my children away”. This is yet another example of the mother interfering in Stacey’s relationship with the father and thereby affecting the relationship between the father, Stacey and Kingston;

(f) I accept the evidence of the father and Ms. Piquette that Kingston seems hesitant at exchanges until he is in his father’s physical custody. When the child is returned for the exchanges, the child becomes tense as he sees Mr. Gordon’s truck come into the parking lot for the exchange. I accept the evidence of the father and Ms. Piquette that the child is most distressed at these exchanges.

(g) I find that based on the disclosures made by Cristiano, Mr. Gordon has acted inappropriately with Cristiano, Stacey and Kingston and I find that the mother was aware of these actions and took no action to protect her children; and

(h) the mother admitted in cross-examination that after speaking to Cristiano regarding his allegations that she did not like Cristiano’s answer, so she decided not to have any access to him.

[140] Further, I find that the mother has acted in a punitive way when she changed Stacey’s last name from Warren to Hoskins after the parties separated. On October 17, 2017, counsel for the father raised the issue of the mother’s unilateral action. No reply was received. I find that this conduct was deliberate and not in Stacey’s best interests;

[141] I find that the mother intentionally did not list the father as a parent for Kingston’s daycare.

[142] By email dated October 12, 2018, the mother sent the father an email that caused the father significant concern. Paragraph 1 of the email states:

Just wanted to let you know that since last night Kingston has been saying he doesn’t want to go see you anymore. When I asked him why, he says that Sam hurts him and makes him call her mom. He also said you are mean. I asked him why? He said because you are mean to Stacey.

[143] By email dated November 25, 2018, the mother sent the father an email alleging that the father’s residence was not a safe environment for her son because he complained of a hurt nose allegedly caused by the child Jackson. Specifically, the mother stated:

We just picked up Kingston he was complaining his nose hurt and I noticed it had been bleeding when asked what happened he said Jackson hurt him. Between the multiple reports from Kingston of being injured at your place along with the multiple harmful people you are meeting up with to use as witnesses such as Wade a man who has threatened my life and families, Pierre an ex I left because he bruised up my son Cristiano and Tyler’s family a guy who murdered my son it’s not a safe environment for my son to be in and I will be reporting this first thing tomorrow morning to Children’s Aid.

[144] Mr. Gordon was arrested in January 2019 and kept overnight until he was released with conditions. Mr. Gordon testified that he told Kingston that the father put Mr. Gordon in jail and that Mr. Gordon told Kingston that it was not his fault. This admission by Mr. Gordon is very troubling. Rather than involving the child in the litigation, the mother should insulate Kingston from the events in litigation especially when the issue is his custody.

[145] I am concerned that Ms. Patenaude testified that she has heard Kingston call Mr. Gordon, “Dad”. This evidence contradicts Mr. Gordon’s testimony and his email dated July 18, 2017 that he had no plans to replace the father as Kingston’s Dad. The evidence suggests otherwise.

[146] I find that these incidents are significantly troubling as they demonstrate an inability of the mother to consider the best interests of her own child and the importance to maintain a relationship between Kingston and the father.

Mother’s Breach of Court orders for counselling

[147] On September 13, 2017 Justice Summers ordered, inter alia, that the parties were to make arrangements for Stacey to attend counselling as soon as possible and both be permitted to participate in the same period.

[148] I find that the mother breached the court orders for Stacey to undergo counselling. From September 2017 to December 2018, the issue of counselling including reunification counselling was canvassed in four separate court appearances. The counselling never took place despite the various court orders.

[149] Despite the court order stating that the parties were to jointly select the counsellor, the mother unilaterally retained a counsellor and did not provide any information to the father of the name of the counsellor, counselling and the commencement date of such counselling.

[150] The mother never advised the father before May 2018 that Stacey was in any counselling or provided the name of the counsellor.

[151] On December 3, 2018, MacEachern, J. ordered that the child should undergo reunification counselling with Dr. Horvath. On January 21, 2019, Dr. Horvath wrote to Justice MacEachern, after conducting two sessions of reunification counselling being one with each parent. The doctor stated on page 2 of her report:

Although Ms. Hoskins has agreed in court to participate in a reunification intervention, she stated to me that she does not think it is in Stacey’s best interest to have any formal relationship with Mr. Warren; the OCL report also documents statements to this effect by Ms. Hoskins, as well as statements in regard to not supporting “reconciliation counselling”. Ms. Hoskins has expressed an interest in an agreement, in Stacey receiving therapy, but not for the goal of improving a relationship with Mr. Warren. Given that the agreement that having both adults in the child’s life is in the child’s best interests is a necessary minimum for outpatient therapeutic interventions to be successful and this is not present and that failed interventions have considerable negative impact on families and the success of future interventions moving ahead with an intervention at this time appears contraindicated. Additionally, given the active child protection and criminal investigations it is felt prudent to discontinue this process at this time.

[152] In cross-examination, the mother admitted that she did not agree to reunification counselling. She admitted she told the OCL that Stacey had too many father’s figures and that the father would not have access to Stacey because he is not her biological father.

[153] The breaches of the orders for counselling is very troubling as this was considered very important by the court when the orders were made. Despite that fact, the mother simply ignored the court orders. The mother did not agree with the counselling yet consented to the orders. While she consented, she ignored the orders.

[154] In the end, the mother sabotaged Stacey’s relationship with the father who was her “psychological dad”. Her actions were not in the best interest of Stacey.

Mother’s failure to pay costs awards

[155] The mother was ordered to pay costs on 3 occasions during this litigation. The mother did not appeal the cost awards and simply ignored them. In cross-examination, the mother admitted she never paid the costs awards and is unable to pay.

Father and the Society

[156] The mother alleges that the father has used false allegations made to the Society to attack the credibility and parenting ability of the mother.

[157] The mother further alleges that both the father and his wife have consistently called the Society, especially after things have not gone well in family court. Upon a review of the involvement of the society, I cannot make that finding.

[158] The Society became involved with these parties in June 2017 regarding allegations against Mr. Gordon made by his children.

[159] Ms. Piquette acknowledges that she contacted the Society on July 26, 2017 raising various issues regarding the mother including drug use, domestic violence, the mother’s mental state, significant weight loss by the mother and the fact that Mr. Gordon had indicated all communication was to go through him. A child protection worker, Ms. Pearce, was involved from July 26 to October 25, 2017. During this period, she met with the mother on numerous occasions, interviewed both children and Mr. Gordon. No concerns were verified, and she closed the file.

[160] Next involvement with the Society was when Ms. Piquette contacted the Society in April 2018 after Stacey was withheld and exchange emails with the Society regarding her concern about the mother’s parenting.

[161] In December 2018, the father brought an emergency motion based on allegations against Mr. Gordon in the child protection proceedings regarding his children. I find that the father was concerned and acted appropriately based on the information that he had at that time.

[162] On December 31, 2018, the Society was involved regarding the disclosures made by Kingston. While the Society has verified the allegations, I conducted a voir dire and for the reasons stated, did not admit this child’s statement for the truth of its contents.

[163] On January 4, 2019, the Society investigated further disclosures by Kingston about conduct by Mr. Gordon towards him. No objection was raised with respect to the admission of this evidence, however, I have not considered this evidence in my decision other than as part of the narrative of events. Even if I had admitted such a statement, I would have attached no weight to it.

[164] On March 15, 2019, the father contacted the Society and the police when he went to pick up Kingston at that the mother’s home at her request. He became aware that Mr. Gordon was present and believed that he was in breach of the existing court orders. Further, he alleged that Kingston had disclosed being slapped on the back by John the previous week. In fact, the conditions had changed and there was no breach. The Society sent an after-hours worker to meet the father and Kingston. The child did not make any disclosures of being hit by Mr. Gordon. Despite this fact, the father refused to return the child on the Sunday night. It was only after he took the child to the Ottawa Police Services, two days later, on March 19, 2019, where the child made no disclosure that the father returned the child. Once the child had not made any disclosure to the Society worker, the father should have returned the child.

[165] I do not find that the contacts by the father and Ms. Piquette to the Society were made to gain a tactical advantage in the custody proceedings. I accept the evidence of the father and Ms. Piquette that they acted in what they believed to be the best interests of the children.

Kingston’s relationships with his parents, stepparents and siblings

[166] I find that Kingston loves both his mother and his father and that they love him dearly.

[167] I find Kingston has a good relationship with his various step siblings but is very close with his stepsister Stacey.

[168] I find that the father and his wife have lived together since the fall 2015, a period of 4 years. They own a home, are employed on a full-time basis and have children by previous relationships. Both the father and his wife have an excellent relationship with their former partners.

[169] I find that the mother and Mr. Gordon had lived together since May 2017 and have formed a blended family. They currently rent their accommodations, the mother has only recently returned to work and Mr. Gordon intends to start working in the renovation business after the trial.

[170] I find that the father had a close and loving relationship with Stacey and that the close loving relationship was interrupted and terminated intentionally by the mother. Based on the totality of the evidence, this was not in her best interests.

[171] I am cognizant of the close relationship between Kingston and Stacey. While this is a very important factor, the best interests of Kingston must primarily focus on his relationship with his mother and father.

Parties’ plan and stability

[172] I find that the father and his wife have many friends, neighbours and are in involved in the community. The relationship is stable, and they are both gainfully employed. Further, Desmond’s mother is moving closer to the father’s residence so that Desmond can have an even closer relationship with his father, Jackson and Kingston.

[173] On the other hand, I find that the mother has isolated herself with Mr. Gordon. She is estranged from her mother, her siblings and her eldest son Cristiano. The mother has eliminated Stacey’s paternal grandfather and his wife from any involvement in her life despite that they were instrumental in raising Stacey as an infant. While it is understandable that the mother does not wish to interact with Mr. Hunt’s parents, I find that the mother has not considered the best interests of her own daughter by severing the relationship with the paternal grandparents. Her actions are self centered.

Religion and Kingston

[174] The mother testified that she and Mr. Gordon started attending Christian Church in August 2017. The mother testified that she was raised Catholic but lost her religion after the death of her son Anthony but now finds religion as an important part of her and her children’s life.

[175] The father is of United Faith but does not attend church. His plan is that Kingston would attend St. Michael’s Elementary School which is part of the Catholic school board.

[176] While I accept that the mother has found religion, I have considered that Kingston will be turning five years of age in January 2020 and I do not find that his attendance at such a religious event is a significant factor in determining his best interest today.

Disposition

[177] I find that both parents can attend to Kingston’s physical needs. I find that the father has the ability to address all of the emotional and psychological needs of Kingston including fostering a positive and meaningful relationship with each parent. I do not find that the mother has that ability.

[178] I find that the mother’s intentional act of fundamentally altering the parenting time enjoyed by Kingston with his father after July 25, 2017, the mother’s subsequent attempts to alienate Kingston from his father and the mother’s attempts to restrict Kingston’s relationship with his father lead me to conclude that the father shall be granted sole custody of Kingston.

[179] Having made that decision, I realize that Kingston is currently attending kindergarten in Orleans. It is my intention that he will start kindergarten in Fitzroy Harbor in January 2020. For that reason, I have ordered a graduated schedule so that by the return to school in January 2020, the child will be living full-time with the father and attending daycare in Fitzroy Harbor.

[180] In determining the access by the mother, I have considered the maximum contact principle as being very important for Kingston’s relationship with his mother and, to a lesser degree, his sister Stacey. For that reason, I have ordered that the summer school holidays, March break, Christmas break school holidays and professional development days will be shared equally by the parties.

[181] I order:

(a) the father shall be granted sole custody of the child, Kingston;

(b) the father will make all important decisions about Kingston’s welfare, including his education, major non-emergency medical care, major recreational activities, child care and religious activities;

(c) before making any final decision, the father shall inform the mother of his intended decision. The father shall seek the mother’s input regarding any major decision. In the event of a disagreement, the father shall have the final decision and shall inform the mother of his decision as soon as is practical;

(d) if Kingston requires emergency medical care while in the care of one parent, that parent will notify the other parent of the emergency as soon as possible;

(e) neither party shall interfere with the religious observance of the other with Kingston;

(f) both parties shall be entitled to receive copies of all medical, dental, school and other reports related to Kingston and shall be entitled to consult with Kingston’s teachers, caregivers, physicians, dentists, and other healthcare providers concerning his general well-being;

(g) each party shall be listed on all documents pertaining to Kingston and shall be entitled to attend any of his scheduled medical or educational scheduled appointments. Both parties are to execute consents or authorizations to all persons, including teachers, doctors, dentists and other involved with Kingston to speak fully and openly with both parties;

(h) Kingston shall remain in his current daycare until December 20, 2019. Commencing the first Monday after the return from the Christmas holiday break on January 6, 2020, Kingston will attend daycare in Fitzroy Harbor;

(i) each party shall be named as emergency contact with Kingston’s daycare and/or school and with any other organizations or professionals involved with Kingston;

(j) neither party shall change Kingston’s name from Kingston Dallas Warren without the written consent of the other party or court order;

(k) the existing access schedule shall continue until Friday, December 20, 2019. Commencing Friday, December 20, 2019 at 6 p.m. until Friday, December 27, 2019 at 6 p.m., Kingston shall reside in the care of his father. Commencing on December 27, 2019 at 6 p.m. until Friday, January 3, 2020 at 6 p.m., Kingston shall remain in the care of the mother at which point, he will be returned to the care of his father;

(l) the mother will have access to Kingston as follows:

a. commencing January 10, 2020 and every second weekend thereafter from Friday at 6 p.m. until Sunday at 6 p.m. with such weekend to include any statutory holiday or a professional development day;

b. the parties will have equal parenting time with Kingston for an 8 week period on a rotating week-on/week-off schedule. The mother will have Kingston in her care from Friday at 6 p.m. to the following Friday at 6 p.m. commencing the first Friday of July and continuing every second week thereafter. The father will have Kingston in his care from Friday at 6 p.m. to the following Friday at 6 p.m. commencing the second Friday of July and continuing every second week thereafter. At the end of the eight week period, the regular school parenting schedule shall resume;

c. Kingston will equally divide his time between the home of the mother and father during the two-week Christmas school vacation. Commencing in even numbered years starting with December 2020, Kingston will reside with the father from the last day of the school Christmas vacation for seven consecutive days until the following Friday at 6 p.m. and shall reside with the mother for the next seven consecutive days until 6 p.m. In odd numbered years the schedule will reverse;

d. each party will have parenting time with Kingston’s during his school March break holiday alternating on a yearly basis. Commencing in March 2020, Kingston will be with his mother from the last day of school before the March break at 6 p.m. until the following Sunday at 6 p.m. This schedule with the March break shall alternate every year;

(m) Kingston shall have free and uninterrupted telephone access to either parent at all reasonable times as per his wishes provided that such communications not interfere or disrupt either parent’s household;

(n) the mother shall deliver to the father, Kingston’s birth certificate, passport and other important documents no later than December 20, 2019 at 6 p.m. The father shall retain such documents and provide them to the mother should she require same. Once the stated purpose has been fulfilled, the mother shall return same to the care of the father within seven days;

(o) Kingston’s OHIP card shall travel with him between households;

(p) all communications between the mother and father shall be in writing, either by email or text messaging with the exception of emergencies when the parties may communicate by telephone;

(q) parenting exchanges shall occur at the McDonald’s restaurant at College Square, 1850 Baseline Road, Ottawa, or another mutually agreeable public location. Unless otherwise stated or agreed upon by the parties, parenting exchanges shall occur at 6 p.m.;

(r) if the mother or father are not personally able to pick up or drop off Kingston, then Ms. Piquette or Mr. Gordon, may attend to pick up or drop off Kingston. In the event that a third-party other than Ms. Piquette or Mr. Gordon is to pick up or drop off Kingston, the parties must notify the other at least 24 hours in advance;

(s) both parties have the right to travel with Kingston. In the event that either party wishes to travel with the child outside of the Ottawa-Gatineau area for more than seven days for vacation, the travelling parent shall provide the other parent with 60 days written notice. No later than 30 days before the commencement of such travel, the travelling parent must provide a written consent of the other party and a detailed itinerary of the proposed trip including the flight carrier, flight number, departure and arrival times, if applicable. In addition, the location of the accommodations including the name, address and telephone number of such accommodation are to be provided at the same time. Consent for such trips shall not be unreasonably withheld;

(t) the travelling parent shall be responsible for all necessary immunizations, including but not limited to costs associated for same and will follow all necessary medical protocol prior to departure. In the event that either parent travels with the child to a location in which medical/dental/travel insurance available to the child is not in effect, the party travelling with the child shall acquire, at his or her own expense, such medical/dental/travel insurance as may be necessary to ensure the child is covered while he is away;

(u) parenting time shall only be altered on consent of the parties or by further court order; and

(v) there shall be no makeup time for missed parenting time, unless the parties agree otherwise.

CHILD SUPPORT

[182] As I have granted the father sole custody and primary residence of Kingston, the mother has an obligation to pay child support.

[183] I accept the father’s submission that the mother should have a grace period before she would be required to pay child support.

[184] I order as follows:

(a) until November 1, 2020, the mother shall pay no table child support or contribution to any of Kingston’s special or extraordinary expenses;

(b) the mother’s obligation to pay table child support and contribution to any of Kingston special or extraordinary expenses may be reviewed on or before November 1, 2020;

(c) there are no child support arrears owing by either party;

(d) either party may choose to enrol the child in an activity without the consent of the other party provided the activity does not interfere with the other parent’s parenting time;

(e) within 10 calendar days of a change in the current employment status of either party, the party shall provide to the other party an email setting out the name of the employer and the remuneration;

(f) commencing May 1, 2020, by May 1 of each year, both parties shall deliver to each other a copy of their income tax return for the previous year. In addition, both parties shall, within 10 days of receipt, email a copy of their notice of assessment or notice of reassessment (if any); and

(g) based on the disclosure obtained, the parties shall determine the appropriate amount of child support and proportionate share of section 7 expenses. In the event the parties cannot agree, the matter shall be submitted to the Superior Court for adjudication.

SECURITY FOR SUPPORT

[185] As there is no table child support being ordered at this time and there is no evidence that the mother has a life insurance policy, I dismiss the claim for such security at this time.

[186] I order that the issue of the mother’s requirement to secure her table child support obligation may be reviewed on or before November 1, 2020.

COSTS

[187] If the parties are unable to resolve the issue of costs by January 3, 2020, the father shall provide his written costs submissions not to exceed three pages plus any offers to settle and a detailed Bill of Costs by January 10, 2020. The mother shall file her written costs submissions not to exceed three pages plus any offers to settle and a detailed bill of costs by January 17, 2020. The father may file reply submissions by January 24, 2020 not to exceed 2 pages.

Mr. Justice Mark Shelston

Released: December 13, 2019