Rutledge v. Turpin & Ring, 2020 ONSC 8182

COURT FILE NO.: FC-20-1289

DATE: 2020/12/21

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Jesica Rutledge, Applicant

AND

Brandon Turpin & Wanda Ring, Respondents

BEFORE: Justice Shelston

COUNSEL: Jennifer Johnston, for the Applicant

Rebecka Angell, for the Respondents

HEARD: December 16, 2020

ENDORSEMENT

1On November 4, 2020, Javen, age 5 and Jude, age 6, lost their mother, Gina Rutledge (“Gina”) to cancer. The issues to be resolved in this motion concern the temporary custody, access and type of schooling for these two children.

2Jesica is Gina’s mother. Gina was the original applicant but after her death Jesica was added as a party. Brandon is not the biological father of either child but submits that he is the only father the children have known. The names of the biological fathers are known and neither has had any involvement in the children’s lives. Wanda is Brandon’s mother.

Position of the Parties

3On one side, Jesica seeks temporary sole custody of the children, with Brandon having access every second weekend from Friday at 4 PM to Sunday at 6 PM, long weekends extended to Monday at 6 PM as well as three days during the Christmas holidays in 2020 being from December 24, 2020 at 4 PM to December 26, 2020 at 7 PM.

4Brandon, with the support of his mother Wanda, seeks to have temporary sole custody of the children or in the alternative temporary joint custody. On access, Brandon originally requested that Jesica have access at his discretion, but at the motion, proposed that Jesica have access every second Saturday from 10 AM until Sunday at 6 PM starting Saturday January 2, 2021. For the Christmas holidays, he is proposing Jesica and have the children from 9 AM to 8 PM on December 26.

5Jesica submits that the children should attend school online while Brandon and Wanda want the boys to attend in person.

Materials Reviewed for this Motion

6Jesica has filed one affidavit as well as a factum. Brandon and Wanda have each filed extensive affidavits and two affidavits from witnesses in support of their position. The records from the Children’s Aid Society (“CAS”) are exhibits to their affidavit. I advised counsel that I would only consider those parts of the CAS records that I was referred to in the respective affidavit material or in submissions.

7I requested and received the two affidavits filed by Gina and the affidavits filed by Brandon and Wanda for the September 25, 2020 motion.

8Neither party has filed a financial statement. All parties have filed a Form 35.1 affidavit, but the court has not received any reply to inquiries arising out of the history of all parties with the involvement of the police or Children Aid Society.

9My decision is based on the affidavit material with exhibits filed. Some of the dates of certain events are missing, vague or there is a conflict in the evidence.

Background

10From the day they were born until their primary residence was interrupted in July 2020, the boys had resided on a full-time basis with Gina. She has been the primary parent of both boys since their birth. She fed them, did their morning and bedtime routine, bathed them, clothed them, took them to her appointments and dropped them off at daycare/school. She made all major decisions regarding the children’s education and health.

11Until she fell ill, there was no request by Brandon to have the children in his primary care. He was content that he and his mother have access to them.

12Brandon has acknowledged that Jude was not his biological child but that he has been part of the child’s life since the child was three or four months of age. Brandon has always considered Jude to be his son. Until November 18, 2020, Brandon believed that he was the biological father of Jevan. That day he received a copy of the DNA test which concluded that another man was the child’s biological father. In any event, Brandon states that since the child’s birth, he has been the only father figure in the child’s life and that he will continue to act as a father for both boys.

13The extent of Brandon’s involvement with his children was challenged by Gina in her affidavit material as well as the affidavit filed by Jesica. I recognize that Brandon alleges that many of Gina’s statements are untrue and are designed to minimize his role with his children. All parties have made many allegations against each other that have not been subject to cross-examination.

Chronology

14Brandon and Gina knew each other in high school. Brandon alleges that they were friends and remained friends after high school. Gina stated in her affidavit that they had a casual sexual relationship that ended with the birth of her second child.

15Jude was born on June 13, 2014. Gina knew who the natural father was but he has never had any involvement in Jude’s life. Gina and Jude lived with Jesica for the first year of Jude’s life. Brandon became involved with Gina when Jude was three to four months of age.

15In 2015, Gina was living in Prescott with Jude. Brandon stayed with Gina and Jude at times but not on a full-time basis. After discovering that Gina was pregnant, the parties separated.

16Javen was born on July 20, 2015. The next day, Brandon was advised that he was the father. He went to see the child Javen when he was about two weeks of age.

16From September 2015 to May 2016, Gina had the boys and Brandon had access every second weekend.

17In May 2016, Brandon moved in with Gina and the boys at her apartment. The parties separated sometime before January 2017. At some point, Brandon stopped seeing the boys.

18In February 2017 Brandon started seeing the children every second weekend at Wanda’s house.

19In March 2017, Gina and the boys moved in with Brandon next door to Wanda’s house. Brandon and Gina disagree on the relationship at that time. Brandon alleges that they were attempting to co-parent while Gina alleged that they were roommates.

20The parties resided together from March 2017 to April 2019. During this period of time, Brandon states that he saw the boys each and every day but he was usually gone to work before they woke up but that he was usually home before they went to bed most days. He admits that he spent most of his time with the boys on the weekend.

21During this time, Gina was the primary parent who relied on Wanda for help with the boys. Wanda and Gina had a good relationship.

21In May 2019, Gina and the boys, without Brandon, moved to another residence in Woodlawn, apparently a five minute drive from Wanda’s house. Brandon moved to his current residence in Dunrobin and he had access to the boys.

22In early July 2020, Gina collapsed in her apartment alone with her two children. Jude called Jesica to tell her Gina had collapsed. Jesica immediately drove to pick up Gina and the boys and bring them back to her home. At some point, Gina was hospitalized. Jesica lives with her partner and two of his extended family members near the Queensway Carleton Hospital and Gina lived in Woodlawn.

23Jesica asked Wanda to care for the boys immediately after Gina was in Jesica’s care. Wanda and Brandon allege that Gina asked them to care for the boys while she was in the hospital. Gina denied this allegation in her affidavits.

24On July 6, 2020, Brandon and Wanda had the boys, decided to keep both boys and did not return them to Gina despite numerous requests. Jesica was in the hospital having brain surgery which required radiation and chemotherapy. Once released from the hospital, she asked that the boys be returned but Brandon refused.

25After surgery, Gina lost the use of the right side of her body and had to use a walker and then a wheelchair. In mid July 2020, Gina was advised by her medical doctors that she had weeks or months to live.

26When Gina was released from the hospital, she, Jesica and a friend of Gina’s, Stephanie, went to visit the children at Wanda’s house on July 17. They stayed for approximately 45 minutes. Gina wanted to take the children home but Brandon refused. The next day they were supposed to return to celebrate Javen’s birthday but could not because Gina was readmitted to the hospital as a result of blurry vision.

27Once back home, Gina requested that the boys be brought back to her, but Brandon told her what he was doing was right and he would not return the boys. Further, Brandon told Gina that if she went on Wanda’s property or his property, they would call the police and she would be charged with trespassing.

28On August 17, 2020, Gina retained Ms. Johnston who wrote a letter on August 19, 2020 requesting the return of the children by August 21, 2020, failing which court proceedings would start. There was no reply. A second letter was sent on August 24, 2020 indicating that if the boys were returned, there would be no need to go to court. The only response was an email from Wanda confirming her and Brandon’s email address.

29On September 2, 2020, Gina filed a request for an urgent motion seeking sole custody of her two children, an order that the respondents return the children to her on an immediate basis, police enforcement, access to the respondents on Saturdays from 12 PM to 5 PM to be exercised at Wanda’s home, an order that the children be registered to attend a school near Jesica’s home and costs.

30On September 11, 2020, Gina commenced an application against Brandon and Wanda seeking various claims for relief including interim and permanent sole custody of the children; police enforcement of any custody order, declaring that Brandon is not a parent to the child Jude, specifying access for the respondents as well as claims for child support and costs.

31On September 15, 2020, Justice Engelking determined the matter to be urgent based on the allegations that the respondents were overholding the children. The motion was set to proceed on September 25, 2020 at 2 PM and a timetable was set for the filing of materials.

32On September 19, 2020, Gina, after a scheduled access visit with the children, refused to return them. When they returned to her care, Gina registered the boys to attend Saint Michael School online.

33On September 25, 2020, Justice Marc Smith made the following order:

a. on an interim, without prejudice basis, Gina was granted sole legal custody of the children;

b. on an interim, without prejudice basis, the respondents were granted access on Saturdays between 12 PM and 5 PM together, with access to be exercised at Wanda’s house;

c. police enforcement was granted to enforce this order with respect to the children;

d. on an interim, without prejudice basis, the children were to continue to be enrolled in the on-line program, as registered by Gina.

34On November 4, 2020, Gina died.

35Two days later, on November 6, 2020, Brandon and Wanda moved for a final order, by way of a Form 14B motion, granting them joint custody of the children; a final order that the children’s primary residence would be with Wanda and that the children would be enrolled at Saint Michael School in person.

36On November 11, 2020, Jesica filed a Form 14B motion seeking to be added as a party to these proceedings to replace her deceased daughter and seeking custody of the boys.

37After receiving both motions, I determined that these motions were urgent and had to be dealt with expeditiously. On November 12, 2020, I ordered the parties to proceed to a case conference before me to address the claims for relief set out in the two notices of motion and a timetable for next steps. The case conference was set for November 27, 2020.

38On Saturday, November 21, 2020, six days before the case conference, the boys went for a visit with Brandon and Wanda. Instead of returning the children, Brandon and Wanda kept the children.

39At the case conference on November 27, 2020, I made the following orders:

a. scheduled a motion for December 4, 2020 to determine whether Jesica should be added as a party;

b. scheduled a motion for December 16, 2020 to determination the temporary custody and access to the children;

c. ordered on a temporary and without prejudice basis, the children shall remain in the physical custody of the respondents and shall be with Jesica from Sunday, November 29, 2020 from 9 AM to 7 PM and Monday, November 30, 2020 from 3 PM to 7 PM. Jesica shall do the transportation and the access shall not occur at her home pending further agreement between the parties

40Prior to the motion on December 4, 2020, the parties consented to an order that Jesica be added as a party. By order dated December 1, 2020, I added Jesica as a party, set out a timetable for the exchange of pleadings and ordered the production of records from the Children’s Aid Society of Ottawa.

41On December 1, 2020, Brandon registered the boys to attend Saint Michael School in person.

Legal Framework

42Subsection 24 (2) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (the “CLRA”) provides 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 necessities 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.

43A court shall not make an order under this part that varies an order in respect of custody or access made by a court in Ontario unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child. (Section 29 of the CLRA)

44Interim, or temporary orders, are by their nature imperfect solutions to often complex problems. They are based on limited evidence, typically in affidavit form. They are meant to provide “a reasonably acceptable solution to a difficult problem until trial” (Chaitas v. Christopoulos, 2004 CanLII 66352 (ON SC), [2004] O.J. No. 907 (S.C.J.)

45The court must ascertain a child’s best interests from the perspective of the child rather than that of the parents. Further, the only consideration is the best interest of the children in any custody decision (Gordon v. Goertz, 1996 CanLII 191(SCC)).

46No one factor in the statutory definition of a child’s best interests is given statutory pre-eminence (Wilson v. Wilson, 2015 ONSC 479).

47In Chapman v. Chapman, 2001 CanLII 24015 ONCA, the Court of Appeal ruled that the proper way to approach the best interests of the child in the context of grandparent access applications is to defer to parental autonomy. However, a parents’ right to determine a child’s best interest is not without limits. At para 19, the Court of Appeal stated:

19. A relationship with a grandparent can - and ideally should - enhance the emotional well-being of a child. Loving and nurturing relationships with members of the extended family can be important for children. When those positive relationships are imperiled arbitrarily, as can happen, for example, in the reorganization of a family following the separation of the parents, the court may intervene to protect the continuation of the benefit of the relationship (Shendroff v. Bruhand, a judgment of the Ontario Superior Court of Justice, released September 8, 1999 (unreported); Chabot v. Halladay, [1992] O.J. No. 2636 (Ont. Gen. Div.); Padbury v. Lee, [1994] O.J. No. 1075 (Ont. Gen. Div.); Peck v. Peck, [1996] O.J. No. 755 (Ont. Prov. Div.); McLellan v. Glidden (1996), 1996 CanLII 18917 (NB QB), 23 R.F.L. (4th) 106 (N.B.Q.B.); Young v. Young, supra) [emphasis added].

48In Giansante v. Di Chiara, 2005 CanLII 26446 (ON SC), Nelson, J. sets out at para 18 summarized the applicable test when grandparent access rights collide with a parent:

18. In summary, Chapman provides that courts should generally defer to a parent’s decisions about grandparent access unless all three of the following questions are answered in the affirmative:

i. Does a positive grandparent-grandchild relationship already exist?

ii. Has the parent’s decision imperilled the positive grandparent-grandchild relationship?

iii. Has the parent acted arbitrarily?

49In R.A. v. D.P. 2017 ONSC 4522(SCJ), Woodley, J., reviewed the legal principles to consider in determining custody between biological and non-biological parties in paras. 33, 34 and 35:

33. Although courts have determined that “absence any evidence that parents are behaving in a way that demonstrates an inability to act in accordance with the best interests of their children, a parents’ right to make decisions and judgments on their children’s behalf should be respected, including decisions about whom they see, how often and under what circumstances” – such considerations apply only where the parents are custodial parents and a non-custodial party seeks access. Courts routinely deny that a biological parent has a prima facie right to custody. (See Chapman v. Chapman, 2001 CanLII 24015 (ONCA); Parkins v. Parkins, 2006 CanLII 24450 (ONSC); Giansante v. Di Chiara, 2005 CanLII 26446 (ON SC); and Branconnier v. Branconnier, 2006 BCSC 2020; Z. (F.) v. Catholic Children’s Aid Society of Hamilton-Wentworth, [2000] O.J. No. 1452 (ON SC).

34. Although a child’s relationship by blood is a relevant consideration - there is no “parental right” to custody. Biological connection is only one factor to be considered. (See Z. (F.) v. Catholic Children’s Aid Society of Hamilton-Wentworth, [2000] O.J. No. 1452 (ON SC); Jones v. Smith, [1995] O.J. No. 4088 (Ont. Gen. Div.); Law v. Siu, 2009 ONCA 61, [2009] O.J. No. 245, 2009 ONCA (Ont. C.A.); Rochon v. Jacco, 2003 CanLII 2226 (ON SC), [2003] O.J. No. 2797, 42 R.F.L. (5th) 143 (Ont. S.C.J.).

35. The court must consider the best interests of the child including the psychological needs of the child and the child’s attachment to each party. (See Moores v. Feldstein, 1973 CanLII 535 (ON CA), [1973] 3 O.R. 921 (C.A.)).

50When there is a claim between grandparents and the parents, absent extenuating circumstances, parents have a preferential status in a claim for custody. (K.E.L. v. S.E.L. 2018 ONSC 1309).

Analysis

51At this point in the litigation, I have reviewed seven affidavits with the attached exhibits. I am limited in determining the veracity of the various allegations exchanged. In these circumstances, any decision must be temporary to permit the creation of a reasonably acceptable solution for the best interests of the children until a trial.

52Both parties make significant reference to discussions that they had with Gina prior to her death. These statements are inadmissible hearsay and will not be relied upon or considered by me in this decision. However, I have considered Gina’s statements set out in her two September 2020 affidavits.

53Further, any statements allegedly made by the children will not be considered as they are also inadmissible hearsay evidence.

54As a result of Gina’s death, I find that there has been a material change in circumstances since the order of Justice Smith. The test now is to determine what is in the best interests of these children.

Brandon’s Plan

55Brandon has requested that he have sole custody of the children, their primary residence be with him and in the alternative, that he and Wanda have joint custody of the children. The children would attend St. Michael School in person.

56Brandon’s plan is that the boys live full time with him at his two-bedroom home in Dunrobin. Brandon states that he lives on a large property and that Jude has a single bed and Javen has a Cars bed.

57There is no evidence to contradict Brandon’s or Wanda’s assertion that their homes are appropriate for the boys.

58I find that Jesica, Brandon and Wanda have a strong and positive relationship with the children and abilities to care for these children.

59Currently, Brandon is employed as a mover and is required to be at work at 7 AM. He has no drivers license. Consequently, Brandon’s plan is that he will wake the boys at 6:30 AM, get them dressed and ready to be picked up by Wanda or her common-law partner, Rick Delahunt. The boys will be driven back to Wanda’s home where the school bus can pick the boys up. The boys will have breakfast either at Brandon’s home or Wanda’s home but more likely, the children will be fed at Wanda’s home.

60When the children get off the school bus, Wanda will be there to greet them, to give them a snack and review their homework. They can either have dinner at Wanda’s house or at Brandon’s. Rick or Wanda would then drive the children to Brandon’s where they would play with their father and have their bedtime routine.

61Wanda works as a school bus driver. Her schedule is that she leaves her house at 7:35 AM and is back home by 9:30 AM. She then leaves at 2 PM and returns home by 4 PM.

Jesica’s Plan

62Jesica’s plan is for the children to continue to be registered at Saint Michael School in Fitzroy Harbor but that their attendance would be online as it was in the Spring 2020 when COVID-19 started. Both boys have a tablet to use to access their assignments and Jesica has been interacting with the school. She is concerned that any further change at this time may be confusing to the boys. She is prepared to follow this path until there is a final outcome.

63Jesica acknowledges that both boys have speech impediments and she has worked with Javen on speech exercises and that he was improving. She enrolled the boys in speech therapy and the boys were having meetings twice a week with the speech therapist on Zoom at a cost of $120 per child per meeting. If the boys attend school in person, they can access the speech therapy for free.

64Jesica’s plan is the boys would wake up at 7 AM, play with their school tablets and learning activities. The boys will attend their classes online and be with Jesica for most of the morning. They will have lunch. They would finish school in the early afternoon and would either play games or go outside. The boys would eat supper at 5 PM, in the evening have a bath and be in bed by 8 PM.

65Jesica does not work so she has the days free to spend with the boys helping them with school and caring for them. Jesica has the support of her partner Jeff who works in snow removal in the winter and is usually gone overnight but is available during the day.

Relationship between the parties and the children

66I find that Jesica, Brandon and Wanda love the boys and that the boys love their grandmothers and Brandon.

67Unfortunately, the relationship between Jesica, Brandon and Wanda has been strained since July 2020 when Brandon and Wanda unilaterally kept the children in their care. This litigation has increased the animosity.

68All parties have attempted to attack the credibility and involvement of each other in the boys’ lives. Gina’s affidavits allege that while Brandon’s involvement with the boys has been inconsistent, that he showed no interest in parenting Javen after he was born, that he refused to see Javen until he was 2 years of age, and that there never was a formal access schedule.

69Gina acknowledges that Wanda was a “really involved grandmother”. This was very clear when Gina, the boys and Wanda lived next door to each other from March 2017 until April 2019. I find that Gina relied on Wanda to help her with the children because she was very good with the children and she lived next door. The only semiformal access would be that Wanda would care for the boys on Saturdays and on an ad hoc basis.

70Brandon alleges that Gina and Jesica had a strained relationship for most of Gina’s life. Gina acknowledges that there were conflicts that she attributes to having a child at 18 years of age. Brandon makes allegations that Jesica did not care for Gina or the children. However, in Gina’s last will and testament, she designated Jesica as the guardian of her children and the trustee of her estate. While the designation of a guardian of her children is not binding in this Court, it is evidence as to what Gina thought was in the best interests of her children.

71Brandon alleges that Jesica was an incompetent mother for Gina, has attempted to alienate the boys from him, that he is fearful for the mental and emotional safety of his children in the care of Jesica based on his own interactions with Jesica as well as what Gina, the children and others have told him about her. For these reasons, the nature and frequency of Jesica’s access would be at the discretion of Brandon, as the sole surviving parent.

72Brandon does not feel that access to Jesica is in the children’s best interest based on the degree of acrimony that exists between the families at this time. For example, Brandon alleges that Jesica was the person who pursued a DNA test. I reject that argument as I find that this undertaking started prior to Gina’s death as referenced in her claim for relief in her application and corroboration set out in the text message of Gina’s friend Stephanie dated September 18, 2020.

73Further, Brandon alleges that if Jesica receives access “guaranteed by this court”, he is not confident that Jesica will not continue to attempt to poison the children against him. Finally, he states that if access was at his discretion, he would continue to allow Jesica to spend time with the children as long as she refrains from speaking negatively about him to the children. I cannot on the evidence find that Jesica has attempted to alienate the boys.

74Upon a review to the record, I find that Gina has acknowledged that her mother has assisted her in driving her and the children as needed, doing her laundry and taking care of the children for overnights. I accept that the relationship was not without challenges, but I cannot conclude that Jesica and Gina’s relationship was strained at the date of her death. Once Gina fell ill, she moved in with her mother and not with Wanda. When Wanda approached Gina on signing a power of attorney, Gina declined and eventually prepared a will. In that will, she nominated her mother as the guardian of her children and not Wanda or Brandon.

75I find that Jesica has an existing relationship with the boys, that this relationship is positive and that it benefits the boys. These children know and love Jesica as they do Brandon and Wanda. The decision to remove the children from the care of their mother in her last months of life was callous, unreasonable and punitive. Justice Smith in his cost decision found the actions of the respondents to be extremely unreasonable and warranted an award of costs in the amount of $9000 when $10,000 was requested.

76Both parties have made allegations and submissions based on statements contained in the records of the CAS. Some of the allegations are historical with the most recent being in February 2020 regarding Brandon. In my view, I do not find that the children are at risk of harm in the care of either Jesica, Brandon or Wanda. It is clear that the CAS has been involved with all three of these parties as well as Gina in the past. For the purposes of this temporary motion, I have not considered any of the historical allegations and investigations in determining the best interests of these children.

77Jesica readily admits that she was very upset on what happened this past summer when the children were taken away from Gina preventing her from spending what time she had left with her two boys. By October 2020, Gina was bedridden and Jesica cared for the children on a full-time basis. I find that from mid September to mid November 2020, the children were in the care of Jesica and were well taken care of.

78Despite the strife between the two families, Jesica and Wanda have communicated by text about all sorts of things like glasses, snow suits, changing the pickup location and time, to name a few.

79I find that Jesica has an important role to play in the boys life. Unfortunately, Brandon has acted arbitrarily towards Gina and Jesica interfering with the boys relationship with their mother and grandmother as follows:

a. Brandon’s decision to keep the boys after Gina was released from the hospital was simply not right considering she had only a few months to live. Rather than encourage the relationship between the boys and Gina, the text messages exchange on July 28, 2020 between Gina and Brandon indicate that Brandon was dictating terms to Gina. This unfortunately continued into August when he was demanding the baby bonus cheques from her;

b. by retaining the children in November 2020;

c. by changing the boys’ school attendance from online to in person;

d. by changing the speech therapist for the children. At the motion, counsel for the respondents indicated that they had just recently returned the children to the previous speech therapist. There is no explanation or justification for the initial change; and

e. by interrupting the grief counselling that Gina had set up with her social worker who had assisted with her palliative care.

80Brandon and Wanda are seeking various forms of relief in this matter. However, they were ordered to pay costs of $9000 for the urgent motion by Justice Smith but indicate that they do not have the ability to pay. Both parties work and neither party has filed a financial statement setting out their current assets, liabilities monthly income and monthly expenses. These costs must be paid. The order stands and there has been no appeal.

81I recognize that Brandon views Jesica’s involvement as interfering with his role as the father. I also recognize that Brandon, though not the biological father of either of these boys, considers himself the boys’ only father that they have known since their birth. However, I also find that since the children’s birth, he has never been the main caregiver and has never been the person to make all the major decisions for the children.

82In reviewing the considerations set out in section 24(2) of the CLRA, I make the following findings:

a. I find that the children have love, affection and emotional ties with Brandon, Jesica and Wanda;

b. based on the ages of the children, I cannot ascertain their views and preferences;

c. since their birth, the children’s main caregiver was Gina. Since 2015, Brandon has been an access parent.

d. Gina denies agreeing that Brandon and Wanda retain the children in July 2020. Out of frustration, Gina employed her own self help remedies in September 2020 before appearing before Justice Smith;

e. I find that Jesica, Brandon and Wanda all have the ability and willingness to provide the children with guidance, education and the necessities of life;

f. I find that Jesica and Wanda have played a very important role in these children’s lives. Once Gina moved to live with Jesica, Jesica made arrangements to address the children’s medical needs including the speech therapist and grief counselling. Once the children were taken by Brandon and Wanda, these arrangements were undone. I do not find that that was in the best interests of the children but can only conclude that it was done to eliminate Jesica from any involvement regarding the boys.

g. I find that Brandon’s plan is effectively a joint plan with his mother. He cannot take care of the boys on a full-time basis at this time. Wanda leaves for work at 7:30 AM and returns at 9:30 AM. The children are placed on the school bus and Wanda meets the children when they are returned by bus. If the children attended school online, Brandon could not be available for the boys. Wanda is gone from 7:30 AM to 9:30 AM. She could not leave the children alone. Perhaps her partner could watch the boys until she returned. She would have to leave again at 2 PM and someone would have to watch the boys. Once again, perhaps Wanda’s partner would do so. There is no information provided;

h. on the other hand, Jesica does not work and is available to care for the children throughout the day. She has been able to have the children participate in online school. She has cared for the children’s health needs and supported her daughter in her last weeks of life.

School

83In September 2019, Gina and the boys were living in Woodlawn, Ontario. Gina registered the boys to attend Saint Michael School in Fitzroy Harbour. In March 2020 due to COVID-19, the boys attended school online.

84In July 2020, after falling ill, Gina moved to Jesica’s home. In her application filed, she had sought to have the children attend a school near her new residence. In her affidavit dated September 24, 2020, Gina acknowledged that there was a dispute as to what school the children would go to and did not want Brandon and Wanda to just pick the children up from school so she determined that online attendance was the best option to keep the children in school “for now”. To maintain continuity for the children, the children were registered to online learning at their school in Fitzroy Harbour in September 2020.

85On September 25, 2020, Justice Marc Smith ordered that the children continue to attend school online.

86On December 1, 2020, Brandon and Wanda unilaterally decided to change the children from attending school online to attending in person. They justify that decision based on their interpretation that my endorsement dated November 27, 2020 gave them the right to change the children’s school. It did not. My endorsement only addressed the physical custody of the children and provided very limited access to Jesica. My endorsement did not change the previous endorsement of Justice Smith, which ordered the children to attend school online.

Disposition

87Brandon and Wanda have no biological connection with these children. Jesica is the maternal grandmother by blood to these children. However, from the perspective of the children, Brandon is their father and Wanda and Jesica are their grandmothers.

88On November 4, 2020, these children suffered an incredible loss when their mother passed away. These children have experienced incredible instability at such a young age. Since early July 2020 to date they have moved six times, starting with moving from their mother’s home, then to Jesica’s home, then in July to Brandon/Wanda’s care, in September back to Gina at Jesica’s home then finally moving to Brandon/Wanda’s care in November. Then on December 1, the boys went from online learning to in-person attendance.

89These boys need stability now. They need a parenting plan that accommodates their needs and not the needs of the adults. They need to see Jesica, Brandon and Wanda weekly.

90I find it is in the children’s best interests that they be with Jesica during the school week and with Brandon on weekends when he can spend quality time without interruption with the boys. This parenting arrangement would give the boys the best of both worlds, being stability during the week and uninterrupted time with their father on weekends. Wanda can help Brandon out with the boys. There is evidence that the grandmothers have been able to work things out between the two of them and I would hope that they would continue to help each other going forward, with the best interest of their grandchildren in mind. This plan addresses the children’s current needs.

91At this time, I will make no order as to custody. There are no major decisions that require a decision at this time. If an emergency medical issue arises, the person caring for the children will address the issue and advise the other parties as soon as practical.

92I order on a temporary basis, the following:

a. Brandon shall make all decisions regarding medical care including the dentist, family doctor, speech therapist and grief counselling. Brandon shall attend these appointments and if he is unavailable, he will designate either Wanda or Jesica to attend any such appointments;

b. the children shall attend St Michael School in the online learning program as of the return to school in January 2021;

c. the children shall reside with Jesica from every Sunday at 6 PM until every Friday at 4 PM, with Jesica being responsible to drop the children off at Wanda’s or Brandon’s home every Friday at 4 PM, as directed, and Brandon or Wanda being responsible to return the children every Sunday or professional day or statutory holiday by 6 PM;

d. the children shall reside with Brandon from every Friday at 4 PM until every Sunday at 6 PM. Brandon’s parenting time shall include any professional development day or statutory holiday until 6 PM;

e. for the Christmas holidays only, I order as follows:

i. the children shall be in Jesica’s care starting December 22, 2020 at 4 PM until December 24, 2020 at 4 PM;

ii. the children shall be in Brandon’s care from December 24, 2020 at 4 PM until December 28, 2020 at 4 PM; and

iii. the children shall be in Jesica’s care from December 28, 2020 at 4 PM until January 1st, 2021 at 4 PM when the Brandon’s weekend parenting time shall commence.

93I order that the parties to schedule a Case Conference before me to determine next steps.

Costs

94I urge the parties to resolve costs. The success on this motion appears to be divided. If the parties are unable to resolve the issue of costs by January 6, 2021, the applicant shall provide her written costs submissions not to exceed three pages plus any offers to settle and a detailed Bill of Costs by January 13, 2021. The respondents shall file their written costs submissions not to exceed three pages plus any offers to settle and a detailed bill of costs by January 22, 2021. The applicant may file a reply submissions not to exceed one page by February 3, 2021.