Court File and Parties

COURT FILE NO.: FC-20-00000384-0000 DATE: 2024-03-13

ONTARIO SUPERIOR COURT OF JUSTICE FAMILY COURT

B E T W E E N:

Marie Lise Rochelle Minda and Peter George Minda Applicants

• and - Genevieve Chelsey Dawn Minda Respondent

COUNSEL: M. VanderSpek, for the Applicants Self-represented, for the Respondent

HEARD: January 15 - February 2, 2024

BEFORE: The Honourable Justice J. R. Henderson

REASONS FOR JUDGMENT

INTRODUCTION

[1] The original applicants, Peter George Minda (“Peter”) and Marie Lise Rochelle Minda (“Lisa”), are the maternal grandparents of Grayson Richard Pierre Minda (“Grayson”), born January 24, 2015. They commenced this application for custody of Grayson in September 2020. The respondent, Genevieve Chelsey Dawn Minda (“Genevieve”), is the daughter of the applicants and the mother of Grayson.

[2] Lisa died on February 15, 2023, and thereafter Peter continued with this application as the sole applicant.

[3] Genevieve was living with the applicants in St. Catharines, Ontario, when Grayson was born. Genevieve and Grayson left the applicants’ residence in April 2016, when Grayson was approximately one year old, at which time they moved in with Genevieve’s boyfriend, Paul Playfoot (“Paul”).

[4] From April 2016 to late February 2020, Grayson lived primarily with Genevieve and Paul, with Genevieve as his primary caregiver. However, during those years, Genevieve regularly left Grayson in the care of the applicants, occasionally for extended periods of time. Both the applicants and Family and Childrens Services (“FACS”) had concerns about Genevieve’s ability to care for Grayson during this period.

[5] On March 1, 2020, Genevieve left Grayson in the care of the applicants when she moved to Pennsylvania with Paul. Thereafter, Grayson made disclosures to the applicants that caused them to become more concerned about Genevieve’s ability to care for Grayson.

[6] In September 2020, Genevieve attempted to remove Grayson from the applicants’ care and take Grayson to live with her in the United States with Paul. The applicants resisted Genevieve’s attempts to remove Grayson and commenced this application.

[7] Genevieve and Paul are now married and live in Erie, Pennsylvania. They are the biological parents of two young children, Caspian and Memphis, who are five years old and one year old, respectively. Those children are not the subject of this application.

[8] Grayson has been in the primary care of the applicants since March 2020, and in the sole care of Peter since Lisa’s death. The issues in this case include the primary residence of Grayson, parenting time, and decision-making responsibility.

THE POSITIONS OF THE PARTIES

[9] Peter’s position is that Grayson’s primary residence should be with him in St. Catharines. Peter lives in his own house with Grayson and Peter’s adult son, Peter Jr. (“PJ”), who is Genevieve’s older brother. Both Peter and PJ work on a full-time basis, but both have adjusted their schedules so that they may properly care for Grayson.

[10] Peter also submits that he should have sole decision-making responsibility for Grayson. Further, he requests that Genevieve have no parenting time with Grayson. In the alternative, if Genevieve is granted parenting time, Peter requests that Genevieve take part in reconciliation counselling and that any parenting time be supervised. Peter further requests that Genevieve pay child support for Grayson, based on an imputed income of approximately $32,000 per year.

[11] It is Genevieve’s position that Grayson should immediately be returned to her full-time care, and that Grayson’s primary residence should be with her in Erie, Pennsylvania. Genevieve requests that she be granted sole decision-making responsibility for Grayson. Genevieve also testified that if Grayson’s primary residence is with her, she will ensure that there is reasonable contact between Grayson and Peter. She further submits that no income should be imputed to her for child support purposes.

THE PRIMARY PARTICIPANTS

[12] In many instances during this trial, the witnesses were unable to agree on even the most basic facts, such as Grayson’s place of residence on any given date. This problem was complicated by the fact that certain witnesses attempted to conceal information from the court. Accordingly, I must carefully assess the credibility of the primary participants before I can make findings of fact as to the background history.

Peter Minda

[13] Peter is the grandfather of Grayson. He is currently 58 years of age. He lives in his own residence in St. Catharines, and he works full-time as a truck mechanic. Peter was married to Lisa in 1988. They have two children, namely PJ born in 1991 and Genevieve born in 1993.

[14] In my view, Peter’s testimony was generally sincere and direct. He conceded that he had a troubled relationship with Lisa. He agreed that Lisa had mental health issues that caused her to be emotional and overly dramatic. Peter also agreed that he could engage with Lisa by yelling at her. This often resulted in loud verbal arguments.

[15] Peter acknowledged that the applicants had a difficult relationship with Genevieve, particularly after Genevieve became a teenager. I accept Peter’s evidence that, as a teenager, Genevieve butted heads with Lisa and that Lisa and Genevieve often engaged in loud, angry disputes.

[16] In my view, Peter was the person who provided some stability in the midst of an emotional and troubled family. He worked to support the family, he came home from working nights to make breakfast for his two children, and he got his children ready for school while Lisa remained in her room. Further, he attempted to assist Genevieve both before and after she moved out of the applicants’ house by buying and/or financing vehicles for her.

[17] However, although Peter was generally credible, I find that he had a distinct bias against Paul that tended to influence his views. He admittedly did not like Paul and thought that he was a bad influence on Genevieve. Further, I find that Peter was not particularly accurate as to dates and times, and thus I cannot rely on him for these details.

Peter Minda Junior (PJ)

[18] PJ is 32 years of age and lives with Peter and Grayson. PJ has lived with his father for his entire life, but for a brief eight-month period during which he attended university. PJ has worked for several years on a full-time basis as a manager of a retail store.

[19] I found that PJ was by far the most credible witness at this trial. His testimony was fair and balanced. He recognized the concerns about his mother, Lisa, and his sister, Genevieve, and he had a realistic view of Grayson’s current situation.

[20] PJ acknowledged Lisa’s mental health issues and confirmed that Lisa threatened suicide on a regular basis, although he believed that her threats were a means to gain attention rather than a genuine wish to kill herself. He agreed that Lisa could have inappropriate angry outbursts directed at her family. He summarized Lisa’s effect on the family by saying that things were not all bad in the household; there were many good family times, but Lisa had down times that became very bad approximately once per year.

[21] I find that PJ was very fair in his testimony about Genevieve. He testified that she was a good student, and that his parents had higher hopes for Genevieve than PJ. He thought that they had a good relationship as children, but as Genevieve got older, she became aggressive and bullying toward him. He felt that Genevieve suffered from down moods similar to those suffered by Lisa. In PJ’s opinion, this led to regular conflict between Genevieve and Lisa. During those times, PJ tried to remain isolated and kept to himself.

[22] PJ described Grayson as spirited and rambunctious. He said that Grayson is a happy child with a lot of potential; he wanted to help Grayson realize that potential. He acknowledged that Grayson has made some comments about living in poor conditions while in Genevieve’s care, but PJ testified that he knew that everything Grayson says may not be true. PJ also testified that Grayson currently tends to use violence as a response to conflict. They are trying to help Grayson with these issues.

[23] I accept PJ’s evidence that he never thought that he would be in the position of a caregiver for Grayson. Since March 2020, his mother, Lisa, was Grayson’s primary caregiver. In his words, PJ “stepped up” to help in light of Lisa’s death. Overall, I find that I can rely on PJ’s evidence.

Genevieve Minda

[24] Genevieve is 30 years of age. She married Paul on November 11, 2020. Genevieve has lived with Paul in or around Erie, Pennsylvania since approximately March 2020. She is not employed and has not been employed since prior to her move to the United States in 2020. Paul works and supports the family.

[25] Genevieve is the biological mother of Grayson. She has two other children with Paul, namely Caspian, born February 17, 2018, and Memphis, born July 18, 2022.

[26] I must approach Genevieve’s testimony with great caution. I found that Genevieve was bright, eloquent, and well prepared for court. However, her anger and resentment infused her evidence to the point that most of her testimony was heavily biased. Genevieve also minimized or denied responsibility for some of the problems she has encountered. Further, Genevieve was not always forthright with the court, and she had a tendency to be deceitful in her dealings with her parents, FACS, and this court.

[27] Since March 2020, Genevieve has not disclosed her current residential address to the applicants. Moreover, she has not yet revealed her address to this court. She has only testified that she lives in a nice 1,500 square foot house in Erie, Pennsylvania. She has also refused to comply with an order to provide her income tax information for 2020, 2021, and 2022 prior to trial; she has not provided any financial information for those years. In addition, she did not obey an order to sign a release for her FACS records until that matter was brought back before a judge by the applicants.

[28] I find that Genevieve attempted to minimize her transient lifestyle by being deliberately vague about her living situation between 2016 and 2020. This minimization was evident in her testimony that she did not move to Peterborough, Ontario (when the evidence clearly showed that she stayed there for weeks or months), in her testimony that she did not move to Calgary, Alberta (when the evidence showed that she was back and forth to Calgary for approximately four months), and in her testimony that she never lived in her car (which is clearly contradicted in the evidence).

[29] Genevieve’s habit of denying responsibility for her own circumstances is exemplified by her view of her mother, Lisa. Much of Genevieve’s testimony was directed toward her submission that her mother was unstable and a bad parent. I accept that there is some truth to that submission, but I found that Genevieve wanted to blame her mother for all of her problems.

[30] For example, Genevieve testified that FACS was only involved in her life because her mother called FACS to make false reports about her. In fact, there were eight separate FACS investigations between 2016 and 2020. Six of those investigations clearly had nothing to do with Lisa. The other two investigations were not because of calls made by Lisa, but they were opened as a result of calls made by a therapist who was treating Lisa.

[31] Another example of denying responsibility relates to Genevieve’s volatile relationship with Paul. The evidence shows that Genevieve and Paul had many violent domestic disputes. Genevieve's excuse for these domestic disputes was that Peter and Lisa were not good role models for her, and therefore she had trouble learning how to behave in a relationship.

[32] I find that Genevieve’s tendency toward deceit was apparent to Barbara Hotson, the OCL clinician, who prepared a s.112 report for the court. Prior to conducting a detailed investigation, Ms. Hotson asked Genevieve if she had ever had any interactions with police, and Genevieve told Ms. Hotson that there had been one or two minor incidents. In fact, between 2013 and 2020 there are 20 separate police reports or police investigations that involved Genevieve.

[33] The fact that Genevieve was not forthright with Ms. Hotson led Ms. Hotson to question whether Genevieve was being honest about her current situation. When she was asked about this discrepancy at trial, Genevieve attempted to minimize any alleged wrongdoing on her part. She said that she did not disclose all of the police contacts to Ms. Hotson as she misunderstood what Ms. Hotson was asking her.

[34] Of more concern is the fact that five of the police investigations were for allegations of fraud, theft, or mischief. The other police contacts were for domestic disputes between Genevieve and Paul, or welfare checks regarding the children.

[35] One particular police investigation is significant. In 2013, the police investigated a complaint that Genevieve had stolen ten cheques from her grandmother and forged her grandmother’s signature on the cheques. A total of more than $6,000 was paid out of her grandmother’s account to Genevieve in this way.

[36] At this trial, Genevieve testified that her grandmother gave her money to assist her with her car insurance and cell phone bills, and that Genevieve never forged her grandmother’s signature on a cheque. However, the police investigation established that Genevieve’s grandmother did not sign the cheques in question. Moreover, video surveillance cameras confirmed that Genevieve was the person who cashed the cheques. Although Genevieve was never charged with fraud, I find that on a balance of probabilities Genevieve unlawfully took these cheques and took this money from her grandmother.

[37] Overall, I approach Genevieve’s evidence with great caution.

Paul Playfoot

[38] Paul Playfoot is 32 years of age. He lives in Erie with Genevieve, Caspian, and Memphis. He works as a repossession agent on a full-time basis, and he owns rental properties in Erie.

[39] Paul is not a party to this action. Genevieve and Paul both testified that Paul is Grayson’s biological father, but I find that there is an unresolved question about the identity of Grayson’s biological father.

[40] I find that when Genevieve was pregnant with Grayson, she told her parents that she did not know who the father was. Also, I find that Genevieve asked PJ to assist her in completing the Statement of Live Birth when Grayson was born. I accept PJ’s evidence that Genevieve told him that Chris Reid was the father, but that Genevieve wanted to leave the form blank as to the name of the father so that no other person would have “parental rights”.

[41] When this application was commenced, the applicants only named Genevieve as a respondent. At one point, Chris Reid was added as a party, but his pleadings were struck when he failed to obtain a DNA test. Genevieve has now amended Grayson’s birth certificate to name Paul as his biological father. In my view, that amendment does not prove that Paul is Grayson’s father.

[42] Paul’s testimony about this controversy seriously undermines his credibility. Paul testified at trial that he was Grayson’s biological father, and that he obtained that information from Genevieve at around the time of Grayson’s birth in 2015. However, in this action Paul swore an affidavit in September 2020 in which he deposed that Grayson was Genevieve’s child from a previous relationship, and that Genevieve and Paul started a relationship 15 months after Grayson was born.

[43] Nothing has changed between September 2020 and the trial of this case that would clarify this issue. There has been no DNA testing, and no new evidence has been disclosed. Paul attempted to explain the obvious contradiction in his sworn evidence by saying that his lawyer in September 2020 thought it would be better if he said he was not the biological father. Although he was not asked, it seems that Paul believed at trial that it would be better if he said that he was the biological father. The truth was never a factor in Paul's testimony.

[44] At this point, it is not particularly important whether Paul is the biological father; however, it is important that Paul does not seem to be concerned about telling the truth under oath.

[45] Moreover, on the witness stand, I find that Paul withheld information from the court, and evaded questions about topics that he did not wish to discuss. For example, he said that he may have worked for his brother in the tech industry in Florida at one point, but he “doesn’t have an answer for” questions about what he was doing there, or what expertise he may have been using. He did not wish to talk about his work or his brother’s business. His answer of “no comment” was arrogant and disrespectful.

[46] On another occasion, on the witness stand, Paul was asked about a domestic incident in June 2017 in which Paul was charged with mischief. He did not remember the charge at first, and then he remembered that the charge had been withdrawn. He was asked what details he remembered, and he said he did not recall the details because the charge was withdrawn.

[47] Still further, in a subsequent police summary there is indication that Paul was on a peace bond. I suspect that the peace bond was related to the mischief charge. Paul denied on the witness stand that he knew anything about being on a peace bond. I find it incredible that Paul would not know that he was on a peace bond.

[48] Paul also withheld information about his U.S. police records. I accept Ms. Hotson’s testimony that in response to her request for Paul to sign a release for his U.S. police records, Paul said he would obtain and provide a U.S. police records check, but he never did. Paul testified, at first, that he did not remember Ms. Hotson requesting his U.S. police records and he did not remember refusing her request. Then, he said that he did not want to release his records to the applicants because of their malicious intent. He did not mind the court having the records. In my opinion, Paul was evasive about whether he refused to release his U.S. police records, and he was evasive about why he has not signed the release or provided a police records check.

[49] Overall, I find that Paul’s credibility is severely tainted for the reasons set out above. Thus, I find that I cannot rely on his evidence regarding his relationship with Genevieve or the care of Grayson.

Lisa Minda

[50] Lisa died at 54 years of age in February 2023. Her death was caused by an unexpected medical emergency that resulted in internal bleeding. I find that Lisa was a stay-at-home mom while the applicants’ two children were young. After her children started attending school on a full-time basis, Lisa operated her own house cleaning business.

[51] The evidence is clear that Lisa suffered from an untreated mental health disorder. Lisa told Ms. Hotson that she had been diagnosed with a bipolar disorder, but she had not been prescribed any medication for this disorder, nor had she taken any therapy. I accept Peter’s evidence that Lisa was diagnosed with a bipolar disorder, and that she took medication at times for anxiety and/or depression. Further, I accept Peter’s evidence that she did have some occasional therapy for mental health issues.

[52] I also find that Lisa drank alcohol regularly, likely on a daily basis. She also liked to smoke marijuana. She had prescriptions for Percocets because of physical injuries to her back and shoulders. I find that she mixed Percocet use with alcohol consumption, and she also traded her Percocets for marijuana.

[53] I accept the evidence of Lisa’s cousin, Sharon Jean, that Lisa did not like to take medication for her mental health disorder because she did not like the way it made her feel. Ms. Jean also testified, and I accept, that Lisa self-medicated with alcohol and marijuana.

[54] Peter, PJ, and Genevieve all gave similar descriptions of the way in which Lisa’s mental health problems were manifested. In summary, Lisa was emotionally unstable and could quickly become angry and explosive over minor matters. She could make angry, inappropriate comments to all her family members, including her children. She would occasionally throw things and make verbal threats. However, I accept Peter’s evidence that he never felt that he or the children were unsafe around Lisa. Although Lisa was verbally abusive, she was rarely physically violent.

[55] I find that Lisa would occasionally threaten suicide, but that Lisa usually had no genuine intention to commit suicide; Lisa’s threats were usually just calls for attention. I find that Lisa’s threats of suicide were made many times in the presence of Genevieve and PJ when they were younger, and at least once in front of Grayson. I also find that during her down moments Lisa was often aware of her issues, and she would remove herself from the family for weeks at a time until she became more stable.

[56] Overall, I find that Lisa’s outbursts were a negative factor in PJ and Genevieve’s childhood, but I accept that Lisa was generally a loving mother to Genevieve and PJ. I accept PJ’s evidence that there were many good family times growing up in the household, but that Lisa was subject to down moods that were bad approximately once per year.

[57] I also find that Lisa was a loving grandmother to Grayson. Peter and PJ both testified that Lisa was devoted to Grayson. There were no concerns whatsoever for Grayson’s safety in Lisa’s care. This is evidenced by the fact that Genevieve chose to leave Grayson in Lisa’s care on numerous occasions between 2015 and 2020.

[58] All of the family witnesses testified, and I accept, that Lisa could make false statements when she was in one of her moods or during an argument. However, I accept PJ’s evidence that Lisa was not always lying when this happened; rather, she was often delusional as she believed something was true when it clearly was not.

[59] In an evidentiary ruling, I allowed both sides to introduce evidence of hearsay statements made by Lisa. Those statements assist me in making findings as to the narrative, but, as discussed in my ruling, I will be very cautious about accepting these hearsay statements for the truth of their contents.

[60] I find that the family regularly relied on Lisa as a caregiver for Grayson during the first few years of his life. After Grayson was left in the applicants’ care in March 2020, I find that Lisa was the primary caregiver for Grayson with assistance from Peter until Lisa’s death three years later. Thereafter, Peter became the primary caregiver for Grayson with assistance from PJ.

FACTUAL HISTORY

The Early Years

[61] Peter and Lisa moved into their current residence in St. Catharines approximately 20 years ago. When PJ and Genevieve were young, I find that Peter usually worked nights. Peter came home in the morning, prepared breakfast for his children, and got the children ready for school. Lisa did not arise until later in the day. However, as the children became older, Lisa was able to operate her own house cleaning business.

[62] Peter testified that, prior to his marriage, he was aware that Lisa had mental health issues and he accepted those issues. He agreed that Lisa would get very upset over minor matters, and this often led to yelling matches between himself and Lisa. He agreed in cross-examination with the suggestion that their relationship was toxic at times. I find that police officers were called to the Minda residence on two occasions during these early years because of loud arguments between Peter and Lisa.

[63] Also, I find that police and/or medical personnel were called to the Minda residence because of Lisa’s mental health problems on at least three occasions in these early years. In particular, there was one incident in September 2011, in which Lisa called her doctor and threatened suicide. Police arrived at the house, but Lisa would not agree to speak with a crisis worker. Police officers then apprehended Lisa under the Mental Health Act, R.S.O. 1990, c. M.7 (“MHA”).

[64] I find that Genevieve was generally a good student when she was younger, but that she became a difficult and troubled child as a teenager. I accept PJ’s evidence that, as a teenager, Genevieve became very aggressive and moody.

[65] The evidence is clear that Genevieve and Lisa had a never-ending conflict once Genevieve hit her teen years. Peter was not present for most of their arguments, but when he returned home from work, he would hear about the arguments from Lisa, who was often very upset. I accept Peter’s evidence that he has witnessed Genevieve yelling at Lisa that she was a bad mother and that she should never have had kids.

[66] I also find that Genevieve hated her childhood, and that she blamed Lisa for the turmoil in their household. PJ testified, and I accept, that Genevieve liked to “push Lisa’s buttons”. She told PJ that she wanted to push Lisa over the edge so that she would kill herself.

[67] Further, I find that during her high school years, Genevieve started to become deceitful and confrontational. I accept Peter’s evidence that he had purchased a car for Genevieve to use. He then discovered that Genevieve was routinely lying about taking the car to cheerleading practice. In fact, Genevieve was skipping practice and meeting her friends and/or a boyfriend. On other occasions, I accept that Peter discovered that Genevieve lied to him about going to a friend’s house. On one such occasion, I find that Peter found out that Genevieve, a 15-year-old at the time, had gone to a bar. Moreover, I accept Peter’s evidence that Genevieve was involved in several conflicts with classmates while she was in high school.

[68] When Genevieve was 15 years of age, Lisa kicked Genevieve out of the house because of an argument over something that no one can recall. At that point, Genevieve left the house and stayed with her friend, Tatiana, and Tatiana’s family, for a few weeks before she returned home.

[69] Sometime in 2011, when Genevieve was 17 years old, after Peter caught Genevieve lying about where she had been with the car, Peter told Genevieve that she could no longer use the car. Genevieve became upset. Peter told her that if she did not agree, “then there’s the door”. Genevieve chose to leave the house and moved out, once again moving in with Tatiana and her family, where she stayed for a few months. Genevieve graduated from high school in June 2011 while she was living with Tatiana’s family.

[70] Shortly after she moved out of the family home in 2011, Genevieve called police officers to assist her in removing her belongings from her parents’ residence. Genevieve told the police officers that her parents would not provide her with her belongings, but that statement was untrue as Peter had placed all of her belongings in the garage for her to pick up. After she had picked up her belongings, Genevieve had no contact with her parents for approximately one year. During that time, I accept that Genevieve was generally working.

[71] By 2013, Genevieve became the subject of at least two police investigations. In April 2013, there was a police investigation with respect to thefts from Garden City Cat Hospital where Genevieve had been working. Later that month, police investigated Genevieve for fraud as it was alleged that Genevieve was falsely recording her hours of work at the Garden City Cat Hospital.

[72] Shortly thereafter, in September 2013, there was the police investigation about Genevieve fraudulently forging her grandmother’s signature on her grandmother’s cheques. No charges were laid with respect to these 2013 investigations.

Grayson’s Birth and His First Year

[73] In 2014, Genevieve became pregnant with Grayson. She contacted her parents and asked them to be part of her child’s life. On this point, I accept Genevieve’s evidence that her parents were not pleased with her pregnancy, but within two days Lisa asked Genevieve to move back in with them. Genevieve accepted that invitation. Peter built two rooms in the basement to accommodate Genevieve and her baby.

[74] Genevieve gave birth to Grayson on January 24, 2015 while she was living with her parents. It was a difficult birth, and Lisa became the primary caregiver for both Grayson and Genevieve after the birth for at least one month.

[75] I accept Peter’s evidence that Genevieve and Lisa were on good terms for a short time after Grayson’s birth. Thereafter, things turned bad between them again. Peter testified, and I accept, that during Grayson’s first year, there were regular arguments between Lisa and Genevieve regarding the appropriate way to care for Grayson. One common issue was that Genevieve wanted to let Grayson cry without picking him up, and Lisa wanted to comfort Grayson when he was upset.

[76] There was another regular argument because of Genevieve’s habit of leaving the house with Grayson late in the evening. Grayson was still an infant, and Peter and Lisa believed that the lack of structure and routine was not in Grayson’s best interest. Genevieve claimed that she was going out for late night walks, but in reality, I find that she was meeting her new boyfriend, Paul.

[77] I find that Lisa became devoted to Grayson during this time, and she wanted the absolute best care for him. I accept PJ’s evidence that Genevieve used Lisa’s devotion to Grayson as a weapon in order to upset Lisa. That is, Genevieve would threaten to take Grayson away from Lisa as a way of manipulating her.

[78] There were two incidents related to Lisa’s mental health during this period. In 2015, Lisa had apparently taken an overdose of sleeping pills, and Genevieve called the authorities. Police arrived and took Lisa by ambulance to hospital where she was held under the MHA. There was a second incident in April 2016, in which Lisa threatened suicide in a call to her doctor. Police attended the house, but no one would open the door. Police broke through the front door and again arranged for Lisa to be taken to hospital.

[79] I find that Genevieve knew Paul, briefly, in 2014, but Paul moved to Nova Scotia shortly after they met. Genevieve started dating Paul again in early 2016 when he returned to Ontario. She initially kept her relationship with Paul hidden from her parents in 2016; rather, she just left the house in the evening to meet Paul.

[80] Once Genevieve’s relationship with Paul became known, I find that Peter made it clear that he did not like Paul. He thought that Paul was a bad influence on Genevieve and on Grayson. He was also upset to see Paul driving the new Ford Escape that Peter had just purchased for Genevieve.

[81] During this period, I find that Genevieve often left Grayson in the care of her parents while she socialized or worked. Lisa was the primary caregiver for Grayson when Genevieve was out of the home as Peter was usually at work. I find that Lisa was very attentive toward Grayson and provided excellent care for him.

[82] In April 2016, an incident occurred that resulted in Genevieve and Grayson leaving the home. One day, when Genevieve and Grayson were out of the house with Paul, I find that the applicants moved Genevieve’s belongings to Paul’s house on Dieppe Street. When Genevieve returned to Paul’s house and found her belongings on his porch, she contacted Lisa who told her that she was no longer welcome to live with them. On that day, Genevieve and Grayson moved in with Paul at his house on Dieppe Street.

[83] Despite this incident in April 2016, the parties maintained regular contact and Genevieve continued to leave Grayson with her parents on a regular basis for the next few months.

[84] Another significant incident occurred in July 2016. Genevieve and Paul had arranged to move to a residence on Linwell Road. In anticipation of that move, Genevieve left Grayson in the care of her parents for a few days.

[85] On July 1, 2016, Genevieve went to her parents’ residence to pick up Grayson, but Peter physically stopped Genevieve from leaving with Grayson. Lisa and Peter were concerned about Grayson’s welfare. Among their concerns was a worry about Grayson’s hygiene as he had a longstanding problem with diaper rash, and further they were concerned because Grayson did not appear to have a stable or routine schedule when he was in Genevieve’s care. Police officers were called to the Minda residence, and Grayson was allowed to leave with Genevieve.

July 2016 to September 2020

[86] After the July 2016 incident, Genevieve cut off all communications between herself and her parents. Peter and Lisa did not see Genevieve or Grayson for approximately one year. They were unaware of where Genevieve was living during this period of time.

[87] The parties reunited after a chance meeting at a laundromat in July 2017. That evening, Grayson stayed in the care of Peter and Lisa, and remained in their care for several days thereafter. I accept Peter’s evidence that he believed Genevieve was homeless at the time and had nowhere to stay.

[88] From July 2017 onward, Grayson’s primary residence remained with Genevieve, but Grayson spent a significant amount of time in the care of the applicants. There were periods in which Genevieve would routinely drop off Grayson at her parents’ home for a day or a weekend. However, there were other periods in which Genevieve left Grayson with Peter and Lisa for weeks or months at a time.

[89] Genevieve’s precise residence during these few years is very unclear. What is clear is that Genevieve and Paul generally lived together, but that they frequently moved. The FACS records, text messages, and the police summaries indicate that they lived at various times on Dieppe Street, Linwell Road, Leeper Street, Sandown Street, Woodrow Street (twice), and Main Street in St. Catharines, and on Pine Street in Thorold. They lived in a motel on at least three occasions. The family may also have lived on Oak Meadow Place in St. Catharines. I also find that they moved, or attempted to move, to Peterborough, Calgary, and Erie, Pennsylvania, during this time.

[90] Regarding Peterborough, Genevieve testified that they only went to Peterborough camping for one week, and then returned there the next week. Paul testified that he did not even recall being in Peterborough after Grayson was born. I find that this testimony from Paul and Genevieve is untrue and deliberately misleading.

[91] The FACS records show that the family lived in Peterborough in August and September 2017. There was a message from Genevieve to a FACS worker in late August 2017 in which she indicated she had been camping in that area for about three weeks. A September 12, 2017 FACS note indicates that Genevieve and her family had moved to Peterborough.

[92] I accept Peter’s evidence that he received an urgent call from Genevieve in August 2017 to pick up Grayson in Peterborough and take him home to the applicants’ house. As a result, Peter drove to Peterborough and picked up Grayson from Genevieve and Paul. He met them in a parking lot in Peterborough for the exchange. This incident led Peter to again believe that Genevieve and Paul were homeless at the time.

[93] Later, Genevieve confirmed that she was homeless by way of her texts to Lisa in September and October 2017. In those texts, Genevieve informed Lisa that she was living in a car. In the October 2017 text, Genevieve asked Lisa to continue to keep Grayson in her care, otherwise Grayson would be living in a car too.

[94] On a balance of probabilities, because of Genevieve’s move to Peterborough and her homelessness, I find that Grayson was in the continuous care of Peter and Lisa from approximately August 2017 to November 2017.

[95] From late 2017 until approximately March 2018, I find that Genevieve lived in three different motels in the Niagara area as recorded in the FACS records. I find that during this time, Grayson spent days or weeks at a time in the care of the applicants.

[96] Then, in the summer of 2018, there was a putative move to Calgary, Alberta. Genevieve testified that she was only in Calgary for two weeks, but I find that to be untrue. I find that in July 2018, Genevieve and Paul decided to move to Calgary and take Grayson and Caspian with them. At the last minute, they decided to leave Grayson in the care of Peter and Lisa.

[97] In August 2018, the FACS worker was unable to locate the family and filed a missing person report for Genevieve and Grayson. The FACS records show that Genevieve was located in Calgary on August 16, 2018. Further, there is a note from the Alberta Child Protection Services confirming that the family was still in Calgary on August 24, 2018.

[98] There is a FACS note from late September 2018 that the family had moved back from Calgary and were staying at the Travelodge in Niagara Falls, Ontario. Grayson continued to remain in the applicants’ care. Then, on October 17, 2018, a local FACS worker was informed of Genevieve’s phone number by Calgary police. The FACS worker was then able to contact Genevieve, who was in Regina, Saskatchewan at the time, apparently on her way to or from Calgary.

[99] From all of this information, I conclude that Genevieve, Paul and Caspian moved or travelled to Calgary twice between July 2018 and October 2018. In between the two moves to Calgary, I find that Genevieve and Caspian stayed at a motel in Niagara Falls. In total, they were in the Calgary area for far longer than two weeks. During this time, Grayson was in the care of Peter and Lisa. I accept the accuracy of a text message from Lisa to Genevieve dated October 15, 2018, in which Lisa stated that Grayson had been in her care since July.

[100] On a balance of probabilities, because of the move to Calgary and the stay in the motel, I find that Grayson was in the continuous care of Peter and Lisa from July 2018 to November 2018.

[101] During these years, Paul and Genevieve had a significant number of domestic disputes, some of which led them to separate for short periods of time. Also, some of those domestic disputes led to police attendances at their residence.

[102] Although the exact number of police investigations is unclear, I find that police officers were called to attend at Paul and Genevieve’s residence for domestic disturbances at least ten times between August 2016 and January 2020. Some of those attendances were a result of Genevieve and/or Paul calling police. Other attendances were because of calls from neighbours about loud arguments.

[103] During several of the police attendances, Genevieve complained about Paul’s excessive drinking that led to violence. On one such occasion in June 2017, I find that Paul had been drinking excessively. After a loud argument, Paul poured sugar into the gas tank of Genevieve’s vehicle. I find that Paul was charged with mischief as a result of this incident. I do not accept Paul’s evidence that the mischief charge was withdrawn; rather, I find that he was placed on a peace bond as a result of that incident.

[104] I also find that there were other police attendances for welfare checks with respect to children in Genevieve’s care. One was in July 2017, when Genevieve left Grayson alone in a car in a Walmart parking lot. Another was in January 2019, when Genevieve was in Walmart with a child, likely Caspian, with no shoes and no coat in the winter.

[105] There was another police attendance at Walmart in December 2018, when Genevieve was arrested by store security for shoplifting as she was hiding items in a baby stroller in which she was pushing an infant, likely Caspian.

[106] There was yet another welfare check in June 2019 when police were called to Oak Meadows Place in St. Catharines because a resident had observed what appeared to be a homeless couple move in to one of the units. The resident reported that the couple had been sleeping in a car with a baby and leaving the baby unattended in the vehicle.

[107] Further, there was another police investigation in January 2020, in which Genevieve was investigated for criminal harassment of her landlord when she lived on Main Street in Port Dalhousie. She was later arrested for mischief for removing a For Sale sign from that property. Genevieve claims that she was not charged, but the police records show otherwise. The outcome of the charge is unclear.

[108] In addition to the police attendances and investigations, there were a total of eight FACS investigations during this time. The FACS records in general detailed several concerns, but the most significant concern was Grayson’s exposure to domestic violence. The majority of the FACS investigations were opened as a result of neighbours reporting loud arguments in the home and/or as a result of one of the abovementioned police attendances.

[109] The FACS records also show that the workers were concerned that Genevieve was not taking Grayson or Caspian for regular medical appointments and follow up appointments. Genevieve’s excuse was that the children were healthy, and that it was difficult for her to arrange a convenient appointment time with her doctor. The FACS workers also expressed a concern that Genevieve was not participating in recommended programming.

[110] FACS was also aware of, and concerned about, Genevieve’s transient lifestyle. More than once, the FACS workers were unable to locate Genevieve and/or the children for short periods, the most obvious of which was when the FACS worker filed a missing person report in August 2018.

[111] I accept Genevieve’s evidence that the FACS workers never removed the children from her care at any point. I accept that the approach of FACS was to assist Genevieve in learning how to provide proper childcare. For her part, I accept that Genevieve tried to cooperate with FACS. All eight of the FACS investigations were ultimately closed. However, I find that FACS was almost continuously involved with this family from 2016 through to 2020.

[112] In addition to the two longer periods of time that Grayson was left in the applicants’ care in 2017 and 2018, I find that Grayson was left with the applicants for extended periods at other times. I accept PJ’s evidence that Genevieve would drop off Grayson when she had something else to do, and then would pick him up again at some later date when it suited her. It was during this period, between 2017 and 2020, that the applicants became increasingly concerned about Genevieve’s ability to care for Grayson. I accept Peter’s evidence that he felt that Grayson often seemed sad and malnourished when he picked him up from Genevieve, and that he needed stability and a routine.

[113] Paul is a dual citizen of Canada and the United States, but he did not obtain his U.S. passport until late 2018. In October 2018, Paul, Genevieve, and their two children, Grayson and Caspian, went to visit Paul’s mother in New Jersey for a short visit. It was Paul’s first trip to the United States in eight years.

[114] By 2019, I find that Paul was intent upon moving to the United States. In March 2019, he bought a house in Erie and the family went with him to Erie. Paul then started to renovate that house. Consequently, I find that Paul, Genevieve, and their two children at the time stayed at this house for only a few days before Genevieve drove Grayson back to her parents’ residence and left Grayson in their care.

[115] Paul’s mother, Lori Davy (“Lori”), testified that the family lived with her in New Jersey for about three months while Paul renovated the Erie house, but Lori was not clear as to whether Grayson stayed with her in New Jersey. Further, Genevieve’s residence in the first half of 2019 is also unclear as she sent texts to Lisa stating that she was at various times living in Florida, in New Jersey, on Woodrow Street in St. Catharines, and at a motel in Niagara Falls. On a balance of probabilities, I find that Grayson was in the care of the applicants in St. Catharines for most of the time between March 2019 and June 2019.

[116] The first Erie house was sold in June 2019, and thereafter Genevieve, Paul, and the two children moved into a residence on Main Street in Port Dalhousie. I find that Paul still had a long-term plan to move to the United States. Lisa and Peter were aware of this plan but were not in favour of the move. It also appears that Genevieve did not want to move to the United States as she sent a text to Lisa in May 2019 in which she told Lisa that she and Paul had separated because Paul wanted to live in the United States and Genevieve did not want to live there with him.

[117] Grayson started junior kindergarten in St. Catharines in September 2019. The school was in the applicants’ catchment area, not in the catchment area for Genevieve’s residence. I find that Peter and Lisa were instrumental in taking Grayson back and forth to his school.

[118] In late February 2020, Paul purchased another residence in Erie, and he moved there again. Genevieve decided to join him. So as to not disrupt Grayson’s schooling, on March 1, 2020, Genevieve left Grayson in the care of her parents and moved to Erie to live with Paul. I accept that the plan was for Genevieve to leave Grayson in St. Catharines to complete his school year and then pick him up in June 2020.

[119] The COVID-19 pandemic became a worldwide pandemic in March 2020. This severely restricted Genevieve’s ability to cross the border. Therefore, she was unable to have any in-person contact with Grayson.

[120] Between March 2020 and September 2020, Grayson made certain disclosures to Peter and Lisa that caused them to become more concerned about Genevieve’s ability to provide proper care for Grayson. He told them that Paul would pick on him and that Paul would prefer Caspian to him. Grayson said that he often did not have enough food to eat. He said that the dogs were given more food than him. If he did get any food, it was fast food from McDonald’s, but he was not allowed to eat the whole meal as he had to save some of it for the next day.

[121] Grayson also said that he lived in a house without heat and that he had to sleep in his snow suit. He said that he was often locked in his bedroom during the night. I accept the evidence of PJ and Peter that even today Grayson will not sleep in a bedroom that has a door on the room.

[122] I cannot find that all of these disclosures by Grayson are completely true, but I do find that Peter’s evidence about Grayson making these disclosures is truthful. The fact that Grayson made these statements suggests that Grayson was not content with his living situation while he resided with Genevieve, and in particular that he did not like Paul.

[123] Genevieve maintained contact with Peter by text/telephone while she was in the United States and Grayson was living with the applicants. However, I reject Genevieve’s evidence that she talked to Grayson daily during this time; rather, I accept the evidence of Peter and PJ that Genevieve only spoke with Grayson by telephone approximately five times in six months.

September 2020 to Present

[124] On September 9, 2020, I find that Genevieve texted Peter and asked him to drive Grayson across the Canada/United States border and meet her on the United States side of the bridge so that she could take Grayson back to Erie to live with her. Peter did not agree to this plan, in part because of the COVID-19 regulations about crossing the international border, and in part because of his concerns for Grayson.

[125] I find that Genevieve then told Peter that Paul’s brother, John Ellison (“John”), would attend at Peter’s house to pick up Grayson and drive Grayson across the border. Peter also did not agree with this alternate plan.

[126] I find that on September 10, 2020, Genevieve called police and falsely informed the officers that she had been talking with Grayson, that Grayson was crying and upset, and that Grayson wanted to come home to live with her. She asked for police assistance to retrieve Grayson from her parents. Accordingly, police officers attended at the applicants’ house late in the evening of September 10, 2020.

[127] Shortly after the police officers arrived, Genevieve and John arrived in a vehicle. The police officers spoke with Grayson and determined that he was safe and content in the applicants’ care. The police officers also contacted FACS about the situation. Genevieve was not permitted to take Grayson from the residence. Genevieve returned to the United States that evening.

[128] On September 11, 2020, the applicants commenced the current application for custody. An ex parte temporary order granting custody of Grayson to the applicants was made by Lococo J. on September 11, 2020.

[129] After Genevieve was served with the temporary custody order, Genevieve retained a lawyer who brought a motion for the return of Grayson to Genevieve’s care and custody. That motion was heard on September 28, 2020. Genevieve’s request was dismissed by Scott J., and the temporary custody order made by Lococo J. was continued. That order has remained in place since that time.

[130] Between September 2020 and January 2021, I find that Genevieve sent several text or email messages to Peter requesting that she have some contact with Grayson, but Peter did not reply to any of these messages. Genevieve has not made any direct request to Peter for contact with Grayson since January 2021.

[131] Peter testified that he did not agree to contact between Grayson and Genevieve because of the conflict that Genevieve had caused in the family, and because Genevieve had lied to police on September 10, 2020, about Grayson crying to come home with her. I accept that Peter had legitimate concerns that Genevieve would attempt to manipulate and/or lie about the situation if she had contact with Grayson, but I strongly disagree with his decision to eliminate all contact between them.

[132] There is a further complication because Genevieve has refused to provide the applicants with her residential address in Erie. Therefore, if Grayson was removed to the United States by Genevieve, the applicants would not know how to locate Grayson if he was not returned. To this date, Genevieve has not disclosed her residential address to Peter, Lisa, or this court. I strongly disagree with Genevieve’s decision to hide her residential address.

[133] Regarding the court application, the only subsequent request made by Genevieve for contact with Grayson was an incomplete motion delivered in early 2021. In that motion, Genevieve asked the court to set aside the order that required her to sign a release for her FACS records, and to make an order that allowed her to have contact with Grayson. That motion was scheduled to be heard in October 2021, at which time Walters J. ruled that the motion could not proceed, in part, because Genevieve had failed to serve the motion on Chris Reid who was a party at the time. The motion was adjourned, but neither party brought the motion back to court.

[134] Despite the recommendations made by Ms. Hotson in April 2022 that Genevieve have contact with Grayson, Genevieve did not bring any further motion for parenting time with Grayson, and Peter did not facilitate any parenting time between Genevieve and Grayson.

GRAYSON

[135] Grayson has just turned nine years of age. Genevieve has not seen Grayson in person since March 1, 2020, approximately four years ago. The only contact that Genevieve has had with Grayson since March 2020 was during a Zoom video call with Ms. Hotson on October 25, 2021, in the course of the OCL investigation.

[136] The applicants arranged for counselling for Grayson shortly after they obtained a temporary custody order in their favour in September 2020. The counselling process commenced in December 2020 when Lisa met with Contact Niagara. At the intake meeting, Lisa informed the counsellor that Grayson seemed sad, worried, and upset. Grayson told her that he did not want any contact with his mother. He said that his mother had promised him that she was going to get rid of Paul, but she never did. He was angry at her for marrying Paul.

[137] Lisa told Contact Niagara that Grayson has angry outbursts that seem to be related to his anger at his mother. He would throw things and hit things when he became angry. He has said that he would kill his mother and Paul if he was forced to live with them.

[138] Contact Niagara also made a note that Grayson fears being abandoned. He fears sleeping alone because he says that he previously had been locked in his bedroom by his mother. It was noted that Grayson was easily distracted and side tracked. He also has panic attacks that can cause him to vomit. Further concerns were raised as to whether Grayson had been physically abused by Paul.

[139] Both Genevieve and Paul testified that the description of Grayson in the Contact Niagara intake notes is incorrect. Genevieve testified that Grayson was always safe and happy in her care. He was never fearful of Paul. He regarded Genevieve and Paul as his mother and father, and he was happy living with them. He always had proper food and clothing, and he was never locked in his room. Paul testified that he has never abused Grayson and he never felt that Grayson feared him.

[140] In my opinion, much of the information provided by Lisa to Contact Niagara in December 2020 has been corroborated at this trial by Peter, PJ, and Ms. Hotson. Peter testified that Grayson was upset with his mother in 2020 because she broke her promise to him when she married Paul. Grayson has repeatedly told Peter that he does not want to live with his mother and Paul. PJ testified that Grayson has confided in him that he wanted to continue to live in his grandfather’s house with Peter and PJ.

[141] Further, Peter confirmed that, in 2020, Grayson told Peter that Paul had a gun, which Grayson was able to describe in detail, and that Grayson told him that he would use that gun to kill his mother and Paul if he was forced to live with them. He wanted to continue to live with Peter.

[142] Both Peter and PJ confirmed that in 2020 Grayson would not sleep in a room with a door on it. Grayson initially slept with Lisa for approximately his first year with the applicants, and to this date Grayson can only sleep in a bedroom if Peter has removed the door to the bedroom. Also, both Peter and PJ confirmed that, as of 2020 and 2021, Grayson was having panic attacks.

[143] I accept this evidence from Peter and PJ as to Grayson’s emotional well being and his wishes as of 2020 and 2021. I also accept that the intake notes in the Contact Niagara records provide a fairly accurate description of Grayson’s feelings and circumstances as of December 2020.

[144] I find that Grayson has made significant improvements since December 2020. He had counselling at Family Counselling Centre Niagara for several months in early 2021. He also attended Pathstone Mental Health where he was assessed by Sheri Eggleton, a registered psychotherapist, in March and April 2021.

[145] I accept the comments from Ms. Eggleton that Grayson’s conduct during play therapy was consistent with that of children who had experienced trauma or observed considerable conflict between the adults involved in their care. This observation by Ms. Eggleton caused Ms. Hotson to be concerned about the relationship between Paul and Genevieve, and contributed to her concern that they were not being truthful about Paul’s relationship with Grayson.

[146] One of the recurring themes in this trial is Grayson’s apparent fear of Paul. Grayson told Ms. Hotson that he was scared of Paul, and both Peter and PJ have confirmed that evidence. Even Genevieve, when she was on the witness stand, acknowledged that during the Zoom call in October 2021 Grayson seemed scared of Paul as he refused the offer to speak with Paul during the call. I find that Grayson is truly fearful of Paul at this point. He does not want any contact with Paul.

[147] I find that there are no immediate concerns that Paul would physically harm Grayson if Grayson were in Paul’s care. There has been only one incident of modest physical harm by Paul. Prior to 2020, Peter observed that Grayson had what appeared to be cigarette burns on his body and Grayson told Peter that Paul had burned him with a cigarette. The burns were minor, and Peter treated them with cream. He then discussed the matter with Genevieve, who told him, and this court, that the burns were accidentally inflicted when Paul flicked a cigarette butt.

[148] It is understandable that occasionally children can suffer minor injuries, unintentionally and by accident. These injuries serve as a reminder to parents to be very careful around their children. However, the real problem in this case is that Paul denied that he ever flicked a cigarette butt that caused any harm to Grayson. Moreover, contrary to her testimony in court, Genevieve denied having any knowledge of these burns to Ms. Hotson. Therefore, the concern here is not so much the injury, but the failure of Genevieve and Paul to acknowledge the incident.

[149] In my view, Grayson’s obvious fear of Paul is based upon Grayson’s observation of many loud, angry, and sometimes violent, domestic arguments between Paul and Genevieve. The text messages show that on more than one occasion Grayson asked Lisa for earplugs so that he would not have to listen to the yelling in his residence. This, combined with Ms. Eggleton’s comments about Grayson’s possible exposure to adult conflict, leads me to conclude that Grayson has been negatively affected by his exposure to violent arguments between Genevieve and Paul.

[150] Regarding the present situation, I accept the testimony of Ms. Hotson, Peter, and PJ that Grayson thinks of Peter’s house as his home. Grayson is happy and content in his current residence. He has close friends and playmates both in the vicinity of Peter’s home and at his school.

[151] I accept Ms. Hotson’s evidence as to Grayson’s views and preferences. I accept her testimony that, as of 2022, Grayson wanted to continue to live with his grandparents, Peter and Lisa (both of whom were alive in 2022). Ms. Hotson observed that Grayson appeared worried and scared that he would be forced to live with his mother and Paul. He did not want to return to his mother’s care.

[152] Ms. Hotson had a chance to observe Grayson in the presence of Peter and Lisa. In Ms. Hotson’s opinion, which I accept, Grayson had a positive relationship with Peter and Lisa. He was comfortable and happy in their presence.

[153] Peter and PJ confirmed and updated Ms. Hotson’s evidence regarding Grayson’s wishes. I find that Grayson currently has a distinct preference to continue to live in his grandfather’s house, and that he has regularly expressed that preference to Peter and PJ.

[154] Regarding contact with Genevieve, I accept Ms. Hotson’s evidence that Grayson consistently told her during her investigation in 2021 and 2022 that he wanted to have contact with his mother and his siblings, but that he preferred to live with his grandparents.

[155] I find that Grayson is not fearful of living with Genevieve. Ms. Hotson observed the interaction between Genevieve and Grayson in the Zoom call in October 2021. She said that their conversation was very relaxed and comfortable after the first few nervous minutes. Grayson did not seem upset, and he engaged well with his mother. He asked for her phone number so that he could call her again. Overall, the Zoom meeting was very positive.

THE LAW

[156] The starting point for this case is the Children's Law Reform Act, R.S.O. 1990, c. C.12, (the "CLRA"). Section 21(1) provides that a parent of a child may apply to a court for a parenting order respecting decision-making responsibility and parenting time with respect to the child. Sections 21(2) and (3) provide the authority for a grandparent to apply for a parenting order respecting decision-making responsibility and a contact order.

[157] The paramount consideration for making any parenting order or contact order with respect to a child is the best interests of the child. The CLRA provides guidance as to how that paramount consideration is to be applied.

[158] Section 24(1), (2) and (3), read as follows:

24 (1) In making a parenting order or contact order with respect to a child, the court shall only take into account the best interests of the child in accordance with this section.

(2) In determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.

(3) Factors related to the circumstances of a child include,

(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;

(b) the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;

(c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;

(d) the history of care of the child;

(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;

(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;

(g) any plans for the child’s care;

(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;

(i) the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child;

(j) any family violence and its impact on, among other things,

(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and

(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate on issues affecting the child; and

(k) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child.

[159] Family violence is specifically dealt with at s.24(4), as follows:

(4) In considering the impact of any family violence under clause (3) (j), the court shall take into account,

(a) the nature, seriousness and frequency of the family violence and when it occurred;

(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;

(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;

(d) the physical, emotional and psychological harm or risk of harm to the child;

(e) any compromise to the safety of the child or other family member;

(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;

(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve the person’s ability to care for and meet the needs of the child; and

(h) any other relevant factor.

PRIMARY RESIDENCE

[160] An order for primary residence is a form of parenting order and a contact order. Therefore, as stated in s.24(1) of the CLRA, the paramount consideration is the best interests of the child. After a thoughtful and thorough investigation, Ms. Hotson recommended in 2022 that Grayson’s primary residence remain with Peter and Lisa at their home in St. Catharines. At trial, Ms. Hotson recommended that, for many of the same reasons, Grayson’s primary residence should remain with Peter. I accept that recommendation.

[161] In my view, the single greatest factor regarding primary residence is Grayson’s obvious need for stability. Maintaining the status quo by permitting Grayson to continue to primarily reside with Peter would provide that stability. Grayson led a nomadic life in his early years. He moved regularly, his accommodation was often inadequate, and he was exposed to violent arguments between the adults in his life. As of 2020, he was in desperate need of a stable and secure residence.

[162] In 2020 and 2021, Grayson was emotionally unwell. He lacked focus, he had a tendency toward violence, he had a fear of abandonment, he considered killing his mother, and he had other unwarranted fears. Since that time, Peter and Lisa provided Grayson with a stable home, a consistent routine, and some much needed therapy. He has greatly improved because of the care provided by the applicants. To remove Grayson from the home that has provided a foundation for his improvement, in my view, would likely cause immeasurable emotional harm.

[163] Another significant factor in the applicants’ favour is Grayson’s views and preferences. Ms. Hotson spent a considerable amount of time sorting through Grayson’s early years. She acknowledged that Grayson had probably been coached by Lisa prior to his interview with her, and she also questioned whether Genevieve was being honest with her. Ultimately, I find Ms. Hotson was able to accurately determine Grayson’s views and preferences. Peter and PJ confirmed that Grayson’s views and preferences have not changed since Ms. Hotson completed her investigation.

[164] In summary, I find that Grayson wishes to continue to reside in his present home with his grandfather, Peter. Grayson does not want to live with his mother, Genevieve, although he wants to have regular contact with her. Furthermore, Grayson currently is fearful of Paul, and he does not want to be forced to live in a household that includes Paul. I find that it would not be in Grayson’s best interests to ignore Grayson’s wishes and force him to live in a situation that would make him unhappy and fearful.

[165] Another factor in the applicants’ favour is Peter's ability and willingness to meet Grayson’s needs. Between Peter and PJ, a regular routine has been established for Grayson. Peter and PJ ensure that he gets to school and does his schoolwork. Peter has provided counselling and is willing to do so again. Grayson regularly attends his medical appointments.

[166] I find that Genevieve does not have the same ability and willingness to meet Grayson’s needs. In fact, in Grayson’s early years, Genevieve relied on the applicants to meet Grayson’s needs. One of the main concerns of FACS was Genevieve’s transient lifestyle. Genevieve's answer to her transience was to drop off Grayson with the applicants when she needed stability for Grayson.

[167] Moreover, there are several concerns raised by the applicants and FACS that collectively show that the standard of care provided by Genevieve during Grayson’s early years was not adequate. In particular, Grayson’s complaint about not getting enough food is a concern. I assume that Grayson probably received enough food, but Grayson was obviously bothered by something about how he was fed. I find that this complaint probably relates more to the absence of a mealtime routine than to the absence of food.

[168] There is also a concern about Genevieve and Paul's failure to acknowledge any responsibility for the cigarette burns suffered by Grayson. There is a concern about Grayson believing that Caspian was being preferred over him. Further, the FACS workers were concerned about Grayson not attending for regular medical appointments. There were also a few welfare checks by police. These individual concerns collectively suggest that Grayson’s needs, including his need for a routine, were not consistently met by Genevieve.

[169] I accept that there are some factors in this case that favour Genevieve’s request for an order that Grayson be returned to her care. One factor in Genevieve’s favour is that generally a child should reside with his/her biological mother and his/her siblings. If a child is raised in a household with a biological parent and biological siblings that child will generally have a sense of love, family, and security. In my view, this is a legitimate argument in this case. If all other factors are equal, it is generally in the child’s best interest to be raised by a biological parent.

[170] Genevieve also submits, correctly, that she is a stay-at-home mother, and therefore she is in a good position to care for the moment to moment needs of Grayson. At Peter’s home, Genevieve correctly points out that Peter and PJ are the main caregivers and they both work on a full-time basis. Again, this factor favours Genevieve’s position.

[171] Genevieve also submits that Grayson has more family supports in the United States as Paul has many family members living in the Pennsylvania area. It may be correct that there are more of Grayson’s family members in the Pennsylvania area than in the Niagara area, but in my view, this is not a particularly strong point.

[172] I find that Grayson only has Peter, PJ, and a great grandmother in the St. Catharines area, but I find that those relatives provide a high quality of support for Grayson. I accept that some of Paul’s family members also likely provide a high quality of support. In particular, I heard from Paul’s mother who testified at trial, and I accept that she is likely a very good family support for Grayson. However, I find that any and all of the family members on both sides of the border should be able to maintain a relationship with Grayson regardless of whether Grayson lives in Pennsylvania or Ontario.

[173] Genevieve also submits that she is more willing than Peter to support the development and maintenance of Grayson’s relationship with opposing family members. I do not accept that submission. I find that both sides in this dispute have limited Grayson’s relationship with the other party. Although Genevieve testified that she would ensure that Grayson had ongoing contact with Peter, I do not believe that she was sincere.

[174] Another factor that is a negative for Genevieve is her tendency to deny or minimize responsibility for problems she has encountered. One example is the issue with Grayson’s diaper rash. To summarize, Genevieve testified that if the diaper rash was so bad, then Peter should have taken Grayson to the hospital.

[175] I accept that Peter observed the diaper rash, and he treated it with cream. He spoke to Genevieve about it. When Grayson was returned to Genevieve’s care, the diaper rash became bad once again, and Peter had to treat it again. Although this was a relatively minor problem, I find that this is a small example of Genevieve’s tendency to minimize any negative impact that her substandard level of care had on Grayson.

[176] Another example of Genevieve’s denial of responsibility relates to the involvement of FACS. Genevieve refused to acknowledge that there was any real reason for FACS to be involved. She blamed any involvement by FACS on calls made by her mother. In fact, FACS opened eight separate investigations between 2016 and 2020, most of which were commenced by calls from police or concerned neighbours, not Lisa.

[177] Moreover, it is clear from the FACS records that the family support workers thought of Peter and Lisa as positive factors in Grayson’s life as they provided a safe haven for Grayson if and when Genevieve was not able to care for Grayson. In my view, if not for the presence of the applicants in Grayson’s life, I find that Grayson likely would have been removed from Genevieve’s care by FACS. I find that, to this day, Genevieve cannot accept that her care for Grayson was not up to the necessary standard.

[178] Another significant concern is Genevieve’s refusal to provide her residential address. In my view, this refusal is indicative of Genevieve’s desire to control the applicants through Grayson. Given that Genevieve has generally been untruthful and manipulative in dealing with Peter and Lisa, that she now resides in the United States, that she is married to a U.S. citizen, and that she has created a birth certificate that shows Paul as Grayson’s father, there is a real concern that if Grayson is placed in Genevieve’s care, Genevieve will take Grayson into the United States and none of Grayson’s Canadian family will see him ever again.

[179] Finally, I find that Grayson’s exposure to family violence is a significant factor that favours Peter’s request. Family violence is not limited to the actual infliction of physical violence on the child or on other members of the household. I find that in this case Grayson was exposed to family violence in the form of violent verbal arguments between Genevieve and Paul.

[180] Grayson’s exposure to this violence caused emotional harm to Grayson. Again, Genevieve minimizes the harm that Grayson has suffered as a result of Genevieve’s lifestyle choices, and in fact she attempts to place the blame for her own involvement in family violence on Peter and Lisa as she says they were not good role models for her. I find that Grayson required counselling in large part due to his exposure to adult conflict.

[181] For all of these reasons, I find it is in the best interests of Grayson for his primary residence to be with the applicant, Peter, in St. Catharines.

DECISION-MAKING RESPONSIBILITY

[182] Ms. Hotson recommended that Peter have sole decision-making responsibility for Grayson. I agree.

[183] The most obvious reason for this finding is that Peter and Genevieve do not communicate well. There has been no communication between them since early 2021, except through this court. Communication prior to that date was often angry and confrontational.

[184] In addition, I find that Genevieve has a history of making poor decisions for Grayson. She forced a transient lifestyle on Grayson, and she sporadically dropped Grayson off with the applicants for indeterminate stays. She exposed Grayson to family violence during volatile periods of cohabitation with Paul. She gave priority to her own wants and needs over Grayson’s wants and needs. I accept that Genevieve’s current domestic situation may be much improved, and that she is learning to be a better parent, but I find that she is not yet ready to make significant decisions for Grayson.

[185] For these reasons, I find that, at present, it is in Grayson’s best interests for Peter to have sole decision-making responsibility for Grayson. In the future, I expect that Genevieve and Grayson will have a well-developed relationship and that Genevieve will be involved in decision-making for Grayson. Therefore, as part of my decision today, I will also order that Peter consult with Genevieve on all major decisions for Grayson. Where the parties cannot agree on a major decision for Grayson, Peter shall have the final say. Peter shall also keep Genevieve fully informed with respect to Grayson’s health, education, and general well-being.

PARENTING TIME

[186] I want to be clear that I find Peter’s decision to eliminate all contact between Genevieve and Grayson to be completely unacceptable.

[187] Peter testified that he does not want Grayson to have contact with Genevieve because she causes conflict between them, and because she tends to lie about their circumstances. I do not dispute Peter’s view that Genevieve has these tendencies, but as a custodial caregiver for Grayson, it is incumbent upon Peter to foster a relationship between mother and child, even if his relationship with Grayson’s mother is poor.

[188] Ms. Hotson recommended a graduated parenting schedule for Genevieve starting with once per week visits by Zoom or other videoconference for the first one or two months, increasing to in-person community visits by the fifth month.

[189] I find that some contact between mother and child must be started immediately. Therefore, I will order that Peter arrange for Zoom videoconferences, or some other type of videoconference, between Genevieve and Grayson every Wednesday between 7:00 p.m. and 8:00 p.m., commencing on the first Wednesday after the date of this decision.

[190] I also find that contact between Genevieve and Grayson should be increased over time; however, I disagree with Ms. Hotson’s proposed graduated parenting time schedule. In my view, it is difficult at this point to determine a timetable for an increase in parenting time given that there has been no in-person contact for four years.

[191] Ms. Hotson recommended that the parties participate in reconciliation counselling, and I wholeheartedly agree with that recommendation. I find that reconciliation counselling for Genevieve and Grayson must be undertaken before any court could consider increasing Genevieve’s parenting time. Further, such counselling for Peter and Genevieve may assist the parties in co-operating with respect to matters that involve Grayson.

[192] Therefore, I will order that Peter arrange for reconciliation counselling that will initially include Peter, Genevieve, and Grayson. The objective of the counselling will be to restore the relationship between Genevieve and Grayson as mother and child, and to facilitate the ability of Peter and Genevieve to co-operate.

[193] The counsellor will be chosen by Peter, and the counsellor will be in the Regional Municipality of Niagara. Any costs will be paid by Peter. Once the counsellor has been retained, Genevieve will be invited to participate, and all parties will follow the recommendations of the counsellor.

[194] I specifically order that the parties are to increase, decrease, or alter the frequency and nature of the parenting time in accordance with the recommendations of the reconciliation counsellor. In these circumstances, there is no need for a police enforcement order, as requested by Peter.

OTHER PARENTING ISSUES

[195] In addition to the aforementioned orders, I will make the following orders in accordance with Ms. Hotson’s recommendations:

1. Genevieve shall be entitled to access to Grayson’s education and health records;
2. All communications between Peter and Genevieve about Grayson will be through an app such as Our Family Wizard or App Close;
3. Genevieve shall be entitled to send Grayson pictures of his siblings;
4. Neither Peter nor Genevieve will speak badly about each other to Grayson, in Grayson’s presence, or when Grayson is in the home.

CHILD SUPPORT

[196] Through counsel, Peter requests that Genevieve pay child support to him based upon imputed income of $32,000 per year, which is the equivalent of the earnings of someone who has a minimum wage job in Ontario.

[197] Given that Genevieve failed to obey the court order that she was to provide her income tax information for 2020, 2021, and 2022, I am tempted to make an adverse inference against Genevieve with respect to her ability to earn income. However, I find it would not be productive to do so.

[198] I accept that Genevieve is currently a stay-at-home mother, and that Paul works and supports the family. Genevieve has two children at home with her, namely Caspian and Memphis, who are five years old and one year old, respectively. She is also pregnant and expecting another baby.

[199] Under these circumstances, I am not prepared to find that Genevieve should be earning an income at this point. I will not impute income to her. I accept that her current income is zero.

[200] Accordingly, Peter’s request for child support from Genevieve is dismissed.

CONCLUSION

[201] In summary, I make the following orders:

1. The primary residence of Grayson Richard Pierre Minda (“Grayson”), born January 24, 2015, shall be with the applicant, Peter George Minda (“Peter”), in St. Catharines, Ontario.
2. Peter shall have sole decision-making responsibility for Grayson.
3. Peter shall consult with Genevieve Chelsey Dawn Minda (“Genevieve”) on all major decisions for Grayson. However, where the parties cannot agree on a major decision for Grayson, Peter shall have the final say.
4. Peter shall arrange for parenting time for Genevieve by way of Zoom videoconferences, or some other type of videoconference, between Genevieve and Grayson every Wednesday between 7:00 p.m. and 8:00 p.m., commencing on the first Wednesday after the date of this decision.
5. Peter, Genevieve, and Grayson shall participate in reconciliation counselling. The reconciliation counsellor will be located in the Regional Municipality of Niagara and will be chosen by Peter. Any costs will be paid by Peter.
6. The parties are to increase, decrease, or alter the frequency and nature of Genevieve’s parenting time in accordance with the recommendations of the reconciliation counsellor.
7. Genevieve shall not remove Grayson from the Regional Municipality of Niagara.
8. All communications between Peter and Genevieve about Grayson will be through an app such as Our Family Wizard or App Close.
9. Peter shall keep Genevieve fully informed with respect to Grayson’s health, education, and general well-being.
10. Genevieve shall be entitled to access to Grayson’s education and health records.
11. Genevieve shall be entitled to send Grayson pictures of his siblings.
12. Neither Peter nor Genevieve will speak badly about each other to Grayson, in Grayson’s presence, or when Grayson is in the home.
13. Peter’s request for child support from Genevieve is dismissed.

[202] Regarding costs, if either party wishes to make submissions as to costs, I direct that the party seeking relief shall deliver written submissions, no longer than 5 pages, to the Judicial Assistants at St.Catharines.SCJJA@ontario.ca within 20 days of the release of this decision, with responding submissions to be delivered within 10 days thereafter. If no submissions are received within this time frame, the parties will be deemed to have settled all of the costs issues has between themselves.

Justice J. R. Henderson Date Released: March 13, 2024