M.L. v. D.D., 2011 ONCJ 221

North Bay Registry No. FO 349-06 DATE: 2011·IV·04 CITATION: M.L. v. D.D. , 2011 ONCJ 221 ONTARIO COURT OF JUSTICE BETWEEN: M.L., Applicant (Responding party on motion), — AND — D.D., Respondent (Moving party). Before Justice Louisette Duchesneau-McLachlan Reasons for Judgment released on 4 April 2011 STATUTES AND REGULATIONS CITED Children’s Law Reform Act , R.S.O. 1990, c. C-12 [as amended], subsection 20(5) . C. Edward Rae ................................. counsel for the applicant mother (responding party on motion) William A.

Sangster ............................................. counsel for the respondent father (moving party) [ 1 ] JUSTICE L.

DUCHESNEAU-McLACHLAN:— The original order in this file was made on 25 January 2007. [ 2 ] At that time, the court made a finding of paternity and the mother received sole custody of the child, D.L. (born on […] February 2004), subject to access to the father supervised by the paternal grandmother. [ 3 ] Subsequently, on 28 February 2008, the court made an order changing primary residence of the child so that she would live with her father while the mother obtained counselling. [ 4 ] The mother had mental health issues and herself initiated this new arrangement for D.L. [ 5 ] The order specified that the child’s residence would be once again with the mother as of 1 June 2008 unless a court ordered otherwise.

In the meantime, mother was to have access every weekend.

It was also stipulated that, once the child returned to live primarily with the mother, then the father would enjoy reasonable access on reasonable notice unless a court ordered otherwise. [ 6 ] On 22 May 2008, a temporary order was made for the child to reside with her father. [ 7 ] In June of 2008, an order was made seeking the intervention of the Office of the Children’s Lawyer. [ 8 ] Indeed, although the change of residence in February of 2008 had been requested by the mother in that she was not well and required medical assistance, during the child’s stay with the father, both parents became certain that the child had been sexually abused as she was demonstrating inappropriate sexualized behaviour. [ 9 ] The mother kept accusing the father of sexually abusing their daughter and he had to bring the child to the hospital, to a doctor and to be subjected to children’s aid society and police investigations. [ 10 ] Every time there was an investigation, the charges were found to be unsubstantiated. [ 11 ] The father felt that any sexual abuse was attributable to the mother’s boyfriend or friends.

[ 12 ] The Office of the Children’s Lawyer was involved till about March of 2009 and the children’s aid society was involved till sometimes in the summer of 2010.

The assessor recommended that the father have custody and primary residence of the child. [ 13 ] The parties then had to wait for legal aid authorization to proceed to trial. [ 14 ] The father admits that he was not really present for D.L. the first year of her life as he had drug problems and had to go into treatment. [ 15 ] The mother nevertheless allowed the paternal grandmother to have access to D.L. [ 16 ] The change of residence took place when D.L. was about three years old. She is now seven. [ 17 ] Both parents have nothing bad to say about the each other now.

They seem to feel that each one of them is able to parent D.L. and, although each one is seeking primary residence, each is willing to allow the other generous access. [ 18 ] The father and D.L. have always lived with the paternal grandparents. They have a big home in the country and D.L. has her own room. The father is on a disability pension. [ 19 ] The father has some learning disabilities but his mother helps D.L. with her homework.

The grandmother testified that otherwise the father has primary responsibility for his daughter and that he is doing a good job. [ 20 ] The mother unfortunately is presently facing a “grow-op” drug charge as a result of her live-in boyfriend’s cultivation of marijuana in her bedroom. She feels that this charge against her will be dropped once the boyfriend pleads guilty.

The boyfriend is in pre-trial detention and she says that she will not allow him to return to live with her since now she must vacate her apartment by August of this year. [ 21 ] The mother only qualifies for a two-bedroom apartment since both her children are daughters and are expected to share a bedroom. [ 22 ] The mother states that unfortunately the daughters each want their own room and that they do argue. She feels that having both girls living with her would help the situation. [ 23 ] I must admit that I do not follow her reasoning in this matter. [ 24 ] D.L. is doing well at school.

If her residence is changed so that she lives with her mother, the chances are that she would not be able to attend the same school. Her school is in Callander, in the District of Parry Sound and the mother usually resides in North Bay. The mother indicates that she has not been able to participate is D.L.’s school activities because of transportation.

It would be difficult for her to live in Callander even if she could find rent-assisted premises there because of this transportation problem. [ 25 ] On the other hand, the father has a lot of contact with the school and, with the help of his mother, seems able to cope with D.L.’s educational needs. [ 26 ] After a period of dissension, these parents seem to be able to communicate very well in terms of D.L.’s needs. They no longer require a communication book. This augurs very well for their daughter. [ 27 ] When you look at what is best for their daughter, I have determined that the following should be ordered: (

a) The parents to have joint custody of their child. (

b) Primary residence to continue to be with the father. (

c) The mother to have generous access, including every weekend that the father does not have special plans for D.L.; five weeks during the summer school holidays; half of the Christmas school holidays; half of the spring school break or any other time as agreed to between the parties. (d) Subsection 20(5) of the Children’s Law Reform Act , R.S.O. 1990, c. C-12, as amended, shall be part of the order.