G.L. v. C.G., 2011 ONCJ 102

Dryden Registry No. FO-04-136-02 DATE: 2011·III·03 CITATION: G.L. v. C.G. , 2011 ONCJ 102 ONTARIO COURT OF JUSTICE BETWEEN: G.L., Applicant, — AND — C.G., Respondent. Before Justice A.

Thomas McKay Heard on 18 and 19 November 2010; and 6 January 2011 Reasons for Judgment released on 3 March 2011 CUSTODY OF CHILD — Best interests of child — Risk of harm — Risk of emotional harm — Reluctance to relocate emotionally fragile child in midst service delivery program — Relationship between natural parents of boy (now 7½ years old) was uneasy and had been complicated by geography — Mother, child and most of both wings of child’s extended family lived in north-western Ontario while father and his wife lived in Alberta where they enjoyed stable employment and stable lifestyle — About year ago, mother’s lifestyle started to unravel — She began associating with new partner who had serious substance abuse problems that probably brought on his untimely death — Within days, her grandfather died as well, emotional toll of which made her deaf to concerns from school and others about boy’s serious behavioural problems — When natural father heard of son’s circumstances, he made motion to vary custody with plan to take boy to Alberta — By time that court began to hear this matter, however, mother had significantly stabilized her life, with steady job and stable accommodations — Boy had been diagnosed with attention deficit hyperactivity disorder and other behavioural issues but support services were put in place to deal with his problems — His emotional situation was still fragile and it seemed that he had low tolerance to changes in his routine — Unfortunately, court had almost no evidence about impact of boy’s relocation to Alberta, where he could receive same if not better support services — Nevertheless, court was concerned that disruption to current custodial arrangement and interruption to his current support services could be too traumatic for child — Even though father and his wife were capable parents who would do everything to minimize any trauma involved in relocation to Alberta, court was not convinced that change in status quo would serve boy’s best interests — father’s motion to vary custody dismissed.

CUSTODY OF CHILD — Variation — Threshold test (Material change in circumstances) — Nature of change — Disturbing behaviour by child — Court found that instability in custodial mother’s life about year ago with escalation of behavioural problems in boy (now 7½ years old) constituted material change in circumstances, even though parties had not raised matter of threshold test in their arguments. STATUTES AND REGULATIONS CITED Children’s Law Reform Act , R.S.O. 1990, c. C-12 [as amended], subsection 24(2) . Beth C.A.

White .................................................................... counsel for the applicant father, G.L. Shirley D. Gauthier ........................................................... counsel for the respondent mother, C.G. [ 1 ] JUSTICE A.T. McKAY:— This matter involves a motion, brought by Mr. G.L., to change a previous custody order. Mr. G.L. is the biological father of Caleb. Ms. C.G. is Caleb’s mother. The parties have joint custody, with Caleb primarily residing with Ms. C.G. Mr.

G.L. brings this motion asking for sole custody, or alternatively joint custody with Caleb primary residing with him. [ 2 ] The current situation is as follows. Caleb was born in Dryden and has lived here his entire life. Caleb’s father and his

wife reside in Alberta, having moved there in August of 2007. Caleb and his mother reside in Dryden with his maternal grandmother in her two-bedroom mobile home. Caleb and his mother share a bedroom. That living arrangement has existed since the summer of 2010. Caleb’s maternal great grandmother lives in the Dryden area. She and her husband spent a very significant amount of time with Caleb since he was an infant, providing child care for Caleb for up to five days a week while other family members were working. Her husband passed away on 16 May 2010.

Caleb’s paternal grandparents also live in Dryden, although his grandfather spends significant amounts of time working in Alberta. They have always had a significant relationship with Caleb. The practice has been that Caleb spends every second weekend at his paternal grandparents’ home. Caleb’s paternal grandparents have indicated to the O.C.L. [1] clinical investigator that they intend to move to Alberta. [ 3 ] The relationship between the parents began in 2002. Caleb was born on 3 July 2003. The parties separated in the summer of 2004, when Caleb was approximately one year old.

On 14 January 2005, an order was made on consent giving the parties joint custody of Caleb, primary residence with Ms. C.G., and providing for child support payable by Mr. G.L. to Ms. C.G. At the time of the order, both parents were residing in Dryden. [ 4 ] Mr. G.L. met his current partner in October of 2004. In August of 2007, Mr. G.L. and his current partner moved from the Dryden area to Alberta to pursue other employment opportunities. His father owned a home in Camrose and that provided them with a place to stay. Caleb remained in Dryden with Ms. C.G. Mr. G.L. and his current partner married on 10 July 2010.

The move to Alberta obviously impacted Mr. and Mrs. L.’s ability to have access to Caleb. Issues regarding access have been a fairly constant feature and the parties have made allegations regarding who is at fault for that issue. [ 5 ] On 28 September 2007, the original order was varied. It maintained joint custody, primary residence with Ms.

C.G., and provided for reasonable access on reasonable notice, but also specified that reasonable access would include one half of each Christmas school vacation, one month during the summer school vacation and alternating March school breaks. [ 6 ] Access issues continued and Mr. G.L. had limited access to Caleb. In December of 2009, Integrated Services Northwest, an organization that co-ordinates children’s services in Dryden, contacted Mr. G.L. to obtain his consent regarding some of the issues with which they were dealing involving Caleb. At that point, Mr.

G.L. inquired into the issues and found that Caleb was displaying some very serious behavioural problems at school. He traveled to Dryden to meet with representatives of the school and service providers. He indicated that, when he learned that the depth of the problem, he filed the motion to change the order on 18 December 2009. 1: Evidence Lead on Behalf of Mr. G.L. [ 7 ] Mr. G.L. testified. He is 32 years of age and lives in Camrose, Alberta where he is a store manager in the retail industry. He met Ms. C.G. and began a relationship sometime in 2002. When Ms.

C.G. became pregnant, he indicated that her mother asked her to leave her residence, so Ms. C.G. moved in with him and his parents. Caleb was born on 3 July 2003. He and Ms. C.G. separated in late summer of 2004 because of alleged infidelity on her part on the occasion of her 19th birthday. When they separated, Caleb lived with Ms. C.G. [ 8 ] Mr. G.L. indicated that he spent as much time as possible with Caleb and was originally parenting approximately 50 percent of the time, including overnights. He indicated that, at times, Ms. C.G. denied him access. He met his wife in October of 2004.

He gave evidence that his wife formed a relationship with Caleb and was fully involved with him whenever he had access. [ 9 ] Mr. G.L. indicated that his access became minimal. He blamed those difficulties on Ms. C.G. The 2007 variation of the order was an attempt to deal with the access issues. He indicated that the access issues continued after the 2007 order. His evidence was that he had trouble even maintaining any telephone access with Caleb. In the summer of 2008, without notice to him, his parents arrived in Alberta for a surprise visit and Caleb was with them.

He indicated that they had a good visit, although Caleb had difficulties for the first few days settling into a routine. He indicated that he noticed that Caleb had a severe infestation of head lice. He took the steps recommended by a pharmacist, including shaving Caleb’s head. Mr. G.L.’s evidence also indicated that, at the time of this access visit, he noticed that Caleb’s clothing and shoes were too small or worn out and that he had to replace them. He returned Caleb to Dryden sometime around 3 September in time for the school year.

He indicated that he had a difficult time arranging his summer access for 2009 because of Ms. C.G.’s actions. [ 10 ] Mr. G.L. indicated that he first learned of Caleb’s issues on 4 December 2009, when Integrated Services Northwest called regarding obtaining his signature on a consent. No one had informed him of the issues before that call. His attempts to reach Ms. C.G. were unsuccessful. He immediately took the bus to Dryden and met with representatives of the school and Integrated Services Northwest.

He had a brief visit with Caleb and got as much information as possible from the service providers about the behaviour problems, which were escalating. He asked the school and the service providers to keep him informed. As indicated, he then started the present court action. In his view, Caleb was in an unsafe, improper environment. [ 11 ] Mr. G.L. testified that he and his wife have a routine for Caleb when he visits, including regular bed times and meal times. He testified that Caleb’s television viewing is controlled.

They have a stable home, stable marriage and stable employment and can provide for all of Caleb’s needs. He had his summer access with Caleb in 2010. He drove to Dryden to pick up Caleb. He testified that Caleb’s clothes were filthy and smelled and were much too small. He maintained that some of the clothing that Caleb had with him were items that he had brought for Caleb years earlier. As a result, he bought new clothing for Caleb. He indicated in 2010 that Caleb again had difficulty settling into a routine for the first few days, but did shortly after arriving.

He described their activities during Caleb’s access visits. He again testified that his wife is involved with Caleb just as much as he is. [ 12 ] Mr. G.L.’s concerns were heightened in the early summer of 2010. An order was made during this court action for the Office of the Children’s Lawyer to become involved through the clinical investigator. He indicated that there were delays in the preparation of the investigator’s report, due to Ms. C.G.’s not participating. At one point, Kenora Patricia Child and Family Services became involved with Ms.

C.G. and Caleb and that further delayed involvement of the Office of the Children’s Lawyer. He was

concerned that, at that time, Ms. C.G. was dating Mr. R., whom he knew to have a criminal record and significant substance abuse problems. In the summer of 2010, Mr. R. passed away, from what Mr. G.L. understood to be alcohol poisoning. He also found out that, in the summer of 2010, Ms. C.G. was charged and subsequently convicted of shoplifting in a local store in Dryden. Caleb was with her at the time that the shoplifting incident took place. [ 13 ] Mr. G.L. and his wife currently live in a three-bedroom home in Hay Lake, Alberta, about a 20-minute drive from Camrose, Alberta. They rent the house from Mr.

G.L.’s father. They are one block away from school and close to other amenities. Mr. G.L. has visited the school. It is a kindergarten to grade XII school with 243 students and the average class size is 15 students. Mr. G.L. indicated that he only became aware the day before trial that Caleb has had various assessments completed. He is now aware that Caleb needs the type of specialized programming referred to in the assessments and is willing to co-operate with all professionals. He checked various schools in Camrose that would offer more specializing programming to meet Caleb’s present needs.

He indicated that he and his wife have flexible schedules and have already spoken with their employer. Although, they manage different retail outlets, there is a common owner for both outlets. They have been advised that they can work flexibly to provide all necessary child care for Caleb. [ 14 ] Mrs. L. also gave evidence. She is 28 years of age. She indicated that she has known Caleb since he was 15 months old. She indicated that she has extensive involvement with Caleb. When they lived in Dryden, they had significant parenting time.

She testified that she has a strong relationship with Caleb and has been involved in a full range of activities with him. She confirmed that her work

schedule would be flexible if she and her husband had custody of Caleb. She has looked into various volunteer positions in order to be involved with Caleb, including coaching. She described Caleb’s routine during access visits and the types of responsibilities that they assign to him. She confirmed that, if they had custody of Caleb, they would facilitate access with his mother. [ 15 ] The court heard evidence from Kim Van Walleghem. She was Caleb’s teacher in 2010 when he was in grade I. She took a long-term temporary position part way through the school year.

Before starting in the classroom, she had been advised of Caleb’s behavioural issues. He was described as very bright, but very disruptive. Her understanding was that the problems were severe and centred on defiance and disregard for classroom rules and procedures. When she took over the classroom, she found that Caleb was better when dealt with one on one, but at times would simply become defiant and refuse any direction. The behaviour escalated as the year went on. She reviewed Caleb’s report card for the 2009-2010 school year. She indicated that there were approximately 188 to 190 school days per year.

Caleb was absent from school 34 days, including 27 days in the second semester. He was late a total of 25 days, including 15 days in the second semester. For the latter portion of the school year, in an attempt to manage Caleb’s behaviour, the school limited Caleb to attending school for 100 minutes per day. [ 16 ] Ms. Van Walleghem advised some incidents at school. In January of 2010, Caleb had what people referred to as “a meltdown” in the library. He could not get a book so he sat on the floor and screamed and cried. The principal of the school had to be called to assist to get Caleb under control.

In April, when he was unco-operative with procedure when the children were sitting on the floor of the classroom, he was sent to his desk for a break. He continued to refuse direction during that incident. She indicated that she attempted to communicate with Ms. C.G. about the issues. Ms. C.G. indicated that Caleb was often late because she had a problem with her alarm clock. She spoke to Ms. C.G. about her concern about the nutritional value of the lunches that Caleb was bringing to school. She indicated that the lunches improved after that discussion. She also discussed with Ms.

C.G. her difficulties in attempting to reach her by phone. Ms. C.G. told her that she did not have a land telephone line and that there was a problem with her cellular battery. Ms. Van Walleghem’s recollection was that Ms. C.G. indicated the following, “I don’t know what you people think, that I don’t have anything to do but wait for your call”. Ms. Van Walleghem further indicated that, as the end of the school year approached, Ms. C.G. would simply wait outside and not come into the school. She believed that this was an attempt to avoid contact with her. While Ms.

Van Walleghem was testifying, there were several diagrams drawn by Caleb filed as exhibits. The concern was that he was expressing himself in a violent and inappropriate way. [ 17 ] Ms. Van Walleghem also testified that, when Mr. G.L. came to the school and spoke with her, he appeared concerned about the issues and willing to address them. She said that in her experience, if Caleb’s behaviour was problematic and she indicated to Caleb that she would speak to his father about the behaviour, Caleb appeared concerned.

She indicated that that was not the case if she indicated to Caleb that she would speak to his mother about his behaviour. She confirmed that there was no individual education plan in place for Caleb when he was in grade I. [ 18 ] The court also heard evidence from Shawne Apland, a family service worker with Kenora Patricia Child and Family Services. She testified that, on 16 July 2010, the file regarding Caleb and his mother was transferred to her from the society’s intake worker.

Pursuant to the society’s protocol, she indicated that they verified two concerns, that being that there was a caregiver with a problem, and a caregiver not co-operating with the school. The complaint that Caleb’s basic needs were not being met was not verified at that point. By the time that the society conducted a home study, Ms. C.G. had moved from her apartment to her mother’s residence with Caleb. When the assessment was done, the society did not have any concerns regarding drug use on the part of Ms. C.G. The society at that point did not have any difficulty contacting Ms.

C.G., who was being co-operative and returning calls from the society. She discussed the shop-lifting incident with Ms. C.G., who confirmed that she understood that her actions were wrong. Ms. C.G. indicated appropriate concern with Caleb’s behaviour at school. At that point, Caleb was involved with the Patricia Centre for Children and Youth and with school counsellors.

The society did not have any further concerns regarding the way that Caleb and his mother were interacting and subsequently decided to monitor the situation through monthly meetings. [ 19 ] Pamela Kelloway, the clinical investigator appointed by the Office of the Children’s Lawyer, also gave evidence. She has been on the OCL panel since 1997. She has a master’s degree in social work and has worked with children from the late 1970’s to the present. She testified that the court order for OCL involvement was made on 25 January 2010. She was assigned to the case in late March of 2010.

She began her investigation in early April 2010. For various reasons, she was unable to meet with Ms. C.G. for some time. At the initial meeting, Caleb was present, along with Ms. C.G. and her then partner Mr. R., who indicated that he stayed at Ms. C.G.’s residence two to three nights per week. [ 20 ] When she began work on the file, she obtained consents from the various parties so she had disclosure of information related to various issues. She noted that Mr.

R., who had been involved with Caleb both at home and in school for a period of approximately two years, had a criminal record that included two domestic assault convictions, various breach of court order

convictions, and a conviction under the Controlled Drugs and Substances Act . She was also aware of the conditions in Ms. C.G.’s home at that time. Ms. C.G. was living in an apartment. There was no hydro to the apartment because of non-payment of the account, nor was there any telephone. She also spoke with a number of people from Caleb’s school. Representatives of the school expressed concerns with Caleb’s behaviour that had gone on for two years. They described Caleb as one of the school’s most challenging students.

They indicated that his behaviour was out of control and, as a result of his behaviour, on at least three occasions his classroom had to be evacuated. The school indicated that, over the previous two years, the only one who had come to school to spend time in class with Caleb was Mr. R. [ 21 ] Ms. Kelloway that she was able to do a parent-and-child observation with Caleb and Mr. and Mrs. L. She indicated that interactions between them and Caleb were very smooth and that Mr. G.L. provided structure and was able to play with Caleb in a very interactive, successful, positive way. She indicated that Mrs.

L. was also involved and that Caleb was very comfortable with her. From her observations with Mr. and Mrs. L., they certainly appeared capable of parenting. Ms. Kelloway was never able to do a parent-and- child observation with Ms. C.G., nor was she ever able to interview Caleb regarding his preferences. [ 22 ] As a result of information that she received from both the school and Mr. G.L., she had concerns. Ms. C.G. had confirmed to her earlier that she and Mr. R. were “back together”, but Ms. C.G. advised her that Mr. R. was not in the home or drinking or using drugs. Ms.

Kelloway then obtained a police occurrence report from the Dryden Police Department, which indicated that the police were of the understanding that Mr. R. was again using drugs and alcohol heavily and was in violation of his probation order and subject to arrest for a number of reasons. Another police occurrence report indicated that Ms. C.G. advised someone that Mr. R. was “just lying on the couch and he’s a mess and needs to go to the hospital.” The report further indicated that Ms. C.G. was planning to call 911 for ambulance assistance. Ms. Kelloway subsequently learned that Mr. R. passed away.

Caleb was missing from school. At that point, she made a referral to the children’s aid society, so her work ceased on the file. She had no contact with the parties after 13 May 2010, as the OCL advised her to collapse the report. 2: Evidence Lead on Behalf of Ms. C.G. [ 23 ] Ms. C.G. testified that she was with Mr. G.L. until Caleb was one year old. She disputed Mr. G.L.’s version that he had extensive parenting time with Caleb. She indicated that he would have Caleb “a bit”. She indicated that, in July of 2004 when she was working at a local restaurant, Mr.

G.L. would have Caleb most of the time that she worked. After Mr. G.L. started a new job, she indicated that he rarely saw Caleb. She indicated that her grandparents were extensively involved with childcare. Similarly, Mr. G.L.’s parents were significantly involved with childcare. She disputed that the access issues were related to her behaviour and indicated that Mr. G.L. did not make regular attempts at access. She indicated that she and Mr. G.L. essentially would just argue over the phone about access. [ 24 ] She indicated that, in April of 2009, she left her job at the local restaurant.

After brief employment at a retail outlet, she was unemployed for approximately one year. She met Mr. R. in October of 2008. In June of 2009, they essentially became a couple. She indicated that they often argued over Mr. R.’s tendency to relapse into substance abuse, and to often be out at night. She testified that Caleb was never exposed to Mr. R.’s drinking or drug use. Her evidence was that Mr. R. would come to the apartment in the middle of the night and would be asleep when Caleb got up in the morning. Her evidence was that she and Mr. R never actually lived together, but he would stay some nights.

He would simply come in through the unlocked door. [ 25 ] In the early summer of 2010, she was living in her own apartment. Because of financial issues, she did not have electricity or a telephone. She indicated that she always had water in her apartment. She described the circumstances of Mr. R.’s death as follows. He had been binging for three days at a neighbour’s. He came into her apartment in the middle of the night. When she got up, he was sleeping on the couch. She and Mr. R.’s mother took him to the hospital that morning. He subsequently passed away. She indicated that she simply told Caleb that Mr.

R. and went to heaven. She testified that she has never used drugs during her relationship with Mr. R., and indeed never since she became pregnant with Caleb. The summer of 2010 was a very difficult period of time for her. Four days after Mr. R.’s death, her grandfather passed away. She indicated that her grandfather had been a father figure for both herself and Caleb. It took her some time to recover from the emotional impact. She began counselling in August of 2010. She returned to work in August of 2010. She began living with her mother.

She does not pay rent at her mother’s and therefore, is in the process of paying all of her debt. [ 26 ] With respect to Caleb’s difficulties in school, she indicated that they began in junior kindergarten, but never really escalated until September of 2009, when Caleb returned from Alberta from his access visit with his father. She indicated that, when the school suggested that she contact Integrated Services Northwest to arrange services for Caleb, she did so immediately. She indicated that Caleb was on a waiting list for a period of time and did not access services immediately.

Her evidence was that, prior to that, the school had never asked her to access services for Caleb. She agreed that she had been asked by the school to sit with Caleb in school, but had declined to do so because she thought that this would send Caleb a message that, if he was bad, she would stay with him at school. She agreed that she might have forgotten to sign the education book, which was designed by the school to communicate with her. She testified that her relationship was good with the original teacher when Caleb was in grade I, but it deteriorated when Ms. VanWellegham took over the classroom.

Her evidence was that Ms. VanWellegham made her feel uncomfortable so she felt overwhelmed. Her view was that the school should have tried different things rather than sending Caleb home from school. Her evidence was that, in June of 2010, Caleb first saw a specialist, Dr. Warkentin. For the 2010-2011 school year, she describes her relationship with the school as “awesome”. She indicated that she meets with Caleb’s present teacher, Ms. Boyko, three to four times a week. Caleb attends a meeting with a school counsellor every Wednesday and also attends at the Patricia Centre for Children and Youth once each week.

She also described some of the other steps that the school has taken with Caleb this year. Her view is that Caleb has made huge progress since the previous year. [ 27 ] Ms. C.G. denies that there has ever been an issue with Caleb’s hygiene or clothing. She indicated that most of Caleb’s behavioural problems escalate when he returns from an access visit with his father or an access visit with his paternal grandparents. She indicated that Caleb reacts badly to any change in routine, often with anger. She indicated that she continues to meet with Kenora Patricia Child and Family Services once per month.

They also meet privately with Caleb. Her understanding is that they intend to close

the file in February of 2011. [ 28 ] Caleb’s maternal great-grandmother, Ms. C., also gave evidence. She described the extensive involvement that she and her late husband had regarding child care for Caleb. Depending upon Ms. C.G.’s work schedule, she indicated that she and her husband cared for Caleb “up to five partial days a week.” By that, she meant that they would be caring for Caleb for a portion of the day, depending upon whether Ms. C.G. was working nights or day shift. Her evidence was that Caleb was very close to her late husband.

She noticed a change in Caleb when he returned from his access visit with his father in the summer of 2009. She indicated that Caleb is always well dressed and that she has never seen him dirty or in inappropriate or worn-out clothing. She also gave evidence that she has not been involved very much with Caleb in terms of child care over the past year. Caleb’s mother and maternal grandmother are involved in most of the child care. Her evidence is that it has become hard to keep Caleb with her, as he seems extremely angry. [ 29 ] Mrs. K.G., Caleb’s maternal grandmother, also gave evidence.

Her daughter and Caleb are living with her at this point. She indicated that they have a good relationship. She gave evidence of some of the difficulties that existed in the relationship when Ms. C.G. was a teenager, but denied kicking her out of the house when she learned Ms. C.G. was pregnant. She indicated that Ms. C.G. left by mutual agreement. Her evidence is that she cannot recall Mr. G.L.’s spending much time with Caleb when he lived in Dryden. The amount of time that she spent with her daughter was reduced when she began dating Mr. R., whom Mrs. K.G. did not like.

She indicated that, in their residence, Caleb’s mother handles ninety percent of the discipline issues. When Ms. C.G. and Caleb were living in Ms. C.G.’s apartment with no hydro, they would always come to her home to shower. After the difficulties in May and June of 2010, her view is that her daughter is doing very well. She has a full-time job and is working effectively with the school to address concerns regarding Caleb. [ 30 ] The court also heard evidence from personnel from Caleb’s school who are involved with Caleb this school year. Ms. Arin Boyko is Caleb’s classroom teacher.

She teaches a grade I-II split class. There are 25 students in the class. There is a transitional educational assistant assigned to the classroom specifically to shadow Caleb and to support him. Ms. Boyko is an experienced teacher. [ 31 ] Ms. Boyko described Caleb’s behavioural challenges. There were significant issues at the beginning of the year. Caleb would get easily upset, aggressive to staff, and talked about killing Ms. Boyko, his classmates, his grandmother and himself. At times Caleb would scream and leave the room, sometimes tipping his desk and throwing a garbage can before doing so.

His behaviour was unpredictable. On 22 September 2010, Caleb was suspended for one day from school for violent disruptive behaviour. [ 32 ] Various strategies were implemented for Caleb. An individual education program was put in place, not for academic difficulties, but for behavioural issues. A safety plan was developed for the staff of the school while dealing with Caleb’s behaviour. Caleb was referred to additional resources, including the school board psychologist.

In addition, a functional behavioural assessment was completed with input from school staff, child and family services, the day-care facility, and representatives of the Patricia Centre for Children and Youth. Various triggers for Caleb’s behaviour were identified. The triggers are thought to include any significant change in his routine or schedule. One of the possible explanations for Caleb’s behaviour was that he was seeking control of his environment. [ 33 ] A behavioural intervention plan was prepared by school representatives.

It also noted that a trigger for inappropriate behaviour by Caleb was when he appears to feel that he has lost control of something in his life or environment. One of the events that is felt to cause inappropriate behaviour was a significant change to Caleb’s routine or life. An educational assessment report was also prepared by the board’s teacher diagnostician. It found that Caleb essentially ranked in the average range in terms of most skills and abilities. Caleb was found to be working at grade level.

However, he does need improvement in working memory, a concept that involves the ability to sustain attention, concentrate and exert mental control. [ 34 ] The school board psychologist, Dr. Stambrook, provided a report after a consultation of 4 November 2010. Dr. Stambrook described Caleb as follows: This is a boy who is very unsettled. He has ADHD, there are behavioural issues with distress, and there may be a mix of post-traumatic and early conduct related features.

He certainly has an adjustment disorder with disturbance of conduct. . . . he has low tolerance, he has poor self-esteem, he reacts quickly, he is attached and possibly enmeshed with his mother and there are issues with his grandmother that are troubling. . . . hence this is a complex situation where there are developmental, relational, ADHD, and reactivity components to his presentation. Dr. Stambrook then went on to make a number of recommendations and plans for further involvement with Caleb. [ 35 ] Ms. Boyko gave evidence that all of the intervention on the part of the school this year has been effective.

She testified that she met with Ms. C.G. early on in the school year to establish communication, set up strategies and document issues. Her evidence is that Caleb has completely changed over the past two and a half months. The severe problems from the start of the school year have resolved. Caleb has learned to implement strategies such as leaving the room in order to calm him down. The team approach has resulted in a complete change from the beginning of the year. She indicated that Caleb’s behaviour is not perfect, but is no longer explosive and unpredictable. Her evidence is that Ms.

C.G.’s support this year has been good. The goal all year has been to keep Caleb at school, so that even when he misbehaved, strategies were implemented to keep him at the school. [ 36 ] Ms. Boyko indicated that Caleb does best when he has control over his situation. Ms. Boyko and Natasha Menard- Mousseau, the special education teacher at Caleb’s school, work closely together for Caleb. Ms. Boyko also indicated that there is no issue with Caleb’s bringing nutritious lunches to school. She testified that Caleb’s appearance is always clean and well dressed, appropriate for the weather.

She described Caleb as being extremely bright, and one of the top academic students in her classroom. Ms. Boyko has had no contact with Mr. G.L. She knew that Mr. G.L. spoke to Caleb’s teacher last year and knew that there was a joint custody order, but she thought that Mr. G.L. would be in touch with her. [ 37 ] The week prior to her testifying at the trial, Caleb’s behavioural issues surfaced again. In her opinion, it seemed to relate to his being anxious and saying that he may not have much time left with his mother.

[ 38 ] The school’s special education teacher, Ms. Menard-Mousseau, also testified. She is an experienced teacher. At the beginning of the school year, she, the school principal and classroom teacher were all new to the school and did not have background information regarding Caleb’s behaviour. There as an explosive episode at school in September. After that point, she got involved with Caleb and with creating the safety plan. She testified that Caleb’s behaviour has improved since the implementation of the recommendations made in Dr. Stambrook’s report.

She indicated that there is a need to continue with the current programming for Caleb. As Caleb’s behaviour has improved throughout the year, she spends less time with him. In her experience, Caleb does not handle change well. She described Caleb as being nervous the week before the trial. Earlier in the week of the trial, Caleb kicked a classmate and was disruptive in class. That had not happened for some time. Caleb indicated to her that he wanted to go home to see his mother because it might be the last time. [ 39 ] Ms.

Menard-Mousseau also described Caleb’s clothing as being appropriate and indicated that there were no hygiene problems with Caleb. She indicated that Ms. C.G. has been very involved with the school and attends all meetings and uses the communication book that was implemented. She has had no contact with Mr. G.L. Her recollection of the file was that there was no indication that it was a joint custody arrangement and so she approached it as a single parent situation. 3: Legal Principles [ 40 ] Because this is a variation application, there must be a material change in circumstances.

Essentially, there was no argument on the part of the parties that a material change had occurred. Given Caleb’s escalating behavioural problems and the instability in Ms. C.G.’s life in the early part of 2010, a material change had taken place. Accordingly, the court must now simply make an order that is in the best interests of Caleb. The test for determining the best interests is set out in subsection 24(2) of the Children’s Law Reform Act , R.S.O. 1990, c. C-12, as amended. 4: Findings [ 41 ] Caleb’s history, life experience and extended family are in the Dryden area.

He is a young child who is currently exhibiting serous behavioural problems and needs significant support and reassurance. His parents have an acrimonious relationship and have not been able to set aside their difficulties in order to ensure that both parents have a meaningful relationship with Caleb. The inability of the parents to do so acts to Caleb’s detriment. Mr. and Mrs. L. have had limited access to Caleb over the past few years, in part because of the difficulties between the parents, and in part simply because of the geography, given the fact that they live in Alberta. Mr. and Mrs.

L. are capable parents who want a relationship with Caleb. The evidence indicates that they have stable employment and a stable lifestyle. [ 42 ] Ms. C.G. was living an unstable lifestyle for a period of time during the first half of 2010. In spite of her evidence to the contrary, it is logical to infer that her relationship with Mr. R. had an impact on Caleb. The emotional trauma that she sustained during the period of Mr. R.’s death and her grandfather’s death was shared by Caleb. Caleb’s behavioural problems at school were escalating and extremely concerning.

During a period of time near the end of the 2009-2010 school year, Ms. C.G. did not engage effectively with the school to deal with those issues. [ 43 ] Ms. C.G. has significantly stabilized her life since late summer of 2010. She now has stable employment and a stable living situation with her mother, although that is simply a temporary arrangement while she puts herself in a better financial situation. Caleb has important relationships with his extended family in the Dryden area, although there has been some indication that his paternal grandparents may move to Alberta. Caleb’s emotional situation is fragile.

The supports that are currently in place within the school system in Dryden are important to him. A move to Alberta would be a significant adjustment for Caleb. The evidence indicates that Caleb’s school files would be forwarded to his new school in Alberta if he were to move and that the school accordingly would be aware of Caleb’s needs. One can only logically infer that it would take some time in order to integrate Caleb into such services in Alberta if he were to move. [ 44 ] There is very little evidence available to the court regarding the impact of any move on Caleb.

The evidence, such that it is, suggests that Caleb does not manage change in his life well. It also seems to suggest that Caleb feels some stress with what he views as the potential loss of his mother if this case results in a change of custody. Any interruption of the support services put in place by the school for Caleb would result in a setback for him. Despite the fact that Mr. and Mrs. L. are capable parents who would do what they can to minimize any trauma involved in a move, a move from Dryden at this stage would be traumatic for Caleb As indicated, Caleb is also particularly fragile at this point in time.

Accordingly, I find that, although Mr. and Mrs. L. have much to offer Caleb, a move from Dryden to Alberta at this time would not be in Caleb’s best interests. Accordingly, the order for joint custody, with Caleb’s primary residence with Ms. C.G., shall remain in place. That being said, it is important that Caleb have as strong a relationship as possible with Mr. and Mrs. L. Ms. C.G. and Mr. and Mrs. L. need to set aside any difficulties between them in order to focus on what is best for Caleb.

A commitment on the part of all parties to encourage and facilitate effective regular access, both in person and by telephone and other means of communication, is needed. [ 45 ] The parties may make submissions regarding access terms at the return date set for this matter.