A.F. v. B.J.A., 2017 ONCJ 109

CITATION: A.F. v. B.J.A., 2017 ONCJ 109 COURT FILE NO. D62098/13 DATE: January 17, 2017 ONTARIO COURT OF JUSTICE RE: A.F. Applicant v. B.J.A. Respondent BEFORE: Justice Melanie Sager COUNSEL: Pamila Bhardwaj Counsel for the Applicant Tanya N. Howell Counsel for the Respondent HEARD ON: December 5, 6, 8, 12, 13 and 19, 2016 I. Introduction [ 1 ] The parties A.F. (the mother) and B.J.A. (the father) both seek sole custody and primary residence of their son, B.A., born […], 2013 (the child). The parties propose an identical access

schedule for the other parent should they be granted custody of B.A., more specifically that the other parent have access to B.A. every weekend from Friday to Sunday. [ 2 ] In addition to seeking orders for sole custody and primary residence of B.A., both parents ask the court to order the other to pay child support for B.A. The mother asks the court to fix the father’s child support at $450.00 per month based on an annual income attributed to the father of $50,000.00 and the Child Support Guidelines (CSG) retroactive to the date of B.A.’s birth.

The father asks the court to order the mother to pay him child support for B.A. in the amount of $192.00 per month based on an imputed annual income of $24,000.00 and the CSG. [ 3 ] The mother submits that she should be granted sole custody of B.A. for the following reasons: (

a) She has been B.A.’s primary caregiver since birth; (

b) B.A. is extremely bonded to and loves her; (

c) B.A. is doing very well in her care and all of his needs are being met including providing him with a stable and child focused home; (

d) B.A. has special needs and she has always taken the initiative to address his special needs; (

e) She has always facilitated meaningful contact between the father and B.A. and will continue to do so; (

f) The father does not truly wish to be B.A.’s primary caregiver but rather seeks sole custody in order to avoid paying her child support for B.A.; (

g) The father has behaved in a manner towards the mother that was hurtful and selfish and which he ought to have known would not only have a negative effect on the mother but on B.A. as well; (

h) The father’s allegations that she is emotionally unstable or suffering from mental health issues that make her unfit to have

sole custody of and primary care of B.A. are unfounded; (

i) The mother admits to contributing towards the parties’ extremely unhealthy relationship that is rife with conflict by behaving in ways that she regrets, but B.A.’s well-being and overall development have not been affected by the conflict or her behaviour such that B.A. should be removed from her primary care and custody; (

j) Native Child and Family Services of Toronto (NCFST) has been involved with the family since 2013 and has no concerns with the mother’s care of B.A.; and, (

k) There is no evidence upon which the court can rely to find that it is in B.A.’s best interests to disrupt the current custody and access arrangement which has been in place since his birth. [ 4 ] The father submits that he should be granted sole custody and primary care of B.A. for the following reasons: (

a) The father has been actively involved in B.A.’s life since he was born and B.A. is bonded to and loves him; (

b) B.A. has spent at least every weekend in his father’s care since shortly after his birth. (

c) The father has demonstrated that he is able to meet B.A.’s physical, medical and educational needs on a day to day basis and provide him with a loving and stable home; (

d) NCFST have no concerns with the father’s care of B.A.; (

e) NCFST have verified at least 5 times that B.A. is at risk of harm in the mother’s care; (

f) The mother is emotionally unstable and has serious problems managing her emotions and anger in front of B.A. Her emotionally instability manifests itself in repeated threats to harm herself and B.A.; (

g) The mother has not had an appropriate mental health professional assess and treat her emotional instability which has not improved in the 3 years since B.A.’s birth despite the involvement of NCFST since 2013; (

h) As the mother’s mental health has not improved over time and she continues to display a consistent pattern of emotional instability as demonstrated by her repeated threats to harm herself, threats to harm B.A., use of racial slurs despite B.A. being a child of mixed race, calling B.A. names when she is upset or overwhelmed, and, being verbally abusive towards the father in B.A.’s presence, B.A. is at risk of emotional harm in her care making the father the preferable choice for B.A.’s custodial parent and primary caregiver; (

i) The father is better able then the mother to provide B.A. with a nurturing environment to grow up in; (

j) While the mother’s mental health is the father’s primary concern when it comes to the care of B.A., the father also claims that the mother has demonstrated poor judgment when parenting B.A. including changing his daycare on four occasions, losing her daycare subsidy twice and leaving B.A. in the care of third parties the mother does not know very well; (

k) The father is more emotionally stable and there is no risk of emotional harm to B.A. if placed in his care and, (

l) The father will support a relationship between B.A. and the mother. [ 5 ] The issues of custody and access are determined by what is in the child’s best interest. Each party must demonstrate that their plan for B.A. best meets his needs. [ 6 ] The mother’s position with respect to child support is that the father’s income for the purpose of child support should not be based only on his full time employment income as he also earns an income from tattooing.

The mother’s position is that the father’s claims that he only tattoos as a hobby and does not make any money from it should be rejected by the court. [ 7 ] The father’s position with respect to child support is that he works full time and that if he is ordered to pay child support it should be based on his employment income alone as he does not earn an income from tattooing.

The money he earns from doing the occasional tattoo for friends or family covers his expenses. [ 8 ] The issue of child support is governed by the CSG which dictates the amount of child support payable by the parent not having primary care of the child and is based on their annual income.

Section 19 of the CSG allows the court to impute income to a payor of child support when the court considers it appropriate in the circumstances which include, as argued by the mother, when the court determines that the payor’s income tax return is not an accurate reflection of their actual income, they are underemployed or they unreasonable deduct expenses from self-employment income. [ 9 ] The father argues that there is no reason why the mother is unable to work and that she ought to be required to pay child support based on a nominal income if the father is granted is granted custody of B.A. [ 10 ] The trial of this matter proceeded on December 5, 6, 8, 12, 13 and 19, 2016.

II. Background of the Parties [ 11 ] The mother is 27 years old and the father is 32 years old. The parties met and became friends in 2010. In early 2012 the mother needed a place to stay and the father agreed to her moving into his apartment. By June 2012 the parties began an intimate relationship. The father reports that as of September 2012 the relationship was strained and the parties were not getting along. The

mother moved out of the father’s apartment in early 2013 and moved in with a friend. [1] [ 12 ] B.A. was born […], 2013. The father has a 4 year old daughter from another relationship who lives with her mother during the week and spends weekends with the father. [ 13 ] The mother is currently unemployed and in receipt of Ontario Works (OW) and the father works full time as a shipping and receiving clerk at IBM where he earns approximately $26,000.00 annually. [ 14 ] After B.A. was born the parties cooperated to arrange for B.A. to spend every weekend in his father’s care from Friday to Sunday.

B.A. has spent more than just the weekend in the father’s care each week on a regular basis, usually at the mother’s request. [ 15 ] The father began providing the mother with $200.00 per month in child support shortly after B.A.’s birth. III. History of the litigation [ 16 ] The mother commenced this Application on April 4, 2014, seeking orders for custody and child support against the father.

In the father’s Answer and Claim dated May 6, 2014, the father requests orders for custody and child support against the mother. [ 17 ] The mother’s evidence is that she was in love with the father and never wanted to commence litigation against him. She was instructed by her OW worker that she is required to seek an order for increased child support from the father. [ 18 ] The litigation quickly became intense.

On July 24, 2014, Justice Carole Curtis, the case management judge, noted in her endorsement that “the court has raised concerns about whether this case is suitable for joint custody” . [ 19 ] On August 25, 2014, the father served a Notice of Motion in which he requested an order for temporary custody of B.A. and an order that the mother’s access to B.A. be conditional upon her obtaining counselling.

The mother instructed her lawyer to resolve the father’s motion on the basis that he would have sole custody of B.A. whose primary residence would continue to be with the mother. [ 20 ] The mother’s evidence is that she agreed to the father having custody because she was scared of the father who she said was threatening and intimidating. She said that he told her that he would take B.A. from her claiming that she is mentally unstable and unable to care for B.A.

He had recordings of conversations between the parties in which the mother was angry and out of control as well as inappropriate text messages she had sent him that she “was very embarrassed by…. and thought the father would gain custody if the judge read them” . [ 21 ] The mother also referenced an incident that took place on December 4, 2014, as another reason why she agreed to the father having custody of B.A.

On that date, the father called the police after receiving a text message from the mother that he interpreted as a suicide threat and a threat to harm B.A. if the father did not immediately pick him up from her home. [ 22 ] The parties’ agreement which provided that the father would have custody also provided that B.A. would be in the mother’s care from Sunday evening until Thursday evening and in the father’s care from Thursday evening to Sunday evening.

On January 28, 2015, Justice Carole Curtis made an order in accordance with the parties’ consent with respect to custody and access and endorsed the record, “only child support is outstanding” . [ 23 ] On February 11, 2015, the father was ordered to pay the mother child support for B.A. in the amount of $283.00 per month commencing March 1, 2015 in accordance with the father’s annual income of $33,150.00 and the CSG. [ 24 ] On March 23, 2015, Justice Curtis set aside the consent order of January 28, 2015, granting the father custody of B.A. and shared parenting as well as the child support order of February 11, 2015, endorsing that the orders “are inconsistent & cannot stand” .

Her Honour rescheduled the father’s motion in which he requested an order for temporary custody of B.A. [ 25 ] On June 5, 2015, after the order incorporating the terms of the temporary custody agreement the parties entered into was set aside, the parties both brought motions seeking a temporary order for custody of B.A.

Justice Curtis granted the mother temporary custody, the father temporary access and ordered him to pay child support based on an imputed annual income of $40,000.00 retroactive to August 1, 2013, with credit given to the father for the $200.00 he paid monthly since September 2013. [ 26 ] In her June 5, 2015 endorsement, Justice Curtis ordered the court staff to send a copy of the documents in the Continuing Record to the Children’s Aid Society of Toronto “for an investigation about whether this child is in need of protection.” Justice Curtis noted in her endorsement, “The court is concerned over the level of conflict between the parents & the inappropriate behaviour of the parents & the language they use to each other.

As well, mother has threatened to kill herself. CAST and the police have been involved. There are serious allegations in the court material.” [2] [ 27 ] On October 16, 2015, the father served the mother with another motion for temporary custody of B.A. He did so after the mother signed another agreement on May 31, 2015, in which she agreed to the father having custody while she would continue to have primary care of B.A. The mother’s evidence is she signed a second consent giving the father custody because the father “intimidated me into submission” .

She explains that on May 18, 2015, she ended up in the hospital after drinking at a birthday party on an empty stomach and blacking out. The mother’s evidence is that she signed the agreement as she believed the father when he told her he would “win the custody motion because of my visit to the hospital.” [ 28 ] The mother withdrew her consent to the terms of the agreement signed on May 31, 2015 and the father’s motion to change the temporary custody order to his favour proceeded on August 30, 2016.

The motion was dismissed and Justice Curtis included in her endorsement that “the relationship between the parents is high conflict, dysfunctional, toxic & no doubt harmful to the child (now 3 years old). The parents filed significant amounts of material on this motion. The court is deeply concerned about the level of conflict between the parents, the ways in which they interact, the language they use with each other, the inappropriateness of their behaviour towards each other.”

[ 29 ] On August 30, 2016, Justice Curtis adjourned the case to the trial assignment court on September 6, 2016 when it was set for trial. [ 30 ] A Trial Management Conference (TMC) was held before me on November 4, 2016, and a trial plan was organized. I ordered the parties’ evidence in chief to be by affidavit subject to cross-examination.

A timetable was set for the serving and filing of the affidavit evidence as well as the parties’ documentary evidence. [3] At the TMC the father requested a date before the Case Management Judge to bring a motion for an order for the production of the mother’s medical records in relation to her mental health. [ 31 ] On November 18, 2016, the father brought a motion for the release of the mother’s medical records in advance of trial. Justice Curtis granted the relief requested by the father. [ 32 ] On the consent of the parties I have relied upon the following affidavits: i. On behalf of the mother: (

i) The mother’s affidavits sworn November 22 and December 7, 2016 with all exhibits; and, (ii) The affidavit of the maternal grandmother S.K. sworn November 16, 2016. ii. On behalf of the father: (

i) The father affidavit sworn November 30, 2016 with all exhibits; (ii) The affidavit of the father’s sister, S.S. sworn December 2, 2016; and, (iii) The Financial statement of the father sworn November 30, 2016. [4] [ 33 ] Further documents were admitted during the trial on consent of counsel. Both parties testified and were subject to cross- examination. On behalf of the mother, her mother testified as well as the child’s doctor and his daycare teacher from 2015.

The father’s sister gave evidence and the father called evidence from the Family Service Worker (FSW) from NCFST currently working with the family. [ 34 ] During the trial the mother objected to the father’s request to enter as evidence recordings of 10 telephone conversations between the parties and certified transcripts of those recordings. For oral reasons given on December 8, 2016 and written reasons dated January 10, 2017, I dismissed the mother’s objection and allowed both the recordings and transcripts to be entered as evidence during the trial. IV.

Summary of the Relevant Evidence Regarding Parenting of B.A. A. B.A. [ 35 ] B.A. is 3 years old. He has lived primarily with his mother since birth but has spent a considerable amount of time in his father’s care. He currently attends a daycare centre in Toronto. This is the fourth daycare he has attended since birth. [ 36 ] B.A. has been identified as being speech and language delayed and he may be developmentally delayed. At his first daycare centre, staff suggested to mother that an Early Childhood Consultant (ECC) be called in to assist in identifying how best to help B.A. learn.

The mother agreed and the ECC completed an assessment of B.A. on November 4, 2015. A report was issued on November 28, 2015, which provides the daycare staff and parents with recommendations on how best to foster B.A.’s learning. [ 37 ] In addition to having extra supports at daycare, B.A. has speech therapy at the George Hull Centre and he was referred to an occupational therapist to improve body awareness. He is scheduled to have a speech and language assessment.

The mother has also requested a developmental assessment of B.A. through his family doctor and one has been scheduled for February 2017. [ 38 ] The mother has worked with the daycare staff and specialists to address B.A.’s needs. She arranges for and attends all of B.A.’s appointments with service providers away from the daycare. The father has attended some of the appointments for B.A. but not to the same extent as the mother. [ 39 ] B.A. is described by all the witnesses as a happy and energetic child. His behaviour at times has been challenging for his parents and caregivers.

The father deposes that B.A. struggles with frustration sometimes having loud outbursts. His daycare identified issues with B.A. regulating his feelings. The parents were provided with strategies from the ECC to help B.A. manage his emotions. B. The Mother [ 40 ] The mother was born and raised in a town close to North Bay, Ontario. She left Ontario when she was 18 years old to move to Calgary with her boyfriend where she planned to pursue employment. Shortly after arriving in Calgary she was the victim of a violent gang rape and almost died.

She returned to her mother’s home in Ontario to try to recover from her horrendous ordeal. [ 41 ] The mother later moved to Toronto to attend school to obtain her diploma as a Parental Support Worker but she did not enjoy the program as she was more interested in design. She discontinued her studies when she became pregnant with B.A.

She hopes to return to school after completion of the litigation. [ 42 ] Both parties describe a volatile relationship but the mother’s evidence is that she was hurt by the father as “I was in love with the father and had a difficult time accepting that the father did not feel the same way towards me. I wanted a committed and exclusive

relationship whereas the father regarded our relationship as a casual one. My jealousy and pain over our relationship status has been a great source of conflict between us.” [ 43 ] The mother’s evidence is that she has been B.A.’s primary caregiver since birth and that she provides him with a healthy and stable home environment.

She has been responsible for taking B.A. to the doctors, arranging for his daycare subsidy, enrolling him in daycare, and, obtaining services for B.A. either through his daycare or through referrals by B.A.’s doctor. [ 44 ] The mother has implemented all of the recommendations made to her by various professionals to assist B.A. in his development including purchasing toys that promote learning, daily exercise, activities that require B.A. to work on his attention span by focusing on one task, repeating words with B.A. to improve his speech, reading books to B.A., and using flash cards to improve his memory skills and work on his letter and word recognition. [ 45 ] The mother called evidence from the child’s doctor and his previous daycare teacher from a daycare centre he attended for 6 months in 2015.

Both witnesses gave evidence that the mother is an appropriate parent who conducted herself as one would expect and that all of the child’s needs seem to be met by her. They also gave evidence that they have had limited contact with the father. Neither witness had any concerns about the mother’s parenting or the manner in which she interacted with them or the child. [ 46 ] The mother gave evidence explaining a referral that was made to NCFST on November 23, 2015 by B.A.’s daycare.

The mother had left B.A. in the care of her boyfriend of approximately 4 months in the morning who was to bring B.A. to daycare as the mother had to leave for work. B.A. arrived at daycare with marks on his face that resembled finger prints. The daycare called NCFST. The mother’s boyfriend was questioned by police and B.A. was examined by the Suspected Child Abuse and Neglect Program (SCAN) at The Hospital for Sick Children. [ 47 ] The mother’s evidence is that she “took every step to protect [B.A.] when I discovered the injury” and she did not leave B.A. in her boyfriend’s care again.

It was concluded that the marks on B.A. were a result of a fall onto a toy and no criminal charges were laid. [ 48 ] The mother told NCFST that she only left B.A. with her boyfriend on mornings when she had to work early as she had no other option and that she felt B.A. had developed a good relationship with her boyfriend. [ 49 ] While at the Hospital for Sick Children with B.A. and her boyfriend, the mother learned that her boyfriend, who had told her he was 24 years old, was in fact 20 years old. She decided to end the relationship and when she did a few days later he assaulted her in front of B.A.

The mother fell on top of B.A. when her boyfriend pushed her which resulted in police and NCFST involvement and criminal charges against the boyfriend. [ 50 ] The mother relies on her evidence as well as the evidence of B.A.’s doctor and previous daycare provider to demonstrate that she is meeting all of B.A.’s day to day needs as well as his medical and developmental needs and that B.A. is doing well in her care.

The mother’s position is that since B.A. is thriving in her care, it is not in his best interests to make an order changing the status quo and placing him in the father’s care and custody. [ 51 ] The mother’s plan is to maintain the status quo. B.A. will continue to be in the mother’s primary care and visit with his father every weekend, Friday to Sunday. The mother will maintain her current residence in Etobicoke.

B.A. will attend a school near the mother’s home in September 2017 but she has not yet decided on which school. [ 52 ] The mother’s evidence is that the father knows she is a good mother and that he is only seeking custody of B.A. in order to avoid paying child support. She relies on the fact that the father proposed resolving the litigation several times on the basis that he would have sole custody and she would have primary care of B.A. and there would be no order for child support.

Instead, the father proposed that he would pay the mother support directly as opposed to his wages being garnished by the Family Responsibility Office (FRO). [ 53 ] The mother acknowledges in her evidence that the father is a good father and that B.A. loves him. She has made a conscious effort to involve the father in B.A.’s life including inviting him to doctors’ appointment and involving him in the assessment by the ECC to address B.A.’s behaviour and development.

She will continue to do this if she is granted custody of B.A. by the court. [ 54 ] The mother has also regularly asked the father for assistance caring for B.A. if she had appointments or was feeling overwhelmed. She admitted that the father has often had care of B.A. for periods longer than his regularly scheduled Friday to Sunday weekend access. She gave evidence that she would rather B.A. be in the care of family instead of arranging for third party caregivers. C.

The Mother’s Mental Health [ 55 ] As stated above, the father’s position at trial is that the mother suffers from mental health issues that create emotional instability and cause the mother to have regular outbursts which include repeated threats to the father to kill herself.

She has also threatened to harm the child and has had emotional outbursts in front of the child during which she used racial slurs and referred to B.A. in derogatory terms. [ 56 ] In addition to providing the court with copies of text messages in which the mother threatens to kill herself and harm the child, the father produced 10 voice recordings of telephone conversations between himself and the mother, one of which took place in August 2014 and the balance between April and October 2016.

In addition, the father had the voice recordings professionally transcribed and the transcriptions were also entered as evidence. The evidence provided by the father contains several examples of the mother threatening to kill herself and B.A. some of which the father reported to the police and/or NCFST. The following are some excerpts from the conversations/text messages between the parents in which the mother threatens to kill herself: August 4, 2014

MOTHER: Bye I’ll go fucking kill myself. You guys can all fucking be happy. Go document that too. FATHER: I don’t want you to kill yourself, [mother]. There’s no point in me – going and killing yourself. MOTHER: Then why did you ask? FATHER: For what? MOTHER: I’m doing it fucking now and jump off the balcony. Good bye. December 27, 2015 MOTHER: know im going to kill myself April 26, 2016 MOTHER: I don’t – I won’t see you or him ever again. FATHER: Then sign the agreement. MOTHER: You won’t see me ever again. There’s no point i[n] (sic) won’t even be here. Like I don’t see what you want to do. I will not be here.

FATHER: Sign the agreement and I’ll.... MOTHER: You don’t sign anything. I’ll not be here. FATHER: I need you to sign.... MOTHER: I’ll fucking be dead. Fucking come and get him. Please. April 26, 2016 MOTHER: I’m over-wound (ph) with everything right now. I’m over-wound to talk – to get in touch with [inaudible]. I don’t even know how I’m going to get to work tomorrow. I don’t feel good. Like I’m fucking depressed. I’m a mess. Like you just have to – I don’t know, fuck, I don’t even care anymore. It doesn’t matter, I’m – whether I’m fucking here or not.

I’m not giving into harassing job because I it’s done, I’m done. MOTHER: It doesn’t matter. Maybe I fucking will kill myself today. Who fucking knows? Who knows ‘cause I am so fucking all over the place. I could walk in front of a bus right now like while I’m talking to you. Well you don’t fucking care. So I don’t see why you even have to say anything about it. MOTHER: You’re such a fucking loser. Anyway, have fun doing whatever you’re doing and I guess the job on getting your fucking kid all to yourself and making sure I can’t see him anymore so. I’m glad you’re happy. FATHER: Okay, [mother].

MOTHER: Anyways, I’m going to walk out in front of a bus so great. Just watch for me on the news, okay nigger? Bye. May 4, 2016 MOTHER: I’ll be dead soon don’t worry; Bye. FATHER: Thank you for all of this MOTHER: NO thank u for realizing life ain’t worth it. U r the devil. I know u don’t care n u won’t miss me neither will [the child] he hates me as much a u so who the fuck cares anymore gglad ur finally happy! Peace bitch. August 16, 2016 FATHER: Oh. That’s – I, I, I can’t really deal with all this right now. MOTHER: Whatever. I’ll kill them and I’ll kill you and I’ll kill everybody one day. Just wait.

Do you think I’m fucking psycho now, just wait. [ 57 ] As a result of the father’s claims and the evidence he provided to the court, an inordinate amount of the mother’s evidence

was focused on explaining what she considers to be the root cause of her unflattering behaviour: the father. [ 58 ] The mother acknowledges in her evidence that her complicated feelings about the father have contributed to an extremely toxic relationship with the father. To her credit the mother admits that she has behaved extremely inappropriately in her communications with the father using racial slurs and threatening to harm herself and the child in order to get the father’s attention.

She admits to losing control of her emotions during conversations with the father where she is heard screaming and swearing as well as using extremely negative terms when talking about B.A. The mother admits that sometimes she has made these disturbing comments in front of B.A. [ 59 ] The court listened to the recordings of the conversations some of which contained profanity laced outbursts in which the mother cannot control her emotions. The mother can be heard screaming and swearing at the father, calling him “nigga” and using other racial slurs.

She repeatedly tells the father that she is going to kill herself and on at least three [5] of the recordings provided to the court, B.A. could either be heard in the background or the mother acknowledged he was present and could hear what she was saying. On one of those occasions the mother called B.A. a “fucking bastard” and on another the mother referred to B.A. as a “fucking bad ass kid” and said “he’s fucking like the devil” .

During the August 16, 2016 conversation, the mother told the father, “He’s not my kid, he’s your kid so it doesn’t mean shit to me where he goes.” [ 60 ] When the mother was asked by her lawyer if she has ever had any of the conversations with the father heard on the recordings in front of B.A., she acknowledged that she did. In response to her lawyer’s question, the mother acknowledged the accuracy of the recordings. She said some of the conversations took place when B.A. was in her care but that he is not always near her at the time of the conversation.

She did admit to one particularly upsetting exchange that took place in front of B.A. when they were walking home from the mall in October 2016. The following are portions of the transcription of this conversation: FATHER: Okay, I don't know what to say to you. MOTHER: Come get him. FATHER: I'm not coming to get him. MOTHER: So I should have to be - deal with whatever the fuck has been going on over there. I'm so fucking mad. I shouldn't have to deal with that. FATHER: He's…. MOTHER: Every fucking time, man. FATHER: He's not bad when he's here, [mother].

MOTHER: No, not according to you but if he was you wouldn't tell me because you want to make it seem like you're such a fucking saint of a parent. You cannot tell me that he's never bad. FATHER: He, he has temper tantrums from time-to-time but I put him on timeout but that's about it. He doesn't freak out me and do stuff like that. MOTHER: Yeah and the other fucking black at your house, what does she do to punish him? That's my fucking question. Are you around all fucking - what she's doing to him? FATHER: When, when I get home .... MOTHER: No you’re not.

FATHER: When I get home I ask how he was and she says he was fine. MOTHER: Yeah, and I’m sure he’s fucking perfect for her, right? She never has to discipline him? How do I know she fucking hits him or something and that’s why he’s so fucking bad? Like I am walking from the fucking mall by myself to go home. Like I need to fucking get home but no, I have this fucking bad ass kid fucking throwing temper tantrum after temper tantrum. I’m fucking sweating. This is not how he behaves. I don’t have any fucking issue of taking him out.

He fucking comes back from being at your house for almost a week and he’s fucking like the devil. MOTHER: Okay I guess he acts bad ‘cause he fucking hates me, right? That’s exactly what it is. FATHER: I am not picking him up. MOTHER: …keep your fucking money. Give it to your fucking nigger that’s living in your basement that’s raising him. FATHER: When I get home I ask how he was and she says he was fine.

MOTHER: He’s so fucking perfect for you, listens to you and that other fucking black girl so you two can fucking raise him. [ 61 ] In her evidence, the mother acknowledged that she had this conversation while walking home with B.A. from the mall and she said, “I’m sure he heard what I said and I’m not proud of it. It was the heat of the moment.” The mother said in her evidence that she knows it is not healthy for B.A. to hear her speak like that.

She acknowledged that she does not want B.A. to believe that it is acceptable to swear and yell when you are angry and that it was wrong for B.A. to witness her “letting my emotions get the best of me” .

[ 62 ] When asked how she addressed her behaviour with B.A. after the conversation, the mother said that B.A. was upset and “ wasn’t saying much of anything like he usually does… I apologized to him and brought him inside, just showed him affection, just kinda cuddled him and let him know that I am sorry and that I was upset but that mommy didn’t do this because I’m mad at you.” [ 63 ] The mother addresses in her evidence her repeated threats to the father to commit suicide. She deposed that while she made these threats several times, she never meant it and she would never harm herself or B.A.

The mother’s evidence is that “ I express my anger and frustration inappropriately by reference[d] (sic) to killing myself.” The mother also deposed that “When I say that I am going to kill myself I do not actually want to die; I do not want to live the life I have been living or the experience I am experiencing.” [ 64 ] The mother explains that she only acts this way with the father. She deposed that he knows how to manipulate her and trigger these reactions by her. She blames him for her emotional pain but recognizes that the way in which she reacts to him is inappropriate.

She deposes, “I admit saying offensive things and being melodramatic with the father which I did not mean. I have said negative things to the father himself, the woman he married [6] and his daughter with this woman. I said them out of pain. The father knows this. The father knows how I feel about him and my insecurities and he manipulates me using this power he exhibits over me.” [ 65 ] The mother deposes that she suffers from depression and anxiety and is on medication to help address these issues. She acknowledges she has “emotional issues” although she attributes these issues to the father’s treatment of her.

Despite all the concerning behaviour the mother admits to, she denies being mentally unstable and deposed, “The father knows I have no mental health illness which would affect my ability to parent [B.A.].” [ 66 ] The mother’s evidence is that in order to “address my emotional issues” and “the emotional abuse by the father” she attended for counselling with both LAMP Community Health Care Centre for a period of 6 months and the Anishnawbe Women’s Centre. The mother provided a letter dated February 24, 2016, from the social worker who worked with her at LAMP Community Health Centre.

The social worker writes that she provides “short-term counselling” and that she plans to meet with the mother for 8 sessions. The mother’s evidence is that she is not currently in counselling “due to court” and will return to counselling upon conclusion of the court proceedings. There was no report or letter provided from the Anishnawbe Women’s Centre. [ 67 ] It is clear from the evidence that the parties continue to have a significant amount of contact despite their conflicted relationship and the fact that they are in protracted litigation.

In fact, both parties acknowledged continuing to have a sexual relationship until November 2016. [ 68 ] The mother acknowledges that she relies on the father for assistance with B.A. in part because he is his father and she would prefer to leave B.A. with family as opposed to a third party but also because she does not have a support network in Toronto. Her mother and step father live outside of North Bay, Ontario and she does not have many friends in Toronto.

She described her current support system in Toronto to be a Ninoshe [7] provided to her by NCFST; a friend who lives in her building who also has a young child who she can leave B.A. with for a couple of hours while doing errands; and, a high school student who also lives in her building who babysits for her. With respect to the two women who live in her building, when asked by the court, the mother did not remember their last names. [8] [ 69 ] The Ninoshe began supporting the mother in August 2016.

She comes to the mother’s home twice a week to assist her with parenting skills and well-being issues for both her and B.A. The Ninoshe can also be contacted by telephone anytime even outside of business hours if the mother needs support. There was no evidence of the mother reaching out to the Ninoshe for support outside of her regular visits to the mother’s home. [ 70 ] The mother admits that it is important for her to limit her contact with the father as it often results in further conflict.

She is agreeable to a court order that results in a reduction of contact between the parents and is prepared to rely more on the other supports she has when she needs help caring for B.A. D. The Maternal Grandmother [ 71 ] The maternal grandmother deposed that when the mother returned home from Calgary after being violently sexually assaulted she was “clearly suffering from post traumatic stress symptoms” and “She was very anxious and began having panic attacks. She would often threaten to kill herself when she was anxious. Not once did she ever act on these threats.

It became a pattern of behaviour that I recognized was a part of her reaction to anxiety and the impact from the trauma that she went through.” [ 72 ] According to the maternal grandmother, the mother “attended therapy for about 9 months to address her trauma she had suffered in Alberta.” [ 73 ] The maternal grandmother testified that the mother began threatening to harm herself after she returned to Ontario from Calgary. The grandmother testified that her daughter got help to address the trauma she suffered in Calgary and that she stopped threatening to commit suicide.

She said that only the father triggers this behaviour in the mother now and that no other relationship causes the mother to express her emotions in the way she does with the father, specifically threatening to kill herself. [ 74 ] The grandmother’s evidence is that the mother’s expressions of self-harm are only words, not threats, that the mother says as a way in which to express her emotions. She is not worried her daughter is going to kill herself. [ 75 ] The maternal grandmother’s evidence is contradicted by documentary evidence provided at trial to which no objections were raised.

In a text message exchange between the maternal grandmother and the father on November 19, 2016, the father tells the maternal grandmother that, “ The only issue that is and has been a constant issue is the threats of suicide. There is nothing absolutely nothing to suggest that i am the cause for these threats.” The maternal grandmother’s response is, “If it wasn’t something she said before then yes the I’m going to kill myself would be cause for concern. But that isn’t the case. She says it all the time, right?

It’s not said bc she means it and you know it.” She adds, “I have never said you are the cause of her saying that.” [ 76 ] In the same text message exchange between the father and the grandmother, the father explains that he feels it is his duty to report the mother’s threats to kill herself every time she makes such threats as he would be putting his son at risk if he did not report the

mother’s behavior. The maternal grandmother’s response is, “They are only words when there is NO history of action. She has said this how many times now? 100? 1000? The point is she doesn’t intend to harm herself or anyone else.” Later in the conversation the maternal grandmother says, “[The mother] has never attempted suicide, despite saying it a million times.” She only says it during times of duress” . [ 77 ] The parties obtained the entire NCFST file dating back to 2013 and on consent submitted portions of the record into evidence at the trial.

Included in evidence were notes from a telephone call between a NCFST worker and the maternal grandmother on January 4, 2016.

The Service Case Note states that the maternal grandmother told the worker that although the mother received services years ago after she was violently sexually assaulted in Calgary the maternal grandmother “believes things may have started to resurface as [the mother] never dealt[h] (sic) with this” and that the mother “has been this way since she was a kid, when she gets upset she will say i am better off dead.” The worker included in her notes that the maternal grandmother told her that “I know I am not doing her well by allowing her to continue acting this way.” [ 78 ] The maternal grandmother also told the NCFST worker that the father “pushes [the mother’s] buttons non-stop” .

The worker notes that the maternal grandmother said that “she doesn’t deny that [the mother] has issues and stated she knows it is not right for [the mother] to say she is going to kill herself and has been encouraging her to find more appropriate ways for her to express herself.” [ 79 ] The maternal grandmother’s oral testimony is contradicted by what she told NCFST on January 4, 2016 and what she said to the father in her text messages of November 19, 2016. She did not deny the contents of the case note in NCFST’s file or the authenticity of the text messages she sent the father. E.

The Father [ 80 ] The father’s evidence is that early in their relationship, the mother would break objects in their home and use racist slurs during violent rages. He describes the mother as being extremely jealous, subjecting him to interrogations about who he spends his time with. The father deposed that the mother’s behavior became unbearable as he had no way of knowing what would trigger her outbursts or why she was so angry. [ 81 ] The father cites the mother’s erratic behaviour and angry outbursts as the reason he asked her to move out of his residence when she was pregnant.

After the mother moved out of the father’s apartment, he says the parties maintained contact throughout the mother’s pregnancy. [ 82 ] The father’s evidence is that the parties’ relationship was plagued by the mother’s emotional instability and complete lack of control over her emotions. [ 83 ] The father testified that he personally witnessed the mother having emotional outbursts many times. The outbursts include yelling, swearing, racial slurs and the mother referring to people in the father’s life, including B.A., in hurtful and derogatory terms.

He testified that the mother becomes angry very quickly and her anger results in her telling him that he should come pick up their son as she is going to kill herself.

The father’s evidence is that the mother’s behaviour has not changed in the three years since B.A.’s birth. [ 84 ] The father’s evidence is that as the mother frequently yelled at him on the phone using racial slurs and making threats to harm herself, in 2014 with notice to the mother, the father began recording some of the parties’ telephone conversations. [ 85 ] On several occasions when the mother threatened to harm herself or the child, the father called the police and/or NCFST.

Contrary to the mother’s evidence that the father only called the police and/or the NCFST to bolster his position in the litigation, the father’s evidence is that he has no way of knowing whether the mother will act on her threats and it is therefore his obligation to call the police and NCFST for help. [ 86 ] The father’s evidence is that he is a dedicated father whom B.A. is bonded to and very close with and he has demonstrated that he can care for B.A. for lengthy periods of time [9] .

The mother acknowledged in her evidence that the father often had care of B.A. for several days at a time. [ 87 ] The father acknowledges that the mother has been mostly responsible for arranging for and taking B.A. to his appointments but points out that he arranged for B.A.’s doctor who is also the father’s doctor and he has attended some appointments at B.A.’s daycare and participated in the assessment of B.A.’s development by the ECC. He works with B.A. at home on his speech and on strategies to deal with B.A.’s frustration.

He is aware of B.A.’s challenges and is working on them in accordance with the consultant’s recommendations when B.A. is in his care. [ 88 ] The father’s evidence is that he is able to meet B.A.’s physical, medical and educational needs in the same way the mother has. However, since he is better able to provide B.A. with a stable, loving home free from the emotional instability the mother experiences, he is better able to meet B.A.’s emotional and psychological needs and should have custody and primary care of him. [ 89 ] The father currently lives in Markham while the mother lives in Etobicoke.

The father gave evidence that if he is given custody of B.A. he would move closer to Etobicoke in order to keep B.A. in the same daycare where he is currently receiving services that are important for B.A. He said he would not want to change B.A.’s daycare again. He proposes that the mother have access to B.A. every weekend. [ 90 ] The father’s evidence is that he has paid child support voluntarily since shortly after B.A. was born [10] and it is not accurate that he is seeking custody in order to avoid paying child support.

He admits that he has made proposals to the mother that if accepted would have resulted in her being B.A.’s primary caregiver but that over time he moved away from that position as it became apparent that the mother was not addressing her mental health issues and what he describes as her emotional instability. [ 91 ] The father admits that he tried to resolve issues in a manner that would result in the termination of child support enforcement

by the FRO but that this is not his motivation for seeking custody of B.A. He explains that his employment was not stable and he did not want child support enforced by the FRO as he is worried if he lost his job or his income went down he would not be able to keep up with the payments. [ 92 ] While the father’s main concern about the mother’s care of B.A. centres around her mental health, he also gave evidence of examples of the mother’s behaviour that he submits brings her parenting and judgment into question.

He is concerned she is abusing and selling drugs; he finds it inappropriate that B.A. has been in 4 daycares since he was born; he is concerned that the mother is sometimes unable to manage B.A.’s behaviour; the mother is not obtaining the appropriate treatment for her mental health issues; and, he has seen marijuana joints in the mother’s kitchen and is worried that B.A. could accidentally consume drugs when in the mother’s home. [ 93 ] The father’s evidence is that the recordings and transcripts of his conversations with the mother, in addition to her text messages in which she threatens to kill herself, support his claim that the mother suffers from mental health issues causing emotional instability as they starkly display her anger, outbursts, repeated threats to harm herself, threats to harm B.A., her lack of control over her emotions, her use of racial slurs and her generally abusive tone.

They also demonstrate some frustration by the mother when caring for B.A., referring to him as a “ fucking bastard ”, “fucking like the devil” and “fucking bad ass kid” . In another conversation with the father in August 2016 when B.A. was in the mother’s care, she said, “He’s not my kid, he’s your kid so it doesn’t mean shit to me where he goes.” In fact, there are several written communications between the parties where the mother refers to B.A. as “your kid”. F. The Evidence of Native Child and Family Services of Toronto [ 94 ] The father subpoenaed the current NCFST worker to give evidence at the trial.

The witnesses’ evidence was suspended by the court and an order was made for the witness to attend in court the next day with her supervisor. The following endorsement was made by the court: “Today the Respondent called [the current worker] from Native Child and Family Services of Toronto to give evidence at the trial of this matter. Unfortunately, [the current worker] was unfamiliar with the file and was unable to give evidence of the society’s involvement prior to her becoming involved in April 2016.

I have adjourned the trial today until 10:00 a.m. on December 13, 2016 for [the current worker] to attend in court with her supervisor prepared to answer the questions posed to [the current worker]. I have also asked the society to be prepared to explain to the court why to date a Protection Application has not been commenced.” [ 95 ] The mother’s current worker attended in court on the next trial date with her supervisor and both women gave oral evidence. [ 96 ] A text message exchange between the parties on December 4, 2014, led to the first investigation by NCFST.

The text messages exchanged between the parties reads as follows: Father: Ok now you’ve pushed me for the last time Leave me alone ok stop messaging me im not going to agree to the mediated terms things have gone right back to where they started so call your lawyer and tell her she needs to write your response Now leave me along (sic) and stop messaging me in this capacity Mother: I won’t be here for that I’ll be gone way before that And of course u no longer agree u would rather see me get destroyed in court in front of strangers bc that’s the kind of person u are Call the cops [f ather] Otherwise leave me alone to kill myself if I want to!!!

So come get your fucking kid so I can do so If u don’t come get him then he ends up where I do Ur choice Too late U only got a daughter [ 97 ] In a letter dated November 23, 2016, summarizing their involvement with the family, a NCFST supervisor wrote in regards to this incident that “ Due to [the mother] struggling emotionally with relationship issues between herself and [B.A.’s] father and the threats to harm herself, Native Child verified that a risk of child being harmed as a result of [mother’s] mental health well-being. ” [ 98 ] In the

summary letter prepared by NCFST referred to above, the supervisor who authored the letter noted that “ Referrals were made for [mother] to receive services ” after the December 4, 2014 incident in which the mother threatened to kill herself and B.A.

When asked at trial what referrals were made or if the mother followed up with the referrals, neither the supervisor nor the current worker could advise of any referrals that were made to the mother or if she followed up with any referrals. [ 99 ] On December 31, 2015, the father sent to several people at NCFST, a large package of email exchanges between the parties which took place in December 2015. The father requests the society’s help on an urgent basis due to the mother’s repeated threats to kill herself.

The father’s concerns led to another investigation by the society that resulted in B.A. remaining in his father’s care for three weeks.

[ 100 ] After conducting the investigation, NCFST verified risk of harm to B.A. The supervisor was asked to describe what interventions were put in place after verification of risk of harm was made. The supervisor gave evidence that services were coordinated for the mother with an “external medical team” . When asked what medical team was working with the mother, the supervisor referred to the counselling at LAMP and her physician. She said that the worker would have met with the mother and coordinated her “external supports” . [ 101 ] The supervisor’s

summary letter of November 23, 2016, states that the society investigated the father’s concerns as set out in his referral of December 31, 2015, “ and continued to support mother around her mental and emotional health well-being” . [ 102 ] In a Service Case note dated January 4, 2016, the worker writes, “[The mother] to get a note from her doctor stating that she is not suicidal or a harm to herself or her child & to request a referral for an assessment.

Once that letter has been received The child is free to be returned to [the mother] and this writer will do weekly visits to the home as a wellbeing safety check.” [ 103 ] When the mother went to the walk in clinic she has used in the past to obtain the letter requested of her by NCFST, she was quite rightly given a referral for an assessment by the doctor.

When the mother told the worker that she did not get a letter, the worker asked the mother “if she could contact the walk-in she visited and ask the doctor to send a letter to this writer stating that she was se[e]n (sic) today and the state of mind she was in at the visit.” The mother was informed “that once we received a letter that stated that she was okay then [B.A.] could be returned to her.” [ 104 ] In April 2016, the father made another referral to the society as a result of the mother threatening to kill herself again and asking the father to come to her home and pick up B.A. The society’s

summary letter states that the mother “ admitted to being emotionally unstable while off her psychotropic medications for 1 week. Coupled with her sense of isolation, she was emotionally abusive and threatening self-harm to both herself and her son.

She had renewed her prescription and was again being medically compliant.” [11] [ 105 ] Following the April 2016 incident, the society concluded that “Risk of future harm to child due to caregiver’s emotional instability was verified, as parental conflict had not been resolved and expected to continue as parents are engaged in Family Court to decide custody as well as child support payments.” [ 106 ] In August 2016, the father made another referral to the society as a result of the mother’s threats to commit suicide again. The society’s

summary letter states that “The current protection concerns centre around [the mother’s] emotional and mental health well-being; the strained and at times hostile communication dynamics between mother and father; and parents’ ability to meet the developmental needs of the child. In working with the family, Native Child has supported both mother and father in discussions around the above identified concerns and the impact this has on child’s safety and well-being.

Native Child and Family Services pulled together a Circle of Care Team to wrap around the family and to assist the parents to enhance communication between them as they meet the identified concerns.” [ 107 ] NCFST never commenced a Protection Application despite the following Service Supervision note dated August 17, 2016, in which the supervisor writes: “Supervisor wants Child Placed Elsewhere Based on Previous E-mail & Evidence: 17 Aug 2016 09:29 Based on several voicemail messages that the father taped that reflects mother threatening suicide (No plan) negatively towards identified child – referring to child a[d]s (sic) “bastard” as child cries in the background) and mother making reference to father on several occasions as a “nigger”, Supervisor will be calling a Family Group Conference with mother, father and extended family members and look at moving the child to a Kinship Home until their (sic) is stabilization in the conflict between mother and father and mother’s emotional well-being is further assessed.” NCFST will request that child be placed in a Kinship Home based on the following: 1) Mother’s negativity towards child places at (sic) at emotional risk of harm – Referring to child as “bastard” 2) Concerns related to mother’s emotional well-being 3) Mother’s reference to father as a “nigger” raises concerns regarding how she sees this child” [ 108 ] The current worker was asked to explain her Case Note dated August 17, 2016, (the same date as the supervisor’s note set out above) in which she wrote, “until counselling is in place due to ongoing concerns child not to be in either parent’s care.

Concerns: constant suicide threat Derogatory remarks re: son Derogatory racial statements”

The worker seemed to be unable to recall making this note or what it meant. She said, “This note could be a meeting I had with my supervisor talking about the file and basically….and I think that was her direction or her statement due to ongoing concerns regarding to the suicide threats, derogatory remarks, racial statements…maybe the child shouldn’t be in the care of either parent”. [ 109 ] The worker was asked to read the transcription of the conversation between the parents from October 2, 2016, in which the mother refers to B.A. as a “fucking bad ass kid” and to comment on what she read.

Her response was that she has heard other parents talk like that when their children are misbehaving but “maybe not swearing” . She did not enquire whether B.A. was present and heard what the mother said about him. [ 110 ] Counsel for the mother asked the worker, “ If we put the issue of parental conflict, death threats aside, the information we have is that the mother is a good parent to [B.A.]?” The worker said “yes” .

Counsel for the mother also asked the worker, “ If the relationship issue and the behavior we’re seeing resulting from the conflict was no longer an issue, does the society have any other concerns with respect to mother? ” The worker’s answer: “No there aren’t any”. [ 111 ] The oral evidence from NCFST can be summarized as follows: (

a) NCFST verified the risk of emotional harm to B.A. on five occasions; [12] (

b) As of the date of trial, NCFST does not intend to commence a Protection Application as it believes that it can achieve the desired outcome through “wrap around services” as opposed to a court order; (

c) NCFST’s opinion is that both parents are capable of caring for B.A. and that the conflict arising from the parties’ relationship is not affecting the care of the child; (

d) NCFST has verified threats of harm to the child on several occasions but felt that the interventions put in place were sufficient to address the society’s concerns; (

e) The main intervention in place to address NCFST’s concerns until approximately August 2016, was for a “ a qualified professional social worker ” to meet with the mother regularly; (

f) In August 2016, the agency “ wrapped around ” the family and built in a “circle of care team” as the situation escalated and the society identified a pattern of behaviour that necessitated “enhanced services” ; (

g) The current worker could not find any risk of physical or emotional harm to the child; (

h) NCFST feels that their concerns in relation to the mother’s emotional and mental health are being addressed by the circle of care. The goal of the society is to “empower her to feel confident in her role as a caregiver” ; (

i) NCFST is concerned about comments the mother has made about the child but as those comments have not affected the child who is well attached to the mother and interacts positively with her, showing no sign of being fearful, intimidated, withdrawn or traumatized, the concerns do not amount to protection concerns requiring court intervention; (

j) The society did not have any protection or parenting concerns regarding the father. The issue with respect to the father from the society’s perspective was his decision to record his conversations with the mother and the use of the recordings in the child welfare context; (

k) NCFST is concerned about the dynamics of the parties’ relationship and the impact on the mother’s emotional wellbeing. The society feels that the mother’s understanding of the parties’ relationship acts to destabilize the mother’s emotional well-being leading to “poor judgment or poor statements” on her part; (

l) The society is working with mother on the stability of her emotional and mental health; and, (

m) The present worker believes that the father is attempting to build his case for custody by make multiple referrals to the society. V. Applicable Legal Principles Regarding Parenting [ 112 ]

Section 24 of the Children's Law Reform Act (“CLRA”) provides that the court must make custody and access orders in the best interests of the child. This applies to both temporary and final orders. The court must consider the relevant best interests criteria set out in 24 (2) of the CLRA which reads as follows: Best interests of child

(2) The court shall consider all the child's needs and circumstances, including, (

a) the love, affection and emotional ties between the child and, (

i) each person entitled to or claiming custody of or access to the child, (ii) other members of the child's family who reside with the child, and (iii) persons involved in the child's care and upbringing;

(

b) the child's views and preferences, if they can reasonably be ascertained; (

c) the length of time the child has lived in a stable home environment; (

d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child; (

e) any plans proposed for the child's care and upbringing; (

f) the permanence and stability of the family unit with which it is proposed that the child will live; (

g) the ability of each person applying for custody of or access to the child to act as a parent; and (

h) the relationship by blood or through an adoption order between the child and each person who is a party to the application. [ 113 ] The court is also required to consider the issue of domestic violence as set out in subsection 24 (4) of the CLRA as follows: Violence and abuse

(4) In assessing a person's ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,

a) his or her spouse; (

b) a parent of the child to whom the application relates; (

c) a member of the person's household; or (

d) any child. [ 114 ] Children should have maximum contact with both parents if it is consistent with the children’s best interests. [13] [ 115 ] The court has considered and applied the principles set out in subsections 24(2) and (4) of the CLRA in determining the parenting arrangements that are in this child’s best interests. V.

Analysis Regarding Custody and Access and Findings of Fact The Parents [ 116 ] The court finds that the parties both love B.A. very much and that B.A. is extremely bonded to both parents. [ 117 ] B.A. has lived primarily with the mother since he was born but the court finds that he has spent a significant amount of time in his father’s care. [ 118 ] While the mother has taken most of the responsibility for arranging for and taking B.A. to his appointments, both parents have played an active role in trying to address B.A.’s speech and language development as well as his behavioural issues by implementing recommendations made by the Early Childhood Consultant.

The court finds that both parties are able and willing to provide for B.A.’s physical, medical and educational needs. [ 119 ] While the mother has been B.A.’s primary caregiver and met his physical, medical and educational needs, the evidence is that at times she struggles with the responsibility of being the child’s primary caregiver and has turned to the father for help. The court finds that the mother has almost no one to assist her in caring for B.A. except the father.

The court finds that the mother is somewhat isolated and has an almost non-existent support system. [14] [ 120 ] The court finds that since B.A. has spent a significant amount of time in his father’s care and his father is aware of his needs, the adjustment period would not be significant if B.A.’s primary residence was ordered to be with the father. [ 121 ] Raising a happy, healthy child requires more from a parent then providing a child with the necessaries of life.

A child who grows up to be a confident, happy, emotionally stable adult was likely raised in a home by caregivers who provided the child with a loving, nurturing, calm and safe environment. To be raised in this environment reassures a child that they can rely on their caregiver for all that is important to them, physically and emotionally, in order to succeed in life. Raising a child to feel loved and secure in their parents’ care, such that they will develop secure attachments and healthy relationships as adults, requires an emotionally stable caregiver. [ 122 ] This is where the abilities of the parents differ.

The mother has demonstrated that she can meet the child’s physical, educational and medical needs and she has done a good job in this regard, but her emotional instability and apparent mental health concerns seriously brings into question her ability to meet B.A.’s emotional and psychological needs. The court does not have the same concerns about the father. [ 123 ] Every child should grow up in a home where they are loved, cherished and respected by their caregivers.

The mother knows that a child should not witness the type of behaviour the mother has displayed in front of or near B.A. but unfortunately she has been unable to help herself. A child should never hear their caregiver threaten to kill themselves, whether they mean it or not. A child should not witness the type of verbal abuse the mother has directed at the father on many occasions when B.A. was either near her or in her care.

It is unacceptable to expose a child to this behaviour and the associated risk of harm. [ 124 ] The court finds that continued exposure to this type of behaviour creates a real risk that B.A. will suffer or continue to suffer

emotional harm. The mother’s tirades directed at the father which included yelling, swearing, insults, racial slurs and threats to harm herself and B.A. created an extremely unhealthy environment for a child to live in. Referring to her son as a “ fucking bastard”, “not my child”, “fucking like the devil”, and “fucking bad ass kid” is disturbing. [ 125 ] The effect, if any, of what B.A. has heard and witnessed is not yet known. It certainly cannot be concluded on a definitive basis, as NFCST believes, that at this point in time the mother’s behaviour has not had a negative impact on B.A.

NCFST’s assessment of the situation is short sighted and has not considered the possible long term effects to B.A. of living in this environment. The court is not bound by the conclusions of NCFST. The test in this litigation is the best interests of the child. Based on all of the evidence the court finds that there is a real risk of harm if B.A. is left in his mother’s primary care and custody. [ 126 ] The court finds that the mother knows her behaviour is disturbing and that it is harmful for B.A. to hear the things she has said and witness her behaviour.

Unfortunately, the mother has been unable to take the appropriate steps to address her behaviour as the evidence demonstrates that the mother’s behavior has not changed in three years despite the involvement of NCFST. [ 127 ] To be a better parent to B.A., the mother must pursue medical treatment that will help her understand what causes her anger and harmful behaviour so that she can attempt to change her behaviour and control her anger and emotions. As long as the mother blames the father for her behaviour she will not be able to change and improve herself as a person and a mother.

She must take responsibility for her own words and actions and her best motivation for doing so is B.A.; so that he never hears his mother threaten to harm herself or call him degrading and hurtful names. Should B.A. continue to hear the offensive and disturbing comments the mother has made to the father, the extent of the damage to B.A. could be enormous. The real threat of emotional harm to B.A. as a result of the mother’s behaviour significantly influences the court’s decision.

Evidence of Native Child and Family Services of Toronto [ 128 ] The court unfortunately must take this opportunity to comment on the way in which NCFST failed to adequately serve this family and more specifically the child B.A. From their earliest involvement in 2014, NCFST identified a risk of harm to B.A. due to the mother’s emotional instability and mental health.

When asked at trial what interventions were put into place in 2014 to address their concerns, the court was told by the supervisor that she was not at the agency at that time and does not know what interventions were introduced but that a social worker would have been dispatched to speak with the mother. [ 129 ] As counsel for the father went through each referral made by the father to NCFST and asked the supervisor what interventions were put in place to assist the family and address the concerns identified by NCFST, the court was told time and time again that a “qualified professional social worker” was provided to go to the mother’s home and speak with her. [ 130 ] The NCFST supervisor gave evidence that during the investigation that began in early 2016, the worker would have met with the mother and coordinated her external supports.

The fact is NCFST did no such thing. The problem clearly is that the mother does not have external supports or at least appropriate ones to address her needs so there was nothing for NCFST to coordinate. What should have occurred was for NCFST to make very specific referrals for the mother to get the help she needs. [ 131 ] What occurred was the worker counselling the mother to obtain a letter from a doctor confirming that her mental health is stable. The notes provided from the file of NCFST discloses little intervention by NCFST to protect B.A. from harm.

No referrals were made to a psychiatrist or a psychologist or any specialist who could have provided assistance to the mother.

In fact, the mother did not even have a family doctor at the time, and attended a walk in clinic when she needed to see a doctor. [ 132 ] It is rather astonishing to the court to read in the NCFST file that the mother was told she would have B.A. returned to her care once they received a “note” saying that she was “okay” . [ 133 ] When the mother finally obtained a letter from the walk-in clinic which was deemed to be insufficient for NCFST to allow B.A. to be returned to her care, the January 8, 2016 Service Case note states that the worker told the mother exactly what should be included in the letter. [ 134 ] These entries in NCFST’s file exemplifies NCFST’s failure to conduct an in depth investigation and analysis of the mother’s situation.

The investigation into the mother’s mental health should not end with a “note” that says she is not suicidal as that does not provide an explanation as to why she continues to behave the way she does with the father and B.A. and what can be done to help address her concerning behaviour. [ 135 ] The court is troubled that NCFST did not see the true gravity of the situation. They seemed so focused on papering their file to allow them to return B.A. to his mother’s care that they failed to assist the mother to focus on getting the help she obviously needs.

They were simply prepared to rubber stamp the return of B.A. to the mother’s care if a doctor would write a “note” stating that the mother is not a threat to physically harm herself or B.A. [ 136 ] The current worker and the supervisor who gave evidence at the trial were unable to acknowledge that errors were made. Neither was prepared to say that NCFST did anything wrong in their handling of the case.

They were unwilling to acknowledge that there is a protection concern due to the risk of emotional harm necessitating a Protection Application simply because there were no visible signs that B.A. has been harmed as a result of his parents’ relationship or his mother’s behaviour despite the fact that risk of emotional harm had been verified repeatedly. [ 137 ] What creates confusion for the court when trying to understand why NCFST did not commence a Protection Application, are their notes dated August 17, 2016 in which both the supervisor and the FSW wrote that B.A. should not be in either parents’ care until they obtain counselling. [ 138 ] It was exasperating to listen to the evidence of the witnesses from NCFST as it was clear that each time a referral was made regarding the mother’s behaviour, NCFST was concerned about the mother’s behaviour and identified risks to the child but did little to nothing to address the risks.

[ 139 ] It was not until August 2016, after several referrals were made to NCFST involving mother’s threats to kill herself that NCFST “ wrapped around ” the family and created a circle of care. The circle of care implemented involved the Ninoshe; a developmental worker for B.A.; a Native Child counsellor; a FSW; and, Anishnawbe Health Toronto. [ 140 ] It is quite difficult to understand how NCFST could conclude that a circle of care would assist this mother and protect B.A. from harm.

It should have been abundantly clear from the evidence that the mother requires a psychiatric or psychological evaluation in order to determine how to help her address her anger and effectively manage her emotions.

Yet NCFST never referred the mother to the appropriate medical professionals even though they have a wealth of resources available to them. [ 141 ] Despite the existence of a the circle of care, the mother once again threatened to kill herself in October 2016, while speaking with the father and used degrading terms when referring to B.A. yet a Protection Application was not commenced. [ 142 ] The worker and supervisor were directed to attend in court on this trial and they were provided with a DVD recording of 10 disturbing conversations between the parents as well as a professional transcription of the recordings.

When the worker and supervisor attended in court on the next day to give evidence, the worker had only read the transcripts and the supervisor had failed to read the transcripts or listen to the recordings as she noted that she was only given notice of the court’s request for her to attend in court 4:30 p.m. the day before. This is truly unprofessional.

The recordings and transcripts of same were so upsetting to the court that the supervisor was ordered to come to court and explain why a Protection Application had not been commenced but the worker and supervisor did not bother to listen to the recordings. [ 143 ] The court was dumbfounded by the worker’s evidence regarding her own case note of August 17, 2016 in which she wrote that due to ongoing concerns, B.A. should not be in either parents’ care until counselling is in place.

On the face of it, this was an important note yet the worker could not remember making it or what it meant. [ 144 ] Neither the supervisor nor the worker took responsibility for their failure to protect B.A. They were invited to attend in court with a Protection Application but failed to do so.

Maybe that was in part because neither the worker nor the supervisor found the time to listen to the recordings of the 10 telephone conversations between the parties despite the court asking them to do so. [ 145 ] It is inconceivable that NCFST did not express more concern about B.A.’s emotional wellbeing when in the care of his mother who repeatedly threatens to kill herself, has threatened to kill her son, calls her son’s father a “nigger” and speaks in an insulting and demeaning way about her 3 year old son in his presence. [ 146 ] The court was genuinely stunned when the worker was asked, “ If we put the issue of parental conflict, death threats aside, the information we have is that the mother is a good parent to [B.A.]?” and the worker said “yes” .

This is an overly simplistic way in which to answer this loaded question. Surely the worker must be concerned with the mother’s willingness to act the way she does or her inability to control her behaviour and emotions, especially in front of her son. The worker refused to embark on a comprehensive or meaningful answer to the question posed by the mother’s lawyer. The worker’s answer to this question tarnished her already fragile credibility with the court. [ 147 ] NCFST said the mother never intended to harm herself or B.A. and that she just said what she said to get the father’s attention.

What alarmed the court is how the mother’s words failed to trigger sufficient attention from NCFST. The worker and the supervisor failed to grasp the significance of the evidence they were giving. Even if the mother was saying these things just to get the father’s attention, that in and of itself is a mammoth indication that the mother may have unresolved emotional or mental health issues and that she requires the help of a mental health professional to address them. [ 148 ] NCFST seemed to consider the mother’s words a protection concern only if she acted on them. This is an absurd evaluation of this situation.

NCFST should have been concerned about the mother’s willingness to repeatedly use the words she used even if she had no intention of acting on them or if she did not mean what she said. Threats to commit suicide or to harm your child are never just words.

Calling your son a “ fucking bastard” or a “fucking bad ass kid” are not just words that can be swept under the carpet on the basis that they were said in the heat of the moment. [ 149 ] The society’s refusal to acknowledge that the mother has been emotionally abusive to B.A. and that she has serious issues that require professional intervention, is a complete and utter failure by NCFST to do the very thing they are in existence to do: protect children from harm.

There is no conceivable way in which NCFST could conclude that B.A. would not be harmed if left in his mother’s care without significant interventions including a psychiatric or psychological assessment and therapy for this mother. The society’s job is to protect B.A. from harm and in order to do so, NCFST should have helped the mother help herself.

Even when invited to do so by this court twice, they still failed B.A. and his mother by doing nothing. [ 150 ] The court accepts NCFST’s finding that there is a risk of emotional harm to B.A. when in his mother’s care and agrees with their concerns but is quite alarmed by the lack of action taken by NCFST in the face of several verifications. [ 151 ] NCFST ought to undertake a very careful and thorough examination of their handling of this case. They must ask and answer some important and difficult questions. Something went extremely wrong here.

Justice Curtis questioned the need for NCFST to commence a Protection Application in June 2015, one and a half years ago. The situation has worsened and clearly nothing truly productive has been done. Custody Order [ 152 ] Both parties ask the court to make an order granting them sole custody of B.A. Neither party has asked in the alternative for the court to make a joint custody order. [ 153 ] There is no evidence to suggest that a joint custody order would be appropriate in the circumstances of this case. The parties

both describe an extremely unhealthy and high conflict relationship. The parties clearly are unable to communicate effectively. Furthermore, the court has no reason to believe that the parties are capable of p

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