M.D.B. v. T.M.L., 2012 ONCJ 153

COURT FILE No.: Halton 470/09 DATE: 2012·03·16 Citation: M.D.B. v. T.M.L. , 2012 ONCJ 153 ONTARIO COURT OF JUSTICE BETWEEN: M.D.B. Applicant — AND — T.M.L. Respondent B.F.R. Third Party F.F.R. Third Party Before Justice Roselyn Zisman Heard on November 15, 16, 17 and 18, 2011 and January 3, 4, 5, 6, and 9, 2012 Reasons for Judgment released on March 16, 2012 Lorne S.

Jackson .................................................................................................... for the applicant T.M.L..................................................................................................................... on her own behalf B.F.R...................................................................................................................... on her own behalf Barbara J. McLeod..................................................................................... for the third party F.F.R.

ZISMAN J.: INTRODUCTION [ 1 ] This trial heard over nine days involves the issue of what custodial and access arrangements are in the best interests of the child, M.B. (“M.B.”), born on […], 2005. Throughout M.B.’s life and these proceedings there have been shifting positions and alliances between the parties. Although all of the parties love M.B. and have shared in her caretaking, the versions of each parties’ role changes depending on the shift in familial relationships.

In order to understand the context of the trial, it is necessary to briefly outline the parties’ relationship to the child, the history of the litigation, each party’s position and the changes in their positions prior to the trial. THE PARTIES [ 2 ] The applicant, M.D.B. (“M.D.B.” or “the father) is the biological father of M.B.. The respondent, T.M.L. (“T.M.L.” or “the mother”) is the biological mother of M.B.. [ 3 ] The third party, B.F.R. (“B.F.R.” or “the aunt”) is the maternal aunt of M.B..

B.F.R. resides with her common law partner, Y.F.. [ 4 ] The third party, F.F.R. (“F.F.R.” or “the grandmother”) is the maternal grandmother of M.B.. F.F.R. resides with her common law partner W.S.. [ 5 ] M.B. has five siblings. B.R. born […], 1997 and J.R. born […], 1999 are her half brothers. Their father is J.G.. The mother and grandmother have a joint custody order with respect to B.R. and J.R. who reside full time with the grandmother and have access to the mother and their father, J.G.. S. and A.B.2, the father’s children reside with their mother in southern Ontario and M.B. sees them only sporadically.

The mother and father have another child, A.B.1, born […], 2010 who is M.B.’s biological sister. A.B.1 lives with the mother and father.

HISTORY OF LITIGATION AND PARTIES’ POSITIONS [ 6 ] On October 15, 2009, the father commenced an application for custody of M.B. with primary residence at the home of the grandmother and no access to the mother. At the time he had just separated from the mother and was living in a shelter. He believed it was in M.B.’s best interests to reside with her grandmother who provided daycare for her and in whose home she had often slept overnight. Residing with the grandmother would also permit her to continue to attend Mother Teresa Catholic School.

He also sought a non-removal order as he alleged that the mother frequently went to the United States and threatened she would removed M.B.. [ 7 ] The father attempted to obtain an emergency ex parte non-removal order which was denied on the basis that the motion should be served on the mother. [ 8 ] On October 22, 2009, the mother and father executed a temporary consent that M.B. continue to attend Mother Teresa Catholic School, continue to attend daycare with the grandmother and agreed to a residential

schedule that provided M.B. sleep at the home of the grandmother or the aunt. [ 9 ] The mother filed an answer on October 27, 2009 claiming custody of M.B.. She denied any plans to re-locate to the United States or that she had ever threatened to remove M.B.. She also denied that it was in M.B.’s best interests to reside with the grandmother. The mother alleged that although she had joint custody of her sons B.R. and J.R. with the grandmother, the grandmother makes it difficult for her to see her sons and she does not keep her advised or consult her regarding their schooling or extra curricular activities.

The mother stated that she had the full support of her sister, B.F.R. and that M.B. could continue to reside with her and her sister. She alleged that F.F.R. only provided daycare for M.B. and that M.B. had not often spent overnights at the home of the grandmother. The mother alleged that, prior to their separation, M.B. slept over at either the home of the mother and father or the home of her sister, B.F.R.. Since the separation she alleged that the father had not even been picking up M.B. from daycare and she had to arrange for her sister B.F.R. to pick her up if she was working late.

She also alleged that she did not feel safe returning to her home, as the father had a violent temper and although he had not assaulted her they had a heated argument when they separated. She was prepared to offer the father reasonable access. [ 10 ] The maternal aunt and grandmother were added as third parties on December 23, 2009. [ 11 ] On December 31, 2009, the maternal aunt filed a claim for custody of M.B. and primary residence with her and with reasonable access to the parents.

She alleged that M.B. had spent about 90% of her time with her, that she was extremely familiar with her home, that she would continue in the same school and that she was able to meet all of her needs. She stated that she would ensure that M.B. had continuous contact with her grandmother and siblings. [ 12 ] Sometime in December 2009 the parents reconciled and the mother moved into the grandmother’s home where the father was also residing. [ 13 ] The maternal aunt filed a motion for temporary access that was heard on January 8 th , 2010.

The father’s position was that the aunt’s access should be in the discretion of the grandmother. Both the grandmother and mother supported his position. Justice Wolder, the case management judge, ordered that the aunt have access every Sunday at 10:00 a.m. until Monday morning at 7:30 a.m. with M.B. to be dropped off at the home of the grandmother. He further ordered that M.B. not be left in the exclusive care of Y.F.. Justice Wolder endorsed that he did not find any evidence of improper conduct on the part of Mr.

Y.F. but the order was only based on the allegations of the other parties. [ 14 ] The grandmother filed her third party claim on January 13, 2010. She stated that she and the parents had resolved all outstanding issues in accordance with minutes of settlement. The minutes of settlement provided that the grandmother and the parents have joint custody of M.B. and that she reside at the grandmother’s residence. The minutes of settlement further provided that the parties have joint decision making but if there was a conflict, the grandmother would have the final decision.

There was no provision for access to the parents if they no longer reside in the grandmother’s home or any provision for access to the aunt. [ 15 ] When the parents and the grandmother attempted to file these minutes of settlement on March 4, 2010 before Justice Wolder, he rejected them as they were not witnessed, the mother did not have independent legal advice before she signed and the aunt, who was a party, had not been included.

The grandmother and the father were at the time represented by the same counsel who prepared the minutes of settlement. [ 16 ] At that court attendance counsel for the children's aid society was present and advised the court that the society had no protection concerns about Y.F. and that their file was closed. [ 17 ] On February 3, 2010, the aunt filed a reply to the claim by her mother, F.F.R..

B.F.R. stated that neither parent had accepted responsibility as parents in the past and that in view of the history between the parties that the current living arrangement that is, that the parents were residing at the grandmother’s home along with M.B. and the mother’s sons, B.R. and Josh, would not last. [ 18 ] On February 16, 2010, the mother filed a reply to the third party claim by B.F.R..

By then there was a falling out between the mother and B.F.R. and the mother stated that M.B. had very strong emotional ties to herself, the father, grandmother and her brothers, especially when she resided with all of them. She stated that it was best for M.B. to be raised by her family as opposed to B.F.R. and her “roommate” Y.F.. She denied that B.F.R. ever cared for M.B. 90% of the time, that she ever acted as a parent and that she did not know anything about being a parent as she did not have children of her own. She stated that B.F.R. had twisted the past and taken incidents out of context.

She also denied that her past history with her sons or the father’s history with his children was of any relevance. [ 19 ] During the months of January and February 2010, there were disagreements between the parents and between the mother and the grandmother.

[ 20 ] On March 21, 2010, there was an altercation between the mother and the grandmother’s partner, W.S.. The mother alleged that Mr. W.S. had assaulted her while she was holding M.B.. The parents left the residence and wished to remove M.B.. The police were called and the grandmother showed the police the minutes of settlement the parties had executed.

Based on the minutes of settlement signed by the parties, the police advised that M.B. should stay with the grandmother and the parents would have to resolve the custody dispute through the family court. [ 21 ] On April 29, 2010, counsel who had represented both the father and grandmother was removed as counsel of record due to the falling out between the father and grandmother. [ 22 ] The parties entered into temporary without prejudice minutes of settlement. M.B. was to reside with the grandmother every Monday from after school to Thursday after school.

The parents were to pick her up after school on Thursday and have parenting time with her until Saturday at 4:00 p.m. M.B. then was to be with the aunt from Saturday at 4:00 p.m. until Monday at noon. [ 23 ] On May 11, 2010, Justice Wolder varied the order to require the parents drop M.B. off at her grandmother’s home on Fridays to ensure that she not be late for school. M.B. then was to spend time with her aunt from 4:00 p.m. on Saturdays until drop off at the grandmother’s home on Mondays at about 7:30 a.m.

He further ordered that all parties must be in agreement about any major decision about M.B.. [ 24 ] On August 18, 2010, Justice Wolder heard the grandmother’s motion for primary care and control of M.B.. At that time the Office of the Children's Lawyer had accepted a referral but its investigation was not yet complete. Justice Wolder held that he would not disturb the status quo any more than was necessary until the investigation was completed but that as M.B. had to return to school in September an order regarding where she went to school needed to be made.

The parents wished M.B. to attend a new school in Burlington where they were residing or not attend school as she was only going to senior kindergarten. They were not prepared to consent to M.B. continuing to attend at Mother Teresa Catholic School where she had been attending junior kindergarten for the last year. The aunt agreed that M.B. continue at her same school. Justice Wolder ordered that until further court order, M.B. was to continue to attend Mother Teresa Catholic School and that her primary residence was to be with the grandmother.

He ordered that the outstanding access order continue. [ 25 ] All parties had been under the impression that the without prejudice access arrangements they entered into on April 29, 2010 were only to last a few weeks but except for some minor changes due to M.B.’s school schedule, this arrangement has remained in place for almost two years. [ 26 ] In the course of the proceedings, there was also a motion regarding whether or not whether M.B. required surgery to remove tubes in her ears. In that motion the parents opposed the relief sought by the grandmother and the aunt who were united in their positions.

There was also a Christmas access motion in which the parents and aunt’s proposal was accepted by the court as opposed to the grandmother’s proposal. [ 27 ] The Office of the Children's Lawyer initially declined to be appointed but after a further court order, the file was accepted. However, in the report dated May 27, 2010 no recommendation was made because the parents were unable or unwilling to organize an observation visit.

The report also states that the parents did not provide timely consents to permit the clinical investigator to contact the children's aid society and would only sign consents to permit the clinical investigator to obtain information from the family doctor about M.B. but not about themselves. [ 28 ] On September 27, 2010 Justice Wolder made a further order for the appointment of the Office of the Children's Lawyer based on the parents’ undertaking that they would fully co-operate with the Office of the Children's Lawyer and do exactly what was required of them. [ 29 ] Although the file was assigned in October 2010, it was delayed due to the involvement of the Halton Children's Aid Society from December to January 27, 2011.

The interviews and observations of the parties and collaterals were conducted from October 2010 to March 2011. [ 30 ] At the time of the Office of the Children's Lawyer investigation, the positions of the parties was as follows: ▪ The father sought sole custody and was prepared to parent with or without the mother. Because of the past difficulties in the relationship between him and the mother, he was not sure their relationship would endure but wanted custody regardless. He called the grandmother “evil” and stated that she only wanted M.B. for financial gain.

He further stated that the grandmother had taken the mother’s sons from her and used them against her. He expressed that W.S., the grandmother’s common law partner, was obsessed with the mother. Although he liked B.F.R. and her partner, Mr. Y.F. he felt they were only interested in M.B. because they did not have children of their own. ▪ The mother sought joint custody with the father and unspecified access to the grandmother and the aunt.

She wished supervised access to her mother as she believes that her mother physically disciplines M.B. and her sons. ▪ The grandmother sought sole custody and primary residence as this has been the informal status quo since M.B.’s birth. She was open to sharing joint custody with B.F.R. but not with the parents due to their instability.

▪ The aunt sought sole custody and primary residence with her but was willing to share joint custody with her mother. It was her position that she had been a primary caregiver to M.B. since birth when she lived in her mother’s home and then every weekend and many weeknights while she lived away from the family home. She felt she could provide M.B. with stability and ensure that she had regular and predictable access with all of her family members.

She further stated that since the birth of A.B.1 in November 2010, the parents had been leaving M.B. in her care on their court designated parenting time. [ 31 ] At the trial management conference on August 31, 2011 parties maintained the same positions as reported in the Office of the Children's Lawyer Report. None of the parties agreed with the recommendations of the Office of the Children's Lawyer. [ 32 ] Although the parents had reconciled they did not bring a motion to join themselves as applicants and therefore they still remained as applicant and respondent.

At the assignment court on October 27, 2011, the court was not advised of any change on the parties’ positions. [ 33 ] At the commencement of the trial on November 15, 2010, the court was advised that all parties, except the aunt had signed minutes of settlement resolving all issues. The matter was held down so the parties could attempt mediation which proved to be unsuccessful. [ 34 ] Counsel for the father and grandmother brought a motion for security of costs against the aunt which was denied.

However, it was agreed that as the aunt was the only litigant wishing to proceed with the trial, that it would save time and expense if she presented her case first and the other parties could respond.

REPORT OF THE OFFICE OF THE CHILDREN'S LAWYER [ 35 ] At the commencement of the trial, the court and parties were advised that the clinical investigator, who was scheduled to testify on the first day of trial, would be unavailable to testify due to illness and there was no likelihood that she would be able to testify in the immediate future. [ 36 ] As a result I advised the parties that, subject to hearing submissions at the end of the trial, it would be unlikely that I would rely on the recommendations of the Office of the Children's Lawyer due to the lack of the opportunity to cross-examine the investigator.

However, all parties were requested in their testimony to specifically refer to any portions of the report that is, the observations, interviews, collateral information, that they did not agree accurately represented the information gathered by the investigator. [ 37 ] The parties and counsel were also requested to address what weight, in any, should be placed on the contents of the Office of the Children's Lawyer in light of the unavailability of the investigator. The parties were, of course, able to call any other witnesses or the collaterals interviewed by the clinical investigator.

MINUTES OF SETTLEMENT [ 38 ] At the commencement of the trial, the parties filed minutes of settlement, executed by all of the parties, except the aunt, that provided that M.B. would reside as follows:

a) With her parents from Friday after school to Sunday at 3:00 p.m.;

b) With her maternal aunt from Sunday at 3:00 p.m. until Tuesday school drop off at 7:45 a.m.;

c) With her maternal grandmother from Tuesday at 7:45 a.m. until Friday at 3:00 p.m.;

d) The parties will be flexible in arranging for additional time when special occasions or events arise;

e) The parties agree that if any party delegates their time with the child to another party, the other parties shall be informed and shall have the opportunity on the next occasion to look after the child. [ 39 ] With respect to decision making, the minutes of settlement provided that:

a) M.B. shall continue to attend Mother Teresa Catholic School as long as either the grandmother or aunt live in the catchment area or the parties unanimously agreed otherwise. In the event of a disagreement any party may bring a court application;

b) All decisions regarding medical issues shall be made by the parents;

c) All decisions regarding religion shall be made by the parents;

d) Any other decisions shall be by majority decision governing. The parents for this purpose will have one vote and each of the grandmother and aunt having one vote.

[ 40 ] The minutes of settlement also provided for all parties to have direct access to M.B.’s school and medical information. [ 41 ] The minutes of settlement further provided a holiday

schedule that included that each party would have one week of summer vacation with M.B.. In evidence it was clarified that this meant one week for each of the parents. M.B. would spend Mother’s Day and Father’s Day with her parents and every Christmas Eve until Christmas Day with her parents. The parties will make arrangements for each party to spend time with M.B. during Christmas. [ 42 ] The other terms of the minutes of settlement provided for mechanisms for communication and ensuring that M.B.’s needs were addressed and dealt with other issues that had become sources of irritants for the parties.

It also provided that all previous orders for costs would be rescinded. [ 43 ] It continued to be the aunt’s position at trial that she was the party best able to provide M.B. with the consistency and stability she required. That the arrangement entered into by the other parties suited their respective schedules and was not in M.B.’s best interests. The minutes of settlement reduced her time with M.B. to a few hours on Sunday afternoon and then Sunday and Monday overnights.

The decision making relying on a majority vote would depend on the alliances of the parties at the time and not on what decision was in M.B.’s best interests. RELEVANT EVIDENCE REGARDING HISTORY OF RESIDENTIAL ARRANGMENTS [ 44 ] As it was evident that the parties had different versions of where they lived and where M.B. had lived since her birth, all parties were requested at the trial management conference to provide a statement with this information to save time at trial.

All parties, except the mother filed such a statement and were subject to cross-examination on the contents. [ 45 ] Based on the evidence I accept, I make the following findings of fact regarding M.B.’s residential history. [ 46 ] When M.B. was born on […], 2005 the parents were residing in a single bedroom in someone’s house and had to move because they were not paying the rent. In July 2005, they then moved into the grandmother’s home in Oakville. B.F.R. and the mother’s sons, B.R. and J.R. were also living there. But B.F.R would spend weekends with Mr.

Y.F. at his apartment in Mississauga and she frequently took M.B. for weekends. [ 47 ] In February 2006, the parents and M.B. moved into their own rented apartment in Burlington. M.B. continued to come to the grandmother’s home daily as the parents were working and the mother was attending physiotherapy. M.B. was spending some overnights at the grandmother’s home and continued to spend almost every weekend with B.F.R. and Mr. Y.F.. [ 48 ] In June 2006, B.F.R. moved permanently into Mr. Y.F.’s residence in Mississauga and the grandmother bought a home with her common-law partner, W.S. in Oakville.

M.B. continued to spend weekends with B.F.R. and Mr. Y.F. which led to long weekends and then some overnights from June 2006 to January 2008. [ 49 ] During this period from June 2006 to January 2008, the mother attended school and left M.B. with the grandmother daily. Although the father was off on Fridays and was to take care of M.B. he seldom did so.

M.B. slept at the grandmother’s home on some weekdays, sometimes at her parents’ and sometimes at B.F.R.’s and on weekends she continued to be with B.F.R.. [ 50 ] Between January 2008 until June 2008, it was the evidence of B.F.R. that M.B. spent almost every night with her and would go to the grandmother’s home for daycare. She testified that she was working in Hamilton at the time and would drop her off on her way to work. Her co-worker, Jori Ann Smith confirmed that B.F.R. would pick her up and M.B. was in the car during this time frame. It was her recollection that M.B. was with B.F.R. almost every day.

The grandmother confirmed that from March to June 2008 M.B. did spend a lot more time including overnights during the week with M.B. as she was off work with a back injury but did not agree with the extent of the time B.F.R. claimed M.B. was with her. I prefer the evidence of B.F.R. which as indicated was corroborated by Ms. Smith. [ 51 ] During 2008, the mother had graduated from school and began to work as a security guard. The mother worked a lot of evenings as well as days. The father was working days but had trouble getting up in the early mornings.

It was more convenient for the parents to leave M.B. with either the grandmother or B.F.R.. Therefore, during 2008 the parents spent little time with M.B.. [ 52 ] In June 2008, B.F.R. and Y.F. separated and B.F.R. moved back into F.F.R.’s home. In November 2008, B.F.R. and Y.F. reconciled and moved into their own residence in Oakville very close to the grandmother’s residence. They signed a lease and M.B. was listed as an occupant. This is the address that was used to register M.B. in school. [ 53 ] From November 2008 to March 2009 B.F.R. saw M.B. more frequently as she now lived five minutes away.

According to B.R. M.B spent overnights with her and Y.F. during the week and on week-ends. According to the grandmother it was only for dinner and seldom for weekday overnights. B.F.R.’s version of events was generally corroborated by the several witnesses she called, that all testified that M.B. spent a great deal of time at the home of B.F.R. and Y.F.. [ 54 ] In March 2009, the parents stopped M.B. from going to B.F.R.’s home based on the mother’s allegation that M.B. told her that Y.F. touched her genitals.

The parents kept M.B. for the weekends and she continued to come to the grandmother’s home during the day. In April 2009, M.B. began to again stay with B.F.R. and Y.F.. B.F.R. agreed that Y.F. would not be left alone with M.B..

[ 55 ] In the spring of 2009, the parents began to have relationship difficulties and the mother began dating a man in Buffalo and staying away a few days at a time, M.B. stayed overnight either with the grandmother or B.F.R.. [ 56 ] In October 2009, the parents separated and both left the apartment they had been renting. The father went into a homeless shelter for a few weeks and then the grandmother invited him and M.B. to reside in her residence.

In December 2009, the mother also moved into the grandmother’s home. [ 57 ] Between September to December 2009, M.B. would stay overnight at the grandmother’s home for the father’s court ordered access on Monday, Thursday, Friday and Saturday and at B.F.R.’s for the mother’s court ordered access on Tuesday, Wednesday and Sunday. [ 58 ] In December 2009, the father made an allegation that Y.F. inappropriately touched M.B..

M.B. was not permitted to stay at B.F.R.’s home pending an investigation by the Halton children's aid society. [ 59 ] On January 8, 2010, B.F.R. obtained an order for access to M.B. from Sunday morning to Monday morning. Y.F. was not to be left alone with M.B.. [ 60 ] On March 21, 2010, the parents left the grandmother’s residence due to an altercation between the mother and W.S.. M.B. remained in the grandmother’s home. [ 61 ] Between March 2010 and September 2010, the father and mother resided in at least 8 different motels and for a short time with the father’s aunt before their daughter A.B.1 was born.

In September 2011, with the help of the Halton Region they were finally able to secure a three bedroom apartment in Hamilton. [ 62 ] The parties currently share time with M.B. in accordance with a court order dated April 29, 2010 as amended on May 11, 2010 and August 19, 2010. M.B. is with the grandmother from about 7:30 a.m. Monday morning until 2:50 p.m.

Thursday afternoon, from Friday morning at 7:45 a.m. until 2:50 p.m.; with the mother and father Thursday at 2:50 p.m. to Friday morning at 7:45 a.m. and on Friday at 2:50 p.m. until Saturday evening at 7:00 p.m.; and with B.F.R. from Saturday evening at 7:00 p.m. until Monday morning at about 7:30 a.m. [ 63 ] From about October 2009 to January 2011 the mother and father delegated their parenting time on Thursdays and Friday evenings to B.F.R.. EVIDENCE REGARDING M.B [ 64 ] M.B. is described as an intelligent child who loves everyone. She has a close relationship with B.R. and J.R. despite the age differences.

Although J.R. resents that M.B. took his bedroom and he now has to sleep in B.R.’s bedroom and that she sees their mother more than he does. M.B. also loves spending time with her new sister, A.B.1. [ 65 ] M.B. is aware of the fighting between the adults in her life and only wants them all to get along. [ 66 ] M.B. was interviewed and observed with all of the parties as part of the investigation by the Office of the Children's Lawyer. M.B. reported that she liked that way things were now that is, that she stays with her grandmother, then goes to stay with B.F.R. and Y.F. and she sees her mother and father.

She reported that she did not like staying at with her parents too often. M.B. stated that she loved Y.F. but her grandmother told her he was not part of their family and that her grandmother did not like B.F.R. and Y.F. but she loves Y.F.. She told the investigator, with a mischievous smile, how she had got her father to let her stay with B.F.R. and Y.F. on a Thursday instead of staying with her parents. [ 67 ] The observations of M.B. with B.F.R. and Y.F. and with the grandmother and Mr. W.S. were all positive. M.B. was observed to be more shy, less confident and less verbal when observed with her parents.

However, I do not place any great significance on the difference in her demeanour as she would not have been comfortable or familiar with the surroundings in view of the many different accommodations she was exposed to when in the care of her parents. [ 68 ] Dr. Slinger was also contacted as part of the Office of the Children's Lawyer investigation. She expressed concerns about the parents’ ability to demonstrate insight and capacity to parent.

She expressed concerns about the parents’ ability to reflect and demonstrate insight as to the extent that their own behaviour may have contributed to the current access dispute. She stated that the parents’ had recently brought M.B. for a well baby check up and did not provide the doctor with any information about the residential schedule. This was a significant omission as the well baby check up is based on a caregiver report about a child’s functioning in the community, at home and at school. Overall, Dr.

Slinger had no concerns about M.B.’s physical well being, but expressed significant concerns for her future emotional well being should the dispute regarding custody and residence not be settled. [ 69 ] M.B.’s teacher was also contacted as part of the Office of the Children's Lawyer investigation. She advised that she had met all members of her family. She reported that when the mother, father and aunt all came to the classroom for an observation visit M.B. appeared happy and proud. The teacher had no concerns about M.B., either academically or from a social behavioural perspective.

MOTHER’S PAST PARENTING AND CURRENT CIRCUMSTANCES [ 70 ] The mother and J.G. are the parents of B.R. born […], 1997 and J.R. born […], 1999. The mother testified that it was an abusive relationship and when they separated in 2000 Mr. J.G. trashed their place and then called the children's aid society. She denied

her home was a mess as alleged by the society. [ 71 ] However, according to the children's aid society records the society became involved in 1998 due to concerns that the mother appeared immature, did not understand child development needs, did not know how to interact with her children and general concerns about neglect.

The children's aid society remained involved until the society filed a protection application and the boys were placed in the care of the grandmother in 2002. [ 72 ] Between 2002 and 2005, the mother stated that she and grandmother were, “at each other’s throats” due to the involvement of the children's aid society and the mother’s resentment of the grandmother taking her sons.

However, they were able to put their feelings aside and the society terminated their involvement and the boys were returned to the mother’s care. [ 73 ] The mother then moved with her sons to North Bay where her father resided and then returned to this jurisdiction shortly afterwards. The grandmother was not happy that B.R. and J.R. had been returned to the mother and sought custody.

In explaining why her sons were in the care of their grandmother, the mother testified that she could not find suitable accommodations, and she just “gave up” and agreed that there be an order of joint custody with residence of her sons with their grandmother. The grandmother also obtained an order that Mr.

J.G. pay her child support of $675.00 per month. [ 74 ] In cross-examination by B.F.R., the mother admitted that she had previously sworn affidavits stating that she had difficulties exercising access to her sons, that she was not involved or consulted about any decisions about them and that she had filed complaints with both the children's aid society and the police about her concerns about inappropriate discipline of her sons by the grandmother and her partner, Mr. W.S.. [ 75 ] However, the mother testified that since May 2011 things had changed.

She was getting along with her mother; she was seeing her sons more regularly and being involved in decisions about their lives. She testified that her sons wanted to live with her and she was certain her mother would allow it but she could not afford to pay for all of their extra-curricular activities. When the grandmother testified she did not agree that the boys wanted to live with their mother.

She testified that the boys considered her home their home. [ 76 ] With respect to M.B., the children's aid society report indicates that in November 2008, there was a third party report about concerns about the mother’s living conditions, stability of housing and basic supervision and parenting skills. The children's aid society worker attempted three unscheduled visits but was unsuccessful. The parents then attended at the children's aid society office and a scheduled visit was arranged.

None of these concerns were verified although the parent were cautioned about excessive alcohol consumption when the worker had observed six 24 packs of beer on the balcony. The father explained that they had just not had a chance to return the bottles. [ 77 ] The children's aid society, as outlined in the Office of the Children's Lawyer, considered the risk rating high as a result of the mother’s significant ongoing history with the society due to neglect, adult conflict, lack of supervision and the father’s historic alcohol misuse.

However, the risk was mitigated as M.B. was residing primarily in the home of the grandmother.

However, it was the society’s position that if either parent in the future was to have primary or sole custody, their plan would have to be assessed as neither parent had parented M.B. consistently and due to the historic concerns. [ 78 ] There were several other reports to the children's aid society during the course of this litigation regarding conflict between the mother and father and the mother and grandmother and reports about ongoing concerns by the mother that her sons were subject to physical abuse at the home of the grandmother.

In March 2010, B.F.R. reported concerns about all three children residing in the grandmother’s home were being exposed to high levels of adult conflict and physical conflict. The investigation revealed that the family was in constant conflict with much of the conflict being caused by the mother who attended at the society office completely out of control, swearing and unable to control her temper.

Despite some evidence that B.R. and J.R. had been subject to physical discipline the file was closed. [ 79 ] The file was opened again in December 2010, just after the birth of A.B.1, when a family home visitor from Healthy Babies contacted the society as the mother had avoided and then refused contact despite the history of concern regarding her other children, domestic violence and the mother’s mental health. [ 80 ] Dr. Slinger, who is the parents and children’s doctor, was contacted. Dr.

Slinger reported that the mother did not have mental health concerns, stating that she was unstable at times and more of a free spirit. Dr. Slinger advised that she had no concerns about the parents’ ability to parent A.B.1 and that there was a good bond between the parents and A.B.1. The file was closed as the concerns were not verified, there were insufficient concerns to commence a court application and the parents did not wish to work voluntarily with the society.

The mother explained that she only did not agree to work voluntarily as it was her understanding that the Office of the Children's Lawyer investigation could not continue if there was an open file. [ 81 ] The mother acknowledged the many moves by her and the father but she expressed that in her opinion home is where a child’s parents are and not the physical environment. She considered that it was normal to leave M.B. with her mother as a daycare provider.

She always paid her mother to care for M.B.. [ 82 ] The mother acknowledged that B.F.R. and Y.F. had being seeing M.B. since October 2009 on her court ordered access time as her only days off were Mondays and Tuesday. She further acknowledged that she gave M.B. to B.F.R. a lot of times that the father was not aware of as she did not want to fight with B.F.R.. [ 83 ] The mother also acknowledged in cross-examination that she told B.F.R. to go to court if she ever wanted to see M.B. as she was tired to fighting with her mother.

But she did not expect that B.F.R. would then attempt to obtain custody of her daughter. [ 84 ] The mother also testified that whenever B.F.R. or her mother asks to spend time with M.B. during her time, she gives it to them. But her mother will then give her time in exchange but given her current falling out with B.F.R. she will not give her any time back.

[ 85 ] When questioned about why she signed the minutes of settlement in view of her past allegations against the grandmother and Mr. W.S., and the fact that she and the father now have a three bedroom apartment, she is home full time and the father is working full time, the mother testified that she wanted to avoid a trial for M.B.’s sake and assumed that court would order the status quo to continue.

Further, she felt things had now changed and she and her mother were getting along and her mother had not interfered with her care of A.B.1. [ 86 ] In cross-examination by B.F.R., the mother agreed that she had had many periods of not getting along with her mother. She was hurt when her mother took in the father when they separated and turned against her. But she was optimistic that that they would now continue to get along. However, she confirmed that since the incident on March 22, 2010 she had not been welcome in her mother’s home.

She also revealed that she had ovarian cancer that was now in remission but that the first time her mother heard about her illness was in the courtroom. EVIDENCE REGARDING M.D.B. [ 87 ] The father is 41 years old. He has been employed with the Canadian Pacific Railway since 1988. His income is now $70,000.00. He was off work from 2009 to August 2010 with an unknown ailment but during that time was in receipt of disability insurance and then unemployment insurance. [ 88 ] He is now working in Hamilton close to the parents’ new residence. He works Mondays to Fridays from noon to 8:00 p.m.

Therefore the minutes of settlement which provide that M.B. would reside with him and the mother on every week-end from Friday after school to Sundays at 3:00 p.m. would allow him more time with M.B. and would be more convenient than the current

schedule that requires a great deal of driving. [ 89 ] The only explanation he offered for being unable to obtain permanent housing for almost two years, from November 2009 to September 2011, was that he had a bad credit rating. [ 90 ] With respect to his other children, S. and A.B.2, he described a good relationship and that he had joint custody. He offered no explanation as to why he only saw them sporadically other than that they lived in Midland, Ontario.

He did not offer any evidence that he supported them. [ 91 ] With respect to M.B., he acknowledged that she had a good relationship with B.F.R. and that M.B. looked up to her. He denied that M.B. had spent 90% of her time with B.F.R.. He testified that there was always a reason she was staying there. He also denied that M.B. had spent significant time with her grandmother except that she was there for daycare.

He denied that he or the mother had delegated their parenting to either B.F.R. or F.F.R.. [ 92 ] With respect to A.B.1 he testified that he did not want anyone around her as he did not want history to repeat itself. He just wanted a normal life with him and the mother raising her. He agreed in cross examination that A.B.1 had slept at B.F.R.’s and F.F.R.’s home but only a handful of times.

When further pressed he agreed that A.B.1 had spent 18 days at F.F.R.’s home but explained it was because they had no place to be and that it was only to be for one overnight but was extended. [ 93 ] Despite all of his allegations against the grandmother and W.S. he felt that things had changed since August, they all get along now and agree on so much.

When it was pointed out that in his trial management conference brief, dated August 2011, he was still asking for sole custody of M.B., he then testified that things had changed since they signed the minutes of settlement on November 23, 2011. [ 94 ] The father testified that the minutes of settlement would allow him and the mother to take M.B. to church on Sundays which he is unable to do now. Both he and the mother are the only Catholics in the family.

When questioned by myself if he had ever asked B.F.R. to allow him to take M.B. to church, he replied that he had not and that he and the mother do not regularly attend church. He acknowledged that B.F.R. had taken M.B. to church on occasion. EVIDENCE REGARDING F.F.R. [ 95 ] F.F.R. 55 years old. In addition to B.F.R. and T.M.L. she has a son D. who lives in North Bay and from whom she is estranged. [ 96 ] F.F.R. separated from her husband M.R. in 1993 when T.M.L. and B.F.R. were teenagers as a result of her relationship with W.S..

T.M.L. and B.F.R. lived with their father in North Bay for about three and half years after the separation and then returned to live with F.F.R.. [ 97 ] According to F.F.R., the children's aid society became involved with T.M.L. because she was not providing the necessities for her sons. There were lots of problems in the relationship between J.G. and T.M.L.. T.M.L. was charged with assaulting J.G. with a weapon.

She agreed in cross-examination by B.F.R., that the boys had been removed from T.M.L.’s care twice and that she had taken pictures of T.M.L.’s home and that it was a disgrace. [ 98 ] According to the evidence of F.F.R., after B.R. and J.R. were returned to T.M.L. and went to live up north with her, they called her every night wanting to come back to live with her. In January 2006, T.M.L. and the boys came back to live with her. In March 2006, she obtained an order of joint custody with the boys to live with her.

[ 99 ] F.F.R. testified that there were problems with access as T.M.L. would not give her notice or come late. But now things are better. She testified that although the boys love their mother, her home is their home. According to F.F.R., the boys have attention deficit disorder and some learning disabilities and see the school counsellor once a week. J.R. is currently on a waitlist for a psychiatrist and is taking medication. Both are involved in many activities including football, soccer and use to be involved in competitive swimming. [ 100 ] W.S. is 57 years old and resides with F.F.R..

He is retired so he does many of the errands. He drives the boys and M.B. to school and drives the boys to their football practices and games. He leaves the disciplining up to F.F.R.. He testified that he did not know if the boys had attention deficit disorder but felt that if you spent time with them going over their school work, they did well. [ 101 ] As part of the Office of the Children's Lawyer report, the school principle reported that based on B.R. and J.R.’s performance, she believes that F.F.R. is a solid and consistent caregiver.

She reported that the boys have no issues but have in the past been provided with social work support. [ 102 ] F.F.R. confirmed that she is strict with the boys and pointed out that B.F.R. has lived with her until 2002 and had no problems with how she disciplined the boys. She agreed that she has on two or three occasions hit the boys with a slipper on their hands or bum or hit their hands.

For example, in January 2010, she had an argument with J.R. since T.M.L. was sleeping in her car and had nowhere to go, J.R. was asking why she couldn’t let her move in and when he refused to go to his room, she hit him with a slipper. She acknowledged that she had been told by the children's aid society that they did not condone hitting. [ 103 ] With respect to her relationship with A.B.1, she confirmed that the first time she saw her granddaughter was at one of the court attendances. She testified that if she did not see A.B.1 a lot, she would not get close to her.

She was already raising three of T.M.L.’s children and did not want to raise another child. She did take care of A.B.1 for about a month as the parents were locked out of their motel apartment and needed to find a place to live. She sometimes spends a day with her one or two times a month; she is more like a grandmother. In her opinion, the parents are better with A.B.1 and interact more with her.

At the time of the Office of the Children's Lawyer investigations, she had said that the parents could not put their own needs above M.B., but she sees there is a difference now with A.B.1. [ 104 ] With respect to the minutes of settlement, she believes they are in M.B.’s best interests as it allows her to spend more quality time with her parents and will give her an opportunity to get to know them. She felt the parents would be flexible since if they wanted time with M.B., she can always exchange time them. But she does not expect the same flexibility with B.F.R..

She did foresee there could be problems with the minutes of settlement as they did not specify what happened if Monday was a statutory holiday, was not specific enough about Christmas holidays and now saw that the clause regarding delegation was not workable. [ 105 ] With respect to decision making, she felt that parents were Catholic and so should make decisions regarding religion and they had always made the medical decisions, so that should continue. [ 106 ] F.F.R. disputed that she only wanted primary care of M.B. for financial reasons as initially alleged by both of the parents.

She confirmed that she received child support for B.R. and J.R. and claimed M.B. on her tax return as she was the primary caregiver. EVIDENCE REGARDING B.F.R [ 107 ] B.F.R. is 38 years old. She has been employed as a behavioural therapist for autistic children for the last seven years and previously worked in a daycare. She has a degree as an early childhood educator. She currently works in Hamilton and earns about $40,000 to $50,000.00 per year. She works Monday to Friday and has two shifts either 8:30 or 9:00 a.m. to 4:30 or 5:00 p.m. or 11:00 or 11:30 a.m. to 7:00 or 7:30 p.m.

Her late shifts are usually Tuesday, Wednesday or Thursday but it can vary. [ 108 ] She has been in a common-law relationship with Y.F. since June 2006 but they have known each other for many years. They separated for about six months in 2008 due to strains about finances. During the separation they continued to see each other. In November 2008 they began to reside together again in a townhouse they rented that was close to M.B.’s school.

B.F.R. commutes to work in Hamilton that takes about a half hour. [ 109 ] B.F.R. testified that she had always been close to and took an active role raising B.R. and J.R. and then did the same when M.B. was born. She considered herself as the primary caregiver and that her mother was the daycare provider. She did not feel that the parents ever did the job of parenting. She would go to M.B.’s doctor’s appointments and went to the hospital when M.B. was there to remove the tubes in her ears and when she had pneumonia.

She attended all of M.B.’s parent-teacher meetings and curriculum night. [ 110 ] M.B. has her own bedroom in their home with two bunk beds and B.F.R. usually sleeps with her when she stays with them.

M.B.’s best friend, Dylan, lives in the townhouse complex. [ 111 ] B.F.R. called as witnesses Dylan’s mother, a co-worker, her father and Y.F.’ former employer who all confirmed that M.B. spent a great deal of time with B.F.R. and Y.F., that they had a strong relationship with her and that M.B. loved being with them and usually did not want to leave their home. [ 112 ] With respect to the minutes of settlement, B.F.R. felt that it did not provide M.B. with the stability she needed and that she and Y.F. were best able to provide a stable and consistent home environment for her.

Although she was prepared to agree that M.B. be raised as a Catholic and continue to attend Catholic school, she felt that M.B. should have the right to choose her religion when she was older. She also was concerned that a majority decision making regime was not workable as it would depend on the alliances between the parties. She had some concerns about the parents making final decisions about M.B.’s medical issues as she felt she had some possible hearing issues that needed to be investigated.

She also expressed concern that in the past, the father had not ensured that M.B. was covered on his extended medical benefit plan.

[ 113 ] In the past she had always been very close to her mother and had an on and off relationship with T.M.L.. But now she did not have a relationship with any of them. [ 114 ] B.F.R. agreed that all parties needed to be involved in M.B.’s life and all decisions should be made in her best interests. However, given the parents’ past lack of responsibility, she felt a responsibility to provide M.B. with stability. EVIDENCE REGARDING Y.F. [ 115 ] Even though Y.F. is not a party to these proceedings, the focus of much of the evidence was about him.

The mother and counsel for the father and grandmother spent more time cross-examining him and making allegations against him than against any of the parties. He was subject to questioning outside of court proceedings although he was not cross-examined on any of the statements made during the questioning. He filed a Form 35.1 non parent affidavit, which was an undertaking he gave, and that included a criminal record check that confirmed he did not have a criminal record. [ 116 ] Y.F. is 50 years old and had been in a relationship with B.F.R. for about 13 to 14 years.

But he has known the family for a long time as he was friends with B.F.R.’s uncle. He described his relationship with B.F.R. as a good one. When they separated for about 6 months, he was under a lot of pressure. The company he had worked for 20 years had shut down and he was thinking of buying into a business. Even during the separation, he and B.F.R. saw each other and he continued to see M.B.. [ 117 ] Prior to the litigation, he thought he had a good relationship with F.F.R. and W.S. and felt he was part of the family. B.F.R. was very close to F.F.R. and he and B.F.R. would spend time at F.F.R. and W.S.’s home.

But there was a lot of fighting between F.F.R. and T.M.L. and between T.M.L. and B.F.R.. T.M.L. would spend a lot of time at their residence. He became very attached to M.B. due to the time she spent with him and B.F.R.. [ 118 ] The allegations against Y.F. involve allegations of sexual impropriety, his “obsessive” relationship with M.B. and his verbally and emotionally abusive relationship with B.F.R.. There are also allegations about inappropriate care of M.B. by Y.F. and B.F.R..

a) Sexual abuse allegations [ 119 ] T.M.L. reported that in March 2009 while she was bathing M.B. she told her that Y.F. touched her, he had stuck his finger up her bum and that it hurt. T.M.L. called the father but M.B. did not say anything to him. She also told her parents and took M.B. to see Dr. Slinger. According to T.M.L. and F.F.R., Dr. Slinger said that just because you don’t see anything doesn’t mean nothing happened. However, none of the parties called Dr. Slinger as a witness to confirm this comment was ever made. Further, Dr.

Slinger was interviewed as part of the children's aid society investigation and the investigation by the Office of the Children's Lawyer and she was never reported to have made such a comment. [ 120 ] About three weeks later, F.F.R. called T.M.L. and told her that M.B. told her that Y.F. had touched her “pee pee.” [ 121 ] T.M.L. reported that M.B. then made another disclosure to her. T.M.L. did not know what to do so she called her boss, spoke to his wife and called the police anonymously. [ 122 ] T.M.L. then told B.F.R. what M.B. had said.

B.F.R. agreed not to leave M.B. alone with Y.F. although she did not believe anything happened. They then spoke to Y.F. who denied he had ever touched M.B. inappropriately. [ 123 ] The parents testified that they took M.B. to Dr. Slinger again and she found a urinary tract infection and felt that was why M.B. was saying her “pee pee” hurt. [ 124 ] F.F.R. testified that in about November 2009, W.S., M.D.B. and F.F.R. were in M.B.’s bedroom when she was bathing her doll in a baby bath and put the sponge between the doll’s legs and said that this is what Y.F. does to me.

When W.S. testified he stated that he had never seen or heard M.B. make any sexual abuse allegations, he only heard about them second hand. The father did not testify about or confirm that he saw the November incident. [ 125 ] Y.F. testified that F.F.R. told him not to worry about the accusation by T.M.L. since T.M.L. had made a similar accusation years ago accusing W.S. of bathing with B.R. and J.R..

According to Y.F., M.D.B. also told Y.F. that he did not believe the allegation as he had seen F.F.R. telling M.B. to show them her doll and what Y.F. did to her, and M.B. had said, “You know Nana what you told me.” [ 126 ] In November 2009, Y.F. called the children's aid society himself as he was devastated by the allegations made against him ten months prior in March 2009, but was told they couldn’t start an investigation since no one filed a complaint. [ 127 ] On December 23, 2009, M.D.B. reported that Y.F. had inappropriately touched M.B. to the children's aid society.

He testified that he had been told by someone in the courthouse that if he did not report the allegation, she would do so. B.F.R. testified that the father became upset because she had confirmed that sometimes M.B. called Y.F., “Dad.” [ 128 ] Carlijn Moester, a social worker with the Halton children's aid society investigated the allegation. She testified that she had multiples interviews with M.B. at F.F.R.’s home and then at school. With respect to the allegation that Y.F. had tickled or touched her genitals, M.B. pointed to her knees and legs as the places Y.F. tickled her.

M.B. was asked about all of her caregivers and she expressed no concerns about any of them.

[ 129 ] Ms. Moester interviewed the parents. She testified that initially T.M.L. told her that M.B. had made the disclosure to F.F.R.. T.M.L. and M.D.B. then reported that M.B. had made a disclosure in early 2009. They had not reported the allegation to the children's aid society as they managed as a family and B.F.R. agreed not to leave Y.F. alone with M.B.. [ 130 ] Ms. Moester testified they told her that M.B. would make disclosures at bath time and because of a “pattern of concerns”, M.D.B. called the children's aid society. Ms.

Moester instructed the parents not to let Y.F. have contact with M.B. during her investigation. [ 131 ] Ms. Moester testified that it became a “thicker story” over the three month investigation. First it was the disclosure in December 2009; the parents added a disclosure in early 2009 and then a disclosure in 2008. She met with the parents for three and half hours on the first interview and would have expected all of the details would have been provided but each time she met with them, they added information. T.M.L. was “selective” in what she told her and lot of responses to her questions were not relevant.

When asked to sign a consent so she could speak to Dr. Slinger, T.M.L. refused but M.D.B. signed the consent. [ 132 ] Ms. Moester was cross-examined by counsel for F.F.R. as to why she did not interview F.F.R. although she was present in the home. She testified that she did not speak to F.F.R. privately as the allegation was not against F.F.R. and there was a concurrent investigation against her because of allegations of physical abuse with respect to B.R. and J.R.. However, she testified that if F.F.R. had a concern she could have spoken to her or called her. [ 133 ] As part of the investigation, Ms.

Moester spoke to Dr. Slinger who reported that in September 2008 the parents initially reported that they were concerned that Y.F. had inappropriately touched M.B.. M.B. was assessed a few times by Dr. Slinger and was diagnosed with a urinary tract infection. Dr. Slinger had no information to suggest that M.B. had been inappropriately touched. Ms. Moester testified that she would have expected Dr. Slinger to report the allegations to the children's aid society but she never did. [ 134 ] As part of the investigation Ms. Moester also interviewed Y.F. and B.F.R.. [ 135 ] Ms.

Moester had concerns about the parents’ timelines and their lack of reporting. Based on her interviews with M.B. and the parties and the information from Dr. Slinger, she concluded that the allegations had not been verified. [ 136 ] Y.F. was cross-examined about the allegations; he denied them and also denied that he was so upset about the allegations that he told B.F.R. to pursue custody of M.B.. However, he did testify about the enormous toll the allegations had on him. Firstly, he was not permitted contact with M.B.. Secondly, he lost $40,000.00 as he had gone into business delivering milk to schools.

When the allegations surfaced, he felt he had to tell his partner for fear such allegations could jeopardise their business. He then had to leave the business and once the investigation was completed and the allegations were not verified his old business partner hired him but now he was only an employee. [ 137 ] During the testimony of F.F.R., she testified about another disclosure made by M.B. to her in March 2010, which was after the children's aid society investigation was completed.

When asked why she did not report the incident, she testified that she did not feel that she would get a result from the children's aid society as there was no verification. [ 138 ] M.D.B. testified that in February or March 2010, M.B. was playing with her doll and demonstrated how Y.F. touched her. According to M.D.B.’s testimony, T.M.L., F.F.R. and W.S. were present but no one reported it to the children's aid society.

M.D.B. explained that he did not think there was a point based on the prior investigation. [ 139 ] F.F.R. testified that for the last one and half years, M.B. has said on Monday nights, after she returns from staying at B.F.R.’s home, that, “I’m so glad that no one touched my pee pee” and then they do a “pinky swear”. As was pointed out by B.F.R. in her cross-examination, F.F.R. had never referred to these statements in any of her affidavits. The only explanation offered by F.F.R. was that when M.B. was interviewed before she “clammed up” and she was not going to pry.

F.F.R. confirmed that she had also not reported these statements to the children's aid society. [ 140 ] During this startling testimony I advised the parties that I was considering if I had a duty to report these statements to the children's aid society.

I determined that since there was no allegation of any inappropriate sexual touching that I determined that I was not required to report to the children's aid society but advised the parties that I did have a concern about emotional harm to M.B.. [ 141 ] The father agreed that when interviewed as part of the Office of the Children's Lawyer investigation he stated that he did not believe Y.F. was inappropriate with M.B. and believed that F.F.R. coached M.B.. Now he testified that he was not 100% sure. F.F.R. testified that she was not sure 100% what to believe.

T.M.L. testified that she can’t say she does not believe the allegation and tried not to think about it.

When I asked why then, a stipulation was not put in the minutes of settlement they all signed that Y.F. not be left alone with M.B., the only response was that there was no proof he had done anything and that based on the terms of the minutes of settlement, Y.F. would not be spending much time with M.B. alone. b.) Allegations regarding Y.F. relationship with M.B. [ 142 ] As proof of Y.F. being selfish and obsessed with M.B., the parties gave many examples of various incidents and statement he made and Y.F. he was cross-examined about some of these.

However, there were several allegations that were made by the parties that were never put to Y.F. in cross-examination and therefore the weight to be attributed to those allegations is diminished in accordance with the rule in Browne v. Dunn. [ 143 ] Y.F. did not deny that he said that he loved M.B. the most and explained he said this because of how the other parties were acting. For example, he was sickened by F.F.R. trying to help M.D.B. get custody of M.B. against T.M.L..

Another example, T.M.L. began to call Y.F. “second daddy” to aggravate M.D.B. and then F.F.R. said this also. [ 144 ] He did not deny that he once told T.M.L. that he would buy M.B. from her for $10,000.00. But he testified that it was just

a joke and T.M.L. laughed at the time. [ 145 ] He did not deny that he said that he hoped one day to walk her down the aisle. Again, he said this because he felt M.B. had been with him and B.F.R. for 90% of the time and he felt that close to her. He testified that when the time came, M.B. could choose. [ 146 ] A great deal of evidence was presented about M.B.’s first day of school. T.M.L., B.F.R. and Y.F. had gone the week before for her introduction to the school.

For the actual first day of school, M.D.B. had taken off work and had planned to walk M.B. to school with W.S. who would be picking her up so he wanted to meet the teachers. According to F.F.R. and M.D.B., Y.F. called the house and spoke to M.B. who told him that her father was taking her to school. According, to Y.F., F.F.R. called him and told him M.B. wanted him to walk her to school so he went over to her house. [ 147 ] On the walk to school, M.B. wanted to be picked up which Y.F. did, but he then was told by M.D.B. and W.S. to put her down.

W.S. and M.D.B. were walking behind apparently taking a video of the entire incident. M.B. started to cry and was hanging on to Y.F. through the school fence. There was a commotion between M.D.B. and Y.F., Y.F. told M.D.B. he “would clean his clock” and then Y.F. left. [ 148 ] Y.F. testified he was heartbroken about the incident and testified that he should not have lost his temper with M.D.B.. [ 149 ] M.D.B. testified that he was “robbed” of his day and so many other moments. He testified that Y.F. and B.F.R. always put themselves above him and T.M.L..

When cross-examined, he agreed that when M.B. saw Y.F. she ran to him and did not struggle to get out of his arms. [ 150 ] M.D.B. and T.M.L. also testified that Y.F. and B.F.R. were selfish and unfair. They gave the example of their request for M.B. to spend Saturday overnight to Sunday for Father’s Day. They testified that B.F.R. would only agree if they exchanged another day with her. B.F.R. testified that when they would not agree to an exchange, she offered them time on Father’s Day but that was also refused. M.D.B. confirmed that their offer was unacceptable to him as he wanted M.B. overnight.

B.F.R. further testified that when M.B. tried to call M.D.B. on Father’s Day he did not call her back until 6:00 p.m. [ 151 ] There were other examples provided by T.M.L., M.D.B. and F.F.R. of what they termed Y.F. selfish, childish and obsessive behaviour. They testified that he would call her to sit with him and B.F.R. when they were watching a soccer game, he would get upset if M.B. would not sit with him at birthday parties or when they were at a restaurant. Y.F. testified that the others were upset because M.B. would run to sit with Y.F. and B.F.R. during her soccer games.

He was only cross-examined about some of these other alleged incidents and denied being upset or that they happened. [ 152 ] F.F.R., T.M.L. and M.D.B. all testified that they found Y.F. interaction with M.B. to be strange. For example, he would sit for hours and play with her and allow M.B. to paint his fingernails, he would get down on all fours to play with her, he called her “Fiona” from the movie Shrek and she had started to call herself that name. M.D.B. testified that he was “haunted” by this and felt that Y.F. and B.F.R. were trying to change M.B.’s name.

He was upset that he did not know M.B.’ best friend was Dylan who lived in B.F.R. and Y.F.’ townhouse complex and that they called her “Kenzie”, as a nickname which also upset him.

c) Allegations against Y.F. treatment of B.F.R. [ 153 ] F.F.R. testified that she did approve of Y.F.’s treatment of B.F.R.. She testified that he would swear at her, call her a “fat bitch” and “lazy” and was not affectionate to her. She testified about a camping trip she took in the summer of 2007 with B.F.R. and Y.F. and with B.R., J.R. and M.B. when she heard Y.F. tell B.F.R. “to get off her fat ass and get him a beer.” [ 154 ] Both Y.F. and B.F.R. denied these allegations.

Further, several of the witnesses called by B.F.R. testified that they had never witnessed Y.F. calling B.F.R. inappropriate names or swearing at her. The witnesses described a good relationship between Y.F. and B.F.R..

d) Allegations against B.F.R. and Y.F. parenting [ 155 ] F.F.R. testified that M.B. was always tired on Monday nights when she returned from spending overnights with B.F.R. and Y.F.. When cross-examined by B.F.R. as to why then she would have agreed in the minutes of settlement to let M.B. stay with her on Mondays and Tuesdays, F.F.R. replied that her first concern was that the parents have quality time with M.B. and if she had her way M.B. would stay with her Mondays to Fridays. None of the parties called any third party evidence to substantiate these allegations.

For example, M.B.’s teachers or even her report card might have confirmed that she was tired on Mondays. Further, when the teacher was interviewed as part of the investigation by the Office of the Children's Lawyer, no such concern was expressed. [ 156 ] F.F.R. and M.D.B. both complained that M.B. had no routine or rules and had bad eating habits when she stayed with B.F.R. and Y.F.. They complained that they were indulgent with her. B.F.R. testified about their routines.

Neither B.F.R nor Y.F. were cross-examined about these allegations. [ 157 ] F.F.R. and W.S. both testified that B.F.R. dropped M.B. off late on Monday mornings. F.F.R. produced an email she sent to B.F.R. outlining all of the times she had been late. B.F.R. did not agree that the times were accurate. F.F.R. agreed that the temporary order required B.F.R. to drop M.B. off at her home at “about 7: 30 a.m.” B.F.R. testified that she dropped her off from 7:30 to 7:45 a.m. B.F.R. offered to drop M.B. at school but F.F.R. wanted to comply with the terms of the order.

B.F.R. explained that M.B. was slow in the morning because she was worried that the clothes she was dressed would not be returned and that frequently she did not have her pack back and would need to go into F.F.R.’s house to get it.

[ 158 ] T.M.L. testified that B.F.R. streaked and dyed M.B.’s hair and also had her ears pierced without her permission. B.F.R. denied that she did not have T.M.L.’s permission to dye or streak M.B.’s hair but agreed she only had permission to pierced M.B.’s ears one time and she pierced them twice. [ 159 ] F.F.R. testified that she sent an email to all the parties to obtain permission to enrol M.B. in winter soccer on Sunday mornings. Everyone agreed but B.F.R.. B.F.R. testified that the soccer was not at a scheduled time on Sunday mornings and she, Y.F. and M.B. usually plan activities on Sundays.

She found a soccer program at 9:00 a.m. in Mississauga but the other parties would not agree as it was too far and inconvenient. On the last day of trial, I was advised that F.F.R. had enrolled M.B. in the soccer program she had chosen in any event. [ 160 ] F.F.R. made other complaints such as that she had gone to B.F.R.’s to drop M.B. off in December 2011 and their place was a mess. She then compared it to the state of T.M.L. and M.D.B.’s home that was now very tidy.

B.F.R. testified that the mess was due to her and Y.F. still being in the process of wrapping their Christmas gifts. [ 161 ] F.F.R. testified that she had already put M.B. on a waitlist for counselling as compared to B.F.R. who had not taken this initiative. B.F.R. explained that she was told by the clinical investigator to wait until the trial was over before making any arrangements for counselling. [ 162 ] There were many other incidents and accusations made by the parties against each other. I have reviewed many of them but not each and every one but assure that parties that I have considered them all.

The incidents referred in the judgement exemplify the conflicts between these parties and how their shifting alliances colour their perceptions of each other. RULING REGARDING WEIGHT TO BE PLACED ON OFFICE OF THE CHILDREN'S LAWYER REPORT [ 163 ] It is submitted by counsel for the grandmother and father that little or no weight should be given to the report of the Office of the Children's Lawyer as the parties disputed some of the facts and all of the parties disagreed with the recommendations.

It is submitted that the investigator could not be cross-examined on the underpinnings of her recommendations that M.B.’s primary residence be shared between B.F.R. and the grandmother, that the parents’ parenting time be reduced to only one overnight, that in the event of a disagreement regarding decision making that B.F.R. have final say except for education which was to be the joint decision of B.F.R. and the grandmother. It is submitted that much has changed since the investigation namely, the alliances have now changed and the parents have been able to obtain stable housing.

It is unknown what effect this would have had on the recommendations. [ 164 ] I agree that no weight should be put on the recommendations in the Office of the Children's Lawyer report due to the lack of the ability to cross-examine which is crucial to test the strength of those recommendations. There were also issues that could have been clarified and explanations provided to understand the basis for the recommendations.

The parties were also not able to determine if the investigator’s recommendations would have changed because of the recent falling out between B.F.R. and the other parties or if the recommendations regarding the parents’ time would have changed as a result of the parents obtaining permanent accommodations. [ 165 ] However, I do not agree that the observations and information from collaterals should be accorded little if any weight. Much of the historic information in the report was not disputed.

The report contained important third party information from M.B.’s school and doctor and third party information about the children's aid society and police involvement with the family members. The parties had the opportunity to dispute this information in their own evidence. The parties could have called any of the third parties as witnesses if they wished to dispute the information allegedly provided in the report or if there was further information they wished to elicit.

Except for Carlijn Moester, a social worker with the Halton children's aid society who was summoned by B.F.R., none of the parties called any of the collaterals contacted by the investigator. Further, the only neutral observations of M.B. with the respective parties are contained in the report.

Although B.F.R did call several witnesses to provide their observations of M.B. with her and Y.F. these are friends, co-workers and neighbours. [ 166 ] I am therefore prepared to consider the information and observations in the Office of the Children's Lawyer report subject to the caveat that it was not subject to cross-examination and subject to what weight is given to a party’s different version of events or any explanations provided. [ 167 ] Except for some minor disagreement with the sequence of events and some errors in dates, none of the parties expressed any major concern with the factual content of the investigation at the time the information was gathered.

The mother, father and grandmother now distance themselves from some of the comments they had made in view of their changed positions at trial. However, they did not dispute that those comments were made but just that things have now changed. ANALYSIS [ 168 ] The governing test in all disputes regarding custody and access is a determination of what parenting arrangements are in a child’s best interests.

Section 24 (2) of the Children’s Law Reform Act, R.S.O. 1990,c.C.12 , lists a number of matters that a court must consider in determining the child’s needs and circumstances pertinent to a determination of best interests. The test and meaning of the terms “best interests” is specific to each child and her experience and has been explained as follows: “The meaning of “best interests” is as fluid as each child’s circumstances.

What is certain, however, is that the focus of the exercise is on the child.” [1] [ 169 ] I now turn to examine the factors of section 24 (2) of the Children's Law Reform Act , supra, as they apply to this case. I do not intend to again review in any detail the factual findings I have made but apply them in the context of the factors I must consider in determining what parenting arrangements are in this child’s best interests.

a) The love, affection and emotional ties between the child and the parties [ 170 ] It is not disputed that M.B. loves all of the parties and their partners and her siblings and that they all love her. [ 171 ] In assessing the strength of M.B.’s ties to the parties, I have considered that during almost all of her life, her parents have delegated their parental responsibilities to either the grandmother or the aunt. It is clear from the evidence of the history of the residential arrangements that M.B. lived with either the grandmother or the aunt.

Depending on whether or not the mother was supporting the aunt or the grandmother, her position changed as to which one of them spent more time with M.B.. Depending on the father’s relationship with the mother or whether or not he supported the grandmother, his position changed as to how much time M.B. spent with the grandmother. His position always varied regarding the character of the grandmother and her parenting abilities depending on his particular alliance.

The father also blamed the mother for allowing M.B. to spend time with the aunt during their court ordered designated parenting time. [ 172 ] The parents executed the minutes of settlement that acknowledge that M.B.’s primary residence should be with the grandmother and that she would only be in their care on weekends. The mother testified that she expected this arrangement to be final.

Therefore, the parents have acknowledged that from their perspective the child’s best interests are met by being in someone else’s care and that their role is simply as “weekend” parents. [ 173 ] Based on the observations of the interaction between M.B. and the parties as set out in the report of the Office of the Children's Lawyer, she is attached to all of the parties but more comfortable in the presence of the grandmother and aunt.

I have considered that some of M.B.’s discomfort with her parents may be as a result of the parents’ lack of suitable or consistent accommodations. [ 174 ] I did not have the benefit of any expert evidence on this issue. However, simply based on the time M.B. spent with her parents and their lack of assuming a parenting role in her life, I find that M.B. has closer emotional ties to the grandmother and the aunt than to her parents. I also find that M.B. is extremely attached and has a close emotional bond to the aunt’s partner, Y.F.. [ 175 ] I have also considered M.B.’s relationship with her siblings.

Based on the evidence regarding the busy schedules of B.R. and J.R., it does not appear that she currently spends much time with them when she is residing either with the grandmother or the parents. I have also considered that given the age difference between them that they would not have much in common. Nevertheless, it is important that M.B. maintain contact with B.R. and J.R.. [ 176 ] The father did not provide any evidence as to why he has not seen his own children for several years. Even if they live some distance away, he did not explain why he does not see them during the holidays.

Based on the lack of contact, I draw the conclusion that M.B. does not have a significant relationship with them. [ 177 ] M.B. does have a relationship with her sister A.B.1 that should be maintained. All of the evidence suggests that she likes playing and spending time with her little sister. But the parents have agreed that she not live with them on a full-time basis and therefore they appear to accept that some contact on weekends is sufficient for M.B. and A.B.1 to maintain their relationship. [ 178 ] B.F.R. is the godmother to B.R., J.R., M.B. and A.B.1.

She was and continues to be close to both B.R. and J.R. and was very involved in their upbringing when she resided with the grandmother. I accept her evidence that she would never interfere and would encourage the relationship between M.B. and her siblings. I also accept her evidence that she would ensure that M.B. maintains all of her relationship with the other parties. B.F.R.’s focus has always been on what is best for M.B..

She has maintained that focus throughout these proceedings and despite shifts in alliances she has always maintained that M.B. needed a relationship with all of the important people in her life. [ 179 ] This is to be contrasted by the changing positions of the parents. The father began this proceeding by requesting that the mother have no access to M.B.. The grandmother supported the father’s position. The father then changed his position and accused the grandmother of only wanting custody of M.B. for financial gain.

The mother initially claimed that the care of M.B. should be shared between herself and B.F.R., that the grandmother should only have supervised access to M.B. and that she had historically deprived her of contact with her sons. Now, the position of the parents is that the grandmother should be the primary parent and that M.B. should spend most of every weekend with them and some limited time with B.F.R. and Y.F..

Throughout these proceedings, the parents or the grandmother have sought parenting arrangements that had more to do with their particular alliances rather than what arrangements were best for M.B.. [ 180 ] The grandmother also testified that she would maintain contact between M.B. and all of the parties. But historically, the grandmother has interfered with and controlled the mother’s time with B.R. and J.R. and acted as a sole custodial parent as opposed to a joint custodial parent. She was also prepared to turn again

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