K.M. v. K.G., 2017 ONCJ 934

ONTARIO COURT OF JUSTICE CITATION: K.M. v. K.G. , 2017 ONCJ 934 DATE: 13 December 2017 COURT FILE No.: Thunder Bay FO-15-234-01 BETWEEN: K.M. Applicant — AND — K.G. Respondent Before Justice E. A. Burton Heard on September 18-19-20-21-22-25, 2017 Reasons for Judgment released on 13 December 2017 Theodora Millward........................................................................ Counsel for the Applicant Michael Cupello.......................................................................

Counsel for the Respondent BURTON J.: [ 1 ] This matter was the subject of a six-day trial concerning custody, access, and support of two children. The Applicant father Mr. M. seeks custody of 10-year old I.M., DOB 2007 […], with alternate weekends to the Respondent mother, Ms. G. Ms. G. seeks to keep the current week-on/week-off arrangement. Child support is to be determined accordingly. There is no significant argument regarding the arrangements for 17-year old X.M., DOB 2000 […], who has been living exclusively with his father for over five years and has had minimal contact with his mother. I.

Positions of the Parties [ 2 ] Mr. M. asserts that in recent years, there have been a number of significant developments in the family dynamics, such that the arrangements in the separation agreement of 2012 are no longer in the best interests of the children. These developments include the fact that he is remarried, the children are part of a blended family, X.M. has no contact with his mother, I.M. has become anxious and the fact that the parties do not communicate effectively anymore. [ 3 ] For her part, Ms.

G. originally took the position that I.M. should spend more time with her, based on I.M.’s expressed wishes. By the time of trial, she had revised her position to support the status quo. She says that there have been no developments that would warrant changing the separation agreement, and the status quo is in the best interests of the children. [ 4 ] Most of the evidence and argument at trial was about I.M. The father’s concern is that I.M.’s anxiety is tied to the relationship with her mother, which is one of inappropriate role reversal.

He alleges that the boundaries between parent and child are blurred, that I.M. is exposed to adult issues, and that I.M. is being made to feel responsible for her mother’s well-being, which cause I.M. extreme emotional distress. While I did not have any expert evidence with respect to whether a formal diagnosis of “parentification” could be made, I did have ample direct evidence of behaviours and conversations which assist me in determining what is going on in I.M.’s life,

and what is in her best interests. II. The Law [ 5 ] At issue is whether I should vary the terms of the 2012 separation agreement between the parties. My authority to do so is laid out in s. 56(1) of the Family Law Act : In the determination of a matter respecting the education, moral training or custody of or access to a child, the court may disregard any provision of a domestic contract pertaining to the matter where, in the opinion of the court, to do so is in the best interests of the child. [ 6 ] Interestingly, the language of “material change in circumstances” does not appear anywhere in s. 56.

However, in reading the whole of the section, it is apparent that unless the separation agreement was flawed from the start, the most frequent rationale for re- examining it is if the situation has changed. So, while that wording is not explicitly stated, it does provide a logical framework of analysis. [ 7 ] In determining the best interests of a child, I turn to s. 24 of the Children’s Law Reform Act . Under

Section 24, I must consider all the children’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 care and upbringing of the child; (

b) the views and preferences of the child, where such views and preferences 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 care and upbringing of the child; (

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

g) the relationship by blood or through an adoption order between the child and each person who is a party to the application. [ 8 ] Not every one of those criteria is of equal importance in every case – for instance, in the case at hand the blood relationship between I.M. and her parents is irrelevant to her best interests. As well, much of the evidence I have heard at trial is relevant to more than one criterion. The onus is on the Applicant to satisfy me on a balance of probabilities that today’s circumstances warrant changing the terms of the separation agreement in the best interests of the children. III.

Overview of the Evidence [ 9 ] K. M. and K. G. met in 1999 and were married in 2001. They separated in 2011, signed their separation agreement in January of 2012, and divorced in 2015. Their children X.M. and I.M. were born in 2000 and 2007 respectively. X.M. has been living full-time with his father since the summer of 2012, despite the week-on/week-off access that had been established for both children in the separation agreement. In June of 2014 Mr. M. became involved in a relationship with L. G-M. They were married in October of 2015, and they now live together with their four children in Thunder Bay. Mrs.

G-M. has a boy who is X.M.’s age, and a girl who is I.M.’s age. Ms. G. lives in her own home in Thunder Bay, where I.M. spends alternate weeks. [ 10 ] By all accounts, I.M. is a delightful 10-year old girl who loves her family, her pets, her friends, school, and being active. Like many young children, she can also be wilful and somewhat manipulative at times to get her way. She currently alternates weeks between her parents, with Friday exchanges, in accordance with the separation agreement. She is a good student.

However, she exhibits symptoms of extreme anxiety at times in relation to the ongoing conflict between her parents. [ 11 ] I do not intend to exhaustively cover the evidence of each witness in this section, but rather to outline the scope of each person’s testimony, to provide context for my later comments. I was somewhat frustrated by the lack of evidence in some areas, such as records that would help me accurately calculate arrears. Also, both parties referred to emails that were somehow nasty or dishonest or harassing, or demonstrative of some other point, but few were produced as evidence. A.

Family Witnesses 1 K. M. [ 12 ] K. M. is I.M. and X.M.’s father. The M. household is best described as “busy”. There are two teenage boys and two ten-year old girls in the house, although not all of them are there all of the time. His two step-children generally spend alternate weekends with

their respective fathers in Dryden. On any given day during the weeks when the house is full, schedules and activities are tracked on a calendar so that everyone can get where they need to be. Each child has his or her own bedroom. I was shown photos of I.M.’s bedroom during her father’s testimony. Family activities are encouraged, such as game nights and dinners together. I also heard that there is a strong connection between the household and Mr. M.’s extended family locally. Mr.

M. obviously loves both his children very much, and is very concerned for I.M.’s welfare, based on the things that she tells him and he observes. He has directly observed the tearful, emotional departures at access exchanges, and he is aware that she is missing school and extra-curricular activities. His own observations of the relationship between I.M. and her mother are consistent with the observations made by others, such as in the hospital reports in Exhibit 7. He has also directly witnessed dramatic incidents between X.M. and Ms. G.

I found him to be a credible witness who was doing his best to answer honestly and forthrightly. He took his time to think about answers, he asked for clarification when he needed it, he admitted his faults, weaknesses and bad decisions, and he conceded points appropriately in cross-examination. He appears to have been similarly open with the Office of the Children’s Lawyer and the Children’s Aid Society, according to the testimony of Ms. Lang and Ms. Morrison. 2 L. G-M. [ 13 ] Mrs. L. G-M. testified, mostly about the day-to-day living arrangements in their very busy home.

She and her husband are both employed full-time. Mr. and Mrs. M. both testified that the relationships amongst the various step-siblings were pretty good, and I.M. and her step-sister in particular are very close friends. Mrs. G-M. testified that her own relationship with I.M. had its ups and downs in the beginning, but they get along well for the most part. I.M. sometimes challenges her, and even recently told her “I hate you”, but after thinking about it, I.M. changed her mind. Mrs. G-M. testified that I.M. had told her and Mr.

M. that she was missing school because her mother missed her, and she had to stay home to take care of her mother. [ 14 ] Ms. G-M. was cross-examined fairly extensively on Justice McKay’s 2008 decision regarding her relationship with her son’s father, for the purpose of establishing that she had a history of trying to alienate children from their parents. I found the decision and that portion of her cross-examination to be of limited utility. The events in question were ten years ago.

It was a different relationship with a different man in a different community, and the child in question was her own, not a step-child. The arrangements reached in that decision were changed roughly a year later. [ 15 ] Mrs. G-M. also struck me as someone endeavouring to be truthful and fair in her evidence. She did get defensive during cross- examination on her prior court proceedings, but she did not gratuitously lash out at her exes or Ms. G. 3 K. G. [ 16 ] Ms. G. testified over the course of two days. A good deal of her evidence was about her educational and employment history.

She testified that she has largely been unemployed in 2016-2017, due to some physical health concerns, and because of the court proceedings – she needs to take a lot of time off work. She is looking for work and hopes to obtain an executive administrative position in the medical or post-secondary education field. [ 17 ] She also testified about the history of her relationship with Mr. M. They started seeing each other in 1999 and moved in together in her house after only a few months. X.M. was born in 2000. They moved to a different house, and I.M. was born in 2007.

Within a few years, the relationship had soured, and they separated in 2011. The separation agreement was signed in January 2012. [ 18 ] Throughout the relationship – indeed throughout most of her life – Ms. G. has suffered from generalized anxiety disorder, which she is reluctant to classify as a mental health disorder. She has taken Clonazepam for many years, as well as an anti-depressant, and has tried other medications as prescribed. Recently, she has attempted to reduce her intake of prescription medications. This is not entirely in accordance with her doctor’s advice; rather, Ms.

G. is doing what she feels is right for her. [ 19 ] Ms. G. used the terms ‘always’ and ‘never’ frequently in reference to things Mr. & Ms. M. say or do that aggrieve her, such as K. M. ‘always’ changes his mind about exchange locations. This stood in contrast to the language used by Mr. M., who used terms like ‘often’ or ‘rarely’. Throughout Ms. G.’s testimony, I found that she took many opportunities to disparage and criticize Mr. and Mrs. M. When asked a relatively straight-forward question, she would often address the answer briefly, then find a way to work in a criticism of her ex and his new wife.

For instance, when asked about how I.M. communicates with her when I.M. is at her father’s house, the answer started out talking about iPads, and diverged into “they don’t want her to talk to me”, to a time this summer when I.M. travelled with her father on the Route 66 trip. When asked whether she had practiced any particular religion when she and Mr. M. were married, she digressed into stating that Mr. M. had ridiculed her religion, and how odd it was that he now attended Mrs. M.’s church. She made several unprompted references to Mr. M. feeling he had to ‘own’ I.M.’s health card and passport. Ms.

G. testified that when I.M. is on the phone with her father he grills her about her mother’s house. She is obviously very frustrated in her dealings with the M. household and feels harassed and picked upon. [ 20 ] In the joint document book, Exhibit 7, there were police reports of two incidents in 2013 where police were called to Ms. G.’s residence, and I.M. was removed from her care. On both occasions, Ms. G. had been combining alcohol with prescription medication to the point of intoxication and bizarre behaviour. The Children’s Aid Society became involved with the family on both occasions. To her credit, Ms.

G. appears to have been quite candid with the court, the Society, and the Office of the Children’s Lawyer about her troubles with alcohol in past years, acknowledging that she drank too much on occasion, and combined medication with alcohol despite knowing better. It was a very dark time in her life. 4 Mr. and Mrs. D. [ 21 ] Ms. G.’s mother and step-father, Mr. and Mrs. D. also testified. They see I.M. two to four times per year, generally once at their place in Oakville and during two or three visits to Thunder Bay, and they speak to her on the phone regularly when she is in Ms. G.’s care. Mr.

D., who presented as a kind and gentle man, had relatively little to offer, other than to confirm that I.M. and her mother seem to

have a close relationship and he enjoys being part of their family. [ 22 ] Mrs. D.’s evidence might have been helpful had it been confined to her own observations, however, she seemed unable to help herself from taking gratuitous shots at Mr. and Mrs. M. at every opportunity. She was absolutely venomous, which is notable considering she has had no direct interaction with Mr. M. in years. For example, when asked whether she speaks to I.M. during the weeks she is with her father, Mrs. D. spat out “Nobody gets a chance to call that house”.

Another time, she referred to the father’s house as a “boot camp, it’s ridiculous”, as though she had personal knowledge of the daily routines. At one point she said that Mr. M. verbally abused Ms. G. “all the time”, then said that the abuse didn’t start until later, then said he was mentally abusive “at all times”. She holds strong opinions about the M. household despite having virtually no contact, such as “they want to be a perfect family”, and “they don’t think that a single parent household can be a family”. Although Mrs. D. and Mr.

M. have apparently never had a good relationship, it is obvious that the source of much of the poison can only be Ms. G., and it makes me wonder how much I.M. overhears. In cross examination, Ms. G. agreed that the D.s only get the information that she and I.M. tell them. I found Mrs. D.’s evidence to be of limited value. B. Professional Witnesses [ 23 ] I also heard evidence, directly and indirectly, from a number of professionals who have been involved with the family over the years.

I generally found them to be unbiased and straightforward in relating their observations. 1 Marcia Pedersen - Nurse [ 24 ] On 8 June 2016, I.M. was brought in to the emergency department by her mother. I.M. had been having an anxiety attack and telling her mother to just take a knife and kill her, among other disturbing comments. A nursing report at Tab 5 of Exhibit 7 notes “I.M. didn’t speak for herself. She allowed her mother to provide all the information.” They were sent away that evening with a recommendation for counselling. Ms.

G. brought I.M. back to the hospital the following day with another extreme anxiety attack, at which time I.M. was admitted to the youth mental health unit overnight. [ 25 ] Marcia Pedersen is a registered nurse with 15 years of experience. She works as a mental health and addictions nurse with the school board, and she works part time at the Thunder Bay Regional Health Sciences Centre as a Mental Health Assessment Team nurse. She dealt with I.M. on 9 June 2016 and assisted in the assessment process. [ 26 ] She received some of the assessment information from Ms. G., and some from I.M. directly.

She observed I.M. to be bright and articulate, though I.M. described her own mood as being mad and sad (Tab 6). I.M. was distressed because her parents are in a custody battle and her dad is trying to get full custody, and she was worried that if that happened she would never see her mother again. At one point, when told she would be in hospital overnight, I.M. went on a very disturbing discourse about needing to get home to her younger siblings, who do not exist. I.M. later downplayed it as a prank on her mother, but all the adults were disturbed by it. Nurse Pedersen was aware of Ms.

G.’s mental health issues and recommended counselling for her own anxiety, separation issues and support. She observed mother and daughter to be sobbing together. [ 27 ] In Tab 2 of Exhibit 7, in the context of a psychology interview at the hospital, I.M. revealed significant information to a David Westerback about her family relationships. Nurse Pedersen reviewed the notes from Tab 2, which were not her own but she was familiar with the process and I am satisfied I can put some weight on them as accurate business records, as with the other hospital notes in Exhibit 7. I.M. told Mr.

Westerback that she was a drama queen, more so with her mother than father, she uses tears and anger to get what she wants from her mother and feels that her mother is too lenient but her father is too strict. She feels caught between her parents. She loves them both, but she feels torn between them and is sad and stressed about court. She told Mr. Westerback that she just wants court to be over, and that she knows a lot of information about the custody issues. I.M. also said that she likes her step-mom but she just isn’t mom. Mr.

Westerback noted that I.M. made several statements to suggest she worries about her mother’s emotional well-being. I.M. said she doesn’t want her mother to cry so much, and that she feels some responsibility to make her mother’s life better. She also manipulates her mother with anger and tears, but doesn’t want her mother to give in so that she becomes a spoiled brat. Westerback noted in that context that I.M. presents or relates more like an adult than a child. [ 28 ] I.M. also told Mr.

Westerback that she wasn’t in any extra-curricular activities because of adult conflict, and she would like to be in dance class. Mr. Westerback recommended that I.M. be enrolled in extracurricular activities and meet with a counsellor who can help her process the separation, and who can advise the parents on what they need to do differently. [ 29 ] Dr. Debryshire also assessed I.M. in the course of her overnight stay in hospital. In his Discharge

Summary at Tab 7 of Exhibit 7, he noted It became apparent that the relationship between I.M. and her mother was one of concern. It appears that I.M. has a sense of responsibility and parentalization in caring for her mother, and states that this is one of the reasons why she should be discharged. There are issues with boundaries and she is capable of manipulating her mother. 2 Jan Lang – Office of the Children’s Lawyer [ 30 ] I heard extensive testimony from Ms. Janet Lang, who prepared a social work report for the Office of the Children’s Lawyer (OCL), filed as Exhibit 5. Ms.

Lang conducted interviews with I.M., X.M., the parties, Mrs. G-M., and various collateral sources including school officials and Children’s Aid Society personnel who had worked with the family. She attended both family homes on several occasions to observe interactions and conduct interviews, and also attended I.M.’s school to speak to her alone. Ms. Lang’s report, prepared in accordance with s. 112 of the Courts of Justice Act , is thorough and detailed, with documented sources of information, and she provided a number of recommendations for my consideration. Ms. Lang was not qualified as an expert witness. The

recommendations are not binding upon me, and the report is merely one piece of evidence for me to consider. [i] To distill the essence of her recommendations, Ms. Lang believes that it would be in I.M.’s best interests to live primarily with her father, with regular access to her mother. She also makes recommendations around counselling and other rehabilitative steps for the family to take. [ 31 ] I found Ms. Lang to be a helpful witness, who conceded what should be conceded and stood firm when she should. At times, she volunteered information which was not asked by counsel.

I generally found that to happen when there was more than one side to an issue and she was ensuring that both were brought to light. For instance, when being cross-examined at some length about why I.M. didn’t like living in her father’s house, Ms. Lang interjected unbidden that I.M. had also said “it’s okay at dad’s”. While unbidden, I did not find the comment unwarranted or inappropriate in the context of the examination as it was unfolding. There were several such exchanges. In any event, I have read her report and Ms.

G.’s dispute, and am well aware of the issues. 3 Chantal Morrison – Children’s Aid Society [ 32 ] Chantal Morrison is a child protection worker with the Thunder Bay District Children’s Aid Society, where she has worked for almost 17 years. She was interviewed by Ms. Lang in the preparation of the Office of the Children’s Lawyer report, and also had direct involvement with the family. Ms. Morrison’s role with this family was as an ongoing worker, assisting the family after the intake process to address the issues that were raised. Ms.

Morrison, in the course of her duties, was made aware of the hospital’s concerns from the June 2016 visits. [ 33 ] Ms. Morrison met with Ms. G. on three occasions in her home, and noted that Ms. G. seemed very focused on what was going on in Mr. M.’s home. Ms. Morrison, like Ms. Lang noted that because of the size of the house, she could not have a thorough discussion with Ms. G. because I.M. was present. Ms. G. spoke loudly and negatively about K.M. and L. G-M. while I.M. was in the next room, said that I.M. doesn’t like L. G-M., L.

G-M. is a snob, I.M. feels bad for her dad, she doesn’t want to be with her father, she loves her mother more than her father, and hates dance. Ms. Morrison could not get Ms. G. to stop speaking negatively about the M. household. [ 34 ] They discussed the fact that I.M.’s school had recommended that I.M. see a social worker, and as a result Ms. G. felt it was not necessary for I.M. to go to the Children’s Centre for counselling. Ms. Morrison also indicated that the adults would benefit from counselling, but Ms. G. said it was on hold as she was not comfortable with Mrs. G-M. being involved. [ 35 ] Ms.

Morrison also met with Mr. M. and found him to be a concerned, protective father. She had no concerns for I.M. in his household. During her interviews, she learned that I.M. loves dance. [ 36 ] In reviewing the history of the Society’s involvement with the family, Ms. Morrison noted that Ms. G. terminated the Society’s services three months after the first 2013 alcohol incident, although the worker would have preferred that the file remain open. After the July 2013 incident, Ms. G. voluntarily engaged with the Society for six months before disengaging, and there was a disagreement over the service plan. Ms.

G. believed that the plan had been altered, but Ms. Morrison testified about the process and explained that no changes had been made. Ms. G. refused to participate in the plan if Mr. M. did not also have a plan and if she was not told of its contents. The Society, of course, could not tell her if there was a plan for Mr. M., or of its contents if there was one. The final CAS involvement was in October 2015, as a result of a referral made by Mrs. G-M., and the Society found no verified concerns. [ 37 ] The Children’s Aid Society supports the recommendations of the Office of the Children’s Lawyer.

Like the OCL, the Society’s position is that although week-on/week-off custody could theoretically work for this family, it can’t work in practice while Ms. G. refuses to follow through with services that have been recommended or offered. While there were no concerns about the father or step- mother, the Society was concerned that Ms. G. was impeding I.M.’s ability to participate in extra-curricular and counselling, although they noted that she was willing to work on a voluntary basis with the Society about their protection concerns. Ms. Morrison noted that while the Society wished Ms.

G. would get counselling for herself too, Ms. G. was not willing to do so because she was concerned about Mrs. G-M. being part of the sessions. [ 38 ] My observations of Ms. G. during the trial struck me as consistent with the observations of Ms. Lang and Ms. Morrison: Ms. G. expends a lot of mental energy thinking about the other household, and draws her own conclusions about their actions and motivations regardless of the source of her information. IV.

Best Interests Issues Raised by the Evidence For ease of reference, I have broken down my judgment into several subjects that I see as the topics of concern in this extended family, as they assist me in determining the best interests of the children. These topics are all relevant to more than one of the s. 24 criteria. A. Lack of Communication Between the Parties [ 39 ] The parties agree that in recent years their ability to communicate in a civil manner has deteriorated.

They agree that conversations about one thing tend to devolve into heated discussions about other, irrelevant things, and they cannot seem to stop themselves from behaving that way. Mr. M. takes some responsibility for this and acknowledges that he could do a better job of keeping his cool. Ms. G. also admits she could do a better job of it, but primarily points the finger at Mrs. G-M.’s influence as the complicating factor that has led to the corrosion of the parental relationships. [ 40 ] I believe that I.M., being an intelligent little girl, is fully aware of how her mother feels about L. G-M. Ms.

G. describes Mrs. G-M. as being “very difficult with me” but does not seem willing to acknowledge any responsibility for her own contribution. She minimizes her own role and responsibility in the conflict, acknowledging that while sometimes she responded inappropriately, that was generally in response to goading. She refers to L.

G-M. as “the instigator of all this” but when asked about her own role, she states “If they would just leave me alone, everything would be fine.” She states that she just wants to be left alone and for the harassment to stop, but she has presented very little evidence of harassment, just mutual enmity. In the OCL report at page 5, Ms. G. stated that “90% of

their marriage is about getting her”. There are other examples throughout her evidence exemplifying the difficulty she feels in communicating with Mr. M., because of Mrs. G-M. According to Mrs. G-M., she has only spoken directly to Ms. G. on a handful of occasions. On the other hand, one of the few emails I did see, Exhibit 16 dated 2 September 2017, showed Ms. G. referring to Mrs. G- M.as Mr. M.’s “master”. [ 41 ] A Route 66 trip was raised as an example of Mr. M.’s failure to communicate with, and his disregard for, Ms. G. Mr. M. was never asked about it by either counsel.

No Browne and Dunn objection was raised. Mr. M. does not seem to deny travelling with I.M. from time to time, so the trip probably did happen and is an example of disrespectful behaviour on his part, but ideally he should have been asked about it in cross-examination. [ 42 ] Neither household does a very good job encouraging I.M. to communicate with the other while she is in their care. Ms. G. testified that when I.M. is at one house, she does not call the other (although she also testified that when I.M. is on the phone with her father it becomes a ‘drilling session’).

To her credit, she recognized that she herself had been grilling I.M. about life at her father’s house, but stopped when she realized it was wrong. [ 43 ] The parties agree that they are currently unable to communicate with each other, but they need to figure that out, whether via a computer program or a communication journal or some other means to ensure a civilized exchange of information. Neither parent has acted particularly responsibly or put I.M.’s interests completely ahead of their own vitriol in their communications.

Both parents have acted shamefully by not promptly notifying the other of important events, such as out-of-country vacations, or the hospital visit. This needs to change immediately. They also need to sort out possession of important documents. Both parties testified that I.M. does not communicate much with the other when she is visiting. This also needs to change immediately. [ 44 ] Ms. Lang strongly recommends a condition for police enforcement, and seemed to be of the understanding that the police might get involved in helping make the weekly exchanges.

I am not inclined to get the police involved, unless a particular exchange becomes so acrimonious that they are required to intervene to keep the peace, or unless one parent refuses to exchange the child. In the last five years, while the exchanges have not been trouble-free, there has only been one occasion where the parties felt that calling police was necessary, and on that occasion the mere presence of police was sufficient to prevent escalation. Since the exchanges will be taking place in a public place, and given the history of the matter, I am not satisfied that a police enforcement condition is necessary.

B. Relationship Between I.M. and Her Mother [ 45 ] Ms. Lang strongly asserted, based on her direct observations and encounters as well as her collateral sources, that I.M.’s relationship with her mother was causing significant distress to I.M., as the roles of parent and child were distorted. Ms. Lang testified that Ms. G. puts pressure on I.M. and makes her feel responsible for her mother’s physical and emotional well-being, and I.M. told her that sometimes they cry together because her mother feels sad when I.M. is not around. Ms.

Lang reported that I.M. said things like “without me mom would be gone and I would be gone”, or that her mother said life would be over, and that her mom can’t live without her. Based on her observations and conversations, Ms. Lang asserts that the mother confuses her own needs for I.M.’s. Ms. G. testified that when I.M. doesn’t want to leave, she assures her that she has plenty to do to keep her busy, and not to worry about leaving her alone. [ 46 ] Ms. G., her mother and step-father all described the relationship between I.M. and her mother as close.

I.M. is ten and is only now starting to sleep in her own bed, instead of with Ms. G. She and others describe that I.M. holds her mother’s hand constantly in public, they’re “attached at the hip”, and “so in love with her mother”, “she would die without her mother. I.M. follows her mother to the bathroom and must sit next to her on the couch. Ms. G. says that I.M. “always wants to feel hugged, reassured verbally that I love her and she loves me.” I have heard evidence of tearful, sobbing departures from her mother’s house on exchange day and on the phone.

I have read evidence that I.M. feels her mother needs her to look after her. I also have the observations of hospital staff observing the interaction between mother and daughter, highlighting how they seem to feed into each other’s emotional anxiety. I.M. herself has expressed concern that her mother is too easily manipulated and that she will end up a spoiled brat. She also told Jan Lang that if she is not able to be with her mother, her mother has told her daily that “she’d be gone”.

Sometimes they cry together, and her mother tells her that she can’t live without her and that she really needs her. [ 47 ] The overall impression I was left with by this aspect of the evidence was that the relationship between I.M. and her mother is not a healthy close parent-child relationship, but rather an emotionally fraught interdependence. C. Relationship Between I.M. and Her Father [ 48 ] Ms. Lang made it clear that the father’s home is not perfect. I.M. perceives her father as being very strict, and Mrs. M. as being very controlling.

The father has done things that have not been ideal, such as telling X.M. that his mother had gone into his savings account, or goading Ms. G. in conversations and emails. Ms. Lang attributes many of the difficulties in the father’s home to the adjustment required to blend two families with two teenaged boys and two pre-teen girls. However, despite the growing pains, Ms. Lang observed that the parent-child relationships in the home appear well-adjusted and appropriate. The children are aware of and generally abide by the boundaries that are set by the adults.

She observed that I.M. in particular appears to recognize limits in her father’s house, but tests them in her mother’s, such as the tantrum over being denied a meal at Subway, which led to the June 2016 hospitalization. Mr. M. supports the children in extra-curricular activities, and recognizes how much I.M. enjoys them. [ 49 ] I am satisfied that Mr.

M. and his wife have taken seriously the recommendations that have been made to them by professionals along the way, including trying to get I.M. into counselling, moderating their own conversations within the home, and arranging more alone-time for father and daughter. There are some issues in the father’s household between I.M. and others. At times she appears to dislike her step-mother, and sometimes seems to really like her, but consistently states that L.G-M. just isn’t her mother, which of course she is not and never can be.

The M.s are big believers in talking, and counselling, and encourage their children to talk things out with themselves or with professional help as need be. The children are expected to take on certain age-appropriate responsibilities on a daily basis, and to follow a schedule. Discipline often involves taking electronics away, and sending people to cool down rather than hashing out disagreements in the heat of the moment. Both parental figures are involved in discipline and family discussions, if they are home. I

found that both Mr. and Mrs. M. took care to be restrained in their testimony with respect to criticizing Ms. G., except when asked direct questions about areas of contention. Mrs. G-M. agrees that her relationship with Ms. G. is strained, but testified that neither she nor her husband speak negatively about her when I.M. might hear, and they have no desire to alienate Ms. G. [ 50 ] The discipline between the two houses is fairly similar – deprivation of electronic devices – but Ms.

G. feels that the father’s house is too strict, and agrees that he probably thinks she is too lenient. [ 51 ] At the end of the day, I believe the father will do the better job of ensuring a healthy relationship between I.M. and her mother and extended family than the mother would do if the situation were reversed. He and his wife both believe in the importance of maintaining parental bonds after separation, as evidenced by the regular visits and communication between Ms. G-M.’s children and their fathers. Ms. G. on the other hand appears to have an unhealthy negative fixation on the other household. D.

School and Extracurriculars [ 52 ] Although she is a good student, I.M. has missed a lot of school over the years. Ms. G. admitted in her testimony that most of the absent days are while I.M. is in her care, and testified that most of them were related to I.M.’s anxiety over going back to her father’s home at the end of the week. Despite the anxiety being serious enough to keep I.M. out of school, Ms. G. did nothing to seek help for that anxiety. Mrs. G-M. testified that I.M. has told her that she stays home sometimes to take care of her mother. In the dispute to the OCL report, Exhibit 14 paragraph 10, Ms.

G. said that I.M. is afraid to leave her because she’ll be alone – in testimony she explained that I.M. isn’t ‘scared’, she just ‘doesn’t want’ to leave her alone. Mr. M. testified that the children have to be really sick to avoid school in his home, and the attendance records exhibits establish that indeed I.M. does attend more school while in his care. In his household, if a child is too sick to go to school, they’re too sick to have fun, and this seems to influence their assessment of how sick they actually feel.

One of a parent’s most fundamental duties is to get a child to school, and if there is a recurring problem that interferes with this, then it is the parent’s duty to address the problem promptly. [ 53 ] Both parties, and Ms. Lang, were concerned about I.M. not attending extra-curricular activities. Jan Lang reported that I.M. said she loves dance, “it makes her feel better about court, divorce, everything.” Ms. G. told Ms. Lang and the CAS workers that I.M. didn’t want to go to dance anymore – whether because she just didn’t want to go, or because her father’s family would attend is unclear.

The father testified that he has signed I.M. up for, and has paid for, extracurriculars that Ms. G. has subsequently cancelled. Ms. G. has said that I.M. hasn’t wanted to participate and Mr. M. has then cancelled her enrollment. Ms. G. also said that she didn’t believe […] studio was the best place for I.M. to dance – she was interested in keeping I.M. in dance, but not at that studio, on Ms. G.’s terms. Mr. M. was never examined on the sequence of missed dance classes and whether he took I.M. out of dance. Ms. G. agreed that lack of communication was to blame for the missed dance classes. E.

Exposure to Adult Conflict [ 54 ] A common concern among the professionals involved with the family, and among family members, is that Ms. G. shares too much adult information with I.M. For instance during one of the CAS interviews, I.M. mentioned that her mother talked to her about her (Ms. G.’s) ‘boyfriend problems.’ Mrs. G-M. also mentioned this. I.M. was involved directly in negotiations over Christmas holidays and family vacation planning. I.M. is involved too deeply in adult topics, such as being told that Mr. M. was trying to ‘take her away’, and the dispute over Christmas access. Ms.

G. confirmed that I.M. knows that her father is ‘trying to take her away’ because she has spoken to her about the court proceedings. I.M.’s primary stress in hospital was over the court proceedings, and the fear that she would be ‘taken away’ and would never see the other parent again. [ 55 ] Ms. G. feels a great deal of animosity towards Mrs. G-M. and feels that she is the source of virtually all the current problems in the extended family relationships, and I.M. is obviously aware of her mother’s feelings. One example that especially stands out is that I.M. was apparently aware of Mrs.

G-M.’s prior court proceedings. Specifically, Ms. G. testified that I.M. was afraid that L. G-M. was using her father just like she did to her exes, and that she’ll use him until she gets what she wants from him and then leave him. How on earth would I.M. have any knowledge of this other than through Ms. G.? I find it very worrisome that Ms.

G. was motivated to find the court decision in the first place, and more so that I.M. was aware of it. [ 56 ] I do not need expert evidence to tell me that these topics are inappropriate, stressful and damaging for a young girl to hear and cope with. [ 57 ] As previously identified, the professionals involved with the family are concerned about Ms. G.’s focus on what goes on in Mr. M.’s household. Ms. G. has stated that she believes that Mr. and Mrs.

M. are ‘out to get her’, that they borderline stalk her, that they’re trying to eliminate her from I.M.’s life, and the source of all the problems in the group relationship is L. G-M. She believes that Mrs. G- M.is ‘80%’ of the reason I.M. had to be hospitalized in June. Her concerns are not supported by the medical evidence. I believe that Ms. G.’s focus on Mr. M.’s household negatively impacts her ability to parent I.M. Given the evidence I have heard about the size of her house, the direct observations Ms. Lang and Ms. Morison made during the interview process, and the evidence of the grandmother Mrs.

D., I.M. is very much aware of what her mother thinks of the father’s household. Of interest, a great deal of Ms. G.’s information about the other household seems to come from I.M., and she seems to accept it without reservation. Ms. G. completely rejects the possibility that I.M., intentionally or otherwise, was telling her what she wanted to hear, or that she does not get the whole story from I.M. She believes that Mr. M. controls X.M.’s thoughts and behaviour, but does not agree that perhaps she has some influence over I.M.’s. [ 58 ] Mr. M. is not innocent of inappropriate behaviour.

During the CAS interviews, it came to light that he and his wife had discussed Ms. G. and the court proceedings within I.M.’s hearing, although not with her directly. After having it flagged as inappropriate, they testified that they changed their practices to ensure that they restricted their discussions to times and places when I.M. was not present – either she was not in the house, or they would leave the house such as going for a walk. The change was reviewed by CAS and found to be appropriate. It is also apparent that Mr. M. has dug in his heels and been difficult with Ms.

G. on occasion, for instance not letting her see I.M. on Mother’s Day. He testified that he wasn’t willing to agree to Ms. G.’s terms, but admitted that she has granted him extra access for special occasions.

F. Counselling and Mental Health Issues [ 59 ] Several professionals who have worked with the family or I.M., including the CAS, the hospital, the school and the OCL, have recommended counselling for I.M. and the adults. Mr. M. indicated his full willingness to participate, and that he has signed I.M. up every time, but Ms. G. has not followed through. Perhaps there has been some confusion around who was supposed to take what steps at one point, but certainly not at every step. For his part, Mr. M. is enrolled in a course this fall for high-conflict separations.

It is unfortunate that he has not taken such a course prior to this, but he testified it is only offered twice a year and he was unable to get into the spring session. [ 60 ] Ms. G. testified several times that she disagreed with counselling recommendations that have been made to her. For instance, she recognized that the only way the counsellor at Dr. […] office would get candid information from X.M. would be if the parents were not in the room, but was then upset that the counsellor would not share that information with the parents, which would seem to defeat the purpose.

She also believed that she and K.M. should attend counselling together first without L. G-M., and was unwilling to participate unless it was on her terms. [ 61 ] Ms. G. did not sign any of the necessary consents to release her mental health records for trial. She testified that she did not believe her mental health records were relevant, and that a blanket consent would release far more information than anyone would need to see about her physical health. As a result, no one has been able to follow up with any health-care provider about any counselling Ms. G. claims to have taken. This seems to be a theme in Ms.

G.’s testimony – making up her own mind about what is appropriate, despite the recommendations or advice of various professionals. Ms. G. does not believe that her diagnosed generalized anxiety disorder impacts her ability to parent I.M. She is weaning herself of her medication, partly with her doctor’s approval and partly without – again, indicative of making her own determination in the face of professional recommendations. Her disorder may or may not be a factor in her relationship with I.M., but her lack of insight into that possibility truly causes me concern. [ 62 ] In keeping with Ms.

G.’s response to other professional suggestions, when the Smith Clinic was recommended to her when she was hospitalized after an alcohol incident in 2013, she declined to follow up because, she says, it was not her family doctor’s recommendation and therefore she did not feel it was necessary. Ms. G. testified that she did all the counselling with another counsellor that that counsellor felt was necessary, which was only one session – however, since she did not sign the consents to release this information, there is no way to confirm this with the counsellor.

She states that she is committed to getting help with communicating with Mr. M., despite years of difficulty, for I.M.’s benefit, but stipulates that Mrs. G-M. needs to stay out of it at the beginning. As of the week of trial, Ms. G. was on the wait-list to start counselling with a local agency in late September 2017. She did take the Alcohol and Other Drug counselling sessions recommended by the Children’s Aid Society in 2013 and found them helpful, but said she generally knows what a counsellor is going to say because of her education and experience, and already knows what she needs to do. [ 63 ] Ms.

Morrison confirmed that although the Society wished Ms. G. would pursue the services the hospital had recommended, Ms. G. was not willing to do so because she was concerned about Mrs. G-M. being involved. The Society noted that in February of 2017 that Ms. G. was not interested in working voluntarily with them any further, as she was less interested in mitigating their child protection concerns than in focusing on what was happening in the other household.

I note that the Society cleared the G-M. household of any concerns during each evaluation. [ 64 ] Quite apart from the issues that the adults need to resolve within and among themselves, I.M. has been in desperate need of professional assistance for years and it has not happened. After she was hospitalized in the Adolescent Mental Health Unit in June of 2016 for anxiety, the hospital recommended follow-up counselling, however, it has not happened, in part because it is Ms. G.’s personal opinion that Mrs. G-M. should not be initially involved, contrary to professional opinions. At trial Ms.

G. was asked “is it because of your strong feelings that I.M. hasn’t been in counselling?” and she responded “It’s because K. M. is K. M. and L. G-M., he can’t separate that.” Ms. G. testified that prior to the hospital visits in June 2016, she did not seek any medical help for I.M. despite I.M.’s escalating anxiety over exchanges and specifically said she did not bring I.M. to the family doctor. Later, she changed her evidence and said that she did in fact bring I.M. to see Dr. […] in March 2016, and they discussed coping mechanisms.

This visit was not documented in the doctor’s records, according to the source documents referenced in the OCL report – in fact, a doctor’s appointment for 2 March 2016 for ‘anxiety’ was noted as a no-show. [ 65 ] As an aside, a fair bit of time in the evidence was spent discussing Ms. G.’s struggles with alcohol which resulted in police and CAS involvement in 2013, as examples of her inability to parent I.M. These were explained as bad reactions between alcohol and new medication.

I do not put much weight on this evidence in determining her ability to parent I.M. in 2017, other than to note that her response to proffered professional assistance was similar – she did what was recommended until she no longer felt it was necessary, according to the Society. [ 66 ] My biggest single concern throughout the entire trial, was Ms. G.’s lack of insight into the “parentification” issue raised by the hospital, CAS and Ms. Lang, and the correlated need to get herself and I.M. into counselling.

She simply did not understand how the term applied to her relationship with I.M., and in the last 15 months she did not seek any further explanation from the professionals in order to learn how to address their concerns. She disregards the opinions of professionals, such as Dr. Derbyshire, because they are not living the situation, have not spent enough time gathering information, or have discounted the influence of the father’s household. She dismissed the hospital’s identification of this concern, saying that once one member of the assessment team started saying “parentification”, they all started using it.

She believes she has a normal loving relationship with I.M., and that Ms. Lang and Ms. Morrison are biased against her, in part because Mrs. G-M. works in the same field. Regardless of whether she accepts the concerns that were raised, her unwillingness to even try to understand them worries me, because it demonstrates an inability to recognize I.M.’s needs. G. Wishes of the Children [ 67 ] In assessing the significance of a child’s wishes, the following are relevant: (

i) whether both parents are able to provide adequate care; (ii) how clear and unambivalent the wishes are; (iii) how informed the expression is; (iv) the age of the child; (

v) the maturity level; (vi) the strength of the wish; (vii) the length of time the preference has been expressed for; (viii) practicalities; (ix) the

influence of the parent(

s) on the expressed wish or preference; (

x) the overall context; and (xi) the circumstances of the preferences from the child’s point of view. [ii] While the wishes of a child may be informative, they are by no means determinative. 1 X.M. [ 68 ] X.M. seems to be doing well in his father’s home. There has been an adjustment period for everyone as the blended family has sorted itself out, but he is in Grade 12 and working part-time. His father has been working with X.M.’s academic struggles, including considering an Independent Education Plan if appropriate, but X.M.’s schools have said he does not need one – he just needs to focus on his work.

The one consistent difficulty in X.M.’s life is his relationship with his mother. It is not clear to me how the relationship broke down, but X.M. does not currently want anything to do with her, and it upsets him to speak with her or have online contact even indirectly. For instance, regarding the Instagram incident, X.M. told Ms. Morrison that he was upset that his mother had looked at his account, and felt that his mother was stalking him online. [ 69 ] Ms. Lang reported, and Ms. G. confirmed, that Ms.

G. found X.M. difficult to deal with when he was in her care, and she has not made robust efforts to sustain contact. Ms. G. strongly believes that Mr. M. has discouraged X.M. from maintaining a relationship with her, or at least has not encouraged him as much as he ought to. I.M. has told her, and therefore Ms. G. believes, that X.M. has said negative things about her, which she further believes could only come from his father and step-mother. Ms. G. is at a loss to explain what happened between herself and X.M.

Her best guess is that when she moved out of the family home he never felt comfortable in her new home and he simply wanted to be in his familiar surroundings. [ 70 ] Mr. M. testified, and had earlier told Ms. Lang, that he has always encouraged X.M. to stay on good terms with his mother, and to respect her. Mr. M. testified that he has not involved Ms. G. in discussions about X.M.’s life in recent years, such as school changes, because X.M. has told him that he does not want her involved in his life. Mr. M. personally observed the explosive incident which he believes caused the rift between Ms. G. and X.M.

He and Ms. G. differ on the details, but agree that it was an ugly scene and both parents can see how X.M. may have been impacted by it. He does not permit X.M. to speak negatively of his mother, particularly in front of I.M. [ 71 ] It is sad and unfortunate that X.M. does not currently have a relationship with his mother.

It seems to me that X.M. has simply made up his mind that he does not want his mother in his life at this time, and regardless of what either parent says or does, that position will not change until he is ready. 2 I.M. [ 72 ] Since I.M. did not testify, I do not have any direct evidence from her, only hearsay, as to her wishes, concerns and opinions. I have heard repeatedly from Ms. G. that I.M. wants to have her voice heard in this trial.

I have heard her voice, through the sources of a number of people who have spoken directly to I.M. – Jan Lang, Chantal Morrison, Marcia Pederson, David Westerback, Dan Esowski, Jen Stewart, etc. That is part of the point of the OCL report – to have neutral, unbiased professionals speak to the child, collect collateral information, and observe the child’s surroundings and family. To different people I.M. has stated that she thinks the current alternating

schedule is ‘perfect’ and ‘fair’, or she wants to spend more time with her mother, she doesn’t like her father’s house or she does like it, she hates her step-mother or she likes her. She has contradicted herself within minutes in some conversations, as testified to by Ms. Lang.

The one common thread throughout her conversations with concerned adults is that I.M. is extremely distressed by the ongoing court proceedings and wishes them to be over. [ 73 ] The job of the OCL in this case is to not to simply parrot what they believe I.M.’s position to be (if it could be ascertained), but to make recommendations to the court based on their interviews and observations. [iii] What is clear from the report, and the CAS, and the medical records, is that I.M.’s voice has said different things at different times.

She has not articulated a consistent, uninfluenced opinion, and given the strain she is under, I am not sure she could. She would certainly not be able to give consistent instructions to counsel because it appears she does not truly know what she wants. She is not able to determine her own best interests from inside the storm, nor would it be fair to force her to make a choice, given the level of animosity in the family.

The “September surprise” she told her mother she was planning – to march into court, spit in her step-mother’s face and announce to the court that she wants to live with her mother – clearly demonstrates that the child I.M. is not capable of recognizing or articulating her own best interests and making this level of decision. Whether consciously or unconsciously, I.M. is fully aware of how the adults in her life feel about each other, and she is clearly conflicted by the struggles the parties are engaged in. She is an intelligent, sensitive, deeply distressed little girl. V.

Application of the Law [ 74 ] There is no specific test set out in s. 56(1) of the Family Law Act when it comes to altering custody and access provisions in a separation agreement, other than determining what is in the best interests of the child or children.

It may seem obvious from the wording of s. 24 of the Children’s Law Reform Act , but the interests I must worry about are those of the children, not the parents. [ 75 ] When the parties signed the separation agreement in January of 2012, they had arrived at what appeared to be a perfectly reasonable shared-time arrangement that suited the needs of the children and the family at that time. They could not have foreseen that just a few months later, X.M. would make up his own mind and alter the arrangements his parents had made, but that is what happened and the situation remains the same today.

Between 2012 and 2017, I find that there have been several other changes affecting the family dynamics, which are relevant to the court proceedings, including but not limited to: • The children are older and have different needs and preferences than they did five years ago; • Mr. M. has remarried and the children are now part of a blended family; • The marriage, with the insertion of Mrs. G-M. into the equation, and Ms. G.’s response have changed the family dynamics;

• I.M. ’s escalating anxiety; and • The parties no longer communicate respectfully or responsibly.[iv] [76] A reexamination of the complete current factual picture is necessary in order to determine what is in the best interests of thechildren. [77] This is not an easy decision to make. Obviously Mr. M. and Ms. G. both love the children very deeply and wish nothing but thebest for them. Unfortunately, since they cannot agree on what that might be for I.M., it falls to me to assess the evidence in light of s. 24of the CLRA and come to my own conclusions about where her best interests lie.

Not every aspect of s. 24 is as relevant as others in thisparticular case, and no one factor in the statutory definition of a child’s best interests is given statutory preeminence.[v] In this case,many of the family’s issues pertain to more than one s. 24 criterion. [78] Both houses provide long-term stability for both children. There is no indication that either parent plans to leave the ThunderBay area, their living arrangements are stable, the residents in the households are stable, and parental employment is stable (although Ms.G. has been unemployed for the past two years, she is employable).

X.M. has lived exclusively with his father since 2012, with limitedcontact with his mother. There is no benefit to disrupting that arrangement at this point, when he is 17 and doing well in his currentenvironment. The week-on/week-off arrangement for I.M. has been in place for roughly five years now, give or take a few months hereand there where I.M. lived exclusively with her father while her mother sorted out personal issues.

That arrangement represents stability,but for reasons articulated elsewhere in this judgment, I am not satisfied that stability ought to take precedence over the other concernsthis arrangement poses. While it is extremely important for I.M. to maintain a strong connection to each parent, I have concluded thatcontinuing the equal time arrangement is not in her best interest. Both family units are stable and permanent, but the balance of time shespends in each place needs to be adjusted. [79] As discussed above, I.M.’s own wishes are not at all clear.

Unlike her brother, who made a clear and unequivocal statement atage 12 when he moved in with his father and cut ties altogether with his mother, I.M. has vacillated in her views. She is suffering undertremendous pressure, both real and perceived, and is simply too young and too deeply immersed in the situation to be able to determineher own best interests. [80] Both parents should be able provide I.M. with guidance, education, necessaries of life, and to look after any special needs shemay have. Unfortunately, this has not proven to be the case.

I.M. misses considerably more school when she is with her mother thanwhen she is with her father. The evidence indicates that often these absences are related to I.M.’s belief that she needs to stay with hermother to make her feel better, or ramped-up anxiety about leaving her. I find that the mother has not facilitated I.M.’s participation inextra-curriculars such as dance, which I.M. says she loves, and has expressed reluctance to do so unless it is on the mother’s terms. Several professionals have recommended counselling and assistance to Ms.

G. to help her deal with her own issues and I.M.’sbehaviours, but Ms. G. has not participated except on her own terms. Most importantly, despite observing escalating anxiety andconcerning behaviour on I.M.’s part, the mother has done very little to get help for her because what is being suggested is not on herterms. [81] Among the criteria articulated in s. 24 of the CLRA, my greatest worry lies with (d). I.M.’s parents love her very much, andI.M. loves them back. My worry lies in the emotional relationship between I.M. and her mother, Ms. G.

I am cautious of making afactual conclusion of “parentification”, as I do not have an expert opinion of a diagnosis before me. However, I have abundant evidenceof the nature of their relationship, including that I.M. has told a number of people that she feels responsible for her mother’s well-being,that she stays home from school to look after her mother, that she manipulates her mother to get what she wants, and “without me momwould be gone and I would be gone.” At age 10 I.M. is just starting to move out of her mother’s bed at night. I.M. has told people aboutMs.

G-M.’s legal battles with her ex-husbands, has indicated that her father is “trying to take her away” from her mother, and has beenparty to adult conversations regarding vacations and access. She has been exposed to far too much, and far too much pressure has beenplaced on her. [82] I have no concerns that either household poses a risk of physical harm to I.M. My concern is entirely for her emotional well-being. With respect to what standard of evidence I need, in order to properly assess the risk of harm and I.M.’s best interests, I canexpress the law no better than Justice R. Spence in Chukwunomso v.

Ransome: I am aware of the recent decision in the case of N.V.C. v. Catholic Children's Aid Society of Toronto, 2017 ONSC 796 , [2017]O.J. No. 525. In paragraphs 101 and following of that decision, Wilson, J., seems to suggest that a court is precluded from deciding thata child is at risk of emotional harm without evidence from an expert. If I correctly understand that to be the learned judge’s reasoning, Imust respectfully disagree. Courts will often make decisions about emotional harm – or risk of emotional harm – to a child based onpanoply of evidence. That panoply may include an expert’s report.

But an expert’s report is only one piece of evidence. In my view,the presence or absence of an expert’s report regarding harm, or potential harm to a child, is neither conclusive nor, in many cases, evenmandatory in order to permit the court to arrive at a correct conclusion. For example, in Simcoe Muskoka Child, Youth and FamilyServices v. L.V., 2016 ONSC 7039 , Quinlan, J. stated at paragraph 18: “Expert evidence will sometimes [Spence J.’semphasis] be required to establish a risk of emotional harm, but it is not a necessary prerequisite”.

As well, see paragraphs 31 and32 of the decision of Parfett, J. in Children's Aid Society of Ottawa v. P.Y., (ON SC) for a similar opinion. Furthermore, courts are required to consider not only the available evidence in any case – expert or otherwise - but, as well, judgesshould employ intelligence and common sense in drawing logical inferences from their general understanding of life itself. Thisapplication of intelligence and common sense is often referred to as taking judicial notice.

An example of this application of judicialnotice in the context of satisfying a court that emotional harm has occurred, can be found in the decision of MacAdam, J. in A.B.C. v.Nova Scotia (Attorney General), 2011 NSSC 475 , where the learned judge stated in paragraph 50: “Experts are not requiredto establish that ABC suffered psychological and emotional harm as a result of the assaults by Lalo.

The court is entitled totake judicial notice that such effects can be expected [Spence J.’s emphasis] albeit they may not occur in every case.”[vi] [83] The decision with respect to I.M. is extremely difficult, but I am forced to conclude that the status quo cannot remain in place. It is detrimental to I.M.’s well-being to continue to spend so much time in her mother’s care at this point in her life. Ms. G.’s lack of

insight into, and concomitant failure to take responsibility for, how her own behaviours are affecting I.M. is very disturbing. Her lack of cooperation with services offered to herself and I.M. are damaging to both of them in the short- and long-term. Her fixation on Mr. M.’s household, and Mrs. G-M. in particular, is unhealthy and not conducive to maintaining a good relationship between I.M. and her father.

Her failure to put I.M.’s needs above her own, in terms of school, extra-curriculars and counselling for both of them, are indicative of an inability to provide a stable, supportive home, guidance and routine, for her daughter, and she cannot currently provide for I.M.’s special needs. I.M. needs to be in a home where she can be a ten-year old child, with structures and routines that ensure she gets to school and to activities she enjoys, as well as the professional help she needs. [ 84 ] The Court has to view what is in the best interests of the child, not the parents.

I am cognizant of the ‘maximum contact’ principle, however, it is only one factor for me to consider in determining a child’s best interests. The amount of contact that is in a child’s best interests might not be the most contact possible. If other factors show that it would not be in the child’s best interests, the court must fashion a parenting plan that focuses on the child’s individual needs. [vii] [ 85 ] Under the current circumstances, I do not believe joint custody is practical. The parties do not currently communicate well, for which both are at fault, but I find that Ms.

G.’s obsession with the father’s household is a substantial contributor to the problem. Mr. M. needs to be able to make decisions for I.M. without fighting over every detail. He needs to keep Ms. G. apprised of his decisions, but expecting her participation is not realistic, looking at the history of communication between the parties. In particular, their inability to communicate about getting help for I.M. has left her adrift and without resources for over a year.

To quote a 2011 decision of our Superior Court of Justice: In the wrong family circumstances, a joint custody order can perpetuate hostilities, indecision, and power struggles. Children- particularly children already exposed to the upset of family breakdown- look to their parents for love, guidance, stability, protection, and consistency. They need to have confidence that adult decisions will be made quickly, properly and uneventfully. [viii] [ 86 ] I am concerned that the more time I.M. spends with her mother, the more likely it is that her father’s role will be diminished in her life due to emotional pressures.

Ms. G. fears that she will lose I.M. like she has lost X.M. if Mr. M. gains custody. I find that Mr. M. is genuinely interested in insuring that I.M. maintains a strong relationship with her mother and will do everything he can to foster it; I am not convinced that Ms. G. would do the same, given her level of animosity. I also find it is in I.M.’s best interests for her to maintain strong bonds with her brother X.M., and her step-siblings. [ 87 ] With respect to X.M., my decision is much easier. He lives with his father and wants nothing to do with his mother.

Indeed, there is evidence that he becomes extremely upset when his mother simply inquires after his well-being. Given his age and the length of time this situation has been going on, it will simply have to get better when he feels the time is right. In the meantime, there is no point in pretending that joint custody is realistic or feasible for the parties, or beneficial for X.M. I truly hope that at some point in the future he and his mother can repair their relationship. In the meantime, his father will have custody, and access will be in X.M.’s discretion. VI.

Child Support and Arrears [ 88 ] In the separation agreement, Mr. M. agreed to pay $505/month to Ms. G. as child support, encompassing both children, at a time when week-on/week-off access was envisaged for both X.M. and I.M.. He also paid $295/month for spousal support, which is to continue until 31 December 2018 according to the agreement. Mr. M.’s total payments under the separation agreement were therefore to be $800/month. [ 89 ] The reality of the situation is that partway through 2012, X.M. moved in permanently with his father. Theoretically, once X.M.’s residence changed, Mr.

M. ought not to have continued paying Ms. G. any support for him. Indeed, she ought to have commenced paying support for X.M. According to the guidelines, at an average annual income of $30,000 year, that would amount to $249/month payable by Ms. G. to Mr. M., or roughly half of the $505 that Mr. M. had originally agreed to pay for the two children. To further complicate the situation, Mr. M. did not update Ms. G. annually about his income so that support could be recalculated. He just kept paying – sometimes the full $800, sometimes less, but he paid something each month.

Neither party saw fit to do anything to change the payments until this action was commenced, and neither party kept particularly good records. Mr. M. believes he has overpaid child support in the amount of $19,074. Ms. G. believes he is in arrears in the amount of $8,621.68. [ 90 ] I see no reason to go back further than 2014 for the purposes of calculating arrears. The father earned $93,815 in 2014, $101,754 in 2015 and $90,570 in 2016. The mother earned $33,300, $30,285 and $6,115 in those same years. I do not have 2017 information for Mr. M.

At all material times X.M. lived full-time with the father, and I.M. split her time equally between the parents. [ 91 ] To calculate arrears, I have used the guideline amounts that Ms. G. ought to have paid for two children, as offset by the guideline amount that Mr. M. ought to have paid for I.M. I then referenced the actual amounts that Mr. M. had paid each year, using the figures provided by Ms. G. in Exhibit 13 – neither party kept good records, but hers seemed somewhat more detailed.

Finally, I subtracted the spousal support in the amount of $295/month or $3,540/year that he had paid, to determine what he had actually paid for child support, and calculated arrears accordingly. I have attached an Excel chart to this judgment to show the calculations. [ 92 ] Using those figures, I concluded that Mr. M. owes Ms. G. $2,626 for 2014, $1,467 for 2015, and $3,612 for 2016, for a total of $7,705 of arrears over three years. [ 93 ] Ms. G. has been unemployed for most of 2016 and 2017, despite a history of professional executive positions.

In fairness, she has had some physical health problems that have rendered her unable to work during certain periods of time. However, she has declined to look for work while the court proceedings have been pending, as she feels she would have had to take too many days off to sustain a job. This is not reasonable for two full years. Given her health problems, I will accept that she was unable to work in 2016, but I am going to impute to her a minimum wage income for 2017 and for the purposes of calculating child support going forward. This will be

recalculated when the parties exchange financial information each June. [94] I do not have updated information for Mr. M., so I do not know his income or what he has actually paid in 2017. However,based on an imputed minimum wage for Ms. G., and using his 2016 income, I calculate that he owes $446/month or $5,352 for the yearof 2017 for child support, plus $295/month or $3,450 for spousal support. VII. Conclusions [95] I am satisfied that Mr.

M. has demonstrated that there have been several major developments in this family, such that theseparation agreement of 2012 is no longer in the best interests of the children X.M. and I.M. These changes include the marriage, theblended family, the breakdown in communication, and I.M.’s anxieties.

The lack of communication between the parties, the relationshipbetween I.M. and each parent, her exposure to adult conflict, the struggle to get her into counselling, and the situation with her educationand extra-curricular activities have all convinced me that a significant change is needed in her life. [96] Going forward, Mr. M. will have custody of both X.M. and I.M. Ms. G. and X.M. will have access at X.M.’s discretion. Shewill have access to I.M. every second weekend, starting after school on Friday to Monday morning when school starts. This weekendaccess will start on Friday 12 January 2018.

She will also have access to I.M. every week for one evening, starting the week of 8January, on a day to be agreed upon by the parties or I will impose it. I am giving Ms. G. two separate periods of uninterrupted extendedaccess in the summer – one for one week, and one for two. The father will also have two weeks uninterrupted in the summer. I havealso laid out access arrangements for Christmas, Easter, birthdays, Mother’s Day and Father’s Day. [97] Because we are so close to Christmas, I do not intend to impose a major disruption on the family immediately.

I have drafted anorder that spells out access over the Christmas holidays, however I am willing to take input from the parties before it is finalized. I invitethe parties to review my draft order, and if they agree that any aspects of it should be varied to suit the family’s preferences, I willcertainly take that under advisement. [98] Mr. M. must continue to pay spousal support in the amount of $295/month until December of 2018. He owes child supportarrears of $7,705 for three years, and may owe more for 2017. Commencing 1 February 2018, based on an imputed income of minimumwage for Ms. G., she will owe Mr.

M. child support in the amount of $360 for the support of the two children X.M. and I.M. I will takesuggestions from the parties as to how they wish to address the balance going forward and incorporate it into my order, and a supportdeduction order will issue accordingly. [99] Costs will be dealt with later. Released: December 13, 2017 Signed: Justice E. A. Burton [i] The OCL report is not an expert report nor an assessment. An OCL report, largely, is a fact-gathering exercise. The statute expresslyprovides for an investigation to be made and for a report that includes recommendations.

In the present case, the most pertinent aspectsof the OCL report relevant to the motion are the observations of the respondent’s demeanor, some of the statements made by the childrento the clinical investigator and statements made by the parties to the clinical investigator. Taylor v. Clarke, 2017 ONSC 1270. [ii] Decaen v. Decaen, 2013 ONCA 218 . [iii] A.G.L. v. K.B.D., (ON SC), [2009] O.J. No. 180 (SCJ); Filaber v. Filaber, [2008] O.J.

No. 4499 (SCJ). [iv] Ongoing conflict and actions running completely counter to the spirit of the custody order can be, in themselves, enough to constitutea material change: Zinck v. Fraser, 2006 NSCA 14 , 22 R.F.L. (6th) 334 (N.S.C.A.). Worsening conflict can constitute amaterial change. Wreggitt v. Belanger, (ON CA); Hackett v. Sever, 2017 ONCJ 193. [v] Wilson v. Wilson, 2015 ONSC 479. [vi] 2017 ONCJ 121. [vii] Young v. Young, (SCC), [1993] 4 S.C.R. 3, at pp. 117-18, per McLachlin J. See: Casselman v. Noonan, 2017ONSC 3415. [viii] Izyuk v. Bilousov, 2011 ONSC 6451 , 2011 CarswellOnt 12097 (S.C.J.) at para. 504.