ONTARIO COURT OF JUSTICE DATE: 2021·10·31 Sudbury COURT FILE No. D 381/19-001
BETWEEN:
KRISTIN LONG Applicant
— AND —
NOAH MITCHELL- HOURIE Respondent
Before Justice John Kukurin Heard on Oct 1, 2021 Reasons for Judgment released on Oct 31, 2021
Counsel: George Fournier, for the applicant Nicola Munro, for the respondent
KUKURIN J.:
1These are my Reasons on a motion by the Respondent father, Noah, not properly filed or tabbed as yet in the Continuing Record, and on a motion by the Applicant mother, Kristin, filed at Tab 6 of the Continuing Record.
2The motions concern the child Jaylan Mitchell-Hourie born […], 2018.
3The motions are for temporary orders that each parent is seeking in the proceeding between them. It was commenced by Kristin’s application first returnable Jan 20, 2021. Noah has filed an Answer in which he makes claims that are inconsistent with those made by Kristin in her application. A settlement conference took place on April 6, 2021 and some notes of the settlement conference judge are available and of interest in these motions, as both counsel referred to this conference.
The Mother’s Claims
[4] The mother’s claims in her application are for
- Full (and presumably sole) custody of Kaylan
- Child Support Guideline (CSG) table child support
- Special expenses child support under s.7 CSG
- Restraining order against the father, Noah
[5] In her motion, Kristin’s claims are for interim orders for
- Exclusive decision making authority (DMR) for Jaylan
- Parenting time (PT) by Noah to be at the Supervised Access Centre
- Noah to deliver a sworn financial statement with attachments
- Noah to pay interim child support
- costs
The Father’s Claims
[6] In his Answer, the father asks for final orders for
- Decision making responsibility (presumably sole)
- Any parenting time of the mother to be supervised
- Release of all criminal records of Kristin (unspecified from whom)
- Release of all mental health records of Kristin (unspecified from whom)
- Kristin to provide the father’s counsel with Jaylen’s contact information
- Police enforcement to ensure access occurs (unspecified whose access)
[7] In his motion, Noah asks for temporary orders
- That his parenting time be scheduled on a week about basis
- Disclosure of Police records of Kristin from Sudbury Police
- Disclosure of Kristin’s medical records from Health Sciences North
- Appointment of OCL (presumably counsel) with social work assist
8It was agreed that the arguments before me would be restricted to interim (temporary) DMR, PT and OCL involvement.
Preliminary Considerations
9It was just as well that other claims were deferred as there are problems relating to such claims. It would, in my view, have been better if the conference that was held had been a case conference rather than a settlement conference. The proceeding would have been better managed, and we would not be into November without any interim orders to stabilize this proceeding. Moreover, there are today, ten months later, still no financial statements, or any financial information filed. Finally, the father, Noah, makes no claim for a final order for HIS parenting time, yet seeks a temporary order for it. He can only seek a temporary order for a claim he has made in his application.
Rule 14. (1) A person who wants any of the following may make a motion:
- A temporary order for a claim made in an application.
10In addition, no non-party custodian of any records has been served, a pre-requisite for any order for production of such records. Finally, the father’s counsel has still not filed the father’s motion, or his supporting evidence, which is still loose in the court file and not in the Continuing Record, and this is despite two judicial orders that it be formally filed. In short, from a procedural point of view this case is a bit of a mess.
11To top it all off, the father’s counsel demands that it be put on the record that she has not had an opportunity to review and respond to the mother’s motion, yet she insists on arguing both motions today. The mother’s counsel wants it on the record that the mother’s motion was served Sept 24, 2021, although this is short of the service time required under the Family Law Rules for such motion. The mother too insisted that her motion be argued today.
Office of the Children’s Lawyer
12This is a procedural claim sought by Noah. If he seeks a social work assist, he clearly wishes an order appointing counsel (under s.89 Courts of Justice Act) for Jaylan. He gives no evidence why such order should be made now or at all. It would be more appropriate and more helpful in this case that OCL involvement, if any, be by way of a s.112 order for an investigation and report by a Clinical Investigator appointed by the OCL. However, that is not what was asked for. Additionally, there is no actual evidence from either side either supporting or opposing such order. In addition, I heard not one word in the arguments of either party about the involvement of the OCL.
13This is not a situation where I feel that OCL involvement is either necessary or desirable, at least not at this time. Once the parties have fleshed out what the evidence will actually be in this case, can the court realistically determine if OCL involvement for a child who is not yet age 3 years is really needed. This says nothing about the delay that an OCL order, if made, and if the OCL undertakes to provide its services, will create for this case.
14I decline to make any OCL order. The parties can try later. With some evidence. And with some persuasive argument.
Temporary Decision Making Responsibility
15This claim is made by the mother in her motion. It is in the language of the Children’s Law Reform Act (CLRA) which was amended effective March 1, 2021 to use new terminology such as decision making responsibility (DMR) instead of custody, and Parenting Time (PT) instead of access.
16Frankly, it is too early in this proceeding for the court to grant either party decision making responsibility for Jayden. Neither parent is an exemplary model of decision making generally, and even less so for decisions about their young child. I expect that, at the end of the day, decision making responsibility will be granted to the parent that the court finds the least immature of the two. Both, in my view, are quite immature, but regrettably, even immature people can have children.
[17] From Kristin’s standpoint, supplemented by the MGM, the father (age 23) (a) was physically abusive to Kristin during their relationship including during her pregnancy with Jaylan, and after he was born; (b) was convicted of sexual assault, assault with a weapon and assault, spent 90 days in jail, and is on the Sexual Offenders Registry (c) is now charged with three assaults on Kristin, plus mischief and a breach (d) has a history of substance abuse, has been in and out of treatment, has been to AA and NA, and takes medication to curb his alcohol urges (e) has criminal convictions for driving offences and may be serving a conditional sentence (f) has, together with his mother, made false accusations to the children’s aid society (KINA) about Kristin, all of which were unfounded (g) was emotionally abusive to Kristin during their relationship. (h) was diagnosed with ADHD and is prone to impulsive behaviour (i) has made several suicide attempts since about his 18th birthday (j) has been on probation for several years and is currently prohibited from communicating with Kristin (k) was smoking marijuana with Kristin when it was illegal to do so (l) is now the father of another infant child with his current partner, Essa.
18Much of this information is simply from Kristin. Noah and his lawyer may well not have had sufficient time to respond as there are many uncontradicted negative allegations made by Kristin. She provides no independent corroboration.
[19] From Noah’s standpoint, supplemented by his mother, Kristin (age 21) (a) has been diagnosed with Oppositional Defiant Disorder (ODD) and ADHD (b) has been engaging in very difficult behaviour for most of her life and has consequently been asked to leave where she was, including the home of her stepfather where she was raised (c) is facing charges of criminal harassment, mischief, uttering threats, property damage under $5,000 and breach of undertaking relating to her conduct towards Noah (d) has a new boyfriend, Jayson Wright, who is incarcerated at present facing serious charges including robbery, assault with a weapon, possession of substances for purposes of trafficking (e) is notorious for engaging in yelling and screaming, howling and crying for hours on end, sulking when she could not get her way, and engaging in unwarranted tantrums (f) has physically assaulted Noah on several occasions and been verbally abusive to him on almost all occasions when they have been together (g) has caused property damage including breaking windows in the MGM’s home. (h) is argumentative and vindictive, resulting in Jayden being taken to Espanola to stay with Kristin’s stepmother when the society was investigating, and denying Noah “access” to Jaylan when she learned that Noah’s girlfriend Essa was pregnant by him.
20Much of what Noah says is also without any independent corroboration but it is noteworthy that his (and his mother’s) allegations were served on the mother and she has not denied or even responded to many of these even though she has subsequently filed her own affidavit. The result of the evidence of both is that the court is skeptical of its veracity and accuracy and even more concerned for Jaylan if this information is close to true.
Temporary Parenting Time
21The settlement conference held April 6, 2021 with Justice Humphrey had some handwritten notes endorsed. Not one order was made at that conference. At most, a judicial suggestion was made. If the parties arrived at any agreement then, it was not documented.
Rule 17 (19) No agreement reached at a conference is effective until it is signed by the parties, witnessed and, in a case involving a special party, approved by the court. O. Reg. 114/99, r. 17 (19).
Rule 17 (20) The agreement shall be filed as part of the continuing record, unless the court orders otherwise. O. Reg. 114/99, r. 17 (20).
22More egregious, however, is the reference in the evidence to what went on at the settlement conference. This is forbidden under the Family Law Rules.
Rule 17 (23) No brief or evidence prepared for a settlement conference and no statement made at a settlement conference shall be disclosed to any other judge, except in, (a) an agreement reached at a settlement conference; or (b) an order. O. Reg. 114/99, r. 17 (23).
While the parties may be somewhat ignorant of the Rules, their counsel are not.
23The issue of temporary parenting time is important. Noah is Jaylan’s biological father. Jaylan should not be deprived of parenting time. Parenting time is the right of the child, not of the parent. The evidence is clear that, notwithstanding the allegations that the mother, Kristin, now raises about the father, Noah, she was not only prepared to, but also implemented a week about parenting schedule in September 2020 that she discontinued. She says, in retrospect, that she was “intimidated” by Noah. I have a very difficult time believing that she is intimidated by anyone.
24Moreover, she permitted a weekend visit by Jaylan with the MGM in January 2021, and concedes that the visit went well. There is also evidence that the mother, father and child resided for a time in the MGM’s home. There was undeniably a relationship established between the child and his paternal family member, in particular the father, Noah.
25Kristin’s antipathy towards the MGM is not because she is inadequate as a person to have contact with her grandson, but rather because Kristin fears that the MGM is out to take Jaylan away from her. She also believes that Noah has his mother wrapped around his little finger and that she has always turned a blind eye to his actions and behaviours. These are not good reasons, if even half true, for Kristin to withhold parenting time from Noah.
26On the other hand, Kristin’s concerns about Noah, his drug and alcohol (mis)use, his partying lifestyle, his alleged physical and emotional abuse of her, and his suicide attempts, are legitimate reasons to want to ensure that Jaylan is safe when in his father’s parenting time care. The only way she sees this as possible is if his access is supervised. I note that the children’s aid society was involved with this family, investigated and apparently did not intervene.
27Noah, rather incredibly, has not even a mention of the relationship between himself and Jaylan in his affidavit on his motion. When it is the best interests of the child that is the benchmark for determinations of parenting time, Noah says almost nothing about the statutory criteria in s.24(2) and the factors that are relevant to the circumstances of the child in s.24(3). Both Noah and Kristin seem overly preoccupied with faults of the other, family violence and concurrent criminal proceedings, rather than the mandatory considerations of this court in making a parenting time order.
24 (1) In making a parenting order or contact order with respect to a child, the court shall only take into account the best interests of the child in accordance with this section. S.24 (2) In determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being. S.24 (3) Factors related to the circumstances of a child include, (a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability; (b) the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life; (c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent; (d) the history of care of the child; (e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained; (f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage; (g) any plans for the child’s care; (h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child; (i) the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child; (j) any family violence and its impact on, among other things, (i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and (ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate on issues affecting the child; and (k) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child
[28] In formulating a parenting time order, the court must take account of realities. These are, in this case, the following: (a) until the court is satisfied that Noah is not a risk of harm to Jaylan, his access should be supervised. (b) Kristin and Noah both live in Sudbury. The MGM lives in Chapleau, but apparently works in Mindemoya on Manitoulin Island. (c) Jaylen has resided with his mother continuously since his birth and his home has been with her. (d) The MGM is also a medical doctor, is a First Nation person, as is the father, Noah and presumably the child Jaylan. She was apparently ready willing and able to have Jaylan in her home for visits and I presume this still is the case. (e) The MGM is a suitable access supervisor for Noah’s parenting time in my view, despite Kristin’s concerns about her. (f) There is a supervised access facility (SAC) in Sudbury at which paternal parenting time can take place. (g) Paternal parenting time in Chapleau at the MGM’s home involves considerable travel, but subject to suitable arrangements, can afford parenting time in a more comfortable setting than an institutional one like SAC. (h) The father Noah works at Levert Group. What hours he has are unknown. Kristin has started a college program in September 2021. Jaylan has started attending day care. (i) There is a criminal court non-communication condition between Kristin and Noah (or perhaps mutual ones) and their criminal court charges are unresolved.
29In these circumstances, I make the following order
The Respondent father, Noah Mitchell-Hourie shall have temporary parenting time with his son Jaylan Mitchell-Hourie under the following conditions:
A. At the Sudbury Supervised Access Centre (a) supervised at the Supervised Access Centre (SAC) in Sudbury (b) twice each week for a minimum of two hours subject to the SAC’s protocol. (c) The applicant mother, Kristin Long shall transport the child Jaylan to and from the SAC for each instance of paternal parenting time. (d) Each of the mother and father shall forthwith attend to the intake requirements of the SAC. (e) The parental parenting time visits at the SAC shall take place at times and for durations that are mutually convenient to each parent having regard to their work or school commitments, and that can be accommodated by the SAC, provided that if the parents are unable to agree, the court can be requested by a Form 14B motion to set such dates and times.
B. At the Home of the MGM in Chapleau (a) Once per month including two overnights (b) The maternal grandmother, Doris Mitchell shall choose the times for such monthly visits and shall provide the mother, Kristin Long, and her counsel, Mr. G. Fournier, with e-mail notice of such times at least seven days prior thereto. (c) The maternal grandmother, or her transportation designate (which shall exclude the father), shall pick up the child Jaylan at the home of the mother and shall return the child to the home of the mother, unless they make alternate arrangements. (d) The duration of the monthly visit shall be from the first day at 9:00 am until the last day at 7:00 pm (e) The father, Noah Mitchell-Hourie shall be permitted to spend as much or all of the time that Jaylan is in the home of the maternal grandmother as his parenting time provided that he shall be supervised by her personally and not be left alone with Jaylan. (f) Permitted to be present at Chapleau access visits, subject to approval of the MGM, are paternal extended family members including the father, Noah’s partner, Essa Jamieson and their child, Jaylan’s half sister. (g) Any communications between the mother, Kristin Long, and the MGM shall be by e-mail messages whereby hard copies can be produced, and each of them will provide the other with a current e-mail address and any changes that may be made thereto.
No order is made with respect to temporary decision making responsibility.
No order is made with respect to involvement of the OCL at this time.
The child Jaylan Mitchell-Hourie, shall on a temporary basis, reside as his primary residence in the home of his mother. Kristin Long.
30I make no order for police assistance. It is the court’s expectation that all participants will behave reasonably and maturely in implementing these temporary provisions. However, police assistance orders are possible, even though usually a last resort, where enforcement becomes an issue. So also are orders for costs, which I decline to make at this juncture.
Released: October 31, 2021 Signed: “Justice John Kukurin”
