Ontario Court of Justice
Date: 2022 11 29 Court File No.: Sault Ste. Marie 121/19
Between:
RACHEL WOODS Applicant
— AND —
JESSE LABBEE Respondent
Before: Justice Heather-Ann Mendes
Heard on: September 29, 2022 Reasons for Judgment released on: November 29, 2022
Counsel: Rachel Woods...................................................................... on her own behalf Rachel McLean....................................................... counsel for the respondent
Overview
1The applicant, Rachel Woods commenced this application on July 11, 2019, seeking custody, as it was then referred to, of the parties’ child Elijah Labbee born […] 2018; access, as it was then referred to, for the respondent father, Jesse Labbee to the child supervised at Algoma Family Services and that the father pay child support to her for the benefit of the child.
2The father filed his answer to the application on October 17, 2019, seeking joint custody of the child and that he have parenting-time with the child on a week-about basis.
3An interim and without prejudice order was made on consent of the parties on January 13, 2020, which provided the mother with primary residence of the child and the father to have day-time parenting-time on Saturdays and Sundays for a period of four hours, as well as a condition that the father will not consume alcohol or non-prescription drugs at least 24 hours prior to or during any parenting-time.
4The father’s parenting-time with the child progressed and expanded such that by December 2020 the father was exercising time with the child on alternate weekends. The progression of parenting-time was made on consent of the parties through their counsel, however the interim order was not varied as the consents were not filed with the court by either of the parties’ then counsel.
5A motion brought by the father was heard on April 13, 2021, seeking residency of the child, decision-making responsibility for the child and that the mother have supervised parenting-time with the child. The motion proceeded without the mother present. The mother’s counsel was removed from the record on March 19, 2021. The mother and the maternal grandmother joined the virtual courtroom after the motion concluded and advised that they were waiting in another virtual courtroom.
6Notwithstanding the mother’s late attendance, the court made an interim and without prejudice order granting the father interim decision-making responsibility for the child along with primary residence. The mother was granted generous supervised parenting-time with the child either supervised by the maternal grandmother or at the supervised access facility. In addition, the mother was not to consume any intoxicating substances during or 24 hours prior to exercising her parenting-time with the child.
7The mother retained new counsel and with the assistance of her counsel, a further interim order was made on consent on September 13, 2021. This interim order provided that the mother have supervised parenting-time with the child twice per week, supervised by the maternal grandmother, and that the mother not be under the influence of any intoxicating or impairing substances during her parenting-time. The visits supervised by the maternal grandmother were to be in addition to the parenting-time at the supervised access facility.
8On December 9, 2021, a further interim order was made on consent of the parties which provided the mother with electronic parenting-time with the child on Sundays, as well as access to third party records and information regarding the child.
9On April 6, 2022, the mother’s new counsel was removed from the record. Further, on April 6, 2022, the father’s counsel was also removed from the record.
10The father subsequently retained new counsel and a sixth settlement conference continuation was set for June 29, 2022. The mother did not attend at the settlement conference continuation, and so the matter was set down for an uncontested hearing.
11The uncontested hearing was set for August 11, 2022. The court was not prepared to have the matter proceed as an uncontested hearing given that the application commenced by the mother was still before the court.
12As such, the matter was set down for trial, in person, on the running trial list commencing September 19, 2022. The parties were to file their evidence in chief by way of sworn affidavit by no later than September 9, 2022. Counsel for the father was to advise the mother of the trial date and provide her with a copy of the endorsement of August 11, 2022.
13The mother did not file her affidavit containing her evidence in chief by September 9, 2022. However, the mother attended court on September 19, 2022 and sought an adjournment of the trial so that she may file her evidence.
14The court granted the mother’s request for an adjournment and the trial was set for September 29, 2022, with the mother to serve and file her evidence in chief by way of sworn affidavit by September 26, 2022.
15The mother filed her sworn affidavit as directed and the trial proceeded on September 29, 2022.
Position of the Parties
16The mother seeks a final order similar to her claims advanced in her application. The mother is seeking primary decision-making responsibility for the child; that the child primarily reside with her; that she and the father share parenting-time with the child on a three-day/four-day rotation and that the father pay to her child support for the benefit of the child.
17The father seeks a final order that he have decision making responsibility for the child; that the child primarily reside with him; that the mother have parenting-time with the child supervised in the father’s discretion, either at Algoma Family Services or through a mutually agreed upon third party. Lastly, the father is seeking that the mother annually disclose her income for the purposes of reviewing child support.
Law
18The Children’s Law Reform Act, R.S.O. 1990, c. C.12 sets out the following:
Equal entitlement to decision-making responsibility
20 (1) Except as otherwise provided in this Part, a child’s parents are equally entitled to decision-making responsibility with respect to the child.
Rights and responsibilities
(2) A person entitled to decision-making responsibility with respect to a child has the rights and responsibilities of a parent in respect of the child, and must exercise those rights and responsibilities in the best interests of the child.
If parents separate
(4) If the parents of a child live separate and apart and the child lives with one of them with the consent, implied consent or acquiescence of the other, the right of the other to exercise the entitlement to decision-making responsibility with respect to the child, but not the entitlement to parenting time, is suspended until a separation agreement or order provides otherwise.
Parenting time
(5) The entitlement to parenting time with respect to a child includes the right to visit with and be visited by the child, and includes the same right as a parent to make inquiries and to be given information about the child’s well-being, including in relation to the child’s health and education.
Parenting order, application by parent
21 (1) A parent of a child may apply to a court for a parenting order respecting,
(a) decision-making responsibility with respect to the child; and
(b) parenting time with respect to the child.
Best interests of the child
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.
Primary consideration
(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.
Factors
(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.
Parenting orders and contact orders
28 (1) The court to which an application is made under section 21,
(a) may by order grant,
(i) decision-making responsibility with respect to a child to one or more persons, in the case of an application under clause 21 (1) (a) or subsection 21 (2),
(ii) parenting time with respect to a child to one or more parents of the child, in the case of an application under clause 21 (1) (b), or
(iii) contact with respect to a child to one or more persons other than a parent of the child, in the case of an application under subsection 21 (3);
(b) may by order determine any aspect of the incidents of the right to decision-making responsibility, parenting time or contact, as the case may be, with respect to a child; and
(c) may make any additional order the court considers necessary and proper in the circumstances, including an order,
(i) limiting the duration, frequency, manner or location of contact or communication between any of the parties, or between a party and the child,
(ii) prohibiting a party or other person from engaging in specified conduct in the presence of the child or at any time when the person is responsible for the care of the child,
(iii) prohibiting a party from changing the child’s residence, school or day care facility without the consent of another party or an order of the court,
(iv) prohibiting a party from removing the child from Ontario without the consent of another party or an order of the court,
(v) requiring the delivery, to the court or to a person or body specified by the court, of the child’s passport, the child’s health card within the meaning of the Health Insurance Act or any other document relating to the child that the court may specify,
(vi) requiring a party to give information or to consent to the release of information respecting the child’s well-being, including in relation to the child’s health and education, to another party or other person specified by the court, or
(vii) requiring a party to facilitate communication by the child with another party or other person specified by the court in a manner that is appropriate for the child.
Evidence & Analysis
19The mother’s evidence at trial was that the parties commenced a common law relationship in or about September 2015 through to December 2019, and that after separation she allowed the father to stay at her home from January 2020 to April 2020.
20However, in the application commenced by the mother on July 10, 2019 she claims that she and the father commenced residing together in July 2017 and separated in December 2018, just eight months after the birth of the child on […], 2018.
21The mother claims that upon separation the father relocated to Blind River and that the child remained in her care. Further, that both during the relationship and upon separation she met all of the child’s needs.
22The mother further claimed that in the summer of 2019 the father returned to Sault Ste. Marie and at that time he sought parenting-time with the child, which precipitated the mother commencing her application.
23The mother claims that the father was mentally, verbally and physically abusive towards her and that this was exacerbated by alleged drug use on his part. As such, the mother sought that the father only have supervised parenting-time with the child. The father does not have a criminal record nor did he have any outstanding criminal charges.
24Conversely, the father claims that the parties commenced a relationship in or about May 2015 and separated in or about May 2019. The father denies any issue with substance misuse or violence and suggests that it is the mother who has anger management issues and substance misuse issues which became exceedingly worse after separation such that he reported same to the Children’s Aid Society of Algoma.
25The father states that after separation he was working a construction project in Blind River and so to make the separation easier and given his construction work schedule he moved in with his grandparents in Blind River. However, the mother started restricting his parenting-time with the child so he returned to Sault Ste. Marie the summer of 2019.
26The father has now started his own construction company and works for himself. The father has various local contracts and employees, so he is able to set his own schedule and be available to provide, look after and care for the child.
27Prior to separation the father states that he and the mother were co-parenting the child and raising him together, although the mother prioritized her social life ahead of the child. Conversely, the mother states that she solely raised the child from his birth until the father was granted primary residence of the child in April 2021.
28The father has had the child in his care since April 13, 2021. At the time of trial the child had been in the father’s care for almost a year and a half. During this time the father has met all of the child’s needs including his health, educational, social and emotional needs.
29The father states he has followed up with the child’s medical practitioners and ensured that the child is meeting his milestones. The father has enrolled the child in school for junior kindergarten which commenced in September 2022 and he enrolled the child in soccer and t-ball in the summer as well as timbits hockey in September 2022.
30The father did not recall when he enrolled the child for junior kindergarten, and he confirmed that he did not discuss or advise the mother of the enrolment of the child in school. The mother learned of which school the child was enrolled in through the father’s affidavit for trial. The father also did not advise the mother of the child’s extracurricular activities or provide her with the activity schedule.
31The father resides with his partner, Kieryn Penfold and they have been in a relationship for over three years. Ms. Penfold is a student at Sault College in a child development program. Ms. Penfold assists with the care of the child as she and the father reside together in a two level home and the child has his own bedroom. Ms. Penfold did not testify at trial.
32The mother’s evidence at trial is that she is in “good health and has severely reduced substance use to manage with a clean, positive and healthy lifestyle”.
33Presently the mother has a two-bedroom apartment, where she has resided for the past year, and she lives alone. There is a room for herself and the child which is all set up for visits.
34Both parties agree that the Children’s Aid Society of Algoma was involved with the family. The mother states that the reason for the Society’s involvement was due to her mental health and wellbeing. The mother did not agree that the Society was involved due to her substance misuse.
35It is the father’s evidence that the Society was involved with their family due to the mother’s mental health as well as the mother’s substance misuse and confirms that he made reports to the Society in this regard.
36The Society’s notes and records were not obtained and tendered as evidence at the trial, save for a letter from Society worker Renee Connolly dated August 17, 2021, confirming that the Society closed their file upon the father obtaining an order for residency of the child in April 2021.
37The mother’s source of income is through the Ontario Disability Support Program (ODSP), and she receives same as a result of her anxiety and depression. However, the mother is interested in returning to school and attending a program at Sault College.
38The mother was hospitalized involuntarily on two occasions due to her mental health and wellness. The mother has a psychiatrist whom she sees every six to eight months and she is prescribed antidepressants to manage her anxiety and depression which she states she takes as prescribed. The mother also states that she sees a counsellor twice per month. No reports or evidence was tendered from the mother’s psychiatrist or counsellor.
39When questioned regarding substance misuse the mother stated that these allegations are “out of hand and are not necessary”. The mother denies using any substances but admitted that she is attending at the Ontario Addiction Treatment Centre (OATC) weekly and is taking methadone and bifenthrin. The mother confirmed that she has not attended any residential treatment program and has no plans to do so.
40The mother was very evasive in her responses regarding her substance misuse issues. The court cannot accept the mother’s evidence that she does not have any issue with substances when her first statement to the court was that she has “severely reduced substance use”. Further, the mother’s substance misuse was one of the reasons primary residence of the child was changed from her care to the father’s care in April 2021.
41The court also cannot reconcile the mother’s claims that she has no issue with substances when she is attending weekly at the OATC clinic. The mother offered no further evidence as to when she started attending at the clinic, for how long she has attended at the clinic and how the treatment is assisting her in terms of maintaining her sobriety.
42According to the mother, she last had a visit with the child approximately five months prior to the date of trial. The visit was for an hour or two when the maternal grandmother brought the child to her home. The maternal grandmother resides in Blind River and arranged a visit for herself with the child through the father. No further evidence regarding the mother’s visits with the child was tendered for the court’s consideration. The court has no idea how many times the mother has seen the child in the past year save for the one visit.
43The father’s evidence is that in 2022 the mother has had five electronic visits with the child and one in person visit. The father states that the last electronic visit was in May 2022 but it was ended early as the mother made inappropriate comments to the child, regarding him moving back in with her and how she copes with missing the child.
44The mother was ordered supervised access visits at Algoma Family Services on April 13, 2021. These visits were suspended in August 2021 due to lack of attendance. When questioned why the visits were suspended, the mother stated that it was the father who kept cancelling the visits and so the facility suspended the family.
45The father conversely stated that it was the mother who failed to attend for the visits at the facility and so the family was suspended. The supervised access facility’s notes and records were not tendered as evidence at trial.
46As such the court has no idea how many visits were attended from April 2021 to August 2021 or what the interactions between the mother and the child looked like during this time. That being, was the mother engaged with the child; was the child enjoying the visits and excited to see the mother; did the mother focus on the child during the visits and was the visit child focused?
47The mother’s supervised visits were reinstated at the facility on September 13, 2021, however again the visits were not exercised regularly. Under cross examination the mother agreed that she did not request that the facility reinstate her visits after they were suspended, nor did she bring forward any motion to address the issue of her parenting-time with the child.
48At this time the mother does not believe that her visits with the child require supervision. The mother states that the maternal grandmother who was to supervise her visits is not in a position to “mediate” this matter and supervision by the maternal grandmother “is not necessary”.
49The mother further stated that she does not communicate with the maternal grandmother regarding visits as the maternal grandmother does not wish to be involved. The maternal grandmother did not testify at trial nor was there any evidence filed by the grandmother regarding observations of the visits she supervised between the mother and the child.
50The mother does not have a proposal for any other individual who could potentially supervise her time with the child, although she did state that she could ask a neighbour. The mother feels that the father is only requesting that her visits with the child be supervised in order for him to control her and that supervised visits are “blocking her from developing a connection with her son”.
51Each party blamed the other for the lack of follow through and inconsistent contact resulting in the mother not having in-person or electronic visits with the child regularly. Eight pages containing screen shots of text and Facebook messages between the parties were tendered as an exhibit at trial.
52The father in his evidence states that he has not denied or limited the mother’s parenting-time with the child and he encourages the child to maintain a relationship with the maternal family and the mother.
53It is the father’s evidence that the maternal grandmother has the child three nights a month and that he and the maternal grandmother will coordinate to exchange the child as the maternal grandmother resides in Blind River and they share transportation of the child. Again, the maternal grandmother did not provide any evidence at trial.
54It is most unfortunate that the child has had an extremely limited amount of contact with the mother over the past year and a half. The court is of the view that the mother did not take this proceeding seriously in terms of the concerns regarding the lack of consistency with her parenting-time with the child over the past year and a half.
55The mother consistently deflected and attempted to blame the father for her lack of contact with the child and took no ownership for her actions or made any attempt to acknowledge her lack of action in failing to move the matter forward, connect with the child or maintain any sort of reliable or stable routine for the child in terms of parenting-time.
56Neither party established the time frame of the messages that were filed as an exhibit at trial. That being said, what is clear to the court from the messages is that there are significant gaps in time regarding communication between the parties and there appears to be a lack of follow through with ensuring that there is consistency for the child with maintaining regular contact by the mother.
57The messages show that the mother will text the father and ask for telephone calls with the child. The father will suggest times for the mother to call based on the child’s schedule and routine, however the mother fails to call at the suggested time and then there is no follow up by the mother. When there is follow up by the mother months later, her claim is that she is waiting on the father and receiving no reply.
58Further, during the text exchanges, the parents were both focused on the others’ faults rather than on the best interests of the child or trying to reach a resolution as to how the mother can exercise parenting-time with the child in a consistent manner that is safe and appropriate for the child.
59The father questions the mother as to why any parenting-time would be appropriate as the mother has had such limited contact with the child in a period of seven or eight months.
60While the father may be concerned about the child’s adjustment to resuming parenting-time after such a lengthy absence by the mother, the father certainly does not address the issue in an appropriate fashion, nor does he attempt to offer any proposal or solution to the issue of the mother’s parenting-time.
61While the father is justified in his concern about the impact of the mother’s absence from the child’s life and now reintroduction, he does not relay any of these concerns to the mother in a constructive manner so that they can move forward with a plan in the child’s best interests.
62While the father has met all of the child’s needs over the past year and a half, I question his willingness to encourage and support the mother’s relationship with the child given the manner in which he has handled the matter in the text message communications.
63Of note to the court was when the father was questioned at trial about the mother being provided with the child’s activity schedule so that she could attend, his response was “maybe” because he was concerned about how the mother would behave at the activity and so he was only agreeable to her attending at the activity if she was supervised by the maternal grandmother.
64This response did not instill much confidence to the court that the father in fact supports and encourages a positive relationship between the mother and the child. However, to his credit, the father has ensured that the child has maintained a relationship with the maternal family which includes the child seeing the maternal grandmother each month.
65When considering all of the above and the best interests of the child, I find that the father has met all of the child’s needs over the past year and a half with consistency, reliability and stability. Although I have concerns about the father’s willingness to support the mother’s relationship with the child, this can be addressed with specific provisions in the final order to ensure that the father shares information with the mother and involves her in the decision-making process for the child.
66As such, the father shall maintain primary residence of the child. Further, the parties shall share decision-making responsibility for the child, with the father to make the final decision in the event that the parties do not agree. However, the mother shall be permitted to bring the matter to court for consideration within 60 days of being notified of the final decision by the father.
67Regarding the mother’s parenting-time with the child. The child is entitled to a relationship with both parents. That being said, the mother has not followed through with ensuring that her relationship with the child is consistent and regular as is appropriate for a child his age. It is not in the child’s best interests to simply commence a parenting-time arrangement with the mother as she has suggested, that being a three-day/four-day schedule when there has been maybe one in person visit in the last year and a half.
68The mother will need to establish a consistent routine with the child and this will need to be on a progressive basis, as such, the mother’s visits with the child are going to remain supervised at Algoma Family Services or by a mutually agreed upon third party. After the mother has exercised six consistent months of parenting-time with the child, the parties may engage in a review of the mother’s parenting-time, first through mediation and if a resolution is not successful then they may commence a court proceeding.
69The court does not accept the mother’s evidence regarding her substance misuse. The court is of the view that the mother minimizes her use substance misuse struggles and demonstrates a lack of insight regarding this concern and how it impacts her relationship with the child. In the circumstances, the court is of the view that a clause that the mother not consume any alcohol or non-prescription drugs 24 hours prior to or during any parenting-time is appropriate in the circumstances.
70The court is hopeful that the mother will return to school to complete her post-secondary education. However, given the mother’s current income source is ODSP, the mother shall annually provide the father with a copy of her income tax return and notice of assessment for the purpose of reviewing child support.
Decision
71Based on the aforementioned reasons, a final order shall issue as follows:
(1) The parties, Rachel Woods and Jesse Labbee shall share joint-decision making responsibility for the child Elijah Labbee born […], 2018. The parties shall communicate by email regarding all major decisions for the child and they shall keep each other advised of their current email address.
(2) If a decision is to be made for the child, an email shall be sent to the other parent seeking their input. Any request for input shall be answered within 48 hours from the date of the email. The input shall be considered for at least seven days before a final decision is made, save and except for emergencies.
(3) In the event that the parties do not agree upon a major decision, the respondent father, Jesse Labbee shall be entitled to make the final decision and will immediately advise the applicant mother, Rachel Woods of the decision in writing via email. The applicant mother Rachel Woods shall be entitled to bring the matter to court for consideration within 60 days of being notified of the final decision.
(4) Both parties are entitled to obtain information from third parties involved with the child including but not limited to doctors, nurses, dentists, teachers, principals, coaches and counsellors. Each party shall keep the other advised of which third parties are involved with the child and provide contact information for same in writing via email.
(5) The child Elijah Labbee born […], 2018 shall primarily reside with the respondent father, Jesse Labbee.
(6) The applicant mother Rachel Woods shall have reasonable weekly parenting-time with the child Elijah Labbee born […], 2018 at the Algoma Family Services Supervised Access Program with such parenting-time to be subject to the terms, conditions and availability of the facility. In the alternative, the applicant’s weekly parenting-time with the child may be supervised but a mutually agreed upon third party and shall be for a minimum of four hours per visit.
(7) The applicant mother Rachel Woods shall not consume any alcohol or non-prescription drugs at least 24 hours prior to or during any parenting-time with the child.
(8) The applicant mother Rachel Woods’ parenting-time with the child Elijah Labbee born […], 2018 may be reviewed after six consecutive months of exercising parenting-time with the child at the supervised access facility or supervised by a third party.
(9) The parties shall attend mediation to review the issue of the mother’s parenting-time with the child prior to commencing any court application to vary the mother’s parenting-time with the child.
(10) The applicant mother, Rachel Woods shall have electronic parenting-time with the child each Tuesday, Thursday and Sundays before bedtime with the mother to initiate the call to the child. The discussions with the child during the electronic parenting-time shall be positive, child focused and age appropriate for the child.
(11) The respondent, Jesse Labbee shall provide the applicant, Rachel Woods with a copy of the child’s extracurricular activity schedule via email, within 48 hours of receiving the schedule. The applicant, Rachel Woods shall be entitled to attend at any public activity in which the child is enrolled.
(12) Each party shall encourage the child Elijah to have a positive and loving relationship with the other parent.
(13) Neither party shall make disparaging remarks about the other party or the other party’s family to the child or in the presence of the child. Neither party shall allow any other person to make disparaging remarks about the other party or the other party’s family to the child or in the presence of the child.
(14) Commencing in 2023, the applicant mother Rachel Woods shall annually provide to the respondent, Jesse Labbee a copy of her income tax return and notice of assessment by no later than May 30th, for the purposes of reviewing child support payable by the mother to the father for the benefit of the child.
(15) All other claims made in the application dated July 11, 2019 and answer dated October 17, 2019 are dismissed without costs.
72The court date of December 7, 2022 at 2:00 p.m. is hereby vacated and the matter struck from the Family Law List in light of this final order being released.
Released: November 29, 2022 Signed: Justice Heather-Ann Mendes Ontario Court of Justice