minicounsel

Date: 2022 12 02 Court File No.: Sault Ste. Marie 139/19

Between:

Gary Marrello Applicant

— AND —

Ashley Desroches Respondent

Before: Justice Heather-Ann Mendes

Heard on: September 20, 2022 & September 21, 2022 Reasons for Judgement released on: December 2, 2022

Counsel: Jasmine Gassi Harnden, counsel for the applicant Murdoch Carter, counsel for the respondent

Mendes J.:

Overview

1The applicant father, Gary Marrello commenced an application on August 20, 2019 seeking an order for sole custody, as it was then referred to, of the parties child Karter Kerry Edward Marrello born […], 2018; that the respondent mother, Ashley Desroches have access, as it was then referred to, with the child at the father’s discretion; and that the mother pay child support to him for the benefit of the child.

2The mother filed her answer to the application on November 12, 2019 and she sought an order that she have custody of the child; in the alternative that she and the father share joint/shared custody of the child; in the further alternative that she have reasonable parenting time with the child; and in the further alternative that she have parenting-time with the child supervised by an agreed upon third party.

3A two-day trial was heard on September 20, 2022 and September 21, 2022. At trial, the only issue for the court to determine was the mother’s parenting-time with the child. All other issues were resolved by way of a final order dated August 22, 2022.

4The final order of August 22, 2022 provided that the father have sole decision making responsibility for the child; that the father shall consult with the mother on all major decisions, but the father has the right to make the final decision in the event of a disagreement and the mother has the right to bring the matter to court for determination; that the father shall advise the mother of all appointments for the child; the mother shall be entitled to information from third parties involved with the child and there shall be no child support payable by the mother, however, she is to advise the father within 15 days of obtaining employment and provide disclosure.

5The father’s position at trial was that the existing order of May 21, 2021 remain in place. That order for parenting-time provides the maternal great-grandparents, Richard and Glenda Ladouceur with access, now known as contact, with the child on week #1 from Thursday to Friday, week #2 from Wednesday to Thursday and week #3 from Monday to Tuesday. The mother is to exercise her parenting-time with the child during the maternal great-grandparent’s contact with the child.

6The mother’s position at trial was that the maternal grandmother, Michele Warkentin, be ordered specified contact with the child during the maternal great-grandparents’ existing contact order, and that the mother be entitled to exercise parenting-time with the child when either the maternal grandmother or the maternal great-grandparents have contact with the child.

7Neither the maternal grandmother nor the maternal great-grandparents are parties to the proceeding.

Background & Evidence

8The parties are the parents of the child Karter Kerry Edward Marrello born […], 2018. The parties never resided together. Upon the child’s birth, the parties would share time with the child in accordance with the father’s work schedule which was two weeks working out of town and one week home. The father states that he would have the child in his care during his week home. The mother states that the father would maybe see the child for two or three days and have one overnight visit during this time.

9As of July 1, 2019, the child commenced residing primarily with the father. The father alleges that the child came into his care at the direction of the Children’s Aid Society of Algoma who were involved with the family since the child’s birth due to concerns regarding the mother’s mental health and substance misuse.

10The mother alleges that as of July 1, 2019 the father commenced withholding the child and denied her requests for parenting-time time with the child. Despite the mother’s allegations that the father was withholding the child and denying her parenting-time, it was the father who commenced the application at the end of August 2019. Further, it is the father’s evidence that once the child came to his full-time care, he continued to send the child to the maternal great-grandparents’ home every other weekend.

11At a combined case/settlement conference on February 18, 2020, the parties negotiated a schedule for parenting-time on consent. That being said, the wording of the interim and without prejudice order provided for the maternal great-grandparents to be the access holders, and they are to have access with the child at their residence on alternate Mondays through to Wednesdays and that the mother shall have access during this time. In addition, the mother would continue to exercise parenting-time with the child on alternate Saturdays at the supervised access program through Algoma Family Services.

12A motion was brought by the mother seeking to expand the contact for the maternal great-grandparents to the child in order to allow her more parenting-time with the child. The father brought a motion also seeking to vary the maternal great-grandparents contact with the child as his work schedule had changed to working two-weeks out of town and being home for two-weeks.

13The motion was argued on May 21, 2021 and the court granted an interim order that the maternal great-grandparents contact with the child was changed so that they have the child on week #1 from Thursday to Friday, week #2 from Wednesday to Thursday and week #3 from Monday to Tuesday.

14In December 2021, the maternal grandmother brought a motion to be added as a party to the proceeding. The father opposed the motion and the mother did not provide instructions to her counsel. The motion was argued on February 3, 2022.

15The court did not grant the maternal grandmother’s motion to be added as a party as the outstanding application was extremely dated; adding the maternal grandmother would cause undue delay and the maternal grandmother was not advancing a plan for decision-making responsibility. The court found that adding the maternal grandmother was not necessary to determine the issues before the court nor was it in the child’s best interests.

16On the eve of trial at a settlement conference on August 22, 2022, the parties were able to resolve all of the issues for trial save and except the issue of the mother’s parenting-time with the child. A continuation of the settlement conference was set for August 25, 2022 to try and resolve the final outstanding issue of the mother’s parenting-time with the child, however the mother failed to attend the conference.

17At trial the father called three witnesses, himself, his mother, the paternal grandmother, Rosemary Nelson and his step-mother, the paternal-step-grandmother, Marie Marrello. The mother called two witnesses, herself and her mother, the maternal grandmother, Michele Warkentin.

18The father continues to work out of town and he has a strong support system which includes his mother, his step-mother as well as the maternal great-grandparents to care for the child while he is at work out of town for two weeks. When the father is home from work he is an extremely active and engaged parent. The father attends to and ensures that all of the child’s medical, health, educational, developmental, social and emotional needs are met. Further the father has provided the child with a safe, stable and loving home environment.

19The father describes having a positive relationship with the maternal great-grandparents, but it can be strained at times as they sometimes “overreach”. However, he does not question their love, affection and commitment to the child. The father describes the child as having a fantastic relationship with the maternal great-grandparents.

20The father agreed in his evidence that he trusts that the maternal great-grandparents with the child and their judgment when it comes to the child, such that he is agreeable to the maternal great-grandparents determining if it is appropriate for the maternal grandmother to have time with the child during their time with him, at their discretion.

21The father has a very limited relationship with the maternal grandmother. The father has had only a few interactions with the maternal grandmother years ago and so at this time he is not comfortable with the maternal grandmother being responsible to supervise the mother’s parenting-time with the child or that the maternal grandmother have a contact order with the child separate from the maternal great-grandparents.

22The father’s relationship with the mother continues to be strained. The father last had contacted with the mother over a year ago. Under cross examination the father confirmed that he supports the mother’s relationship with the child and that in addition to the existing parenting-time for the mother while the child is with the maternal great-grandparents, he is also agreeable to the mother having a set schedule for telephone or virtual contact with the child.

23The mother’s evidence at trial largely focused on her relationship with the father and claims that the father both historically and currently uses substances. The mother did not provide any further evidence in this regard to substantiate her claim nor did she provide any evidence that she followed up with any child protection agency about her concerns.

24The mother claims that the father denied her parenting-time with the child from July 1, 2019 after he unilaterally withheld the child, but the mother did not file any court application to address the matter.

25The mother does agree that the father has provided the maternal great-grandparents, her grandparents, with weekly time with the child. The mother confirms in her evidence that she does attend at the maternal great-grandparents’ home during their contact and her time with the child is generally positive, however she does not attend each visit but rather only those that she is available.

26In addition to the mother attending visits at the maternal great-grandparents’ home, she was also ordered visits at the Supervised Access Facility through Algoma Family Services. The visits at the facility were suspended in March 2020 due to the COVID-19 global pandemic. When the facility reopened in November 2020 the parties could not agree on a time that suited the child and so the visits at the centre did not resume.

27The mother states that during her visits with the child she attends to all of his needs and cares for the child. The mother also confirms that the maternal grandmother spends time with the child when the maternal great-grandparents have him.

28The mother advised during her evidence that her relationship with the maternal great-grandmother has declined and exercising visits at her grandparents’ home is adding stress to them. That being said, the mother agreed in her evidence that she is content to exercise parenting-time with the child at her grandparents’ home as she wants them to spend as much time with the child as possible.

29The mother would like her mother, the maternal grandmother, to have her own time with the child as she feels that she is “being left out”. That being said, the mother’s relationship with the maternal grandmother has not always been stable and they too have had periods of time in which they have not spoken. However, the mother advises that she and the maternal grandmother are able to put their differences aside for the benefit of the child and their relationship with him.

30The mother does have the insight to recognize that her time with the child needs to be progressive and while she was initially claiming that she have parenting-time on the father’s two weekends he is away at work, her position at trial was that her mother, the maternal grandmother be granted specified time with the child during the maternal great-grandparents time, and that she exercise parenting-time during this period.

31In her evidence, the maternal grandmother confirmed that she attends at the maternal great-grandparents’ home to see the child and that she has developed a close relationship with him. The maternal grandmother was well aware of the child’s schedule as to when he is with the maternal great-grandparents.

32Both the mother and the maternal grandmother state that the father has not been receptive to requests for additional time with the child from either the mother, the maternal grandmother or the maternal great-grandparents.

33Statements were made by the mother and the maternal grandmother that maternal great-grandmother is not well and that she is diagnosed with cancer. The father has not been provided with this information from the maternal great-grandparents despite the fact that he is in regular contact with them.

34Further, neither party called the maternal great-grandparents as witnesses at trial. That being said, the great grandparents are the third generation in relation to the child and it follows that they are getting older and their time with the child is limited, simply as a result of the circle of life.

35The maternal grandmother in her evidence also agreed that she and the mother have not had the best relationship in the past, however the mother is her daughter and her main priority and focus is the child, so she is prepared to facilitate parenting-time for the mother to assist her.

36The maternal grandmother was very candid in her evidence about the mother’s struggles with substance misuse and recognized that the mother has to prove herself because of this. The maternal grandmother also in her evidence stated that she is prepared to follow the direction of the father and confirmed that she thought he was an “amazing father”. This provided the court with confidence that she recognizes the concerns regarding the mother and her parenting-time and that she is not seeking to overstep her role as a grandparent with the father.

Law

37The Children’s Law Reform Act, R.S.O. 1990, c. C.12 sets out the following:

Parenting time

20 (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

(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.

Analysis

38Karter is a most fortunate young boy that has the benefit of such a large and strong support network that is comprised of both his maternal and paternal family. Despite the hostility that rears its ugly head from time to time between the family members both internally amongst the maternal family and between the maternal and paternal family, the father is to be commended for ensuring that this young child maintains his connections with both sides of his family.

39The sole issue before the court for determination is that of parenting-time for the mother with the child. The father is seeking that the present interim order of May 21, 2021, be made the final order such that the mother have parenting-time during the maternal great-grandparents’ contact with the child. The mother is seeking that the maternal grandmother be granted specified contact during the maternal great-grandparents time, or that the contact be for both the maternal grandmother or great-grandparents and that she exercise her time with the child during that specified time.

40The initial without prejudice order made on January 13, 2020 and the subsequent interim order made on May 21, 2021 provided for the child to have access, now referred to as contact, with the maternal great-grandparents not the mother. The mother was granted access, now referred to as parenting-time, with the child during the time that the maternal great-grandparents had the child.

41The court should not have granted the maternal great-grandparents access or contact with the child as they were not parties to the proceeding at any point in time. Further, no affidavit 35.1 in support of a claim for custody or access, now decision making responsibility, parenting-time or contact, has ever been received by the maternal great-grandparents.

42The court at the trial is now asked to make an order regarding the mother’s parenting-time with the child which encroaches on the time that the maternal great-grandparents have with the child and have had for the past three years, without any notice to maternal great-grandparents and without knowing their position regarding the issue.

43Whether intentional or not, given that the maternal great-grandparents have had weekly contact with the child by way of a court order for the past three years, the maternal great-grandparents are in fact contact holders and as such are entitled to notice regarding any proposed impact or change to their contact with the child.

44Given the court’s position regarding the maternal grandparents’ contact with the child and the requirement for notice to the maternal grandparents’, the court is not prepared to make any order for parenting-time with the mother that carves out specific time from the maternal great-grandparents contact with the child to designate same for the maternal grandmother.

45Further, it would not be appropriate for the court to order any contact with the child for the maternal grandmother given that she is not a party to this proceeding nor is there a claim before the court by either the mother and father in their pleadings, seeking contact for the maternal grandmother to the child.

46The evidence before the court is that the mother does exercise parenting-time when the great-grandparents have the child, however she does not attend every visit. The court was not provided with evidence as to how many visits the mother attends on a monthly basis nor information regarding how long the mother attends at the great-grandparents home during those visits. The court was essentially left with the impression that the mother comes and goes during the time that the child is with the maternal great-grandparents and there is no expectation of when her mother will attend and if she does for how long she will stay.

47Although not specifically stated, given the claims that were advanced by the mother at the trial seeking that the maternal grandmother be permitted specific contact with the child during the maternal great-grandparents contact so that she, the mother, may exercise parenting-time during that specific time, the mother does demonstrate some insight in to her capabilities and limitations in terms of caring for the child at this time.

48The father has developed a very positive relationship with the maternal great-grandparents despite his feeling that they overstep their role from time to time. The father trusts the maternal great-grandparents judgement and acknowledges that they have the best interests of the child in the forefront at all times, such that the father agrees that if the maternal great-grandparents determine that the maternal grandmother can have the child in her care during their contact, the father is satisfied that they will make an appropriate determination and use their discretion.

49The maternal grandmother was very candid in her evidence regarding the mother’s struggles with substances and about the father’s care of the child. The court was provided with a sense of confidence regarding the maternal grandmother’s ability to appropriately evaluate the situation regarding the mother’s capabilities in terms of caring for the child knowing the challenges that the mother has had in the past and acknowledging the care the father has provided for the child over the past three and a half years.

50This truly is a case where we see the meaning of the expression “it takes a village”. We have a family with a very complex dynamic, including a primary caregiver that works out of town two weeks at a time providing a stable, safe and loving household for this very fortunate little boy.

51The parties, including their extended family on both sides all need to support and encourage the other parent’s relationship with the child, as well as the other parent’s family’s relationship with the child given how many family members are involved in this child’s life.

52That being said, the long-term plan for this family cannot be one in which the maternal great-grandparents, the maternal grandmother and the mother all have separate contact and parenting-time orders in place regarding the maternal family’s time with the child. Especially if the statements regarding the health of the maternal great-grandmother is accurate.

53As such, the father and the mother, along with their respective supports, including the maternal great-grandparents, by way of this decision are directed to attend an alternative dispute resolution process, such as family mediation, to attempt to reach a more permanent and long-term resolution regarding the issue of the mother’s parenting-time with the child. Such that the maternal great-grandparents are given notice that their contact with the child will be impacted, and that they may no longer be designated as contact holders given the inadvertent manner in which this came about.

54If ADR is not successful and a motion to change is brought forward to address the mother’s parenting-time with the child, the maternal great-grandparents are to be served with the motion to change so that they are provided with notice and may respond if they wish to do so.

55Given the mother’s challenges with substance misuse, it is appropriate, and in the child’s best interests that there continue to be a provision that the mother shall not consume alcohol or non-prescription drugs at least 24 hours prior to or during any parenting-time with the child.

56Further, there is an outstanding costs order owed by the mother to the father made on May 2, 2022 in the sum of $616.98. Until this cost order is satisfied, the mother shall not be permitted to bring a motion to change to address her parenting-time.

Decision

57As such, given the above and in the best interests of the child, a final order shall issue as follows:

(1) The maternal great-grandparents, Richard and Glenda Ladouceur shall have contact with the child Karter Kerry Edward Desroches born […], 2018 as follows: (a) Week One Thursday to Friday; (b) Week Two Wednesday to Thursday; (c) Week Three Monday to Tuesday; (d) Such further and other times as agreed upon with the Applicant, Gary Marrello.

(2) The maternal great-grandparents have the discretion to determine who may be in the presence of the child and who may care for the child during their time with him.

(3) The respondent, Ashley Desroches, shall have parenting-time with the child Karter Kerry Edward Desroches born […], 2018 during the maternal great-grandparents’ contact.

(4) The respondent, Ashely Desroches shall be entitled to such further and other parenting-time with the child as agreed upon between the parties, with such time to include holidays, birthdays and special events in the child’s life.

(5) The respondent, Ashely Desroches shall be entitled to telephone, electronic or virtual parenting-time with the child each Tuesday, Thursday and Sunday evening at 7:00 p.m. with the respondent mother to initiate the contact with the child.

(6) The maternal great-grandparents shall be responsible for the transportation of the child for their contact and the mother’s parenting-time.

(7) The respondent, Ashely Desroches, shall not consume alcohol or non-prescription drugs at least 24 hours prior to or during any parenting-time with the child.

(8) Neither party shall make disparaging remarks to the child or in the presence of the child about the other party or the other party’s family. Neither party shall allow anyone else to make disparaging remarks to the child or in the presence of the child about the other party or the other party’s family.

(9) The father, Gary Marrello, the mother, Ashely Desroches, the maternal great-grandparents, Richard and Glenda Ladouceur, shall attend an alternative dispute resolution process to address the issue of the mother’s parenting-time with the child and contact order for the maternal great-grandparents.

(10) The respondent, Ashley Desroches, shall not be permitted to bring a motion to change until the costs order of May 2, 2022 in the sum of $616.98 owed by her to the applicant father is satisfied.

(11) All other claims made in the application dated August 20, 2019 and answer dated November 12, 2019 are dismissed without costs.

58The 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: December 2, 2022 Signed: Justice Heather-Ann Mendes Ontario Court of Justice

Marrello v. Desroches, 2022 ONCJ 558

Case Summary

Overview

Background & Evidence