Court File and Parties

CITATION: Lapier v. Roebuck, 2017 ONSC 395

COURT FILE NO.: D56/16

DATE: January 17, 2017

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Jonathan Bruce Lapier, appellant

AND:

Michelle Roebuck, respondent

BEFORE: MITROW J.

COUNSEL: Sharon Hassan for the appellant

David Winninger for the respondent

HEARD: January 16, 2017

ENDORSEMENT

[1] The issue before the court is the respondent’s parenting time with the children, pending full argument on the appellant’s motion to stay portions of the final order of Korpan J. dated November 18, 2016, pending appeal. The date of argument of this motion has been set for February 17, 2017 and directions for the filing of material have been given.

[2] The appellant’s motion was already adjourned once at the respondent’s request to January 16, 2017, so that she could retain counsel. However, as the respondent’s counsel was retained only very recently, the respondent only filed a preliminary affidavit sworn January 16, 2017, to which the appellant has had no opportunity to respond.

[3] My endorsement dated December 20, 2016, Lapier v. Roebuck, 2016 ONSC 7960 (Ont. Div. Ct.), sets out the background and details of the order made. That order was made on a without prejudice basis as the respondent had not had an opportunity to file any material.

[4] Pursuant to that order, the respondent did have the children on December 24, 2016; however, she did not have the children as ordered on December 27, 2016. It was the respondent’s evidence that she had “misread” the order and did not realize that the children were to be with her.

[5] On December 28, 2017, the respondent had the children with her as ordered. She had taken the children to the Lighthouse Inn in London. While there, the appellant was contacted by the eldest child, Jonelle, who forwarded two brief video clips of the respondent, who appeared at times disengaged from her surroundings, while lying on the bed. The appellant deposes that the children became alarmed as to the respondent’s state. The appellant called an ambulance, and arrived at the inn while the ambulance was there.

[6] The respondent deposes that she had had “some form of seizure” on that occasion, and that that has happened before with the cause not being determined. She deposes that she did not require the ambulance to take her to hospital on that occasion; she further states that she has an appointment with her family physician on January 20, 2017.

[7] The respondent’s next visit with the children was to be Saturday, December 31, 2016. The appellant states that the respondent did not contact him on that date, or on Sunday, January 1, 2017, which was the beginning of an overnight visit to start at 10:00 a.m. January 1, until 7:00 p.m. January 2.

[8] It was the respondent’s evidence that she tried to contact the appellant on January 1, 2017 regarding her access, but that she could not get hold of him.

[9] The respondent does not address why she did not see the children on December 31, 2016.

[10] The respondent’s only evidence regarding January 2, 2017 is that she called to remind the appellant about the appointments for the children at the dental clinic on January 4, 2017.

[11] The appellant deposed that on January 2, 2017 he told the respondent via text that she should get help and that he was not allowing the children to be alone with the respondent until she got help. In essence, the appellant took matters into his own hands and denied court-ordered access, without seeking the court’s approval.

[12] The appellant’s evidence suggests that he believes that the respondent has a substance abuse issue; however, at this juncture, there is no evidence to link the seizure, or symptoms, experienced by the respondent to substance abuse. The video clips were included as a DVD exhibit, which I have viewed. Given the brief nature of each video clip, it is difficult to draw any conclusion that the respondent requires supervision when the children are with her.

[13] Clearly, however, the respondent will need to provide some evidence from her physician as to any follow-up regarding the seizure.

[14] At this time, the respondent continues to reside in a two-bedroom apartment belonging to a friend. The respondent’s friend has a young child who lives in the apartment.

[15] In discussing the three-part test to be applied on a motion to stay, I stated the following at paras. 27 – 29:

[27] Given the short duration of the order being made below, I am prepared to find, on a without prejudice basis to the respondent, based on the material filed, that the “serious issue” test is met irrespective of which set of criteria is applied.

[28] The remaining two tests are interwoven with the children’s best interests. At this time, the respondent does not have her own accommodation – she is staying with a friend in a two-bedroom apartment that, prima facie, raises concerns as to whether this accommodation is adequate for the two adults and four children. There is also the admitted incident of the children being left alone.

[29] I focus at this time, pending material being filed by the respondent, on the concerns raised by the appellant as to the adequacy of the respondent’s accommodation.

[16] The above discussion in the previous reasons continues, substantially, to apply currently, with the added concern as to the respondent’s apparent medical situation.

[17] I am not persuaded that the respondent’s time with the children should be supervised.

ORDER

[18] I make the following order:

1. Pending the final disposition of the appellant’s motion for a stay, and on a completely without prejudice basis to the respondent:

(a) paragraphs 5, 6 and 7 of the final order of Korpan J. dated November 18, 2016 are stayed;

(b) the three children shall reside with the appellant except for the following times when the children shall reside with the respondent:

(i) every Saturday from noon to 6:00 p.m., starting Saturday, January 21, 2017; and

(ii) alternate Sundays from noon to 6:00 p.m., starting Sunday, January 22, 2017;

(c) for the respondent’s parenting time, the appellant shall deliver the children to the respondent, and he shall pick up the children from the respondent;

(d) regarding para. (c), all exchanges shall take place at the residence where the respondent is currently staying, 640½ Queens Avenue, London, subject to the following:

(i) the respondent may request the appellant to drop off the children at such other location in the community, within the City of London, so long as the respondent is present to receive the children, and the appellant shall comply with such a request; and

(ii) the appellant shall pick up the children from the same location, unless the respondent requests the appellant to pick up the children from her residence;

(e) the children shall not be left alone without adult supervision.

2. Costs are reserved to the motion judge who finally disposes of this motion.

“Justice Victor Mitrow”

Justice Victor Mitrow

Date: January 17, 2017