Court File and Parties

COURT FILE NO.: FC-10-1667-02 DATE: 20180625 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Jacob Raymond Lonsdale, Applicant AND: Michelle Amber Smart, Respondent

BEFORE: The Honourable Mr. Justice J.P.L. McDermot

COUNSEL: Erika V. Chan, for the Applicant Ysamin McGann, for the Respondent Kenna Bromley for the Office of the Children’s Lawyer

HEARD: June 21, 2018

ENDORSEMENT

Introduction

[1] Faith and Landon, who are 8 and 10 years of age, live with the respondent mother, Ms. Smart, and have done so since these parties separated in 2011. That lengthy status quo has been confirmed by two final orders, one of Mulligan J. dated January 13, 2012 and the latter made by Olah J. dated March 12, 2014. [1] These orders were on consent.

[2] These proceedings are Mr. Lonsdale’s motion to change requesting custody of the children. He now moves for interim care of the children, subject to access to Ms. Smart. He says that Ms. Smart has been neglectful of the children, has failed to ensure that they attend school and has failed to meet the children’s basic needs. He has complained to Simcoe Muskoka Family Connexions about the care that the children receive at the hands of Ms. Smart. He says that the children have been troubled, especially Landon, who has had suicidal ideation, and that the only chance that the children have to a stable home life is with him, his fiancé and his mother.

[3] Ms. Smart relies upon the status quo and says that she provides a good home for the children. She acknowledges her shortcomings but blames them on poverty issues (she has not yet received support from the applicant due to problems with the Family Responsibility Office). She says that the children are doing fine at school and she is addressing the frequent absences from school as she has become aware of the importance of ensuring that the children attend school.

[4] Mr. Lonsdale claims that Ms. Smart has substance abuse issues and has requested that both parties participate in regular drug testing. To be fair, it appears that at one time, both of these parties had substance abuse issues and because of these issues, Mr. Lonsdale did not, after separation, offer an established home for the children. The only person offering any stability to the children early on was Ms. Smart. Things have, however, shifted: Mr. Lonsdale now has stable housing, a full-time job and family supports. His job as with a recycling company requires regular drug testing, which he has to pass to retain his employment. If there is a change in circumstances, it is in Mr. Lonsdale’s circumstances and not those of Ms. Smart, who now seems to be struggling in caring for the children.

[5] For the reasons set out below, I have determined that there should be an interim variation in the primary residence of the children, and that they should be immediately placed in the care of the applicant father. They should be seeing their mother, as suggested by Mr. Lonsdale, every second weekend, as well as Tuesdays and Thursdays from after school to 9:00 p.m.

Analysis

[6] As pointed out by Ms. Chan on behalf of Mr. Lonsdale, the determination of either interim or final custody is based upon the best interests of the children. That issue is governed by s. 24 of the Children’s Law Reform Act [2] which reads as follows:

24. (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4).

(2) The court shall consider all the child’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 child’s care and upbringing;

(b) the child’s views and preferences, if they 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) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;

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

(g) the ability of each person applying for custody of or access to the child to act as a parent; and

(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application.

[7] To summarize the various enumerations above, subparagraphs (a), (b) and (h) of s. 24(2) of the CLRA are the “relationship” issues in determining best interests; the court is asked to examine the relationships between the various parties and the children, the love and affection between the parties and the children and the children’s expressions of their favoured family connections through their views and preferences. Enumerations (c) to (g) inclusive can be referred to as the “stability” factors: what type of stable home environment can each person offer the children and how can either party meet the children’s needs in that home?

[8] However, where a party is asking to change a long-term status quo on an interim motion, more than evidence of the children’s best interests is necessary.

[9] Firstly, the court must find a change in the circumstances concerning the children as required in s. 29 of the CLRA; without a material change in circumstances, the court has no jurisdiction to vary an order concerning custody or care of the children.

[10] Secondly, because this is an interim motion based upon affidavit evidence and input from the Office of the Children’s Lawyer, the court must exercise extreme care in making a decision which would substantially change the status quo. Although there is no presumption that a status quo governs, the case law is clear that there must be compelling circumstances warranting a change in the status quo: see Ceho v. Ceho, 2015 ONSC 5285 and the cases cited therein, including Batsinda v. Batsinda, 2013 ONSC 7869, Green v. Cairns and Papp v. Papp, [1970] 1 O.R. 331(C.A.). The test has been discussed as being compelling reasons (Batsinda and Papp) or a “high threshold” (Green). In Grant v. Turgeon, MacKinnon J. notes the required circumstances for an interim variation of custody as being “exceptional circumstances where immediate action is mandated.”

[11] The reasons for requiring a high threshold are clear; to change custody of a child when trial is pending runs the risk that the child will then have to go through two changes rather than one, especially if he or she is moved to another household after trial. Also, evidence on a motion is not particularly credible as the court must rely upon conflicting affidavits. The status quo is a powerful indicator of a child’s best interests and it is, if possible, best to push a change in custody to trial if possible as this is where a child’s best interests can be best addressed.

[12] Accordingly, if a change is to be made at an interim motion, the court should rely upon evidence that is largely uncontested; the court cannot rely upon conflicting affidavits or evidence requiring a finding of credibility.

[13] I firstly find that there is clear evidence that there has been a change in circumstances, in particular as to the circumstances of the applicant father, Mr. Lonsdale. He acknowledges in his affidavit problems with substance abuse, in particular drugs and alcohol. He says, however, that he has been sober since July 26, 2017. He has stable housing and employment, including mandatory drug testing necessary to maintain that employment. He has support from his family including his mother, who is a social worker, and his fiancé. All of those are improvements over his circumstances since the parties separated in 2011, when there were serious stability problems with the applicant as recited in both parties’ affidavits.

[14] As well, things have deteriorated concerning the children in the mother’s care. Landon, in particular, is troubled and had suicidal ideation requiring counselling at Kinark. The children have had numerous absences and late arrivals at school. There was an altercation between the respondent and her mother and, in October, the respondent did not have stable housing, requiring Society intervention. There is no doubt that circumstances have changed since the original 2012 order which granted the respondent final primary residence of the children.

[15] As well, and unfortunately, I also find that these changes in circumstances constitute sufficient “compelling circumstances” which would warrant a temporary change in custody from the present long-term status quo.

[16] These compelling circumstances are not so much in the “relationship” factors mentioned in subparagraphs (a), (b) and (h) of the CLRA noted above. In fact, the relationship factors may militate against a change in care. Ms. Bromley confirmed on behalf of the children that both of them want to continue living with their mother (although Faith said she did want to see more of her father). There was no evidence of any sort of difficult relationship between the children and their mother; in fact, both parents appear to offer the children love and affection in equal measure.

[17] It is under the other enumerations of s. 24(2) of the CLRA, the so-called “stability” factors, that the real problems for the mother occur. She has failed abysmally to provide a stable home for the children. The evidence is clear and unequivocal in this regard.

[18] Firstly, the children’s attendance records at their school indicate that Ms. Smart has failed to ensure that the children attend at school on a consistent basis. The correspondence from the school shows that Faith had, as of March 20, 2018, “been absent 32 times and late 22 times” (emphasis theirs). [3] Up-to-date attendance material was not made available concerning Landon, but in 2017, he had 26 absences with 19 lates [4]; the Kinark material stated that as of the date of their closing summary report, January 15, 2018, Landon had had 21 absences in the 2017-18 school year.

[19] When questioned about this, Ms. Smart’s counsel said that Ms. Smart had recently received counselling as to the importance of the children attending school and was doing better at doing so. There was no evidence of this “improvement” in any of the documentation or affidavits provided and I have to ask why any parent would need counselling or advice to understand that consistent school attendance is in the children’s best interests?

[20] I had also mentioned above that Landon is extremely troubled. He has been diagnosed with a Learning Disability and Oppositional Defiant Disorder. More distressing is the fact that the school had referred Landon to Kinark for counselling because he had suicidal ideation and had made statements such as “I want to die” or “kill me”.

[21] The fact that Landon is troubled is not necessarily the fault of Ms. Smart. To blame one parent or the other for a child’s psychological problems is both presumptuous and dangerous, especially on an interim motion. However, what is concerning to the court is the fact that Ms. Smart did not engage in his therapy, nor did she see fit to make sure that this extremely troubled young boy made it to his therapy sessions. The Kinark discharge summary noted that, “[a]ttempts were made to meet individually with Ms. Smart for the purposes of identifying a parenting goal; however, Ms. Smart’s attendance was inconsistent and therefore a goal was unable to be established.” In conclusion, the counsellor notes that “minimal progress has been made addressing parenting needs and establishing a more stable living situation for Landon”, partly because of the conflict between Mr. Lonsdale and Ms. Smart, but also partly because of “poor session attendance.” [5]

[22] Later, the counsellor noted that “Landon reportedly has several gaps in his learning due to his high level of absenteeism and is below grade level in all subjects” and that he is noted by classroom staff to be “fatigued” and “emotionally shut down”. The counsellor notes that Landon arrives at school “without lunch” at times and sometimes has “trouble sleeping during school nights due to his mother’s friends being over and engaging in alcohol consumption.” These statements about Landon’s schooling are, effectively, double hearsay as these are statements made by school officials to the counsellor who has not sworn an affidavit in this motion. However, even though inherently unreliable, these statements corroborate the neglect of the children’s schooling as alleged by Mr. Lonsdale, and the school attendance records. And Landon’s fatigue at school was confirmed by his own report card issued on November 15, 2017. [6]

[23] Furthermore, Ms. Smart’s home appears to be inherently chaotic and unstable. In October, 2017, Ms. Smart did not have stable housing for the children and had to turn to Mr. Lonsdale and the local CAS for assistance. One of the reasons that she had these issues was Ms. Smart’s mother’s alcohol consumption, which had resulted in an altercation between herself and her mother, resulting in criminal charges against Ms. Smart which are still outstanding. [7] In the most recent CAS notes of a Rapid Response Conference held at their offices on June 20, 2018, there was evidence that Ms. Smart had been recently “attacked in the home of a friend” when Landon was present. The attack was with a “knife with a cover” and Ms. Smart did not report it to police because the attacker was incarcerated on other charges and she did not want to be seen as a “rat.” [8]

[24] As well, Mr. Lonsdale complains of late pickups of the children after access, well after their bedtime. He notes as well that he can never get in touch with Ms. Smart because she keeps changing her cell phone. This is confirmed to be a problem as well by the Kinark counsellor, who noted that “Ms. Smart does not always have access to a telephone which has complicated treatment as she is often unable to be reached.” This is especially concerning as this has been a problem of long standing: Paragraph 3 of the order of Olah J. made March 12, 2014 provided that the “Respondent, Michelle Smart shall update her cell phone plan to ensure that the Applicant, Jacob Lonsdale can contact her or the children at any time.” More than four years later, the same problem exists, and Ms. Smart has no consistent means of communication between herself and Mr. Lonsdale, the school or the counsellor.

[25] Corroborating these “stability” factors, which militate against leaving these children in the care of Ms. Smart, are statements made by counsel for the OCL, Ms. Bromley, from the counsel table. Ms. Bromley stated that both children wished to remain in the care of their mother. However, she also stated that she was extremely concerned because of her meetings with collateral sources who deal with the children. She confirmed that the principal of the children’s school told her that these children have been to six or seven schools at this point in their young lives. She was told that Landon falls asleep in class and is extremely fatigued. The principal suggested that Landon does not have a bedtime and plays video games until late. The family doctor told Ms. Bromley that Ms. Smart has missed numerous appointments, and the children are “years behind” in their immunizations. Ms. McGann responded, again from the counsel table, that the immunizations are now up to date; however, these statements by children’s counsel, although not evidence and not contained in any affidavit and therefore not admissible, were not objected to and also corroborate the evidence of instability properly before the court in this motion.

[26] Ms. Smart says that these are issues that have resulted from her own financial situation, and she can do little about them. She has undertaken to make sure that Landon will make it to his counselling at New Path, not yet scheduled, but pending. I do not want to use Ms. Smart’s poverty issues against her; however, the problem with the cell phone was supposed to have been dealt with four years ago and was not. The financial issues have nothing to do with the children’s attendance at school and if Ms. Smart has done nothing about the children’s school attendance during the currency of this motion to change, when she is under the scrutiny of the court, it appears that these stability problems will remain both entrenched and insoluble by Ms. Smart.

[27] I must also contrast Ms. Smart’s situation to Mr. Lonsdale’s plan for the children. Although he goes to work early and will rely upon his mother or girlfriend to get the children off to school, he says that he will be home in the evenings and can ensure that the children get their homework done and that they get to bed early on school nights. His mother has sworn an affidavit that confirms that she will assist where necessary. Mr. Lonsdale has given the court a plan which will ensure that the children will receive the consistent parenting and the stable household that they need.

[28] All of this leads me to conclude that there are sufficiently compelling circumstances to warrant an immediate change in primary residence for these children. The school absences and the failure to attend at Kinark are contained in reports which speak for themselves. These reports are corroborated by other uncontradicted evidence, and the school absences are not seriously disputed by Ms. Smart. She makes excuses for her behaviour, but it is apparent that life for Ms. Smart and her children, has been clearly insecure over the past year and these children increasingly need, as they age, a stable residence.

[29] I realize that I make these findings contrary to the views and preferences of the children as expressed to Ms. Bromley. I note, however, that Ms. Bromley confirmed that Faith was a “young 8 year old” and somewhat immature. And if it is correct that Ms. Smart permits Landon to play video games late and avoid attending at school, I am concerned as to the basis for Landon’s views and preferences, especially considering the fact that he is emotionally challenged on a number of levels. The views and preferences of the children, considering their ages and maturity levels, are trumped by the stability issues discussed above.

[30] I am therefore, on a temporary basis, ordering that care and control of the children be changed from Ms. Smart to Mr. Lonsdale. Ms. Smart will receive the access that Mr. Lonsdale has now, which is every second weekend as well as Tuesday and Thursday evenings from after school to 9:00 p.m.

[31] There shall therefore be a temporary order on the following terms:

a. On a temporary basis, paragraph 1 of the order of Mulligan J., dated January 13, 2012, shall be varied to provide that primary residence of the children shall be with the applicant.

b. On a temporary basis, paragraph 3 of the said order, as well as paragraphs 5, 6 and 7 of the order of Olah J., dated March 12, 2014, and paragraphs 2 and 3 of the temporary order of Eberhard J., dated May 11, 2017, shall be varied to provide that the respondent shall have access to the children as follows:

i. Every second weekend from Friday at 6:00 p.m. to Sunday at 6:00 p.m. to be extended to Monday at 6:00 p.m. when access falls on a long weekend;

ii. Tuesday and Thursday evenings from after school to 9:00 p.m. During the summer school vacation, this access shall commence at 4:00 p.m.;

iii. Shared summer care and control as set out in paragraph 5 of the order of Eberhard J. to continue; and,

iv. Such further and other access as the parties may agree.

c. The parties shall continue to divide the pick-up and drop off of the children for access as set out in paragraph 3 of the said order of Eberhard J.

d. Child support payable by the applicant under paragraph 1 of the order of McCarthy J. shall be forthwith suspended.

[32] The parties may provide written submissions as to costs, the applicant first and then the respondent second on a ten day turnaround. Costs submissions shall be no more than three pages in length not including offers to settle and Bills of Costs of the parties.

McDermot J.

Date: June 25, 2018

Footnotes

[1] This order does not speak to primary residence of the children, only access, and was made pursuant to a motion to change brought by the respondent in 2013 where custody and access to the children was in issue. It effectively confirms the status quo by specifying the applicant’s access to the children. [2] R.S.O. 1990, c. C.12 [3] Affidavit of Jacob Lonsdale, sworn June 14, 2018, Ex. E [4] Ibid. Ex. F [5] Kinark Child and Family Services Discharge Report, dated January 15, 2018, Ibid., Ex. G [6] Affidavit of Michelle Smart sworn June 7, 2018, Ex. A [7] I was advised that the trial date for one of these charges, a breach of bail, was to take place on Monday, June 25, 2018. [8] See Minutes of Rapid Response Meeting of June 20, 2018 at Tab 12 of V. 3 of the Continuing Record. Although this was not attached as an exhibit to any affidavit, both counsel referred to these Minutes in argument and appear to have consented to it being evidence on the motion.