Court File and Parties

COURT FILE NO.: FC-15-148 DATE: 20200703 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Megan Belcourt Applicant – and – John J. Charlebois Respondent

Counsel: Dale Lediard, Counsel for the Applicant Self-Represented (for the Respondent)

HEARD: July 2, 2020

Ruling on Motion

McDermot J.

1 On July 2, 2020, I heard a motion brought by the Applicant for an order returning her 8 year old child to her care.

2 On July 2, 2020, I heard a motion brought by the Applicant for an order returning her 8 year old child to her care.

3 The parties have two children, Cadence, who is 13 and Keegan who is 8. By final order of Wood J. dated May 12, 2015, the parties share custody of those two children on a week about basis.

4 Cadence elected not to go back to her mother’s care in June 2019. The Applicant says that Cadence was convinced by the Respondent not to return to the week about. Mr. Charlebois says that Cadence made this decision because of the Applicant’s treatment of Cadence.

5 On April 10, 2020, the Respondent also withheld Keegan. He said that he was doing this because of Covid-19 and because he alleged the Applicant was not taking sufficient precautions with regard to social distancing. On May 12, 2020, the Applicant served her motion for an urgent motion on the Respondent and two days later the Respondent agreed to resume the week about time sharing regime.

6 On May 26, 2020, Keegan’s 7 year old cousin disclosed that, while in the Applicant’s care, she was left alone in a room with Keegan and there was sexual contact between the two children. She also disclosed that they had viewed pornographic images on the cell phone supplied by Mr. Charlebois. The local C.A.S. became involved. After Keegan was returned to the Respondent’s care on May 29, the Respondent again refused to return Keegan to the Applicant’s care for the following week and Keegan continues to be in the care of the Respondent, contrary to the May 12, 2015 order.

7 The Respondent again raises the issue of social distancing as Keegan was playing with his cousin, obviously in close quarters. However, he also accuses the Applicant of lying in two affidavits, and in failing to adequately supervise Keegan.

8 Ms. Belcourt seeks an order for a return to the status quo week about arrangement in respect of Keegan only. She also seeks an order for enforcement of the terms of the Wood J. order.

9 She also seeks an order penalizing the Respondent in the amount of $50 per day for each day that he withheld Keegan from the Applicant contrary to the final order.

[10] During argument, the parties agreed to the appointment of the Office of the Children’s Lawyer. Mr. Charlebois pointed out that Cadence is represented by Julia Bailey and hoped that she would also represent Keegan. That is, of course, up to the Office of the Children’s Lawyer.

Time Sharing Arrangement

[11] Ms. Belcourt brings a motion to return the child to the week about time sharing arrangement as well as for police enforcement.

[12] The ultimate test for any care arrangement for a child on an interim motion is best interests of that child: see s. 19 (a) and s. 24 of the Children’s Law Reform Act. The best interests of any child is usually reflected by the terms of agreements between the parties such as the consent order made by Wood J. on May 12, 2015, wherein these parties agreed that it was in the best interests of their children that they reside with both parents on a week about basis.

[13] Because of this, the caselaw has always been consistent that to change a status quo on an interim motion requires urgent or compelling circumstances. In Miranda v. Miranda, 2013 ONSC 4704, Mitrow J. stated that the party seeking to change a status quo has a very high onus, clarifying at para. 26 that a “party wishing to disturb an interim status quo or vary an interim order faces a strong onus to produce cogent and compelling evidence to show that the physical, mental and moral welfare of a child would be in danger in maintaining the status quo: McCarthy v. Scheibler, 1999 CarswellOnt 3419 (Ont. S.C.J.) at para. 14.” In Elliott v. Filipova, 2019 ONSC 4506, B. Abrams J. confirmed that, in an interim motion, custody and access should be dictated by the child’s best interests, but, citing Miranda, that “ [t]o disturb the status quo, there must be compelling evidence to show the welfare of the child would be in danger in maintaining the status quo, namely the evidence must clearly and unequivocally establish that the status quo is not in the child's best interests” [para. 25].

[14] There is good reason for this. On an interim motion, the court is dealing with conflicting affidavits and there is little ability to make credibility findings on those affidavits. The evidence is uncertain and unclear other than the status quo itself. For example, in the present case, there was a clear conflict on the evidence as to what the Applicant knew or did not know about an incident of sexual touching by Keegan which took place at Burl’s Creek about a year ago.

[15] Mr. Charlebois has filed, as part of his materials, a draft Motion to Change custody which he says he has been unable to file because of Covid-19. Therefore, Mr. Charlebois is requesting a change in the care arrangements concerning Keegan. Because of this, we have to take into account that, if the court changes time sharing on a temporary basis and then the court at trial changes it again, the child has gone through two changes in custody rather than one. It is evident that this cannot be in the best interests of any child especially where, as in the present case, the Respondent has overheld the child and arbitrarily changed the time sharing arrangement on two occasions in the last three months.

[16] Mr. Charlebois seems to blame the Applicant for Keegan’s sexualized behaviour. He says that about a year ago, Keegan was at Burl’s Creek with the Applicant and went into one of the portable washrooms with the same cousin involved in the May 25 incident. He says that there was sexual touching during this incident, and that the Applicant knew about this and did nothing.

[17] The Applicant denies that she knew anything about any sexual touching. She acknowledges that her uncle saw the two children go into the structure, but there was never any disclosure about sexual touching until the C.A.S. became involved after May 25.

[18] The Respondent claims that there is a risk of harm to the child resulting from the lack of supervision by the Applicant. However, the Applicant was not out of the home; she was in another room exercising while the children played together. Unless the Applicant knew that the children were up to some mischief, it is not negligent to allow a seven and eight year old child to play and interact with each other in another room; it happens all the time. The Respondent admitted during argument that the Children’s Aid Society safety plan requiring constant supervision by both parties of Keegan was difficult to maintain in his own household. The Applicant’s leaving the children alone is also consistent with her narrative that she was not aware of the Burl’s Creek incident other than what her uncle had seen.

[19] And more importantly, this has been addressed by the Children’s Aid Society which is investigating the occurrence. The Society has filed a letter dated June 17, 2020, which states that the investigation is underway. The letter states that there is a safety plan involving direct supervision of Keegan by all adults who are in charge of him. It states that no young child will be left alone with Keegan or shall share a bedroom with Keegan. The use of electronics and cell phones is also to be supervised. Assuming this safety plan is adhered to, the Society “is satisfied that the child can be protected at present with the current safety plan in either parent's home pending conclusion of the investigation.” [^1] In other words, the Society believes that the alleged failure to supervise by the Applicant does not create a protection concern for Keegan while in her care.

[20] Finally, I note that the pornographic images were on a phone supplied by the Respondent. That being the case, although the Applicant could have been more diligent in supervising Keegan and his cousin, the same might be said of the Respondent’s supervision as to the contents of the phone that was being used by Keegan to view the pornographic images. There is no explanation offered as to where the images came from. Although the Respondent claims that the phone did not have a data plan and Keenan managed to go onto the Applicant’s wifi, that again is not necessarily lack of supervision as many young children use the internet without the risk of viewing pornography.

[21] The Respondent also says that the Applicant lied on two affidavits and as well that the Applicant and the Society worker, Deanna, lied to him when a previous investigation was underway. However, a review of the Respondent’s affidavit does not disclose any particulars whatsoever of these lies, either by the Applicant or the Society worker (who is a different worker from the author of the June 17 letter). There is no evidence in the Respondent’s affidavit as to purported lies by the Applicant or a C.A.S. social worker.

[22] The Applicant goes through a number of other concerns (failure to do homework, a spoiled lunch, an affair with a married man). None of these are compelling reasons warranting a change in a long term care arrangement.

[23] I am also concerned that the Respondent has been speaking with the child in an attempt to gather evidence as suggested by his affidavit. In paragraph 14, Mr. Charlebois says that Keegan has told him that he feels “neglected by his mother.” In paragraph 16, he says that Keegan told him that his mother was not “social distancing” and in paragraph 20, he begins the paragraph by saying, “When I was talking to Keegan Charlebois about everything that happened when he was with his mother for that week” which raises the concern of whether the Respondent was pressing Keenan for evidence as to what occurred at his mother’s home.

[24] Finally, I do not find that the failure of the Applicant to keep Keenan six feet from his cousin is a sufficient failure in social distancing to result in a change in custody. For example, in Ontario day care centres, children do not have to physically distance within their own cohort (group of 10 children); it need only be “encouraged”. [^2] Children will inevitably play together, and some say that it is more harmful to prevent social interaction between children than it is to insist upon isolation and physical distancing.

[25] I am therefore not satisfied by the Respondent’s material that there are sufficiently compelling circumstances which would result in a change in the long term week about status quo. The parties will return to that status quo forthwith, with the next two weeks to be spent with the Applicant as make up time for the time that she missed during the past month.

[26] This is the second overholding incident that has occurred in the past two months. There shall be an order for police assistance in enforcing the terms of the order of Justice Wood made May 12, 2015.

Contempt Issues

[27] The Applicant requests a monetary penalty for the missed weeks over the past month since May 29.

[28] Based upon the Applicant’s factum, this order is requested as a consequence of the Respondent’s contempt of the Wood J. order. There is no other jurisdiction to make such an order: Rule 1(8) of the Family Law Rules does not permit the ordering of a fine, and it can therefore only be ordered under Rule 31 (contempt). Therefore, to make this order requires a finding that the Respondent is in contempt of the Wood J. order made May 12, 2015.

[29] However, nowhere in his motion, does the Applicant request an order that the Respondent be declared to be in contempt of the Wood J. order. He only asks for the penalty without a request for a finding.

[30] Contempt is a quasi-criminal proceeding whereby the court must find that the contemnor is in wilful or intentional breach of an order beyond a reasonable doubt: see S.M. v. R.M., 2019 ONSC 42 at para. 14. The fact that this is a quasi-criminal remedy with criminal penalties such as the fine requested means that the pleadings must specifically support the remedy. In the present case, they do not: there is no request that I find that the Respondent is in contempt of the order or that I declare the Respondent to be in contempt of the order. Without that request, especially when the Respondent is self-represented, he may very well not have addressed the criteria for a finding of contempt in his affidavit. That is prejudicial to the Respondent.

[31] That is supported by the fact that rule 1(8) (g) states that in the event of a breach of a court order, the court may, on motion, make a contempt order. In the present case, there is no motion for a contempt order, only for a penalty.

[32] Moreover, in a contempt proceeding, the material must be personally served and it must be a motion according to Form 31 which contains a specific warning as to the consequences of contempt: see Rule 31(2) of the Family Law Rules and Form 31. This rule was not adhered to by the Applicant as the material was served by email and Form 31 was not used. Again, as this is a request for a quasi-criminal remedy, the rules concerning contempt must be strictly adhered to unless there is good reason to order otherwise. No reason was given as to why I should waive the provisions of that rule.

[33] The Applicant’s motion for a penalty by way of a fine for missed visits is therefore dismissed.

Order

[34] There shall therefore be a temporary order as follows:

a. The parties shall forthwith return to the week about arrangement in respect of Keegan as contained in the final order of Wood J. dated May 12, 2015.

b. The child Keegan shall be forthwith returned to his mother’s care and shall spend the next two weeks with his mother as make up time for the weeks missed because of the Respondent’s failure to adhere to the week about arrangement and the final order in this matter. Once that two week period expires, the child shall return to his father’s residence for the recommencement of the week about arrangement.

c. The police force having jurisdiction shall enforce the time sharing provisions of the order of Wood J. dated May 12, 2015, and specifically the week about time sharing provision in that order as per Schedule A attached hereto.

d. On consent, and upon the Respondent filing his Motion to Change custody of Keegan, the Office of the Children’s Lawyer shall be requested to provide representation to Keegan.

e. The Applicant’s motion for a penalty by way of fine for missed time sharing is dismissed.

[35] The Applicant has been largely successful in this motion, and Mr. Charlebois is guilty of unreasonable behaviour in that he has failed to obey a court order on two occasions. The Applicant shall have her costs of this motion.

[36] The parties have leave to make submissions as to the quantum of the costs payable by the Respondent to the Applicant by way of written submissions, with the Applicant providing her submissions first and then the Respondent on a 10 day turnabout. Costs submissions shall be filed with the Judicial Assistant and shall be no more than three pages in length, not including bills of costs or offers to settle.

[37] Because of the Covid 19 emergency this order is being issued under my electronic signature. This order is enforceable without the present need for a signed or entered formal order/judgement. Once the Court resumes normal operations a copy of this order shall be filed with the court. This order is an effective and binding order through its issuance under my electronic signature and I am directing that the judicial assistant email a copy of this to the parties

Justice J.P.L. McDermot Released: July 3, 2020

Schedule A

1. Pursuant to section 141 of the Courts of Justice Act and section 36(2) of the Children's Law Reform Act, the Ontario Provincial Police, the Local Police having Jurisdiction and all enforcement officials to whose attention this Order is brought, in the Province of Ontario, in the area where the child is located, shall assist as required for enforcing the provisions of this Order as well as the order of Wood J. dated May 12, 2015 and shall specifically take all such action as required to locate, apprehend and deliver the said child to the applicant, including utilization of the powers of search and entry at any time.

2. This Order shall expire upon the earlier of a final order in this proceeding or December 31, 2021.

Justice J.P.L. McDermot

Footnotes

[^1]: Ex. A to the Applicant’s affidavit sworn June 23, 2020. [^2]: See Ontario Ministry of Education, Operational Guidance During COVID-19 Outbreak – Child Care Re-opening (Queen’s Park, 2020) at p. 17 and found at http://www.edu.gov.on.ca/childcare/child-care-re-opening-operational-guidance.pdf.