Court File and Parties

COURT FILE NO.: FC-22-665 DATE: 2023/03/23 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Marco Levesque, Applicant AND: Tracey Bond, Respondent

BEFORE: Justice Ian Carter

COUNSEL: Alaina Woolfrey, for the Applicant Francis Aheto-Tsegah, for the Respondent

HEARD: February 28, 2023

Endorsement

[1] The Applicant Father brings a motion seeking interim orders with respect to parenting time, decision making and communication between the parties. In addition, he asks that portions of the Respondent Mother’s pleadings be struck as a result of failing to provide court ordered disclosure. The Respondent Mother has brought a cross-motion which deals with similar issues. On the issue of disclosure, the Mother’s position is that it has mostly been provided now (with the remainder to be provided shortly) and that the striking of pleadings is too extreme.

[2] By way of background, the parties began living together in December 2019. There is one child of the relationship, Paisley Levesque, born February 17, 2020. The Mother moved out of their shared home in September 2021 but continued to work on the relationship until December of that year. The parties have never entered into a cohabitation agreement, parenting agreement or separation agreement.

[3] The Father was charged with uttering threats and assault on the Mother as a result of an incident that occurred on December 1, 2021 (he vehemently denies the allegations). As a result, he was on release conditions that restricted communication with the Mother until June 27, 2022. At that time, he entered into a peace bond and the charges were stayed. The conditions of the peace bond continue to restrict communication unless with the Mother’s written revocable consent or as permitted by a Family Court Order. The conditions have since been varied to allow for communications and meetings regarding Paisley.

[4] In his original application, the Father primarily sought some additional parenting time. However, as a result of information he obtained about an incident that occurred on December 31, 2021, he now seeks primary parenting (with some parenting time for the Mother) and sole decision-making responsibility. For her part, the Mother seeks to maintain the status quo with respect to parenting time (Paisley primarily with her with the Father having alternate weekends and alternate midweek Wednesday evenings) but also wishes to have sole decision-making responsibility.

[5] Originally, the disclosure of child protection records was also an issue, but the relevant documents have now been received and an order is no longer required. In addition, the parties have agreed on the use of Our Family Wizard to communicate moving forward. There will be an interim order that the parties shall register to use the web-based communication tool Our Family Wizard for all communications and that the parties shall:

a. Keep all communications relevant to child issues; b. respond to any inquires by the other within 24 hours; and c. promptly update the other parent with any information received from a third- party regarding Paisley, including report cards, assessments, medical prescriptions, etc.

[6] As a result, the contested issues are parenting time, decision making and the outstanding financial disclosure.

Parenting Time

[7] The Father submits that given the Mother’s ongoing actions to minimize his role in Paisley’s life, and in light of an incident that occurred in December 2021 (but which he just learned about), Paisley should be placed in his primary care. It is the Mother’s position that the status quo should remain in effect, with Paisley being primarily in the Mother’s care with the Father exercising parenting time on alternate weekends from Friday at 12 pm until Monday at 12 pm and alternate Wednesdays from 4 pm to Thursdays at 9 am.

[8] The best interests of the child are paramount and the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”) solidifies that any parenting order or contact order must be determined based only on an analysis of the child’s best interests.

[9] It is in the best interests of a child to have a meaningful relationship with both parents: Pereira v. Ramos, 2021 ONSC 1737, at para 26.

[10] However, above all else, the primary consideration that the court must consider is a child’s physical, emotional, and psychological safety, security and well-being: Pereira at para 13.

[11] Other relevant considerations contained in the CLRA include:

Factors

24(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.

(k) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child. 2020, c. 25, Sched. 1, s. 6.

[12] As set out by Justice Kraft, in White v. Kozun, 2021 ONSC 41 at para 174, no single criterion is paramount and “the weighing of each criterion will depend on the circumstances of the particular child.”

[13] The status quo will be maintained on an interim motion in the absence of compelling reasons indicative of the necessity of a change to meet the children’s best interests. See: Chaput v. Chaput, 2021 ONSC 2809.

[14] However, the importance of the status quo may be diminished in cases where one party has imposed the status quo and the other party has not acquiesced (see L.M.B. v. F.J.D., 2020 ONCJ 239, at para. 31; Pereira at para. 38).

[15] I will begin with a discussion of the incident that has caused the Father to seek primary care of Paisley. On December 31, 2021, Paisley got into the Mother’s medication storage area. It appears from the medical report that she may have licked the coating of a Hydromorph pill. Paisley was taken to CHEO to be assessed and was discharged shortly after. The Mother says that Valoris investigated the matter and closed the file as they were no child protection concerns. A letter from Valoris is attached to the Mother’s affidavit, although it is unclear if it relates to the incident in question.

[16] While this incident is concerning, the Mother immediately took Paisley to the hospital and was forthright with the staff about what had happened. She has since put all of her medication in a locked cabinet. There were no criminal charges. It appears to have been an accident. The incident is dated and there is no indication of any further health and safety issues with respect to the Mothers’ care of Paisley. What occurred does not justify the drastic change in parenting time that the Father requests.

[17] The real issue is whether a more moderate change in the parenting time would be in Paisley’s best interests.

[18] This is not a case where the Father has acquiesced to the status quo. He has repeatedly sought more parenting time with Paisley. He feels frustrated by the Mother’s unwillingness to both allow for more parenting time and to communicate about Paisley.

[19] It is clear from the evidence before me that part of the problem has been that the Father has been under conditions resulting from the criminal charges he faced. This has made communication difficult, which in turn has affected parenting time. While the Mother has been reluctant to provide more parenting time, I do not find that she has actively tried to frustrate it. As conceded by counsel for the Father at the hearing, there is no evidence of parental alienation.

[20] Given the child’s age, stage of development and the need for stability, it would not be in her best interest to drastically change the parenting time schedule. There is conflicting evidence as to Paisley’s level of anxiety when she has parenting time with her Father. While it is impossible to resolve this difference on affidavit evidence alone, there is sufficient independent evidence that she suffers from some anxiety. However, both parents appear to have a good relationship with their daughter and the evidence of Paisley’s anxiety does not rise to the level that would necessitate restricting the Father’s parenting time. Indeed, the Mother agrees that Paisley should continue to have parenting time with her Father.

[21] It is important that the relationship between Paisley and the Father develop and thrive. I find that it would be in Paisley’s best interest for the Father to have some additional parenting time. There will be an interim order that Paisley be primarily in the Mother’s care with the Father exercising parenting time on alternate weekends from Friday at 12 pm until Monday at 12 pm and every Wednesday from 4 pm to Thursday at 9 am. Further and other parenting times may be agreed upon by the parties. All parenting exchanges shall occur at Drummond’s Gas Station located at 5501 Bank Street, Ottawa.

[22] The Mother seeks additional orders with respect to the parenting routine while Paisley is the Father’s care. They are designed to provide stability and are in Paisley’s best interest. The Father shall maintain a consistent parenting routine to support and compliment the Mother's routine for the child including sleep training and toilet training. The Father shall notify the Mother of the special activities and trips that he will be doing with the child so she can provide the necessary protective attire.

Decision-Making/Crossroads

[23] Both parties seek sole decision-making. In addition, the Mother asks for an order that the Father sign the required consent for Paisley to access services at Crossroads Children’s Centre and First Words Preschool Speech and Language program to assist with her delayed language skills and developmental/behavioral issues. The Father says that he has already given his consent.

Crossroads

[24] In August 2022, the Children’s Aid Society of Ottawa became involved with the family due to the Father’s refusal to provide the Crossroads and First Words consents. The CAS substantiated a “risk of impairment to the child’s development due to a lack of consent by the parent.” However, the refusal to provide consent was not considered a child protection concern and the CAS noted it could not mandate consent.

[25] In a reply affidavit, the Father states that he has provided consent and that the Mother is being misleading. However, the email in which consent was purportedly provided came with the following caveat:

To be fully transparent iv signed it without being fully informed about the program and without crossroads fulfillment of all items on there consent form and this consent im giving is for a single walk in clinic appointment witch I am to be involved in the time and date booking of the appointment”

[26] In other words, the Father had not given his full consent.

[27] At the hearing, counsel for the Father indicated that he would now give his full consent. Even if he had not, I would have granted the order that the Mother sought. There will be an order that the Father shall within 10 days sign the required consent for Paisley to access services at Crossroads Children’s Centre and First Words Preschool Speech and Language Program.

Decision-Making

[28] It is evident from the materials, that the Father feels extremely frustrated by both the lack of information he is receiving about Paisley and his inability to provide meaningful input into the decision-making. While part of the issue may be as a result of the conditions stemming from the criminal process, it does not appear to be the whole explanation. The parties are reminded that there is already an order in place that both parties shall have equal access to all medical, school, daycare records and information to Paisley upon request.

[29] That said, when it comes to decision making, I have concerns that the Father would have placed his desire to obtain information above the health needs of Paisley. Under the circumstances, it would not be in her best interest to have the Father as the sole decision maker. That does not, however, lead to the conclusion that the Mother should have sole decision making. Other than on the issue of Crossroads/First Words, there is a paucity of evidence that the parties are unable to agree on major decisions at this stage (and even there, the issue was not so much divergent views as the Father acting unreasonably out of frustration).

[30] It may be ultimately determined after a trial that joint decision-making is not appropriate given the level of conflict between the parties. However, I am unable to make that determination at this stage. Nor can I make an interim order for joint decision-making when, as here, there may not be a good history of communication between the parties (see Goodyear v. Burton, 2016 ONSC 4583 at paras. 46 to 48). Therefore, there will be no order as to decision-making pending further order of this Court.

Outstanding Financial Disclosure

[31] On September 7, 2022 the parties attended a case conference which resulted in a disclosure order with numerous items to be exchanged within 45 days. The disclosure items ordered mirrored what the Father has been asking for previously but had gone unanswered or unfulfilled. The Father complied with the Order by the deadline of October 24, 2022. The Mother did not. On November 9, 2022, the Father’s counsel wrote to the Mother’s counsel requesting that the disclosure be provided by November 15th, following which they would seek a motion to dismiss or strike her pleadings.

[32] In an affidavit dated February 22, 2023, the Mother stated that her lawyer was in ill-health for a period of time and that the majority of the disclosure was provided on February 21st. The Father acknowledges receipt of that disclosure but notes that there remain deficiencies:

a. The Mother was to provide proof of income from Scentsy from 2019 to present, however, only a statement from 2021 and a handwritten note were provided. b. The Mother was to provide disclosure of her cash income from Dolphin Dentistry from 2019 to the present. What was provided was a text message with an unidentified person named “Mike” and a typed message from an unidentified person. c. The Mother was to provide disclosure of the balance of her RDSP by way of a formal statement. She concedes she has not provided this. d. The Mother was to provide disclosure of all the investment account that held a previous settlement (or evidence of closure). She has not indicated whether this has been provided.

[33] I find that there has been non-compliance with the order of Associate Justice Fortier dated September 7, 2022. As a result, the issue becomes one of remedy. Where late disclosure is provided, it is preferable to order costs, rather than strike the pleadings: Vogl v. Vogl, 2007 ONCA 303. Here, the bulk of disclosure has now been provided, albeit significantly late and only after a motion to strike pleadings was brought. The most appropriate remedy would be to order costs in conjunction with an additional disclosure order. The Mother shall provide the following within 30 days:

a. An affidavit confirming the total income received from Scentsy from 2019 to the present, along with any corroborating documents; b. An affidavit confirming the income received from Dolphin Dentistry from 2019 to the present, an explanation of the text messages from “Mike” previously disclosed and an explanation as to the author of the typed message previously disclosed; c. Disclosure of the balance, with a statement, of the Mother’s RDSP; and d. Disclosure of the investment account that held a previous settlement received by the Mother, or evidence of closure.

Costs

[34] Success on this motion was divided and, as a result, I would normally order no costs payable by either party. However, as noted above, the most appropriate remedy for the Mother’s late disclosure and on-going non-compliance is an order for costs. The Mother shall pay the Father’s costs of this motion.

[35] If the parties are unable to agree on the quantum of costs for this motion by April 30, 2023, written submissions of no more than three pages, along with bills of costs, may be provided to me at 10 day intervals to scj.assistants@ontario.ca and I will make a decision.

Carter J. Date: March 23, 2023 Released: March 23, 2023