Court File and Parties

Court File No.: FO-16-0062-01 Address: 125 N. Brodie Street, Thunder Bay, ON Date: 2019-10-09

Ontario Court of Justice

Between:

JORDAN BRIMMELL Applicant

— AND —

INA WESTERMANN Respondent

Before: Justice D.J. MacKinnon

Heard on: July 25 and 26, 2019

Reasons for Judgment released on: October 9, 2019

Counsel:

• Michael Cupello, for the Applicant
• Kevin Brothers, for the Respondent

Judgment

MACKINNON, J.:

Background and Initial Order

[1] On June 1, 2016 an Order was made by the Honourable J. Elder, upon the filing of Minutes of Settlement by the parties. The Order provided, in part:

The applicant, Jordan Brimmell and the respondent Ina Westermann shall have joint custody of the child, Sky David Westermann-Brimmell born […], 2015.

Each parent will have the said child in their care on a two-week rotating basis. The said applicants two week-period shall begin June 23, 2016 at 6:00 p.m., or at such other times as the parties may agree.

[2] Ms. Westermann brought a motion to change the said order on June 1, 2017, seeking custody of Sky and access for the father, along with support. Mr. Brimmell responded by seeking custody of Sky and access for the mother, along with child support.

[3] This matter proceeded to trial before me on July 25 and 26, 2019. At that time Mr. Brimmell withdrew his request for relief including sole custody. He wished to challenge whether there had been a material change in circumstances and, if successful, have the custodial situation revert to the Order of Justice Elder from June 1, 2016.

Pre-Event

[4] The parties entered into Minutes of Settlement on the day of the Order. Each party had independent legal advice from a duty counsel lawyer. The Minutes include the custody and schedule, along with a provision for further reasonable access, vacation time, no child support as the incomes were similar, a 50/50 split on extracurricular expenses and s.7 expenses, notice if the child is to be removed from the province, and passport applications and renewals. In particular, the parties agreed that daycare costs would be paid by the party who incurred the cost.

[5] At the time that they entered into the agreement, Ms. Westermann said that she believed that she and Mr. Brimmell could communicate and that they were doing something good for their son. Mr. Brimmell also indicated that the two week on and off schedule fit with the access schedule that he had in regard to his two daughters.

[6] Over the period from June 1, 2016 to January of 2017, the relationship between the parties deteriorated. Ms. Westermann said that she found communication with the father difficult as he talked a lot and was often angry. By January the parties communicated only by texting.

[7] The parties had discussed and arranged for a daycare provider for Sky that they both agreed to. The mother complained that she often had to miss work because the child came back from the father's home ill and she would have to stay at home to nurse him back to health.

Precipitating Event

[8] One year after the Order of Justice Elder, an event occurred which affected the relationship between the parties.

[9] The child was with the father and due to be dropped off at the mother's home on a regular two week exchange in May of 2017. The father requested that the child be dropped off earlier as his flight time had changed. He told the mother that the child had run into a chair and hurt himself but that he had taken the child to a walk-in clinic and the child was fine.

[10] The mother says that the child had been sent back to her house ill a number of times with a cough, runny nose and fever. These illnesses had resulted in her having to take time from work to ensure that the child became healthy. She had complained to the father about these illnesses arising after his access.

[11] When told by the father that the child was fine, the mother did not believe him as he often, in her opinion, minimized injuries or illness. On this occasion when she was informed by the father that the child had been injured, she told the father to keep the child until he was well. She testified that she wanted the father to learn responsibility.

[12] The father indicated that he was taking the child to a babysitter and that if the mother did not pick him up there, that the babysitter was instructed to call children's aid. The parties had arranged previously for the child to attend daycare and the mother was surprised that the child was not there and that the father was using a babysitter whom she did not know. In fact, the father had not taken the child to daycare since January of 2017.

[13] The mother again stressed to the father that he was to keep the child until the child was well.

[14] Unbeknownst to the mother, the father had lost his job in January of 2017 and was working two weeks on/two weeks off in Saskatchewan. He had been convicted of assaulting a co-worker. The father flew to Saskatchewan, but when the mother did not pick up the child, he drove back, retrieved the child from Thunder Bay and took him to Ogema, Saskatchewan. There he set him up with daycare and prepared to keep the child.

[15] At the time of the next exchange the mother tried to communicate with the father but received no response. She spoke to the police and children's aid who could not help her. She did not hear from or know the location of Sky for six weeks.

[16] Ms Westermann obtained legal counsel and brought an emergency motion to locate and return the child and then an application for custody. The motion was granted by Justice M.L. Bode on June 12, 2017 requiring police assistance for the return of the child.

[17] At a time when Mr. Brimmell was in Thunder Bay, the police attended to his residence to retrieve the child and returned him to his mother. In his Amended Response to Motion to Change, the father reports that at the time of the police attendance, "The child was visibly distraught and upset when he was removed from my care. It was a traumatic and upsetting experience for Sky, who is not even two (2) years old."

Post Event

[18] Mr. Brimmell brought a similar application for custody and possibly a move to Saskatchewan. On July 5, 2017 Justice Bode made a temporary order on consent that Sky was to be in the alternating care of each parent on a two week rotation until the return of the matter to court. This continued in effect until about November of 2017 when the father moved and the child was in the de facto care of the mother. She had the child in her care until about May or June of 2018 when the father returned to Thunder Bay.

[19] In his affidavit dated August 1, 2018, the father states that, "The Final Order of the Honourable Justice Elder grants provides (sp) that the Respondent and I shall have joint custody of the child, however, we have had ongoing communication issues that make joint custody unworkable."

[20] The motions for temporary custody were heard by Justice M.L. Bode on August 13, 2018. At that time, he ordered that the mother would be the custodial parent on a temporary basis and that she would have the child in her care for ten days out of every two weeks. The rotation was ten days with the mother and four days with the father.

The Child, Sky

[21] Both parents report that Sky is a happy, energetic child who appears untouched by any conflict between his parents. He will be attending junior kindergarten and day care this year.

[22] The mother spoke at length about Sky's relationship with his brother Noah who is now seven years of age. She says that they have a close relationship and care about each other, doing everything together. They have a deep relationship which is one where they know what each other is thinking without talking, almost like twins.

[23] In regard to her own relationship with Sky, the mother said that she was very close to him and loved him with all her heart. She said she enjoyed being his mom and learned new things about him each day.

[24] The father said that Sky's face and personality light up a room. Even on the worst days, coming home to him is a touching moment. He is energetic, goofy and loves cars and working on building things. He loves physical contact.

[25] His two daughters Kyra, aged 15, and Taylin, aged 13, are both very close to their brother Sky. In particular, Taylin plays with him and takes him to the nearby park. His cohabitee is also wonderful with Sky and he enjoys being with her.

The Threshold Test: Material Change In Circumstances

[26] The Children's Law Reform Act sets out the basis on which this court could change a final order such as that of Justice Elder in this case. In s. 29, the Act provides:

Order varying an order

29 A court shall not make an order under this Part that varies an order in respect of custody or access made by a court in Ontario unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child. R.S.O. 1990, c. C.12, s. 29.

[27] The key case in regard to this provision and the similar provision in the Divorce Act is the case of Gordon v. Goertz, [1996] 2 S.C.R. 27. The Supreme Court found that before any consideration of any variation of an order, it must be established that there has been a material change in circumstances. The change has to be linked to the needs of the child or the ability of the parents to meet those needs in a fundamental way. It must be a departure from the situation the courts reasonably anticipated in making the previous order.

[28] If that threshold is not met, there can be no change to the final order under scrutiny. If the threshold is met, then the court has the ability to change any necessary portions or the whole of the previous order.

[29] Courts have determined principles to apply in approaching this issue:

• Trivial, insignificant or short-lived changes will not justify a variation (Hickey v. Hickey, 46 RFL (4th) 1 (SCC)).

• The preliminary threshold test is aimed in part at ensuring that the parties do not resort to litigation whenever any change occurs. (Gordon v. Goertz, supra)

• Not every circumstance, event or mistake by a parent that detrimentally affects a child will be a material change for the purposes of a variation application. Kerr v. Easson, 2013 ONSC 2486 (SCJ), aff'd 2014 ONCA 225 (CA).

• Even though s.29 is designed to deter spurious applications to vary, it does not sacrifice the child's best interests in the objective of finality and remains available to address those needs. M.(B.P.) v. M.(B.L.D.E.), [1992] O.J. No. 2299, 42 RFL (3rd) 349 (CA)

Has The Threshold Test Been Met?

[30] About the time of the signing of the agreement between the parties and the issuance of the Order of Justice Elder on June 1, 2016, it was clear that there was good will between the parties. They had sufficient communication to determine the best interests of the child at the time including his custodial schedule and that he would be in the care of the father when the father had access to his other children. The parties determined the daycare arrangements so that the mother could resume her work.

[31] However, I find that this good will began to wane over the six months after their agreement. Their communication was reduced from interpersonal contact to texts and writing. The trust between them also deteriorated.

[32] The clearest example of the deterioration of their relationship involved daycare. While the parties worked together to choose a daycare provider for Sky in the earlier days of their parenting, the father did not notify the mother that he had stopped taking Sky to daycare completely in January.

[33] The father was keeping Sky at home with him. He did not reveal to the mother that he had been charged with a criminal offence, convicted, and lost his employment as a result and was at home daily. She was only aware that he became angry when talking to her. His position, which he articulated at trial, was that Sky's parents had separate and private lives and there was no need to disclose anything to the other parent. I note that at the time the Order said that the person using daycare had to pay the cost.

[34] The other issue was the continuing illnesses of the child. During her interactions with the father on this point, she found that he minimized the health concerns and she did not trust him to honestly report the condition of the child to her.

[35] Many of these issues alone would seem to be minor adjustments and annoyances which sometimes occur in parenting situations.

[36] In regard to the event that precipitated the return of each party to court in May and June of 2017, neither parent acted appropriately.

[37] The mother wanted to teach the father responsibility by demanding that he keep the child until he was healthy. Her role was to consider the best interests of the child at all times and not to try to "teach" the father, to the disadvantage of the child.

[38] The father, maintaining his position of secrecy, did not reveal that he was residing half of the time in Saskatchewan, that he was working there, that he was flying there for work and that he was going to take the child there to live with him. Obviously, he could not disclose the real situation he was in, and in which the child was involved, without disclosing the problems he had gotten into that year or disclosing income. He was opportunistic in keeping the child in Saskatchewan and not telling the mother where the child was and that he was changing the residence of the child to Saskatchewan.

[39] In testimony, the father suggests that at the time he took the child to Saskatchewan he thought that the mother was abandoning Sky just as she had done with an older child. I give no weight to this claim. This claim does not appear in his filings at the time of the apprehension of Sky. The mother indicated that she and the father of her older child had discussed the matter and determined it was in the best interests of that child to remain with his father in Ottawa. She agreed not to interfere with that child. In addition, the mother fully parents Noah, the closest sibling of Sky. I found this area of testimony of the father filled with rumour, gossip and a desperate attempt to cast stones.

[40] I find the events that evolved in May and June of 2017 to be very serious. The father attempted to take advantage of the situation involving the child by relocating him to Saskatchewan. This action was the final death knell to trust between the parties as the mother saw that the father was willing to completely deprive her of the child. The lack of communication and the secrecy of the father made the involvement of the courts and police the only avenue for location of the child. The child was upset by the apprehension, according to the father. Those events and the necessity of police involvement in the location and return of the child to the mother, in my view, substantiate a material change in circumstances.

[41] Can I be reassured that the factors precipitating the events in 2017, the lack of trust, lack of communication and secrecy, have been remedied such that a reoccurrence is unlikely? Counsel for the father has relied on cases such as Koetsides v. St-Denis, 2018 ONCA 477 for the proposition that if the underlying cause of the material change has been remedied, that the material change no longer exists.

[42] I am not reassured in this case that the material change in the circumstances of the child has been remedied. I note that at trial it was revealed to the mother for the first time that the father has been taking the child to church services even though they had in the earliest time decided not to introduce the child to any religion until he was older. She also met his cohabitee for the first time at this trial, even though he has been living with her since July 2017. Again, he has not been taking the child to daycare on Fridays, thus putting the mother's subsidy at risk.

[43] The father believes that communication can improve once the litigation is concluded. There is no evidence to support that contention nor that the situation has been remedied – quite the opposite. The father testified that he intends to commence some type of criminal charge against the mother in the future, although he would not give details of what it was.

[44] I note that s.29 does not just speak to variations based on a material change of circumstances that affects the best interests of the child. It also includes a material change in circumstances that "is likely to affect the best interests of the child." I find that the underlying reasons for the events of 2017 have not been remedied and remain a threat to the security of Sky in that his parents are unable to even communicate on basics related to his life.

[45] For the reasons above, the threshold issue has been met.

What Changes Should Be Made?

[46] Over the last year, the interim order of Justice Bode has remained in effect which granted custody to the mother and care to her for ten out of fourteen days. Prior to that order, the child was in the sole care of the mother for a period of about seven months. There is no evidence that the relationships Sky has with his father and his father's family have been adversely affected by these regimes. In fact, it appears that he retains a close bond with each of his parents and also with his half-siblings.

[47] In considering the order that should be made, the court must look to the best interests of the child as set out in the Children's Law Reform Act:

Best interests of child

s.24(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, including a parent or grandparent, 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) any familial relationship between the child and each person who is a party to the application. 2006, c. 1, s. 3 (1) ; 2009, c. 11, s. 10 ; 2016, c. 23, s. 7 (1, 2); 2016, c. 28, s. 2.

[48] Considering these factors, I have determined that Sky should remain in the custody of his mother for the following reasons:

1. The child has continued to thrive in her care;

2. She has provided a stable home for him and his needs are met;

3. The mother is the most likely to encourage and appreciate the need for Sky to have time with his father and other siblings;

4. The mother recognizes the bonding of Sky to his father;

5. The mother is friendly with the two daughters of the father, and their mother, thus ensuring that Sky will remain engaged with them as their brother;

6. The mother made the necessary sacrifices for the child by removing herself from a management job at her employment and returning to a job that allows a regular schedule to provide certainty and routine for the child;

7. Noah and Sky are close brothers in age, interest and affection;

8. The mother admitted that her actions leading to the absence of Sky from her life in 2017 were wrong;

9. The mother has obeyed court orders.

[49] By contrast, the father's life has been somewhat unsettled. He has moved to Saskatchewan and back. He remains unemployed. He states that he has found it difficult to find employment as he now has a criminal record and does not have a grade twelve diploma. Previously he worked in the mechanical field. He gave no evidence in regard to his efforts to become employed in any capacity even outside the mechanical or car fields. His only suggestion was that he might start his own business.

[50] In regard to family income, Mr. Brimmell is in receipt of $364 weekly for employment insurance. His cohabitee, Ms. Dunn, works in the summer flagging for a construction company and then babysits privately in the winter months. It is difficult to understand that he can support himself and his three children. It is an obligation of a parent to financially support their child and provide him with the necessaries of life.

[51] In fact, Mr. Brimmell has not paid support to Ms. Westermann although ordered to do so by the court. He owes arrears of support. He has also not addressed the issue of the day care bill. The day care bill accumulated because Mr. Brimmell would not sign the papers and provide the information to have a subsidy. It stands at $1692 and a further $200 was owing for each month of daycare since May 1, 2019.

[52] The other aspect of the Order of Justice Bode being ignored by Mr. Brimmell is the duty to take the child to his daycare program on Fridays. He has consistently failed to take Sky to daycare on Fridays. This is not in the best interests of the child.

[53] I am not confident that Mr. Brimmell will follow the court orders he is required to.

[54] As the past has shown, joint custody is not workable in the current situation where the parents are unable to work together.

[55] I understand the concept of maximum contact with the non-custodial parent. I am satisfied that the level of contact at this time has shown itself to be beneficial to the child. It is a concern that time with the father is a period that would not involve sharing of information related to the child. The child's age is also a consideration.

[56] The primary focus must be the best interests of Sky and his continued happiness. In that regard I make the following order:

Order

1. Ina Westermann shall have sole custody of Sky David Westermann-Brimmell born […], 2015.

2. Jordan Brimmell shall have access to Sky David Westermann-Brimmell for four days out of every fourteen day period, in continuation of the current access schedule.

3. If the Applicant fails to deliver the child to daycare on Fridays on three occasions without the consent of the mother, the father's access shall be reduced with the elimination of Thursdays, and commence after school on Fridays.

4. In addition to the regular access, the father shall have the following access periods with the child when the regular schedule shall be suspended:

   a.) Two non-consecutive weeks in the summer months of July and August, with notice given to the mother by April 1st of each year. This summer access in July and August shall increase to three weeks per year after the child reaches the age of eight. Regular access is suspended during these months;

   b.) Alternating March break periods commencing in 2020 and in even numbered years thereafter;

   c.) One day on the Easter weekend, and if it is the weekend of the father, the mother shall have one day on the Easter weekend;

   d.) Two hours on the birth day of the child, unless the child is in the care of the father and then the mother shall have the child for two hours on that day;

   e.) Christmas day at noon until Boxing Day at noon each year;

   f.) Father's Day for two hours each year;

5. The parties may suggest changes or variations to the additional access set out above on a consent basis by filing those changes with the court within 10 days.

6. The consent order of April 11, 2019 shall be continued and incorporated into this order as part of the final order.

7. Submissions in writing in regard to costs can be made within 10 days.

Released: October 9, 2019

Signed: Justice D.J. MacKinnon