Court File and Parties

Court File No.: Sudbury D-120-28 Date: 2020-11-27 Ontario Court of Justice

Between:

Leslie Gail Lebrun (Scott) Applicant

— And —

Leonard Norman Lebrun Respondent

Before: Justice Randall W. Lalande

Heard on: November 5, 6, and 9, 2020

Reasons for Judgment released on: November 27, 2020

Counsel

• Darren L. M. Berlinguette — counsel for the respondent, father
• Leslie Gail Lebrun (Scott) — on her own behalf
• Gerald Brouillette — counsel for the Office of the Children's Lawyer, legal representative for the child

LALANDE J.:

1: INTRODUCTION

[1] The applicant Leslie Scott (the "mother") and the respondent, Leonard Lebrun (the "father") are the biological parents of Jarvis Lebrun (the "child") born on […], 2008.

[2] The mother is asking for an order of joint custody with primary residence of the child with herself. She is asking that the father be granted liberal and generous access upon reasonable notice including a sharing of summer months and holidays. The father is asking that the status quo be maintained namely that the child continue to primarily reside with him. The father is amenable to the same access provisions as described by the mother.

[3] The mother and father are also asking that the issue of child support (and arrears if any) be determined in accordance with the Child Support Guidelines following a determination of the issue of primary care and surrounding factual circumstances.

2: BACKGROUND

[4] The mother and father met while each attending as students at Cambrian College. They started dating in April 2007. They moved in together in September 2007.

[5] The father graduated from the heavy equipment operator program in 2011. He is currently employed full-time with Battlefield Equipment Rentals located in Sudbury. He works from approximately 7:00 a.m. to 5:45 p.m. His employment provides for three weeks paid vacation per year. He has expressed a preference to allocate vacation time toward Fridays or Mondays (or both) in order to create long weekends.

[6] The mother graduated from Cambrian College in the hotel management program in April 2008. After the child was born she took maternity leave for ten months. She subsequently became employed but then returned to Cambrian College in 2013 for a further three years. She successfully obtained a diploma in mining engineering technology (and as a technician). She graduated in May 2016. She is currently employed full-time with Alamos Gold in Matachewan. The mother's work rotation is now 5-4 and 5-5 days. In total, the mother works 156 days per year less three weeks vacation time.

[7] The mother and father endured financial struggles during the time they lived together. According to the mother this was exacerbated (at least for a short but not insignificant period of time) by the father's propensity to gamble. At one point, the mother indicated that her family provided financial assistance.

[8] The mother and father (during their financial struggles) moved several times. Ultimately, they secured a residence on Madison Avenue, Sudbury where they resided for an extended period of time from July 11, 2011 to 2018. The mother and father became married in 2014.

[9] The mother and father separated on March 7, 2018 but continued to reside in the same home. On May 1, 2018, while the mother was at work in Matachewan, the father moved with the child to a two bedroom apartment on Somerset Street, Sudbury. The mother's daughter Sasha (now 20 years old) was living with the mother and the child at the time. Subsequently, the mother and daughter moved to their home town, M'chigeeng on Manitoulin Island.

[10] For the past 5 or 6 months, the mother has been residing with her new partner, Terry Durno. They reside approximately 1.5 kilometers from the mother's parents' home (also in M'chigeeng).

[11] To their credit, the mother and father, although it was not without wrinkles, worked out a time sharing arrangement which included the mother having access each second weekend. They understood the importance of Jarvis having each of them as a significant presence in his life. Jarvis also stayed primarily in his mother's care during the summer of 2019.

[12] On April 16, 2020, the mother and father agreed that it would be best for Jarvis to reside with the mother on Manitoulin Island due to the Covid-19 pandemic. Jarvis remained at M'chigeeng with his mother and nearby family members from March 2020 to September 2020.

[13] Since September 2020, Jarvis has returned to live with his father in Sudbury. He attends Princess Anne Public School and as a student is progressing satisfactorily.

[14] The mother currently works from home. Her partner, Terry Durno and herself work for the same company in Matachewan. They have synchronized their work schedules. They have (prior to the pandemic) shared a residence in Matachewan during their work days. They now reside in their home at M'chigeeng full time during the pandemic. After the pandemic they plan to continue to reside in their home at M'chigeeng while not working.

[15] The father has commenced a distant and fairly recent relationship with Ms. Arlene Laliberté. She resides at Notre Dame du Nord, Québec. They have visited back and forth on weekends. Ms. Laliberté is fully employed and plans to remain at Notre Dame du Nord. The father does not reject the concept of possibly moving to Québec, however he is at this time not committed to do so. The father indicates that his relationship with Ms. Laliberté is only 4 months old and that he must take "one day at a time".

3: OVERVIEW

[16] By way of overview, I shall summarize some of the evidence given by the parties and their witnesses. All of the evidence has been considered for the purpose of these reasons. It should not be taken that evidence not specifically mentioned or referred to in these reasons has been given less weight.

[17] From the mother's viewpoint, her relationship with the father started to sour soon after they became married in 2014. She is critical of the father having moved out of the family home with Jarvis on May 1, 2018 while she was at work (although they had de facto separated on March 7, 2018). Subsequently, the mother remained diligent with access both while remaining in Sudbury (after the separation) and after having moved to M'chigeeng.

[18] The mother maintains that Jarvis, while residing primarily with his father, must in large measure "take care of himself". By the father's own admission, he works daily from 7:00 a.m. to 5:30 – 5:45 p.m. His work day routine is fairly consistent. He leaves home at approximately 6:30 a.m. Jarvis gets up at 7:20 a.m. (after his father has left for work). On his own Jarvis has breakfast, prepares himself for school, leaves the apartment and attends at the school bus stop. Jarvis returns from school between 3:40 and 3:50 p.m. He remains alone until his father returns from work. On occasion (although not regularly), his father does work late.

[19] The father admits that the daily schedule during his work days is not ideal. From his perspective, he has, however, developed a workable routine to which Jarvis has satisfactorily adjusted. As a safeguard, the father indicates that he maintains consistent contact with Jarvis via cell phone calls. Additionally, the father indicates if needed he may rely upon the assistance of a neighbour (Allan) who resides in the same building.

[20] The father recognizes that at times he becomes stern with Jarvis. On the other hand, and for the most part, he essentially describes his relationship with Jarvis as solid and progressive.

[21] The father more specifically indicates that he and Jarvis do spend time together. This would include fishing, camping and going to hockey games. The father also acknowledges the importance of Jarvis not ignoring his Indigenous roots and participating in cultural events while with his mother.

[22] The father did not deny consuming four (4) drinks each day after work (rum and Coke). The father does now confirm having recently reduced his daily after work alcohol consumption to two (2) drinks.

[23] The mother expresses concern that Jarvis' physical and emotional needs are not fully met especially if he continues to be in the primary care of his father. The mother voices concern about Jarvis being left alone too often and that at his age he should be more cared for and not fending for himself. The mother agrees that Jarvis is not doing badly in school, however, advances the thought that absent his current circumstances, he should be excelling. Generally, the mother emphasizes the father lacks an adequate support system, that he allows Jarvis to have too much daily responsibility and that the father's overall level of care (even if the father is doing his best) is not sufficient.

[24] The father is fearful, given recent history he described regarding the mother having denied meaningful summer access, that if Jarvis were primarily residing with her, she would likely become increasingly unreasonable and impeding contact between himself and Jarvis.

[25] The father steadfastly states that he and Jarvis are "very close". He describes Jarvis as an active child who strives to always be busy and engaged in activities. In terms of home life, the father underscores the importance of Jarvis being in a loving, careful and respectful environment. The father states that he adequately looks after domestic issues such as cooking, cleaning, laundry and making lunches. In other words, he does his best.

[26] The father does understand that Jarvis wishes to primarily reside with his mother. The father, however, not unconvincingly submits that Jarvis now has everything that he needs including a stable and a routine home life and that there is no pressing reason for the status quo to be changed.

[27] The mother has emphasized that she benefits from a broader support system. She states that it is important that Jarvis not be left alone. In her care, she highlights that Jarvis would reside with herself, Mr. Durno and her daughter Sasha. Additionally, her parents reside nearby and remain fully available to assist.

[28] Sasha (now 20 years), is a teaching assistant employed at Lakeview School, M'chigeeng. She has lived with her mother and Jarvis up to the final point of their separation. She anxiously describes her ability to look after Jarvis' needs and to be with him in the home (with her grandparents assisting as needed) upon her mother returning to work at some point post the pandemic.

[29] By and large the court considered the mother to be a good witness. She was well prepared. She did not embellish her evidence and she was well motivated. The mother sought only to accentuate points relevant to the case. Although some past acrimonious issues were raised, these were not overly dwelled upon.

[30] The father presented himself as a cooperative witness. His evidence was straightforward. He did not seek to deny some of the parental challenges he faced. Generally speaking, it may be taken that the father (as well as the mother) is supportive of whatever is in the child's best interest.

4: CHILD'S WISHES

[31] Mr. Brouillette represents the child (Jarvis). He has had the benefit of Ms. Shelley Lund's testimony and report. Ms. Lund acted as a clinical investigator appointed by the Office of the Children's Lawyer at Mr. Brouillette's request.

[32] In her evidence Ms. Lund indicated clearly that Jarvis has consistently expressed a desire to primarily live with his mother. She disclosed a number of reasons for Jarvis' wishes to live with his mother including his attachment to the community (at M'chigeeng), available outdoor activities, multiple cultural events, the presence of friends and cousins and being in close proximity to his maternal grandparents.

[33] Ms. Lund provided further insight upon hearing about Jarvis' daily routine including:

• That he is alone when he gets up in the morning and when returning home after school;
• That on those days where school is cancelled or closed, he stays home alone and usually watches YouTube videos.

[34] In terms of views and preferences of a child, the Ontario Court of Appeal made the following comments in 2018 in the decision of Ontario (Children's Lawyer) v. Ontario (Information and Privacy Commissioner), 2018 CarswellOnt 9575 (Ont. C.A.):

A classic family law custody dispute gave rise to the Children's Lawyer's involvement in this case. Over the past several years, courts have taken great initiative to seek out and consider the views and preferences of the child. Professors Birnbaum and Bala explain:

The movement towards child inclusion in decision-making in education, medical treatment, and various areas of the law, including separation and divorce, has grown over the last decade. Studies have explored children's rights as citizens, children's perspectives on family relationships and what is a family, and children's attitudes about parental separation and participation in the decision-making process about post-separation parenting. Research clearly suggests that children's inclusion in the post-separation decision-making process is important to the promotion of their well-being.

[35] Ultimately, the weight to be attached to an expression of preference depends on the facts and is a function of age, intelligence, apparent maturity, and the ability of the child to articulate a view. (see Stefureak v. Chambers, [2004] O.J. No. 4253 (S.C.J.)).

[36] On these facts, I find Jarvis' wishes to be clear and unambivalent. There is no indication that he has not attained an appropriate level of maturity for his age and he appears to have expressed his preference(s) consistently over a period of time. Moreover, there is every indication that Jarvis' preference to live with his mother has, for the most part, been reached on his own. Although he may have been swayed by virtue of some parental influence (on both sides), this does not appear to be a case of overt coaching. This adds a positive feature to Jarvis' voice and position.

[37] In the overall context of the circumstances, I must conclude that Jarvis' wish to reside primarily with his mother constitutes an important although not determinative factor to be considered. I have also taken into account counsel's commentary that if ignored, Jarvis' strong preference(s) may fester with the potential of negatively impacting his conduct over time. That, of course, does not necessarily mean that Jarvis' wishes and preferences must prevail, only that they must be properly considered.

4: MOBILITY

[38] Factors relevant to the issue of mobility are set out in the decision of Gordon v. Goertz, [1996] 2 S.C.R. 27, as follows:

a) no legal presumption in favour of de facto custodial parent.

b) focus is on the best interests of the child and not the wishes of the parent

c) the court should consider the existing parenting arrangement

d) the desirability of maximizing contact with both parents.

e) the views of the child

f) custodial parent's wishes to move are only considered if they are relevant to their ability to meet the needs of the children.

g) disruption to the child by change in school, community and family they have come to know.

[39] It must be remembered that the Gordon decision was based on a variation and not an originating application (as here). Therefore, it is not clear that the factors set out in Gordon should be strictly applied. Nonetheless, I find the factors set out in Gordon to be helpful and largely applicable.

[40] In these circumstances, there is no legal presumption in favour of the father as the de facto primary parent. Jarvis' views have been expressed. The parents are each bonded with Jarvis. The mother's wish that Jarvis move to M'chigeeng to primarily reside with her is not inconsistent with her ability to meet Jarvis' needs.

5: CHANGING SCHOOLS

[41] Usually a choice of school must be made on its own merits and based in part on the resources that a school offers in relation to a child's needs. There is no evidence in this case upon which it may be found that a change of school would create a disadvantage to Jarvis. There is no indication that Lakeview School in M'chigeeng would provide any lesser competitive advantage to Jarvis. There is, however, given Jarvis' persistence in wanting to move (and hence attend school in M'chigeeng), some reason upon which to conclude that his confidence and motivation may potentially be boosted. At the least, it is not unreasonable to conclude that no negative repercussions ought to flow by Jarvis changing schools should it be determined that he reside primarily with his mother at M'chigeeng. In the broader picture, all evidence points to Jarvis being an average student who can meet the challenge of re-adapting to a new school. While Jarvis may require modest leeway to accommodate transitioning to a new school, there is no reason to think that his new school would be any less than enthusiastic to assist him.

6: ANALYSIS

[42] Decisions regarding custody and access are inherently an exercise in discretion. Case-by-case consideration of the unique circumstances of each child is the hallmark of the process. This discretion vested in the trial judge enables a balanced evaluation of the best interests of the child and permits courts to respond to the spectrum of factors which can both positively and negatively affect a child. See Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014.

[43] In March 2018 Jarvis completed the Home Alone Course. He also become adept at using his cell phone and maintaining contact with his father. Generally, and to his credit, the father has been pro-active and has done his best in circumstances which have arguably been less than ideal.

[44] The mother has expressed concerns respecting the father's discipline methods which at times have involved an element of physical content. While this may have occurred, it appears to have been contextual and not a serious digression from the father's overall acceptable level of parental care.

[45] In Jarvis' interview with "Kina" in March 2020, he did indicate that his father "yells at him and calls him names". He also indicated that he does like being at home all alone and at times has thought of running away. Against this backdrop, Jarvis expressed a strong wish to primarily reside with his mother and family at M'chigeeng on Manitoulin Island.

[46] Overall, although Mr. Lebrun has positively worked toward providing Jarvis with a proper upbringing. He has done so in less than ideal circumstances. This is not in itself determinative.

[47] The issue of custody (or primary parenting) is not decided on which parent can provide the most ideal, comfortable or diverse living arrangements. On these facts, however, the court must pay close attention to "the voice of the child". It may be that Jarvis envisages having "more fun" and "more adventures" living with his mother. On the other hand, the court must also take into account the valuable presence of other family members including Jeannette (maternal grandmother), Sasha Hare (sister) both of whom have testified and expressed commitment in caring for Jarvis. The court also heard testimony that Jarvis' paternal grandfather is retired and also readily available to assist.

[48] The mother now resides with Terry Durno. They currently reside at home at M'chigeeng full time because of the Covid-19 pandemic. There is no issue with the mother's devotion or integrity as a parent. She does foresee herself returning to work. She has, however, provided a thoughtful and workable plan for Jarvis' care during her absence on those days which she is away at work.

[49] The mother importantly is also willing to cooperate with the father. This is most important as an ingredient to ensure that Jarvis continues having a wholesome and well-rounded upbringing. He needs assurance that both parents shall continue to be a strong presence in his life.

[50] The father's care of Jarvis, to an extent, has been impacted by the current pandemic. Kina's notes indicate as follows:

"I informed Leonard I would need to consult with my supervisor regarding his plan for Jarvis; although, having people check-in on Jarvis for a few minutes is the same as being alone all day. It is not much human interaction especially in a time when so many people are fearful of the virus and the changes this has brought to everyone's life. Jarvis needs support and he needs to be around people at this time."

[51] In weighing all factors, taking into account Jarvis' voice and strong preferences and considering all relevant circumstances, I must conclude that it would be best at this time for Jarvis to be under the primary care of his mother. Inclusion of Jarvis' voice in this decision-making process remains an important factor in the promotion of his well-being.

[52] The father, again to his credit, has expressed that he is prepared to do whatever is in Jarvis' best interest. This ruling is made with some confidence that the father's love and support will remain unwavering in the future and that he will do all that is necessary to accommodate Jarvis' new living arrangement while continuing to remain a strong and constant presence in his life. He will have much opportunity to stay involved and spend quality time with Jarvis.

[53] The court fully expects both parents to work together in the spirit of this decision. It is in Jarvis' interest that this decision (and the court's order) be implemented seamlessly and that both parents cooperate fully in reasonably ensuring ongoing time-sharing (access).

[54] Jarvis is soon to complete his first term in grade 7 at Princess Anne school. Although the terms of this order may be implemented forthwith, the parents should, in consultation with each other and the school, especially given the short remaining duration of the first term, agree whether or not to allow Jarvis to finish his first term and start the second term at M'chigeeng. In doing so, the parents shall be expected to place whatever is academically best for Jarvis at the forefront.

[55] The father shall be obliged to pay child support in accordance with the Child Support Guidelines. The court's final order shall also indicate that the mother's obligation to pay child support in accordance with Justice Keast's order of March 13, 2019 shall be terminated. The evidence is not sufficient for the court to be able to address the issue of any arrears (or costs) which may be outstanding and owed by the mother. The mother and father are encouraged to discuss this issue and arrive at a resolution if one is required. The mother and father shall be at liberty to schedule a brief motion before myself only if required.

7: DECISION

[56] For the above reasons, an order shall go as follows:

(a) Leslie Lebrun (Scott) (the "mother") and Leonard Lebrun (the "father") shall have joint custody of Jarvis Lebrun (the "child") born on […], 2008 with the child living primarily with the mother at M'chigeeng, Manitoulin Island, Ontario;

(b) The father shall have liberal and general access including shared time during holidays and summer months and including every second weekend from Friday at 6:00 p.m. to Sunday at 5:00 p.m. commencing December 12, 2020;

(c) Unless otherwise agreed between them, the mother and father shall meet at Tim Horton's at Espanola for purposes of pick-ups and drop-offs;

(d) The mother and father are at liberty to agree to adjust any access days and times including drop-off and pick-up times and location;

(e) The mother and father shall:

(i) Exchange information about Jarvis;

(ii) Encourage Jarvis to have a good relationship with both parents;

(iii) Refrain from speaking ill of each other to Jarvis; and

(iv) Consult each other regularly about important parenting issues regarding Jarvis such as his education, health care, cultural and religious upbringing.

(f) The mother and father shall allow Jarvis to phone (or face time) either of them when he is in the care of the other parent;

(g) The mother and father are each free to inquire with Jarvis' teachers, doctors, dentists and other professionals and be provided information about Jarvis by those parties;

(h) Unless otherwise agreed to by the mother and father, Jarvis will spend Christmas Eve and half of Christmas day with one parent, and half of Christmas day and all of Boxing Day with the other parent. This schedule will alternate every year between the parents;

(i) Unless otherwise agreed to, the parents will alternate years for Jarvis' birthday;

(j) Jarvis will spend each Mother's Day with his mother and each Father's Day with his father;

(k) The mother's obligation to pay child support in accordance with Justice Keast's order of March 13, 2019 is terminated as at December 1, 2020 (not to include termination of arrears owing if any and/or outstanding costs);

(l) The father shall pay to the mother child support for the child, Jarvis Lebrun, born on […], 2008, in the amount of $610.00 monthly commencing January 1, 2021 in accordance with the Child Support Guidelines based on gross annual income of $65,441.00;

(m) Child support arrears payable by the father to cover the period between April 2020 and August 2020 shall be fixed in the amount of $1,000.00 payable at a minimum of $100.00 per month commencing February 1, 2021 (or payable in full at any time in the father's discretion);

(n) The mother and father shall proportionately share the cost of any special or extraordinary expenses in proportion to their respective incomes;

(o) The father shall provide his 2020 Income tax return to the mother by July 1, 2021. He shall also provide the 2020 notice of assessment when received; and

(p) There shall be no order as to costs.

Released: November 27, 2020

Signed: Justice Randall W. Lalande