Ontario Court of Justice
Date: 2021 05 27 Court File No.: D-465-11 ext. 01
Between:
LABERGE, RYAN - Applicant
— AND —
ASSINEWE, MADELEINE - Respondent
Before: Justice ANDRE L. GUAY
Heard on: May 10, 2021 Judgment released on: May 27, 2021
Counsel: Mr. Rejean Parise, counsel for the applicant Mr. George Florentis, counsel for the respondent
GUAY J.:
Background
[1] The parties are the parents of a 9-year-old boy named J. The original order in this matter was made by this court on May 7, 2012. It awarded what was then called “custody” to the Applicant mother and “access” to the Respondent father. Custody is now referred to as a parenting order with decision-making power while access is now referred to as a parenting order providing parenting time. Generally, the parent who is awarded decision-making power is granted principal residence of the child. The child’s principal residence may, however, be shared by the parents whether or not they agree to divide the decision-making power.
[2] At the present time the child’s mother has decision making power and principal residence of the child. The child’s father has parenting time with the child every second week from Thursday after school until Monday morning when school resumes.
[3] The motion to change was brought by the father in August 2019. In it, he asked the court to again grant him the parenting time which had had specifically been set out in the 2012 order. As well, he was seeking additional parenting time pursuant to the term “reasonable and generous” in the 2012 order.
[4] The child, J., was only about 8 months old at the time the 2012 order was made. Clearly, at that time, the intention of the court in granting the father further “reasonable and generous access” was that his parenting time would increase as the child grew older. The father’s parenting time did not, however, increase until the father commenced proceedings against the mother to have his parenting time increased.
[5] The mother responded to the father’s motion to change by calling for his parenting time to be supervised at the Supervised Access Centre in Sudbury. She also asked that he take a variety of programs designed to address his personal and parenting issues. For a number of years after the original parenting order was made, the mother failed to appreciate the meaning of the term “reasonable and generous access” in the original court order. Her relationship with the accused had become so toxic that she could barely stand him and wanted him out of her life. Her anger at the father prevented her from doing what she should have but found great difficulty doing – increasing their child’s contact with him.
[6] The parties’ poor relationship severely impacted the whole issue of parenting time. While the mother herself was not shy to use strong language when dealing with the father, his comments to her prior to the renewed court proceedings in 2019 were both degrading and racist. Unfortunately for the father, such offensive language deeply hurt and angered the mother. Tired of the abusive conduct she had allegedly experienced at the father’s hands during their relationship, the mother opted to use the decision-making power she had been granted in 2012 to curtail their son’s relationship with his father.
[7] While she deprived the father of a not insignificant amount of parenting time, the mother was brought to reconsider the situation once the father took court action to have his parenting time reinstituted and increased. Notwithstanding her negative feelings towards the father, she gradually accepted her parental obligation to foster a relationship between the father and their son and allowed the father’s parenting time to resume. In the context of ongoing litigation between the parties, the mother was persuaded to grant the father compensatory parenting time to make up for the parenting time he had missed. While this make-up time was not calculated on a day-for-day basis, it was sufficient to persuade the court which heard the father’s contempt motion that by doing so, she had effectively purged her contempt of this court’s parenting time order.
[8] On October 8, 2019, the father’s original parenting time order was re-instituted by this court, much to the level where it had previously been. Undoubtedly, and in the context of ongoing contempt proceedings, the court wanted to get the visiting time originally provided to the father back on track. By this time, the court had been made aware of J.’s wish to spend more time with his father. The court ordered that the father’s parenting time recommence every second week commencing Friday at 4:30 p.m. and ending on Sunday at 4:30p.m.
[9] On October 17, 2019, the court temporarily increased the father’s parenting time, ordering that it occur every second week commencing on Thursday after school and ending on Monday morning when school recommenced. At that time, the court made a child support order in favour of the mother.
[10] At the start of the hearing in this matter on May 10, 2021, the parties consented to a parenting time order covering major holidays. The court then then heard submissions from counsel with respect to the father’s motion to increase his regular parenting time. To a degree, the father’s motion to increase his parenting time had already been addressed although not as much as he wanted. The father now sought an order for what is commonly known as “week-about” parenting time. The mother strongly rejected the father’s claim. She requested that the father’s access be supervised and that he be required to take programs designed to improve his parenting before there was any change in his parenting time.
The Children’s Law Reform Act
[11] Section 24(1) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (RSO 1990, c.12, as am.) stipulates that in making a parenting order, the court shall only consider the best interests of the child. Subsection 24(2) of the newly amended Act further directs that in determining the child’s best interests, the court shall consider all factors related to the circumstances of the child and, in doing so, “give primary consideration to the child’s physical, emotional and psychological safety, security and wellbeing”.
[12] In outlining the criteria for determining what is in a child’s best interests, subsection 24(3) of the Act lists a number of factors. One of these factors is the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained. Another is a parent’s willingness to support development and maintenance of a child’s relationship with the other parent. Yet another is the ability and willingness of a parent to communicate and co-operate in particular with the other parent on matters affecting the child. These criteria specifically are very relevant in this matter. We must not forget here that we are dealing with a child who is only 9 years of age. We should also bear in mind that in all likelihood, if he earlier acted aggressively at school, to the point of being expelled, it was most likely because he was traumatized by the conflicted relationship and behaviour of his parents.
Report by Specialized Counsel
[13] Failing to secure the intervention of the Office of the Children’s Lawyer in this matter, the parties retained the services of a lawyer specializing in child custody and access matters to assist them in determining the child’s wishes. This was in conformity with section 64(1) of Act stipulating that, “where possible, a court shall take into consideration the views and preference of a child to the extent the child is capable [of] express[ing] them”.
[14] In her report to counsel, the investigator was able to determine that the child, J., “has a close and positive relationship with both his mother and father”. She confirmed that “he would like to spend more time with his father and gradually increase his time to spend equal time with his parents”. (see Tab 4 Applicant’s Trial Book of Affidavits).
The Bassis Assessment
[15] At the time the assessor, Dr. Bassis, met with J., he was still diagnosed as being oppositional defiant and having ADHD. The psychological assessment completed by Dr. Bassis showed an improvement in his intellectual development. Importantly, Dr. Bassis concluded that his results “do not meet the criteria for borderline intellectual functioning as he is within the norm” (p.17).
[16] Defining “learning disability” as a variety of disorders that affect the acquisition and retention, understanding, organization or use of global and/or nonverbal information, Dr. Bassis was of the opinion that J.’s results met “the criteria of a Learning Disability considering the disparity between his assessed cognitive capacity and average Full Scale IQ and his well below grade level academic achievement”. Dr. Bassis concluded: “The most important aspect to take from this assessment is that J. has the capacity to continue to progress well academically” (p. 18).
[17] As a result of Dr. Bassis’ findings, it can be reasonably concluded that J. is able to and does have an age appropriate understanding of his position vis a vis the role of his parents in his life. It is clear too that he wants to have more parenting time with his father. As to his alleged desire for a week-about residential regime, however, one has to be skeptical about who has advanced this proposal and J.’s commitment to it. Given his age, J.’s expressed wishes here strike me more as a plan devised by an adult than a child. The father, in fact, refers to week- about parenting time as his goal in his evidence (para. 51 affidavit, Dec.10,2020).
[18] I find that there are troubling factors in J.’s relationship with his father which urge caution in how this matter is to be resolved. My concerns stem in part from statements made by him in an affidavit sworn on December 10, 2020. I find that the general tone of the father’s affidavit is excessive in nature and that it reflects a very self-centered view of the father-child relationship.
[19] In paragraph 42, for example, the father tells us about J.’s desire to spend more time with him, recalling J., on a recent occasion, asking whether the father could wake him up at 4:00 a.m. before school so that he could spend more time with him.
[20] At paragraph 43 of the same affidavit, the father recalls how once J. got “sick on his way to school knowing that it would be 11 days before he saw me again and even if he is allowed to see me again by the Respondent’s actions”.
[21] At paragraph 46, the father states: “At the end of the day I love my son with all of my heart more than any one can imagine. J. and I are best friends and inseparable. There is no better feeling than being able to make him proud”.
[22] At paragraph 51, the father relates how “J. has tons of toys and one of the biggest video game collections in Northern Ontario for his future nest egg”.
[23] The father continues: “J. is cared for here, loved here, fed here, supported here just as much as at the Respondent’s if not more. I would never take him away from the Respondent. I am not trying to hurt her by spending more time with him. I want equal time…”.
[24] In reviewing, the above comments and others made by the father, I find that there is an element of obsessiveness in his relationship with his son. I find that it is all about what he does for him and what he wants in his relationship with his son. The father maintains that notwithstanding he speaks to J. “like he is my friend and he does the same”, at the end of the day “I am a parent and I have rules in my home and he knows to follow them”. In light, however, of the intensity of the father’s relationship with J., I find this last statement difficult to believe. Given J.’s age and the emotional stress unwittingly placed on him by his father to be his friend, one must ask what will happen when J. grows up to be more of a person and no longer wishes to be in as intense a relationship as his father wants?
[25] This aside, where does the mother’s relationship with J. come into play in a situation like this. She has a partner and four children, including two younger children, to look after. She also holds down a responsible job. How can she compete with the father in this situation where she must look after five other persons and herself when J. is in her care? Does the mother see J. as her “friend”? Would this be realistic? Does the mother describe J. in as lyrical terms as does his father? The mother’s affidavit material certainly indicates that she is assiduous in attending to J.’s needs. Has she built up the largest video game collection for J. “as a nest egg” for him when he gets older? Is she able to do this? If she does not, then what is and will be the message J. is given by his father? Has J. asked her to get him up at 4:00 a.m. before he goes to visit his father so that he can spend more time with her? I find that the intensity of the father’s relationship with J., if it continues unchanged, will eventually leave no room for him to have a normal and balanced relationship with his mother and the rest of his family.
[26] So, the question must be asked: who is this matter really about? Is it about J. and his best interests or is it about the father and what is in his best interests? While one might think it reasonable to follow the parenting path advocated by the father, I do not. I find that there is currently so much intensity in the father’s relationship with J. that it is difficult to see where this situation will lead other than a rupture with his mother and primary residence with his father. If this were to happen, J. would lose the benefit of sharing in the life of a home where he has both adult and sibling companionship and support. Additionally, he would clearly lose the benefit of being raised in a cultural and spiritual background consistent with who he is. Notwithstanding the father’s allegation that he is a Metis person, there is little if anything in the father’s evidence which indicates his participation in Metis culture or J.’s involvement in it.
[27] A child is not there for the benefit of his parent or parents. A child is a young person. As such, it is his parent or parents who must be there for him and not him for them. Parents are not there to be their child’s friend. That is not what they are there for. They are there to be his parents Even if he does not say it now, J. has a right to expect that from them. If they fail to be his parents, he will be the one who has to pay the price for their failure to do so.
Conclusion
[28] To some extent, the interim parenting time order made by this court on October 17, 2019 granted the father more regular time with J. than had previously been the case. Notwithstanding what I have said about the father’s parenting excesses and the intensity of his relationship with his son, I believe that this order was on the right track in addressing the father’s parenting time in the way that it did. This said, I think that until this situation normalizes itself to a better degree, it would not be in J.’s best interests to further increase parenting time with his father more than that provided by the October 17, 2019 interim order and the holiday time agreed to by the parties after the commencement of the Motion to Change.
[29] I would recommend that the applicant father not be allowed to bring a further Motion to Change in this matter until J. has attained the age of 14. This would not be in J.’s best interests. If he is to cope with the pressures brought regarding whom he is to reside with, he will have to be mature enough to tough out a decision against the wishes of a parent who is not in agreement with it.
[30] Within the context and the circumstances in which J. finds himself, it would be in his best interests to broaden his extracurricular contact with young persons his own age. I would highly recommend to his parents that J. be enrolled in a variety of youth activities and sports.
[31] Given the resolution of the contempt matter and the history of these proceedings, I will not make a costs order in this matter.
Released: May 27, 2021 Signed: Justice André L. Guay