ONTARIO COURT OF JUSTICE
DATE: 2021.08.02 COURT FILE No. Haileybury Court File No. F0-18-0000004
BETWEEN:
EMILY RUTLEDGE Applicant,
— AND —
LEAMAN RODGERS Respondent
Before Justice J. Kukurin
Heard on July 12, 2021 Reasons for Judgment released on August 2, 2021
Mr. Paul Mongenais…………………………………counsel for the applicant, Emily Rutledge Mr. David Bennett………..…..…..………….…counsel for the respondent, Leaman Rodgers
Kukurin J.
[1] These are my Reasons on two motions brought in this proceeding which is now almost 3 ½ years old. The motions are
(a) by the mother, who I hereafter refer to as “Emily”, (at Tab 30, Vol 1) for several orders on manifold claims mainly dealing with temporary variation of existing temporary orders relating to her parenting time of the child Ian, now age 6 ½ ; and
(b) by the father, who I hereafter refer to as “Leaman” (at Tab 1, Vol 2) also for a number of orders on multiple claims, the main one dealing with conditions on the mother’s interim access and the rest involving procedural and enforcement matters.
BACKGROUND
[2] A recapitulation of the historical events is needed to appreciate the present context for these motions. It is brief because time constraints do not allow anything more. The parents cohabited in March 2014, had a child, Ian, in Feb 2015 and separated in September 2015. They entered into an interim separation agreement that provided for joint custody, week about shared parenting, and numerous details of that shared parenting. They reconciled, the duration of which is disputed, and apparently continued with the week about regime, but it was not problem free on either side.
[3] The father works as a millwright, the mother as a nurse. On January 2, 2018 Leaman blamed Emily for allowing Ian to get frostbite. After much conflict and recriminations, this was shown more than likely not to be true, but this and Leaman’s withholding Ian from her, prompted Emily to bring a court application. She claimed sole custody, paternal access, child support, and costs. Leaman responded with an Answer with claims for her (probably an error) to have sole custody, for him (probably an error) to have access every second weekend, for OCL involvement, and for costs. [1]
[4] The litigation was unremarkable except to lead to the inference that these parents cannot co-parent. They were always somewhere between bickering and outright adversarial antagonism. Emily had an abusive partner in early 2018, became pregnant, miscarried and they separated. She was hospitalized and there is some speculation as to this being the start of her using opioids for pain, and later abusing them. Emily and Leaman both agreed to an interim order in Jan 2018 that continued the week about arrangement.
[5] Emily took a leave from work, went to Peterborough in May or June, 2018 where her maternal family was, apparently for family support, and to recover from her split up and miscarriage. She maintained that this was temporary and she would return to the Earlton area. She still drove Ian for his week abouts but had at least one car accident with him in the vehicle, and two others which may or may not have been her fault. During this time, the parental bickering continued over diverse topics such as highway safety, lateness in pick up/dropoff, immunizations and exchanges.
[6] The Office of the Children’s Lawyer became involved and then discontinued, in retrospect, primarily because of Emily. Both she and Leaman had several counsel, all of whom either bailed or were discharged, and it is only very recently that they stopped being self represented and have counsel again.
[7] By late 2018, Emily was still in Peterborough living with her father, but Leaman was claiming that her assurance of her absence being temporary was bogus and that she was not coming back. He brought a motion which resulted in a consent variation of the week about parenting time to only one week in four with Emily, with exchanges at the Englehart Supervised Access Centre (SAC) on Tuesdays 6 pm.
[8] In early 2019, Leaman discovered that Emily had been abusing drugs. Emily had not informed him of this. She admitted to drug (opioid) abuse, admitted that she was addicted (ie had a substance dependency disorder) and that she was taking steps in concert with her College of Nurses to deal with this. This resulted in another motion by Leaman, with another consent order on May 28, 2019 that gave Emily weekend day access visits on Saturdays and Sunday on 48 hours notice in Temiskaming Shores plus telephone and Skype visits. She was to provide Leaman’s lawyer with her OATC (Ontario Addiction Treatment Centre) urine test results.
[9] Emily related that she needed a hysterectomy that was scheduled in early 2019 although the court is unsure if it actually proceeded. Leaman continued to work, and much of the day to day care of Ian was done by Leaman’s mother on his workdays. Leaman brought another motion, again resolved on consent, resulting in an order dated October 15, 2019, that Emily would have supervised access at the Temiskaming SAC for up to 4 hours every second week.
[10] Emily, was throughout most of 2019 and into 2020 dealing with her drug addiction. She went to the OATC where she provided regular urine samples, apparently was prescribed methadone, then suboxone, to wean her off, attended a detox, attended a residential treatment program at Bellwood Hospital, attended AA and NA meetings and found a sponsor. She claims she is using a recovery app to solidify her gains. She claims complete sobriety since June 24, 2019 and that she is subject to strict monitoring by her treatment program and her doctor (Dr. Rosen-Zaidener). She claims that she does not need her access with Ian supervised any longer.
[11] During 2020, the COVID pandemic impacted the world and did not spare this family. The SAC access arrangements were not adhered to and were close to being terminated. Emily asked them to be put on hold which they were. She missed a number of access visits for various reasons. However, by late 2020, she had made sufficient progress that a new court order, once again on consent, dated December 15, 2020 provided that her supervised access was to continue pending receipt of confirmation by Leaman that a letter from Dr. Rosen-Zaidener dated Nov 10, 2020 was authentic, after which Emily was to have unsupervised access every other “Saturday and/or Sunday” from 9:30 to 4:30 in Temiskaming District with exchanges suggested at the New Liskeard SAC or a public place. This order was to be reviewed by June 30, 2021.
[12] Emily sent confirmation of authenticity of Dr. Rosen’s letter to Leaman’s lawyer on Jan 12, 2021. Leaman and his then lawyer parted ways (effective March 8,2020) and whether he received this confirmation is disputed. In any event, Emily did not see Ian since Jan 20, 2021. Leaman became self represented and gave a number of reasons why Emily could not resume unsupervised access. This included Covid risks to Ian, to his classmates, to Leaman, and to his mother, and her co-workers. He wanted the Children’s Aid Society to approve unsupervised access. He says he has not received (all of) Emily’s urine screen result from OATC. He questions the purpose of Dr. Rosen’s letter as not relevant to Emily’s parenting but rather to her ability to resume nursing. He also claims that Emily did not comply with hair follicle testing ordered by the court. He also wanted Emily to sign a consent for the release of her supervised access at the SAC. Leaman is apparently agreeable to Emily having access supervised at the SAC in Temiskaming until these concerns are allayed.
Emily responded to Leaman’s position by hiring her present lawyer and bringing her motion (at Tab 30 Vol 1). Leaman replied by hiring his new lawyer and bringing his motion (at Tab 1 Vol 2).
[13] As mentioned previously, this is an abbreviated background. There were other events of less germane importance such as mediation, SAC communications, Children’s Aid Society involvement to name only a few. The current situation has Emily in Peterborough working at a non nursing job, uncertainty as to where exactly she is living, and still maintaining that she is planning to return to the Earlton area when she finds accommodations and gets back to her nursing career. Leaman continues with his work and apparently no longer lives with his parents, but is not far away. He and Emily have not improved their communications, perhaps the opposite. It is clear that neither trusts the other and that this case is destined for a trial despite the fact that virtually all of the interim orders to date have been on consent.
MOTION OF THE MOTHER (Tab 30, Vol 1)
[14] Emily’s motion seeks an order that confirms that she has complied with the requirement of satisfying the authenticity of Dr. Rosen’s letter, that she now is entitled to the access ordered to begin once she confirmed this authenticity, that the order means Saturday “and” Sunday, not “or” and that her interim access should be ordered to increase progressively to full weekends, then to extended weekends, then to reasonable shared parenting, with a provision that she have the right of choice of parenting time when Leaman is not available to parent. She also wishes to be able to travel outside of Temiskaming so that Ian can spend time with her family in Peterborough. She also wants orders for mutual disclosure and production from non party record holders and fresh financial statements and Form 35.1 affidavits. Finally she wants OCL involvement once she moves back to Temiskaming.
[15] I will deal with those of her claims that can be dealt with most expediently. Firstly, this court makes no order for non party records because she has not filed proof of service on the record holders, and has not even identified them.
Secondly, she will receive no order for fresh financial statements when no one has filed one yet in 3 ½ years and no one seems to be pursuing this claim.
Thirdly, she is not entitled to a fresh Form 35.1 affidavit from the father but she will get one because he is required to file one when he files his Answer, which has not been filed to date. [See Rule 35.1(2) of the Family Law Rules, O. Reg. 114/99]
Fourthly, this court does not issue orders of the happening of a fact. It makes findings of fact. Emily was technically not ordered to provide confirmation that the letter of Dr. Rosen was genuine. It was the “respondent”, namely Leaman, on whom the court placed the onus to confirm authenticity of the letter.
Fifthly, I do not order, or request, OCL involvement given her past dealings with the OCL. She will have to make some convincing arguments, and only after she has satisfied this court that she has completed her relocation back to Temiskaming District.
[16] I will deal with the balance of her claims below.
MOTION OF THE FATHER (Tab 1, Vol 2)
Leaman’s motion claims are 13 in number. I will again weed out those that can be dealt with quickly and most expediently.
[17] He asks for an order that the mother have supervised parenting time access) at the SAC for up to four hours every second weekend for 12 months. This sets the context of many of his other claims that are for orders that are to take effect starting in 12 months time.
[18] Firstly, I do not order that Emily sign consents to release of SAC (supervised access) notes or NEOFACS (Children’s Aid Society) records at the end of 12 months. I truly hope that this proceeding is over and done by 12 months from now. [See s. 26 of the Children's Law Reform Act, R.S.O. 1990, c. C.12 that requires the court clerk to list this matter for a judge to set a trial date that is the earliest compatible with a just disposition].
What earthly good would consents signed a year from now do for this case now. Moreover, these record holders have not been served and there is no assurance that they will honour “consents”.
[19] Secondly, there is already an order (paragraph 7 - Dec 15 2020) for Emily to submit to “hair follicle drug test within 30 days of the request” but this is not the entirety of the order. It also provides that Leaman is to make the request of Emily, that he can do this up to two times per year and that it is at his expense. No one has sought to vary this order or to terminate it. I don’t propose to make another order for reasons below.
[20] Thirdly, there is an order (paragraph 2 - May 28, 2019) requiring Emily to provide urine test results from OATC to Leaman’s lawyer, Jeremy Fisher. So far as I am aware, that provision has never been changed and I am not about to duplicate it. I will amend it to provide that Emily provide these to Mr. Bennett who is Leaman’s current counsel of record.
[21] I decline to order a non judicial review with only Emily and Leaman to take place one year from now, as this is bound to lead to nothing tangible or productive. As for a judicial review of the parenting time provisions, I note that this was ordered (paragraph 8 – Dec 15, 2020) to take place by June 30, 2021 and failed spectacularly to materialize. Moreover, it would be ludicrous for this court to commit to a schedule of increasing access starting only one year from now and on the contingency that Emily “provides clean drug testing”.
[22] I decline to make orders under s. 36 of the Children's Law Reform Act, R.S.O. 1990, c. C.12 as claimed by Leaman in clauses 8, 9, and10 of his motion. Firstly, these orders are made after the fact; they are not meant to be preventative. Secondly, Leaman has not established any of the pre-requisites for such orders. Thirdly, I can think of only rare circumstances where such orders are appropriate to make, especially when a six year old child is involved – and this is not one of them.
[23] I do not order or request the OCL to provide services. This has already been done twice in this proceeding and I have no assurance that history will not repeat itself. Moreover, the court should not make such orders as a matter of course. It must have a good reason to need, or at least want OCL input. There are none presented in this motion.
[24] I decline to make an order for temporary child support payable by the mother. The father has no claim for final child support in his Answer. Rule 14(1) of the Family Law Rules, O. Reg. 114/99 allows him to make a claim for a temporary order for a claim made in his application. I have no idea what the parties have done by way of child support but my review of this file is that there is no child support order ever made nor any provision in a domestic contract.
ANALYSIS
[25] At the outset, I point out that this case is almost 3 ½ years old. The motions the parties have brought are for temporary orders, and in Leaman’s case, he makes no secret that he plans to keep temporary measures in place for at least 12 more months. This is ludicrous. I appreciate that the counsel are relatively new to this proceeding but they have an obligation to explain to their clients that they cannot continue litigating ad infinitum.
[26] With respect to Emily, she has clearly fallen down on her parental responsibilities by allowing herself to become addicted to opioids. Moreover, she has done some things that have prolonged this litigation to no good purpose, e.g.
(a) kept hidden from Leaman that she had developed drug dependency issues (b) moved away from Temiskaming just after the OCL became involved (c) refused to co-operate with the OCL which led to discontinuance of services (d) kept insisting her stay in Peterborough was temporary (e) driving every week with Ian between Peterborough and Earlton return trips
[27] On the other hand. Emily was between a rock and a hard place. She had to navigate between a serious addiction and an adversarial ex-partner (Leaman). Superimposed on that were a failed abusive relationship. a miscarriage, a hysterectomy, hospital admissions, problems with the College of Nurses, her job in Earlton hospital and whatever residential instability she may have undergone.
I agree that she had significant problems, the accumulation of which clearly impacted adversely on her ability to parent Ian.
[28] Leaman, used Emily’s misfortunes to attack her and sometimes not unjustifiably so. He raised the frostbite issue and was shown to have been wrong as far as blaming Emily. He withheld Ian from Emily beyond his allotted time on a number of occasions. He refused to acknowledge that Dr. Rosen’s letter had been shown to be authentic. He also did not follow orders made in this case. He was not the supportive ex-partner that might have defused this proceeding, or at least may have toned down the adversariness.
[29] On the other hand, he was being misled by Emily about the true state of affairs. He has always been protective of Ian. He found alternative child care in his mother and has managed to provide for Ian’s needs quite adequately.
[30] I find that Emily has provided to Leaman’s counsel, and thus to Leaman, satisfactory proof that Dr. Rosen’s letter is authentic. I add that this was not evidence that needed proof of authenticity. This exercise simply delayed any finality in this case.
[31] That Dr. Rosen’s letter was intended for Emily’s dealings with the Ontario Nurses Association and the College of Nursing does not detract from what Dr. Rosen stated in the letter. The contents go to show that Emily has recovered enough to perform her duties as a nurse. The court has to extrapolate from this whether she is able to parent Ian properly, unsupervised. Emily has also provided a further affidavit of Ms. Marcoux who recounts her conversation with Dr. Rosen. This is evidence within Rule 14(19) and admissible on motions such as these. It confirms Dr. Rosen’s credentials in the area of treating addictions. It also is very complimentary to Emily as her patient, and to the work and effort that Emily has done to deal with her addiction problem.
[32] I am satisfied that Emily has overcome her substance abuse and is consolidating her gains in that area based on the information she has provided to this court. Leaman is likely more skeptical and wants more proof. He has not persuaded the court otherwise with his evidence. He has the OATC urine test results already sent to his then lawyer, and he is entitled to get more or all of these from Emily. He should specify precisely what he wants by way of OATC urine test results and advise Emily’s lawyer.
[33] With respect to Emily submitting to hair follicle drug testing, it appears to me that the parties and their lawyers were a bit slipshod in the wording of this consent provision. It seems to me that if Leaman wants the hair follicle test results, he has to arrange for them with a testing entity, and has to pay for them, and all Emily has to do is show up when and where he advises her and provide a hair sample. This has not happened based on the evidence in this case. I am not inclined to make any order with respect to hair follicle testing. I can almost take judicial notice of the Motherrisk fiasco, and simply note that there may well be some evidentiary dispute should Leaman, or Emily, try to introduce these into evidence. From my perspective, simply because the parties agree to a provision such as they obviously agreed to, this does not mean that the court will simply rubber stamp such a provision with no evidence as to the use, efficacy, reliability and the intended purpose of what is produced thereby. In addition, that Dr. Rosen does not want Emily to undergo hair follicle testing is an irrelevant matter. Dr. Rosen is not against Emily providing hair samples; she is against what use can be made of the test results. That is a matter for the court to decide, not for a medical practitioner.
The Children’s Aid Society has only a peripheral role in this proceeding. Leaman claims he was advised that the society might intervene if he permitted unsupervised access to Emily. However, Emily produces a letter from the society that says it has no position on her access pursuant to an order in this case. I do not consider the society at all insofar as the decision on these motions.
[34] I am of the view that more drastic steps are needed to move to normalization of parental parenting time. These parties started with joint custody and week about care of Ian. While the circumstances are much changed from then, this is the benchmark that would optimally be the most desirable. However, it cannot be at this time.
[35] Firstly, Ian is in school. he has school starting in September 2021. So his school time is committed and affects what other times he can be with either parent.
[37] Secondly, there is still a huge geographical distance between Emily’s home and Leaman’s home. This restricts what this court can realistically order. Until Emily relocates back to Temiskaming District and the court knows what are the logistical and practical problems that this move may present, it can do little except on a temporary basis.
[38] Thirdly, this court has to remain cognizant of the realities, such as the status of this proceeding and its eventual resolution, the work schedule of the parents, the plan each has for the care of the child for the present, the transportation availability and problems it may present, particularly in the winter months, and myriad other issue that are bound to arise.
[39] I am inclined to order that the mother has the following unsupervised parenting time as a temporary order:
(a) for two consecutive weeks in the month of August 2021 at the City of Peterborough or wherever the mother resides, such weeks to be agreed to by the parties or failing agreement, between 10:00 am August 15 to 6:00 pm August 29 with the mother, Emily, responsible to pick up and drop off the child at the home of the paternal grandmother, or if unavailable, the home of the father.
(b) for Christmas 2021, for one week either from 10:00 am Dec 21 to 6;00 pm Dec 28 or from 10:00 am Dec 26 to 6:00 pm Jan 2, 2021with the parties to agree on the period by Dec 1, 2021 failing which it will be Dec 21 to Dec 26. The mother shall be entitled to this Christmas parenting time in the City of Peterborough or where ever she resides, and she will be responsible to pick up and drop off the child at the home of the paternal grandmother, or if unavailable, the home of the father.
(c) for the child’s school break in spring of 2022, for one week from Sunday 10:00 am to Sunday 6:00 pm with the mother responsible to pick up and drop off the child at the home of the paternal grandmother, or if unavailable, the home of the father.
(d) for one weekend each month excluding the months mentioned in (a),(b) and (c) above in the city/town of Earlton, New Liskeard or Temiskaming Shores from Friday at 6:00 pm to Sunday at 6:00 pm with the mother responsible to pick up and drop off the child at his place of residence such parenting time to be on 45 days written notice by e-mail to the father or to his counsel.
(e) for parenting time by telephone or by electronic means (Skype/Facetime etc.) at reasonable times of the day (before 8:00 pm) and for reasonable durations (maximum 45 minutes) at any other times.
[40] The father shall have parenting time with the child at all other times.
[41] One perennial problem with a succession of temporary orders is that the most recent order does not necessarily explicitly or implicitly supersede and/or terminate a prior provision of a previous order. Counsel, as well as judges, are equally guilty of overlooking the problems that this may cause. For the sake of clarity,
(a) The parenting time ordered above can be exercised where indicated despite any prior order that restricts the child geographically.
(b) The parenting time ordered can be exercised without supervision, despite any prior provision that requires supervision
(c) The parenting time ordered above is the only parenting time to which the mother is entitled despite any parenting time that is provided in any prior order.
(d) In the event that any provision made by me is problematic or difficult to implement, the parties may mutually change such provision, but only if they do so in writing exchanged through their respective counsel of record, otherwise, they are bound by what is ordered.
Released: August 2, 2021
Justice John Kukurin
e [1] No claim for child support was made by Leaman. He did not file any financial statement. Emily has never pursued child support despite her claim. It seems to be an abandoned claim except that some support was actually paid later.