Richer v. Beaulieu, 2021 ONCJ 470

ONTARIO COURT OF JUSTICE DATE: 2021·08·27 Sudbury COURT FILE No. D 398-19

BETWEEN:

JASON RICHER Applicant

— AND —

NATALIE BEAULIEU Respondent

Before Justice John Kukurin

Heard on Aug 26, 2021 In Chambers on Written Submissions Reasons for Judgment released on August 27, 2021

Counsel: Liisa Parise ................................................................................... counsel for the applicant(s) Nicola Munro ............................................................................ counsel for the respondent(s)

KUKURIN J.:

[1] These are my Reasons on a motion by the Applicant father (at Tab 25) seeking an interim order in this application. The proceeding was started in Jan 2020 and an interim order was made on consent of the parties on July 20, 2020 by Justice K. Lische (the “Lische order”). That order provided for interim joint custody, primary residence of the child Jacob (now age 8) with the mother, with liberal and generous access to the father, as specified in the order, and included alternate weekends Thursday to Monday morning and week about in the summer. This was the order made while both parents resided in Sudbury.

[2] However, the mother was a student in the midwifery program through Laurentian University which required a 12 month clinical placement. She obtained such placement in Ottawa. To accommodate such placement, she was permitted by the Lische order to relocate with Jacob to Ottawa for purposes of such placement. The order also provided that the terms of the order

“ … would be on an interim basis to be reviewed upon completion of her placement in 12 months or loss of placement or discontinuance of placement shall cause an immediate review”

[3] The Lische order also provided that the father pay $675 per month child support to the mother. Exchanges for access were to take place in Deep River (later agreed to be at the Tim Horton coffee shop).

[4] The mother left in late August 2020 for Ottawa. She was enrolled in her placement for less than one month but she remained in Ottawa. Her university (Laurentian) apparently discontinued the program and she has applied to transfer her placement to Ryerson University which offered a similar program. As of this motion date, there has been no confirmation that the transfer was approved or effected.

[5] This development should have triggered the review spoken of in the Lische order. However, the mother did not disclose this to the father. In fact, she disclosed to the OCL investigator that she discontinued her placement to attend to Jacob’s “special needs” which were not related to her placement circumstances.

[6] The question is whether the motion of the father is a variation motion, or whether the court is tasked with the “review” contemplated by the Lische order. There may be some consequences, such as the need to show “material changes in circumstances” needed for a variation under s.29 of the Children’s Law Reform Act (CLRA) which may not be a pre-requisite for a review. In any event, the 12 month period is up, the mother is not in the clinical placement program and has not been since November 2020, and the child Jacob has spent many alternate weekends with his father and his current family, and continues to do so on a week about basis during the summer of 2021. These are sufficient material changes in circumstances to serve as a foundation for variation, to say nothing of the other evidence that adds more to the substance of such material changes.

[7] The mother and her maternal family are all in Sudbury. The child was raised from age 2 in Sudbury. His paternal family is mostly in Sudbury. The father is now married and lives with his wife Lindsey, his wife’s daughter (Leiah age 7 from a previous relationship) and with their infant son Bennett. Jacob reportedly has an excellent relationship with Leiah and they are good friends. He is also on excellent terms with his stepmother and other members of the paternal extended family. His relationship with his father appeared healthy and appropriate to the OCL Clinical Investigator although there was conflicting and contradictory evidence as to Jacob’s desire to visit with this father. For the most part, evidence that he did not could be sourced back to Jacob, or to his mother. Jacob’s statements should be taken with a grain of salt as he has also stated that the says what his mother wants him to say, and that he has lied before, and more than once. I am satisfied that, at the present time, Jacob enjoys his visits with his father and his family, has not shown the oppositional, defiant and tantrum behaviour that he has shown while at his mother’s home that is documented in the evidence, not by the father, but by other observers who are less partisan.

[8] The mother has shown a history of making reports to the Children’s Aid Society which have prompted investigations and disrupted or suspended the father’s access while they were ongoing, with the ultimate conclusion that no concerns were verified and that the society had no protection problems with the child Jacob spending time with his father at the father’s home. The Sudbury society and the Ottawa society did, however, make comments that suggested that Jacob was caught between two non-communicating parents, and that the mother was the parent that had parenting problems with the child.

[9] The mother has also brought Jacob to medical and mental health professionals for consultations and examinations, one of the main reasons for which was his withholding bowel movements. The evidence indicates that he did this only when at his mother’s home and that this was not a problem at his father’s home. The evidence is unclear but it appears that this is no longer a problem at all. He was seen by a pediatrician at CHEO in Ottawa (Children’s Hospital) which made some diagnoses and formulated a plan that related to his bowel movement difficulties, his return to school, and his other behaviour issues. He is still a patient of the pediatrician and also attended counseling arranged by his mother in Ottawa.

[10] The mother also home schooled Jacob while in Ottawa, mainly because, it seems, that he put up a fuss to attending regular school. While she had some professional support in her decision to homeschool, there is no reliable record of how he fared academically and the evidence indicates that he was very difficult for the mother to handle (eg tantrums, hitting his mother, no or few manners, blaming others and lying about things, and basically calling the shots around his mother’s home). It is tempting to infer that she was enabling this kind of behaviour. The pediatrician’s reports filed contemplate Jacob’s return to regular school and encourage as early a psychoeducational assessment as possible to facilitate such transition. The Lische order was more specific and stated that Jacob “… shall be in full time attendance in school”.

[11] The mother has no family support network and only one sister in Ottawa who was seldom of much help to her.

[12] There are other issues that I need not get into in much detail. These relate to access exchanges, access cancellations, access no shows and other access difficulties, While I am sure that some of these can be laid at the feet of the child, I do not believe that access difficulties that are created by the geographical distance between Sudbury and Ottawa need be continued in anywhere near the same quantity or quality as they have been in the past year.

Decision

[13] I admit that the Report filed by the Office of the Children’s Lawyer’s Clinical Investigator plays a significant role in my decision. While it contains material that is clearly hearsay in nature, hearsay evidence is admissible on motions. I know of no reasons why it would not be admissible on a review. Moreover, it is statutorily evidence by reason of section.112 (3) of the Courts of Justice Act.

S. 112 (3) An affidavit of the person making the investigation, verifying the report as to facts that are within the person’s knowledge and setting out the source of the person’s information and belief as to other facts, with the report attached as an exhibit thereto, shall be served on the parties and filed and on being filed shall form part of the evidence at the hearing of the proceeding. R.S.O. 1990, c. C.43, s. 112 (3).

[14] The mother has not disputed the facts set out in the Report which she is apparently entitled to do under s.112(4).

[15] The OCL Report portrays a mother who has difficulties managing the child’s behaviours, who has put up obstacles to the father’s attempts to have a normal father-son relationship, who has discontinued her clinical placement for whatever the reason, and no longer has any justification to remain in Ottawa with Jacob. While I do not doubt for a moment that she loves Jacob, she also makes questionable judgments, like not being forthright about the cancelation of her program, like not following up on parenting courses recommended to her by the Children’s Aid Society, and by not standing her ground and letting her 8 year old son push her around (figuratively and literally).

[16] The mother is in an academic limbo. She agreed to the 12 month order that allowed her to be with her son in Ottawa, but that time has expired. The order did not contemplate a cancellation of the university program, just as this planet did not contemplate a global pandemic. It happens. She cannot justify keeping Jacob in Ottawa.

[17] The father, on the other hand, has progressed to week about access (parenting time) which, by all reports, is going quite well. The father has appropriate accommodations for Jacob. He has an established and stable family. Jacob does not display the pejorative behaviours at his father’s home that he does at his mother’s home. Sudbury offers family support on both sides, schooling at his former school, a re-acquaintanceship with his peers and school friends, and a return to a familiar and comfortable environment. His family physician is in Sudbury and he can access CHEO or any specialist equally well from Sudbury as from Ottawa, as many Sudbury children do. The father is less likely to make questionable or wrong decisions and, clearly it is the mother who has been making decisions for Jacob over the past year despite the order for joint decision making responsibility.

[18] The CLRA requires that the court make DMR and PT decisions having regard to the best interests of the child. It lists circumstances that comprise this best interests test in s.24(3). It also provides that

S.24(2) In determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being. 2020, c. 25,

[19] Globally, I conclude that these primary considerations would be better served if Jacob lives with his father in Sudbury at this point in time. This is somewhat pressing as where he resides will dictate where he attends school, a big part of any child’s life, and that decision has to be made now as school starts in a week. Both the Lische order, and the pediatrician’s report advocate a return to school, and together with the lack of assurance that Jacob will attend a school in Ottawa and the child care difficulties that the mother has, or may have, if in Ottawa, persuade this court that he would be better off in Sudbury.

[20] Jacob’s needs for parenting are served much better by his father than by his mother at this point in time. This may change over time, but this decision applies to today. The father is better suited to meet Jacob’s needs from several point of view, including clauses a, d, g, and h of s.24(3) CLRA. This is not to depreciate the care that Jacob has had from his mother since his birth, most of which was without the assistance of, or the support of the father. There is clearly a maternal filial bond but it seems to have gone sideways in some respects which is not good for the child from a developmental, familial and social point of view.

[21] Given my order below, the father’s child support order should terminate effective August 27, 2021.

[22] There will be an order, I am unsure whether it is by way of review or by variation, as follows:

1. The applicant father, Jason Richer, shall have interim decision making responsibility of the child Jacob Noah Beaulieu-Richer born […], 2013.
2. The said child shall, on an interim basis, have his primary residence with his father.
3. That the mother, Natalie Beaulieu, shall have interim parenting time with the child (a) if she resides in Ottawa, every second weekend from Friday after school to Sunday at 7 pm extended by 24 hours before and after such time if the Thursday before or the Monday after are non-school days, with exchanges in Deep River, or as the parties otherwise agree; (b) If she resides in Sudbury, for the first three weekends of each month commencing September 1, 2021 from Friday after school to Sunday at 7 pm extended by 24 hours before or after such time if the Thursday before or the Monday after are non school days; (c) by telephone at reasonable times (ie before 8:00 pm) and for reasonable durations (ie ½ hour) every Monday, and Wednesday and, at any other time if the child initiates the call; (d) by electronic means (ie Skype/Face Time etc) every Tuesday and on any Sunday that she does not have parenting time with the child.
4. That the child shall be free to communicate with his mother by telephone or by electronic means at any time he wishes between the hours of 8:00 am and 8:00 pm.
5. That the order of Lische J dated July 2, 2020 and the order of Mendes J dated March 10, 2020 are terminated.
6. That the application is adjourned to Sept 21, 2021 at 9:30 am FCD list to set a date for the next step.
7. That if the father seeks costs of this motion, he will submit a Form 14B motion claiming such costs, together with his argument on costs of no more than three pages, and his Bill of Costs, if any, within 30 days hereof, failing which there shall be no costs to either party. Provided that if such motions is filed, the mother shall have 30 days next following the date of service on her to file responding argument of not more than five pages. Citations only required for any case law.

Released: August 27, 2021 Signed: “Justice John Kukurin”