ONTARIO COURT OF JUSTICE
CITATION: Young v. Savoie, 2022 ONCJ 14
DATE: 2022 01 06
COURT FILE No.: Sudbury 0-13-17 ext. 1
BETWEEN:
AMYLEE YOUNG (FORMERLY SAVOIE)
Applicant
-AND-
ALAIN SAVOIE
Respondent
Before Justice Randall W. Lalande
Heard on December 7 and 8, 2021
Reasons for Ruling on Motion to Change released on January 6, 2022
Liisa Parise .................................... counsel for the applicant mother, Amylee Young
Alain Savoie ……………………………………..…………………………….on his own behalf
LALANDE J.:
1: INTRODUCTION
[1] Amylee Savoie (the "mother") and Alain Savoie (the "father"), met in 2009. The mother (nee Young) had a daughter from a previous relationship, T.S. born on […], 2007. The mother and the father are the biological parents of M.S. born on […], 2011.
[2] The mother and the father started living together in February 2010. They became married on October 20, 2012. They separated on February 15, 2014, reconciled on September 1, 2014 and essentially finally separated on April 7, 2016.
[3] Several court orders were made following the mother and the father separating including:
• On January 11, 2017, the mother brought an application and ex-parte motion. Her affidavit in support highlighted significant discord between herself and the father subsequent to their separation. On January 5, 2017, the father was charged with intimidation (sec. 423(1)(a) C.C.C.) and mischief (sec. 430(4) C.C.C.). The mother expressed concern for her safety and that of her family. She also expressed concern over the father possibly removing the child to an unknown location.
• The mother was granted temporary custody. The father was allowed access at the Supervised Access Centre. Both parents were instructed to register with the Supervised Access Centre. The matter was made returnable February 1, 2017.
• On April 20, 2017, Justice Thomas made a final order providing sole custody to the mother of both children with reasonable access upon reasonable notice to the father with a proviso that access to the child T.P. be according to her wishes. This order also dealt with the issue of child support and the father's obligation to disclose any change in his income.
[4] On July 29, 2020, the father brought a motion to change the order of Justice Thomas. The relief sought at paragraph 2 (only relating to the child M.S.) is framed as follows:
a) Once per week after school from 3:00 p.m. until 6:00 p.m.;
b) Every second weekend from 10:00 a.m. until 2:00 p.m. on Saturday and Sunday, to progress gradually to overnights on dates and times to be set by the parties or this Honourable court.
[5] The father provided a subsequent affidavit sworn on June 18, 2021 in preparation for this hearing. He now indicates (also confirmed in his viva voce evidence) to only be requesting access (parenting time) at the Supervised Access Centre. Although no formal application was brought to amend the relief sought in the motion to change, the hearing proceeded on the basis that the father is now asking for parenting time at the Supervised Access Centre.
[6] In her response the mother is asking for an order that there be no access and that any access as it may relate to the child Tianna be terminated. The mother's claim also touches upon issues of financial disclosure, child support and costs.
[7] The father is not, within the context of these proceedings, seeking parenting time with the child T.P.
[8] Although this matter was commenced as a motion to change, it was allowed to proceed to a trial management conference. On January 15, 2021, Justice Bradley provided the following endorsement:
"I provided clarification with respect to my order dated May 4, 2021. At this time, Mr. Savoie shall have no parenting time with the child M.S. born on […], 2011. The matter shall be adjourned to July 16, 2021 for a trial management conference in lieu of a motion."
Trial dates were set (two days were set aside) and witnesses have been allowed to testify in person.
[9] At issue in this case is the following:
• Whether the father at this time shall be permitted parenting time at the Supervised Access Centre with the child M.S. born on […], 2011;
• Ongoing child support from January 1, 2021;
• Costs.
2: OVERVIEW
[10] I shall within these reasons be making reference to and/or summarizing portions of the evidence given by the parties (and Ms. Anderson) including affidavit material and exhibits. All of the evidence has been considered for the purpose of these reasons. It should not be taken that evidence not specifically mentioned or referenced in these reasons has not been considered or given appropriate weight.
[11] In arriving at a decision on making a parenting order or contact order with respect to M.S., the court shall take into account only what is in her best interests.
[12] In determining M.S.'s best interests, the court shall consider all factors giving primary consideration to her physical, emotional and psychological safety, her security and wellbeing. Factors to be considered include those listed in subsection 24(3) of the Children's Law Reform Act.
[13] Generally speaking, in determining what is in the best interests of a child, the court should not take into consideration the past conduct of any person. In this case, however, the evidence touching upon recent past conduct does bear relevance to decision making responsibility, parent time and/or contact with the child.
2:1 Report of the Children's Lawyer
[14] The notice of application to change was brought by the father on July 29, 2020. On August 14, 2020, Justice Guay made an order for "the voice of the child" and "a full OCL report". A report of the Office of the Children's Lawyer dated February 1, 2021 was completed by clinician Jill Anderson and provided to the court February 4, 2021.
[15] Ms. Anderson testified. She is a university graduate with an Honours Bachelor of Arts degree in sociology. She has an extensive history as a child protection worker and supervisor with the Children's Aid Society(s) of Algoma and the Districts of Sudbury and Manitoulin. Ms. Anderson commenced providing services to the Office of the Children's Lawyer in 2015. In addition, she has provided service to Sudbury lawyers in the area of collaborative law. Her up-to-date CV has been entered as an exhibit. She commenced working on this case on October 5, 2020.
[16] In preparation of completing her report, Ms. Anderson conducted thorough interviews with both parents and both children (M.S. and T.P.). Ms. Anderson has also consulted collateral and personal contacts. She has also reviewed a list of written reports including court documents.
[17] A disclosure meeting was conducted between Ms. Anderson and counsel for the parents on February 1, 2021.
[18] The report of the Children's Lawyer is thorough. It provides a fair accounting of issues impacting the relationship of the parents and information helpful to the court in determining what is in the best interests of the child.
[19] The report highlights that from the mother's perspective, the father continues to have significant anger issues which she describes as explosive, risky and not fully manageable. In essence, the mother is noted to describe the father as a boisterous person prone to outbursts, who makes false ranting accusations and who denies or mitigates his erratic behaviour.
[20] The father faults the mother for her lifestyle including poor decision-making, impulsiveness and alcohol addiction. He perceives the mother to be engaged in efforts to alienate the child from him.
[21] The mother provided a number of examples illustrating the father's behaviour including examples which have led to the father being criminally charged and convicted.
[22] The father's comportment, as may be gleaned from the report, has been factored in by Ms. Anderson in arriving at her recommendations. The issue of Mr. Savoie's overall mental health was discussed in the report as follows:
"On October 27, 2018 Mr. Savoie attended HSN and indicated that he was feeling overwhelmed and wanted to speak with Crisis. When speaking with Crisis Mr. Savoie refused referrals for services and counselling. On October 30, 2019, Mr. Savoie appeared unpredictable and irrational at Sudbury Counselling Centre and was barred from the property due to his ongoing behaviour. On July 21, 2020, Mr. Savoie was brought to HSN by police under an MHA for making suicidal threats and threatening to blow his brains out while he was speaking to police. Mr. Savoie's probation officer, April Gendron, indicated that she is worried about Mr. Savoie's mental health and feels that he would benefit from mental health services."
[23] Mr. Savoie indicated to Ms. Anderson that he feels that it is Ms. Savoie who has mental health limitations. In large part, he assumes this to be the case because of her efforts in trying to remove him from M.S.'s life. The report also indicates that there is no information from any collateral source indicating that Ms. Savoie has mental health limitations.
[24] It is to be noted that Mr. Savoie's probation officer, Ms. Gendron also indicated that he is very argumentative and has been somewhat verbally aggressive with her. She stated that Mr. Savoie seems bitter and angry. Mr. Savoie's probation officer also indicated that following his conviction in March 2018, it was determined that he did not have to complete the PAR program. This was because there was an incident on a prior occasion where Mr. Savoie was not accepted into the program because he had become upset and aggressive with the coordinator or program leader.
[25] Overall, Ms. Anderson was of the view that Mr. Savoie appears to have deep seeded anger and aggression issues that will need to be addressed through services. He appears to have problems coping with day to day stressors. It is important that he receive services and ultimately find his way to taking responsibility for his actions.
[26] There is some concern relating to the reason for which Mr. Savoie stated he would like to rebuild a relationship with M.S. In his interview with Ms. Anderson, he stated that he wants M.S. to know the truth. He also stated that he thinks that M.S. has been brainwashed and that Ms. Savoie has been influencing her to not want to have a relationship with him.
[27] M.S. advised Ms. Anderson that she witnessed her father hurt her mother. During her interview she stated that she would be afraid to see Mr. Savoie. She said she would try to hide. She expressed not wanting contact in person, in writing or electronically. The conclusion drawn by Ms. Anderson is that (at this time) it does not appear that access with M.S. would be meaningful or beneficial. Moreover, Mr. Savoie's comment that he wants M.S. to know "the truth" is worrisome. The essence of any access would be for M.S. to rebuild her relationship with her father. It has been recommended that M.S. engage in her own therapy and that her father begin to take responsibility for his conduct and also engage in therapy to help him to understand his child's needs.
[28] There are a number of recommendations contained in the report. These would include the following:
1. Custody
(a) Ms. Savoie shall have sole custody and primary residence of M.S.
(b) Mr. Savoie will sign the necessary consents to allow Mr. Savoie to obtain information about the child from collateral's involved. Mr. Savoie should be provided a list of all professionals involved including their contact information (through the lawyers at this time due to Mr. Savoie's criminal conditions). Mr. Savoie is responsible for accessing this information himself directly from the source if Mr. Savoie can be calm, appropriate and child focused.
2. Access
(a) There shall be no access with Mr. Savoie and M.S. at this time.
(b) Even though Mr. Savoie has access to information, he should not attend any event where the child is present.
[29] It is also recommended that Mr. Savoie have access to M.S.'s care providers and counsellors and that he have access to information from her school including access to her teacher. The report also sets out comprehensive recommendations relating to counselling and services. It is also recommended that the mother and father not communicate even after Mr. Savoie's criminal conditions expire. There is an indication hat direct communication would not be appropriate in the future due to the history and violence within the relationship.
2:2 Evidence of the Mother
[30] The mother was composed and well-spoken. She gave a brief outline of the history of her relationship with the father. She spoke factually and did not appear prone to exaggeration.
[31] The mother admitted that there were many arguments between herself and the father. She stated that with the passage of time, his anger escalated, and his behaviour graduated to being physical (i.e. flipping the laundry basket, knocking over a lamp, etc.) She provided several examples:
• September 2015 - the father was in a rage and ripped off a false kitchen drawer which he threw within the house. The children were nearby in the living room. The mother called police.
• November 2015 - M.S. was 4 years of age. She had decided that she did not want to get ready for school. She locked herself in her bedroom. The father aggressively forced the door open. In her affidavit evidence the mother stated that the father kicked the door open. The door was damaged.
• February 2016 - the mother said she had cleaned three cast iron stove grates. The grates were soaking in the bathtub. The father wanted to take a shower. He got upset. He removed and threw the grates forcefully. The mother stated that one of the grates cracked in half.
• April 1, 2016 - a mutual friend, Catrina, was visiting with the mother in the home. There were four children total playing in the home. The father was taking a nap. At 5:00 p.m. he awoke and became upset because there was too much noise in the house. He started yelling. He went in the garage. He returned into the home. He became frustrated. He caught his arm in a curtain and ripped the entire curtain rod down. The mother had been making a first communion and a birthday cake. The cakes were on the counter. The father destroyed both cakes by swiping them off the counter.
[32] After the April 1, 2016 incident, the father moved out of the home. The mother had contacted police.
[33] According to the mother, on January 2, 2017, the father threatened to disappear and commit suicide. Police were called. A series of texts were attached to the mother's affidavit as an exhibit. In one said text, the father stated: "You deserve to die".
[34] On January 5, 2017, the father attended at the residence of the mother's mother. According to the mother he was angry and irate over visitation time. He tugged angrily at her car door. He kicked the car. The mother's mother called police. The father revved his truck engine and sped away. He drove to the mother's place of employment where he engaged in threatening behaviour and caused office damage. He was charged with intimidation and mischief. Ultimately, he was released on bail on January 6, 2017.
[35] As a result of the January 5, 2017 incident, the mother brought a court application and motion without notice. This led to a temporary court order granting the mother custody and placing access to the father on hold. According to the mother, the father's behaviour then appeared to improve. Ultimately, she and the father consented to a final order made by Justice Thomas on April 20, 2017. The mother was granted sole custody and the father was granted reasonable access upon reasonable notice. This order also contained a provision for child support.
[36] The mother testified that the father's good behaviour was short lived. She said that on March 28, 2019, he contacted police and made a false and unsubstantiated claim that she had stolen items from his truck. No charges were laid. This was on the heals of the father having sent a number of worrisome test messages.
[37] On March 29, 2018, the father was arrested and charged with multiples offences. On March 22, 2019, the father pleaded guilty and was convicted of assault, assault causing bodily harm, breach of probation, mischief and three counts of breach of recognizance. He spent four (4) months in pre-trial custody (enhanced to six (6) months for sentencing purposes). He was sentenced to nine (9) months jail but granted a conditional sentence order enabling him to serve his sentence in the community. He was also placed on 21-months probation with a no-contact condition except pursuant to a family court order or in the presence or through legal counsel. He was also prohibited from being within 100 meters of the mother's places of residence, work or school. He was ordered to make restitution in the amount of $4,425.26 to the mother and restitution in the amount of $1,569.93 to her partner Alexander Gagnon.
[38] The mother testified and gave a detailed accounting of the facts giving rise to the charges against the father resulting from the March 29, 2018 incident. Of significance is that the children (M.S. and T.S.) were in the home at the time when the father barged in and proceeded to assault Mr. Gagnon and then the mother. As a result of being assaulted, the mother's face was bloodied. She was taken to hospital and received treatment including five sutures to the head. A photo of this injury was entered as an exhibit.
[39] The mother stated that although it took some time, M.S.'s routine was slowly re established. She stopped wetting the bed. The mother initially canvassed having M.S. see a counsellor. She did not follow through right away. She did, however, in accordance with the Office of the Children's Lawyer (OCL) recommendation, eventually enroll M.S. into counselling. M.S. currently attends for counselling each second month.
[40] The mother indicated that prior to the incident of March 29, 2018, the father's access was periodic. In part, this was because he was working out-of-town. She also indicated that during those times when the father did have access, he would seek information from the child about herself and more particularly her partner.
[41] The mother admits having consumed alcohol but more so in the past and especially after having met the father. She confirmed having quit drinking completely during pregnancy. She stated that the consumption of alcohol is not an issue in her life and that she and the family currently enjoy an active and healthy lifestyle.
2:3 Evidence of the Father
[42] Mr. Savoie testified that after he and the mother met, they waited for two months prior to him being introduced to the child T.P. He also said that he met T.P.'s father, Stephane Pineault.
[43] For the first six (6) months, they rented a basement apartment in her mother's home. They then purchased their own home which they proceeded to renovate. At the same time, they had become engaged and were making plans to be married.
[44] The father provided a description of his work history. He stated that initially the relationship was "going well". As time passed, he and the mother became married. They enjoyed several vacations and they purchased a time-share in Cancun, Mexico.
[45] The father acknowledged having moved out of the home in April 2016. He exercised access although his ability to do so depended on his work schedule.
[46] He accused the mother "seeing her lawyer" and "dating her boss". In terms of the January 5, 2017 incident, he stated that he blamed her employer and her relationship with him in the workplace. He also, at one point, admitted that the incident at the mother's workplace should not have occurred.
[47] The father described himself as being "verbal and straightforward". He stated: "The court stuff is behind me now". He described his anger and frustration as being "normal" in light of what he had to deal with.
[48] When questioned about his conduct and outbursts, the father said that periodic and random events occurred throughout the relationship. In large part, he downplayed his conduct. For instance, he denied throwing the cast iron grates out of anger. He stated: "If I threw them, they would all be broken". He did admit to throwing one of the grates a short distance of about two feet. He also stated: "Somethings are accidents... couples argue".
[49] As to the occurrence of April 1, 2016, the father stated that he accidentally knocked the cakes off the counter. When asked about the curtain rod, he stated: "I stepped on the curtain and it fell". He went on to say that the curtain rod was broken by accident. He deflected some of the blame to the mother. He stated: "She pretends that I yell for no reason".
[50] The father admitted that on Facebook he indicated that he was going to kill the mother. By way of explanation, he indicated that the comment he made was intended to stay private between himself and the recipient. He was questioned about having sent a text threatening to take his daughter (M.S.) and with reference to the mother, having stated that "it's murder time".
[51] In response to being questioned about this behaviour, the father stated: "things come out of your mouth", "I allow my mind to be shared", "she needed to know how I felt".
[52] When questioned in more detail about the mother's employer, the father said that he accepted 50% of the blame and that he did not get angry "for no reason". He also pointed out that the incident involving the employer occurred about four (4) years earlier and that he was now interested in moving forward.
[53] The father deflected blame for his conduct in the mother's home which led to multiple criminal charges on March 29, 2018. He very unconvincingly stated that he broke into the home because he thought there was a stranger in the home (i.e. Mr. Gagnon, the mother's new partner) fighting with the mother.
[54] The father essentially denied the facts respecting the occurrence of March 29, 2018. This, notwithstanding his plea(s) of guilt. Counsel for the mother (Ms. Parise) provided a transcript of the sentencing hearing where the facts were clearly admitted on the father's behalf by his counsel. The facts which were placed on the record at the time he pleaded guilty, substantially align with the mother's version of events. Somewhat incredulously, the father testified that the mother got hurt because she intervened in a fight between him and a stranger (Mr. Gagnon). The scenario painted by the father is completely inconsistent with the facts placed on the court record at the time of his criminal sentencing hearing.
[55] Overall, rather than take responsibility for his own behaviour, the father chooses to minimize the consequences of his conduct. He relentlessly faults the mother whom he perceives to be engaged in a campaign to alienate the child from him. He is prone to being argumentative and deflecting blame. Many of the father's assertions are not factually supported. He tends to try to change the factual landscape when dealing with anything contentious.
[56] The father does have positive attributes. He was articulate and able to communicate positively during the hearing and for the most part he made an effort to remain poised and to follow procedural directives.
[57] The father now resides with Ms. Lisa Pitre. She is fully employed. She met Mr. Savoie on Facebook. They started dating in October 2019. Ms. Pitre is sympathetic with the father's plight to become a presence in M.S.'s life. In her interview with Ms. Anderson she stated: "My heart hurts for him when I listen to him talk about his daughter".
[58] By and large Ms. Pitre supports the father's position where he says to have embarked on a more stable lifestyle. It is also to be noted that Ms. Pitre indicated that she would be willing to supervise Mr. Savoie's access should he be allowed to have contact with M.S. She also confirmed that Mr. Savoie and his parents have met her own children and that in the context of a family, their relationship is generally progressing well.
3: DISCUSSION
[59] Ms. Anderson testified and was subject to cross-examination. The factual information set out in her report was canvassed at trial. Her report flushes out issues of conflict from the perspective of each parent. The report also provides insight on the past and current history of the relationship between the mother and father and their relationship with the child.
[60] As has been stated in other cases, it should be remembered that an OCL report is not an expert report nor an assessment. The legislative authority provides for an investigation to be made and for a report to follow which may include recommendations. An OCL report, by its nature, is a fact finding report. In this case, the report also contains helpful interviews with M.S. Generally speaking, recommendations resulting from a report are considered as a starting point; not the last word. The report, however, is to be carefully considered and factored into the court's overall analysis of what in all of the circumstances is in the best interests of the child.
[61] Ms. Anderson obtained information from collateral sources. Those persons interviewed appear to have made an effort to be neutral and fair. They also met their obligation to be responsive and forthright.
[62] Mr. Alain Legault is a supervisor or the Supervised Access Program. He confirmed that the mother called him on January 11, 2017 to initiate services and complete intake requirements. The father contacted him on January 23, 2017. After some brief discussion (wherein the father appeared frustrated), Mr. Legault stated that the father "used some profanity and stormed out of the meeting". Mr. Legault determined that the father appeared angry and unwell. He saw fit to call the police to request a wellness check on the father.
[63] Ms. April Gendron is a probation officer. She confirmed Mr. Savoie was placed on a conditional sentence in March 2017 and an eighteen (18) month probation order. She further indicated that the father reoffended in 2018, and on March 22, 2019 he received a nine (9) months conditional sentence followed by twenty-one (21) months probation. This, in fact, is the sentence which resulted further to the father's violent conduct which unfolded at the mother's home on March 29, 2018.
[64] Ms. Gendron confirmed that the father completed a Healthy Relationships Program with Dan Keaney (which is PAR equivalent). She noted the father participated with high levels of blaming, minimization and denial. She also made reference to the father not being eligible for the PAR program itself because at an earlier time, he had become aggressive with the worker of the program. Hence, he was not eligible to again take the PAR program, he worked on the Healthy Relationships Program.
[65] Ms. Gendron noted that the father displayed verbal aggression and at times appeared to be bitter and angry. Ms. Gendron however did not give the impression that the father could not improve or be dealt with. She expressed hope that he would not re offend. She also ultimately indicated that he may benefit from mental health services.
[66] Mr. Gaston Cotnoir is the Executive Director of the Sudbury Counselling Centre. He provided some detail regarding the fact that the father argued and did not get along with a PAR facilitator. He ended up accusing the facilitator or the agency of making his life difficult. He was also noted to appear to be unpredictable and irrational. When he left the facility, he drove away at a high speed and screeched his tires. He was removed from the program.
[67] The OCL report makes the recommendation that there be no access by the father "at this time". The following factors are referenced in the report and the evidence:
• It was explained to the father that M.S. did not want to have access;
• M.S has witnessed her father assault and hurt her mother. The father indicates that he does not know why M.S. is saying that she witnessed violence. Further the father stated that he thought that M.S. may have been brainwashed;
• A conclusion was advanced by Ms. Anderson that that father does not understand how domestic violence and aggression affects children;
• M.S. has indicated to Ms. Anderson that she is afraid to see her father and is prepared to hide;
• M.S. has only recently started attending counselling. It is unknow as a young child if she is emotionally prepared to rebuild her relationship with her father;
• There is insufficient evidence at this time to establish that the father has received/completed sufficient counselling. On its face the evidence to date continues to suggest that he does not take responsibility or acknowledge his behaviour.
[68] The court accepts that M.S. at this point in her life is progressing well. She enjoys the benefit of a stable home. She is attending school. She displays contentment within a conflict free environment.
[69] The past parental conflict has most certainly been very stressful for M.S. Since having witnessed the violent episode on March 29, 2018 she has felt worried and unsafe. Given the circumstances of the immediate past and her age it is understandable that she continues to resist the idea of reengaging with her father.
[70] The current operative order of April 20, 2017 provides the father with reasonable access. This has not worked out. Although I am satisfied that the father loves and cares for M.S. I must be cautious to not place excessive emphasis on the father's current expectations and insufficient weight on what is in M.S.'s best interests.
[71] The father testified that he is now leading a better life and has taken a number of programs. He indicates to have done so further to the recommendations outlined in the OCL report. The father must be commended for having taken these steps. In his testimony he made mention of the following programs:
• Anger Management (2020);
• Healthy Relationships (2019 - may not be concluded);
• Triple P (Program not yet completed)
• Dan Keaney; 4 sessions (see above comments).
[72] The court does not have the benefit of any certificates or reports except a certificate of completion for having attended "Recognizing Healthy Relationships" dated December 17, 2019. Otherwise, the father did not provide certificates of completion, any written assessments or even better, evidence from a program leader. Although it may be assumed that the programs identified by the father are geared to provide benefit and assistance, the evidence adduced is slender at best and not sufficient to substantiate that the father has been meaningfully impacted.
[73] On August 22, 2021, well after having stated in his Affidavit sworn June 18, 2021 to having taken several courses, the father made Facebook postings regarding the unfortunate passing of his niece where in indicated: "too bad it wasn't my kid". He also stated: "this is so bad for my mental health". Further, in the same messaging the father posted "F-k progress in don't need it". The recipient, in referencing the child, responded; "I know it is hard enough not getting to see her, but let's hope she does not see this post". Another recipient responded: "Jesus... don't talk like that". These exchanges were posted on Facebook on August 22, 2021.
[74] To some extent, these postings and the wording used is demonstrative of the father's demeanour when dealing with conflict related issues or matters he does not agree with. They do not paint a positive picture. Simply put, although to his credit he recently appears to be doing better in managing his behaviour, he has more work to do.
[75] At this juncture I cannot conclude that reasonable access (or parenting time) is in M.S.'s best interests including access at the Supervised Access Centre. There has been a history of discord and unpredictable harmful behaviour which must be considered. The evidence does not yet satisfactorily establish that the father's behaviour will henceforth be devoid of such conduct. I am satisfied, taking into account the totality of the evidence that it would be imprudent to disturb M.S.'s status quo. The father has made some effort but he has not yet provided sufficient evidence of meaningful progress. Disturbing the status quo at this time, would be a step in the wrong direction and would put M.S.'s best interests at risk.
4: CONCLUSION
4:1 Motion to Change
[76] The father's Motion to Change is Motion to vary parenting time on a Final Order. There is a material change of circumstances since the order was made but not favouring the father's position. The material change of circumstances in part favours the relief sought by the mother in her response.
[77] The OCL report contains a recommendation that the father not have access (parenting time) with M.S at this time. The court is in agreement with this recommendation.
[78] The issue of the father's access to information about the child was briefly addressed at the hearing. The mother's counsel was asked to verify if a third party may be made available to communicate with the father. The purpose would be to provide the father with succinct updates about the child's school, health or medical emergencies or matters of an urgent nature. The idea here would be to keep the father informed on an intermittent basis. In that regard it is recommended that there be brief communication with the father approximately every 60 days or sooner should there be a medical emergency or a matter of an urgent nature. Counsel for the mother may wish to communicate the name of a suitable third party to the father. Consideration may also be given to include the paternal grandparents as eligible third parties.
[79] The evidence at hand falls short of establishing that access (parenting time) would benefit the child. The court remains mindful that Ms. Anderson when framing recommendations in her report stated that there be "no" access "at this time". The words "at this time" are not to be taken as necessarily meaning that parenting time or contact will be recommended at some future time. Her purpose, giving the words plain meaning and taking into account her viva voce evidence, was designed to not denounce the possibility of the father having contact at some future time.
[80] Should the court agree to readdress the matter of the father's parenting time in the future, evidence such as an updated OCL report, an up-dated report on the Voice of a Child, a report from the child's counsellor, a professional opinion setting out the father's mental health status (and any recommended treatment), a detailed outline of each program followed by the father, the degree of the father's participation in each program, the expected level of helpfulness of programs taken and confirmation of the father's completion (including the production of certificates), would be helpful.
[81] Additionally, and perhaps it goes without saying, that the father's conduct on an ongoing basis and his overall commitment to improve would be expected to play a significant role in any further determination of the issue of future parenting contact. The father must focus on adjusting his behaviour and creating a responsible track record toward change and improvement. His efforts should be geared to staying calm, avoiding conflict and becoming patient. It is important that M.S. continue to attend counselling. The onus is on the mother to ensure that this occurs. Irrespective of any issues between the parents, they must not expose M.S. to any negative commentary toward each other.
4:2 Restraining Order
[82] The father's 21-month probation order which contained restrictive conditions expired on September 21, 2021. The mother brought a motion on December 2, 2021 asking for leave of the court to seek imposition of a restraining order with a condition that the father be restrained from approaching or attending her home, place or work, or school, or communicating with her or the children M.S. and T.P. The mother referred to her affidavit sworn on September 28, 2021 (in her evidence in Chief) in support of the relief sought.
[83] To his credit and pending the hearing the father has stayed away. Before the court can grant a restraining order it must be satisfied that there are reasonable grounds for the mother to fear for her own safety and/or the safety of the child. The mother's fears may be of a personal or subjective nature but must be related to the father's actions or words.
[84] It is not unreasonable for the mother to have ongoing concerns. However, I take into account the following; the father testified that he is now in a better place, his relationship with Ms. Pitre appears to be stable, his relationship with Ms. Pitre's two children, A. (age 8) and B. (age 11) is progressive, the father has recently become employed with lnterpaving, the father has shown that he is mindful of the recommendations contained in the OCL report, and the probation order has only recently expired.
[85] In looking at the totality of the evidence I find that it shall be sufficient pursuant to section 28(1)(c)(i) of the Children's Law Reform Act to include a condition that the father not directly or indirectly (except through a third party) have contact with the child M.S., the child T.P. or the mother.
4:3 Child Support
[86] A final order was made by Justice Bradley on May 4, 2021 fixing child support arrears for the years 2018, 2019 and 2020 at $19,428.00. It was also ordered that the father pay the monthly amount of $500.00 toward arrears commencing on March 1, 2021 and on the first of each month after. There is no request made by the father to change Justice Bradley's final order.
[87] A temporary order was made by Justice Bradley based on imputed gross annual income of $77,079.00 that the father pay child support in the amount of $692.00 per month commencing on May 1, 2021 and in accordance with the Child Support Guidelines.
[88] In his evidence, the father confirmed not having worked between March 24, 2021 and the end of October 2021. His evidence relating to the reason for being unemployed was ambivalent and ranged between having been laid off and having taken some time off for himself. The father's El benefits statement was attached to his financial statement sworn on June 18, 2021. The benefit statement(s) confirms eligibility and a weekly payment of $595.00 (or $2,380.00 monthly). Overall, I am satisfied on the evidence that the father was not employed during the above-noted period.
[89] The father testified that during the time he was not employed, he continuously submitted job applications. He said to have sent out 80 applications. Although copies of applications were not provided to the court, the father indicated that the job applications were listed on his cellular phone.
[90] The mother submits that for the period between April 1, 2021 and November 1, 2021, the father intentionally remained unemployed. The onus is on the mother as the person who is seeking to impute income to establish that the father is intentionally unemployed or underemployed. In looking at whether there is an evidentiary basis upon which a finding may be made that the father is now underemployed, I must take into account his work credentials and his known employment track record. Overall, the father is portrayed as a strong worker who has been very resourceful at finding employment in the past.
[91] While the mother's position is understandable, there is insufficient evidence upon which to make a finding that the father intentionally remained unemployed. Accordingly, for the period extending from April 1, 2021 to November 1, 2021, the father shall pay child support in accordance with the Child Support Guidelines based upon gross annual income of $28,560.00.
[92] For the period extending from January 1, 2021 to March 31, 2021, the father shall pay child support based on gross annual income of $81,035.62 in accordance with the Child Support Guidelines, which amount represents his average gross annual income over the past three years (i.e. 2018, 2019 and 2020).
[93] The father did testify that his job seeking efforts (as well as job availability) has been impacted by the advent of the pandemic. This is understandable. Although the father found employment, the level of his remuneration is much lower than his ability to earn income might suggest. In deciding the issue of whether the father was intentionally under-employed, I am taking into account the following factors:
• The father's work history;
• The relatively brief period of unemployment time (measured against his work history);
• The father's number of job applications he declares to have submitted (his evidence is to be considered although verification remains an issue);
• The father's stated position namely that he will be pursuing higher income;
• The pandemic;
• The father currently having secured employment.
[94] In terms of the father's present employment, the court was provided with a pay stub confirming an hourly rate of $19.50. I am not, at this time, based on the totality of the evidence, including the father's explanation respecting his efforts in seeking employment, prepared to find that he intentionally became under-employed. Therefore, taking into account the father's current hourly rate, I shall for purposes of ongoing child support, base the support payable on a gross annual income of $40,000.00 in accordance with the Child Support Guidelines.
[95] The father shall provide notice within ten (10) days of any change of his employment status and earnings.
4.4 Costs
[96] There were no extensive submissions made on the issue of costs as claimed by the mother. The court remains mindful that the motion to change brought by the father involved parenting time and that the father at the outset lowered his expectations. Before the trial started, he indicated that he would be seeking parenting time as permitted at the Supervised Access Centre.
[97] The issue of child support was raised by the mother. Adjustments in child support have been made in accordance with the evidence. Changes in child support payment have not been made in full accordance with the mother's position. Overall, costs are in the discretion of the court. Bearing in mind all circumstances including the nature of the litigation (the main focus being on the best interests of the child) including the result, there shall be no order as to costs.
5: DECISION
[98] Order to go as follows:
a) The father's motion to change is dismissed.
b) Paragraphs 2 and 3 of the final order made by Justice Thomas on April 20, 2017 (access to the child M.S. born on […], 2011 and the child T.P. born on […], 2007) is suspended until further order of the court.
c) The mother's request (motion) for a restraining order is dismissed.
d) Pursuant to section 28(1)(c)(i) of the Children's Law Reform Act, the father shall not contact directly or indirectly the mother, the child M.S. born […], 2011 or the child T.P. born […], 2007, except through a third party approved by the mother (at approximate intervals of 60 days) for the sole purpose of obtaining disclosure about the child M.S.'s schooling and health (or sooner for medical emergencies or matters of an urgent nature).
e) No further motion to vary shall be brought within ten (10) months from the date of this order and without leave of the court. Any motion for leave shall be brought on notice to the mother.
f) The father shall pay to the mother, child support for the child, M.S. born […], 2011 in the amount of $755.00 commencing January 1, 2021 and ending March 31, 2021 based on the father's gross annual income of $81,075.62 in accordance with the Child Support Guidelines.
g) The father shall pay to the mother child support for the child, M.S. born […], 2011 in the amount of $239.00 commencing April 1, 2021 ending October 31, 2021 based on the father's gross annual income of $28,560.00 in accordance with the Child Support Guidelines.
h) The father shall pay to the mother child support for the child, M.S. born […], 2011 in the amount of $359.00 commencing November 1, 2021 based on the father's gross annual income of $40,000.00 in accordance with the Child Support Guidelines.
i) The father shall provide notice within ten (10) days of any change of his employment status and earnings.
j) The father shall provide his 2021 Income Tax Return by July 1, 2021. He shall also provide a copy of the 2021 Notice of Assessment when received.
k) There shall be no order as to costs.
Released: January 6, 2022
Signed: Justice Randall W. Lalande