Court File and Parties

ONTARIO COURT OF JUSTICE DATE: 2024 07 08 COURT FILE No.: Sarnia 67/22-0001

BETWEEN:

Daniel Jakob Clarke Responding Party in Motion to Change

— AND —

Skylar Jean Lavoie Moving Party in Motion to Change

Before: Justice M. Vickerd

Heard on: July 2, 2024 Reasons for Judgment released on: July 8, 2024

Counsel: H. O’Neill, duty counsel for the applicant Clarke A Boggild, duty counsel for the respondent Lavoie

Vickerd J.:

Overview

[1] The moving party, the Respondent Skylar Jean Lavoie (the “Mother”), advances an urgent motion seeking to vary the final order of Justice Vickerd dated February 5, 2024 on an interim basis. This motion is advanced within the context of a Motion to Change proceeding. The Mother requests an interim order to change the Father’s parenting time to occur with supervision.

[2] The responding party, the Applicant Daniel Jakob Clarke (the “Father”), opposes the relief requested by the Mother and seeks the dismissal of her motion with the effect of the current order being maintained.

Background

[3] The parties are the parents of the child Xavier James Clarke-Lavoie born December 14, 2020.

[4] On February 5, 2024 a final order was made based on Minutes of Settlement filed by the parties. The final order contained detailed terms for parenting. In summary, the relevant terms to the current motion included:

1. The Respondent mother has sole decision-making responsibility and primary care of the child. She has an obligation to consult with the Applicant father concerning decisions for the child;
2. The Applicant father shall have parenting time with the child to include:
   • alternate weekends from Friday after school or daycare to Monday morning when the child is returned school/daycare;
   • each Tuesday after school/daycare to Wednesday morning at school/daycare;
   • a share of extended holiday periods; and
   • other times as the parties may agree.
3. Neither parent shall consume non-prescription drugs (excluding over the counter medication) or alcohol while in a caregiving role.

[5] The Father exercised his parenting time the weekend of Father’s Day. His care period began on June 15, 2024 at 7:00pm. On June 17, 2024, at the conclusion of his parenting time, the Father returned care of the child to the Mother at approximately 12:00pm. At that time, the child presented, as described by the Mother, as “unconscious,” “limp,” “his eyes appeared dilated” and “Xavier peed himself.” Xavier’s state caused concern for the Mother compelling her to immediately seek medical attention for him at the Sarnia Bluewater Health Emergency Department. The paternal grandmother assisted with transporting them to the hospital.

[6] At the hospital, the attending physician, Dr. Z. Tarmohamed, conducted an examination of Xavier’s condition. While the doctor was performing his medical investigation, the Mother, having been told by the doctor that it appeared that the child was suffering a drug overdose, communicated with the father by text message. She asked the Father what he would have in his home that the child could have ingested. She implored him by text message:

Remember you need to tell me the truth our kids [sp] life’s on the line here he’s unconscious, pale, his eyes are dilated, he’s severely dehydrated he’s cold and his heart rate is low.

[7] The Father responded that the child “did not get into anything.” After the Mother learned from the doctor that he suspected a THC overdose as the reason for the child’s condition, the Mother text the Father again stating:

Do you guys have edibles at your house They’re telling me they think this is THC related they think he got into edibles. His hydration is fine his liver is fine he hasn’t come back positive for aspirin or Tylenol poisoning and apparently this is something that would happen if he ate edibles

[8] The Father responded: “No I’m wondering if something was on the fruit he ate now.”

[9] The Mother confirmed at 2:04 p.m. by text message to the Father that the urine tests revealed that the child had ingested THC.

[10] During Xavier’s visit to the emergency department, a diagnosis was verified of “THC ingestion.” The Mother deposes that the attending physician told her that “it was a very severe edible overdose.” The Mother filed the Bluewater Health Emergency Record as an exhibit at the motion.

[11] After receiving confirmation of the THC overdose, the Mother made a report to the Sarnia Police Services and the Sarnia Lambton Children’s Aid Society.

[12] From June 17, 2024 to the present, the Mother has insisted that the Father’s parenting time be supervised by the paternal grandmother and she has offered to allow him to visit Xavier in her home. On June 24, 2024, at the first return of the Mother’s motion, an interim interim order was made pending motion disposition that the Father’s parenting time would be supervised.

Analysis

Urgency

[13] The mother requests that her motion be addressed in advance of a Case Conference pursuant to Family Law Rule 14(4.2), on an urgent basis.

[14] I find that the facts concerning the child’s well-being are sufficiently compelling to make a finding that the motion shall be addressed on an urgent basis. For the reasons which follow, I find that this motion can be addressed in advance of a case conference as the existing order results in an untenable situation, jeopardizing the child’s physical well-being. Any delay in addressing the issue is likely to continue or exacerbate actual or potential physical and/or emotional harm for the child Xavier. As such, a temporary order shall be made at this stage. Any order at this time is for the purpose of providing a reasonably acceptable solution on an expeditious basis for an issue that will be fully canvassed at subsequent conferences or resolved at a trial of the Motion to Change (Coe v. Tope, 2014 ONSC 4002; Costello and McLean, 2014 ONSC 7332; Munroe v. Graham, 2021 ONCJ 253; Shokoufimogiman v. Bozorgi, 2022 ONSC 5057; Dayboll v. Binag, 2022 ONSC 6510).

Material Change and Best Interest

[15] A request to vary a final order, whether on an interim or final basis, falls under the scope of section 29 of the Children’s Law Reform Act. This section provides:

29 (1) A court shall not make an order under this Part that varies a parenting order or contact order unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child who is the subject of the order.

[16] Justice Pazaratz in F.K. v. A.K., 2020 ONSC 3726 undertook a review of the law concerning variation of orders. The court sets out the following principles:

1. The moving party has the onus of establishing the two-part test to vary an existing order set out in Gordon v. Goertz. a) The first step: There must be a material change in circumstances since the last order was made. a. There must be a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet those needs. b. The change must materially affect the child. c. It must be a change which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order. The change must be substantial, continuing and "if known at the time, would likely have resulted in a different order." L.M.L.P. v. L.S., 2011 SCC 64. d. The finding of a material change in circumstances is a prerequisite to an examination of the merits of an application to vary an existing custody or access order. e. If there is no material change in circumstances, the inquiry ends. The court would be without jurisdiction to vary the order. Litman v. Sherman, 2008 ONCA 485. f. If there is a material change, the court must move to the second stage and consider the best interests of the child and whether to vary the original order. b) The second step: a. If a material change in circumstances has been established the court then embarks on a fresh inquiry into the best interests of the child. b. In this fresh inquiry, both parties bear the evidentiary burden of demonstrating where the best interests of the child lie. There is no legal presumption in favour of the custodial parent, or in favour of maintaining the existing timesharing arrangements. Bubis v. Jones; Persaud v. Garcia-Persaud, 2009 ONCA 782; Deslauriers v. Russell, 2016 ONSC 5285; Roloson v. Clyde, 2017 ONSC 3642. c. The court must ascertain the child's best interests from the perspective of the child rather than that of the parents. Parental preferences and rights do not play a role in the analysis, except to the extent that they are necessary to ensure the best interests of the child. Gordon v. Goertz; Young v. Young. d. The child should have maximum contact with both parents if it is consistent with the child's best interests. Gordon v. Goertz; Rigillio v. Rigillio, 2019 ONCA 548. e. Any assessment of the best interests of a child must take into account all of the relevant circumstances pertaining to the child's needs and the ability of each parent to meet those needs. Gordon v. Goertz.

[17] A final order may be varied on an interim basis, in limited circumstances. In Epshtein v. Verzberger-Epshtein, 2021 ONSC 7694, the court set out that the proper test for an interim variation of a final parenting order requires:

a. A strong prima facie proof that there is a material change in circumstances regarding a parenting issue; b. The parenting issue must be an important one; c. The circumstances arising since the final order must be urgent or pressing; and d. The moving party must then prove that the remedy sought is in the child’s best interests.

[18] I conclude that while the child was in the Applicant father’s care, Xavier consumed THC in an amount which was dangerous to his health and rendered him unconscious. I make this conclusion as the child was in the father’s care from June 15, 2024 at 7:00pm. and returned to the mother on June 17, 2024. When the child was returned to the Mother’s care, the child was already in a health crisis and she immediately took him to the hospital for emergency medical attention. There was no period over that weekend that any one was responsible for the child’s care other than the Father. Despite the father’s assertions that he properly supervised the child during his care period, and that the child had no access to any THC, the child did ingest TCH at a level dangerous to his health.

[19] If this were a matter confined to an event of Xavier ingesting a dangerous substance and getting immediate medical treatment facilitated by his caregiver, I would not be inclined to vary the final order. Accidents do happen when young children are active. It is not unusual for children to experiment. As included in the evidence, the Mother acknowledges that in May 2024, Xavier ingested “two or three melatonin pills” while in her care and that upon her learning of this incident, she immediately sought emergency medical care for the child. The Mother acknowledged the potential harm to Xavier, sought medical attention to him and was transparent about that incident to the Father and in her Affidavit. It is the action that the Mother undertook after learning that Xavier had ingested Melatonin which is distinguishable from the circumstances of the current motion.

[20] In latest situation involving the THC overdose, the events which transpired after the child ingested it concern me. The Father’s actions after the child ingested the drug undermine confidence in his ability to make good parenting decisions.

[21] First, when the Father’s parenting time ended, the child was either semi-conscious or unconscious. The Father either ignored or failed to recognize that Xavier was in medical distress. Instead, suggesting to the mother that Xavier was tired. Throughout his Affidavit the Father describes Xavier as being drowsy all weekend which the father attributes to a growth spurt. In contrast, at the time of the care exchange, the Mother immediately recognized that Xavier was suffering a health crisis and took steps to get him emergency medical attention.

[22] Second, when Xavier was receiving urgent medical attention for his overdose, the Mother reached out to the Father for input about substances to which the child had been exposed. Rather than choose transparency, the father denied any knowledge of potential risks of exposure to illicit substances by Xavier in his care. The Father failed to communicate honestly with the mother during the course of the medical investigation for Xavier. He did not disclose that he had THC edibles in his home or available to Xavier. The father did not disclose to the Mother that he had taken Xavier to a barbeque at a cannabis store during his parenting time on the day before or that they had brought home “free edible items.” His complete failure to communicate honestly with the mother when the child’s life was imperiled is disturbing.

[23] Third, the Father fails to candidly disclose in his motion pleadings where he took Xavier during his parenting time. The Father’s lack of transparency continues even to the date of the motion argument. In the Affidavits he filed – both his and his mother’s – he notes that on June 16, 2024, his mother, stepfather, his partner and two children attended “a barbeque at a business on St. Clair Parkway that afternoon.” Until questioned by this court about the identity of the store, he did not reveal that this business was actually “Pot of Gold,” a premise colloquially known as a “smoke shop” which sells primarily cannabis and cannabis related products. His lack of transparency about the name of the business where he took the child for a picnic is a relevant fact for consideration in context of Xavier’s medical emergency. It is entirely relevant that Xavier attended at this cannabis business and suffered a THC overdose. The Father’s attempt to hide from this court the name of the business in his affidavits is alarming.

[24] Fourth, the Father continues to deny responsibility for Xavier’s medical emergency. In his affidavit, he deposes that “Clearly Xavier ingested THC in some form at sometime, however I cannot agree that it was simply from finding and ingesting gummies in my home. There is no evidence as the package was sealed and out of reach.” He further deposes that “I submit that it’s possible Xavier was exposed to these edibles or other THC products elsewhere and in particular it is possible that Xavier was exposed through casual contact.” These statements highlight how the Father fails to exhibit insight about how his actions placed Xavier at very serious risk of harm. He calls the incident an “unfortunate accident” and advises he took steps to remedy the situation including working with the police and the Sarnia-Lambton CAS to ensure that his home is safe for Xavier and his younger child. I note that the father’s willingness to work with these agencies is not persuasive argument in his favour as if he wanted to maintain care of both his children, he had to cooperate with those agencies.

[25] All of these facts lead me to conclude that the Applicant father made very poor parenting decisions. He has placed his own interests over the well-being and health of his child. Xavier’s best interests are not merely “paramount” – they are the only consideration for this interim motion (Gordon v. Goertz, [1996] 2 S.C.R. 27 at para. 28; Mattina v. Mattina, 2018 ONCA 641). A starting point to any assessment of a child’s best interests when making a parenting order is to ensure that the child will be physically and emotionally safe (I.A. v. M.Z., 2016 ONCJ 615). I am significantly concerned about Xavier’s physical and emotional health and his general well-being in the care of his father for the reasons set out above. I am satisfied that Xavier’s best interests require an immediate change to the current parenting regime to mitigate the risk to the child when in the Father’s care.

[26] In a motion to vary another order, the court has the option to restrict or change the current order to address the specific issue which has arisen, while maintaining the integrity of the original order (Elaziz v. Wahba, 2017 ONCA 58). A court order should only be varied to the extent that is required by the change (Droit de la famille - 09 1889, [2009] 1 S.C.R. 1). Reasonably, the Mother is not seeking to terminate the father’s parenting time nor truncate his time, or confine him to a supervised access facility – she simply seeks to have his parenting time supervised by his mother. The Mother confirms in her reply Affidavit that the Father and Xavier “have a loving bond and that it is in Xavier’s best interests to continue to have a close relationship with his father.” She further confirms that she advances this motion to ensure that Xavier is safe in his father’s care. I find her position to be reasonable and compelling.

[27] The paternal grandmother, Tracy Portiss, appears to be a responsible person to assume the supervisor role. During the course of Xavier’s medical crisis due to THC ingestion, the paternal grandmother was a help to the Mother: she assisted in transporting Xavier to the hospital; she maintained communication with the Mother throughout the medical investigation; the Father and Xavier lived with Ms. Portiss until about one month before this incident; and she was forthright in her disclosure that she was aware that the paternal grandfather had taken the father to a cannabis store to purchase edibles.

[28] Therefore, on an interim basis, I find that the Applicant father’s parenting time should be supervised by his mother Tracy Portiss. This temporary decision may be revisited should the father undertake efforts in educational programming or counselling with a purpose of gaining insight into his own behaviour, addressing the needs of Xavier and parenting in a child focused manner.

Order

[29] An interim order is made on the following terms:

1. The Applicant Daniel Jakob Clarke’s parenting time with the child Xavier James Clarke-Lavoie born December 14, 2020 which occurs as provided in the Order of Justice Vickerd dated February 5, 2024 shall be supervised by the paternal grandmother Tracy Portiss or other adult agreed upon by the parties in writing. Any supervisor of the parenting time order shall be provided with a copy of this Endorsement to ensure they understand the reason for supervision.
2. Each parent shall ensure that all medications (prescription and over the counter), illicit and legal drugs shall be stored in a locked box which cannot be accessed by Xavier James Clarke-Lavoie born December 14, 2020.
3. The Motion to Change remains set to be addressed on August 27, 2024 at 9:30a.m. for litigation planning.
4. The Applicant Daniel Jakob Clarke is granted an extension to file his Response to Motion to Change by 4:00p.m. on August 16, 2024.

Released: July 8, 2024 Signed: Justice M. Vickerd