Ontario Court of Justice

Date: 2024 11 12 Court File No.: Sudbury FO-23-00000208-0000

Between:

DESTINY VAN SCOY Applicant

— AND —

RAYMOND LEBLANC Respondent

Before: Justice G. Jenner

Heard on: October 17, 2024 Released on: November 12, 2024

Counsel: Julie Lamothe, for the applicant Lance Talbot, for the respondent

JENNER J.:

Reasons Re: Motion to Vary Interim Parenting Time

Part One: Introduction

[1] This decision relates to a motion brought by the respondent, Raymond Leblanc, for temporary relief relating to parenting time and primary residence of a child. The child is six years old. The respondent is the child’s biological father. The child’s biological mother passed away in 2021. The applicant, Destiny Van Scoy, was in a long-term relationship with the respondent, and lived with him and the child for roughly four years. The parties separated in September 2023.

[2] The applicant describes herself as the child’s step-mother. The respondent describes the applicant as his “ex-girlfriend” who should play no significant role in the child’s life moving forward. It is this disagreement as to the nature of the applicant’s relationship with the child that is at the core of this litigation.

[3] Pursuant to a temporary without prejudice consent order, the child primarily resides with the applicant. The respondent has parenting time on alternating weekends and certain weeknight evenings. On October 17, 2024, this court heard the respondent’s motion. He seeks to have the child primarily reside with him, with the applicant having parenting time on alternating weekends for a limited period, after which her parenting time would be eliminated. As an alternative, he asks for shared parenting time on a week-about basis pending trial.

[4] In support of his motion, the respondent relied on his own affidavit dated September 12, 2024. The applicant relied on her own affidavits dated September 6 and 17, 2024.

Part Two: Background and Procedural History

2.1 Family background

[5] The parties began seeing each other in 2016. Both parties describe the relationship as initially “on again, off again.” During an “off again” period in 2017, the child was conceived between the respondent and the child’s biological mother. The parties resumed their relationship during the biological mother’s pregnancy. The child was born on [redacted], 2018. The biological mother suffered from drug addiction and did not play a large caregiving role. The child was in the maternal grandmother’s care during the early months of her life before living with the respondent.

[6] The parties began cohabiting in 2019 when the child was almost two years old. They remained together until September 2023, at which point the child was five-and-a-half. On the respondent’s evidence, the separation was followed by some unsuccessful attempts at reconciliation. In the months following separation, the parties attempted a shared parenting arrangement, with mixed success.

2.2 Procedural history

[7] The application was commenced in February 2024. The applicant brought an urgent without notice motion on March 14, 2024, seeking an order that the respondent shall have supervised parenting time only. The court agreed the matter ought to be addressed on an urgent basis but declined to grant relief on a without notice basis. The court ordered, on without prejudice basis, that the child would remain in the care of the applicant until the motion was heard. Pursuant to r. 14(4) of the Family Law Rules (the Rules), the matter returned to court on March 21, 2024.

[8] On March 21, 2024, the parties consented to a temporary, without prejudice order providing the applicant with decision-making authority, and granting the respondent parenting time on alternating weekends and certain weeknight evenings.

Part Three: Issues and Applicable Legal Principles

3.1 The ultimate issue

[9] Section 28 of the Children’s Law Reform Act (CLRA) empowers the court to make orders with respect to decision-making responsibility, parenting time and contact, and to impose any necessary and proper corollary conditions. Rule 14 of the Rules permits the court to make temporary orders for any such claims.

[10] The ultimate issue in this motion is: what temporary order under s. 28, if any, ought to be made?

[11] That question turns entirely and exclusively on the best interests of the child: CLRA s. 24(1). The court shall consider all relevant factors, including those expressly set out in ss. 24(3) and (4), and shall give primary consideration to the children’s physical, emotional and psychological safety, security, and well-being: s. 24(2). The past conduct of a party shall only be considered to the extent it is relevant to the exercise of decision-making responsibility, parenting time, or contact: s. 24(5). In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each parent as is consistent with that child’s best interests: s. 24(6).

[12] Section 24 of the CLRA applies equally to temporary orders: s. 24(7). However, on an interim motion the court is constrained in its ability to assess conflicting evidence in affidavit form. The facts are often in a state of flux. The court must exercise pragmatism and determine a “reasonably acceptable solution on an expeditious basis for a problem that will be more fully canvassed at subsequent stages”: Coe v. Tope, 2014 ONSC 4002, at para. 25; see also Costello v. McLean, 2014 ONSC 7332, at para. 11; Munroe v. Graham, 2021 ONCJ 253, at para. 30; Shokoufimogiman v. Bozorgi, 2022 ONSC 5057, at para. 32.

[13] Before considering s. 24, the court must address the question of the applicant’s status in relation to the child, and what impact, if any, that has on the best interests analysis.

3.2 The applicant’s status in relation to the child

[14] The applicant does not meet the definition of a parent under the CLRA: see ss. 4-12. Section 62(3) of the CLRA, however, grants party status to a person who has demonstrated a settled intention to treat the child as a child of their family, a person who had the actual care and upbringing of the child, and any other person whose presence as a party is necessary to determine the matters in issue.

[15] The respondent does not mount a direct assault on the applicant’s party status. But he does argue that, as the child’s father, he ought to have the autonomy to determine what, if any, relationship the child will continue to have with the applicant. Parental autonomy as a concept often arises in grandparent contact cases where a child’s parents oppose grandparent contact. In such cases, considerable weight is given to parents’ wishes in determining the extent of contact. Courts examine the importance of the relationship between the child and the contact-seeker, whether that relationship will be imperiled, and whether the parents are acting arbitrarily and unreasonably: Chapman v. Chapman; Giansante v. DiChiara.

[16] In Agmon v. James, 2018 ONCJ 4, this court rejected the application of these authorities to “settled intention” or “actual care” figures, relying on s. 62 of the Act, and recognizing the additional responsibilities such parents have under the Family Law Act: see paras. 55-61. In Arbuzova v. Scriver et al, 2024 ONSC 832, at paras. 13-25, the court rejected the notion that s. 62 confers a special status on certain non-parents, and treated a party’s settled intention as but one among several factors to consider in crafting the appropriate order.

[17] Agmon v. James was followed in Hicks v. Geist, 2022 ONSC 5671, at paras. 15-17. The latter also emphasized the wide spectrum of individuals generically termed step-parents. Some are short-term, conjugal partners who are uninvolved with parenting, or worse, are a toxic presence in the child’s life. These persons are not presumed entitled to continued contact with a child post-separation. Conversely, other step-parents play significant and sometimes primary roles in parenting for extended periods or critical periods in the child’s development.

[18] A party’s placement along this continuum will emerge as the court considers the best interest factors in s. 24 of the Act, which require the court to grapple with the qualitative nature of the party’s relationship to the child rather than its label. In this case, I find that the factors demonstrate a meaningful, beneficial relationship, involving many of the imperatives of parenting, and sustained throughout the majority of this six-year-old child’s life. The factors demonstrate the unsuitability of a ‘parental autonomy’ approach to this matter.

3.3 Applying the best interest factors

The child’s needs (s. 24(3)(a))

[19] The child is six years old and attending school. Any shared parenting schedule should recognize the need for consistency, stability, and should avoid lengthy periods of no contact with each caregiver. The child is vulnerable to adult conflict, and care should be taken to avoid circumstances which will expose the child to conflict, alienating behaviours, and family violence.

Nature and strength of relationships and history of care (ss. 24(3)(b) and (d))

[20] These factors are at the center of the parties’ disagreement. The applicant’s evidence is that during their period of cohabitation from 2019 to 2023, the three were a family. She claims that she has always been responsible for the child, getting her ready for school, making her lunch, assisting with homework, organizing birthday parties, bathing her, shopping for necessities, collecting her from the bus, meeting with teachers, and cooking meals. She indicates that the child continues to refer to her as “mom”, including to her friends and teachers. This, the applicant suggests, was supported by the respondent while they were together, and only became contentious post-separation.

[21] The respondent argues the applicant has exaggerated both her role in the child’s life and the nature of their relationship. He says that they were “friends with benefits” while they lived together for four years. The respondent’s evidence is that when speaking with him, the child refers to the applicant by her first name.

[22] That said, the respondent provided additional evidence that corroborates the applicant’s account and demonstrates that during their approximately four years of cohabitation, the applicant was at least as involved in parenting the child as he was, if not more. His evidence is that both would help the child get ready for school in the morning. Both would help the child onto the school bus, but as the respondent was still at work in the afternoon, the applicant would collect the child from the bus. When activities were sent home with the child from school, they would assist the child together. Both would bathe the child, but the applicant would do so more often. The applicant attended meetings with the child’s teachers, because the child attended school in French, which the respondent does not speak. Both parties would cook meals and prepare school lunches. Prior to cohabitation, in 2017, the respondent was charged with a drinking and driving offence and was unable to drive for several years. During that time, the applicant would drive the respondent and the child from place to place.

[23] Given that the respondent’s evidence largely corroborates that of the applicant, for the purposes of this motion for temporary relief, I accept the applicant’s evidence with respect to her role and relationship with the child. Though less critical to my overall analysis, I also accept the applicant’s evidence that the child has and continues to regularly refer to her as “mom”. Her account is supported by the text messages in evidence wherein the respondent makes comments such as “…you don’t deserve to be called mom after leaving us the way you did” or “[the child cries and says she needs a mom…only thing that I can promise is we find a new one.”

The child’s views and preferences (s. 24(3)(e))

[24] The parties presented conflicting and untested evidence with respect to the child’s views. No voir dire was requested or held with respect to hearsay evidence. The court has referred the case to the Office of the Children’s Lawyer to obtain independent information about the child’s views and preferences, which may assist the parties and the court in the final determination of these issues.

The child’s cultural, linguistic, and spiritual upbringing and heritage (s. 24(3)(f))

[25] There is little evidence directed towards this factor and it does not appear to bear heavily on the issues between the parties in this case. There is evidence, however, that the child is educated in the French language, which the applicant speaks, and the respondent does not. The child’s schooling is connected to questions of decision-making responsibility and parenting time, and may change as a result of the final outcome of this litigation. The respondent recognizes that a temporary change in schooling at this juncture risks multiple major disruptions to this young child’s routine and would be contrary to her best interests. He is not seeking to have her change schools at this time. But he does seek to reduce and ultimately eliminate the applicant’s contact with the child. I must be mindful that depriving her of regular time with the applicant prejudice’s the child’s ability to have a responsible adult in her family corresponding effectively with the child’s school, which would run contrary to her best interest.

Plans for the child’s care and the ability and willingness of each person to meet the child’s needs (ss. 24(3)(g) and (h))

[26] Each party suggests that the other abuses substances. I find that both parties have done so in the past. Most recently, however, it is the respondent’s behaviour which has been of greater concern. I accept the applicant’s evidence that the respondent was consuming crack cocaine as recently as January 2024, and I accept as reliable the applicant’s evidence that as recently as March 2024, the respondent drove a motor vehicle while impaired, with the child as passenger. The applicant is not requesting to reduce the respondent’s parenting time, nor is she seeking to have it become supervised, but these concerns should be addressed by conditions the court may place on parenting time.

[27] I give no weight to the respondent’s evidence that the applicant has been terminated from two daycare worker positions. There is insufficient detail provided for me to safely draw any relevant inferences.

[28] The respondent raises concerns over the child’s attendance and punctuality at school while in the applicant’s primary care. I accept the applicant’s explanation, supported by the correspondence between the parties, that absences were legitimately illness-based. I further accept that while the child’s frequent tardiness is less than ideal, it is explained by distance the applicant must travel, and construction- and traffic-related delays. The attendance record provided by the respondent is not accompanied by any evidence that the child is struggling in school, and I therefore place little weight on it.

[29] Beyond the issues identified above, I am satisfied that each party can meet the child’s day-to-day needs. This case is less about the parties’ ability to care; rather it centers on how the child benefits from the fundamental relationships she has with her caregivers.

Each party’s willingness to support the development and maintenance of the child’s relationship with the other, to communicate and to co-operate (s. 24(3)(c)(i))

[30] The respondent asserts the child would not benefit from a future relationship with the applicant, given that the parties have no prospect of reconciliation and no longer communicate with one another. He believes the applicant ought to “gently step back” and that “the relationship should change now that [his] relationship with the applicant is over.” I find that this position prioritizes the respondent’s wishes over the child’s interests. His misguided view that the applicant’s relationship with the child is contingent on the applicant’s being in a relationship with him is demonstrated by his communications. For example, he has texted the applicant the following: “if you want to see [the child], you’ll have to see me”; “you could be a mom. In her home”; “[the child] was only a part of your life because of me.” There are many other examples.

[31] The feeling is not reciprocated by the applicant, who is concerned about some of the respondent’s behaviours, but has not demonstrated an intention to frustrate or sever the respondent’s relationship with the child. I reject the respondent’s evidence that since he began a new relationship with his current partner, the applicant has restricted his contact with the child, and has sought to undermine his parenting. I accept that the steps the applicant has taken to restrict the respondent’s parenting have been as a result of honestly-held safety concerns for the child.

[32] I am concerned that the respondent’s present attitudes will manifest themselves during this litigation in the respondent’s discouraging a healthy relationship between the child and the applicant. The conditions of any temporary order should aim to mitigate this concern.

Family violence (s. 24(3)(j))

[33] Winter 2024 was a period of considerable conflict between the parties.

[34] The applicant’s evidence is that on February 2, 2024, she and the respondent were arguing in his bedroom, while the child was downstairs watching television. The respondent was screaming centimetres from the applicant’s face when she put her hands up in front of her chest. He then strangled her and slammed her into the bedroom door. She fled. She attaches a photograph to her evidence depicting the damaged door.

[35] On February 10, 2024, following a text message conversation between the parties, the respondent presented in emotional distress, and made some very concerning comments indicative of potential self-harm. The applicant arranged for emergency services to attend his home. He refused them entry.

[36] In the weeks that followed, the respondent engaged in harassing conduct towards the applicant. At one point, while on the phone with the child, he said, “your mom is a cop caller.” He texted the applicant threatening that if she tried to collect the child from school, she’d be charged with kidnapping. At other times, he threatened to slash the applicant’s tires, and told her that if he found out she was at another man’s house he would slit her throat. The applicant further alleges that the respondent has uploaded an intimate image of her on the parenting app they had used to communicate. The Children’s Aid Society has been involved, and a safety plan was developed.

[37] The respondent’s account is that on February 2, 2024, the applicant punched him in the chest and pushed him. Further, following their separation, he says she continued to visit his residence. His theory is that the applicant used visits with the child as an excuse to maintain a presence and control in the respondent’s life. He denies exposing the child to substantial amounts of adult conflict. He agrees that the child has been present during some arguments. He denies uttering a threat that he would slit the applicant’s throat or slash her tires. He denies ever threatening to have the applicant charged with kidnapping.

[38] At trial, the court will be better equipped to assess these competing accounts. At this interim juncture, I prefer and accept the applicant’s evidence. It is more internally consistent, and more in keeping with the correspondence and images tendered with the affidavit evidence.

Criminal proceedings (s. 24(3)(k))

[39] The respondent has been criminally charged with several offences in relation to the applicant, including assault, criminal harassment, forcible confinement, uttering threats, and publication of an intimate image without consent. His release precludes him from communicating with the applicant. There are no exceptions. I am not advised of any steps that have been taken to vary that conditions to facilitate communication regarding the child, including with respect to exchanges.

Conclusion re: child’s best interests

[40] The non-exhaustive list of best-interest factors “is not a checklist to be tabulated with the highest score winning,” but “calls for the court to take a holistic look at the child, her needs, and people around her”: Phillips v. Phillips, 2021 ONSC 2480, at para. 47.

[41] In this case, the applicant has played a central parental role in through most of the child’s life. She continues to meet the child’s needs and is a critical liaison for the child’s schooling. She is the most stable force in the child’s life and is the most level-headed about the challenges ahead if co-parenting is to succeed. Though concerned about the respondent’s abuse of substances, and his violence and harassment towards her, she is realistic about the need to foster a healthy and safe relationship between the child and the respondent. These factors favour the applicant continuing to play a role in decision-making and reinforce the need for the applicant to continue to be a strong parental presence in the child’s life.

[42] In contrast, the respondent subscribes to an untenable fiction that he and the child are a package deal, and that the child’s mother figure is simply whomever he happens to be in a conjugal relationship with. This is not a child-centric attitude. I am concerned about the respondent’s unwillingness to support the child’s critical relationship with the applicant. This, in combination with his violent and harassing behaviours towards the applicant, militate against increasing his parenting time at this juncture.

[43] The applicant has not requested that the respondent’s parenting time be reduced or supervised. I am cognizant that the conflict between the parties appears attenuated since the current schedule was imposed. Considering all the factors, I conclude that the continuation of the present parenting schedule is in the child’s best interests.

Part Four: Conclusion and Order

[44] The temporary without prejudice order of Justice Lefebvre dated March 21, 2024 is replaced with a temporary order as follows:

(1) The applicant shall have decision-making responsibilities for the child.

(2) The child shall primarily reside with the applicant.

(3) The respondent shall have parenting time with the child as follows: (a) Every second weekend from after school on Fridays until Monday mornings at 9:00 am, to be extended accordingly in the case of a long weekend or PD Day. (b) Every Monday and Wednesday from after school until 7:00 pm. (c) Other such times as so agreed upon by the parties in writing. (d) Reasonable provision shall be made for extended and shared parenting time for holidays, to be detailed in writing.

(4) The parties shall meet at the Tim Hortons, located at 679 Lorne St, Sudbury, to transition between parenting time, unless they otherwise agree in writing to a different arrangement in.

(5) Neither party shall consume alcohol or other intoxicating substances while in a caregiving role.

(6) The parties shall not expose the child to adult conflict or discussions.

(7) The child shall remain enrolled at the same school absent the written agreement of the parties.

(8) The parties shall facilitate daily telephone / virtual calls between the non-caregiving party and the child.

(9) The parties shall not communicate other than in the form of writing or through counsel.

(10) The conditions in this order respecting communication shall be complied with only insofar as they are not precluded by a criminal court order. If the question of method of communication must be revisited, the parties may address the matter by way of 14B motion addressed to my attention.

[45] If the parties cannot agree on the issue of costs, they shall be entitled to provide costs submissions not exceeding two pages, excluding exhibits. The applicant shall serve and file by November 29, 2024, and the respondent shall serve and file by December 13, 2024.

[46] The next court date in this matter, November 26, 2024, was originally set for oral delivery of reasons in this motion. The parties may contact the trial coordinator with respect to next steps, including whether that date should be vacated, or whether it might be converted to a settlement conference.

Released: November 12, 2024 Signed: Justice G. Jenner