ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 10,144/03-01
DATE: 20121009

BETWEEN:

Linda Susan Delwo Applicant
Terri Lynn Delwo Applicant/Respondent

– and –

Marc Roland Giroux Respondent

Jerome Gardner, for the Applicant Linda Susan Delwo.
Nicola Munro, for the Applicant/Respondent Terri Lynn Delwo.

Marc Roland Giroux, self-represented.

HEARD: September 19, 20, 21, 24, 25, 2012.

gauthier j.

The Motion:

[ 1 ] Before me is a motion to change the Final Order of Tranmer J. made on February 21, 2008.

The Parties:

[ 2 ] The Applicant Linda Delwo (Linda) is the maternal grandmother of the child Jacob, born April 10, 2003. Terri Lynn Delwo (Terri Lynn) is Jacob’s mother and the adopted child of Linda and Linda’s husband, Gerry Delwo (Gerry), who is not a party to this proceeding. Terri Lynn is the first Respondent in the proceeding. Marc Giroux (Marc) is Jacob’s father, and is the second Respondent.

Background:

[ 3 ] Terri Lynn became pregnant with Jacob a short time after she and Marc met. Marc was very supportive of Terri Lynn during the pregnancy.

[ 4 ] Marc and Terri Lynn continued their romantic relationship for several months after Jacob’s birth, but their relationship as a couple eventually came to an end. They continued to work together around matters concerning Jacob throughout the years. Marc has been a support for Terri Lynn at times when she has experienced mental health issues. Terri Lynn has suffered from depression and alcohol abuse.

[ 5 ] Since August of 2005, Terri Lynn has resided with Linda and Gerry off and on. She occupied six different residences between 2005 and 2011. She has resided with her parents on a continuous basis since July, 2011.

[ 6 ] Except for a period of some two weeks, Jacob has resided in the home of Linda and Gerry since he was born.

[ 7 ] When the February 21, 2008 Order was made, Terri Lynn was living in the Delwo home. At the time of the investigation and report by the Office of the Children’s Lawyer, (2009-2010) Terri Lynn was in and out of the Delwo home.

[ 8 ] As indicated, over the years, Terri Lynn has suffered from mental health issues, and from alcohol abuse. She has frequently been hospitalized to deal with these issues, but appears to have enjoyed more or less stable mental health for the past two years, except for a three week period in April of this year, when she admitted herself into detox. Her boyfriend had been killed in a motor vehicle accident, and Terri Lynn had resumed her overuse of alcohol. After the three week period, she was discharged and has remained sober since.

[ 9 ] During those periods of time when Terri Lynn was not living in the Delwo home, Linda assumed the primary care of Jacob. Those periods are as follows:

(a) From August, 2005, until June, 2006;

(b) From September, 2008 until October, 2009;

(c) From July, 2010 until July, 2011.

[ 10 ] Currently, the care of Jacob is shared between Terri Lynn and Linda. Terri Lynn and Jacob occupy a separate portion of the Delwo home, with their own kitchen and bathroom, but eat their meals with Linda and Gerry.

[ 11 ] Marc is a licensed electrician. In the year 2000 he suffered a serious back injury. He had an intolerance to pain medication and was prescribed marijuana to address the pain. He was a member of the Compassion Center and had a card that permitted him to obtain marijuana for medicinal purposes. He underwent back surgery two or three years ago, which, over time, greatly reduced his pain. Nevertheless, in September, 2011, he again obtained a license to possess marijuana for medicinal purposes.

[ 12 ] On one occasion in 2003, Marc smoked marijuana while operating a vehicle in which Jacob was a passenger. The Children’s Aid Society became involved and there was a period of time when Marc was not allowed access to Jacob.

[ 13 ] In September, 2003 he entered into a voluntary care agreement with the Children’s Aid Society, whereby he undertook to not use marijuana while operating a motor vehicle. It was Marc’s evidence that he gave up the marijuana at that time in order to ensure access to Jacob.

[ 14 ] Marc resumed his marijuana use in January, 2005.

[ 15 ] Marc married Jacqueline Wuthrich in August, 2005. There are two children born of that union: Oliver, born in December, 2006, and Selina, born in October, 2011.

[ 16 ] Marc and Jacqueline’s matrimonial home is located in Wanup (approximately a 15 minute drive from Sudbury) and is a few hundred metres from the residence of Marc’s parents, Roger and Rosanne Giroux.

[ 17 ] Over the years, Marc had regular access to Jacob which he exercised at his residence. This included alternate weekends and Wednesdays after school. The Wednesday access was frequently exercised at the home of Jacqueline’s parents in Sudbury, as this was more convenient than taking Jacob to Wanup and back.

[ 18 ] Jacqueline did not have a good relationship with the Giroux family. Therefore, when Jacob was in Marc and Jacqueline’s home for visits, his contact with Marc’s extended family was somewhat limited.

[ 19 ] Jacob has developed a sibling relationship with Oliver and Selina, and he is particularly close to Oliver. There is, by all accounts, much love and a strong bond between the boys.

[ 20 ] In February, 2008, the Order which is the subject of these proceedings was made, based on the agreement reached by the parties. Terri Lynn and Linda were granted custody of Jacob, and Marc was granted access. I reproduce the terms of that Order at paras 37-38 of these reasons.

[ 21 ] From 2005 until very recently, Marc continued his use of marijuana, together with Jacqueline. Jacqueline’s habit cost Marc between $400 and $500 per month, so he began to grow marijuana plants, in order to save money. He grew some plants in the basement of his residence, and at the rear of his property, as well as his camp. He did so prior to applying for and obtaining authorization from Health Canada to grow marijuana plants for medicinal purposes. He grew plants in unauthorized locations.

[ 22 ] In a further effort to save money in October 2006, Marc used his knowledge as an electrician to bypass the hydro meter. He also removed the hot water tank from the hydro load. This reduced his monthly hydro bill considerably.

[ 23 ] The rewiring Marc had done eventually caused a fire in the home. At the time of the fire, Jacqueline and Oliver were in the home, although they were able to get out and were unhurt.

[ 24 ] In November, 2010, Marc was convicted of the criminal code offence of fraudulently using electricity, thereby committing theft. He repaid Hydro One the sum of $2,000 and was sentenced to 12 months probation.

[ 25 ] Jacqueline and Marc’s marriage became strained. They argued and there was discord in the home.

[ 26 ] On April 22, 2012, in the course of a heated argument, Marc head-butted Jacqueline three times in succession. This occurred in the presence of Jacob, at the Giroux residence. Police were called, and Marc was arrested and removed from the home. He and Jacqueline have separated as of that date and there are ongoing family law proceedings in the Ontario Court of Justice, dealing with custody, access, and child support.

[ 27 ] Marc has been residing in the home of his parents since April 22, 2012, while Jacqueline and the two children have remained in the matrimonial home.

[ 28 ] Shortly after his separation from Jacqueline, Marc terminated his six year employment with Walden Electric, where he had been earning approximately $70,000 per year. He secured other employment until June 12, 2012, at which time he went on parental leave until mid-October. He did so as he wanted to have time off during the summer with Jacob, Oliver, and Selina. He was exercising access to Oliver and Selina every second weekend, and had more extensive access to Jacob in July and August.

[ 29 ] On June 15, 2012, Marc pleaded to and was convicted of two counts of assault in relation to Jacqueline. The first in time related to an incident in December, 2011 where Marc kicked Jacqueline in the buttocks. The second involved the head-butting incident referred to above.

[ 30 ] Marc was sentenced to two years’ probation with conditions including participation in the Partner Assault Response program (PAR).

[ 31 ] Marc’s access to Jacob was interrupted for approximately one month following the May, 2012 long weekend. Terri Lynn and Linda would not allow Marc to have access to Jacob. They did so out of concern arising out of certain events that occurred that weekend.

[ 32 ] There is no dispute that the following events occurred during the camping trip that weekend:

[ 33 ] Marc and Jacob, along with a woman Marc was dating, her teenage son and his two friends, went on a camping trip to Killarney. Over the weekend, Marc smoked marijuana while driving a boat in which Jacob was a passenger. As well, Jacob witnessed the adults and the teenagers rolling and smoking marijuana, as well as drinking beer.

[ 34 ] Marc brought a motion for a finding of contempt against Linda and Terri Lynn. On July 26, 2012 the motion was adjourned and a temporary Order was made, which I describe in more detail later in these reasons.

[ 35 ] Access was restored in July, 2012.

[ 36 ] Marc’s current plan involves resuming occupation of the matrimonial home, and starting up his own business. He is pursuing custody of Oliver and Selina. He has been attending the PAR program, has made arrangements to receive counselling and has enrolled himself in a parenting course.

[ 37 ] He has not smoked marijuana for three months and intends to continue to abstain.

[ 38 ] On February 21, 2008, as part of earlier proceedings in which Linda and Terri Lynn were co-Applicants and Marc was the sole Respondent, a Final Order was made, based on the Minutes of Settlement entered into by the parties.

[ 39 ] The Order provided that Linda and Terri Lynn have custody of Jacob, that they would consult Marc regarding decisions to be made about Jacob, and provided the following specific access to Marc:

a) Alternate weekends from Friday at 4:00 p.m. until Sunday at 7:00 p.m. to be extended to a Monday if it is a holiday.

b) Wednesday from 4:30 p.m. until 8:00 p.m.

c) Every Father’s Day with the child to be with his mother on Mother’s Day.

d) One half of the Christmas school break and Christmas Day as the parties agree to reflect the times for family celebrations and each parties work schedule.

e) One half of the March Break and Easter Break to reflect each parties work schedule.

f) One week plus a weekend in each of July and August to be separated by at least two weeks to reflect the parties work schedules.

g) If the child is to be removed from the city of Greater Sudbury all parties shall be provided with an address and telephone number where the child is staying.

h) If the child is to be removed from Canada for a vacation, unless to the United States, the consent of all parties is required. If the child is to be taken to the United States for a vacation each party shall sign the documentation required by the American authorities so the child may enter the country. All parties will consent to the issue of a passport for the child.

i) Other access as agreed to by the parties.

j) Reasonable telephone access when the child is with another party.

k) The father’s access shall include the right to make inquiries and to be given information as to the health, education and welfare of the child from all of the child’s service providers and to attend at all of the child’s school and extracurricular activities.

l) The father shall always have a photocopy of the child’s health card.

m) The father’s weekend access is suspended during the Summer, Christmas and March school breaks.

[ 40 ] The Final Order further provided that Marc would pay child support for Jacob in the amount of $325 per month, based on an annual income of $36,200.

[ 41 ] At the time of the making of the Order, Terri Lynn was living in Linda’s home, as was Jacob.

[ 42 ] On December 3, 2008, Linda brought a Motion to Change the Final Order of February 21, 2008. She sought an Order that she and Gerry become the joint custodial parents of Jacob, and that Terri Lynn have access. Terri Lynn had moved out of the Delwo home in September, 2008. Jacob had remained with Linda.

[ 43 ] On February 20, 2009, Terri Lynn delivered a Response to Motion to Change, seeking an Order that Marc become the custodial parent for Jacob, that Linda have access, that any access to Jacob by Gerry be supervised and restricted, and, that Terri Lynn have access to Jacob, every second weekend, for two hours on a mid-week evening, and other specified and unsupervised access.

[ 44 ] On March 26, 2009, I made an Order requesting the involvement of the Office of the Children’s Lawyer, pursuant to s.112 of the Courts of Justice Act.

[ 45 ] On July 9, 2009, the Office of the Children’s Lawyer assigned clinical investigator Mr. Thomas Smith to the case for investigation and report.

[ 46 ] On October 7, 2010, the Report of the Children’s Lawyer was sent to the Court.

[ 47 ] It was determined that a trial was required to deal with the issues raised on the Motion to Change the Final Order and the trial was set to proceed on August 2 to 5, 2011.

[ 48 ] The matter did not proceed on the dates set and a further Settlement Conference was held on February 16, 2012. At that time, on consent, Marc was added as a joint custodial parent of Jacob, together with Linda and Terri Lynn.

[ 49 ] On March 19, 2012, the parties further consented to a temporary order increasing Marc’s access to Jacob as follows:

a) During the school year, alternate weekends from Friday after school until Monday morning, to be extended if a holiday weekend or professional development day weekend;

b) During the school year, one night during the week, being Wednesday to Thursday, subject to Jacob’s wishes and on condition that Jacob’s homework is completed;

c) Every Father’s day to be with Marc Roland Giroux and Mother’s day to be with Terri Lynn Delwo;

d) One half of the Christmas school break and Christmas day as the parties agree, reflecting the times for family celebrations and each parties work schedule;

e) One half of the school March break and half of Easter weekend with dates and times to be agreed between the parties;

f) Four weeks in the school summer holidays, not consecutive, unless to accommodate a special vacation out of the district of Sudbury, with dates and times to be agreed upon between the parties to accommodate Jacob’s activities and the parties work schedule;

g) Reasonable telephone access and email access when the child is with the other party;

h) Access to information about Jacob’s health, education and welfare;

[ 50 ] On July 17, 2012, Marc brought a Contempt Motion against Linda and Terri Lynn, returnable on July 26, 2012, based on Terri Lynn and Linda’s refusal to allow access to Jacob, following the events of the May, 2012 long weekend.

[ 51 ] On July 26, 2012, the Contempt Motion was adjourned to the trial and a further temporary order was made, by agreement of the parties, adding conditions to Marc’s access to Jacob as follows:

1. Marc’s access was to be supervised by his sister Anne, his mother Rosanne and/or his father Roger.

2. Marc was not to consume alcohol or use marijuana or non-prescription drugs 12 hours before, or during access.

3. Jacob was to wear a properly fitted and secure life jacket when in a boat or near water.

4. Jacob was to wear a properly fitted and secure helmet if on a four wheeler and/or snow machine and/or personal water craft.

[ 52 ] The Minutes of Settlement provided for Marc to have the following specific access:

(a) July 27, 2012, at 4 p.m. until July 29, 2012, at 7 p.m.

(b) August 3, 2012, at noon until August 6, at 7 p.m.

(c) August 10, 2012 at noon until August 13, 2012, at 7 p.m.

(d) August 24, 2012, at noon until August 27, 2012, at 7 p.m.

(e) August 30, 2012, at noon until August 31, at 7 p.m.

[ 53 ] On September 13, 2012, a Trial Management Conference was conducted. The parties agreed that:

(a) There should be continued joint custody of Jacob by Linda, Terri Lynn, and Marc;

(b) The issues for trial were whether there has been a material change in circumstance since the Order of February 21, 2008, which would justify a change in the residential care of the child, and if so, with whom Jacob should reside.

[ 54 ] Marc had not, as of the date of the Trial Management Conference, delivered a Response to Linda’s December, 2008 Motion to Change Final Order. He did so on September 14, 2012.

Position of the Parties:

[ 55 ] Linda has abandoned her Motion for a joint custodial order of Jacob in favour of herself and Gerry. She and Terri Lynn are content that the existing situation continue, that is, that Jacob continue to reside in Linda’s home, with Linda and Terri Lynn sharing in his care, with the provision that care of Jacob would devolve to Linda in the event that Terri Lynn leaves Linda’s home.

[ 56 ] Terri Lynn and Linda submit that there has been no material change in circumstance that would justify changing the parenting arrangement.

[ 57 ] They say that Marc’s circumstances are worse and not better than they were in February, 2008, and that it would not be in Jacob’s best interests to have him in Marc’s care 50% of the time. They underscore Marc’s past use of marijuana in the presence of Jacob, as well as his use of marijuana while operating a motor vehicle and a boat, in which the child was a passenger. They emphasize what they say is Marc’s inability to appreciate the inappropriateness of his conduct, and that his conduct is contrary to the best interests of his son.

[ 58 ] They also rely on instances in which it is alleged that Marc failed to ensure that Jacob was wearing proper safety gear, such as a life jacket, or a helmet.

[ 59 ] They suggest that the concerns over the marijuana use and the lack of diligence with safety equipment justifies adding conditions to the access to address those concerns.

[ 60 ] They also take the position that Marc has not only been engaged in domestic violence, he has done so in the presence of Jacob. Again, they rely on what they say is Marc’s inability to accept the inappropriateness of his assaultive behaviour, and his tendency to minimize and blame Jacqueline for the events which resulted in his conviction for two counts of assault.

[ 61 ] Both Terri Lynn and Linda seek an Order whereby the day-to-day parenting is done by them and that Marc has access to Jacob, subject to specific conditions.

[ 62 ] At the Trial Management Conference, it was Marc’s position that Jacob should have his day-to-day residence with him and that Linda and Terri Lynn have regular access. At the opening of the trial, Marc advised that he was seeking to have Jacob in his care at least 60% of the time. In his submissions at the end of the trial, Marc was seeking a joint parenting arrangement where Jacob would be in his care 50% of the time.

[ 63 ] Marc submits that there has been a material change in circumstances since February, 2008, such that it would now be in Jacob’s best interests to reside with him. He says that he is much happier now that he is separated from Jacqueline. The suggestion is that he can better parent Jacob now that he is no longer in a bad marriage where there was much discord and stress.

[ 64 ] Marc points to his decision to abstain from the use of marijuana as a material change in circumstances; he states that he is healthier now and is in a better position to parent Jacob.

[ 65 ] Marc says that Jacob lacks a father figure in his life, that he needs more regular and consistent exposure to the French language, and that he also needs more involvement in physical activities. He says that Jacob would benefit from more exposure to Marc’s large and close extended family.

[ 66 ] He also says that he can provide Jacob with a stable home environment and that Jacob would benefit from being raised with his half sister and half brother, with whom he is very close.

[ 67 ] Marc relies on the recommendation of Thomas Smith, contained in the October, 2010 report of the Office of The Children’s Lawyer, that Marc have the day-to-day care of Jacob.

Variation of Custody/Access Orders:

[ 68 ] Section 29 of the Children’s Law Reform Act provides as follows:

29. A court shall not make an order under this Part that varies an order in respect of custody or access made by a court in Ontario unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child.

[ 69 ] Section 29 establishes a threshold requirement of demonstrating a change in circumstances in order to effectively rebut the assumption that the existing Order is correct, and the burden lies on the party seeking to change the order; in this case, the burden lies with Marc.

[ 70 ] If Marc has failed to establish the required material change, that is the end of the matter. If, however, the threshold is met, then I must embark on a fresh inquiry into the best interests of Jacob, having regard to section 24 (2) of the Children’s Law Reform Act, R.S.O. 1990, c. C-12 , which provides as follows:

(2) Best interests of child – The court shall consider all the child’s needs and circumstances, including,

(a) the love, affection and emotional ties between the child and,

(i) each person entitled to or claiming custody of or access to the child,

(ii) other members of the child’s family who reside with the child, and

(iii) persons involved in the child’s care and upbringing;

(b) the child’s views and preferences, if they can reasonably be ascertained;

(c) the length of time the child has lived in a stable home environment;

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;

(f) the permanence and stability of the family unit with which it is proposed that the child will live;

(g) the ability of each person applying for custody of or access to the child to act as a parent; and

(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application.

(3) Past conduct – A person’s past conduct shall be considered only,

(a) in accordance with subsection (4); or

(b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent.

(4) Violence and abuse – In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,

(a) his or her spouse;

(b) a parent of the child to whom the application relates;

(c) a member of the person’s household; or

(d) any child.

[ 71 ] It is not enough to establish that there has been a material change in circumstances. The change in circumstance must be such as to change, in a fundamental manner, the child’s needs, or the ability of a parent to meet those needs. See Watson v. Watson (1991), 1991 839 (BC SC) , 35 R.F.L. (3d) 169 (B.C. S.C.).

[ 72 ] In Gordon v. Goertz , 1996 191 (SCC) , [1996] 2 S.C.R. 27, the Supreme Court of Canada explained the threshold requirement this way:

It follows that before entering on the merits of an application to vary a custody order the judge must be satisfied of: (1) a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child; (2) which materially affects the child; and (3) which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order.

[ 73 ] In the Gordon v. Goertz case, the Court was dealing with a variation application under the Divorce Act , but the description of the threshold is equally applicable to an application under the Children’s Law Reform Act .

The Report of the Office of the Children’s Lawyer:

[ 74 ] Mr. Thomas Smith, the Clinical Investigator, began his investigation in June, 2009 and concluded his report on October 4, 2010. His contact with the parties and with collaterals occurred in the summer of 2009 and in May and September of 2010.

[ 75 ] In addition to having observed the interaction between Jacob and Linda, Terri Lynn, Gerry, Marc, and Marc’s wife Jacqueline, Mr. Smith also interviewed Jacob on three occasions in August of 2009; Jacob was six years of age.

[ 76 ] Mr. Smith has not had any further information or contact with Jacob or the parties since that time.

[ 77 ] The recommendation of the Office of the Children’s Lawyer was that Jacob be in the custody of Marc, with Terri Lynn having regular and frequent access to Jacob, as agreed upon by Marc and Terri Lynn. The report also recommended specific access to Linda.

[ 78 ] The report indicated that at the time of Mr. Smith’s interviews with Jacob, Jacob consistently expressed that he wanted to live with Terri Lynn, that his second choice would be to live with Marc, and his third choice would be Linda and Gerry Delwo.

[ 79 ] Jacob told Mr. Smith that he wanted to spend more time with Marc, that Jacqueline was good to him, that he enjoyed being with his half-brother, Oliver, and that Linda sometimes changed the rules about when Jacob could visit with Terri Lynn, which Jacob did not like.

[ 80 ] The report discussed the concerns with Terri Lynn’s mental health and substance abuse problem, the difficult dynamics between Terri Lynn and her adoptive parents, as well as the cooperation between Marc and Terri Lynn and Jacqueline and Terri Lynn.

[ 81 ] The report referred to the comments of the Principal of Jacob’s school, to the effect that Jacob would benefit from having Marc as a decision maker and authority figure, as Jacob appeared to be lacking a male figure in his life.

[ 82 ] At the time of Mr. Smith’s contacts with Jacob and the parties, Terri Lynn was not living in the Delwo home, and had moved at least a couple of times. There were issues about her stability and her ability to parent Jacob. There was also considerable conflict between Terri Lynn and Linda. Jacob was primarily in Linda’s care.

[ 83 ] As described earlier, at the time of the report Marc and Terri Lynn had “joined forces” in an attempt to wrestle Jacob’s parenting away from Linda. Marc’s family situation appeared stable, he and Terri Lynn were cooperative with each other, and Terri Lynn supported Marc’s bid for custody of Jacob.

[ 84 ] Jacqueline was supportive of Marc’s quest for custody of his son, and she encouraged the cooperative attitude that existed between Marc and Terri Lynn in their dealings with Jacob. Mr. Smith cited no issues around the use of marijuana by either Marc or Jacqueline at that time.

[ 85 ] In the course of being examined by Mr. Gardner, Mr. Smith agreed that the contents of his report dated October 4, 2010 are a “snapshot in time”.

[ 86 ] Although the report provides information about Jacob and his relationships with each of the parties, the assistance the report provides to the court is limited, given not only the passage of time since the report was prepared, but also a number of significant changes in the circumstances of Terri Lynn and Marc.

[ 87 ] A number of important things have changed since October of 2010:

• Terri Lynn’s mental health appears to have improved to the extent that she has not, except for a three week period in April, 2012, required hospitalization or other intervention.

• Terri Lynn’s relationship with Linda has greatly improved. Terri Lynn says that she was ill and not thinking straight when she complained about her mother and described her as “controlling and manipulative”. Terri Lynn says that she now understands that Linda did not usurp her parental role, but rather that Linda had to take over as Jacob’s primary parent in 2009 and 2010 because Terri Lynn herself could not adequately see to Jacob’s needs.

• Terri Lynn has been residing in the Delwo home continuously for over a year and has resumed her care of Jacob. Her contact with Jacob is no longer restricted.

• The stable family unit that Marc was presenting in 2009 and 2010 no longer exists.

• Marc now has a criminal record for an offence of dishonesty as well as for two counts of spousal assault.

• Jacob witnessed Marc head-butting Jacqueline, and Jacob later head-butted Terri Lynn.

• Marc no longer lives in the home where he had been exercising access to Jacob.

[ 88 ] At the time of Mr. Smith’s contact with the parties, he was unaware that Jacqueline was using marijuana, and that Marc was supplying it to her. Mr. Smith was further unaware that Marc and Jacqueline smoked marijuana in the presence of Jacob. He was unaware that Marc smoked marijuana while operating motorized vehicles in which Jacob was a passenger.

[ 89 ] Although Marc relies on the report of the Office of the Children’s lawyer in support of his bid to change the parenting arrangement in place regarding Jacob, the report is of little import, for the reasons set out above. It was, as Thomas Smith indicated, a “snapshot in time”, and was based on incomplete information regarding Marc’s circumstances. Further, it was based on completely different circumstances than those that exist today.

Material Change(s) in Circumstance:

[ 90 ] Although there are several changes in the circumstances of each of the parties since February, 2008, not all of them are material and not all of them have an impact on Jacob’s needs, or the ability of each of the parties to parent him.

[ 91 ] Jacob is now 9 years of age. By all accounts, he is a pleasant boy, who enjoys movies, play acting, and spending time with his paternal cousins as well as his half brother, Oliver. Although he tried karate and swimming, those activities did not hold much interest for him.

[ 92 ] Jacob is generally well-behaved, although he did emulate Marc’s behaviour toward Jacqueline, by head-butting Terri Lynn on one occasion, after April, 2012.

[ 93 ] Jacob continues to attend St. Denis school, which is a French language institution. He has an Individual Plan of Education, as he has some learning difficulties. He is scheduled to undergo psychometric testing.

[ 94 ] Linda arranged for a tutor for Jacob. The tutor attends the Delwo home twice per week, and has done so for some time.

[ 95 ] Jacob continues to be closely bonded to his mother; they spend a lot of time together.

[ 96 ] As indicated earlier, save and except for a very brief period of time, Jacob has always resided at the Delwo home, and has always been cared for, at least in part, by Linda.

[ 97 ] Jacob enjoys the time he spends with his father and with the extended Giroux family. He has had more time with them this past summer. Although it appears that Jacob is sometimes reluctant to have access visits end, he returns home very happy and excited about the time he has had with Marc. It is clear that the members of the Giroux family dearly love Jacob.

[ 98 ] Jacob’s life and circumstances are very similar to what they were in February, 2008. If anything, things have improved for Jacob in that Terri Lynn is with him consistently (i.e. she is not living in a different residence than him as she was between 2005 and 2011), and her mental health has improved; she is better able to parent Jacob than she was in 2008.

[ 99 ] Further, with Marc and Jacqueline being separated, Jacob no longer witnesses the discord and quarrels that occurred in their home.

[ 100 ] Jacob continues to have regular contact with Oliver and Selina, despite Marc and Jacqueline’s separation.

[ 101 ] If anything, Jacob enjoys more stability in his life than he did in 2008, 2009, and 2010.

[ 102 ] Since February 21, 2008, Linda has retired from the Greater Sudbury Regional Police. She has more time to devote to Jacob and Terri Lynn, and says that she is more relaxed and gentler than she was previously.

[ 103 ] As indicated above, Terri Lynn’s mental health appears to have improved. Although there continue to be concerns, her situation is more stable now. She has lived consistently in the Delwo home for more than one year. She is now managing her own funds from Ontario Works; in 2008, Linda was the trustee of Terri Lynn’s income.

[ 104 ] Terri Lynn and Linda enjoy a happier and more co-operative relationship. Terri Lynn attributes her earlier resentment toward Linda to her own mental health issues and her earlier inability to recognize that she was not capable of properly parenting Jacob for significant periods of time.

[ 105 ] Turning now to Marc’s circumstances, there indeed have been many changes, and not all of them are positive in nature.

[ 106 ] In February, 2008, Marc had a good marriage, and a stable family unit. At some point, the marriage began to disintegrate, and it finally ended in April, 2012.

[ 107 ] It is a fact that Marc cannot provide a stable family unit to Jacob because he does not have one. Marc and Jacqueline are involved in ongoing court proceedings over their own two children. At the moment, Oliver and Selina live with Jacqueline, and Marc has visits with them.

[ 108 ] Marc no longer occupies the home in which Jacob was accustomed to spending time. There is no certainty that Marc will move back into that residence. In fact, the evidence is that the property is listed for sale.

[ 109 ] Financially, Marc is in a very unstable position. He gave up his employment and took a full-time parental leave at a time when he was not parenting his children on a full-time basis, and at a time when he was facing potential spousal and child support obligations in relation to Jacqueline, Oliver, and Selina, over and above his obligation to Jacob.

[ 110 ] Although Marc has plans to start his own business, that has not yet occurred. His debts exceed his assets, and he has insignificant income at the moment.

[ 111 ] Since February, 2008, Marc’s ability to adequately parent Jacob and to provide the child with guidance has been seriously called into question. Marc has made some very bad decisions and exhibited an extreme lack of judgment, together with a lack of insight into his own behaviour.

[ 112 ] Although Marc has said he highly values the quality of honesty, there is the matter of his conviction for theft of electricity. As well, the testimony of the members of the Giroux family made it clear that Marc has not been completely honest with the extent of his marijuana use, in the presence of children, nor of the fact that he used the drug while operating motorized vehicles, in which children were passengers.

[ 113 ] Marc said that he did not know that there was a concern about his use of marijuana in the presence of Jacob. This submission is less than compelling in the face of the suspension of access in 2003 because of marijuana use, the involvement of the Children’s Aid Society at that time, and the Voluntary Care Agreement.

[ 114 ] To have permitted Jacob to observe teenagers drinking alcohol and smoking marijuana is bad parenting. To have allowed Jacob to observe another parent smoking drugs with her child is also bad parenting.

[ 115 ] Although during the trial, Marc characterized the events of the May long weekend as a mistake, it is clear from his testimony as a whole that he does not truly understand that his behaviour was inappropriate and unacceptable. He reiterated that he was not impaired at the time. He also expressed that he did not view the marijuana use, in the presence of his child, and/or while operating a vehicle, to be an example of bad parenting. This lack of insight is troubling.

[ 116 ] I would also comment that in 2008, Marc was using marijuana to control his back pain. The back surgery reduced, or maybe even eliminated the pain. And yet, some two years later, Marc was continuing to smoke marijuana. The use, it would appear, was no longer medicinal.

[ 117 ] Also troubling (because it affects the guidance he might offer his son and the example he may be setting for him) is Marc’s minimization of the assaults on Jacqueline. His description of the incidents made it sound like he had no choice but to kick her or head butt her. There is no insight into how his behaviour was not acceptable, nor how it affected Jacob. In fact, Jacob did copy Marc’s behaviour by head-butting Terri Lynn.

[ 118 ] While it is very positive that Marc is taking the counselling, the PAR course, and the parenting course, and has ceased using marijuana, and, while he also says he is happier because he is out of a bad marriage, those things do not constitute a material change in circumstance that alters what Jacob needs, or that establishes that Jacob’s day-to-day residence should change.

[ 119 ] Marc has not met the threshold of establishing a material change in circumstances that affects or is likely to affect Jacob’s best interests.

[ 120 ] There is nothing in Jacob’s current circumstances or those of the parties which would justify a change to the child’s residence, or even a fresh inquiry into what parenting arrangements would best address Jacob’s best interests.

[ 121 ] The presumption that Justice Tranmer’s Order was correct in ordering that Jacob be in the care of Linda and Terri Lynn has not been rebutted.

[ 122 ] The concerns about marijuana use, and the safety concerns which have arisen since February, 2008, justify conditions being imposed regarding Marc’s access to Jacob.

Conclusion:

[ 123 ] The Final Order of Justice Tranmer, made on February 21, 2008 shall be varied to provide as follows:

(A) Paragraphs 1, 2 and 3 of the Order are replaced with the following paragraphs 1, 2 and 3:

1. The parties Linda Susan Delwo, Terri Lynn Delwo and Marc Roland Giroux shall have joint custody of the child Jacob Michael Roger Giroux, born April 10, 2003.

2. The primary residence of the child Jacob Michael Roger Giroux shall be with Terri Lynn Delwo and Linda Susan Delwo. In the event that Terri Lynn Delwo should have an unfortunate relapse or short illness, the primary residence would remain with Linda Susan Delwo.

3. Marc Roland Giroux shall have reasonable access upon reasonable notice including and not limited to:

(a) During the school year:

(i) Every Wednesday from 4:30 p.m. to 8:00 p.m.

(ii) Alternate weekends from Friday at 4:30 p.m. until Sunday at 8:00 p.m. to be extended to a Monday if it is a holiday;

(iii) Every Father’s Day to be with Marc Roland Giroux and every Mother’s Day to be with Terri Lynn Delwo;

(iv) One-half of the Christmas school break and Christmas Day as the parties agree, to reflect the times for the family celebrations and each party’s work schedule.

(b) During the summer holidays:

(i) A total of four weeks during the summer holidays, not consecutive, unless to accommodate a special vacation out of the district of Sudbury, with dates and times to be agreed upon between the parties to accommodate Jacob’s activities and the parties’ work schedule.

(B) The order shall be varied to include the following:

4. If any party wishes to vacation with Jacob outside of the District of Sudbury / Manitoulin, the other parties shall be provided with a contact phone number and address and an itinerary.

5. If the child is to be removed from Canada for a vacation, except to the United States, the consent of all parties is required. If the child is to be taken for a vacation to the United States, each party shall sign the documentation required by the American authorities so the child may enter the country. All parties shall consent to the issue of a passport for the child.

6. Marc Roland Giroux and Linda Susan Delwo shall be provided with a photocopy of the child’s health card, and Terri Lynn Delwo shall retain the original health card.

7. The child’s primary residence shall not be removed from the District of Sudbury unless 60 days notice is received by the other party or unless a Court order is obtained permitting same.

8. All parties shall ensure that any and every vehicle, motor vehicle, off-road vehicle, motorized snow vehicle, motorized water vessel, vessel, motorcycle, motor assisted cycle, or any other conveyance where or upon which the child is travelling shall conform to all legal safety standards and regulations and are maintained in a safe and fit condition.

9. (a) All parties shall comply with all Federal, Provincial and Municipal laws and statutes, regarding safety equipment respective of adults and of children, including but not limited to seat belts, child seat belt and safety restraints, helmets, flotation devices, and any other duly required safety equipment and said safety equipment shall comply with the regulations and shall be worn by all parties irrespective of travelling upon public or private property.

(b) All parties shall utilize safety equipment which may not be regulated through statute, but that a reasonable and safety conscious parent would accept as a necessary precaution to preserve the integrity of the child. For example, the chinstrap of the helmet shall be securely fastened under the chin, the numerous safety fasteners of flotation devices shall be secured in their entirety.

10. Marc Roland Giroux shall not consume alcohol or drugs, including prescribed marijuana or other prescription drugs which could alter or impair his judgment, within 12 hours of picking up the child Jacob Michael Roger Giroux, or at any time during his access.

(C) Paragraphs 5, 6, 7, 8, 9 and 10 of the Order of Tranmer J. dated February 21, 2008 shall continue in full force and effect.

[ 124 ] If the parties are unable to agree on the costs of this proceeding, they shall communicate with the Trial Coordinator, within twenty (20) days of this Ruling, to set a date and time to argue costs, failing which neither party will be awarded costs.

Madam Justice L. L. Gauthier

Released: October 9, 2012

COURT FILE NO.: 10,144/03-01
DATE: 20121009

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Linda Susan Delwo Applicant
Terri Lynn Delwo Applicant/Respondent

– and –

Marc Roland Giroux Respondent

RULING ON MOTION TO CHANGE FINAL ORDER

GAUTHIER, J.

Released: October 9, 2012