ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Lianne Lavallee
Applicant
– and –
Jason Beaudoin
Respondent
Counsel: Pauline El-Tenn, for the Applicant Lisa Sharp, for the Respondent
HEARD: June 3, 4, 5, 6, 7, 10 and 11, 2013
REASONS FOR JUDGMENT
Minnema, J.
1This was a motion on oral evidence brought by the respondent father Jason Beaudoin to change the order of Quigley J. dated July 30, 2007. That order provides for joint custody of the children Noah Beaudoin, born August 3, 2005, and Owen Beaudoin, born January 27, 2007, with their primary residence being with the applicant mother Lianne Lavallee.
2Mr. Beaudoin’s motion indicates that he is seeking sole custody to him, and limited and supervised access to Ms. Lavallee until she has done certain things: completed an assessment regarding the abuse of prescription drugs; satisfied the Children’s Aid Society that the living conditions in her home are acceptable; and demonstrated an ability that she can meet the children’s material and nutritional needs.
3However, his position had changed by the time of trial. Mr. Beaudoin was seeking a reverse of the existing formal arrangement, namely continued joint custody but principal residence of the children with him and access to Ms. Lavallee.
4Ms. Lavallee has asked that the respondent’s motion be dismissed. She has brought a claim of her own seeking sole custody. She maintained that position at trial.
5Neither party pled child support, but both filed financial statements and addressed it briefly in their opening statements.
Issues
6The main issues in this trial were whether joint custody was appropriate and who should have primary residence of the children.
Facts
7Ms. Lavallee is 40 years old. After high-school she went to La Cité collégiale and obtained a diploma in social work in June of 1993. She had dated Clifford Guay during high-school and lived with him for a short period after she finished college before they married in 1993. She worked in a mental health group home for most of that relationship. By the time she and Mr. Guay separated in 1998, they had two children: Jessica Guay and Chad Guay.
8After the separation Ms. Lavallee remained in Welland, Ontario, and those children lived with her. After several years she began to live with a Brent Fast in 2000 and stayed with him until he passed away from an apparent suicide in 2003. Her employment during those times was not clearly set out, but after the separation from Mr. Guay she worked for a period in a salon doing aroma therapy after taking courses in that area. She had a relationship with a Mike Rabie for about half a year, and following that in December of 2003 she met Mr. Beaudoin through a friend. Ms. Lavallee was unemployed at the time. Mr. Beaudoin lived near Ottawa. Despite the distance the parties dated and the relationship held promise. After renting in Welland for a month, Ms. Lavallee moved to Ottawa and lived with her brother in furtherance of the relationship. The parties then decided to buy a property that needed significant renovations in Prescott, Ontario, and moved in together in July of 2004. When she moved to Ottawa, Ms. Lavallee’s daughter went to live with Mr. Guay and initially only her son Chad came with her.
9Mr. Beaudoin is also 40 years old. After high school he went to the University of Ottawa and graduated with a Bachelor of Arts in history in October of 1995. Soon after graduating he obtained employment with the federal government in Ottawa for whom he still works, the past eleven years as a Web Developer for the Department of National Defense. He began a relationship with Barbara DiBrita in 1992 while still at university and they married in 1997. They separated in 2003 and divorced in 2007. They had a son Alexander in 2002, and Mr. Beaudoin was having access to him and paying child support during his relationship with Ms. Lavallee.
10As noted Ms. Lavallee and Mr. Beaudoin started living together in July of 2004. They separated in December of 2006. Noah Beaudoin was born on August 3, 2005, and Owen Beaudoin was born on January 27, 2007.
11The separation occurred when Ms. Lavallee was eight months pregnant with Owen. On the stand Mr. Beaudoin said that he left the relationship because Ms. Lavallee was having delusions. He told the Office of the Children’s Lawyer’s Clinical Investigator, Sandra Kapasky, something different, namely that there was a great deal of unhealthy fighting between them, that Ms. Lavallee was very jealous, and that things became so difficult that he had no choice but to leave. However, the emails between the parties around the time of separation establish that Mr. Beaudoin actually left because he was having feelings for a Stephanie White, whom he had met at work, and that he no longer had feelings for Ms. Lavallee.
12Conflict started within a week. Ms. Lavallee approached Mr. Beaudoin about child support. He was upset about how she did it. In an email exchange he explained to her why the support he was giving her was “a sweet deal for someone that doesn’t have to work” and added “I don’t want this to get ugly, but if you start doing what you are doing, and if you are going to be unreasonable, it’s going to get ugly really fast, for both of us and for our kids, particularly Chad.”
13Mr. Beaudoin moved to Ottawa and took their only vehicle. He sought and was given access to Noah right away. After the separation and Owen’s birth Ms. Lavallee remained in the home, still under renovations, and along with trying to raise the children and manage without a vehicle, she also tried to fix up the house hoping it could be sold for an amount that would cover their investment. The parties had put most of their respective savings into the home and its renovations. However, she was ultimately unsuccessful and eventually the house was ‘lost’ and both parties had to declare bankruptcy.
14Mr. Beaudoin indicated at trial that he had concerns about Ms. Lavallee’s parenting capacity during their cohabitation, although he qualified that by saying not to the same degree that he has now. The concerns he identified were regarding drug use and her alleged delusions and mental health. There was evidence that both parties experimented with illegal drugs during their cohabitation. Despite Mr. Beaudoin alleging that these were serious concerns, upon exiting the relationship he left Noah in Ms. Lavallee’s care and Owen as well upon his birth shortly after.
15In April 2007, a referral was made to the Leeds and Grenville Family and Child Services, referred to below as the ‘Brockville Children’s Aid Society’ (“CAS”), regarding Ms. Lavallee’s care of the children. The redacted records from the Society were admitted into evidence on consent. They indicate that the basis of the investigation was Mr. Beaudoin’s many allegations, namely that Owen had a severe diaper rash, that the children were inappropriately supervised, that Ms. Lavallee was having problems with her finances, that the children did not have a family doctor or up-to-date immunizations, and that Ms. Lavallee might be using illegal drugs. The CAS investigated and closed its file. It could find no evidence that the children were neglected in any way and no evidence to support any of the other concerns. Ms. Lavallee indicated to the child protection worker that she was planning on applying for custody of the children and believed that Mr. Beaudoin made up concerns to cast her in a negative light.
16Ms. Lavallee did bring a court application and the parties consented to the court order dated June 30, 2007, the one they are both now seeking to vary. As noted it gave them joint custody, but the primary residence of the children was with Ms. Lavallee. Mr. Beaudoin was to have access every other weekend, two hours mid-week access each week, shared Christmas holidays, Father’s Day, and three weeks in the summers. This access regime has continued to today with minimal change, although the detailed provisions in the order regarding joint decision making were not always followed. The parties also agreed that Mr. Beaudoin’s child support was to be calculated as two-thirds of the amount that would otherwise be required for three children pursuant to the Child Support Guidelines (Ontario), O.Reg. 391/97, as amended. This was to take into account the fact that he was also paying child support at that time for his other son Alex. When Mr. Beaudoin entered into a split parenting regime with Alex’s mother in 2009 he began receiving $138 per month from her once their support was off-set. It is not clear whether this was ever communicated to Ms. Lavallee. The child support has never been adjusted.
17Upon leaving the marital home in May of 2007, Ms. Lavallee stayed in Prescott and rented at the same residence for several years to June of 2010.
18In the summer of 2008, Ms. Lavallee’s daughter Jessica moved back in with her. In February of 2009 there was another referral made to the Brockville CAS. It was made by an unidentified source, someone calling concerned that Ms. Lavallee’s living conditions were crowded, now including Noah, Owen, Chad, and Jessica. The CAS investigated noting that while the living accommodations did not provide a lot of space for a family of that size, it was well kept and organized and did not present any safety concerns. The Society noted that Ms. Lavallee “presented as a caring, loving, responsible caregiver who appears to be providing appropriate care for all her children at this time.” It noted that it was possible that the referral was made maliciously. It decided to close the file as there were no protection concerns.
19In May of 2009 there was another referral to the Brockville CAS by Mr. Beaudoin. He said that he felt his past reported concerns were not taken seriously, and he alleged that Ms. Lavallee had mental health issues, referring to past Internet postings that she had made. He also alleged general neglect of the children. Once again the CAS investigated. As with the first referral, the family doctor was contacted as a collateral source. Once again the home and children were neat and tidy, and there was no evidence to support the mental health and drug use allegations. Ms. Lavallee was seen once again as very capable in her caregiving role and the file was closed.
20In October 2009 there was another referral to the CAS regarding Ms. Lavallee, and again the person’s name is redacted. This person had called her home and said that he learned that Ms. Lavallee had gone out of town for the weekend to visit her boyfriend and left the children in the care of Jessica, then age 15, although a neighbor checked in on them. The details indicate that this person “(d)id ask Jessica if he could come and get the boys and she said no.” When interviewed Jessica indicated that Mr. Beaudoin had called a couple of times asking if the children were alone. The Society investigated, and determined that Ms. Lavallee had only been gone one night and left a family friend and Jessica to watch the children and gave them detailed contact information. The Society indicated that there was no evidence or disclosure during the investigation to suggest that the children were not adequately supervised. The worker spoke privately to Jessica and Chad, and tried to speak to Noah but he was too young (age 4). Once again the CAS assessed the home as clean, tidy although cramped, and safe. It again noted no child protection concerns and closed its file.
21During this last investigation Ms. Lavallee indicated to the child protection worker that it was her belief that Mr. Beaudoin had been calling the CAS on her regularly since they separated. She said that he had yelled at her in the hallways at her apartment, and that she now requires him to buzz her when he arrives and not to come into the building. She then brings Noah and Owen to him. She said she was in the process of getting a restraining order. However, despite what she viewed as his harassment, she indicated she had no safety concerns for the children while in Mr. Beaudoin`s care.
22Ms. Lavallee married a Todd McCargar in March of 2010, and in June of 2010 they moved to Oxford Station, which is a community north of Prescott. That relationship did not work out. They separated some four months later. On the break-up Mr. McCargar was criminally charged with two counts of mischief.
23Following this separation Mr. McCargar’s sister Tami McCargar contacted Mr. Beaudoin alleging improper parenting by Ms. Lavallee. Mr. Beaudoin as a result over-held the children after his access and brought this Motion to Change in the Brockville court. He also brought an urgent motion for an immediate change of custody.
24For the urgent motion Mr. Beaudoin had affidavits from Ms. McCargar and Stephanie White. As noted Ms. White and Mr. Beaudoin had begun dating immediately after the separation, and they began cohabiting in August of 2009. Both affidavits were admitted into evidence for this trial by agreement in the Book of Documents. Both of these affidavits seemed to be over-reaching. For example Ms. White referred to the historical complaint about Owen’s alleged severe diaper rash when he was an infant, even though it was investigated years earlier by the CAS and not verified. Ms. McCargar’s affidavit referred to the past CAS investigations and suggested that Ms. Lavallee would know when a child protection worker was coming to her home and she would clean it in advance, but otherwise the house was always “squalid”. Ms. McCargar did not give evidence at trial but I note that the CAS attendances at Ms. Lavallee’s home by the CAS all pre-dated Ms. Lavallee’s cohabitation with Ms. McCargar’s brother.
25The interim motion was heard on August 23, 2010. Mr. Beaudoin was unable to satisfy the court that the matter was urgent. As Mr. Beaudoin put it, he was ordered to return the children. The court ordered that the existing order was to be enforced by the appropriate police agency and on consent it transferred the court proceedings to Ottawa.
26After these events both parties began a campaign of allegations against each other directed for the most part through Children’s Aid Societies. Few were ever verified. I am not going to detail them all, but note the following. Mr. Beaudoin continued to call alleging concerns about Ms. Lavallee’s mental health. Ms. Lavallee called regarding suspected abuse and sexual abuse of the children by Mr. Beaudoin. Referrals also came from other sources. The police made a referral about Owen being unsupervised, which was one of the very few referrals against Ms. Lavallee that was verified by the CAS, although it considered it to be a one-time occurrence. The school’s social worker reported disclosures by the children that Mr. Beaudoin encouraged them to dress up as girls. At the time she delivered her report, the Office of the Children’s Lawyer’s clinical investigator also made a referral to the CAS advising that the school had disclosed to her that the children were at times hungry or without lunches.
27Regarding the latter, at the case conference on June 8, 2011, both parties requested the involvement of the O.C.L. and that order was made. An assessment was completed and its Clinical Investigator, Sandra Kapasky, filed a report dated March 9, 2012 that was admitted into evidence.
28Ms. Kapasky had all the above-noted evidence available to her. She accessed collateral sources including the children’s doctor, several police forces, and the Brockville CAS. Regarding the latter, it was not clear whether she had access through Brockville’s file to the case notes from Children’s Aid Society of Ottawa which assisted in the abuse investigation regarding Mr. Beaudoin. In those case notes the Ottawa worker who interviewed the children commented that when Owen made a disclosure “daddy hurt me” it sounded rehearsed. It does not appear as if Jessica Guay was interviewed, and Chad by that time had gone to live with his father Mr. Guay with Ms. Lavallee’s consent.
29Ms. Kapasky examined the concerns identified above and others. She addressed Mr. Beaudoin’s concerns that the children had poor clothing and hygiene, had inadequate food at school, and his concerns that Ms. Lavallee was unstable because she had gone through a number of residence changes and relationships since they separated. Ms. Kapasky was aware of Ms. Lavallee’s concern that Mr. Beaudoin encourages the boys to play with girls’ toys and dress-up clothing. In the end Ms. Kapasky concluded that the investigation did not show that a change in the children’s primary residence was warranted at that time. She supported the joint custody regime. She made a recommendation that the parents seek counseling to assist them to co-parent and seek out the services of a parenting coordinator when needed.
30I am unable to find any fault with Ms. Kapasky’s report or its conclusions. Indeed, neither party took serious issue with it at trial. It was admitted into evidence and Ms. Kapasky was not called to be cross-examined. What is clear is that the children were doing reasonably well with the status quo, although Noah did have some delays that the parents and school were addressing. Both children loved their parents and wanted time with them. Indeed the boys indicated that they wanted more time with their father. Ms. Kapasky recommended that Mr. Beaudoin have an additional week of summer holidays to bring it up to four weeks.
31Mr. Beaudoin took the position at trial that the Report of the Children’s Lawyer was helpful, but that the recommendations are not correct given what has happened since and what has been learned since. Much of the trial focused on what has happened since Ms. Kapasky’s report, namely over the past year.
32As noted, upon delivering her report Ms. Kapasky made a referral to the Brockville CAS regarding the children’s school indicating that they would arrive hungry. This was investigated by Brenna O’Connor, a child protection worker at the Brockville CAS in March of 2012. Her notes and records were put into evidence on consent. The children indicated to her that they did have breakfast at home, and that their mother did make them school lunches but if Noah did not like them he would not eat them. This concern was therefore not verified and indeed I note that the school itself did not make the referral.
33What was disturbing about this investigation was that the children seemed to be well aware of the conflict between their parents. As noted by Ms. O’Connor:
The boys have been exposed to adult conflict citing “dad calls mom shut up and mom calls dad fuck you”. They did not seem upset by this, it seemed not to phase them at all.
34After the children were interviewed alone at Ms. Lavallee’s home, Mr. Beaudoin indicated that he wanted the children interviewed while in his care as he felt that they would not be honest if Ms. Lavallee was around. The worker complied and the children were brought by Mr. Beaudoin to the CAS office to be interviewed privately. Ms. O’Connor noted that the children seemed as content with their situation as before, but then about ten minutes into the interview Noah stood up and stated that he wanted to live with his father. The worker explored this with the children and they provided no reason for wanting to live with Mr. Beaudoin and did not disclose anything that was in any way concerning. In discussing this with Mr. Beaudoin afterward Ms. O’Connor noted that while he provided many reasons why the boys wanted to live with him, she explained to him that these needed to come from the children. This exchange certainly raises a question as to whether there has been an element of coaching of the children by Mr. Beaudoin.
35Ms. O’Connor’s report concluded as follows.
Not verified. The home was clean, no indication of any health and safety concerns. The boys were clean and healthy. They were able to identify what they ate for lunch and dinner, Lianne’s mental health has been investigated multiple times. Worker also spoke with the family Dr who has no concerns.
36One of Mr. Beaudoin’s main concerns has been that Ms. Lavallee and the children had experienced instability regarding their residences. To recap briefly, she had moved four times between separation and the delivery of the Report of the Children’s Lawyer, a period spanning just over five years. For some moves Ms. Lavallee had limited choices. The move from the matrimonial home was not her choice. Her next apartment had a mould problem which was confirmed by the superintendent who gave evidence. Indeed, Ms. Lavallee said when they were there the children were sick a lot, which Stephanie Smith confirmed. The next move to a community called Oxford Station was related in part to her brief marriage to Mr. McCargar. She then moved to William Street in Cardinal, Ontario, for approximately six months when she was in a relationship with an Eric Jansen, before moving to Dundas Street in Cardinal, Ontario, where she had been living on her own with the children for six months at the time of the Report of the Children’s Lawyer. All these moves were in fairly close geographical vicinity, being north-east of Prescott, although each required about a half-hour of driving for Noah to get to school.
37Despite Ms. Lavallee’s changes in residences up to that point and after, to date Noah and then Owen have always gone to a French elementary catholic school, Ange-Gabriel, in Brockville, Ontario, with one exception. Before Owen was school age Noah had to change schools when Ms. Lavallee moved to Oxford Station, as it was out of the Ange-Gabriel catchment area. This was from September of 2010 to March of 2011. Upon Ms. Lavallee leaving Oxford Station, Noah went back to Ange-Gabriel.
38At the time of the Report of the Children’s Lawyer, all the changes of residences up until the Dundas Street property in Cardinal as well as Ms. Lavallee`s relationship history were known to Ms. Kapasky. In the report Ms. Lavallee answered Mr. Beaudoin’s concerns about instability by indicating that she had not moved often since being forced to leave the home that the parties had shared, and that regardless it was her intention to stay in her current residence long-term.
39While still living at Dundas Street in Cardinal, Ms. Lavallee dated Martin Whan who gave evidence. He has been a police officer for 25 years. He indicated that the children were well-cared for during their relationship of about eight months, they were healthy, and he witnessed them being happy to see her after access with their father. He said that the Dundas Street residence was an old house with a draft, and that it turned out not to be a great neighbourhood as there were some problems with the residents behind Ms. Lavallee’s home.
40In May of 2012, several months after the Report of the Children’s Lawyer, Ms. Lavallee moved from Cardinal to live with a Wayne Sturgeon in Prescott. Mr. Sturgeon was a 76 year old friend that she had known for five years. There was a financial element to this move. The vague plan was that Ms. Lavallee would assist Mr. Sturgeon in exchange for rent-free accommodation for her and the children.
41As it turned out, Ms. Lavallee and Mr. Sturgeon appeared to have had different expectations as to what this arrangement would look like. Ms. Lavallee invited someone she was just beginning to date, a Chris Gazley, into the home and he slept over a few times. Mr. Sturgeon did not think that was appropriate, and apparently was under the impression that Mr. Gazley was moving in. A disagreement ensued between Ms. Lavallee and Mr. Sturgeon, and their residential arrangement fell apart after only two months.
42Ms. Lavallee had theories as to why the arrangement ended, namely that Mr. Sturgeon fancied her and was jealous of Mr. Gazley, or that he wanted to protect her like a daughter from Mr. Gazley. Oddly, she rationalized her being forced to leave by saying it was a good thing as she did not did not want the children to see Mr. Sturgeon in his deteriorating state, notwithstanding that assisting him was part of the deal as she understood it. In any event, Mr. Sturgeon was stressed about the arrangement, he left the premises, police assisted in obtaining his personal effects, his daughters got involved, and Ms. Lavallee and the children had to go.
43Mr. Sturgeon had two affidavits filed in the Books of Documents on consent. The first sworn in 2010, well before the failed arrangement, indicated that in all respects Ms. Lavallee was an excellent mother. The second sworn in 2013, after the failed arrangement, expressed an opinion that the children would be better off in the care of their father. Mr. Sturgeon was not called to testify. I did not give either document any weight.
44Ms. Lavallee acknowledged that she had gotten a call from Mr. Beaudoin when he first learned of Mr. Gazley, demanding a criminal background check. She said she asked Mr. Gazley for a copy of his criminal record and he said he would provide it, however she didn’t wait to get it before she allowed him into her/Mr. Sturgeon’s home and near the children. Mr. Beaudoin then contacted the CAS. While no criminal records were in evidence, there was an indication from the CAS that Mr. Gazley had undefined mental health issues.
45Ms. Lavallee minimized the impact of Mr. Gazley. She said that as it turned out their relationship only lasted a few weeks. She said she has not been in any relationship since then, for almost a year up until trial. Regardless, this sudden turn of events left her and the children in a difficult position regarding their accommodations. Ms. Lavallee had her belongings in storage, although the children had their personal affects with them. She said she did not want to rush into renting the first available place, aware of the past complaints by Mr. Beaudoin regarding her lack of stability. She stayed with friends Norman and Melanie Paquette for a few months, and then with her friend Yvonne Lortie, both on a temporary basis. In late January of 2013 she secured her own accommodation in Brockville, Ontario, where she now resides.
46Another issue was Noah`s cavities. It came up just before the Report of the Children’s Lawyer was received and does not appear to have been considered by Ms. Kapasky. Mr. Beaudoin identified that Noah had a visible cavity and he took him to the dentist around February of 2012. He learned that he had four to seven cavities – the evidence was not entirely clear on the actual number – requiring four appointments to fix. Mr. Beaudoin said that the children told him that they never brushed their teeth at Ms. Lavallee’s home.
47Ms. Lavallee admitted that she had never taken the children to see a dentist, but asserted that she said practiced regular oral hygiene with them, and in that regard points to the fact that after all these years this was the first time Mr. Beaudoin had raised it as an issue. She indicated that while Mr. Beaudoin did have a benefits plan at work, she would have to pay the dentist up front which she could not afford. She also said that she anticipated difficulty getting reimbursed by Mr. Beaudoin when submitting a claim for the children through him, indicating that it had happened in the past with other claims.
48Lending some support to her statements, Mr. Beaudoin asked Ms. Lavallee to take Noah to the third of four dentist appointments. He said that she would need to pay the dentist up front the $350 to $400 that was required. She said that as a single mother with children she could not afford to pay, and asked him to cover it with a cheque. Mr. Beaudoin took issue with this, indicating that the child support and baby bonus she was already receiving was to be used for expenses like this and that she should be able to cover the costs. The matter was ultimately resolved by Mr. Beaudoin taking Noah to these appointments and dealing with his benefits plan directly.
49In September of 2012, Mr. Beaudoin contacted the Children’s Aid Society of Stormont, Dundas & Glengarry, referred to below as the ‘Cornwall CAS’. As noted Ms. Lavallee was at the time living with her friend Yvonne Lortie who resided in Morrisburg, Ontario, east of Prescott, and her home was in that agency’s catchment area. Mr. Beaudoin once again alleged that Ms. Lavallee was “mentally disturbed”, and that he believed she was doing drugs. He also raised the new concerns of recent residence instability and the dental neglect. Coinciding with this referral a call was made to the same CAS by Norm Paquette, with whose family Ms. Lavallee and the children had lived for a few months. Mr. Paquette told the agency that the children brushed their teeth with their fingers, slept in their school clothes, were once unsupervised, and that Ms. Lavallee never seemed to have any money and he does not know where she spends it.
50Mr. Paquette was not interviewed by the CAS. Ms. Lavallee indicated that when she lived briefly with him and his wife, he was a truck driver and rarely home. She believed that Mr. Beaudoin had somehow convinced him to make the call. Indeed, it seemed odd to me that Mr. Paquette purported to have knowledge of and felt the need to comment on Ms. Lavallee’s personal finances. While references to him are contained in CAS documents admitted into evidence on consent, he was not called to give evidence and I find that in this context what he said to the CAS was hearsay and can be given no weight.
51The Cornwall CAS worker Ms. Dawn Lanswood Howe was assigned the case and investigated. She rated the family “high” on the agency’s risk scale because of the large number of past CAS referrals. She also noted, surprisingly given the above, that “professionals who have worked with … [Ms. Lavallee] have concerns about her mental health.” Mr. Beaudoin argued that this was his proof that Ms. Lavallee has mental health issues. On closer examination I do not agree.
52Ms. Lanswood Howe in her testimony and in reference to her reports/case notes identified those “professionals” as Ms. Lavallee’s “previous worker from Brockville CAS as well as the OCL.” I have scoured the Children’s Lawyer’s Report and see no such concern identified by Ms. Kapasky. Also, the Brockville worker she referred to was Ms. Brenna O’Connor. Ms. Lanswood Howe said she obtained the information from her in a telephone call. Ms. Lanswood Howe said that Ms. O’Connor told her the mental health concern was based on Ms. Lavallee’s repeated poor judgment, and that the example she gave was the frequent residence changes. However, Ms. O’Connor in her own case notes did not identify any mental health concerns regarding Ms. Lavallee. There was no evidence that she would be qualified to give such an opinion. Further, her investigation appears to have been conducted in late March of 2012, while Ms. Lavallee was still living in Cardinal, Ontario, and therefore before the last several residence changes. She did not testify. On the whole the statement attributed to Ms. O’Connor is clearly hearsay with obvious frailties that make it unreliable.
53A comment here regarding Ms. Lavallee’s mental health and alleged illegal drug use. Mr. Beaudoin repeatedly raised these as concerns to the CAS, and the former was a matter of some attention during the trial. I find that there was no evidence supporting mental health concerns about Ms. Lavallee or illegal drug use by her since separation.
54An issue between the parties that arose during Ms. Lanswood Howe’s involvement was difficulties during the access exchanges. This was addressed directly by Ms. Lanswood Howe and efficiently resolved by her. Ms. Lavallee indicated that Mr. Beaudoin would yell at her at the access exchanges. Mr. Joseph Deschamps, a past superintendent in one of Ms. Lavallee’s residences, corroborated seeing examples of this. Ms. Lavallee therefore enlisted various people to do the exchanges for her. Among them she enlisted her friend Yvonne Lortie and for a time Ms. Lortie’s daughter Jessica. This was inappropriate. Although well-meaning and supportive of Ms. Lavallee, both these individuals purported to take on too large a role in the exchanges. During Ms. Lanswood Howe’s involvement there was an incident at the access drop-off where Ms. Yvonne Lortie was aggressive with Mr. Beaudoin. There may have been some provocation on his part in that he parked where Yvonne Lortie understood he was not supposed to, and in the ensuing argument about whether a booster seat was required for Noah he was clearly in the wrong. Regardless, the approach taken by Yvonne Lortie was inappropriate and put the children at risk of being exposed to adult conflict. Ms. Lanswood Howe facilitated alternative arrangements for the access exchanges at the police station subject to certain understandings, one of which was that Ms. Yvonne Lortie would no longer be involved. Failing adherence the exchanges were to occur at a supervised access center.
55Ms. Lanswood Howe on September 26, 2012 concluded her investigation as follows:
At this time Owen and Noah appear as though their needs are being adequately met. They both have presented as clean, physically healthy, having new school uniforms, and having adequate healthy food in the home. Noah did share that there was a time when he did not have a toothbrush as it had been lost, however he does have one now. Jason ensured that the boy’s dental health is being addressed as he has taken them to his own dentist in Ottawa. As a result of access related drop off and pickups, a family safety plan was made by both caregivers on September 28, 2012.
56She concluded that the original protection concerns had not been verified and the concerns regarding exposure to adult conflict at access pick up and drop off had been addressed. The CAS therefore closed its file.
57On October 18, 2012, Ms. Lavallee contacted the police concerned about possible sexual abuse of the children by Mr. Beaudoin. The police contacted the Corwall CAS. Ms. Lavallee reported that the children were talking about sex and about having sex with each other, that their father tells them to do this, and that he touches them when they are there. The worker Trevor Shayler investigated. The reports were not verified. Again the children were positive with respect to their relationships with both their mother and father, although again they were very much aware of the conflict. Noah noted that his mother says mean things about his father, and that his father tells him that his mother is dead.
58The worker Trevor Shayler indicated in his written report that “Both children did appear to be privy to custody conflict issues between their parents which appears to be causing some level of emotional harm.” He said in his oral testimony that he is not technically trained to assess emotional harm, however he reiterated his valid concern that the children were being exposed to custody conflict.
59Shortly after Ms. Shayler referred to emotional harm, the Principal at Ange-Gabriel emailed both parents on November 12, 2012 to advise them that Noah was tired and stressed at school regarding the separation of his parents and had said several times that he wanted to die. Noah is otherwise generally described by all as a happy bubbly child. There was a suggestion in the evidence that upon hearing this the parents arranged counseling for Noah, but there was little detail.
60As noted above Ms. Lavallee found a suitable apartment in Brockville, Ontario, in January of 2013. She moved her belongs out of storage. She had been living there for about five months at the time of the trial. Throughout these last moves the children remained in the same school and the regular access continued. Ms. Lavallee has been working as a school age teacher in the Before and After School Program at St. John Bosco Children’s Centre in Brockville since the end of 2012. She works with children 6 to 12 years of age. She also fills in when needed as the Enhanced Support Teacher for children with special needs in their programs.
61As noted Mr. Beaudoin was in a dating relationship with Stephanie White since December of 2006, and they started living together in August of 2009. They separated in May of 2012. Mr. Beaudoin advised that he had been in a relationship with a Lisa Williams for about nine months at the time of trial, although there were few details and she did not testify.
62There have been no further reports made by either party, or people close to them, to the police or a CAS since October of 2012.
63A number of other important facts or matters of note that do not fall into the chronology above are as follows.
64Regarding the children, as noted Noah has had some difficulty in school. He has already been held back one year. He has recently seen Dr. Harmeet Chawla, psychologist, who did a developmental assessment and noted that while Noah is clinically stable and developing well, he is having difficulty around reading and writing. Noah seems to have a learning disability related to the French language, and Dr. Chawla has recommended that he be moved from Ange-Gabriel and put into an English language school. Ms. Lavallee indicated that she worked very hard with him and his homework and the school has reported no difficulty with her effort. Noah gets some additional school supports. Both parties took no issue with his most recent report card which indicated much improvement towards the end of the current school year.
65While the parties currently seemed to be on the same page regarding Noah’s school difficulties, I note that as late as September of 2012, Mr. Beaudoin was indicating to the Cornwall CAS that he thought Noah did not have a learning difficulty and that the reason he failed Grade 1 was because of Ms. Lavallee’s lack of stability and neglect. There is no evidence to support that accusation.
66There are no reported concerns with Owen’s education and learning. He seems to be doing well, is happy at school and has a lot of energy. A source of conflict between the parents as noted is that Owen likes to play with what is usually identified as girls’ toys and clothes. Mr. Beaudoin does not discourage it at his home, and his older son Alex has similar play preferences. Ms. Lavallee in her home does not encourage it, and she is worried about Owen getting picked on by his peers. Mr. Beaudoin believes Ms. Lavallee is harming Owen by discouraging such play. Ms. Lavallee believes Mr. Beaudoin is harming Owen by encouraging such play. Neither Ms. Kapasky nor the CAS worker Mr. Shaylor had any concerns about Owen’s play.
67For a time in 2011 the children were seeing the school social worker with the parents’ consent. It was not clear when that ended.
68Ms. Lavallee attends to the children’s medical needs except as noted the dental appointments which are now being dealt with by Mr. Beaudoin. There are no concerns noted by the children’s doctor. Owen had eye issues which were attended to. In the context of the parental conflict, there is a pattern of reluctant communication by Ms. Lavallee to Mr. Beaudoin regarding a number of these issues.
69Mr. Beaudoin maintained that he was often not consulted about matters relating to the incidents of custody, and was advised by Ms. Lavallee often late about important issues concerning the children. There was no real dispute of this by Ms. Lavallee except to note that Mr. Beaudoin has always been kept apprised as to what was going on with the children.
70Mr. Beaudoin maintained that Ms. Lavallee was in breach of the order regarding telephone access. Ms. Lavallee did not deny that it rarely occurred but maintained that a factor was Mr. Beaudoin being abusive to her on the telephone. The parties’ main form of communication was by email. At times it was quite civil and productive, at times it was not. As noted, face-to-face access by Mr. Beaudoin to the children has had no serious long-term or systematic disruptions.
71Mr. Beaudoin spent a considerable amount of time trying to show that Ms. Lavallee was a liar and had no credibility. For example he focused on attempting to prove that she was lying because she claimed in different ways and times over the years that she was a “social worker”. He went to the extent of writing to the Ontario College of Social Workers and Social Services Workers to see if she was registered. Although no objection was made, this was clearly a collateral issue. Ms. Lavallee as noted did have a diploma in social work. It seemed to me that she did not give much attention to the distinctions between being registered or not, and having a degree versus a diploma. I note that there were also inconsistencies in Mr. Beaudoin’s evidence. For example, as noted above he gave three versions as to why the parties separated. Both parties have contradicted themselves and misstated or embellished certain facts over the years. Overall in making my decision I have decided credibility based on the evidence related to each event or series of events, and I have made no overarching finding that either party has a lack of credibility such that their testimony on a whole should be treated with suspicion.
Analysis
1. Law
72The parties never married. The legal tests for a custody variation are found in the Children’s Law Reform Act, R.S.O. 1990, c. C.12, as amended.
73Section 29 indicates that I cannot vary Quigley J.’s order unless I first find that there has been a material change in circumstances that affects or is likely to affect the best interests of the children.
74If I make that finding, s. 24(1) directs me to determine this proceeding on the basis of the children’s best interests in accordance with ss. 24(2), (3) and (4). The children’s best interests is the overarching consideration: see s. 29 and Gordon v. Goertz, 1996 191 (SCC), [1996] 2 S.C.R. 27 at para. 50.
75Subsection 24(2) directs me to consider all the children’s needs and circumstances. Eight items are specifically mentioned, but that list is not exhaustive. I have also considered those circumstances listed by the Supreme Court of Canada in Gordon v. Goertz, at para. 49.
76In looking at a person’s ability to act as a parent, which is one of the listed considerations in s. 24(2), I am specifically directed by ss. 24(3) and (4) to consider whether that person committed violence or abuse against persons within their extended family or any child. However, I am not to consider any other past conduct unless it is relevant to the person’s ability to act as a parent.
2. Change of Circumstances
77The parties agreed that there has been a material change in circumstances since the order of Quigley J., but for different reasons. I find the parental conflict that has escalated since 2007 to be such a change, and I find that it affects the best interests of the children.
3. The Children’s Needs and Circumstances
a) Plans
78As to plans, as noted Mr. Beaudoin was seeking joint custody and a reverse of the current custody and access arrangements. In his closing submissions he indicated that he will include Ms. Lavallee in the decision making, consult with her, and provide her with information. That was not explored at any length in his evidence. Generally though, he does not believe that Ms. Lavallee is an adequate parent. He indicated that he would see that the children have more extracurricular activities if they were in his care. Mr. Beaudoin noted that if they were living with him the children would have closer ties to their half-brother Alex, who lives with him half-time.
79In response to Mr. Beaudoin’s plan, Ms. Lavallee indicated that the children had many summer activities, but their extracurricular activities during the school year were limited as a result of Noah needing extra study attention given his learning difficulties. She noted that the children have a close relationship with their half-sister Jessica, now an adult, with whom they have been living for the past five years.
80Ms. Lavallee’s own plan was simple; she indicates that there are no reports that the children are not doing well in her care so she asks that the residency status quo not change but that she be granted sole custody because the parties cannot get along.
b) Contact
81There is no dispute that there are strong emotional ties between the children and each parent. Their relationships are good. From the evidence of Ms. Kapasky and from the child protection workers, Mr. Shaylor being the most recent, the children want to have contact with both parents and seem content with the current living arrangement. The children have not said to any independent third party that they wish to change their primary residence.
82Regarding the desirability of maximizing the contact between the children and both parents, a shared parenting arrangement such as week on/week off will not work in this case and is not an option that is being proposed. The distance between residences is too great and the children are school aged. Contact with the children by an access parent, whoever that is, cannot be much more than what Mr. Beaudoin is currently exercising.
c) Status Quo and Stability
83I have considered the length of time that the children have lived in a stable home environment, the permanence and stability of the mother’s home, and the disruption to the children of a change of residence. As set out above, the children have lacked stability in their residence, at times for reasons beyond Ms. Lavallee’s control, but at times as a result of some poor judgment on her part. Her brief relationship with Mr. Gazley and the related short-lived arrangement with Mr. Sturgeon fall into the latter category.
84Even though at no time were any of the residences found by any CAS to be unfit or inadequate, the numerous moves would have been disruptive for the children. This was a concern for Mr. Beaudoin, and one that I share. Had this matter come before me for determination in the latter half of 2012, lack of residential stability would have played a bigger role as a consideration. However, Ms. Lavallee has had a stable residence and employment since the end of January of this year, and the children’s current needs have to be considered. A change of residence to Mr. Beaudoin now would necessitate another move. While the children know and are familiar with his home, and while it looks like Noah will require a change of school in any event, a move now will require a change of schools for Owen and a change in community for both children.
85Further in this regard, the parties agreed with the statement by Aston J. in V.E.L. v. L.E.L., 1996 11513 (ON SC), [1996] O.J. no. 1284 (S.C.J.), para. 54, that “Stability for the children is a matter of relationships and routines, not geography or address.” Other factors provided stability for the children in the face of the multiple moves. As noted they have strong relationships with both parents and the moves did not interfere in any significant way with Mr. Beaudoin’s access. Missed visits are often made up, and both parties, surprisingly, have been pretty good at accommodating the other’s needed schedule changes. There is no evidence of a major disruption in routines other than Noah’s one change of school.
d) Parenting Ability and Conduct
86The ability and willingness of each party to act as a parent and provide the children with guidance, education, and the necessities of life, was examined at length in this trial.
87Mr. Beaudoin has suggested a lack of medical attention by Ms. Lavallee for the children, although the limited indirect evidence from the children’s doctor did not support this. Other than some references by doctors and the school noting that at times Noah appeared tired, in every CAS interaction with the children – and there were many of them – they were always reported to be healthy. The allegation that the children’s being hungry at school was neglect was not proven. Ms. Lavallee has been active with the school as has Mr. Beaudoin, and there was no evidence that the children’s education is not being supported.
88Mr. Beaudoin pointed to Noah’s dental issues as evidence of neglect. However, other than the time Noah lost his toothbrush and had to brush his teeth with his fingers, which I note in itself suggests that the child was familiar with oral hygiene routines, there was no evidence that the children’s teeth were not being brushed regularly. Children can get multiple cavities even with the best brushing routine, and other factors could be in play. There was no evidence about his breath, gums, or any other concern. Without expert testimony from the dentist, I do not find that Noah’s teeth difficulties were related to a failure by Ms. Lavallee to attend to his oral hygiene.
89Mr. Beaudoin’s position was also that Ms. Lavallee’s failure to take the children to regular dental check-ups was neglect. If she had, he said, Noah’s difficulties could have been caught earlier. Again, there was no evidence to support this, but I do accept that regular dental check-ups would have been beneficial for both children. Ms. Lavallee said that she did not pursue this because she could not afford it, and Mr. Beaudoin had failed to reimburse her in a timely manner in the past. It can be observed that generally she attempted to limit her contact with him. Technically the parties had joint custody, and regular dental care was a shared responsibility. As will be seen below, I find that the parents were equally responsible for the conflict between them, and this is one of many examples where it has impeded optimal parenting. However, I do find that Ms. Lavallee in particular could have done a better job of pursuing regular dental check-ups for the children. This is no longer a concern going forward, as Mr. Beaudoin has taken on the role within the current joint custody arrangement of being responsible for the children’s dental appointments.
90I find that both parties have shown an equal lack of ability to act as a parent and provide guidance in one key area, namely parental conflict. Their reckless allegations against each other to the police and child protection agencies are part of this. Mr. Beaudoin was highly critical of Ms. Lavallee’s involvement in the abuse allegations against him, suggesting that they were lies made up by her. She indicated that she just reported what she saw and what the children told her. Mr. Beaudoin suggested that these allegations alone required a change in the parenting schedule, as Ms. Lavallee was intentionally trying to interfere with his relationship with the children. Indeed, these allegations are highly concerning to me. However, Mr. Beaudoin was far from innocent. Immediately after the separation he repeatedly alleged that Ms. Lavallee had ongoing mental health and drug issues based on very dated and unproved information. In his own way he was making very serious and damaging allegations that could also interfere with Ms. Lavallee’s relationship with the children. Indeed, he initiated the pattern that both parties adopted of making serious unsubstantiated allegations through the police and child protection agencies after he threatened Ms. Lavallee that their conflict was going to get ugly.
91Mr. Beaudoin and Ms. Lavallee have actively exposed their children to risk of harm, something they both agreed not to do in their consent order. Their continued conflict is known to the children, and indeed both parents have deliberately drawn them into the conflict by disparaging the other in their presence, and attempting to influence them. The children have been interviewed by child protection workers and police numerous times. Parental conflict can be very damaging. There is already the heart wrenching email from the school’s Principal advising that Noah, only seven years old, has been so upset about the conflict that he was saying that he wanted to die. While damage has already been done, I am buoyed somewhat by the fact that since that email the conflict, as measured by reports made to child protection agencies, has abated.
4. Conclusions
92In considering all the above, I do not find that there is clear evidence supporting Mr. Beaudoin’s proposition that a major change to the established childcare regime would be in the children’s best interests. The overriding concern for me in this case is that these children need the conflict between their parents to end. There is nothing in the evidence to suggest that a change in residence will address that issue in any way.
93As to the appropriate custody arrangement, the current joint custody order requires consultation and communication. The evidence did not clearly establish when that stopped. Ms. Kapasky noted in her report:
… in terms of custody, it is the opinion of the writer that it is in Owen and Noah’s best interest to be jointly parented by their parents. The writer recognizes that both parents concern over communication is genuine. However, during this investigation, Jason and Lianne presented as understanding the importance of the other parent being in the children’s lives, and they were both able to express some, although limited, positives about the other’s parenting. To assist them with their conflict and learning how to jointly parent, it is the opinion of this writer that both Jason and Lianne should seek out and attend counseling to deal with issues that arise when parenting with someone you don’t get along with. Also, it is the opinion of the writer that Jason and Lianne should consider finding a parenting co-ordinator to assist them in making joint decisions when they are unable to reach an agreement.
94I note that the existing order already provides an excellent road-map for good parenting, and if it had been followed some of the damage to the children sustained to date could have been averted. For example paragraph 1(c) says “It is in the best interests of the children to think well of each parent and accordingly, neither party shall allow themselves or people in their family or friends to speak negatively about the other parent when the children are present or in the same home.”
95Ms. Lavallee says that co-parenting is not possible, that it simply won’t work. Upon reaching the point where she felt Mr. Beaudoin’s hostility could no longer be tolerated, she limited contact with him, the result being that Mr. Beaudoin has since then had limited participation in decision making. However good her reasons, Ms. Lavallee’s unilaterally taking the role of the sole custodial parent did not lessen the conflict, and there are no good examples of how it has benefitted the children. Indeed, it interfered with optimal parenting, the lack of regular dental appointments being an example. To simply give up on joint custody with such young children is not the answer. There is no evidence that the parties have made an effort to implement the recommendations made by Ms. Kapasky, and as such I am not convinced that they will not work. As noted there has been some civil communication and cooperation between the parents in the past. In considering all the above, I do not find that there is clear evidence supporting Ms. Lavallee’s proposition that a change of custody is in the children’s best interests.
96In my view Ms. Kapsaky’s recommendations need to be given a reasonable try for the sake of the children. They need to be turned into a court order with consequences if they are not followed. However, I was not presented with any law or argument as to whether I have the authority to make such an order. Section 28(1) of the C.L.R.A. indicates that “The court … (c) may make such additional order as the court considers necessary and proper in the circumstances…” In each of Paton v. Shymkiw (1996), 1996 17988 (MB QB), 26 R.F.L. (4th) 22 (Man. Q.B.) and Johnstone v. Locke (2012), 17 R.F.L. (7th) 131 (Ont. S.C.J.), a parent was found in contempt of a court order for access. Generally, upon such a finding the court may order the person to do anything “the court decides is appropriate”: see Family Law Rule 31(5). In Paton an order was made to attend a parenting course, and in Johnstone an order was made to attend counseling. In Kramer v. Kramer (2003), 2003 64318 (ON SC), 37 R.F.L. (5th) 381 (Ont.S.C.J.), also a custody/access case but not a contempt case, the court was of the view that it had the authority to order the same kind of counseling as is being contemplated here, but on the facts it declined to do so. I find that counseling as suggested by Ms. Kapasky is very necessary and proper in the circumstances of this case, and that I have the authority to make such an order.
97In conclusion, and I want to repeat myself here and stress this very clearly, Mr. Beaudoin and Ms. Lavallee’s continued conflict is harming their children. If it does not end, these children will suffer more damage and the parents will share equally in the blame. On the facts before me, reversing the access schedules or granting one parent sole custody will not address this core problem.
Decision
98The order of Quigley J. is varied to the extent of the following provisions, but otherwise confirmed in its entirety. Specifically, the claims to change the joint custody and to change the principal residence are dismissed.
99The present parenting schedule of access to Mr. Beaudoin including every other weekend and one evening during the week is confirmed. I also order the following, noting that many of the paragraphs reflect Ms. Kapasky’s recommendations and some have already been implemented:
(a) Mr. Beaudoin’s weekend access shall be extended by one day if the children are not required to attend school on the Friday before or the Monday after the weekend.
(b) The parties shall each have two two-week access periods with the children each summer. The access shall rotate beginning with the first Friday of each July. Mr. Beaudoin shall have the choice of either the first and third or second and fourth access periods each year and he shall inform Ms. Lavallee of his choice in writing by May 1 of each year.
(c) Christmas access shall be split on a fifty/fifty basis with one parent having the children from Christmas Eve at 3:00 to Christmas Day at 2:00 and the other parent having the children from Christmas Day at 2:00 to Boxing Day at 7:00. The schedule shall rotate yearly so that each parent shall have Christmas Eve every other year. The remaining of the Christmas and New Year’s holiday period shall be split on a fifty/fifty basis.
(d) Regardless of the weekend access schedule, the children shall spend at least five hours on Father’s Day with Mr. Beaudoin and at least five hours on Mother’s Day with Ms. Lavallee.
(e) The provisions in the order requiring telephone access, specifically the first sentence of paragraph 1(c) and paragraph 7, are rescinded. At this point in time there is too much opportunity for misunderstanding. Upon either child having his own cell-phone he shall have the right to telephone, e-mail, or text the parent with whom he is not staying with no restrictions.
(f) The provisions in the current order that neither parent shall speak disparagingly about the other in front of the children, specifically paragraphs 1(c) and (d), are affirmed and shall require strict compliance.
(g) Both parties shall immediately seek out and attend counseling, either each individually or preferably together, to assist them in co-parenting. If she is willing, Sandra Kapasky can be contacted for assistance in advising which counselor and counseling would be most beneficial. The parties shall provide her with a copy of this decision. Failure by either party to cooperate in this regard shall be deemed to be a material change in circumstances affecting the best interests of the children.
(h) If the parties are unable to make joint decisions regarding the children pursuant to Quigley J.’s order following counseling, they shall consider seeking out the services of a parenting coordinator as was recommended by Ms. Kapasky, or of a mediator following the procedure already set out in the existing order.
(i) Any costs incurred in (g) and (h) above shall be paid jointly by the parties as if it were a s.7 extraordinary expense pursuant to the Child Support Guidelines.
100I note that Ms. Kapasky recommended that access exchanges take place at the children’s school, and at Ms. Lavallee’s home when they are not in school. Ms. Lanswood Howe of the Cornwall CAS then had to implement a “definitive access plan” in September of 2012 because of conflict, with exchanges taking place at the Morrisburg police station. Since then the children have moved to Brockville, and Morrisburg is well out of the way for both parents. I was not asked in closing submissions to specifically address access exchanges, and as such expect that the current arrangement, whatever it is, is working and will continue.
101As noted the parties only made brief reference to child support in their opening submissions. Without a change in the principal residence Mr. Beaudoin has no entitlement. Ms. Lavallee simply indicated that she was seeking retroactive child support based on Mr. Beaudoin’s actual income. Without formal pleadings it is not clear whether this request is pursuant to the formula in the current order or otherwise. Notices of Assessment have been provided, Mr. Beaudoin has straight-forward employment income, and Quigley J.’s order states that there shall be retroactive adjustments. I see no reason why the parties cannot easily calculate adjustments and arrears to resolve this matter between them. If they cannot, a formal motion is required.
Costs
102The result here is mixed as each party’s claim was substantially dismissed. Further, neither party has behaved reasonably in relation to the issues from the time that they arose. I am therefore not inclined to make an order for costs. Having said that, I appreciate that there may be other considerations that could impact on my decision, such as offers to settle. With those comments in mind, if either party still wishes to address me on costs a date can be set.
Mr. Justice Timothy Minnema
Date: August 21, 2013
COURT FILE NO.: FC-11-983
DATE: 2013/08/21
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
Lianne Lavallee
Applicant
– and –
Jason Beaudoin
Respondent
REASONS FOR JUDGMENT
Mr. Justice Timothy Minnema
Released: August 21, 2013```