SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: FC-13-221 (Ottawa)

DATE: 2014/06/27

RE: Mackenzie Diane Mead, Applicant

AND:

David Robert Lojk, Respondent

BEFORE: Justice Ronald M. Laliberte Jr.

COUNSEL:

Meagan LePage, Counsel for the Applicant

Gil Rumstein, Counsel for the Respondent

HEARD: June 24, 2014

ENDORSEMENT

[1] This motion revolves around the young child, Maxwell Mead, born November 21^st, 2012. The Respondent father seeks a judgment in accordance with Minutes of Settlement signed by the parties on June 24^th, 2013 which provided for unsupervised weekend access. The Applicant mother’s position is that access to Maxwell should be supervised for the following reasons:

− She alleges that the Respondent has a long standing drug issue and admitted to her after the Minutes were signed that he was again involved with drugs both as consumer and dealer;

− She believed that he was residing with his parents when he in fact had moved out and was refusing to provide his address;

− The Respondent hasn’t seen the child since August 2013 and has shown little interest.

[2] The Respondent denies being involved with drugs and maintains that the Applicant is controlling and has looked for any available excuse to interfere with the access to the child. He alleges that she has mounted a campaign of increasingly serious allegations in a calculated attempt to frustrate access.

[3] The first issue for the Court is whether the said Minutes should be enforced by the Court through the granting of an order. The Respondent’s position is that this is to be decided on the basis of a “material change in circumstances” analysis with the onus resting on the Applicant.

[4] Litigants in a domestic dispute are encouraged to resolve their differences through fairly negotiated agreements. There are sound policy reasons for this. Courts should foster respect for such agreements. However, the Court’s view is that the “material change in circumstances” analysis is not the appropriate legal framework in cases of an agreement on issues of child custody and access not incorporated in a Court order. The Court’s view is that the existence of the agreement is one factor to be considered by the Court in deciding what is in the child’s best interests. Each party has an evidentiary burden and the existence of the agreement will weigh in favour of the parent relying on the terms of the agreement. It should be seen as reflecting the parties’ views concerning the best interests of the child at the time of the agreement.

[5] Support for this view is found in the Ontario Court of Appeal’s decision in Ligate v. Richardson 1997 650 (ON CA), [1997] O.J. No. 2519 at paragraph 59:

“…Rather, the terms of the agreement are to be considered as a factor, along with all of the other facts and circumstances, old as well as new, in the determination of the child’s best interests.”

[6] In the end, the terms set out in the Minutes of Settlement will be enforced by the Court if they are found to be in Maxwell’s best interests based on his present needs and circumstances as set out in section 24 of the Children’s Law Reform Act.

[7] In deciding this matter on a temporary basis, the Court must rely on contradictory and interested affidavit evidence. As always, this is a difficult task.

[8] The Court has considered the following:

− Maxwell is a very young child and stability is a primary concern;

− Without casting any blame on either parent, the reality is that the child has had no contacts with the Respondent since August 2013;

− The existence of the agreement of June 24^th, 2013, weighs in favour of the Respondent’s position;

− While the Court cannot come to a determination on the issue of the use and sale of drugs raised by the Applicant, on balance, the Court is left with concerns for the child’s safety and wellbeing;

− The Applicant’s concerns on the child’s care while with the Respondent finds support in Dr. J.M. Burke’s letter confirming that following his stay with the Respondent, the child had “a significant diaper dermatitis with some yeast infection superimposed…”;

− There is no obligation on the Respondent to participate in any drug tests and/or provide photographs of his residence as requested by the Applicant to address safety concerns for the child but refusal to do so allows for the drawing of negative inferences against the Respondent;

− The fact that the Applicant has historically been supportive of access between the child and the Respondent is supportive of her position that there was a change in the circumstances which prompted her to reject the terms she had agreed on; it is reasonable to believe that the move from the Respondent’s parents and the drug issue would explain this change in her position.

[9] Having considered all of the circumstances, the Court is of the view that the terms of the Minutes of Settlement dated June 24^th, 2013, are not, presently, in the child’s best interests. The following temporary order is seen as being in the child’s best interests:

1. The Applicant shall have custody of the child, Maxwell Theodore Francis Mead, born November 21^st, 2012;

2. The Respondent shall have the following access to the child:

i) Access shall be supervised by the child’s paternal grandparents or maternal grandparents;

ii) The access shall take place at either the paternal or maternal grandparents’ residence;

iii) The access shall be every second Saturday and Sunday from 10:00 a.m. to 3:00 p.m. and on each Wednesday evening from 6:00 to 7:00 p.m.;

iv) It is the Applicant’s responsibility to bring the child to the place where access is to occur;

v) There shall be no direct communication between the parties other than through email or text messages for the purpose of setting up the access; both parties will respond to the other within a reasonable timeframe;

vi) The Respondent is not to consume any non-prescribed drugs 24 hours prior to any access to the child nor shall he be under the influence of any intoxicants.

3. The Respondent is not ordered to undergo a six-month hair follicle but is advised that his refusal to do so is of concern to the Court and may result in the drawing of a negative inference on the issue of the child’s best interests;

4. The Respondent shall forthwith provide his 2012 Notice of Assessment to the Applicant.

5. The Court is making an Order requesting the involvement of the Children’s Lawyer under section 89 of the Courts of Justice Act and for an investigation/ report as provided for under section 112 of the Courts of Justice Act.

6. The parties are asked to resolve the issue of costs and if unable to do so, brief written submissions can be filed with the Court on or before July 25^th, 2014.

Justice Ronald M. Laliberte Jr.

Date: June 27, 2014