COURT FILE NO.: D12760/09/-01
DATE: 2014/10/01
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Erica Lynne Marleau
Applicant
- and -
Stephane Guy Marleau
Respondent
COUNSEL: Robert Charko, for the Applicant Birkin J. Culp, for the Respondent
HEARD: September 26, 2014
BEFORE: The Hon. Mr. Justice R. J. Harper
Issues:
[1] This matter first came before me as an urgent motion on September 5, 2014. The father Stephane Guy Marleau (Stephane), sought an order preventing his daughters from moving with their mother to the Ottawa area. The mother responded by seeking an order rescinding the order I made on September 5, 2014. The following are the issues:
a) Whether the children Emily Marleau, born, May 1, 2003 (11) and Julia Marleau, born March 1, 2005 (9) are able to move to the Ottawa area with their mother Erica Lynne Marleau (Erica).
b) Whether I should rescind my order of September 5, 2014 requesting the OCL to do an update investigation pursuant to the Courts of Justice Act s 112 and prohibit the children from moving to the Ottawa area pending a full hearing of this matter;
c) If the children are allowed to move, what access should be granted to the father, Stephane Guy Marleau (Stephane)
[2] Background
[3] Erica and Stephane were married on April 17, 1999. They had three children including the Emily and Julia referred to above and they have Nicholas Marleau, born October 31, 1999. (15 in October).
[4] Erica and Stephane separated in 2008. After separation, Erica lived in the former matrimonial home with the 3 children until October of 2009.
[5] Order of January 20, 2010
[6] The first court order made on consent of the parties was an order of Justice Arrell dated January, 20 2010. In essence, the parties had joint custody of the three children with specific terms of access wherein the father had the children alternating weekends and two evenings per week in addition to holidays times that were detailed in the Order. There was also a term in the order that required that the Applicant consult with the Respondent with respect to all major decisions that need to be made concerning the children including education, health and welfare of the children. If after discussion the parties could not agree, the Applicant mother was to make the final decision.
[7] The Order also provided that the Respondent father was entitled to receive information from third party caregivers such as school, doctors, dentists, counsellors, day care providers. The mother was to sign releases in order for this to occur.
[8] Para 9 of that Order provide that neither party was to remove the children from the Province of Ontario without first obtaining the prior written consent of the other and that consent could not be unreasonably withheld.
[9] Para 10 provided that the mother shall not move the children’s residence more than 50 kms from the City of Brantford without written consent of the father or a Court Order. Each of the mother and the father were to provide 30 days’ notice of any change of residence that was less than 50 kms from the City of Brantford.
[10] Temporary Order of August 3, 2012
[11] The matter came back to court and a report of the Office of the Children’s lawyer was ordered and underway in 2012. A temporary order was granted by Justice Arrell on August 3, 2012 that varied the order of January 20, 2010, by providing that the child Nicholas was to primarily reside with the father pending the receipt of the OCL report. That is the only clause that was varied with respect to the January 20, 2010 order. It is curious that the temporary order stated, in para 1, that the order was “on Consent” pending the report of the OCL and that it was “totally with prejudice”.
[12] Draft Order of July 3, 2013
[13] When this matter came before me on September 5, 2014, I was not advised that there was a further order entered into on a final basis that was never taken out at the time I completed my endorsement on the urgent motion before me. My endorsement provided that the children not be removed from their present residence and school pending further determination of this matter. I also endorsed that the OCL conduct an update of their report dated November 12, 2012. I endorsed that if the mother chose to move then custody of all three children was to transfer to the father. I then adjourned to a long motion to be heard 3 weeks from September 5. This is that long motion.
[14] On this motion, counsel for the mother, Mr Charko provided the court with the approved draft of the Order of July 3, 2013 that was never taken out. In addition, the father was allowed to file an updated affidavit on consent and the mother was allowed to file a medical report relating to the child Emily. This was also filed on consent.
[15] The draft order of July 3, 2013 was noted to be a final order. It reads as follows:
The Respondent to have custody of Nicholas Marleau D.O.B. October 31, 1999.
THIS COURT FURTHER ORDERS THAT the Applicant to have custody of Emily Marleau D.O.B. May 1, 2003 and Julia Marleau D. O. B. March 22, 2005.
THIS COURT FURTHER ORDERS THAT the Applicant’s access to Nicholas shall be at the discretion of the child Nicholas, hopefully at least one day per month, commencing September 2013.
THIS COURT FURTHER ORDERS THAT the Respondent shall actively encourage contact between Nicholas and the Applicant.
THIS COURT FURTHER ORDERS THAT the Respondent’s access to Emily and Julia shall be on alternating weekends, commencing September 6, 2013 extending to Monday if Monday is a PA Day with exchanges occurring at 6:00 pm on Fridays and returns at Sunday (or Monday) at 7:00 pm with the exchanges occurring at the Hamilton Police Station.
THIS COURT FURTHER ORDERS THAT the holiday and summer vacation schedules previously ordered shall continue and be final.
THIS COURT FURTHER ORDERS THAT each party shall receive independent access to medical reports, school reports and any other reports pertaining to the children.
THIS COURT FURTHER ORDERS THAT the parties shall communicate with one another through email or text. Both parties shall refrain from speaking negatively about the other to or around the children.
THIS COURT FURTHER ORDERS THAT the matter otherwise be adjourned to a further Settlement Conference to be arranged through the Trial Coordinator.
[16] The endorsement of July 3, 2013 only makes the following reference:
“the only issues remaining are child support, retroactivity and Sec 7 expenses.” There is no reference in the endorsement to the order relating to the parenting.
[17] In my endorsement of September 19, 2014, I stated that the mother should have brought a motion to change the existing order of Justice Arrell. At that time I was of the impression that the existing order was the 2010 order and not the 2013 draft order. I stated that the mother took matters into her own hands by not properly informing the father of any details of her pending move. She did not consult with him in any way. I further stated that the court was left in a position that it could not even consider all of the necessary factors that are required and are detailed in the Supreme Court of Canada case of Gordon v Goertz.(supra)
[18] In my above mentioned endorsement, I also made reference to the special needs of the children that were identified in the report of the OCL dated November 21, 2012. I pointed out that the court was not in a position to make any assessment due to a lack of evidence as to how the needs of the children might be met given the move by the mother.
[19] The most significant special needs that were identified by the OCL report of November 21, 2012 relating to the children are as follows:
[20] At p. 15/27:
“All three children have been exposed to a lifetime of adult conflict between their parents. Brantford Children’s Aid Society highlighted the issue of conflict between Ms. Marleau and Mr. Marleau on several occasions and reported having cautioned both parents about the emotional impact this conflict is having on the children. CPRI, Dr Manning and Child and Adolescent Services all raised the concern of there being significant parenting conflict between the two parties. CPRI going as far as to state “it is difficult to speculate on the origin of Emily’s emotional and behavioural difficulties given the level of conflict between Emily’s parents.” All three children show signs of emotional and social harm due to this ongoing conflict.
Ms. Marleau has chosen a partner, whose behaviour and presence appears to have caused a rupture in her relationship with her son to the point where he does not want to see her…. Emily and Julia have also voiced concerns regarding their mother’s relationship with Mr. Hengeveld and acknowledged there is a great deal of conflict between their mother and Mr. Hengeveld. Emily voiced her concerns to the workers at CPRI, and both children have voiced their concerns to the Children’s Aid Society and this investigator. Mr. Hengeveld has acknowledged a conviction for assault against his ex-wife. His probation officer James Erickson reported Mr. Hengeveld completed anger management with Dr. Harris, he was an active participant in the program and Mr Erickson stated there was a positive prognosis upon his completion.
[21] By the time of the writing of the OCL report, it appeared that things were calmer and more stable in the father’s residence. The children reported that his home is free of conflict and “everyone is happy there”. At the time of the OCL report Emily and Julia expressed that they wanted to remain with their mother. The mother had committed to pursuing counseling for herself and for her relationship with Mr. Hengeveld. The OCL stated at p. 16/27 in the last paragraph that “these recommendations are made with caution, as Ms. Marleau be unable to reduce the level of conflict in her home, a change in residence may be necessary for the girls social and emotional well-being. The responsibility to follow through with the necessary services lies with Ms. Marleau.”
[22] At p. 8/27 the OCL report states: Emily was born with a constitutional growth delay and suffers from anxiety. She has been receiving counselling and is on medication she takes Prozac 20 mg a day. Ms. Marleau described Emily as challenging she can be defiant, and has a “my way or the highway attitude”. She is more open at home and is timid at school. She is moody and has sad moments. She can be feisty at times and has a strong personality”
[23] The child Emily had a psychological assessment on June 24, 2012. She was referred to CPRI for “explosive disorder”. She receives counselling and treatment through CPRI. Emily is noted to have an Individual Education Program. She is in grade 8 in a Hamilton Ontario school. Emily takes Melatonin to assist with sleeping. In the recent report of Clare Mitchell (developmental Pediatrician) with CPRI dated September 24, 2014, Dr Mitchell notes that Emily is an 11 year old girl with a complex combination of Attention Deficit Hyperactivity Disorder and Obsessive Compulsive Disorder. Over the past couple of years since living regularly with her mother, Emily has done very well. This is in contrast to the initial assessment which was completed in 2010 when Emily had severe difficulties with disruptive behavior, explosive behavior, toileting concerns, anxiety and sexualized behavior.
[24] Dr. Mitchell stated:
the following was discussed and recommended:
- no change in medication was made today.
it is important that the Individual Education Plan as well as reports outlining the reason for this be clearly communicated with Emily’s new school and this is well underway.
given Emily’s success over the past couple of years, it is extremely important that she continue to have regular medical follow-up and review of her medications, as well as regular medication administration and most importantly, a stable, structured and nurturing environment. I am happy that this has been occurring over the recent past while Emily has been living with her mother. In fact, since Emily has been living primarily with her mother there has seen a dramatic improvement in comparison to my assessment of Emily prior to these arrangements.
[25] The father filed on consent, an updated affidavit sworn September 24, 2014. I asked Mr Charko, who had not been representing the mother previously whether he wanted an adjournment in order to deal with new issues or to in any other way prepare for submissions. He stated that he did not need an adjournment and wanted the matter to proceed. In the affidavit of the father dated September 24, 2014, the father makes reference to the mother admitting that she has been diagnosed with chronic immune deficiency syndrome and that she does not provide any details of this disorder. The court has no evidence as to the impact this may have on her functioning and the nature of any treatment the mother is undergoing. The father attached an exhibit of a letter that he states was a letter from the mother to her son Nicholas.
[26] The letter states, in part.:
The reason I really have needed to talk to you is because I have news. I am quite ill. I haven’t been able to work for a while. I have spent most of my days in bed asleep as of late. I have been to the doctors and had varies tests done where they found out that I have an autoimmune disease. This isn’t a disease you can catch or spread from one person to another. So don’t worry about the girls health or yours regarding my disease. The doctors think I have lupus. I have been referred to the lupus clinic in Toronto at the Toronto western hospital to see the top Canada rheumatologist.
What I feel like always tired, my heart is doing weird beats and thumps, my ears hurt, I can’t walk straight and look like I walk drunk, my tops of my feet really hurt, my hips are sore, I have a sore throat all the time, my hands hurt, fingers swell up and split into sores, my memory has declined…and the list goes on….
What does all this mean? I am sick with a disease with no cure to get better. I have hope to find treatment to hopefully make this lupus go into remission (means dormant) and hopefully not have too many flares (when lupus acts up). I am already on a bunch of pills at home however I will be starting more. Immunosupressants are pills that calm down your immune system. These pills help with lupus to prevent the killing of good cells. There is a bad thing to these drugs though. It not only suppresses the fight for good cells, it also suppresses the fight for bad cells. This means when I am taking the drugs I can catch every little bug there is and be sick with it for a long time. …
What will the years to come be like? Many dr. appointments and hopefully more days in remission than in flare. I cannot work anymore. I sleep all night and most of the days. If I leave the lupus untreated it will continue to kill my organs. I will go deaf soon and die. With treatment they say I could live more than 10 years. Ten years isn’t long enough though for me so I’m gonna try and fight as best I can…
The Law and Analysis
[27] The Law and Analysis
[28] The leading case on the issue of relocation is the Supreme Court of Canada decision in Gordon and Goertz [1996] 2 R.S.C. 27. The court made it clear that the person applying for a change in the custody or access order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child. For that threshold to be met, the judge must be satisfied of (1) a change in the condition, means, needs or circumstances of the child or in the ability of the parents to meet the needs of the child, (2) which material affects the child and (3) which was either not foreseen or could not have been reasonable contemplated by the judge who made the initial order.
[29] The McLachlin J. stated at para 19:
in order to determine the child best interests, the judge must consider how the change impacts on all aspects of the child’s life. To put it another way, the material change places the original order in question; all factors relevant to that order fall to consideration in light of the new circumstances.
[30] If the threshold is met, the judge on the application must embark on a fresh inquiry into the best interest of the child, having regard to all the relevant circumstances relating to the child’s needs and ability of the respective parents to satisfy them. The focus of the inquiry is not the interests and rights of the parents. The inquiry cannot be confined to the change circumstances alone, isolated for the other factors bearing on the child’s best interests. It is most significant that the Supreme Court of Canada stated that the inquiry does not begin with a legal presumption in favor of the custodial parent, although the custodial parent’s views are entitled to great respect. Once the threshold of material change has been met both parents bear the evidentiary burden of demonstrating where the best interests of the child lie. In considering the best interests the court must consider, among other things:
(a) the existence of custody arrangements and relationship between the child and custodial parent;
(b) the existing access arrangements and the relationship between the child and the access parent;
(c) the desirability of maximum contact between the child and both parents;
(d) the views of the child;
(e) the custodial parent’s reason for moving, only in the exceptional case where it is relevant to the parents ability to meet the needs of the child;
(f) disruption to the child of a change in custody; and
(g) disruption to the child consequent on removal from family, school, and the community he or she has come to know.
[31] In this case, I find that there are numerous material changes in the circumstances since the latest custody order of July 3, 2013. I find that the mother did not give any specifics about any impending move to the Ottawa area. The father may have been advised that the mother’s common law husband may have a job transfer to that area, however no specifics of any move were ever given. In fact important details that relate to the best interests of the children are still not before the court.
[32] The change in circumstances in this matter far exceed the issue of parental contact. I must look to the circumstance that existed at the time that the order was made in order to determine if a material change has occurred that impacts on the custody order in a significant way.
[33] At the time of the order of July 3, 2013:
a) There was the remaining concern expressed by the OCL report that parental conflict was causing emotional distress within the children and impacted on what the children were going though
b) The child Emily was diagnosed with significant disorders that included ADHD, oppositional disorder, explosive disorder, anxiety.
c) She had been treated by CPRI in London Ontario.
d) She had been attending a school in Hamilton, Ontario that had set up an Independent Educational Program for her.
e) One of the most important things identified by her treating pediatrician, Dr. Mitchell was that she receive a structured, stable, and nurturing environment. She is also required to continue on her medication.
f) The mothers illness as referred to above is a significant issue on her ability to function on a day to day basis and this must be addressed by way of medical disclosure.
[34] I find that the above events and issues create a change in the circumstance that require a full analysis as to what is in the best interests of the child and a consideration of all of the factors set out in Gordon v. Goertz. (supra)
[35] The state of the evidence at this point is sadly lacking and must be updated. I have no evidence of the accommodations and neighborhood the mother proposes to move to. I have no evidence of the types of programs that can be offered in the proposed new neighborhood, school and resources that will meet the needs of the child. I have insufficient evidence of the type of counseling both individual and couple counseling that the mother and her common law husband have undergone. I confirm my order that the OCL do an update of their S 112 investigation.
[36] The mother is to produce medical reports records and clinical notes to the father within 30 days relating to her diagnosis relating to any autoimmune disorder. This includes any diagnosis, prognosis and treatment plan.
[37] The children’s residence shall not be changed and if the mother chooses to move to the Ottawa area with her common law husband, the father shall have immediate custody of all three children.
[38] This matter is adjourned to the trial coordinator to set up a case conference in the month of November 2014.
[39] Any party wishing to make submissions with respect to costs may provide a brief 3 page written outline no later than 30 days from this endorsement.
HARPER, J.
Released: October 1, 2014
COURT FILE NO.: D12760/09/-01
DATE: 2014/10/01
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Erica Lynne Marleau
Applicant
- and –
Stephane Guy Marleau
Respondent
REASONS FOR JUDGMENT
HARPER, J.
Released: October 1, 2014