MacDonell v. MacDonell, 2015 ONSC 1205
COURT FILE NO.: 10-1401
DATE: 2015/02/25
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Chad Andrew MacDonell
Applicant
– and –
Jennifer MacDonell
Respondent
A. Lawrence Filion, counsel for the Applicant
Self-represented
HEARD: February 20, 2015
RULING
laliberte, j.
[1] The Court is asked to rule on a number of issues raised by the parties in separate motions. The essence of this litigation revolves around the Respondent mother’s access to the two children, namely, Mickaela MacDonell, born June 22, 2007 and Tristan MacDonell, born April 22, 2006.
[2] The Respondent mother is seeking the following temporary relief:
− As a transitional period, three visits with the children for eight hours to be supervised by her parents;
− To be followed by unsupervised weekend visits from Friday to Sunday, every second weekend;
− Christmas, March break and summer holidays access;
− Unsupervised telephone access.
[3] The Applicant father is requesting the following orders:
− Disclosure of the letter and/or document provided by the Respondent in support of her claim for disability benefits to the Canada Pension Plan;
− Disclosure of all documents, relating to the Respondent’s mental health counselling since May 24, 2012;
− An order under section 112 of the Courts of Justice Act for an investigation and report of Children’s Lawyer;
− Terms relating to access: supervised, frequency, duration, Respondent’s common-law spouse Richard Dunn not to attend;
− Completion by the Respondent of paragraph 10 of Form 35.1 found at tab 16 of the continuing record, volume 1.
[4] By way of brief background, the evidence discloses that the parties were married on September 23, 2006 and ultimately separated in January 2010. The two children of the marriage have been primarily under the care of the Applicant father since the separation. The children have been exposed to significant conflict between the parents. The Children’s Aid Society has been involved.
[5] The Respondent mother does not dispute that she has historically struggled with addictions and mental health issues. These have significantly impacted on her relationship with the children.
[6] On December 20, 2011, Clinical investigator, Carmela Savoia, issued her report on behalf of the Children’s Lawyer. The salient points are as follows:
That the Applicant father have sole custody of the children, with them residing in his primary care;
That the Respondent mother be involved in and maintain intensive addictions and mental health counselling in order to maintain sobriety and develop strategies for greater effectiveness in her relationships;
Clearly, the clinical investigator’s intent was to set out a process which would lead to open and liberal access to the children; the nature and quality of the Respondent’s access was to evolve in accordance with her progress in addressing the underpinning issues; the measures leading to open and liberal access were identified as follows:
i. Counselling;
ii. The demonstration of successful sobriety over a minimum period of 6 months;
iii. The demonstration of sustained emotional health and sobriety.
[7] In accordance with Minutes of Settlement filed by the parties and in keeping with the clinical investigator’s recommendations, Justice Johnston issued the following final order on May 24, 2012:
The applicant, Chad Andrew MacDonell will have sole custody of the children Tristan MacDonell, born April 22, 2006, and Mickaela MacDonell, born June 22, 2007 (“the children”);
The respondent, Jennifer MacDonell will have access to the children for a period or periods not exceeding four hours per week. Access will be supervised by one of the respondent’s parents David Lalonde and Nicole Lalonde. Access will not begin until the respondent, Jennifer MacDonell provides the written consent of David Lalonde and/or Nicole Lalonde to act as supervisors and access will terminate if David Lalonde and/or Nicole Lalonde terminate that consent. There will be a review of access, at the initiative of the respondent, Jennifer Lalonde, following her completion of the addiction counselling and treatment program she is scheduled to participate in.
[8] On September 6, 2012, Justice Pelletier varied the May 24, 2012 order, again, based on Minutes of Settlement filed by the parties. Paragraph 5 provides the following:
“5. The order of The Honourable Justice J. Johnston dated May 24, 2012 is varied to provide that in addition to the access provided therein the respondent will have telephone access to Tristan and Mickaela. Such access shall be for a period not exceeding 15 minutes at 7:30 p.m. on Monday and Thursday of each week commencing immediately. The respondent shall initiate the call. The call will be supervised by either the applicant or Tara Smith. If Tristan or Mickaela are unavailable to speak to the respondent on Monday or Thursday telephone access will take place the following day.”
[9] The evidence before the Court is that access began in the fall of 2012. These visits were orchestrated in terms of the travelling and supervision by the Respondent’s parents. They were stopped in September 2013. The indication is that she had resumed drinking. The telephone access was also terminated. The Court notes that the Respondent did not initiate the review of access provided for in Justice Johnston’s order, once she had completed addiction counselling.
[10] The end result is that the Respondent has not exercised access to the children since September 2013.
[11] On September 17, 2014, the Respondent filed a Motion to Change seeking a variation of the above-noted final orders. She is claiming liberal access, namely every second weekend from Friday to Sunday, coupled with summer, Christmas and March break access.
[12] It is in the context of this Motion to Change that these motions for temporary relief were brought by both parties. Ultimately, the Court will later have to decide whether there are material changes in circumstances warranting a variation of the final orders. However, at this point in time, the Court’s task is to rule on the issues raised in these motions.
[13] In support of her position, the Respondent has filed an affidavit sworn on February 10, 2015 wherein she provides the following evidence:
− She had alcohol abuse problems;
− The children were pulled away from her and was denied access;
− She attended Tennant House, an addiction centre, from September 2012 to May 2013;
− After leaving the addiction centre, she has attended Tricounty, attended A.A. meetings regularly and worked with her sponsor;
− She has provided hair follicle test confirming sobriety for a period of approximately 90 days prior to the collection date of January 8, 2015.
[14] Attached to her said Affidavit are:
− The alcohol screen report;
− Letter dated October 24, 2014 from Tennant House confirming when the Respondent had visits from her children during her stay;
− Discharge summary from Tennant House;
− Letter dated November 15, 2014 from the Respondent’s A.A. sponsor.
[15] The Applicant’s position as articulated in his affidavit of February 18, 2015 on the issue of temporary access is as follows:
− He agrees that access should be resumed in light of the hair follicle test;
− Access to be from 1:00 p.m. to 5:00 p.m. on Saturdays of each week starting February 28, 2015;
− Once Tristan’s hockey schedule ends, access is to be every second Saturday or Sunday for a period of eight hours;
− Access to be supervised by the Respondent’s parents;
− The Respondent’s common-law spouse, Richard Dunn, is not to participate in the access by reason of a threatening phone call directed at the Applicant;
− The question of access would be reviewed after three months.
[16] At the hearing of these Motions, the Respondent mother advised the Court that her parents were only available to supervise access every second weekend and were not available after April next.
[17] Having considered all of the circumstances in this matter, the Court comes to the following conclusions on the issues raised by the parties:
A. Temporary access to the children
[18] The Respondent’s temporary access to the children will be structured as follows:
− The visits shall be supervised by the Respondent’s parents who shall sign a written consent to be prepared by the Applicant’s counsel who will in turn file same with the Court;
− The visits will be for periods of six (6) hours from 1:00 p.m. to 7:00 p.m.;
− Depending on Tristan’s hockey schedule, the visits will take place on either Saturday or Sunday of every second weekend starting Saturday February 28, 2015; the Respondent shall be provided with the child’s hockey schedule on or before February 27, 2015;
− The Respondent’s common-law spouse, Richard Dunn, shall not, at this point, attend for the visits;
− The Respondent will have telephone access to the children for a period not exceeding 15 minutes at 7:30 p.m. on Monday and Thursday of each week commencing immediately. The Respondent shall initiate the call. The calls shall be supervised by either the Applicant or Tara Smith. If the children are not available to speak to the Respondent on Monday or Thursday, telephone access will take place the following day;
− The parties are to attend for a case conference before Justice Laliberte the week of April 6, 2015; counsel is to communicate with the trial coordinator to set a date and time for such conference.
[19] In deciding the issue of temporary access, the Court’s ruling is based on the following considerations:
− The Court’s objective is to identify the temporary access arrangement which will best serve, at this juncture, the best interests of these two children;
− The unfortunate reality is that there has been no access since September 2013; while there is a need to rehabilitate this relationship, the Court must be mindful that these are young children who need stability and continuity;
− The evidence before the Court is that these children have been exposed to significant parental conflict; the Court must be cautious and manage the risk of exposure to more conflict;
− The Respondent is to be commended for the efforts she has invested in addressing a number of personal issues; however, the Court requires more information before it can, on balance, come to the conclusion that more liberal access is in the children’s best interests; as already indicated, the clinical investigator’s intent was to set out a process which would lead to open and liberal access; the measures were, as noted:
i) Counselling;
ii) The demonstration of successful sobriety over a minimum period of 6 months;
iii) The demonstration of sustained emotional health and sobriety.
The evidence before the Court does not, on balance, allow for a finding that the measures have been met by the Respondent; it may be that the evidence is available from the various mental health experts who are helping the Respondent but this has not, thus far, been provided to the Court.
B. Disclosure of mental health records
[20] The Respondent advised the Court that she was willing to provide the Applicant with a copy of the letter and/or document filed with the Canada Pension Plan in support of her claim for disability benefits. She will therefore be ordered to disclose same.
[21] She objects to the disclosure of all documents relating to her mental health counselling since May 24, 2012. While this material may be relevant, this request raises a number of significant issues which need to be properly articulated. Specifically, Rule 19(11) of the Family Law Rules requires consideration as to the notice to the non-party having control of these records and the question of privilege.
[22] The Court notes that while the Respondent objects to the disclosure of the content of these records, she is willing to provide letters from the various mental health and medical experts who have provided and who provide care to her.
C. Update Report of Children’s lawyer
[23] The Respondent’s objection to the Applicant’s request for an order seeking an updated report from the Children’s Lawyer is based on the delay which may result from such an investigation.
[24] The Court is of the view that while delay is a concern, on balance an updated report will assist the Court in determining what is in the children’s best interests. The Court will make an order under section 112 of the Courts of Justice Act seeking an update of the December 20, 2011 report.
D. Procedural issues
[25] The Respondent must provide the information regarding her common-law spouse as required at paragraph 10 of Form 35.1.
[26] On consent of the Respondent, she may be served by the Applicant by electronic means at her e-mail address.
Conclusion
[27] The Court makes the following temporary orders:
- Respondent’s temporary access to the children will be structured as follows:
− The visits shall be supervised by the Respondent’s parents who shall sign a written consent to be prepared by the Applicant’s counsel who will in turn file same with the Court;
− The visits will be for periods of six (6) hours from 1:00 p.m. to 7:00 p.m.;
− Depending on Tristan’s hockey schedule, the visits will take place on either Saturday or Sunday of every second weekend starting Saturday February 28, 2015; the Respondent shall be provided with the child’s hockey schedule on or before February 27, 2015;
− The Respondent’s common-law spouse, Richard Dunn, shall not, at this point, attend for the visits;
− The Respondent will have telephone access to the children for a period not exceeding 15 minutes at 7:30 p.m. on Monday and Thursday of each week commencing immediately. The Respondent shall initiate the call. The calls shall be supervised by either the Applicant or Tara Smith. If the children are not available to speak to the Respondent on Monday or Thursday, telephone access will take place the following day;
− The parties are to attend for a case conference before Justice Laliberte the week of April 6, 2015; counsel is to communicate with the trial coordinator to set a date and time for such conference.
On or before March 20, 2015, the Respondent shall provide the Applicant with a copy of the letter and/or document filed with the Canada Pension Plan in support of her claim for disability benefits;
On or before March 20, 2015, the Respondent shall provide the Applicant with letters from various mental health and medical experts who have provided and who provide care to her;
Pursuant to section 112 of the Courts of Justice Act, a request for an update to the December 20, 2011 report shall be directed to the Office of the Children’s Lawyer;
The Respondent shall provide the information required in paragraph 10 of Form 35.1. This is to be done on or before March 20, 2015;
The Respondent may be served electronically at her e-mail address;
The parties are asked to try and resolve the issue of costs for these Motions. If unable to agree, they should file brief written submissions with the Court on or before March 20, 2015.
Justice Ronald M. Laliberte Jr.
Released: February 25, 2015
CITATION: MacDonell v. MacDonell, 2015 ONSC 1205
COURT FILE NO.: 10-1401
DATE: 2015/02/25
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Chad Andrew MacDonell
Applicant
– and –
Jennifer MacDonell
Respondent
RULING
Justice Ronald M. Laliberte Jr.
Released: February 25, 2015