ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FC-09-2222-0002
DATE: 2015-10-16

BETWEEN:

Alexey Lavrinenko

Self-Represented

Applicant

• and -

Maria Lavrinenko

Norm Williams for the Respondent

Respondent

HEARD: August 6, 2015

The Honourable Mr. Justice R. J. Mazza

1This is a motion to change brought by the Respondent, Maria Lavrinenko, for an order that the current order of Justice McLaren dated June 2011 be changed granting Ms. Lavrinenko sole custody from the previous status quo of joint custody.

2Pursuant to Justice Pazaratz’s order the matter proceeded as a trial of an issue.

Examination-in-chief of Maria Lavrinenko

Examination-in-chief of Maria Lavrinenko

3Ms. Lavrinenko is 36 years of age and is the mother of Stephen, born April 24, 2006. After marrying Mr. Lavrinenko in Russia in 2002, the parties immigrated to Canada and separated in 2009.

4Both parties reside in Hamilton, and Stephen is currently attending Ridgemount School. He is in Grade 4.

5Pursuant to the order of Justice Pazaratz, a report was prepared by the Office of the Children’s Lawyer, hereinafter referred to as the “OCL”, and marked as Exhibit “I” to this proceeding.

6Ms. Lavrinenko testified that she wishes sole custody because communication between the parties has been difficult, and there have been some significant disagreements with respect to the child’s well-being.

7Given the child’s age, she requires custody in order to facilitate his attendance at school and to obtain documentation related to his school activities and marks. Moreover, she wishes to travel with the child and be able to apply for a passport, testifying that Mr. Lavrinenko has not been cooperative in that regard.

8She stated that since Stephen has ADHD he has had late attendance on Mondays, and she noticed he has not been receiving adequate sleep during weekend access with his father.

9Ms. Lavrinenko further testified that the child has a difficult time focusing at school, following direction, and listening to teachers. For these additional reasons she would like him returned Sunday at bedtime.

10Ms. Lavrinenko went on to testify that, in her opinion, sole custody is necessary and in the child’s best interests for several reasons. Regarding the child’s diagnosis in 2012 with ADHD, she testified that although Mr. Lavrinenko chose to obtain a second opinion by which the child again was diagnosed with ADHD; but he refused to accept that opinion as well.

11Although the child was prescribed medication in order to control his ADHD, the parties debated over that issue for a three-year period during which Mr. Lavrinenko refused to give the child medication until the order of Justice Chappel compelled him to do so.

12The futility of joint custody was further apparent in the mother’s attempt to transfer the child from Ridgemount to Annunciation of the Lord in order to accommodate the father’s access since the latter school was closer to the father’s home.

13However, due to Stephen’s unwillingness to transfer because he became emotional at the thought of leaving his friends and the comfort he felt at his original school, Ms. Lavrinenko cancelled the registration.

14Mr. Lavrinenko opposed the cancellation, and contrary to the child’s wishes attempted to register him at the new school. The child remained at the new school for one day, after which Ms. Lavrinenko returned him to Ridgemount.

15A further bone of contention for Ms. Lavrinenko was the parents’ differing opinion over the child’s religion. Ms. Lavrinenko testified that the child has been raised as a Christian since the age of 2, attends Peoples Church every other Sunday, and has gone to a Christian daycare school.

16Mr. Lavrinenko, on the other hand, does not want the child associated with any religion and is opposed to the child resuming his attendance at church.

17A conflict then arose over the appropriate treatment for Stephen’s vision. Although Ms. Lavrinenko had taken the child to an optometrist who gave the child a specific prescription, Mr. Lavrinenko refused to accept the diagnosis, took the child to his own optometrist, and was given a different prescription.

18As I understand it, the child now wears two separate sets of glasses, depending on which parent he is visiting with at the time.

19On cross-examination, Ms. Lavrinenko stated she is currently unemployed, lives in subsidized housing, and is receiving Ontario Works.

20She agreed that she did not comply with a term of the order that required the parties to attend mediation because, in her opinion, she felt that it would not work.

21She admitted that she did not consult Mr. Lavrinenko with respect to the child’s religion, his diagnosed ADHD, of her choice of optometrist, and the child’s school.

22Regarding her complaint that Mr. Lavrinenko keeps the child two extra days during his summer vacation weeks, she agreed that Mr. Lavrinenko took the position that the child should stay until Sunday because it was the weekend of his access in any event and therefore she did not offer any resistance.

23On the issue if child support, it is not disputed that Mr. Lavrinenko was successful in his application for one-half of the Child Benefits, but she is still receiving the full table amount of child support.

Testimony of Jelena Susnyar

Testimony of Jelena Susnyar

24Jelena Susnyar is a special ed teacher, who has been in the profession for 34 years. She has had the experience of dealing with the behavioural students, and testified that in 2013 Stephen was one of her grade 2 pupils.

25She found him to have a difficult time focusing; he was apprehensive at some times and calm at others. She noticed that he required redirection from time to time, and that sometimes his movements or behaviour were unpredictable.

26She has had a great deal of experience with ADHD students, and stated they require structure and routine.

27With respect to Stephen, she found him to be more productive when he was given tasks which appeared to increase his confidence, but nevertheless, because he had to be continuously rerouted, she found him to be slow in completing those tasks.

28On cross-examination, although it has not been her experience that children with ADHD behave differently in different environments, it has been her experience that external influences, such as influences provided by a caregiver, may have an impact on the child’s behaviour.

29She went on to say that the medication for students with ADHD can be “miraculous”, and can turn a distracted student into a learning student.

30Although she did not have the opportunity of observing Stephen in the presence of his father, she did observe him with his mother, and found her to be loving, caring, calm, and quiet around him.

Testimony of Elzbieta Rudziak-Rak

Testimony of Elzbieta Rudziak-Rak

31Ms. Rudziak-Rak lives in Hamilton, is separated, and has two daughters the ages of 10 and 13. She is a friend of the mother, and was a former neighbour when Ms. Lavrinenko lived at Towercrest Apartments. She had maintained this close relationship with Ms. Lavrinenko, stating that her children play with Stephen and that she frequents Ms. Lavrinenko’s residence two or three times a week, and has socialized with Ms. Lavrinenko and Stephen quite frequently during the summer.

32She described Ms. Lavrinenko as her best friend, and although she has never met Mr. Lavrinenko personally, she has observed him pick up Stephen during access.

33Other than his frequent tardiness for access, she made no unusual observations. However, regarding late access, she stated that she has been at Ms. Lavrinenko’s home when Mr. Lavrinenko has arrived to pick up Stephen for access either at school or at the home, and when he was unable to do so Ms. Lavrinenko would then have to pick Stephen up at the school and return him home.

34As well, Mr. Lavrinenko has changed plans at the last minute, or plans have had to be cancelled because of his work commitments.

Testimony of Mr. Lavrinenko

Testimony of Mr. Lavrinenko

35Mr. Lavrinenko, who was self-represented, testified that subsequent to his divorce from Ms. Lavrinenko he remarried, but has been separated for approximately six to seven months.

36Mr. Lavrinenko took the position that there was no material change in circumstances, and that the order, which was based on Minutes of Settlement, should remain in place.

37He testified that beginning with the controversy over the child’s ADHD diagnosis, the first diagnosis obtained by the mother was done without his consent. Accordingly, he thought it was appropriate to obtain a second opinion since he had not observed any abnormality in the child’s behaviour and saw no need for medication.

38He stated that the whole purpose of obtaining a second opinion was to explore the possibilities of an alternative treatment plan. He stated the only reason he refused to give his son any medication from 2012 to 2015 was a need to get a second opinion. He also described his son as a quick learner who had no learning disabilities.

39Regarding his decision not to consent to the child’s passport application, he allowed Ms. Lavrinenko to travel with the child to visit her parents in the United States, but then withdrew his consent when she refused to allow him to take Stephen to Russia.

40As for the child’s eyesight, he agrees that Ms. Lavrinenko obtained one prescription and he obtained another. The prescription obtained by Ms. Lavrinenko required the child to wear eyeglasses most of the time, and that the prescription he obtained required the child to only wear glasses during certain activities.

41Regarding the incident with respect to transferring Stephen between schools, in his opinion Stephen was excited to go to the new school, and contrary to Ms. Lavrinenko’s evidence, he did not want to leave.

42The unresolved issue over the child’s religion is due to the fact that he is a Buddhist, and therefore objects to the child being raised as a Christian. He is of the opinion the child should be not raised in any religion and should ultimately be allowed to make that determination for himself when he reaches an appropriate age of maturity.

43He does agree that because he is a self-employed truck driver his job requirements at times interfere with his access and that he is not able to exercise his Wednesday access with his son as regularly as he would like, but with Ms. Lavrinenko’s cooperation he has been able to change the access time.

44On the issue of child support he admitted receiving Child Tax Credit Benefits because he was successful in applying for them.

Report from the Office of the Children’s Lawyer

Report from the Office of the Children’s Lawyer

45This report was prepared by John Thompson, M.S.W., R.S.W. The report was thorough and included interviews between the assessor and Mr. and Ms. Lavrinenko and observations by the assessor regarding the interaction of the child with both his mother and father. As well, the interviewer made use of collateral contacts, which included telephone interviews, along with review of various court documents and records provided by the Children’s Aid Society and the Hamilton Police Service.

46At the conclusion of the report, Mr. Thompson recommended that Ms. Lavrinenko have sole custody of the child while Mr. Lavrinenko’s access would consist of every other weekend from Friday after school to Monday morning, Wednesdays overnight from the end of school, and the weekends following his weekend and Monday overnight at the end of school during the week following Ms. Lavrinenko’s weekend.

47As well, Ms. Lavrinenko was to consult with Mr. Lavrinenko prior to any major decisions regarding Stephen, but Mr. Lavrinenko was also to be made aware of any service provider involved with Stephen and is to be invited to participate in any of those provided services.

48It should be noted that Ms. Lavrinenko disagrees with the OCL recommendation that Mr. Lavrinenko have the child on two occasions during the week, namely Wednesdays overnight to Thursday and Monday overnight to Tuesday following his weekend access. She would like the mid-week access restricted to one or the other overnights, and is also content that Mr. Lavrinenko give Ms. Lavrinenko one week’s notice if there is any need for him to change his mid-week access schedule due to work commitments. She would also like the child returned to her on the Sunday evening on the weekend of Mr. Lavrinenko’s access with Stephen.

Submissions by Mr. Williams

Submissions by Mr. Williams

49Mr. Williams began his submissions by stating that his client wishes to have sole custody with a slight diminishment of access.

50He went on to say that joint custody has not been working, and that the recommendation of sole custody has been endorsed by the Office of the Children’s Lawyer.

51Mr. Williams is asking this court to rely heavily on the OCL report, notwithstanding the significant access to Mr. Lavrinenko. He not only suggested sole custody based on the OCL recommendations, the facts, but also on the law by which he states that if two parties have ongoing differences of opinion with respect to the best interests of the child, it is imperative that one of the parties be given responsibility of making decisions consistent with those best interests.

52Moreover, the facts support the need for sole custody in these circumstances. He referred to the several examples already discussed.

53Ms. Susnyar described Stephen’s behaviour in school, noting that he had a difficult time focusing, requiring redirection from time to time, and noting that his behaviour was sometimes unpredictable.

54As well, difficulty has arisen with respect to the parties’ communication with each other, since they are now only communicating by text.

55Regarding access, Mr. Williams then presented the court with his proposed order in which he submitted is somewhat consistent with the OCL recommendations. Essentially the order includes changes to Mr. Lavrinenko’s weekend access and the mid-week access from Wednesday overnight to Thursday because the child requires his sleep in order to be able to focus on his lessons at school the next day.

56As well, the order requires Mr. Lavrinenko to provide Ms. Lavrinenko with notice if he is unable to pick Stephen up for his weekend access. However, access would resume the next day on the Saturday morning at 10:00 a.m.

Submissions by Mr. Lavrinenko

Submissions by Mr. Lavrinenko

57Mr. Lavrinenko submitted that regarding Ms. Lavrinenko’s request for sole custody due to lack of communication between the parties, Ms. Lavrinenko unilaterally chose to limit communication to texting only because of what he considered to be her social phobia.

58Mr. Lavrinenko further submitted the only reason for these differences of opinion between himself and Ms. Lavrinenko was her unilateral choice to act without first consulting Mr. Lavrinenko, thereby acting contrary to the notion of joint access.

59Mr. Lavrinenko does not disagree with the cancellation policy if he is not able to pick Stephen up after school on the Friday of his weekend access, and resume access on the Saturday morning of the next day. He did, however, reject Ms. Lavrinenko’s proposal that access be cancelled as of 6:00 p.m. on the Friday should he not be able to pick the child up. Mr. Lavrinenko responded by saying the child still has an opportunity to see him at that time of the evening.

Analysis and Conclusion

Analysis and Conclusion

60When parties agree to an order of joint custody, it is assumed that they are able to make major decisions together which are consistent with the child’s best interests. It also assumes that the joint decisions are made after mutual consultation.

61Joint custody becomes unworkable when parties cease consulting with one another and cannot agree on major decisions, which in turn can place the child’s best interests in jeopardy.

62In the case before me, it appears that both parties’ ability to effectively consult with each other broke down in several major areas. Those areas included the child’s schooling, the child’s medical condition, the child’s eyesight, and the issue of religion.

63Beginning with Stephen’s confirmed diagnosis of ADHD, which I consider to be the primary controversy, although I find that Mr. Lavrinenko did have a justifiable complaint about not being consulted by Ms. Lavrinenko prior to bringing the child to the doctor for examination, nevertheless when given an opportunity of having a second opinion he refused to accept that Stephen had ADHD in the face of compelling medical evidence.

64Consequently, he refused to provide the child with the appropriate medication, which clearly was necessary in order to assist him in controlling his own behaviour, as well as being able to focus on his lessons at school. It was only after the order of Justice Chappel requiring him to provide the child with medication that he ultimately complied.

65It appears that Mr. Lavrinenko was in denial, refusing to accept that his son required medication in order to reasonably function both in his personal life and as a student.

66Moreover, even had Ms. Lavrinenko consulted Mr. Lavrinenko prior to arranging testing for Stephen to determine the existence of ADHD, given that Mr. Lavrinenko refused to provide Stephen with medication over a three-year period, I find that Mr. Lavrinenko would not have been swayed by a medical diagnosis.

67Regarding the child’s transfer from his original school to a school closer to Mr. Lavrinenko’s residence, I find that Ms. Lavrinenko made reasonable efforts to further facilitate access between Mr. Lavrinenko and his son, although it failed to materialize.

68Again although Mr. Lavrinenko was not originally consulted when Ms. Lavrinenko decided to return the child to his original school because of what she thought to be the child’s upset, Mr. Lavrinenko’s insistence on forcing the child to attend the new school, given the anxiety that he manifested to his mother, I find it was contrary to the child’s best interests.

69As for the disagreement over the appropriate treatment for Stephen’s vision, I find that both parties should share the blame with respect to this particular issue. I find it perplexing that the child should be obligated to wear two sets of prescription glasses. Again, this is another blatant example of the parties’ inability to arrive at a simple, uniform decision.

70As for the child’s religious upbringing over which the parties have had a major disagreement, there appears to be no room for compromise.

71When I add to these major disagreements the parties’ inability to communicate with each other, other than by texting, it is clear to me that joint custody has now become unworkable.

72It is not only evident in the disagreements which have been referred to in this decision, but it has become evident in my review of the report of Mr. Thompson. In that regard, I will highlight some of his comments.

73At Page 10 of his report he states as follows:

“Therefore, it appears that for joint parenting to work effectively, both Mr. Lavrinenko and Ms. Lavrinenko will need to make significant changes in how they interact with each other and how they approach parenting decisions. There is no reason to think that such a change is forthcoming in the foreseeable future.”

74Further on, Mr. Thompson goes on to say:

…“however, there is an ongoing disagreement about Stephen’s medical care and the possible ADHD diagnosis.”

75In referring to Mr. Lavrinenko’s approach with respect to the assessment of the child’s ADHD, Mr. Thompson made the following observation:

“Mr. Lavrinenko does raise legitimate concerns over Dr. Orovan’s assessment, as his input would have been very helpful. However, he had the opportunity to participate by meeting with Dr. Orovan. He cancelled his appointment and it is difficult to understand why he has been unable to re-book for almost two years now.”

76Further on in his report he states as follows:

“Further, it is notable that during the present stalemate there has been no medication for Stephen and essentially, Ms. Lavrinenko and Mr. Lavrinenko have been following Mr. Lavrinenko’s suggestion. However, Dr. Goldberg’s assessment is dated more than a year after Dr. Orovan’s and not only confirms her diagnosis, but raises additional concerns. In addition, while there is some improvement noted by the school, problems persist. It appears, therefore, that Stephen’s condition has not been addressed by Mr. Lavrinenko’s proposed solution.

It is notable and concerning that Ms. Lavrinenko and Mr. Lavrinenko have been debating this issue for more than three years – shortly after the present parenting regime was put in place. That is a long time in the life of a child and a long time for a potential medical issue to go unaddressed. It appears that someone will need the ability to make decisions on behalf of Stephen.

Given the realities of Stephen’s situation – he resides primarily with Ms. Lavrinenko and attends school from her address and Mr. Lavrinenko is often out of town and unavailable – it makes sense for Ms. Lavrinenko to be the person in charge with the power to make decisions for Stephen.”

Mr. Thompson’s comments simply reiterate the implausibility of joint custody continuing between the parties. I further find that the unresolvable issues between Mr. and Ms. Lavrinenko have established a material change in circumstances.

77Although Mr. Lavrinenko has always been well intentioned regarding Stephen’s welfare, given what I find to be a pattern of disagreement on several major issues affecting Stephen’s well-being, I agree with Mr. Thompson’s opinion that Ms. Lavrinenko, whom I find is the more reasonable of the two, should be the sole custodial parent assigned with the responsibility to make major decisions after, of course, consulting with Mr. Lavrinenko prior to making any major decisions.

78Mr. Lavrinenko is to continue to administer prescribed medication to Stephen for his ADHD.

79As for whether there should be a change in access, firstly with respect to the mid-week access, I am not prepared to eliminate one of the mid-week accesses. However, I will specify that should Mr. Lavrinenko fail to pick Stephen up by 7:00 p.m. for the Wednesday overnight visit or the Monday overnight, the visit will be cancelled.

80As for Mr. Lavrinenko’s access, he shall have until 7:30 p.m. on the Friday to pick up the child; failing which access will resume on the Saturday at 10:00 a.m. Mr. Lavrinenko is to text Ms. Lavrinenko if he is unable to pick up Stephen at school on the Friday.

81As well, Mr. Lavrinenko’s weekend access will remain unchanged except for the limitations placed on his pick-up time on Friday as set out in Paragraph 80 above. If Mr. Lavrinenko is faithful in providing Stephen with the medication which he requires, I am confident it will stabilize Stephen and allow him to acquire the proper rest that he needs.

82In addition, I am prepared to incorporate certain paragraphs of Mr. Williams’ proposed order, with some changes.

83Those paragraphs will read as follows:

(1) The Applicant and Respondent shall comply with all treatment recommended by the professionals referred to in Paragraph 2 herein.

(2) The Respondent shall prepare a treatment log which shall travel with the child at the time of access exchanges. This log shall include details of the treatment plan decided upon for the child’s ADHD symptoms and a log in which the Applicant and Respondent shall diligently document each occasion when they administer recommended medication in accordance with the plan.

(3) As well, the Applicant shall have access understanding that the best interest of the child require stability:

(a) Two non-consecutive weeks each summer yearly, from Friday to Sunday with the Applicant, who is to provide the Respondent with at least one month’s notice of his chosen weeks, and such weeks not interfere with the Respondent’s normal weekend time with her child.

(b) Such other times as described in Justice M.J. McLaren’s order of June 29, 2011, at Paragraph 3, except for (b) and (c) and (d).

(c) Summer access for the Respondent shall be two non-consecutive weeks each summer yearly, from Friday to Sunday with the Respondent, who is to provide the Applicant with at least one month’s notice of her chosen weeks and such weeks not to interfere with the access times of the Applicant.

(4) The Respondent and child shall be at liberty to travel to the United States of America with notice to the Applicant as part of her vacation time.

(5) The Applicant and the child shall be at liberty to travel to the United States of America with notice to the Respondent as part of his vacation time.

84In addition, Paragraphs 5 through to 15 of Justice McLaren’s order shall remain unchanged.

85If either party has a question with respect to clarification of my order or implementation of its provisions, I may be spoken to.

86The parties are to provide me with cost submissions of no more than five pages in length by no later than 60 days from the date of this judgment.

Mazza, J.