Court File and Parties
Citation: Laflamme v. Judge, 2016 ONSC 1362 Court File No.: FC-15-671 Date: 2016-02-25 Superior Court of Justice - Ontario
Re: Mario Laflamme, Applicant And: Sandra Judge, Respondent
Before: Shelston J.
Counsel: Diana Carr, counsel for the Applicant Christian Pilon, counsel for the Respondent
Heard: February 16, 2016 (at Ottawa)
Endorsement
1The parties are the parents of Amelie Laflamme, born July 25, 2003, currently 12 years old. Both parties have filed motions regarding her custody, access, child support and costs.
2As I indicated to counsel, the respondent’s motion on financial issues is adjourned to a date to be set by the parties. It was adjourned because the time scheduled for this motion related to the custody and access issues. No time had been allotted for a cross-motion for retroactive child support and other financial relief. Currently, child support is being paid by the applicant and I see no prejudice to the respondent in adjourning the respondent’s motion on financial issues.
Background
3The parties started living together in August 2002 in Ottawa. They married on July 30, 2005. They have one child, Amelie. The parties separated on October 21, 2007. The applicant and respondent are both employed by the Canadian Aviation and Space Museum.
4The parties entered into a separation agreement dated September 4, 2008, where the parties agreed to equally share the physical custody and parenting of Amelie. The parties agreed to accommodate the applicant’s work schedule to divide time as equally as possible between them.
5The applicant has resided with Ms. Kim Seccull since 2014. She has three children from a previous relationship and works part-time as a receptionist.
6The respondent has two twin children from a previous relationship. She has since re-married and resides with her husband Mr. Michael Connolly, who is an OPP officer with special training in the field of impaired driving and who has two children of his own.
Incident of November 8, 2014
7The parties followed the terms of the separation agreement with the child alternating residences on a weekly basis until November 8, 2014.
8On November 8, 2014, Amelie was to be confirmed. On that date, the respondent alleges that the applicant was so intoxicated at the church that he was moved to the back of the church to avoid him making a scene. The respondent’s evidence is supported by her husband, Mr. Connolly.
9The applicant denies that he was intoxicated and his evidence is supported by his partner, Ms. Seccull.
10The evidence is contradictory as to what actually transpired at the confirmation. What is clear is that since November 8, 2014, the respondent unilaterally varied the parenting arrangements in the separation agreement.
11Since November 2014, the applicant has seen his daughter less than ten times.
Events after November 8, 2014
12Even though the applicant denies that he was intoxicated on November 8, 2014, on November 9, 2014 he acknowledged that he had a problem with binge drinking.
13He took immediate steps to address the issue of his alcohol use. He gave the respondent a comprehensive list of steps he was going to take to change and to provide for his daughter’s best interests.
14The respondent told him that she was withholding their daughter from him until he “got his drinking under control”.
15The steps undertaken by the applicant are as follows:
(a) He began to attend Smart meetings which is a program for alcoholics. He attended 2 to 3 times per week;
(b) He started a program at Rideauwood in February 2015 to deal with his alcohol issues. This was a nine-month program of support and alcohol use awareness. It included a 10-day intensive treatment section which was followed by 12 to 16 weeks of aftercare;
(c) He attended a program in September 2015 and is now in the aftercare segment;
(d) He saw a psychologist regularly;
(e) He attended the Ottawa Addictions Access and Referral Services which referred him to Maison Fraternité; and
(f) He provided urine samples and hair follicle testing and invited the respondent to attend the testing (which she refused).
16According to the applicant, the respondent terminated and continues to block any communication between the daughter and the applicant. The respondent denies such action.
17By January 2015, the applicant retained counsel to communicate with the respondent. The applicant proposed a gradual reintegration. The respondent did not reply. Once the respondent retained counsel, he made proposals without reply by the respondent.
18In March 2015, the applicant commenced proceedings. The applicant was willing to accept a gradual reintegration into his daughter’s life.
19Once proceedings were commenced, the parties could not agree on a date for a case conference. The applicant was required to bring a motion to set a date for a case conference. The court set the case conference for July 17, 2015.
20Prior to the case conference, the applicant provided the respondent with proof of his efforts to deal with his use of alcohol. He also provided three lab reports of blood and urine drug screen analysis.
21At the case conference, the parties could not agree on access but agreed to schedule a meeting between the child, the applicant and the child’s therapist being her psychologist, Dr. Virley. The parties agreed that the applicant would meet with the child at the offices of Dr. Virley. There were two meetings on August 11 and September 9, 2015.
22At the meeting on September 9, 2015, the child told the applicant that she would like to be the one to initiate contact with him, on her terms. After this meeting, the child was so stressed that she was physically ill for a week with diarrhea and headaches and missed an entire week of school.
23By October 22, 2015, almost a year after the November 8, 2014 incident, the applicant had seen his daughter six times which included two sessions with the therapist and one session at a concert.
24There have been other visits between the applicant and the child since October 2015, including on December 26 and 27, 2015, for the day.
Evidence from the Child’s Psychologist
25The respondent’s position is that the situation with the applicant and his daughter was problematic even before the confirmation incident. In October 2012, the child asked the respondent to bring her to a psychologist to deal with certain issues. The respondent did not ask the applicant’s consent to take the child to a psychologist even though there was a joint custodial regime. Once so advised, the applicant met with the psychologist and agreed that the child should have that outlet for her feelings.
26The respondent alleges the child’s problems were related to the applicant. However, in a letter from the psychologist to the applicant dated May 7, 2015, the psychologist indicates as follows at paragraph 3:
Ms. Judge initially contacted me in October 2012. She indicated that Amelie (then 9 years of age) had requested support from a psychologist. Ms. Judge also explained that she shared physical or legal custody of Amelie with you. The goals for therapy with Amelie at that time were to 1) provide her a safe environment in which to discuss her feelings about having divorced parents, and 2) to discuss her feelings regarding living in two homes.
27The letter does not refer to issues with the applicant. The letter indicates that the October 2012 meeting was to deal with a nine-year-old girl’s feelings of having divorced parents and living in two homes.
28The daughter’s request to see a psychologist in the fall of 2012 must be viewed in the context of what her circumstances were at that time. By 2012, the respondent was living with Mr. Connolly, who had two children from a previous relationship, and with her two older children from a previous relationship. This resulted in Amelie living with four other children in the respondent’s home.
29In the letter dated May 7, 2015, the psychologist indicates that Amelie resumed sessions with her in October 2014 because the child was asking for help on how to express her feelings about the stressors related to living in two homes and managing general stressors in her life. By this time, the applicant’s partner, Ms. Seccull, had moved in with the applicant with her three children. Now Amelie resided with three other children one week while living with the applicant and four other children the next week while living with the respondent.
30Prior to November 2014, the psychologist makes no mention of alcohol related issues. It is only after the incident on November 8, 2014 that the issue of alcohol abuse was raised with the psychologist by the respondent.
31On September 30, 2015, the child psychologist Dr. Virley met with the child individually. At that meeting, the child reiterated what she told the applicant on September 9, namely that she would like to be the one to initiate contact with the applicant. She also shared that she would prefer not to have contact scheduled but rather that she be permitted to contact him on her own terms. The respondent supports her daughter.
32What is concerning to me are the comments made on September 30 by the child to her psychologist where she indicated that she was uncertain that all the changes that her father had made were “true” and real. She went on to indicate that she needed time to think and to heal and, if possible, “proof” to know that the changes are real. The child did not elaborate on what “proof” she needed.
33Counsel for the respondent directed me to a two-and-one-half page letter handwritten by the daughter. This letter lists things that the daughter wrote down that she does not like about her father, including going to the LCBO three times per week and him driving her while he is intoxicated, and also includes her complaints about the respondent visiting her at school. The daughter raises twenty-one points in her letter and concludes with the words: I JUST WANT TO HAVE FUN TONIGHT.
Court Proceedings
34Proceedings were commenced by the applicant on March 27, 2015 in which he seeks a temporary and permanent order for joint custody of the child, an order that the child reside with each parent in alternate weeks and costs.
35The respondent has filed an Answer dated April 27, 2015 in which she seeks, amongst other relief, sole custody of the child, an order that the child’s primary residence be with her, an interim and final order granting the applicant supervised access, an order for the applicant to undergo weekly urinalysis testing as well as table child support, sharing of section 7 expenses, life insurance and costs.
36The parties appeared before Justice Doyle on July 17, 2015 for a case conference. At that time, the parties consented to an order that the applicant pay table child support in the amount of $511 per month commencing August 1, 2015 on a without prejudice basis regarding quantum and retroactivity. Further, leave was granted to the applicant to bring a motion regarding access and to the respondent to bring a motion for the OCL involvement.
37As the parties were not able to resolve this matter after the case conference, the applicant’s counsel wrote to counsel for the respondent to set up a date for a motion in February 2016. The letter was written on October 15, 2015 and proposed a series of dates. No response was received. The applicant’s materials were served on counsel for the respondent on October 24, 2015, returnable February 2, 2016.
38The applicant’s motion sought the following relief:
(a) Amelie will continue to have meetings with her therapist as agreed between them and involving the applicant and/or the respondent from time to time as the therapist recommends;
(b) Beginning on the first Saturday after this order is granted and on every Saturday for the next four Saturdays, Amelie will be with the applicant from 10 a.m. until 4 p.m.;
(c) After the first four Saturdays, and every week for the next eight weeks, Amelie will be with the applicant on Fridays after school until Saturdays at 4 p.m.;
(d) Thereafter Amelie will be with the applicant in alternate weeks, commencing on Friday after school until the following Friday;
(e) The applicant shall also have make-up time for the withholding by the respondent for the past 12 months;
(f) The applicant shall also care for the child on Christmas Eve from 10 a.m. until 8 p.m. and on December 26 from 10 a.m. until 8 p.m.; and
(g) The respondent shall pay costs for this motion to the applicant, in an amount to be fixed by this honourable Court after submissions on costs are made.
39It was only in late November 2015 that counsel for the respondent indicated he was unavailable for the motion that was set for February 2, 2016. On January 16, 2016, the parties appeared before me to argue an adjournment of the motion scheduled for February 2, 2016. On that date, I adjourned the motion to February 16, 2016.
40On January 20, 2016, the respondent filed a notice of motion returnable on February 16, 2016 seeking the following relief:
(a) An interim order that Amelie shall have access to the applicant as she wishes;
(b) An interim order confirming that the respondent shall make all the important decisions regarding Amelie’s well-being (i.e. health, school, etc.);
(c) An interim order confirming that the child’s primary residence shall be the respondent’s residence;
(d) An order confirming that the applicant shall pay retroactive child support for the benefit of Amelie for the period of November 1, 2014 until July 1, 2015 based on his 2013 income of $60,502 and his 2014 income of $62,362 ($551 per month x 2 months + $568/month x 7 months equals $5,078.00). The applicant shall pay the sum of $5,078 to the respondent;
(e) An order confirming that the applicant’s child support shall be readjusted as of August 1, 2015 to reflect his 2014 income of $62,362 ($568/month - $511/month = $57 x 7 months = $399). The applicant shall pay the sum of $399 to the respondent;
(f) An order directing the applicant to pay ongoing child support in the amount of $568 per month based on his 2014 income of $62,362 starting March 1, 2016 and on the first of every month thereafter for the benefit of the child;
(g) An order directing the applicant to pay his proportional share (44%) of the child’s special and extraordinary expenses in accordance with s. 7(1) of the Child Support Guidelines;
(h) An order directing the applicant to pay $150.48 to the respondent for his share of the child’s piano lessons; and
(i) An order for costs.
Applicant’s Position
41The applicant’s position is that the mother has embarked upon a course of conduct to alienate him from his daughter and that she has made absolutely no effort to foster a relationship between him and his daughter. The applicant has indicated he is prepared to take whatever testing is proposed to ensure that he has a reintegration into his daughter’s life.
Respondent’s Position
42The respondent’s position is that the incident of November 8, 2014 confirmed her concerns about the child being in danger while in the applicant’s care and that the child had been suffering. She is unsure as to the reality as to whether the applicant is appropriately dealing with his alcohol addiction. The respondent’s position is the child has repeatedly confirmed that she wanted to remain in the respondent’s residence and wished to have the right to determine when she sees the applicant. She submits that the child is doing better in school with the current arrangements and that if the court were to impose a schedule on the child, it would not be in her best interests.
43The respondent makes other allegations, including stating that the child was increasingly distraught when returning from the applicant’s residence. There were also concerns raised by the respondent about the lack of involvement of the applicant in the child’s individual educational plan. These allegations are denied.
The Law
44The motions before the court are for temporary orders. I must consider the best interests of the child on a temporary basis. Section 16(2) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), states:
Where an application is made under subsection (1), the court may, on application by either or both spouses or by any other person, make an interim order respecting the custody of or access to, or the custody of and access to, any or all children of the marriage pending determination of the application under subsection (1).
45Further, the court shall consider the best interests of the child as determined by reference to the conditions, means, needs and other circumstances of the child as set out in s. 16(8) of the Divorce Act.
46Finally, in making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact, as set out in s. 16(10) of the Divorce Act.
Analysis
47Up until November 8, 2014, the parties and the child lived by the terms of a separation agreement whereby the parties agreed the child would have equal time with each parent. This was the status quo up to November 8, 2014.
48On November 8, 2014, an incident occurred that caused the respondent to unilaterally terminate the parenting week-on, week-off schedule.
49The effect of the respondent’s unilateral actions was that the child ceased having equal time with the applicant. The respondent’s rationale was that the applicant was an alcoholic and that she was fearful of the child being in his custody.
50The applicant has made significant efforts to deal with his self-admitted binge drinking. He undertook courses, attended intensive sessions, and agreed to undergo urine testing and hair follicle testing. He provided the respondent with proof of the courses he has taken. He has the support of his partner and family.
51Despite receiving the information provided by the applicant, the respondent continues to believe that he has a serious alcohol problem. Coupled with that belief, the respondent argues that the wishes of the 12-year-old daughter should be determinative of the applicant’s access to his own child.
52According to the respondent and Dr. Virley, the child does not wish to have access imposed upon her. She wishes to have the right to decide when and for how long she will see the applicant.
53Upon review of the affidavit material as well as Dr. Virley’s letters, it is clear to me that this child is being placed squarely in the middle of the dispute between these parents and is being required to be the final decision-maker regarding her relationship with both of her parents.
54What concerns me is the negative effect this will have on the child. Placing the child in such a position inevitably imposes significant emotional and psychological stress on the child. There is evidence to support the fact that this is already occurring. After meeting with her father and Dr. Virley on September 9, 2015, during which the daughter indicated she did not wish to have access imposed upon her, she, according to the respondent, was physically ill with diarrhea to such an extent that she did not attend school for an entire week.
55In my view, the child’s reaction is directly related to the stress that she felt having to make the decision regarding how and when she sees the applicant. I do not find that having the child be the main decision-maker is in her best interests.
56The evidence is contradictory as to how the child reacts to seeing the applicant. On one hand, the applicant and his girlfriend indicate that the child is excited to see them such as on December 26 and 27, 2015 for day visits. On the other hand, the respondent alleges that the child is very fragile, needs stability and that the applicant is no longer trustworthy.
57In my view, in deciding the best interests of this child, I must consider all factors including her wishes. However her wishes are only one factor.
58From 2008 until November 2014, this child alternated residences on a weekly basis. There is no evidence that during that period of time, any action was undertaken by the respondent to curtail the applicant’s involvement in the child’s life based on any allegation, including allegations of alcohol abuse.
59The respondent has an obligation to foster the father-daughter relationship, especially in the circumstances where they shared the physical custody of the child until November 2014.
60Despite being removed from the child’s life unilaterally, the applicant has agreed to cautiously seek gradually increasing access to reintegrate himself into his daughter’s life. He proposes that over a 12-week period, his access evolve from one day per week to alternating weeks. The applicant recognizes that in these circumstances he is prepared to move slowly with the eventual hope of returning to alternating weeks.
61I agree with the comments by Justice Warkentin in H.H. v L.H., 2016 ONSC 707, where, in a case where the father had only had supervised access to his children for the past two years and three months, she stated at paras. 21-23:
In addition, the father has accepted responsibility for his anger issues and inappropriate discipline of the children. He sought therapeutic help and took two of the three programs that were recommended to him by the CAS; the third one having being cancelled notwithstanding his enrollment in the program.
It is now time for the children to become re-acquainted with their father outside of the artificial setting in which they have been restricted. They have the right to know him, good and bad. A normalized relationship with both parents will make them better, stronger individuals and is in their best interests.
I am satisfied that unsupervised periods of care and control are not a safety issue. Having said that, I also acknowledge that there are no guarantees in life and we cannot protect children against all dangers, misfortunes, and contingencies that may come. Nor do we expect perfection or even near perfection of parents when caring for their children. Mistakes will be made and the parties will have to learn to accept that everyone has failings. A person’s failings are not a bar to maximum contact.
62I intend to make an order that removes the stress on the daughter.
63I appoint the Office of the Children’s Lawyer. The parties are to complete and fax their respective intake forms by March 10, 2016 to the Office of the Children’s Lawyer.
64In my view, the reinstitution of access is in the best interests of the child. I also agree with the applicant that the process of reinstituting access should be gradual. In these circumstances, I will order gradually increasing access on a without prejudice basis. I am not prepared, at this time, to increase the time to alternating weeks. That will be an issue at trial. The trial judge will have the opportunity to see and hear the witnesses and to have the evidence of the Office of the Children’s Lawyer.
65I am not prepared to grant the respondent the sole right to make all important decisions regarding the child’s well-being at this time. The parties signed a separation agreement where both parties had an equal say in all major decisions affecting the child. The respondent has acted unilaterally and without any court order to vary the residential arrangements as well as the decision-making process for this child.
66These issues will have to be decided by a trial judge and until such time, I order that the child continue to see all current healthcare providers, to attend her current school and to remain in whatever activities she is currently registered for. In the event of a medical emergency, the parent who has the physical custody of the child at the time of the medical emergency shall have the right to make such decisions as are necessary and shall immediately inform the other parent of such decisions.
67I order that the child reside with the respondent on a without prejudice basis.
68Regarding access to the child, I order on a without prejudice basis:
(a) The applicant will have access to the child as follows:
(i) Saturday February 27, Saturday March 5, Saturday March 12, and Saturday March 19, from 10 a.m. until 4 p.m.;
(ii) Friday March 25 at 10 a.m. until Saturday March 26 at 5 p.m.;
(iii) Saturday April 2 at 10 a.m. until Sunday April 3 at 6 p.m., and every second weekend thereafter from 10 a.m. Saturday until 6 p.m. Sunday;
(iv) Commencing the week of April 4, 2016, one day every week after school until 7:30 p.m., the day to be agreed upon by the parties failing which it shall be every Wednesday;
(b) The applicant’s access shall be subject to the following conditions:
(i) The applicant shall not consume alcohol at any time;
(ii) The applicant shall submit hair follicle test results to the respondent on Friday March 4, 2016 and every two weeks thereafter;
(c) The issue of summer access may be addressed by motion before me after the disclosure of the Office of the Children’s Lawyer’s findings. In the event that the Office of the Children’s Lawyer declines to become involved in this matter, the motion may be brought before me to be heard on or before May 30, 2016 for a maximum of one hour.
69I further order:
(a) That this matter will be placed on the September 2016 trial list; and,
(b) That the parties shall set, by March 4, 2016, a date for a settlement conference to be held in June 2016.
Costs
70On the issue of costs, it appears that the applicant was the successful party in the motion. The applicant is to provide cost submissions not to exceed three pages plus a cost outline and any offers to settle by March 8, 2016. Respondent will provide reply submissions not to exceed three pages plus a cost outline and any offers to settle by March 18, 2016. The applicant will have the right to file reply submissions by March 23, 2016, if necessary.
Shelston J.
Released: February 25, 2016