Court File and Parties

COURT FILE NO.: 544/10 DATE: May 1, 2017

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: STEPHANIE ERIN HODGINS, Applicant – and – BRODY DAVID STREETER, Respondent

Counsel: In Person, for the Applicant Ralph Lee, for the Respondent

HEARD: October 24, 2016 and January 26, 2017 (at Perth, Ontario)

Reasons for Decision

JOHNSTON J.

[1] Mr. Brody Streeter is the Moving Party in a Motion to Change two Final Orders of Pedlar J., the first, dated December 17, 2010, with respect to the child, Ryder; and the second, dated February 22, 2013, with respect to the child, Piper. Mr. Streeter (hereinafter referred to as the “father”) seeks Orders of sole custody of the two children, Ryder Allan Kenneth Hodgins, born April 14, 2010 and Piper Marilyn Hodgins, born April 16, 2012.

Background

[2] The parties are the parents of the two children, Ryder and Piper. There were separate Final Orders previously granted in relation to each of the children. The first Order dated December 17, 2010, granted Ms. Hodgins (hereinafter referred to as the “mother”) sole custody of the child, Ryder, with access to the father, in the discretion of the mother. Further, the father was ordered to pay child support.

[3] The second Final Order dated February 22, 2013 granted mother, sole custody of Piper. Father was granted reasonable access, upon reasonable notice. Further, he was ordered to pay child support for both children in the sum of $892 per month; based upon his income of $60,000.00 per year.

[4] Father commenced an emergency motion in February 2015 when the mother moved with the children to Mississauga, Ontario. Pursuant to the Order of Abrams J. of this Court, dated February 6, 2015, the children were ordered to be forthwith returned to Lanark County into the father’s primary care. The child, Ryder, was to be returned to his school, Beckwith Public School. Mother was granted access each and every weekend pending further order of the Court. Child support payable by the father was suspended.

[5] Father commenced the within Motion to Change and the trial began before me on January 26, 2016. At the Court’s initiative, the trial was adjourned and the Office of the Children’s Lawyer (hereinafter referred to as “OCL”) was requested to conduct an investigation into the best interests of the children. Mother was self-represented at trial. The Court found that father had not presented sufficient information to the Court to make a determination. The children were residing in father’s temporary care at the time. The Court felt that the best interests of the children required further information be obtained to ascertain their needs and the respective abilities of the parents to meet those needs.

[6] The OCL did accept the request and a report from the Children’s Lawyer was received and filed as Exhibit 1 in this trial.

[7] Much of the background information contained in the Children’s Lawyer’s Report and in fact its recommendations are not seriously in dispute. Ms. Hodgins and Mr. Streeter were involved in a relationship from 2008 to their final separation in 2012. The parties had several separations over the short time of their partnership. In addition to the two children between the parties, Ms. Hodgins has two other children living with her: Chase age 8 and Reid age 2.

[8] In October, 2014, mother decided to relocate to Mississauga, leaving the children, Ryder and Piper with their father, Mr. Streeter, until she could arrange daycare for Piper in her new city. On October 17, 2014, mother and father attended for mediation to clarify the situation for the children. The parties agreed there would be continued sole custody to the mother, but principal residence with the father. Ms. Hodgins stated that it was her intention to move the children with her to Mississauga as soon as her daycare arrangements could be made.

[9] Following her move to Mississauga, the mother exercised alternate weekend access when she was able to travel to Carleton Place. Father decided he felt the children’s best interests were to remain with him, so he decided to apply for sole custody. In February 2015, Ms. Hodgins came to Carleton Place for an access visit and returned with the children to Mississauga without notice to father. The matter then came before Justice Abrams and resulted in a temporary Order, providing that the children be in the care of father.

[10] In the summer of 2015, mother moved from Mississauga to Perth, Ontario, to be closer to the children. She began regular access on alternate weekends following her return and gradually increased until the children’s time with their mother increased to a week on/week off schedule by the end of August 2015. In September 2015, the schedule reverted to the children living full time with father and weekend visits with mother.

[11] The child, Ryder, presents with some challenges in his behaviour. Ryder was noted in the OCL report to not have the words to express his emotions and his frustrations and as a consequence he can lash out in anger.

[12] Since the children have been in father’s fulltime care, Mr. Streeter and the two children have resided in an apartment in the home of his mother in Carleton Place. In April 2016, Ms. Hodgins separated from her husband whom she had married in September 2015 and moved from Perth to Carleton Place. She has rented a home and remains living in Carleton Place. Since moving to Carleton Place, mother has exercised access with the two children each Friday at 4:00 p.m. to Sunday at 4:00 p.m. Access transfer has occurred without incident.

Issues identified by the Children’s Lawyer

[13] Mother raised several issues of concern with the OCL. She believes that the father continues to drink or use drugs when caring for the children; he is not flexible related to the children’s schedules; she has concern about his living conditions; concern that father exposes the children to adults who have a history of abusing children and that he is disrespectful to her.

[14] Similarly, father raised concerns about the mother to the OCL, as follows: the children may have witnessed violence between Ms. Hodgins and her husband; she is not stable, Ms. Hodgins will not provide Mr. Streeter with the children’s birth certificates or OHIP cards and that having to care for four children will be too much for Ms. Hodgins.

[15] Ms. Hodgins married Derek Lewis in September 2015. They separated with her move to Carleton Place in April 2016. Ms. Hodgins told the OCL that Mr. Lewis: ‘had some things to work out on his own and that she would not be continuing a relationship with him’. Ms. Hodgins stated that Mr. Lewis would not be around the children. Mr. Lewis was not part of the OCL review in light of what Ms. Hodgins said. It now appears Mr. Lewis is in contact with the children.

Mr. Streeter

[16] Mr. Streeter advised in his OCL interview that he works at Expercom, in Stittsville, doing heavy civil construction. He has worked for the company for two years and was a contractor to the same company for two years before that. He states that he is an occasional drinker but his current drinking is not frequent. He admits to drinking excessively in the past; but not now. He denies drug issues.

Ms. Hodgins

[17] Ms. Hodgins is employed at Tim Horton’s in Carleton Place and works fulltime. She stated that she currently does not drink at all, that her last drink was four or five years ago. She stated that she does not use drugs and has not done so in about eleven years.

The children, Piper and Ryder

[18] The author of the OCL report, Ms. Velma Guvenc, Clinician, describes Piper as ‘a delightful and engaging four-year-old. She is chatty and presents as confident in what she knows, asking questions and able to talk about her current activities. She is described by daycare providers as sweet and did not identify any issues with her development. Ryder is also described as sweet, but appears to present more challenges in his social interactions both at school and at the daycare centre he attends. Ryder is not always able to manage his anger and his frustration.

[19] Ms. Guvenc writes that, ‘Although neither Ryder nor Piper were able to discuss their family situation in any detail, it is clear from observing them at their father’s home that they are comfortable in and out of their apartment, their grandmother’s home, the barns and with the horses on the ranch. It was also observed that Mr. Streeter is able to manage Ryder and Piper effectively, giving direction in a calm and clear manner. The children responded to him with ease and without major challenges to his direction… They appear to be well integrated into their extended family and appear to be thoughtfully cared about by both Mr. Streeter and their grandmother’.

[20] Mother is described to have strengths, but also struggles with Ryder:

Although Ms. Hodgins has parenting strengths, observed in her high energy when with the children and her ability to engage them in age appropriate activities, she was observed to struggle more with managing Ryder’s behavior. Ms. Hodgins was observed to be direct and clear in her expectations of the children and clear about rules they needed to follow when playing but she did face difficulties and had to raise her voice when Ryder and his older brother challenged her instructions. As a parent of four children, Ms. Hodgins was able to demonstrate the energy required to interact with all the children but given their differing ages and temperaments this was not an easy task. (page 12)

[21] The OCL report notes and this Court finds that both parents love their children. However, there has been an inability to communicate effectively, on a consistent basis. The inability to make joint decisions for their children is apparent and has created some conflict between the parents.

[22] The OCL recommends that the children’s best interests would be met with Mr. Streeter making final and clear decisions about children’s care issues in circumstances where there is disagreement. Regular and consistent access to mother is seen as in the children’s best interests.

Court findings

[23] Upon hearing the evidence in this trial and upon review of the OCL report and recommendations, the Court makes the following findings:

1. There has been a material change in circumstance, such that the existing two final Orders should be reviewed. Father has played an increased role in the lives of the children and both have lived with him for a considerable time, in terms of their young lives.
2. Upon consideration of the Plans of Care put forward by the two parents and the best interests of the children, the children are placed in the sole care and custody of their father, Mr. Streeter, subject to regular access to mother.
3. The children have been in the primary care of father since the temporary Order of Abrams J. The children have done well in the care of father. Father has the support and assistance of his mother, the children’s paternal grandmother. Ryder has some special needs, which are being met by father. Mother has at times in the past displayed anger and aggressive behaviour and at times demonstrated poor problem-solving skills. For example, her removal of the children to Mississauga without consultation with father and consideration of the children’s needs was a poor decision. Mother displayed flashes of anger at trial. Mother would not allow father access to the health cards of the children, notwithstanding they were residing in his primary care.
4. Mother was less than cooperative with the OCL in allowing assessment of her husband, Mr. Lewis. She stated he will not be part of the children’s lives and, therefore, would not agree to an interview of him. It appears Mr. Lewis does continue to be involved.
5. Father appears to have his substance abuse issues under control. There is no evidence that he continues to abuse alcohol.
6. The parents must develop a mechanism to better communicate with one another for the best interests of the children.
7. Ms. Hodgins largely agrees with the OCL recommendations. She asks that the children continue with their family physician, Dr. Lasky, that the children’s name not be changed and the regular daycare provider be used.

Conclusions

[24] I accept the recommendations of the OCL and place the two children in the sole care of father, Mr. Streeter. Mr. Streeter shall consult with Ms. Hodgins on all important issues relating to the children; including but not limited to any changes in school or daycare, change of doctors or specialist, counselling, religious upbringing and extracurricular events and enrolment.

[25] Consultation with mother shall be meaningful and done in advance of any decision affecting either child. Mother shall be given an opportunity to present her input in a reasonable time before the decision in made. In the event there is disagreement after father has consulted in a meaningful way with mother, he shall have the right to final decision making. Father shall exercise his decision making authority in a reasonable manner and at all times consistent with the needs and best interests of the children. Father indicated to this Court his intention to maintain the existing doctor for the children; this is a concern for mother.

[26] Mother shall have the right to independently contact and receive information about either child from his or her teachers, school, doctor or other healthcare or service provider. Mother shall be entitled to notice of the children’s extracurricular activities and the right to attend such activities, including school and non-school activities.

[27] Father asks this Court to deviate from the OCL recommendation on access and allow him a weekend with the children. I have considered the request, but accept the recommendations of the OCL.

[28] It may be that in future years, the access schedule will require review, but for the foreseeable future, the proposed schedule allows both parents some weekend time.

[29] Ms. Hodgins shall have liberal access with the children as follows.

[30] Week 1 through 12 after the date of this Order: Thursday after school to Saturday at 4:00 p.m.

[31] Following an initial period of 12 weeks, and following the initiation of work with Open Doors, access to begin Wednesday after school and end Saturday at 4:00 p.m.

[32] Access exchanges not occurring at school shall continue to occur in a community location.

[33] Both children shall remain in their current school/daycare placement to allow for continued stability.

[34] Ms. Hodgins shall contact Open Doors to engage in counselling sessions with Ryder in an effort to help him express his feelings towards his family situation and to provide Ms. Hodgins an opportunity to develop skills in managing Ryder’s behaviour. Ms. Hodgins shall follow recommendations made by the counsellor at Open Doors. Mr. Streeter is to be involved in this counselling as directed by the counsellor.

[35] Both parents shall consent to any further or other services recommended for either Ryder or Piper by the professionals they are involved with.

[36] The children’s health cards shall be held by father with copy to mother. On extended access visits of more than a weekend, the health card shall go back and forth with the parent who has care of the children at that specific time.

[37] Access in the summer shall include two nonconsecutive weeks for each parent, with each parent providing the other parent with their preference for which weeks to have the children, by May 30th each year.

[38] All other school holidays shall be shared equally each year, including March Break, Easter, Thanksgiving and Christmas school break. Christmas shall be shared equally; if the parties cannot agree, father shall have the children from Christmas Eve to Christmas day at 1:00 p.m. and mother shall have the children from 1:00 p.m. to Boxing Day at 4:00 p.m.; the following year the schedule shall be reversed. The balance of the school Christmas holiday shall be equally shared between the home of mother and father.

[39] Until further order of the court, Mr. Lewis shall not be left alone with either child by Ms. Hodgins at any time. If Ms. Hodgins wishes to have Mr. Lewis play any role in the lives of either child, other than being present with them in her presence, she must obtain either a further court order or the written consent of Mr. Streeter.

[40] Father shall not be under the influence of alcohol or non-prescribed drugs for 24 months after the date of this Order. Thereafter, if no issues of substance abuse have arisen, Mr. Streeter may apply to Court to remove this term; or upon written consent of the parties.

[41] Neither parent shall speak negatively to either child about the other parent, either directly or indirectly.

[42] Neither parent shall use physical discipline of either child.

[43] The parties shall not argue with each other in the presence of either child; nor shall they raise their voices to one another or swear at one another. At all times, the parties shall be respectful when dealing with the other about the children, including both direct and indirect communications.

Child support

[44] Given the access schedule and the fact that father earns greater income than mother, I order that no child support be payable for base child support.

[45] The parties shall equally share all Section 7 extraordinary childcare expenses, including health or dental expenses not covered by insurance. Except for health or dental expenses, before extracurricular expenses are incurred, the other parent shall be consulted and shall not unreasonably withhold consent to the child’s participation in the activity/expense. The payor parent shall be provided with receipts within 30 days of incurring the expense and the share of the expense shall be paid within 30 days of the receipt being provided.

[46] The share of health or dental expense shall be paid within 30 days of receiving an invoice for the expense.

The Honourable Mr. Justice J. M. Johnston Released: May 1, 2017