Superior Court of Justice - Ontario

Court File No.: 264-2012 Date: 2018-06-01

Re: Jeanne Vincelette, Applicant/Responding Party And Michel R. Dupuis, Respondent/Moving Party

Before: Justice Marc R. Labrosse

Counsel: Stephane A. MonPremier, Counsel for the Applicant/Responding Party Susan E. Galarneau, Counsel for the Respondent/Moving Party

Heard: May 24, 2018

Endorsement

Summary

[1] The Father moves to change the custody and access regime set out in the final consent order of Justice Roy dated February 28, 2013, which set out the following relevant parenting arrangements:

a. Joint custody of Maxime Dupuis, born August 12, 2005 and Samuel-Alexis Dupuis, born December 6, 2006;

b. Equal participation in decision-making for all major decisions affecting the children;

c. The children are to spend equal time with each parent;

d. Each party is to have liberal access to school and school activities.

[2] The Father was seeking to change the custody arrangements for the children, to have Samuel reside primarily with him in Orléans, and for both children to attend École secondaire publique Gisèle Lalonde commencing in September 2018.

[3] The Mother opposed the request and seeks to maintain the status quo with the children spending equal time with both parents and to have the children attend École secondaire catholique de Casselman, in September 2018.

[4] On March 23, 2018, Parfett J. provided oral reasons setting out that the Father had met the threshold issue of a material change in circumstances and adjourned the motion to this date to proceed on the merits. The costs of the March 23, 2018 motion was reserved to this hearing.

[5] The parties have entered into a written Contract for Parenting Coordination Services and have consented to an Order to that effect. With respect to custody, I have been asked to remain seized of the custody issue pending final execution of the agreement by the parenting coordinator and pending confirmation that both parties have been screened for domestic violence and power imbalances by a qualified screener. Subject to the above being finalized, there is no longer a requirement for the Court to deal with custody as the Father is prepared to withdraw his request for sole custody and the parties will remain joint custodial parents. The Father has also accepted Maxime’s desire to spend equal time with both parents.

[6] The remaining issues to be dealt with on this Motion to Change are the primary residence of Samuel and the choice of school for both children commencing in September 2018. The Court is asked to determine what is in the boys’ best interests. There is also an outstanding issue relating to costs that the parties have agreed will be dealt with as part of my cost endorsement for these entire proceedings.

[7] For the reasons that are set out herein, I conclude that it is in Samuel’s best interests to have his primary residence with his Father. He will have access with his Mother on alternate weekends from Friday after school until Monday morning and every Wednesday overnight. I also conclude that it is in the best interests of both children that they attend École secondaire Gisèle Lalonde commencing in the 2018-2019 school year. On consent, an order will issue that all issues surrounding custody and parenting decisions will be addressed pursuant to the provisions of the Contract for Parenting Coordination Services.

The Evidence

[8] With respect to the two parenting issues that this Court is asked to resolve, the available evidence consists of the affidavit evidence of the parties and the affidavit evidence of the clinician for the Office of the Children’s Lawyer (“OCL”), Chantal Bourgeois.

[9] Both Maxime (almost 13 years of age) and Samuel (almost 11.5 years of age) are children with significant special needs and are medicated to assist them in controlling their behavioral issues.

[10] Maxime has participated in the special needs program “section 23”, being an educational program for children with behavioral issues at l’Annexe in Plantagenet. He appears to have made significant progress whereby he is ready to commence re-integration into a regular classroom. Maxime has clearly indicated his preference to attend high school in Orléans, at École secondaire Gisèle Lalonde but to continue spending equal time with both parents.

[11] Samuel currently attends École catholique St-Viateur in Limoges but will be changing schools in September 2018, as he is starting grade seven. He is described as an active child who is athletic and he exhibited more behavioral issues when he was younger but is now able to verbalize his feelings.

[12] Both children have expressed frustration with the ongoing legal proceedings. They are looking for a final decision to be made as they are fed up with the parental conflict and the ongoing need to meet with professionals.

[13] The affidavit of the OCL clinician dated May 17, 2018, provides an effective description of the children and the family observations. It focuses in large part on issues of physical discipline, yelling by the Mother and her spouse, and allegations of controlling behavior by the Father. While the Mother makes significant claims of parental influence by the Father, the OCL report does not deem the parental influence as being alarming. What is more alarming in the context of what needs to be decided is the apparent difficulties in the relationship between Samuel and the Mother’s spouse.

[14] In the end, Maxime has expressed a desire to continue equally splitting his time between his parents. Samuel has expressed a desire to have his primary residence with his Father and access with his Mother every second weekend one night during the week. His views have been expressed a number of times to the OCL clinician and to Dr. Robaey, his psychiatrist.

[15] The Mother’s evidence focuses on her concerns about how the Father tries to influence the children. She advocates for the advantages of the children attending school in Casselman. She relies on the fact that the OCL does not state that the children are not well in their Mother’s care. She states that the status quo should be maintained. She highlights the Father’s actions of recording exchanges, interrogating the children after access visits and subjecting them to interviews with a number of professionals. She is concerned that the Father will continue to erode her relationship with Samuel. I have taken the time to fully read her affidavit dated May 21, 2018 and inform myself of her evidence in addition to that which is set out in her Factum.

[16] The Father supports the position of the OCL and the wishes of the children. He relies on the evidence of the professionals that the children have expressed their views based on valid reasoning and made informed choices.

[17] The OCL’s view is as presented in the affidavit of Mme Bourgeois and the relevant portions are highlighted below.

Analysis

[18] As a result of the finding of Parfett J. that the required threshold of demonstrating a material change in circumstance has been met by the Father, I must decide what is in the best interests of the children. Although these are proceedings under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), the criteria set out in section 24(2) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 have been deemed to be relevant in these proceedings, along with the principle of maximum contact set out in section 17(9) of the Divorce Act.

[19] Sections 24(1) and (2) of the Children’s Law Reform Act state:

24 (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4).

Best interests of child

(2) The court shall consider all the child’s needs and circumstances, including,

(a) the love, affection and emotional ties between the child and,

(i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child,

(ii) other members of the child’s family who reside with the child, and

(iii) persons involved in the child’s care and upbringing;

(b) the child’s views and preferences, if they can reasonably be ascertained;

(c) the length of time the child has lived in a stable home environment;

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;

(f) the permanence and stability of the family unit with which it is proposed that the child will live;

(g) the ability of each person applying for custody of or access to the child to act as a parent; and

(h) any familial relationship between the child and each person who is a party to the application.

[20] In considering the above criteria, I am mindful that the children are reported to be doing well under the current shared custody and equal living arrangements. Maxime has completed a year at l’Annexe in Plantagenet and has been recommended for integration into a regular school system. As for Samuel, while he exhibited more behavioral issues when he was younger, he is now able to verbalize his feelings. I conclude that while the boys have special needs, they are doing well despite the negative effects of the parental conflict. They are fed up with the OCL and court process and have little hope that their parents will ever resolve their conflict.

[21] The Court is also very aware that a child’s views and preferences are one of several criteria when assessing the best interests of the child. When considering the views and preferences of two boys aged 13 and 11.5, their views and preferences are obviously more relevant than for younger children. It is, however, important to consider how they arrive at their views, if their choices are made for the right reasons and if there is any outside influence that may affect their choices.

[22] The Court is very concerned with some of the Father’s behavior. The words of his counsel are that he has reflected on the comments made in Mme Bourgeois’ affidavit about how he interrogates the children, tends to record various events and discussions and has been hypervigilant in his approach to the children. She says he has taken these comments to heart. This has not become evident as of yet in his behavior and the proof will be seen in the coming months. Clearly, this must stop. The boys are at an age that they are able to report when there is an incident involving either parent or their step parents without the need for constant interrogation. It is time to let them simply enjoy the time they spend with each parent, free from the parental conflict.

[23] While I have considered all the relevant criteria in determining the best interests of the children, I am particularly influenced by the fact that the parties have succeeded in entering into a Parenting Coordination Agreement, which is intended to address many of the specific concerns voiced by the Mother. I have reviewed this agreement and note that it authorizes the parenting coordinator to settle or determine disputes between the parents about appropriate parental conduct in the children’s presence. While there are restrictions that prevent the parenting coordinator from making permanent or significant changes to the children’s residential schedule, this would still allow for the parenting coordinator to act in the event of ongoing inappropriate conduct by either parent by coaching them, facilitating discussions through mediation and requiring the parents or the children to attend counselling or therapy.

[24] While the Parenting Coordination Agreement will hopefully assist in limiting the amount of conflict between the parents, the evidence does not lead me to conclude that one of the parents is more responsible for the conflict between them. The OCL evidence challenges both parents in the manner that they deal with the children and does not validate the Mother’s accusations against the Father.

[25] In considering the specific criteria for determining the best interests of the children, I note the following:

a. The relationship between Samuel and his step-father is certainly of concern. The evidence is that at this point, the actions of the Father have not had an impact on Samuel’s relationship with his Mother as Samuel indicates that he would maintain the equal parenting time if the Mother was not living with the step-father. Otherwise, the love, affection and emotional ties between the children and their parents seem to be equivalent but there is no doubt that the relationship between Samuel and his step-father is problematic;

b. The views and preferences of the children are clearly set out in the OCL evidence. I am mindful that with adolescents, these preferences can change over time. However, the evidence leads me to conclude that the children have made thoughtful choices with respect to the schooling and that these are informed choices, to the extent possible at their respective ages. I do not accept the Mother’s evidence that Samuel is too young and immature to determine what is in his best interests. The evidence of the OCL leads me to conclude the opposite. Samuel has expressed the reasons why he wants to reside primarily with his Father and attend school in Orléans. His choice has been properly and validly explained by his stronger bond with his Father, the activities he enjoys doing with his Father, the lack of relationship with his step-father and being fed up with the yelling at his Mother’s house. Simply put, he is happier at this time at his Father’s residence and this cannot be ignored. As for Maxime, he has endured what appears to be a difficult year since October 2017 in waiting for reintegration into a regular school. There is no reason why the preferences of both children as to the school they attend should not be given significant consideration;

c. While the children have benefitted from the equal time with each parent and stable home environments, they are both at a stage where their schooling is changing and they will be starting in new schools in September 2018. It is thus an appropriate time to consider a change in schooling and a change to the living arrangements for Samuel;

d. As for the plan of each parent, they each have merit. The evidentiary record does not allow me to conclude that that there is a significant advantage between the proposed school in Casselman and the proposed school in Orléans. Both have services to accommodate the needs of the children and both have advantages when it comes to size and location. I am unable to conclude that one school is better than the other;

e. When considering each family unit, the strained relationship between Samuel and his step-father is of significant concern. Otherwise, both children have a good relationship with their Mother and Father. However, at this time, the bond between the children and their Father seems to be very strong, particularly for Samuel;

f. Finally, the ability of each parent to act as a parent does not favor either parent. The OCL’s evidence is that neither parent is systematically or maliciously intending to influence their children. The willingness of both parents to enter into the Parenting Coordination Agreement suggests a desire by both of them to either reduce or bring an end to the constant conflict. If the parents do not commit to the objectives of the Parenting Coordination Agreement, I fear that the ongoing conflict with result in polarizing the children with one or the other parent and this is clearly not in the best interests of the children. Both parents have demonstrated that they are able to act as a parent for the children.

[26] After having weighed all the evidence and considered the applicable criteria, the best interests lie with Samuel having his primary residence with his Father and both children attending school in Orléans. I am persuaded that going to school in Orléans will simplify things for the boys. It will offer them certain activities that they currently want to benefit from; travelling will be somewhat more simple as the Mother already travels in the morning to get to her work and the children can benefit from the available transportation; and the travelling times will be simplified as École secondaire Gisèle Lalonde is better located for various services such as tutoring and medical appointments.

[27] I conclude that it is in the best interests of Samuel to reside primarily at his Father’s residence and visit his Mother on alternate weekends and one night every week. Furthermore, both children will attend École secondaire Gisèle Lalonde commencing in September 2018.

Order

[28] For the reasons set out in this Endorsement, the Father’s Motion to Change is granted in part. Samuel shall have his primary residence with his Father and will have access with his Mother on alternate weekends from Friday after school to Monday morning and every Wednesday overnight. As previously stated, both children will attend École secondaire Gisèle Lalonde commencing in the 2018-2019 school year.

[29] Further, with the consent of the parties, all issues surrounding custody and parenting decisions will be addressed pursuant to the provisions of the Contract for Parenting Coordination Services attached hereto as Schedule “A”.

Costs

[30] If the parties are unable to agree as to costs, the Father will have 15 days to provide written costs submissions of a maximum of 5 pages in length excluding attachments. The Mother will then have 15 days to respond, subject to the same limitations for length of the written submissions.

Mr. Justice M. Labrosse

Date: June 1, 2018

ONTARIO SUPERIOR COURT OF JUSTICE

RE: Jeanne Vincelette, Applicant/Responding Party AND Michel R. Dupuis, Respondent/Moving Party

BEFORE: Mr. Justice Marc Labrosse

COUNSEL: Stephane A. MonPremier, Counsel for the Applicant/Responding Party Susan E. Galarneau, Counsel for the Respondent/Moving Party

ENDORSEMENT

Labrosse J.

Released: June 1, 2018