BARRIE COURT FILE NO.: FC-16-1756-00 DATE: 20181218

Superior Court of Justice – Ontario – Family Court

RE: Amanda Erin Anderson, Applicant -and- Jason Thomas Michael McMann, Respondent

BEFORE: The Honourable Madam Justice R. Sonya Jain

COUNSEL: Valois Ambrosino, for the Applicant Robyn Switzer, for the Respondent

HEARD: December 14, 2018

Endorsement

Background

[1] The Applicant mother, Amanda Erin Anderson, and the Respondent father, Jason Thomas Michael McMann, began cohabiting in 2011 and separated in 2016. They have one child together namely: Maxwell Albert Thomas McMann born March 5, 2015 (“the child” or “Maxwell”). The child was only about a year and a half old when the parties separated.

[2] The parties engaged in a high-conflict and lengthy litigation that involved the police, the Simcoe Muskoka Family Connexions (“Family Connexions”) and an Office of the Children’s Lawyer (“OCL”) investigation and report. The OCL, Karen Guthrie-Douse, completed a report, dated July 23, 2017.

[3] According to the OCL report, the issues and allegations investigated included the following: domestic violence perpetrated by the father; the father’s consumption of alcohol and illicit drugs; the father’s inexperience in caring for the child; the mother limiting father’s access time for the child; the mother’s erratic behaviour and mental health issues. In her report, the OCL recommended: sole custody and primary residence of the child to the mother, mother to consult with the father regarding major decisions regarding the child’s health, education and extra-curricular activities and inform him in writing of her decisions; specified parenting time for the father; sharing of various holidays; and other specific recommendations to help facilitate access exchanges, individual counselling for each party to assist them with the issues of domestic violence and use of the Our Family Wizard program for communication.

[4] The parties finalized the issues of custody and access in the Temporary Order of Quinlan J., dated December 22, 2016, and Final Consent Orders of Vallee J., dated February 9, 2018, and Mullins J., dated July 19, 2018. The mother maintained primary residence of the child and the father had access on alternating weekends from Friday until Sunday and two evenings during the week which expanded to one weekday overnight in April 2018.

[5] This motion was heard on December 14, 2018 regarding primary care and parenting time (access) for the parties’ now three and a half year old son, Maxwell. As a result of the mother suffering psychiatric episodes that took place in September 2018, Maxwell came into the care of his father. On September 20, 2018, Sutherland J. ordered on a “without prejudice” basis and pending an investigation by Family Connexions, that the father have primary care and control of the child, with the mother’s access to the child being supervised.

[6] For the reasons set out below, I have determined that Maxwell will be returned to his mother’s care subject to time sharing with the father.

Mother’s Position

[7] The mother filed two motions and many affidavits since September 12, 2018. Her first motion, dated September 12, 2018 seeks: the return of the child to the mother’s care; police enforcement; and temporary full custody. The second motion, dated December 6, 2018 basically seeks the same relief and some added terms regarding the return of the child to the mother’s care by specifically requesting the following:

(a) that the parties return to the parenting schedule set out in the Consent Order of Vallee J. made on February 9, 2018; (b) an order dividing Christmas time with the child; (c) an order that the child be removed from the Montessori Country School and return to daycare with Ms. Michelle; (d) an order that the father shall not speak negatively about the mother to the child or within the child’s earshot and that the father shall restrict third parties from doing same; and, (e) an order for details of any medical appointments for the child since September 8, 2018.

[8] According to the mother, she suffered two temporary, short lived psychotic episodes in September 2018. She advises that these occurred as a result of the interaction of a combination of two prescription drugs (Adderall and medicinal marijuana) that had been recently prescribed to her by her doctor. She advises that the child was never physically harmed and she had no ideation of self-harm or harming others. She fears that the father is using these incidents to achieve what she says is his expressed goal of “doing everything in his power to take Maxwell away.”

[9] The mother advises that during the first episode she was brought to Southlake Regional Health Centre for a few hours and then released. It was unclear to the mother whether she should stop taking the medications and, unfortunately, on September 15, 2018 the mother was involved in a car accident. The party’s evidence differs on whether this was as a result of another psychotic episode. Thankfully, the child was not in the car at the time as he was in the care of his father. Police had to locate the mother and bring her to Royal Victoria Hospital (RVH) where she was treated for some physical injuries. According to the mother, she herself called police on September 21, 2018 because she was still feeling “the effects of the combined medications” and she “felt heightened anxiety and slight paranoia.”

[10] The mother was admitted to RVH on a Form 1. She remained at RVH and accessed mental health treatment under the care of Dr. Hakim who reported that while in hospital, the mother was interacting well with co-patients, sleeping and eating well and participating in programs. She was given voluntary status as of September 27, 2018 and was discharged September 29, 2018. Mother advises that she is no longer taking the Adderall that was prescribed to her and made her unwell. She states that she has not had “any recent symptoms” and does “not have a history of mental illness.” She states that she is “healthy and well” and is focussed on her son’s “wellbeing and expeditious return” to her care.

[11] In addition to her own sworn affidavits, the mother provided Consultation Notes and letters from her treating doctors during her admissions to hospital. The consultation notes and letters range in dates from September 9, 2018 to November 20, 2018. In those letters it is confirmed that the mother was made voluntary on September 27, 2018 and discharged from RVH on September 29, 2018. They further confirm that the mother was diagnosed with a “drug induced psychosis” (interaction of Adderall and cannabis). They report that she is no longer taking the medication Adderall (since September) and she denies using cannabis. It is reported that she has been responding well to her medication “Abilify” which was prescribed for anxiety. She was made a voluntary patient on September 27, 2018 and there have been no further episodes. The letters and consultation notes confirm that even through all the stressors of this litigation (and being separated from her son), she poses no serious risk of harm to herself or others. She was discharged from RVH’s outpatient care on November 20, 2018 to continue seeing her family doctor and a possibly a female psychiatrist with whom the mother expressed she would be more comfortable.

[12] Generally, the mother is reported to be doing well, she is reactive and is maintaining her employment. No concerns were expressed about her ability to safely parent Maxwell. The mother also provided a letter from her family doctor of 10 years, Dr. Petcho, dated October 17, 2018, which confirmed the mother had, “suffered 2 separate incident[s] of psychosis, the most recent one occurring in September 2018. Both incidents appear to have been transient. She has never been diagnosed with a chronic psychiatric condition and she is not followed by any mental health practitioner other than myself.” He went on to say that the mother “appeared fully competent and exhibited no signs of dysfunction or psychosis” and she is “fully compliant with treatment plans.” He confirmed that upon review of the consultation notes from the psychiatrist in the hospital and his last appointment with the mother, she “appears to be able to take care of herself and her son.” Counsel for the mother further advised the court that the mother has found a female psychiatrist in Alliston, Dr. McGill, whom she will be seeing.

Father’s Position

[13] The father opposes the mother’s motion. He filed his own counter-motion, dated October 16, 2018 and many affidavits since September 17, 2018. The parties returned to court and appeared in front of Eberhard J. on October 25, 2018 regarding mother’s motion to resume primary care and father’s request for disclosure. On that day they agreed to further terms of supervised access in an Order on a without prejudice basis. Today, the father continues to oppose both of the mother’s motions and seeks the continuation of the Sutherland J. Order, as well as the terms of supervised access pursuant to the without prejudice consent Order of Eberhard J., dated October 25, 2018.

[14] Maxwell came into the father’s care on September 8, 2018, after the police called him to pick up the child at Pearson Airport as the mother appeared to be suffering a mental health breakdown. The father says that he kept Maxwell in his care and thankfully he was not in the car with the mother on September 15, 2018 during the car accident. The father takes the position that this car accident was as a result of a second psychotic episode; that the mother was brought to the hospital and a Form 1 was issued, followed by a Form 3, and that she remained in hospital until September 29, 2018. The father takes the position that it is in Maxwell’s best interests to remain in his primary care. He submits that he has not been provided with sufficient evidence of the mother’s psychiatric incidents and the resulting diagnosis and prognosis. He fears for the safety of Maxwell in the mother’s care if left unsupervised.

[15] The father complains that the mother has not been forthcoming with information, which only increases and justifies his fears and suspicions. For example, in his Affidavit dated October 24, 2018, he speculates that the mother’s prescription for “Abilify” could be proof of a more permanent mental health problem, specifically mentioning schizophrenia and bi-polar. He provided a copy of a Wikipedia article that says this medication has been used for treatment of bi-polar disorder and schizophrenia, as well as major depression, autism and obsessive-compulsive disorder.

[16] The father further relies on the disclosure from Family Connexions and their letter, dated December 6, 2018 but not received until the 14th of December (and handed up the day of the motion) from which it is clear that Family Connexions agrees with the father’s position. The historical disclosure dates back to 2016 regarding verified risks of emotional harm resulting from child’s exposure to ongoing post-separation caregiver conflict and alleged partner violence.

[17] The more recent disclosure is from September 8, 2018 through to December 5, 2018 regarding the incidents in September 2018 and follow-up investigation afterwards. This disclosure refers to police reports, reports from the father and the mother and the mother’s doctor. It refers more than once to the fact that father advised Family Connexions that he and the mother had 50/50 custody and that he had previous and ongoing concerns about mother’s mental health. Family Connexions verified there was a risk of harm to Maxwell as a result of the mother’s mental health (without adequate steps to mitigate the associated risks). It further indicates that although the mother had signed consents for information from her family doctor and the police, she had refused to sign consents for information from RVH and her psychiatrist. Family Connexions opened an ongoing file for further information and feedback from the family, as well as observation, as they could not properly evaluate the risk of harm or the adequacy of the steps to mitigate the associated risks without that information.

[18] The letter from Family Connexions is signed by Ms. Croisier (a Child Protection Worker), Ms. Bates (the Child Protection Worker who is taking over the ongoing file) and Ms. Dickson (the Branch Manager). It indicates that they remain concerned about “the amount of back and forth between the two parents that Maxwell is experiencing. A more stable and child-centred access arrangement is encouraged.” It further verifies that the mother’s “mental health did pose a risk to Maxwell’s wellbeing. The Society views it as a strength that the family was able to provide an alternate care plan for Maxwell during the initial crisis.” Lastly, it goes on to say that, “The Society feels that there is further assessment needed with respect to the ongoing safety of Maxwell in his mother’s care. During the course of the ongoing involvement, the Society will be assessing both parents’ ability to resolve conflict between them in a way that does not impact Maxwell. The Society will also be seeking to gather further information on Ms. Anderson’s psychiatric support and her continued avoidance of marijuana use and any other triggering substances.” It also contains a statement that “Maxwell appears to be stabilized in the father’s care at this time.” The father relies on this letter to support his position that there should be no change to the “without prejudice” order for primary residence of the child with him and supervised access to the mother.

Analysis

[19] Any question of custody and access for a child must be reviewed using s. 24 of the Children’s Law Reform Act, R.S.O. 1990, c.C. 12 (CLRA), which sets out the list of factors for the court to use to review the best interests of a child.

[20] This is a motion based upon affidavit evidence, as well as some input from Family Connexions from an incomplete investigation and open file. The recommendations contained in the letter of December 6, 2018 from Family Connexions did not have the benefit of the information and evidence this court received on December 14, 2018. The Family Connexion notes were helpful in that they showed that the adult conflict that continues today was a concern dating back to 2016. However, they also showed that the current investigation was incomplete and the file remained open as the mother had refused to sign some needed consents to gather information from RVH and her psychiatrist; and the father had provided Family Connexions and the police with some information that was misleading (that the custody was 50/50 week about) and speculative about the mother’s mental health status. Ms. Gibson (lawyer with Family Connexions) spoke briefly in court regarding some of the mother’s and the court’s concerns about the disclosure and the letter. Ms. Gibson clarified that the letter was as balanced as it could be having regard for the lack of information from the mother.

[21] The court must exercise extreme care in making a decision which would substantially change the status quo. Although there is no presumption that a status quo governs, the case law is clear that there must be compelling circumstances warranting a change in the status quo. The September 20, 2018 Order of Sutherland J. was made on a “without prejudice” basis to address an urgent situation. It was not meant to change the status quo. Despite this, the father has changed the child’s daycare and is requesting that the mother’s access continue to be supervised indefinitely. He has indicated no plan to return the child to the mother’s primary care and, in actuality, his counsel advised the court that he was planning to bring a Motion to Change the Final Order if Family Connexions did not commence a Protection Application placing the child with him. According to the Family Connexions notes, it may be that the father “wants there to be something wrong” with the mother, “so he feels like he has ‘won’” and that he is angry from when he was charged with assault. I am concerned that the father appeared to be opportunistic in attempting to change custody at this point in time.

[22] The majority of the evidence on this motion is numerous conflicting affidavits. Therefore, in my view, the status quo and final orders established prior to the September episodes are a more powerful indicator of a child’s best interests and it is, if possible, best to avoid speculation and delay returning to the status quo if it is safe for the child to do so. The mother argues that the child is experiencing emotional harm by continuing to be separated from her and being exposed to adult conflict; pointing to some of the child’s regressive behaviours and separation anxiety: the child expresses missing his mother, has been soiling himself and experiencing night terrors.

[23] The mother admits that she suffered two psychiatric episodes in September 2018. In her materials, she has provided sufficient evidence that these were temporary and short lived. In addition to the letters and consultation notes, the letter the mother provided from Dr. Petcho, dated October 17, 2018, carries weight with the court as it comes from the mother’s long-term doctor who has reviewed the hospital records and knows the mother. Unfortunately, this did not satisfy the father nor Family Connexions. The father would not agree to return the child to the care of the mother on October 25, 2018, when the parties appeared in front of Eberhard J. On that day he did agree to an expansion of access, but it had to be fully supervised by the maternal grandmother. He further requested disclosure of the mother’s medical records. Eberhard J. ordered that “to build trust and promote the Applicant Mother’s return to good mental health, information about relevant mental health questions must be answered and invited counsel to frame such questions.” In my view, all of the mother’s affidavits and the consultation notes and letters from her treating physicians have answered the relevant mental health questions sufficiently. In this situation, the father is not entitled to the full medical records of the mother. However, Family Connexions has an ongoing open file and a responsibility to complete their investigation. Their file cannot be closed without further disclosure.

[24] I agree with Eberhard J. in her endorsement of October 25, 2018. She was very clear that the “goal of this court is to gradually return to the previously explored and agreed parenting arrangements but to do so without placing the child at risk of harm if the mental health concerns are not yet fully resolved.” It is the view of this court that a parent with a final order for primary care and a long-term status quo, who suffers a temporary mental health breakdown, should not be treated any differently than a parent who suffers a temporary physical health breakdown or injury. In my view, it is in the best interests of a child to return to the status quo and care of their primary caregiver if:

(a) the health breakdown is temporary; (b) the concerns are being appropriately addressed; and, (c) the parent is able to resume care of their child safely.

[25] If the child was old enough to express views and preferences, these would also be seriously considered; however, all we have in this situation is a small child who misses his primary caregiver, his mother.

[26] The mother provided additional evidence that the temporary mental health concerns, being “a drug-induced psychosis”, have been remedied by the fact she “is no longer taking the prescription medications which caused the reaction in the first place.” Additionally, in her affidavit of December 11, 2018, the maternal grandmother Kelly Anderson (who has been supervising the mother’s access since October 26th) described the mother and Maxwell’s time together as “loving and joyful.” She stated that, “at no time over the course of my supervision or my time with Amanda since October 26, 2018 have I been concerned about her behaviour or her health. She has not behaved in any way erratically or abnormally. I do not have any concerns about her ability to care for Maxwell.”

[27] Based on all of the above, I find that the urgent situations that arose in September (which warranted Sutherland J.’s without prejudice order at that time) have passed. The concerns have been and continue to be addressed appropriately. Pursuant to the Order of Eberhard J. and the parties’ consent on October 25, 2018, the mother’s time with the child has been increased since October 26th and was supervised for many weeks without incident, (through all of October, November and most of December). The need for supervision has passed. The intent of the court has to be to return, if possible, to the status quo that the parties agreed was in Maxwell’s best interests.

[28] There has been an unfortunate amount of conflict between the parties leading up to this motion that warrants some clarifications to the parenting schedule, Christmas access and disclosure of information to Family Connexions, that are in the child’s best interests. It appears that the concerns of Family Connexions arise partly from the mother’s refusal to provide it with information: her refusal to do so unfortunately arose from the mother’s suspicions surrounding the father, and I believe that this information is necessary so that Family Connexions can complete its investigation. The clarifications to the parenting schedule will hopefully serve to reduce the child’s exposure to future conflict between the parents. Nothing in my order is attempting to limit the medical professionals, the child protection professionals, child care professionals or law enforcement professionals from performing their statutory duty to report and/or take such appropriate actions as they deem necessary to protect the child from harm if they become aware of such a situation.

Conclusion

[29] Accordingly, there shall be an order to go as follows:

(a) As of Wednesday December 19, 2018 at 7:30 p.m., the parties shall return to the parenting schedule and status quo set out in the Order of Justice Vallee, made February 9, 2018, specifically: (i) The Applicant Mother shall have primary care of the child, Maxwell Albert Thomas McMann (born March 5, 2015); (ii) The Respondent Father shall have parenting time with the Maxwell as follows:

1. In Week 1: Monday from 4:00 p.m. to 7:30 p.m. and Wednesday from 4:00 p.m. to Thursday morning drop off at 9:00 a.m. or to daycare. This shall commence the week of December 31, 2018.
2. In Week 2: Monday and Wednesday from 4:00 p.m. to 7:30 p.m. and Friday from 4:00 p.m. until Sunday at 7:30 p.m. (b) The child shall be removed from Montessori Country School in Nobleton, Ontario, and resume being cared for by Ms. Michelle (daycare). (c) Neither party shall speak negatively about the other to the child or within the child’s earshot and they shall make their best efforts of restrict third parties from doing same. (d) Both parents shall conduct themselves in a civil manner during access exchanges and in any of their communications regarding Maxwell. (e) Neither party shall travel outside the province of Ontario with the child without the prior written consent of the other party. Such consent shall not be unreasonably withheld. The travelling party shall provide the other with at least 30 days’ notice of any intent to travel with the child and a full-detailed itinerary with details of flights, accommodations, contact information and return dates. (f) The regular schedule for parenting shall be interrupted during Christmas so that the Applicant Mother and Respondent Father share the Christmas holidays with the child as follows, (unless otherwise agreed in advance between the parties in writing): (i) Maxwell shall be in the Applicant Mother’s care from December 19, 2018 at 7:30 p.m. until December 24th, 2018 at 10:00 a.m.; (ii) Maxwell shall be with the Respondent Father’s care from December 24th at 10:00 a.m. until 7:30 p.m. (iii) Maxwell shall be in the Applicant Mother’s care from December 24th at 7:30 p.m. until December 26th at 1 p.m. (iv) Maxwell shall be in the Respondent Father’s care from December 26th at 1 p.m. until December 30th at 7:30 p.m. (g) Both parties shall work cooperatively with the Simcoe Muskoka Family Connexions regarding their ongoing investigation and open file. The parties shall make themselves and the child available for mutually convenient meetings and/or observation. (h) A copy of this endorsement and order shall be provided to Simcoe Muskoka Family Connexions, Dr. Petcho, and the mother’s treating psychiatrist. The Applicant Mother shall sign a limited consent allowing Simcoe Muskoka Family Connexions to obtain written evidence from her family doctor Dr. Petcho, and/or her treating psychiatrist to confirm four things: (i) Mother’s mental health diagnosis (if any); (ii) Mother’s attendance at scheduled appointments and counselling; (iii) Mother’s compliance with treatment recommendations and prescribed medications; and, (iv) Mother’s prognosis.

[30] I wish to comment that I have no doubt that both of these parents love Maxwell very much and have been acting (to the best of their abilities) in the best interests of the child. The father should be commended for stepping up to care for and protect the child during the mother’s psychiatric episodes. The mother should be commended for addressing the mental health concerns and continuing in her treatment. It is unfortunate that only a couple of months after finalizing their family issues the parties faced this urgent situation and the distrust and animosity between the parties spiralled out of control again. They entered another litigation war of affidavits and little Maxwell was caught in the middle. It is my view that if the parties do not improve their level of cooperation and trust, and treat each other with civility, Maxwell will never truly know a day of peace and stability during his childhood and his emotional well-being will be compromised.

[31] If counsel cannot agree on costs, I will receive written submissions on a 7 day turnaround, commencing with the Applicant mother, followed by responding submissions, then reply submissions, if any, commencing January 18, 2019. Cost submissions shall be no more than 2 pages in length (12 pt font size, regular 1 inch margins, 1.5 spacing), exclusive of any costs outline or offers to settle. All costs submissions shall be delivered via email through my judicial assistant at Jennifer.Beattie@ontario.ca. If no submissions are received within 45 days from the date of this endorsement, the issue of costs will be deemed to have been settled between the parties.

Jain J. Released: December 18, 2018