Court File and Parties

COURT FILE NO.: FC-20-562

DATE: 2020/04/23

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Luc Lefebvre, Applicant -and- Kazuna Lefebvre, Respondent

BEFORE: Justice P. MacEachern

Counsel: Stephanie Simard, Counsel for the Applicant Tania Pompilio, Counsel for the Respondent

HEARD: April 14, 2020, by teleconference

Endorsement

[1]. The parties have a five-and-a-half-year-old child. They recently separated on February 25, 2020. The urgent issue in dispute is the parenting arrangements for the child.

[2]. For the reasons set out below, I find that it is in the best interests of the child to be in an equal timesharing arrangement, on a temporary, temporary basis pending further court order or agreement between the parties.

Background

[3]. On April 6, 2020, Master Fortier scheduled this urgent motion on the issue of parenting, under the March 15, 2020 direction suspending regular court operations.

[4]. Master Fortier set out the factual background in this matter, as follows:

a. The parties met in Japan in 2004 when the Applicant was a Canadian exchange student residing for a period with the Respondent’s family.

b. The parties began living together in 2006 and moved to Ottawa in 2007. The Respondent obtained her permanent residency status in 2009. The parties were married in August 2012, and their son was born in August 2014.

c. The Respondent is currently unemployed, having been a stay-at-home mother since the birth of their son. The Applicant is employed as a garage attendant with OC Transpo.

d. The Respondent’s mother tongue is Japanese, and although she states that she struggles to communicate verbally in English, she can communicate fairly well through written English.

e. On February 25, 2020, the Applicant left the matrimonial home, removing the child without the Respondent’s consent and has been withholding physical access to the child since that time. The Applicant has, however, enabled face-time between the Respondent and the child, which, according to the evidence, has not been without difficulties.

f. According to the Applicant father, the Respondent mother has serious mental health issues that she refuses to address and accordingly, the child’s safety and well-being will be at risk in the Respondent’s care. The Applicant insists that the Respondent’s physical access to the child be limited to 2 hours per week and supervised by his parents.

g. The Respondent acknowledges that she has struggled with anxiety and depression since October 2018, following an incident involving the Applicant’s family. She acknowledges being hospitalized and having difficulty accepting medical advice to take medication for her anxiety and depression. She maintains, however, that she is now on medication and under the care of a therapist, and her overall mental health has improved significantly. This is corroborated by independent evidence from her therapist and family doctor.

[5]. The father’s position is that the mother’s access should be restricted to supervised access. He proposes that access be supervised by his mother, for two hours each, two times per week. The father argues that the concerns regarding the mother’s mental health warrant supervised access. He takes the position that there is insufficient information regarding the mother’s treatment plan and that there is still significant uncertainty about whether the mother will follow through with the most recent steps she has taken to address her mental health issues.

[6]. The mother’s position is that it is in the child’s best interest to be in her care on an equal timesharing basis, in particular, due to her being the child’s primary caregiver since birth and before separation. The mother states that she is addressing her concerns regarding her mental health, which has significantly improved since she has begun taking her anti-depressant medication and finding a counsellor with whom she can communicate in Japanese.

[7]. The mother has provided various medical reports, including a detailed report dated March 27, 2020, from her psychotherapist Takanori Kuge. Mr. Kuge has provided psychotherapy to the mother weekly since March 4, 2020. These sessions take place in Japanese. In each session, Mr. Kuge has conducted the Japanese version of the Beck Depression Inventory (BDI). The mother’s BDI score has improved in each session. At the last reported session, on March 23, 2020, the mother’s BDI score ranged from 10 to 8, which is within the normal range.

[8]. The mother has also provided a letter from her family doctor, Dr. Khougaz. Dr. Khougaz confirms that the mother was diagnosed with major depression associated with anxiety/panic attacks around November 2018 but was mentally healthy before that period. The evidence before me is that although the mother was prescribed anti-depressants and counselling in the fall of 2019, she did not follow this prescription until the end of February of 2020. Dr. Khougaz confirms that the mother is now taking anti-depressant medication and that her condition has significantly improved since taking the medication. Dr. Khougaz states that his view is the mother does not pose a risk to the safety of her child.

[9]. There is also evidence before me regarding the involvement of the Children’s Aid Society. The CAS investigated the matter due to concerns regarding the mother’s mental health. Still, as of March 31, 2020, the CAS had closed its file “as the father is acting proactively and because [the mother] has recently begun to work with her doctor and following his treatment recommendations.” I also note that as of March 17, 2020, the CAS was not taking a position on custody or access, advising that those issues would need to be resolved between the parents. Specifically, the CAS does not require the mother’s access to be supervised – it is not taking a position on custody and access of the child, and these matters are to be addressed between the parties or, if not, by the family court.

[10]. Neither party has raised any specific COVID-19 related health concerns regarding precautions being followed in the other party’s household.

[11]. The father is continuing to work outside of the home. He is currently residing with his parents in their home. The mother is continuing to reside in the matrimonial home. The father consents, on a without prejudice, temporary, temporary basis, to continue to reside outside of the matrimonial home so that the mother can continue to occupy the home without his presence.

[12]. The father commenced this Applicant on March 16, 2020. The Father has claimed relief under the Divorce Act, as well as the Family Law Act and the Children’s Law Reform Act.

Analysis

[13]. In his affidavit, the father claims to have always been the primary caregiver for the child throughout the parties’ marriage. This is not supported by the fact that the father was also employed on a full-time basis, working shift work. At the hearing of the motion, the father’s counsel clarified that the father only meant that he was the child’s primary caregiver since the fall of 2018, during the period of the mother’s mental health difficulties. Again, this is difficult to reconcile with the father’s full-time work schedule. However, I accept that, at times, the father took time off from work to assume more responsibility in the home, particularly in January of 2020.

[14]. I am not, however, prepared to find that the father was the primary caregiver. I find that it is more likely that, while the father did contribute more in the past year to home and child-caring activities, the mother continued to be significantly involved, and that the parties both assumed significant parenting responsibilities during the past year.

[15]. I am also satisfied on the evidence before me that there were legitimate concerns regarding the mother’s ability to self-care and care for the child due to her mental health issues. But I also accept that the mother has taken significant steps since the date of separation, by seeking out medical advice, following prescribed treatment by taking her medication and engaging in weekly counselling and that these steps have resulted in significant benefit to the mother.

[16]. The mother is also committed to continuing these positive steps and consents to a temporary, temporary, without prejudice order that she continues to see Dr. Khougaz as directed and to continue her weekly counselling with Takanori Kuge.

[17]. The mother is further prepared to provide regular updates to the father to confirm she is continuing with her treatment, and to authorize her medical caregivers to release information to the father as another safeguard to assure the father that she continues to follow medical direction.

[18]. I find that it is in the child’s best interests for the child to be in the care of both parties on an approximately equal basis. I find that an equal timesharing arrangement best reflects the status quo before the parties’ separation. The mother was also the primary caregiver for the child up until the fall of 2018 when the father increased his role in the home and with the child. Most recently, both parties have played a significant parenting role. The mother has also taken significant steps that have resulted in very positive improvements to her mental health difficulties, and she is committed to continuing these steps.

[19]. Accordingly, I make the following orders:

a. On a temporary, temporary basis, the child shall reside with the parties on an equal timesharing 2-2-3 schedule. If the parties are unable to agree on the specifics of this schedule, they may write to me, and I will determine the specifics of the schedule. But to be clear, an equal timesharing schedule should be put in place on an immediate basis.

b. On a temporary, temporary, without prejudice basis, the parties shall make custodial decisions for the child jointly.

c. On consent, on a temporary, temporary without prejudice basis, the mother shall continue to take all medication prescribed by her medical professionals, shall continue to be treated by Dr. Khougaz as directed by him, shall continue to attend regular counselling with Takanori Kuge as directed, and shall authorize Dr, Khougaz and Takonori Kuge to advise the father if the mother ceases such treatment contrary to their direction.

d. I decline to make an order, at this time, requiring the mother to provide regular reports to the father regarding her mental health status. However, the mother has stated that she is willing to do so. My view is that it is reasonable and prudent, for the mother to provide some regular information regarding her mental health status to the father. This information is relevant to the issues in dispute and should be proactively exchanged promptly. But I will not make an order requiring such reports at this time, to allow the parties to have further discussion, and optimally reach an agreement, on the nature of this disclosure and how it can best be provided in a manner that supports the mother’s mental health, while also exchanging proportional and necessary information relevant to determining the best interests of the child.

e. On consent, on a temporary, temporary, without prejudice basis, the father shall continue to reside outside of the matrimonial home so that the mother can occupy the home without him being present.

f. On consent, on a temporary, temporary without prejudice basis, neither party shall remove the child from the Regional Municipality of Ottawa-Carleton, nor change the child’s residence, without a further court order or agreement of the parties.

g. A case conference shall be scheduled in this matter, for 30 minutes, to deal with the urgent parenting and financial issues. This case conference shall be scheduled before me, by the Trial Coordinator, for a date in May 2020. Both parties shall ensure that they complete their pleadings, including Form 35.1’s and financial statements, and exchange all disclosure that is in their possession, power and control, is relevant and proportional to the issues in dispute, in advance of the case conference so that the conference can be as productive as possible. Case conference briefs shall not exceed six pages. I strongly encourage the parties to make every effort to negotiate a resolution of the financial issues, at least on an interim without prejudice basis, in advance of the conference.

h. If the parties are unable to agree on costs of this motion, the Respondent mother may file submissions concerning costs on or before June 5, 2020. The Applicant father may file submissions concerning costs on or before June 18, 2020. Cost submissions of both parties shall be no more than three pages in length, plus any offers to settle and bills of costs and shall be spaced one point five spaces apart, with no less than 12-point font.

i. Because of the COVID-19 emergency, this order is being issued under my electronic signature. This order is enforceable without the present need for a signed or entered formal order. Once the Court can expand operations during the current period of suspension, a copy of this order shall be filed with the Court. This order is an effective and binding order through its issuance under my electronic signature and email a copy of which is being sent to the family counter in Ottawa.

Dated: April 23, 2020 _________________________

Justice P MacEachern