Court File and Parties

Court File No.: FC-18-0161 Date: 2020/06/19 Superior Court of Justice - Ontario

Re: Milene Louise Marengère, Applicant And Daniel Patrick Menard, Respondent

Before: Justice A. Doyle

Counsel: Linda A. Hanson, Counsel for the Applicant Self-Represented, for the Respondent

Heard: June 19, 2020 by teleconference

Endorsement

[1] As a result of COVID-19 which has caused the suspension of regular Superior Court of Justice operations as set out in the Notice to the Profession dated March 15, 2020, this urgent matter was heard by teleconference. See https://www.ontariocourts.ca/scj/covid-19-suspension-fam/.

[2] This matter was rendered urgent by Master Kaufman on June 10, 2020.

[3] The Applicant mother brings a motion for an Order suspending the Respondent father’s access due to his failure to comply with the medical protocol necessary to meet Patrick’s health needs and the COVID-19 protocol or in the alternative that his access be supervised and limited to 6 hours on alternate Saturdays from 10:00 a.m. to 4:00 p.m.

[4] The mother verbally requested the involvement of the Office of the Children’s Lawyer’s Office but I decline to deal with this issue as it is not requested in her Notice of Motion.

[5] The father opposes the motion.

Brief Background

[6] The parties never cohabited. They have one child Patrick Marengère-Menard born October 31, 2009 (10 years old). Patrick lives with his mother.

[7] Patrick has special needs. In 2015, he was diagnosed with a bladder and kidney condition which makes him a vulnerable child susceptible to infections and illness. The Children’s Hospital of Eastern Ontario (CHEO) Urology report filed states that he requires routine catherization. In 2015, he underwent a Mitrofanoff conduit for bladder catheterizations and requires bladder catheterizations 3 to 4 times a day. He needs to maintain proper hygiene.

[8] He has been diagnosed with Global Development Delay and also has Ataxia (a focus disorder) which requires frequent redirection. He also has eye sight and dental issues.

[9] On March 17, 2020, Justice Fraser released her decision after a trial which took place on November 28, and 29, 2019.

[10] Her Honour found that the mother had been the primary caregiver since Patrick’s birth. She indicated that the parties struggled with good communication which led to conflict. The father admits to anger issues when dealing with the mother as he believes she is interfering in his relationship with his son.

[11] Justice Fraser found that they have two very different parenting styles and they both struggle for control and a general unwillingness to concede to the requests from the other parent.

[12] Since Patrick was two years old, the father was enjoying access every second weekend. From March 2019 until recently, the father did not exercise this access as the access exchange taking place at the OPS was make it challenging to exercise access due to the distance he would be required to travel. The exchange was required due to a March 2019 incident which had occurred at Tim Horton’s, the previous access exchange location.

[13] At trial, the Court did not find there was any compelling evidence to deny access visits to the father.

[14] Justice Fraser ordered:

• Father to have access every other Saturday from 10:00 a.m. to 4:00 p.m. commencing March 28, 2020 for a month;
• For the next month every other weekend from Saturday at 10:00 a.m. to Sunday at 4:00 p.m.;
• Commencing May 22, every second weekend from Friday after school to Sunday at 4:00 p.m.;
• Commencing June 19 every second weekend from Friday after school until Monday before school;
• Holiday time;
• Mother would decide medical/educational issues and she will keep father informed;
• The father will comply with all medical protocols put in place for Patrick;
• Neither party will discuss any aspect of this litigation with Patrick;
• Neither party is to make any negative comment about the other party; and
• Parties are to communicate via Our Family Wizard or 2houses.

[15] The mother was not co-operative in providing visits to the father. On April 11, 2020, an OPS officer attended at the home and convinced the mother to allow Patrick to go for a visit with his father.

[16] Patrick had two further visits with his father, during the weekend of May 9-10 and May 23-24, 2020.

Mother’s Position

[17] The mother states that the father has consistently refused to acknowledge Patrick’s medical condition despite the fact that Justice Fraser acknowledged the same and included a term in her Order that his medical protocol be followed.

[18] The mother indicates that the father refuses to confirm in writing that he will follow the COVID-19 procedures.

[19] Patrick was diagnosed with his disease in 2015 and requires regular catheterizations usually before meals and at bed or in the morning when he rises.

[20] The mother noted the following concerns after visits with his father:

• Patrick is allergic to fragrances: Despite this, Patrick smelled of cologne and aftershave and became very itchy on the way home and the mother was required to remove his clothing and wash him;
• Patrick requires regular catherization: Despite this, the father did not catheterize him before dinner or before bed, so he voided urine in the night;
• His belly button where the insertion is done must be kept clean to avoid infection: Despite this, the mother noted old hardened gel and fluff from his clothes at the opening of his belly button;
• Use of the catheter: It was obvious that the father had not used the catheter as when the mother used in on Patrick’s return, Patrick’s urine was brown which indicates that it had been sitting in Patrick’s bladder for 24 hours; This happened on two occasions;
• The father brought Patrick to a trailer park during the pandemic and the mother was concerned with respect to contact with others and the cold weather;
• On the May 23/24 weekend, the father cut Patrick’s hair against his wishes;
• Contrary to Justice Fraser’s decision, the father maligned the mother and spoke ill of her to the child which upset him;
• Patrick told his mother that he afraid to use the toilet at his father’s residence as it might get blocked and would upset his father;
• Patrick told the mother he does not want to go back to his father’s residence and the mother had placed him on waiting list with the Ottawa Centre for Resilience (OCFR);
• The last two visits have been difficult for Patrick and he returns home exhausted and impedes his ability to function properly.

Father’s Position

[21] The father contests the motion and in his short affidavit simply states that he requests police enforcement, is meeting the child’s medical, mental and physical needs and wishes to avoid mental trauma on the child.

[22] In his second affidavit, he indicates that Patrick had told him that he did not need a catheterization at bedtime, and that, as a result, Patrick had an accident in bed that night.

[23] He now ensures he has the catheter taped to Patrick in his double diaper.

[24] He was not aware of Patrick’s allergies and does not wear cologne or after-shave.

[25] He is concerned that the mother is sending Patrick on access with his father with small size underwear when he should be wearing medium size.

[26] Regarding the haircut, Patrick wanted a trim so he could have a haircut like his father.

[27] The mother has denied 2 out of 5 visits. The mother is not supportive of the relationship of Patrick with his father. Patrick requires consistency for his well-being and security.

Analysis

[28] In accordance with the Children’s Law Reform Act, s. 24, the determination of custody and access must be made in accordance with the child’s best interests.

[29] Patrick has special needs. The material filed indicated that he has physical needs which demand certain routines including the use of a catheter on a regular basis and monitoring of his voiding functions. This places a responsibility on caregivers to ensure that they remain vigilant to oversee Patrick’s physical needs.

[30] In addition, he is allergic to smells.

[31] At the trial, the mother complained of the father’s anger management issues, that he did not provide Patrick with prescribed medications, does not ensure that Patrick remains hydrated; uses unsanitary methods to clean him, allowed Patrick to get a “swimmer’s rash, allows him to miss schools on Monday, has trouble getting the necessary consents, difficulties encountered at access exchanges, and that the father had a threatening manner with her.

[32] The trial Judge who heard this matter about 6 months ago and rendered her decision 3 months ago outlines the conflict and issues between the parties. At trial, the Court had an opportunity to hear the evidence of the parties, full cross-examination of the parties and consider the OCL report.

[33] Justice Fraser’s decision thoroughly deals with the parties’ respective evidence.

[34] The mother was permitted to amend her application at the trial to include a request for an order that the father have no access.

[35] Justice Fraser fully set out the mother’s concerns which are very similar to the ones she has addressed in this motion. At the trial, the mother alleged that:

• The father did not comply with Patrick’s medical protocol when in fact, the OCL found that the father had a full set of catheters in his residence;
• That the father exposed Patrick to the adult conflict; there was a finding that the parties were involved in high conflict to the point that the father has difficulty controlling his emotions when confronted by the mother on issues;
• That Patrick was scared of his father; and
• That Patrick came home after visits with his father crying;

[36] Justice Fraser considered the evidence of the Office of the Children’s Lawyer (OCL) clinician which recommended sole custody to the mother and access to the father on a gradual basis.

[37] The OCL found the father’s home to be clean and safe with many child related activities and toys in the home. She noted that Patrick seemed comfortable with his father and that they were both responsive to each other.

[38] The OCL observed that the father was seen to engage in activities appropriate for Patrick and focussed on learning.

[39] The trial Judge accepted the recommendation of the OCL and after making a finding that the parents have very different parenting styles, determined that the child should have a gradual increase of access to his father.

[40] At paras. 81 to 84 of her Decision, Justice Fraser stated:

[81] The conflict that exists between the parties did not arise solely, as suggested by Manegere, because Menard has reacted angrily and has been uncooperative. The parties have two very different parenting styles. There is a struggle for control. There is an unwillingness of either to concede to the requests of the other. Neither seems inclined to consider the possible legitimacy of the other’s perspective.

[82] Both parties have demonstrated an inflexibility when it has come to acceding to requests from the other and this has frequently brought conflict to the parties’ communication.

[83] In my view, this inability of the parties to communicate without conflict is the most concerning issue which has been raised in this proceeding. I find that, regardless of the reason for it, its existence has the greatest potential to negatively impact Patrick. Patrick has been exposed to this conflict.

[84] While Menard attributes much of his inappropriate actions to his reaction to the present proceedings, his disrespect for Manegere and his inability to communicate without verbal aggression is a legitimate concern. He readily admits, for instance, that he chose not to inform Manegere that he had the appropriately sized catheters for Patrick. This did nothing to assuage Manegere’s concern that he was unwilling to comply with the necessary medical protocols for Patrick.

[41] The mother does not specify how the father has failed to comply with COVID-19 protocol. She merely asserts he has refused to confirm that he has done so.

[42] Despite the lack of the ability of the parents to communicate, it is incumbent on the father to confirm that he is following the COVID-19 protocol. She is the primary caregiver and has a right to know if he has. He indicated he has been complying with the COVID-19 protocol in his oral submissions to the Court.

[43] Nonetheless, he acknowledges Patrick’s medical issues and in consultation with Patrick, is taking the necessary steps to ensure that his physical needs are met. He misses one catherization but has been completing the same ever since.

[44] In considering the best interests of the child, the court is to consider all of the child’s needs and circumstances. In making this determination, sub-section 24 (2) of the Children’s Law Reform Act sets out a non-exhaustive list of factors that should be considered by the court pertaining to the child.

[45] On an interim basis, without full cross-examination of the affidavits, the Court is loath to change a trial decision that had thoroughly reviewed the issues between the parties. So long as the father is complying with the medical directives for Patrick including the use of the catheter, then the Court should not interfere with the Trial Judge’s Order.

[46] Communication must take place on Family Wizard or 2Houses online platform that was ordered by Justice Fraser. Both parents should follow the medical recommendations. Since the father is resuming his time with his son, after a one-year absence, he will be required to re-educate himself as to Patrick’s needs through speaking to the medical professionals and communicating with the mother who is his full time caregiver. The father should not solely rely on what Patrick tells him as to what is needed for his medical care.

[47] The Court is very concerned that due to the parties’ past history of conflict, they will refuse to set aside their differences and Patrick will be in the midst of the crossfires.

[48] I note that the mother indicates that the child was interviewed by a Children’s Aid Society (CAS) worker but there is no evidence from the worker. The mother indicates that Patrick again repeats that he does not wish to go to his father. The CAS will not be actively involved in this matter.

[49] On the evidence before me, I do not find that the mother has proven that there has been a material change of circumstances as required by s. 29 of the Children’s Law Reform Act.

[50] The Court starts from the premise that the Final Order is correct.

[51] The moving party must show that there is a material change in circumstances: see Gordon v. Goertz , [1996] S.C.J. No. 52. The Court must be satisfied that there has been a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the child’s needs; and that this materially affects the child and that this was not foreseen or could have been reasonably contemplated by the Judge who made the initial Order.

[52] See also Willick v Willick , [1994] 3 S.C.R. 670; and Persaud v Garcia-Persaud (2009), 81 R.F.L. (6th) 1 (Ont. C.A.). In order for a change to be “material”, it must be one of some significance, and it must relate to a state of affairs that was not known or foreseen at the time the original order was made.

[53] In determining whether there has been a material change of circumstances, L.(N.) v. M.(R.R.) 2016 ONCA 915, the Court stated that the Court should look at the intervening circumstances.

[54] Mother’s counsel has referred me to Kerr v. Easson 2013 ONSC 2486 which was upheld by the Court of Appeal where Justice Gray permitted the change of a final consent Order dated 2011 on the basis that there was a material change of circumstances. He found in that case that even though a parent was acting in a way contrary to the best interests before the making of the Final Order, that this behaviour could not be used to change the Order. The parties had agreed to joint custody and in his view “any significant deviation from the explicit and implicit undertakings to look out for the child’s best interests and his general welfare can give rise to a material change in circumstances”. (para. 61)

[55] The Court stated at para. 62:

That is not to say that every circumstance that might detrimentally affect the child will necessarily be considered a material change in circumstances. Parents are not perfect and they will make mistakes. The court will not assume jurisdiction to correct every mistake in the guise of a material change in circumstances.

[56] The Court found in that case that in the past 2 years since the issuance of the Consent Court Order the parent had neglected the child’s school work and encouraged the child in playing age-inappropriate video games. 2 years

[57] In V.B. v. M.M. 2016 ONCJ 98, Justice Starr dealt with the motion to change of a 2013 Consent Final Order. The mother requested a termination of access three years after the consent Order and the father did not file any responding material.

[58] Therefore, the Court dismisses the mother’s motion because:

• The issues that the mother raises were before Justice Fraser and were thoroughly dealt with her in a decision that she released only three months ago;
• Within 2.5 months after the decision and after a few visits with the father, the mother brought this motion;
• The father is becoming re-acquainted with his son and is taking steps to learn the child’s medical protocol;
• There has been very little time to implement the access regime set out in Justice Fraser’s Order that would see a re-integration of the father in Patrick’s life;
• I am satisfied on the evidence before me that at least at this point in time, the father is complying with Patrick’s medical protocol;
• The OCL who investigated the matter and reported to the Court in November 2019 noted that Patrick was comfortable with his father and that the father appeared to be attentive to his needs; and
• It is clear that the conflict that existed at the time of Justice Fraser’s Order continues and that Patrick is unfortunately caught in the cross-fires; and
• Although there appears to be some non-compliance of Justice Fraser’s Order at this time, i.e. not to talk negatively to Patrick about the other parent, I am not satisfied on the balance of probabilities that this a material change of circumstance to justify a change of the Final Order.

[59] This Order is without prejudice for either party to bring the matter back upon a material change of circumstances.

[60] A material change of circumstances could be considered if the situation does not ameliorate or the parties fail to follow the terms of the Final Order or that this conflict continues such that this Order is no longer in Patrick’s best interests.

[61] Finally, I remind the parties to comply with Justice Fraser’s Order that they communicate through Family Wizard or 2houses. Certainly, if this matter returns to Court, the parents’ respective behaviour will be scrutinized by the Court if it must determine what is in Patrick’s best interests.

[62] Motion dismissed. Therefore, access will continue as set out in Justice Fraser’s Decision.

Justice A. Doyle Date: June 19, 2020