Court File and Parties

COURT FILE NO.: FC-19-2086 DATE: 2020/08/05 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: TRACY PARE (VILLENEUVE), Applicant -and- JASON LEBLANC, Respondent

BEFORE: Madam Justice Sylvia Corthorn

COUNSEL: Rebecca E. Rosenstock, Counsel for the Applicant Respondent is self-represented Allison Lendor, for the Office of the Children’s Lawyer

HEARD: July 31, 2020

Endorsement

Background

[1] The parties are before the court seeking relief related to the custody of and parenting time with their two children, Kaylee-Ann Leblanc (DOB: May 5, 2004 and “Kaylee”) and Bryson Leblanc (DOB: April 16, 2007). At present, custody and parenting time are addressed in two orders: the final order of Quigley J. dated April 19, 2012 (“the 2012 Order”) and the temporary order of Kane J. dated February 26, 2020 (“the 2020 Order”).

[2] The 2012 Order is based on minutes of settlement. It provides, amongst other matters, that

• the children are to reside “principally” with the mother and to be parented by the father (a) every second weekend until Monday morning drop-off at school, and (b) every Wednesday after school until Thursday morning drop-off at school,
• the mother “shall make the major decisions, including health, education and religion, regarding the children”, and
• the parties “agree that a shared parenting arrangement shall be considered in the best interests of the children if [the father] moves within close distance of [the mother’s] new home in Orleans”, with a specific parenting schedule to be prepared taking into consideration the children’s needs and the parents’ respective work schedules.

[3] When the application was commenced in 2011, both parties were living in Cornwall. The mother had, by 2012, moved to Orleans. The father subsequently moved. Both parties now reside in Orleans with their respective new partners and blended families. The mother has a son, now eight years old, with her partner. The father’s partner has three children from a previous relationship.

[4] In 2019, the father commenced a motion to change pursuant to which he is seeking sole custody of the children including that they reside primarily with him. In February 2020, and on the consent of the parties, Kane J. made a temporary order providing for the payment of child support and addressing a number of matters related to the children. The 2020 Order,

• is silent on the children’s primary residence – meaning that it remains with the mother,
• mandates that the parties are to “consult with each other, in writing, prior to making any major decision (medical, health, education) for the children”, and
• provides that in the event of a disagreement with respect to a major decision, the mother has the final decision-making authority.

[5] The 2020 Order also provides for the matter to be referred to the Office of the Children’s Lawyer (“OCL”) for the children to be represented in the matter. The request for the involvement of the OCL was granted. The children are represented by Allison Lendor.

[6] The parties acknowledge that as of early 2020, and on an informal basis, the father’s parenting time with the children increased. From the beginning of April to early June 2020, the children resided with each parent on a week on and week off basis. Since early June 2020, the children have remained in their father’s home and seen their mother on less than a handful of occasions collectively. The children remain in communication with their mother, with the communication primarily initiated by her.

[7] In response to his concerns about the children’s well-being at their mother’s residence, the father brought an urgent motion. He is seeking “full custody” of the children (including that he has sole decision-making authority), with the mother to have parenting time every second weekend and every Wednesday. In essence, the father is seeking a reversal of the parties’ respective roles as provided in the 2012 and 2020 Orders.

[8] The mother’s belief is that the father is withholding the children from her. She alleges that he has done so in the past; the present situation is the most extended the overholding has been. The mother brings an urgent motion in which she is seeking an interim order providing for the children to reside with the parties on a week-on and week-off basis for the balance of the summer months. The mother requests that, as of the beginning of the school year, the parties and the children then return to the primary residence, parenting schedule, and decision-making authority as provided in the 2012 and 2020 Orders.

[9] On July 22, 2020, Audet J. ordered that the parties’ respective motions be heard on an urgent basis. The motions were heard on July 31, 2020. At the conclusion of the hearing, the parties reached an agreement with respect to the mother’s parenting time with the children over the August holiday long weekend. The terms of that agreement are reflected in the order set out at the conclusion of this endorsement.

The Issues

[10] At the outset of the hearing, I advised the parties that I would not make an order awarding “full” (the father’s term) or sole custody to either party on an interim basis. The issue to be determined, on an interim basis only, is what parenting arrangement and schedule are in the best interests of the children?

The Evidence

[11] In her endorsement, Audet J. noted that the materials filed by the parties for the purpose of a determination of urgency far exceeded that permitted under the most recent direction from the court. She prohibited the parties from filing any additional materials for the purpose of the substantive motions.

[12] The evidence on the motions is as follows:

June 8, 2020 Form 35.1 affidavit of the father; June 8, 2020 Form 14A affidavit of the father; July 14, 2020 Form 14A affidavit of the mother; July 17, 2020 Form 14A affidavit of the father; and July 20, 2020 Form 14A affidavit of the mother.

[13] Before addressing the substance of the evidence, I wish to comment on the quality of the evidence. First, the mother’s July 14 and the father’s July 17 affidavits each consist of a single paragraph in which they state, “I swear/affirm that the following is true.” To that statement the mother adds, “Please see attached” and the father adds, “See attached items numbers 1-55.” In her attachment, the mother refers to a number of documents and identifies them as exhibits. No explanation is offered by either party as to why they were unable to provide affidavits that comply with the Family Law Rules, O. Reg. 114/99.

[14] Second, both of the father’s affidavits are unsworn. No explanation was provided by the father as to why he did not file sworn affidavits.

[15] Third, the affidavits do not properly address evidence provided on the basis of information and belief. Both parties rely on information provided to them by another. Rarely, if at all, does either party identify the source of the information or confirm their belief as to the truth of the information.

[16] With respect to the second and third points, I appreciate that the father is self-represented. Being self-represented does not, however, mean that the father is excused from complying with the Family Law Rules, O. Reg. 114/99, the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, with respect to affidavit evidence on a motion, and the rules of evidence.

[17] Fourth, the affidavits, including exhibits, are not paginated continuously for ease of reference.

[18] Fifth, the mother includes as an exhibit to her July 20, 2020 affidavit a seven-page individual incident report from Bryson’s school regarding his problematic conduct from October 2019 to early March 2020. These pages are in French. This is not a bilingual proceeding. A party in a unilingual proceeding who wishes to rely on a document written in a language other than the language of the proceeding, must provide a certified translation of the document: r. 1(7) of the Family Law Rules, O. Reg. 114/99 and s. 125(2)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43.

[19] As the individual incident reports do not comply with the governing statute and regulation, I have not considered the contents of those documents in reaching my decision on the motions.

[20] When the deficiencies in the evidence are taken into consideration, the voluminous materials do not provide the significant amount of evidence that might otherwise have been anticipated based on the volume of materials filed.

The Involvement of the OCL

[21] Ms. Lendor only recently received the file. Prior to the return of the motions, she met with the children on two occasions – first in the back yard of and second in a park located near the father’s home. Ms. Lendor plans to meet with the children again. Ms. Lendor described being able to develop a rapport with the children such that, by the second meeting, the children appeared to be comfortable to open up to her. Ms. Lendor provided the court with a summary of the information gathered during her meetings with the children.

[22] Ms. Lendor was careful to emphasize that she has yet to conduct meetings with the parties and with collateral sources. She also emphasized that the information relayed to the court, based on her two meetings with the children to date, is in no way intended to represent her final recommendations in the matter.

[23] Both parties allege that the other is involving the children in the adult conflict and attempting to portray the other party in a negative light to the children. The children, on the other hand, both reported to Ms. Lendor that neither of the parties talks much about the court proceeding. Bryson was not aware of either party speaking badly of the other. Kaylee reported that the mother describes the father as an alcoholic and someone from whom the children need protection. Kaylee told Ms. Lendor that the father does not speak badly of the mother.

[24] The information provided by Ms. Lendor is, as acknowledged by her, preliminary only. Regardless of the preliminary nature of the information there are several matters about which there is consistency from one child to the other. Those matters are of assistance to the court in understanding the dynamics that led to the current situation and are discussed below.

Analysis

a) Parenting Schedule

[25] The parties were prescient in 2012. They recognized that it would, as the children grew up, be necessary to revise the parenting agreement and schedule – specifically if the father were to move to Orleans (as he did). A term to that effect is incorporated in the 2012 Order. To the parties’ credit, they had the foresight to see that flexibility would be required over time.

[26] Based on the evidence before the court, it is difficult to make specific findings of fact as to what has transpired in the past six to ten months to lead the parties and the children to the point they have reached. There are, however, several themes that run consistently through the evidence of the parties and the information provided by Ms. Lendor. Those themes include the following:

• The parties agreed, on an informal basis, to an increase in the father’s time with the children commencing in 2020 – to the point that by April 2020 the schedule was week on and week off;
• The disruption in the children’s lives caused by the pandemic, including the requirement to carry out remote learning, resulted in a change in the dynamics in the parties’ respective homes. That disruption and change roughly coincided with the beginning of the week on and week off schedule;
• Even before the pandemic and remote learning, there were challenges in the relationship between Bryson, his mother, and his step-father;
• As the duration of remote learning continued, Bryson’s behaviour changed and there was increased conflict between Bryson, the mother, and the step-father; and
• Kaylee found it difficult to cope with the extent to which the disputes between Bryson, the mother, and the step-father escalated during the pandemic and period of remote learning. As a result, Kaylee developed a preference for the more relaxed setting in her father’s home; this despite the presence in that home of Kaylee’s three step-siblings. Kaylee found that she was better able to attend to her school work at her father’s home.

[27] It is now one month before both children are scheduled to return to school. I take judicial notice of the return to school plan recently announced by the Province of Ontario – a plan that calls for the continuation of remote learning, at least in part, for high school students. At age 16, Kaylee is in high school. She will be required to continue learning remotely approximately 50 per cent of the time when school begins in September.

[28] Kaylee is either in or approaching the high school years that are most important in terms of marks considered when applying for admission to post-secondary education institutions. The importance to Kaylee of succeeding at school cannot be overlooked.

[29] It is not clear whether Bryson is in high school (grades 9-12) or remains in elementary school (grades 7-8). The individual incident reports included with the mother’s affidavit evidence identify Bryson as attending “Garneau”. It is not possible to determine whether Bryson will be returning to school on a full-time basis (i.e., grades 7-8) or will be attending school part-time and carrying out the rest of his schooling remotely.

[30] Regardless of whether the children will be attending school full time or required to carry out some remote learning, it is important that the resumption of in-person learning go as smoothly as possible. Like all school-age children, as a result of the pandemic, Kaylee and Bryson faced a significant disruption in their education, personal development, and social lives.

[31] It is in the best interests of the children that they resume regular and gradual increased parenting time with their mother. Efforts must be made by all concerned, including the father, to encourage the children to work on their relationship with their mother by spending time with her, including in her home.

[32] In referring to “all concerned”, I include the children’s step-father. He appears to be a source of contention for both children. That is not to assign fault or blame to the step-father, but rather to point out that work will be required on his part, as well as the mother’s, to successfully transition the children to time more equitably shared between the mother’s home and the father’s home.

[33] I find that on their respective motions, both parties are overreaching in the relief they seek:

• It would not be in the best interests of the children to award the father sole custody of and the primary residence for the children at this early and interim stage of the proceeding; and
• The mother overreaches by requesting that the court order an immediate return to the parenting arrangement and schedule based on the 2012 and 2020 Orders – an arrangement and schedule that has not been followed since late 2019.

[34] I find that it would be a second, significant disruption (in addition to the disruption caused by the pandemic) for the children to immediately revert, on an interim basis, to the parenting arrangement and schedule based on the 2012 and 2020 Orders. I find that it is in their best interests to gradually return to a week on and week off schedule pending a further determination by this court on either an interim or final basis.

[35] It took approximately three months (January to March 2020, both inclusive) for the parties and the children to transition to a week on and week off schedule. It is reasonable for that schedule to be gradually resumed over a three-month period (i.e. by the end of October). Coincidentally, Ms. Lendor anticipates completing her work and being in a position to provide the court with her report by September or October.

[36] In 2012 the parties demonstrated that they each have the insight required to see that flexibility in the parenting of the children is required as the children reach their teenage and post-high school years. Flexibility will be required in developing a transitional parenting schedule that permits the children to return to school in September, adjust to in-person learning again, and adjust to a more equitable division of time spent between their parents’ respective homes.

[37] Consideration must be given to the school schedule, including when each of the children is required to attend school versus continuing with remote learning. There is no evidence before the court of the specific schedule each child will follow on return to school. It is up to the parties to work together to design a schedule that gradually returns to week on and week off by the end of October. In the event the parties are unable to agree upon such a schedule, I remain seized of the issue of the parenting schedule and the parties may request a case conference before me to assist them in finalizing the schedule for the months of August through October 2020.

[38] There is little, if any, evidence as to what the parties and the children have for the remainder of the summer. I note, for example, that the father has a cottage outside Ottawa and that he was planning on attending at the cottage in early August 2020. Any schedule that the court might create, in a vacuum of information, would be of no assistance to the parties and might only serve to exacerbate the situation.

[39] The parties shall, no later than Tuesday, August 11, 2020, finalize the parenting schedule for the month of August.

[40] Once information is available from the children’s school(s) as to their in-class and remote learning schedules, the parties shall finalize the parenting schedule for the months of September and October. The parties shall, within ten days of that information becoming available, finalize the parenting schedule for the months of September and October 2020, with the schedule progressing to week on and week off by no later than October 31, 2020.

b) Primary Residence

[41] There is insufficient evidence before the court to support a conclusion, at this interim stage of the proceeding, to change the primary residence of the children. The terms of the 2012 and 2020 Orders that address primary residence remain in effect.

c) Decision-Making

[42] The 2012 Order provided that the mother would make major decisions related to matters such as the children’s health, education, and religion. Decision-making was addressed again in the 2020 Order and revised. Pursuant to that order, the parties are required to consult with each other, in writing, prior to making a major decision. In the event of a disagreement, the mother has final decision-making authority.

[43] On his motion, the father seeks sole decision-making authority. The mother is prepared to continue with joint decision-making. There is insufficient evidence to support a change in decision-making at this time. The term of the 2020 Order addressing decision-making therefore remains in effect.

d) The Children

[44] In their respective submissions, the parties recognized that Kaylee, at age 16, is developing a voice of her own and that her wishes with respect to primary residence and time spent with each party must be given consideration. Each party has an obligation to encourage Kaylee to spend time with the other party. It appears, based on her evidence and submissions, that the mother recognizes that Kaylee is developing her own voice and wishes and that the mother is respectful of Kaylee in that regard.

[45] The father’s evidence and submissions made it clear that his approach to date has been to permit the children to see and spend time with their mother when they wished to do so. He provided no evidence that he actively encourages the children to spend time with their mother.

[46] It was made clear to both parties, specifically the father, that a ‘laissez faire’ approach is insufficient. He must do more and, as the parties and the children gradually return to a week on and week off parenting schedule, he must pro-actively encourage the children to spend time with their mother and abide by the schedule agreed upon.

[47] The parties have differing views on how to manage the challenges Bryson faces because of the learning difficulties and other conditions with which he has been diagnosed. Without making any findings on the point, it appears that the mother’s approach has, for a number of years, been based at least in part on a diagnosis of ADHD and medication prescribed for that condition.

[48] It also appears that full information about Bryson’s condition was not made available by the mother to the father. That lack of information contributed to the parties’ differing views on the subject. For example, the father maintains that he has for years been seeking confirmation of the diagnosis of ADHD and the prescription of medication to treat the condition. The father’s uncertainty of the diagnosis is understandable when the reports of assessments carried out in 2015 specifically state that the authors of the reports do not make a diagnosis of ADHD.

[49] To satisfy the father’s inquiry about the diagnosis of ADHD, the mother produced a very brief statement in a letter from Bryson’s physician. The letter is dated February 2020 and was not produced to the father until it was included in one of the mother’s affidavits filed on the motions. By reason of her failure to communicate effectively on the subject, the mother allowed the father’s uncertainty and the divergence of views to continue for several years – potentially to Bryson’s detriment.

[50] Whether or not Bryson takes his medication for ADHD and the implications of his failure to do so may be significant to his well-being and his potential to complete a high school education. There is, however, insufficient evidence to make any specific findings in that regard. In any event, such findings are not required for the purpose of the two urgent and interim motions.

[51] It is, however, important that the parties work together to address Bryson’s challenges. Effective and meaningful communication, including the exchange of information available from health-care and education professionals is required. No doubt Bryson will benefit from a consistent and stable approach in an effort to address his challenges and diagnoses. The pros and cons of one approach over another may have to be considered; regardless, a consistent approach to which both parties will adhere is required.

Disposition

[52] For the reasons set out above, I make the following temporary order:

1. On the consent of the parties, the mother shall have parenting time with the children from Monday, August 3, 2020 at 11:00 a.m. until Tuesday, August 4, 2020 at 7:30 p.m. Bryson Leblanc shall be picked up at the hockey rink following his hockey practice and Kaylee-Ann Leblanc, if she is attending, shall be picked up at a location to be agreed upon. The drop-off shall be at the Metro store located in Gracefield, Quebec.
2. The father’s urgent motion for sole custody and the primary residence of the children is dismissed.
3. The primary residence of and decision-making for the children remains as set out in the 2012 and 2020 Orders.
4. The parties shall agree upon a parenting schedule that provides for a transition, over a three-month period, ending on October 31, 2020, to a week on and week off schedule.
5. The parties shall, no later than 4:00 p.m. on Tuesday, August 11, 2020, agree upon the parenting schedule for the month of August 2020.
6. The parties shall, no later than 4:00 p.m. on the tenth day following the receipt of the school schedule for both children, agree upon the parenting schedule for the months of September and October 2020.

[53] In the event the parties are unable to agree upon the parenting schedules addressed in paragraphs 5 and 6 above, I remain seized solely of the issue of the parenting schedule to the end of October 2020. Either of the parties may request a case conference before me to resolve the parenting schedule for the months of August through October 2020.

Costs

[54] If the parties are unable to agree on the costs of the motions, they shall make written submissions as follows:

a) The submissions shall be limited to a maximum of four pages, exclusive of a bill of costs and any case law referred to in the submissions. Reply submissions, if any, shall be a maximum of two pages. Written submissions shall comply with Rule 4 of the Rules of Civil Procedure; b) The mother shall deliver her costs submissions by 4:00 p.m. on the fifteenth business day following the date on which this endorsement is released; c) The father shall deliver his responding costs submissions by 4:00 p.m. on the twenty-fifth business day following the date on which this endorsement is released; and d) The mother’s reply submissions, if any, shall be delivered by 4:00 p.m. on the thirtieth business day following the date on which this endorsement is released. e) No authorities shall be filed. A party may refer to caselaw and other authorities by providing a list of authorities with hyperlinks to electronically posted materials. If a party wishes to refer to authorities that are not electronically published, they may attach a pdf version to their materials. f) All materials shall be filed electronically in accordance with the most recent direction from the court.

Date: August 5, 2020

Madam Justice Sylvia Corthorn

COURT FILE NO.: FC-19-2086 DATE: 2020/08/05 ONTARIO SUPERIOR COURT OF JUSTICE RE: TRACY PARE (VILLENEUVE), Applicant -and- JASON LEBLANC, Respondent BEFORE: Madam Justice Sylvia Corthorn COUNSEL: Rebecca E. Rosenstock, Counsel for the Applicant Respondent is self-represented Allison Lendor, for the Office of the Children’s Lawyer ENDORSEMENT Madam Justice Sylvia Corthorn

Released: August 5, 2020