Sullivan v. Boucher, 2020 ONSC 8062

COURT FILE NO.: FC-20-1215

DATE: 2020/12/23

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: JONATHAN RUSSELL SULLIVAN, Applicant

-and-

KELSEY CHRISTINE BOUCHER, Respondent

BEFORE: Justice D. Summers

COUNSEL: David Danielson, for the Applicant

Rebecca Rosenstock, for the Respondent

HEARD: November 9, 2020

ENDORSEMENT

Overview

[1] Although the respondent mother’s (“Ms. Boucher”) notice of motion seeks an order setting aside the interim parenting order of O’Bonsawin J. dated September 10, 2020, both parties argued this matter as an interim motion to vary an interim order. The order in question awards the applicant father (“Mr. Sullivan”), temporary sole care and custody. The variation order sought by Ms. Boucher is for joint custody and the return to an alternate week parenting schedule. She moves under s. 29 of the Children’s Law Reform Act, R.S.O. 1990. c. C 12.

[2] Mr. Sullivan opposes the motion.

[3] The questions I must decide are these. Has there been a material change in circumstances since the previous order was made that impacts the best interests of the child? Put another way, might the previous order have been different if the circumstances existing now, existed then? If the answer is yes, is there a compelling reason to change the interim order now rather than wait for trial? If so, what order is in the best interests of the child?

[4] For reasons that I will explain, I find there has been a material change that affects the best interests of the child and further find there is a compelling reason to vary the current order to provide Ms. Boucher with joint legal custody and in-person parenting time with the child. The terms of my order are set out at the end of these reasons.

Factual Context

[5] The parties had an on-again, off-again relationship between 2015 and 2018. They did not marry. Their only child, Emily Amanda Boucher, was born September 8, 2016.

[6] Mr. Sullivan is 36 years old and resides in Ottawa, Ontario with his current partner, Ms. Dagley, and her three children.

[7] Ms. Boucher is 30 years old and resides in Aylmer, Quebec with her current partner. She has two older children, one of whom lives with her during alternate weeks, and the other she sees on weekends. Her partner’s daughter spends every other weekend with them.

[8] Both parties described a tumultuous relationship. Each accused the other of domestic violence. Mr. Sullivan alleges that Ms. Boucher has a longstanding problem with alcohol and was violent with him when drinking. As separated parents, they have had some rough patches but, nevertheless, they parented together on an equal basis for two years prior to the current order. Each cared for Emily during alternate weeks.

[9] On August 11, 2020, Ms. Boucher voluntarily entered a two-week alcohol rehabilitation program in Quebec.

[10] On August 17, 2020, Mr. Sullivan filed his application and brought a motion in writing seeking an order for leave to proceed with an urgent motion for custody. He was self-represented at the time and did not serve Ms. Boucher.

[11] That same day, the maternal grandmother attended Mr. Sullivan’s residence to pick up Emily for the day. Ms. Boucher messaged Mr. Sullivan later to advise that the grandmother would not be returning Emily to his care. Mr. Sullivan and Ms. Dagley attended at the grandmother’s home that night. A disagreement ensued and Ms. Dagley called the police. The parties did not have a parenting order or agreement and the police could not assist.

[12] On August 19, 2020, Audet J. granted Mr. Sullivan leave to proceed with his motion. She found his materials were sufficient to raise concerns about the mother’s ability to care for Emily but also found that they were deficient in many respects. Audet J. ordered Mr. Sullivan to prepare a proper notice of motion and supplementary affidavit and serve Ms. Boucher with all materials by August 21, 2020. The order gave Ms. Boucher until August 28 to file responding material. According to Ms. Boucher, she received the documents by mail on or about August 25, 2020. Mr. Sullivan also served his materials by text but unbeknownst to him, Ms. Boucher had blocked his telephone number. In addition, she was served personally on August 31, 2020.

[13] By the time Justice O’Bonsawin heard the substantive motion on September 4, 2020, he was represented by counsel. Mr. Sullivan sought orders for temporary sole custody, primary residence, and access to Ms. Boucher between the hours of 7:00 a.m. and 6:00 p.m., seven days a week, provided it did not interfere with Emily’s schooling. Parenting times were to be agreed, in advance. Mr. Sullivan further proposed that either he or Ms. Dagley would supply transportation to and from all visits between Emily and her mother. Holidays would still be shared.

[14] Ms. Boucher appeared at the motion. She advised that she had not yet been able to retain counsel or prepare materials.

[15] The parties received Justice O’Bonsawin’s order on September 16, 2020 awarding Mr. Sullivan interim sole care and custody. O’Bonsawin J.’s reasons can be found at 2020 ONSC 5448. Her findings are set out at paras. 25 and 26 as follows:

[25] I find it concerning that the Respondent left the Jellinek alcohol rehabilitation program prior to completing it. I also find it concerning that she does not believe she is dependant on alcohol. Evidently, the Applicant thought the Respondent has dependency issues since she enrolled in and attended Jellinek’s program.

[26] The Respondent did not file a reply for this motion. She provided very limited information when I questioned her. Contrarily, the Applicant provided sufficient details in his Supplemental Affidavit for me to find that it is in the best interest for EAB to reside full-time with the Applicant on an interim basis. I hope that in the meantime, the Respondent will seek further treatment for her alcohol dependence. Her attendance at AA meetings is a first step in the right direction.

[16] Mr. Sullivan has not allowed in-person access between the mother and child since September 16, 2020.

[17] On November 2, 2020, the mother’s motion for leave to proceed with an urgent motion to set aside O’Bonsawin J.’s interim order came before me, in writing. I granted leave and, as it happened, also heard the substantive motion several days later. This is that motion.

[18] The issues before the court have not yet been case-conferenced.

The Positions of the Parties

[19] Ms. Boucher submits that Mr. Sullivan’s refusal to allow in-person access is a material change in circumstance that is contrary to Emily’s best interests. She says he has all but removed her from the child’s life and contends this is having a negative impact on Emily. She says when they talk by FaceTime, Emily behaves in ways that are uncharacteristic for her and is increasingly withdrawn. Ms. Boucher is concerned about the risk of emotional harm to the child.

[20] Mr. Sullivan denies a material change in circumstances since O’Bonsawin J.’s order. He does not deny withholding in-person access and submits that Ms. Boucher only asked for FaceTime access every other day. He further argues that his decision in this regard is consistent with the reasonable exercise of his discretion as the custodial parent and further contends that the motion judge’s use of the word “full-time” residence in her reasons as opposed to “primary” gives him wide discretion over the mother’s parenting time. He submits this is a proper and good faith interpretation. In addition, Mr. Sullivan argues that Ms. Boucher’s interim motion to vary is really an appeal in disguise. He submits that any dissatisfaction with the current order is properly addressed by seeking leave to appeal to Divisional Court and not the process presently before the court.

The Material Change Test

[21] Section 29 of the Children’s Law Reform Act states that a court shall not make an order varying an order in respect of custody or access unless there has been a material change in circumstances that affects, or is likely to affect, the best interests of the child. The legislation does not set out a specific test for variation of interim orders, however, the courts have held that it must be a material change that results in a compelling reason to vary the previous order. See Radojevic v. Radojevic, 2020 ONSC 5868, 2020 CarswellOnt 14013, 324 A.C.W.S. (3d) 233. There, Kurz J. refers to Justice Mitrow’s summary of the law in Miranda v. Miranda, 2013 ONSC 4704 (Ont. S.C.J.) at para. 26:

26 A party wishing to disturb an interim status quo or vary an interim order faces a strong onus to produce cogent and compelling evidence to show that the physical, mental and moral welfare of a child would be in danger in maintaining the status quo: McCarthy v. Scheibler, 1999 CarswellOnt 3419 (Ont. S.C.J.) at para. 14. Variation of interim custody and access orders will usually only succeed if a child is at risk, or for some other compelling reasons. There is a presumption in favour of the status quo absent compelling reason to change the status quo: Gusikoski v. Gusikoski, 2001 CarswellSask 323 (Sask. Q.B.) at para. 10. In Green v. Cairns, 2004 CarswellOnt 2322 (Ont. S.C.J.) at para. 14, Wood J. referred to the well- founded reluctance by courts to vary interim orders on an interim basis and stated that an interim order should only be varied on an interim basis where the evidence establishes "clearly and unequivocally" that the present arrangement is not in a child's best interests. In Greve v. Brighton, 2011 ONSC 4996, 2011 CarswellOnt 8814 (Ont. S.C.J.), Ricchetti J., after reviewing various authorities, states at para. 24 that on a motion for an interim order to vary an existing interim order, the court should only do so where the moving party has demonstrated a change in circumstances as a result of which there are compelling reasons to vary the interim order to meet the child's best interests.

Although Radojevic was decided under the Divorce Act, the same test is applied under the Children’s Law Reform Act. See McIssac v. Pye, 2011 CarswellOnt 15387(Ont. C.J.).

[22] The Supreme Court of Canada, in Gordon v. Goertz, 1996 191 (SCC), [1996] 2 S.C.R. 27, sets out a two-part test to determine material change in a custody and access case. Although Gordon involved a mobility dispute and was decided under s. 17 of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), the same test applies to variation proceedings under the Children’s Law Reform Act. See Brown v. Lloyd, 2014 ONSC 300, 2015 ONCA 46, appealed dismissed. To meet the first part of the Gordon v. Goertz test, the judge must be satisfied that: (1) 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 needs of the child since the last order was made; (2) that materially affects the child; and (3) that was either unforeseen or could not reasonably have been contemplated by the judge who made the previous order. If the answer to the first leg of the test is yes, the court can move on to the second where the judge must consider the matter afresh and decide what custody and access order meets the best interests of the child in all the current circumstances.

Part I of the Test – Has There Been a Material Change Affecting the Child That Was Not Foreseen or Reasonably Contemplated

[23] I find that Mr. Sullivan’s decision to withhold in-person access and effectively cut off Ms. Boucher from an active and meaningful relationship with the child since Justice O’Bonsawin’s order is a material change in circumstance that affects or is likely to affect Emily’s best interests. She has gone from a lengthy status quo of spending every other week in her mother’s care to no physical contact at all. Moreover, Mr. Sullivan imposed this restriction despite his evidence and position before Justice O’Bonsawin that Ms. Boucher should have considerable daytime access, seven days a week. The only restriction he sought on Emily’s time with her mother was the elimination of overnights, yet upon receipt of the order, he limited her to FaceTime calls only.

[24] I do not agree with Ms. Sullivan’s submission that restricting access in this way is consistent with Emily’s best interests nor do I regard it as fair or a good faith interpretation of O’Bonsawin J.’s order. On the contrary, I find his interpretation to be anything but fair or sincere. The lack of in-person access is a serious restriction on a parent-child relationship that must be justified in the circumstances. It is not a silent requirement to be inferred as Mr. Sullivan has done.

[25] Moreover, Mr. Sullivan’s actions cause me to question his ability to put Emily’s interests ahead of his own when it relates to Ms. Boucher. Based on the circumstance of this case and the evidence before me, I regard his decision to limit Ms. Boucher’s contact with Emily to Facetime calls only to be high-handed and opportunistic. I also find it highly unlikely that the judge foresaw or could reasonably have contemplated that her would withhold in-person access. Nothing in his materials pointed in that direction. A reasonable expectation would be that Mr. Sullivan would at least facilitate the terms of the access order that he sought from the court.

[26] I am further persuaded that the circumstances of this case present a compelling reason to change the current order now. This litigation is barely underway. It will be many months if not a year or more before the case will reach trial. In my view, it would be contrary to Emily’s best interests to wait that long to have meaningful in-person parenting time restored.

Part II of the Test – The Child’s Best Interests

[27] Having found a material change in circumstances, I must now consider the child’s best interests afresh. That inquiry includes consideration of all the evidence including the evidence before the motions judge, her findings, the evidence that has arisen since, and the best interest factors under s. 24(2) of the Children’s Law Reform Act.

[28] Neither party disputes the two-year shared parenting status quo that predated the current order. Mr. Sullivan acknowledges that Ms. Boucher loves Emily and has positive traits as a mother. The concerns he asserts center on what he says is a history of alcohol abuse and poor mental health. He says his unease with her ability to parent is not new. He first contemplated custody proceedings in the fall of 2019, however, he says the situation settled down, and he did not pursue it. Mr. Sullivan provides a copy of the duty counsel intake form confirming his inquiries at the time.

[29] Ms. Boucher acknowledges an unhealthy relationship with alcohol and points out that her enrolment in the Quebec rehabilitation program was voluntary. She says she drinks as a way of coping with stress and denies being an alcoholic. She says she completed the detox part of her program in week one but could not remain for week two because her French language abilities were inadequate. She asserts that she has been sober since August 11, 2020, that she attends weekly A.A. meetings and works with a counsellor. With respect to her mental health, Ms. Boucher confirms that she was diagnosed with bipolar disorder in 2016. She says she maintains regular appointments with her physician and takes medication to control her condition. In this regard, she provides a letter from the doctor who has been her family physician since 2010.

[30] According to Ms. Boucher, she should have anticipated that Mr. Sullivan would bring proceedings when she was engaged in her program and unavailable. I cannot determine whether his timing was deliberate or not, but note that, to some degree, it aligns with the mother’s suspicion. I also note the sequence of events on August 17,2020 insofar as Mr. Sullivan filed his motion before the maternal grandmother withheld Emily, not after. In other words, the events of that evening were not the trigger to Mr. Sullivan’s motion for urgent relief that day.

[31] Ms. Boucher admits she was wrong to direct her mother withhold Emily but says she did so out of concern that Mr. Sullivan was abusing her. According to Ms. Boucher, Emily reported that her had been hitting her and yelling at her. Ms. Boucher said she believed Emily because of the abuse she experienced at Mr. Sullivan’s hand during their relationship. Mr. Sullivan admits that he spanks Emily and raises his voice. He says it is a form of discipline and denies abuse.

[32] Ms. Boucher agrees there were ups and downs in her parenting relationship with Mr. Sullivan but perceives their current problems relate primarily to Mr. Sullivan’s partner, Ms. Dagley. There is indeed evidence to show that Ms. Dagley is very involved where Emily is concerned. Ms. Boucher states that over the course of 2020, Ms. Dagley contacted the Quebec child protection authorities three times to report her and each time, the file was closed. Moreover, the evidence confirms that in the summer of 2020, Ms. Dagley advised Ms. Boucher that Mr. Sullivan wanted Emily to attend Junior Kindergarten in Ontario. Ms. Boucher objected and said she wanted Emily to attend school in Aylmer, Quebec, with her brother. Notwithstanding this exchange, Mr. Sullivan’s August 17, 2020 affidavit indicates that he had already registered Emily in Ontario despite the absence of agreement. I also the text messages between Ms. Dagley and Ms. Boucher. Some were pleasant and cooperative with respect to a behavioural issue with Emily that both households were experiencing. Then, after O’Bonsawin J.’s order, the tone and content changed with Ms. Dagley social media post about Ms. Boucher. It was crude, hurtful and indefensible.

[33] Notwithstanding Mr. Sullivan’s evidence before Justice O’Bonsawin regarding access, his current affidavit says it is in Emily’s best interests to remain with him until Ms. Boucher is stable enough to resume any sort of unsupervised physical access [emphasis added]. He does explain the change that causes him to now indicate that physical access requires supervision.

[34] Ms. Boucher believes that Mr. Sullivan is influencing Emily in a negative manner. She asserts the child is behaving in ways that are uncharacteristic to her and says she is increasingly withdrawn. Ms. Boucher reports Emily telling her that she cannot see her anymore and calling their house “her old house” and her bedroom “her old bedroom.” Mr. Sullivan admits that Emily uses this language to refer to Ms. Boucher’s home but denies that he has influenced her in this way. He insists Emily’s statements are her own and says she describes her circumstances as she sees them.

[35] The best interest factors to be considered under s. 24 of the Children’s Law Reform Act and the weight to be given to each varies depending on the unique circumstances of the child and the situation. Here, the evidence satisfies me that there is love and a strong bond between Emily and her parents. Until recently, she was actively parented by both during alternate weeks. The evidence further indicates that Emily has a positive relationship with her older maternal half-siblings who she has not seen since September 16, 2020. Although Mr. Sullivan says he wants Emily to have a relationship with her older brother and sister, he only mentions encouraging phone calls that have yet to happen. I accept that Emily also has a positive relationship with her step-siblings, in Mr. Sullivan’s home. Emily’s views and preferences are unknown. She just turned 4 years of age in September. She is too young, and it is too early in the proceeding for her wishes to have been reasonably ascertained.

[36] Based on the evidence before me, I find reason to question the ability of both parents to care for Emily. Each has withheld the child from the other. Ms. Boucher has done so more than once. Mr. Sullivan is doing so now. Boucher admits to an unhealthy relationship with alcohol to cope with stress. To her credit, she has taken steps to address that dependence but did not supply independent evidence of ongoing efforts to manage her condition. Nor did she indicate how it is that she is otherwise learning to cope with stress. There is no evidence that Ms. Boucher’s mental health condition is interfering with her ability to parent. The concern is alcohol consumption; however, I consider the presence of her live-in partner to be something of a mitigating factor as the evidence indicates that he does not drink.

[37] As stated, I find that Mr. Sullivan’s decision to limit Ms. Boucher’s access to FaceTime contact only is contrary to Emily’s best interests. I am also concerned by Emily’s statement to her mother that she can no longer see her, and the apparent sense of loss indicated by her statements regarding “her old house,” and “her old room”. Mr. Sullivan heard these statements but did not express any discomfort with them or say that he reassured Emily in any way that it was still her house and her room. I find that there is risk of emotional harm to Emily in the current circumstances.

[38] Although I accept that Mr. Sullivan cannot control what Ms. Dagley says or does, I am concerned that her highly offensive electronic communication about Ms. Boucher may be indicative of an overall an attitude in their household – one that is negative and exclusionary toward Ms. Boucher and the importance of her role in Emily’s life. I also find it unacceptable that Mr. Sullivan did not name Ms. Boucher as Emily’s mother on her school documents.

[39] Considering the evidence as a whole, I find it is in Emily’s best interests to vary the current order to provide interim joint legal custody such that Mr. Sullivan and Ms. Boucher shall make all significant decisions together. However, considering the current circumstances, I also find that it is in Emily’s best interests to exercise caution while restoring in-person access with her mother. For that reason, I restrict Ms. Boucher’s parenting time to daytime hours only. It is to commence immediately, as set out below. I find this arrangement will provide Emily with the maximum contact that is consistent with her best interests at this time.

[40] I make this order on a temporary basis subject to an early review by me in late March, early April 2021. Current evidence will be required and shall be filed in accordance with the Family Law Rules, O.Reg. 114/99. I also order that a case conference be scheduled before me at the earliest available date in February. This case has been before the court four times in four months, either in writing or in person. I seize myself of this matter in order to provide a measure of judicial continuity and with a view to promoting fairness and efficiency. See McMurter v. McMurter, 2020 ONCA 772, paras. 31 and 32, and D.G. v. A.F., 2015 ONCA 290.

My Order

[41] My order is as follows:

1. Justice O’Bonsawin’s order is varied to provide that the parties shall have interim joint legal custody. Emily shall have her primary residence with Mr. Sullivan on an interim basis.

2. Effective immediately, Ms. Boucher shall have interim parenting time with Emily between 7:00 a.m. and 6:00 p.m. every day that she is not in school including the first three full weekends of each month. The exception to this schedule is Christmas Day and New Years Day when Ms. Boucher’s parenting time shall start at 1:00 p.m. and continue until 7:00 p.m. The fourth full weekend in each month shall be split between Ms. Boucher and Mr. Sullivan and Emily shall spend Saturday with her mother and Sunday with her father.

3. Mr. Sullivan shall transport Emily to and from Ms. Boucher’s residence.

4. Mr. Sullivan shall immediately add Ms. Boucher to Emily’s school records.

5. Each party shall be entitled to obtain information directly from Emily’s school, doctor and dentist and other service providers. If any of the third parties require an authorization and direction from the parties, a joint direction shall be prepared, signed and delivered immediately.

6. I will case manage this file. A case conference shall be scheduled before me on the first available date in February 2021.

7. There shall be a review of the parenting issues and residential schedule before me in late March or early April 2021. The parties shall provide current evidence to update the court.

8. I urge the parties to resolve costs between them. If that cannot be done, Ms. Boucher shall have until January 15, 2021 to deliver her costs submissions and Mr. Sullivan shall have 15 days thereafter to deliver his. Cost submissions shall not exceed 2 pages, double spaced using 12-point font, exclusive of Bills of Costs and offers to settle. Ms. Boucher shall have a 1 page right of reply, if required. Reference to case law, statutes or rules, shall be supported by hyperlink only.

JUSTICE D. SUMMERS

Date: December 23, 2020

COURT FILE NO.: FC-20-1215

DATE: 2020/12/22

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: JONATHAN RUSSELL SULLIVAN, Applicant

-and-

KELSEY CHRISTINE BOUCHER, Respondent

BEFORE: Justice D. Summers

COUNSEL: David Danielson, for the Applicant

Rebecca Rosenstock, for the Respondent

ENDORSEMENT

D. SUMMERS J.

Released: December 22, 2020