COURT FILE NO.: FC-21-555

DATE: 2021/06/10

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Nickolas Brunet, Applicant

-and-

Alyssa Portelance, Respondent

BEFORE: Anne London-Weinstein J.

COUNSEL: Marc Coderre, for the Applicant

Joseph A. Di Iorio, for the Respondent

HEARD: May 28, 2021

ENDORSEMENT

1The Applicant Father brings a motion for primary residence and temporary decision-making authority for the parties’ child Xavier Brunet, born January 8, 2020.

2He seeks an order for the Respondent Mother to have supervised parenting time, supervised by either her mother or grandmother. He seeks an order further requiring the Mother to undergo a mental health assessment conducted by a professional of his choosing.

3The Respondent Mother brings a cross-motion for an order that the child be returned to her care and primary residence and that she have full decision making responsibility for the child.

4She further seeks an order that the Father have supervised parenting time with the child, supervised by his parents.

5Should the court not return the child to her, the Mother seeks an order for unsupervised parenting time and she seeks an order that the child be directed to reattend Les Petites Frimousses daycare programme which the child was attending with his mother.

6The Mother seeks an order that the Father refrain from smoking, drinking and consuming marijuana or other illicit drugs while parenting the child.

7She also seeks an order requiring the Father undergo drug testing at the discretion of the Mother throughout his parenting.

8Finally, she seeks an order that the Applicant Father enroll in an anger management program.

Background:

Background

9The Father is 21 years of age. The Mother is 19 years old. They are the parents of Xavier, who is 16 months old.

10The parties met in November of 2018 and began living together in 2020. Their separation occurred on March 5, 2021. They initially had their own apartment but ended up living in the Applicant’s father’s home in Orleans, Ontario.

11In November 2020, the parties essentially separated, and each had their own rooms while they were on a break from each other. On March 5, 2021 the Mother was asked to leave.

12Each party alleges the other has mental health issues and both parties allege abusive conduct by the other toward them and toward the child.

13The Father’s evidence is that he has observed the Mother to be distracted and distant from the child. He has seen her scream at the child. His evidence is that the Mother was physically and emotionally abusive of the Father, hitting him, screaming at him, and yelling at him. The Father says the Mother became more aggressive with him over time. He states she threatened to kill herself on numerous occasions.

14The Father’s evidence is that on November 6, 2020, the Mother hit him in the face with full force and a closed fist.

15On November 11, 2021, the Mother was admitted to the Ottawa Hospital after a fight with the Father. Information from the hospital report indicated that the Mother has experienced depression which was worsening since the birth of the child. The report indicates that she denied being suicidal and described the event of wanting to jump out of the car as being impulsive. The Mother also is said to have admitted that she blacks out at times and has anger problems with difficulty controlling her emotions. There was a reference in the report to a history of self-harming behavior beginning at age 13 or 14. The report mentions a previous suicidal attempt of jumping in front of a car at age 15.

16The Father’s evidence is that on more than on occasion during the relationship, the Mother threatened to jump out of a moving vehicle. She is alleged to have attempted to do this while the baby was in the car in his car seat.

17The Father states that on November 7, 2020, the Mother threatened suicide by opening the truck door, removing her seat belt and launching herself out of the truck while the parties were driving on Highway 17.

18The Father states that on February 14, 2021 the Mother became enraged and hit the father on the back of the head and again tried to throw herself out of the truck he was driving. His evidence is she removed her seat belt, climbed over her friend and opened the door, prompting the Father to pull over while the Mother’s friend tried to close the door and get her back in her seat.

19The Father’s evidence is that in January of 2021, the Mother locked herself in the bathroom and threatened to kill herself. The Father says he had to remove razor blades from her hands with great difficulty on one occasion.

20The Father states that on March 4, 2021 the Mother had a complete break down. The Father called his mother Tina Brunet to come to pick up the baby. Tina Brunet picked up the child and returned the child when the Mother had calmed down. The Father states his stepfather took the child to daycare the next day as the Mother was again having anger and aggression issues.

21The Father’s evidence is that the Mother sat on the bumper of his car so he could not go to work.

22The Father has been in touch with the Children’s Aid Society to discuss the matter. The Father indicates he was advised to commence a court application.

23The Father included a number of affidavits from friends and family in his motion material in which affiants provide their observations of the mother failing to meet the needs of the child and physically abusing the Father.

24These include:

1. On October 24, 2020 the Mother broke the Father’s cell phone and struck the Father on the head from behind twice with a hard metal grinder causing injuries which were observed by his stepmother, Emely Cloutier and his mother Tina Brunet.

2. In October, November, December of 2020 and January, February and March of 2021, the Mother was heard or seen by the father or his stepmother Emely Cloutier, constantly yelling or criticizing the child and often shaming him for his needs, as well as regularly leaving him in his crib to scream and cry, refusing to change him or provide a bottle. Ms. Cloutier observed injuries at times, due to the baby trying to get out.

3. The Father states that on November 6, 2020, the Mother hit the father with a closed fist.

4. Ms. Cloutier states the baby was confined to a bedroom for hours and the room was unsanitary. The Father says that he came home from work and observed bruises on the child while he had been in the Mother’s care.

5. Ms. Cloutier states that the Mother left the child hungry on more than one occasion. She states the Mother left the child alone. Ms. Cloutier observed a huge bite mark on the Father’s forearm.

6. The Father states that the Mother’s family home is in Vanier and has only two bedrooms with four people living in the home. The Father states there are several animals in the home and there were animal feces which has not been picked up.

7. The Father has been continually employed by the same garage employer for the past five years. When working part time his annual income is about $45,000.

25A friend of the Mother reported that the Mother threw the baby across the bed and he hit his head on a friend’s elbow. The friend reported the matter to the Children’s Aid Society on February 15, 2021.

26The evidence is the Father has the support of his parents. He has provided a detailed parenting plan in his affidavit.

27The evidence is Tina Brunet and her partner, David Connors have supported the Father by opening up their home to him. Their home is a large and comfortable four-bedroom home which is appropriately set up for a child. The evidence is that Ms. Brunet and Mr. Connors take time off work to care for the child if the Father is at work or school. Ms. Brunet is a clinician with the Ottawa Police Service. Her husband David Connors is retired from the Canadian Forces. He works on a contract basis.

28At a case conference on May 11, 2021, Justice Doyle recommended that the OCL become involved and a section 112 social worker be requested. When I heard this motion, the Mother had not submitted the requisite forms to the OCL. At the time of the case conference, the Respondent Mother had not seen the child since March 5, 2021.

29The Mother indicates that she has suffered ongoing severe mental abuse and verbal demeaning cruelty at the hands of the Father, which lead to her attending the hospital to seek medical assistance. She alleges that the child was abruptly removed from her care by the Father, with the help of his stepfather.

30The Mother states that the Father neglected the child and had a dismissive parenting style.

31The Mother indicates that the Father did not want the child to be born. The Father, according to the Mother, wanted little to do with the child.

32The Mother says that the Father demeaned her and verbally abused her causing her to experience mental injury, pain and acute loss of self-esteem.

33She indicates that the father was distant with the child, had an affair, and got intoxicated. She says he left the parenting to the mother.

34The Mother admits that she sought medical assistance at the Ottawa Hospital, but says it was because of the negative behavior visited upon her by the Father, including marijuana use, alcohol use, and emotionally abusive habits.

35The Mother admits she struggled with anxiety and depression as a child, but denies it was a chronic condition.

36The Mother indicates she is no longer taking anti-depressants. The Mother denies being suicidal. She explains that she was attempting to escape when she jumped out of the car. She blames the black outs on being insulted by the Father.

37The Mother has the support and cooperation of her teachers, principle and Director at the School with daycare “Les Petites Frimousses”. Exhibits in this motion included a letter from the Centre D’Appui et de Prevention (CAP). The Mother is described as enthusiastic about being surrounded by colleagues in class having a lived reality similar to her own. She is described in the letter as friendly, kind and calm. The author of the letter indicates that the Mother actively participates in workshops related to the care of the child. She demonstrated responsibility toward her son and Xavier’s hygiene was irreproachable with no observed concerns.

38A further letter from an education centre called Les Petites Frimousses indicated that Xavier had been in the program there from September 3, 2020 until March 5, 2021 when he was removed from the program. His attendance is described as stable and continuous. The letter stated that the Mother presented as caring and positive. The letter stated that the child went toward her with open arms after school.

39There was also a letter information regarding a Therapeutic Follow-Up Young Parent’s Program. The Mother began seeing a clinician in December of 2020. Her objective was to help her manage her anxiety and manage communication with her partner. She attended 14 meetings of 60 minutes in length, since December 8, 2020.

40Prior to the birth of the child, the Mother worked at the Canadian Tire Store on Coventry Road in Ottawa. The Mother’s evidence is that she attends a school program for young mothers. The program provides assistance and parenting tools along with a daycare facility. The Mother states that the Father has not introduced himself to school officials. The Mother states she intends to pursue her studies at Algonquin College and return to work.

41The Mother lived with her mother from January 8, 2019 to November 11, 2019 before living with the Applicant Father. She indicates there were no issues relating to her mental health reported during this time frame. There were no affidavits provided from the Mother’s mother, or her grandmother.

42The Mother states she believes that the Father drove recklessly with the baby in the truck on April 26, 2021 as witnessed by Briana Cote and Alex Celms. In her affidavit, the Mother claims that the child is visible in the video created by Ms. Cote and Mr. Celms. The video was not submitted to the Court. The Father is said to have smelled of marijuana when he approached Ms. Cote’s car.

43The Father denies that the baby was in the truck and denies speeding. David Connors’ evidence is that the child was in bed asleep at the time. The Father filmed Ms. Cote after she followed him. He reported the matter to police. Ms. Cote has not been charged in relation to this matter.

44Mr. Celms also accuses the Father of smoking marijuana in his car. There were other allegations made as well, which I found to be hearsay. In the context of this motion, I permitted the Mother time to gather this information as I wanted the fullest picture possible when making a determination as to the best interests of the child. I adjourned this urgent matter to permit counsel for the Mother to submit the additional information.

45The evidence relates to a person named “Sam” who is said to associate with the Applicant Father. Mr. Celms’ proposed evidence is in the form of hearsay.

46One of the dangers which must be controlled for when dealing with hearsay evidence, is the lack of contemporaneous cross-examination. In this instance, there is not only no contemporaneous cross-examination, there is no cross-examination at all. This evidence is not admissible.

47Mr. Celms own observations include that the Applicant Father attended the Tim Hortons where Mr. Celms works and was loudly revving his car engine. Mr. Celms had to ask that he stop revving his engine and leave the premises. Mr. Celms stated he thought the Father looked stoned, he said.

The Law:

The Law

48Section 20 of the Children’s Law Reform Act, R.S.O. 1990, c.C.12, as am. provides that, except where otherwise provided in this part, a child’s parents are equally entitled to decision-making responsibility with respect to the child and that the entitlement to parenting time with respect to the child includes the right to visit with and be visited by the child.

49Section 20(4) of the CLRA provides that if the parents of the child live separate and apart and the child lives with one of them with the consent, implied consent or acquiescence of the other, the right of the other to exercise the entitlement to decision making responsibility with respect to the child but not the entitlement to parenting time, is suspended until a separation agreement or order provides otherwise.

50Section 20(7) of the CLRA provides that any entitlement to decision making responsibility or parenting time under this section is subject to alteration by order of the court or by separation agreement.

51Section 21(1) of the CLRA provides that a parent of a child may apply to the court for a parenting order respecting decision making responsibilities and parenting time.

Best Interest of the Child:

Best Interest of the Child

52Section 24 of the CLRA sets out the factors to be considered by a Court when dealing with parenting orders. In making a parenting order or contact order with respect to a child, the court shall only take into account the best interests of the child in accordance with this section.

53Sections 24(2) and 24(3) set out the factors to be considered by a court in making parenting orders including, and not limited to:

Primary consideration section 24(2)

In determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, and in doing so, shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.

Section 24(3)

(3) Factors related to the circumstances of the child include:

(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;

(b) the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;

(c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;

(d) the history of care of the child;

(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;

(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;

(g)any plans for the child’s care;

(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;

(i) the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child;

(j) any family violence and its impact on, among other things;

(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and

(ii)the appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate on issues affecting the child; and

(k) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well being of the child. 2020 c.25 Sched 1, s.6.

54Section 24(4) of the CLRA mandates consideration of family violence when determining a parenting plan and what is in the children’s best interests:

(4) In considering the impact of any family violence under clause (3)(j) the court shall take into account,

(a) the nature, seriousness and frequency of the family violence and when it occurred;

(b) whether there is a pattern of coercive and controlling behavour in relation to a family member;

(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;

(d) the physical, emotional and psychological harm or risk of harm to the child;

(e) any compromise to the safety of the child or other family member;

(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;

(g) any steps taken by the person engaging in the family violence to prevent further family violence form occurring and improve the person’s ability to care for and meet the needs of the child; and

(h) any other relevant factor. 2020 c.25 Sched. 1, s.6.

55Section 24(5) of the CLRA provides that the court shall not take into consideration the past conduct of any person, unless the conduct is relevant to the exercise of the person’s decision making responsibility, parenting time or contact with respect to the child.

56The child should have maximum parenting time with both parents to the extent that such time is in the child’s best interests. Orders for supervised parenting time are exceptional orders. They have been described as one step away from a complete cessation of parenting time.

57The onus is on the parent seeking to limit access to establish on a balance of probabilities that the restrictions are in the child’s best interest. An order for supervised parenting requires evidence of exceptional circumstances. Jennings v. Garrett, 2004 CanLII 17126.

58An order for supervised parenting requires cogent evidence that the child is at risk of physical or emotional harm. Breen v. Larocque, 2012 ONCJ 640.

59Given that there has been no cross- examination, I am unable to resolve the factual disputes regarding the Father’s driving on the night when Ms. Cote and Mr. Celms say they made their observations. I am not able to find that the child was in the car at the time of the alleged driving, based on the record before me.

60Further, the Father reported the matter to police and no charges have been laid. I am frankly, very concerned regarding the allegations of self-harm, blackouts and suicidal behavior on the part of the Mother.

61The Mother is to be commended for agreeing to go to the hospital to be treated when she felt psychologically overwhelmed. While the Mother blames all of her psychological struggles on the conduct of the Father, the evidence causes me concern that the Mother’s behaviour poses a threat to the physical safety of the child and that her actions may cause him emotional harm.

62The mother does not deny much of the evidence set out in the Father’s motion material and has admitted that she jumped from a moving vehicle, but she says she was simply trying to escape. She attributes her actions to the conduct of the Father. However, while I understand that she may have been experiencing emotional duress, as she claims, the decision to jump from a moving vehicle demonstrates recklessness regarding her own safety, and poor decision making. Further, the blackouts are a concerning phenomenon, although again, the Mother attributes these blackouts to the conduct of the Father.

63The Mother has not seen the child since March. It is in the child’s best interest that he spend time with his mother. However, based on the evidence I have heard, I am satisfied on a balance of probabilities that the child’s safety is at risk while in the Mother’s unsupervised care. While the mother is well regarded by the daycare where the child attends, I agree with counsel for the Applicant, that the concern here is not when Xavier is at daycare, but when he is alone with his mother. I am satisfied on a balance of probabilities that it is in the child’s best interest that he continue to reside with his Father, living in the home of Tina Brunet and David Connors.

64I am also satisfied on a balance of probabilities that this case is one of the rare instances where supervised parenting time is warranted, at least until a report on the Mother’s mental health can be received. It is my hope the Office of the Children’s Lawyer will decide to become involved.

65The Applicant Father indicates that he only uses marijuana for sleep, and never in the presence of his child. I order that the Applicant Father not use marijuana when he is in the presence of the child.

Order

Order

66I hereby order on a temporary basis:

1. That the child remain with the Father, at the home of the Father’s parents. The Mother is to have supervised parenting time in the presence of her mother or grandmother a minimum of three times per week for a minimum of two hours each time. Should the parties not be able to work out times, they may return to me to settle the issue.

2. The Mother is to undergo a psychological evaluation by a mutually agreed upon mental health professional.

3. The Mother, to date, has not submitted the OCL intake form. This is to be done immediately.

4. If the parties were better able to communicate and co-operate with one another, I would simply order that the parents share decision making. However, I have a concern that the parties may not be able to co-operate constructively with one another, based on the material I have reviewed. Therefore, I order that decision making be made by both parents, and in the case of a dispute, on a temporary basis, the Father is granted the final say.

Costs:

Costs

67If the matter of costs cannot be settled, submissions from the Applicant are due June 24^th and submissions from the Respondent are due 15 days after June 24^th. If I have not heard from the parties by June 24, the issue of costs is deemed settled.

Anne London-Weinstein J.