COURT FILE NO.: FC-11-1791-1
DATE: 20210623
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Cindy Larente, Applicant
AND:
Mathieu Patenaude, Respondent
BEFORE: The Honorable Justice Lacelle
COUNSEL: Annemarie Roodal, Counsel for the Applicant
Deborah Bennett, Counsel for the Respondent
HEARD: June 15, 2021
ENDORSEMENT
[1] The Applicant mother brings a Motion to Change the final order of Maranger J. dated March 5, 2012 [“the order of 2012”]. The parties have been able to resolve a number of the issues addressed in the Motion to Change. What remains at issue are the parenting order for the child C. and as a consequence of that order, the appropriate ongoing child support order.
[2] The parties agree that there has been a material change in circumstances since the original order was made. They also agree on the incomes to be used in assessing child support, once the Court determines what parenting routine will be in place.
[3] As far as the parenting of C. is concerned, the only issue is whether a move to equal parenting on a week on/week off basis is in his best interests. No change is being sought regarding decision-making for C.
Overview
[4] The parties are the parents of the children M. and C. Pursuant to the order of 2012, the father, Mr. Patenaude, has sole custody of M. and C., while they have parenting time with their mother on alternating weekends, and for two days (including overnights) in the week following that. The children have additional parenting time with their mother during the summer, during holidays, and on other occasions, such as on the parents’ birthdays.
[5] In 2017, Ms. Larente approached Mr. Patenaude about moving to a shared parenting time arrangement. The parents agreed at that time to participate in a custody and access assessment to be completed by Dr. Alex Weinberger.
[6] By the time the assessment process was complete in April 2020, the child M. had commenced living with her mother. M. has been living with her mother full-time since July 2019. She is now almost 18 years old. By all accounts, her contact with her father since moving in with her mother has become infrequent. To their credit, the parties have been able to resolve the changes to be made to the final order to reflect M.’s current needs and circumstances.
[7] There has been clinical involvement with the family at two intervals. A Family Court Clinic Assessment was completed prior to the order of 2012. As indicated above, more recently, the parties consented to a private assessment. Dr. Weinberger’s report is dated April 2, 2020. He was cross-examined on that report some months later on December 11, 2020.
[8] In terms of Dr. Weinberger’s recommendations regarding the parenting of C., who will be 15 years old in a few months, he recommends that Mr. Patenaude continue to have decision making-responsibility for C. until he turns 16. He further recommends that C. have equal parenting time between his parents’ households. This is consistent with C.’s wishes and preferences.
[9] One of the issues emphasized by counsel in their submissions is the status of Ms. Larente’s mental health. There is evidence that she has lived through a great deal of trauma, and that she has experienced various mental health difficulties. She has been diagnosed with bi-polar disorder. The Family Court Clinic assessor concluded she also had traits consistent with borderline personality disorder.
[10] In the early stages of the parties’ separation, Ms. Larente was involved in child protection and criminal court cases. Insofar as the criminal conduct is concerned, she is reported to have assaulted Mr. Patenaude and set fire to his home, amongst other offences. Subsequent to a period of incarceration, she was able to obtain services at the Royal Ottawa Hospital which appear to have been helpful to her. Ms. Larente alleges that Mr. Patenaude assaulted her in August of 2010 and was charged with assault causing bodily harm. She says she felt pressured to recant for emotional and financial reasons and the charges were subsequently withdrawn.
[11] The evidence before me is that Ms. Larente’s mental health has been stable for some time. She has received treatment from a psychiatrist and continues to see her family doctor. Her family doctor reports that her mental health is stable.
Recent parenting history
[12] Between February 2014 and August 2019, there was ongoing CAS involvement with this family. For the purposes of this motion, the events of 2019 are most relevant. At that time, Ms. Larente reported to the CAS that Mr. Patenaude was physically and emotionally abusing the children and did not have food. However, when the matter was investigated, the children did not report any concerns.
[13] In 2019, Ms. Larente made allegations about Mr. Patenaude to a teacher at the children’s school. She told the teacher that Mr. Patenaude drank a lot, that he had beaten her up in the past, that he was drinking again, and had beaten up his partner and that the couple’s relationship was near collapse. Ms. Larente says she did share her own past experiences with Mr. Patenaude with the teacher but does not recall speaking about his relationship with his new partner, Ms. Ermacora. Mr. Patenaude denies he was abusive to either partner. Ms. Ermacora has provided an affidavit for this motion denying the allegation that Mr. Patenaude has abused her and stating that their relationship is stable.
[14] There have been occasions over the past year where the parenting schedule has been disrupted. Ms. Larente says these were circumstances that were effectively caused by the circumstances of the pandemic and that she has engaged in no overholding of the child C. that is not explained by those circumstances. Mr. Patenaude asserts that Ms. Larente has engaged in “self-help” measure to try to change the status quo as regards C.’s parenting.
[15] Ms. Larente had C. in her care, contrary to the terms of the original order, during various periods in the years 2020 and 2021. The parties disagree as to whether Ms. Larente wilfully violated the terms of the 2012 order on these occasions. Those periods were as follows:
a. From March 11 to April 7, 2020;
b. Between April and August of 2020:
Following receipt of Dr. Weinberger’s report, C. commenced a week on/off schedule. Mr. Patenaude says he never consented to this change. Ms. Larente says that she initiated it and Mr. Patenaude started to bring C. on that schedule. When he objected to it at the end of August 2020, they returned to the schedule in the original Court order. Ms. Larente reports that C. was upset with that;
c. On September 30th, 2020, following an incident where C. had been assaulted by youths at a bus stop (this period will be further described later in these reasons);
d. Between October 13th, 2020 and October 15th, 2020:
On October 12th, 2020, while C. was in her care, Ms. Larente advised Mr. Patenaude that she had scheduled a COVID test for C., who subsequently tested negative. C. was returned to his father on October 15th, 2020. C. had been scheduled to return to his father’s care on October 13th, since it was his father’s birthday and pursuant to the Court order the children were to spend each parent’s birthday with that parent;
e. During the month of January 2021:
In January 2021, Ms. Larente tested positive for COVID. Ms. Larente advised Mr. Patenaude of this on January 16, 2021. C. had returned to her care the day before. Mr. Patenaude maintains that C.’s “myChart” medical document shows that she was aware she had symptoms for five days prior to her diagnosis but she did not mention this to him. Ms. Larente denies she had experienced any symptoms prior to exchanging C. After testing positive, Ms. Larente advised Mr. Patenaude that C. would have to self isolate until January 31st along with others in her household;
f. Between January 31 and February 14, 2021:
During this period, C. was at his mother’s for a further 14 days because Ms. Larente had broken her isolation as regards C. on January 26th. Ms. Larente says she understood that after a certain point, isolation within the household was no longer required and she opened the door to C.’s room to check on him. She says she did not intentionally breach any isolation protocols. Mr. Patenaude alleges that regardless, C. might have isolated in his care. He says that that even though the case worker at public health said that C. could isolate while in the care of Mr. Patenaude, and Ms. Larente was given that information, C. remained in the care of Ms. Larente for almost a month. Ms. Larente does not deny she was given this information by a public health official.
[16] There have been other recent parenting issues as well. Mr. Patenaude says that Ms. Larente took C. to the doctor without Mr. Patenaude’s permission or knowledge, sought medication for C., and told Mr. Patenaude that the doctor prescribed antidepressants for him. Since Mr. Patenaude had decision-making authority for C., he alleges this is another breach of the 2012 order. Ms. Larente says that C. was with her and M. when M. visited the doctor. Because C. was complaining of not sleeping well, she mentioned it to the doctor while they were there. The doctor provided a prescription to help C. sleep, but there was no examination or diagnosis for depression during the visit.
Dr. Weinberger’s report and evidence
[17] Dr. Weinberger met with C. over a number of months. C. consistently expressed his wish to have a week-about parenting schedule. It was Dr. Weinberger’s view that C. was a mature child who was expressing his own genuine desire and was not under the influence of either parent, and that C. had expressed this preference having considered its implications.
[18] In cross-examination, Dr. Weinberger explained that children of C.’s age want to be able to have input into decision-making that has important consequences for them. Dr. Weinberger’s view was that C. was of an age and level of maturity and development where he had the ability to appropriately reflect on and consider these issues, and where his preferences should be respected. He felt that C. had been having “these feelings for some time that he was jostling with”.
[19] The Respondent emphasizes the recommendation of Dr. Weinberger “that in any future Order or agreement it would be important to ensure that conditions are clearly stipulated and abided by and that a custodial parent’s rights are absolutely respected”. Dr. Weinberger agreed in cross-examination that Mr. Patenaude had valid reasons for being concerned about a shared parenting routine being in C.’s best interests.
The Law
[20] Section 24 of the Children’s Law Reform Act sets out the considerations the court must bring to the determining what parenting order is in the best interests of a child. It provides as follows:
[21] 24 (1) 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. 2020, c. 25, Sched. 1, s. 6.
[22] 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. 2020, c. 25, Sched. 1, s. 6.
[23] 24.(3) Factors related to the circumstances of a 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.
[24] 24.(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 behaviour 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 from 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.
[25] 24.(5) In determining what is in the best interests of the child, 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. 2020, c. 25, Sched. 1, s. 6.
[26] 24.(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of the child. 2020, c. 25, Sched. 1, s. 6.
[27] 24.(7) This section applies with respect to interim parenting orders and contact orders, and to variations of parenting orders and contact orders or interim parenting orders and contact orders. 2020, c. 25, Sched. 1, s. 6.
The positions of the parties
[28] Ms. Larente argues that having regard to the best interests test and the factors outlined in s. 24 of the CLRA, the Court should conclude that it is in C.’s best interests to have a week about parenting routine. This is consistent with the child’s wishes, and given his age, the court should give them considerable weight. Further, this change is consistent with the recommendations of Dr. Weinberger. With respect to the suggestion by Mr. Patenaude that she has wilfully disobeyed the existing Court order, Ms. Larente says that the circumstances for C. remaining in her care were necessitated by public health considerations during the pandemic. She has not intentionally prevented C. from returning to Mr. Patenaude’s home. Further, her mental health is now stable as she has followed up with treatment. She is in a positive relationship with a new partner who has a good relationship with her children. There were no concerns about her parenting during the time this routine was implemented between April and August of 2020. Ms. Larente emphasizes that M. and C. are very different children and M.’s relationship with her father has not been undermined by her. To the contrary, the evidence is that she has encouraged M. to see her father. Finally, Ms. Larente draws the court’s attention to all the instances where she and Mr. Patenaude have been able to share information about their children and work cooperatively to support them.
[29] For his part, Mr. Patenaude argues that there has been over a decade of conflict in parenting the children, and that this conflict has been initiated by Ms. Larente. The conflict has continued since the most recent assessment of Dr. Weinberger. Despite C.’s age, and the wishes and preferences he has expressed during the assessment process, this is not an appropriate case for shared parenting time, nor parallel parenting. Mr. Patenaude emphasizes occasions where he says Ms. Larente has undermined him and where she has been in breach of the existing order. Her past and current parenting confirm that she cannot co-parent to the degree required to make the order she seeks in C.’s best interests. He maintains that C. is doing well now, in contrast to M., who is not flourishing under her mother’s care. He is concerned that Ms. Larente will work to erode his relationship with C. if the order she requests is made.
Analysis and Decision
[30] I find that it is in C.’s best interests that the terms of the 2012 order regarding his parenting be maintained. I reach that conclusion because I find that C. is doing well with the current arrangement, while the risks involved in changing the parenting routine are such that I am not satisfied that a change to a week-about parenting routine is in his best interests.
[31] I find that there is significant evidence of historic conflict in this file, and that elements of that conflict have continued since the preparation of Dr. Weinberger’s report.
[32] I am persuaded that there have been instances in the recent parenting history where Ms. Larente has not respected the terms of the original order. While I appreciate that the circumstances of the pandemic created various difficulties that required flexibility on the part of parents, I am not satisfied that all of the instances of alleged overholding of C. can be justified by circumstances created by the pandemic and the necessity to abide by public health guidelines. For instance, the circumstances in which C. came to be residing with Ms. Larente for an entire month following her COVID diagnosis are concerning. Given the history, I can appreciate the Respondent’s concern that these circumstances were manipulated by the Applicant.
[33] More concerning however are those occasions when C. was on the cusp of returning to his father’s care when Ms. Larente made medical decisions relating to C. that had the effect of interrupting C.’s parenting time with his father. This has occurred twice.
[34] First, there was an incident on September 30th, 2020 briefly referenced above. I find the exchange of C. was frustrated by Ms. Larente when, two days after the assault on C. at the bus stop, she took C. to the hospital because he was not feeling well. At the time she made this decision, Mr. Patenaude had already attended at her residence to pick up C., who asked him if he could have time to get something to eat. Mr. Patenaude agreed and said he would return to the residence after running some errands. During that interval, Ms. Larente brought C. to hospital because he was not feeling well. While I appreciate that C. was ultimately diagnosed with a concussion, I fail to see why Mr. Patenaude could not have been called back to the residence to bring C. to the hospital if it was felt that he needed immediate medical attention. After all, it was Mr. Patenaude’s time with C., and he had decision-making authority. The result of Ms. Larente’s actions was that C. went to hospital with her, and Mr. Patenaude could not be involved in any of the discussions about C.’s care or see C. at the hospital since COVID protocols prevented this. C.’s return to his father’s care was delayed as a result. While head injuries, like concussions, are undoubtedly serious, there was nothing about C.’s presentation that was so dire that the decision to bring him to hospital could not have waited until his father returned to Ms. Larente’s residence.
[35] Second, on the heels of the first incident, the exchange of C. was frustrated when C. was sent by the Applicant for COVID testing on October 12, 2020, the day before Mr. Patenaude’s birthday. It seems that any genuine need to have C. tested for COVID might have been discussed with Mr. Patenaude and/or left to him to determine.
[36] The same concern applies about the evidence that Ms. Larente took C. to his family doctor and obtained a prescription for him. The 2012 order was clear that such decision-making was within Mr. Patenaude’s authority. Ms. Larente disregarded this term of the order in circumstances that were far from constituting an emergency which might justify her conduct.
[37] The presence of this type of ongoing conflict is important to consider given that Dr. Weinberger’s recommendation for week-about parenting time assumed that the parents would strictly abide by the terms of the arrangement. Dr. Weinberger went so far as to clarify that “[a]bsent an agreement between the parties, the set schedule ought not to be interfered with or a child withheld, even if a child may be ill or uncomfortable”. The evidence satisfies me that there have been occasions where the exchange was frustrated when Ms. Larente unilaterally decided very near to the time C. was scheduled to return to his father’s care that he should instead be brought to hospital or receive medical care. Whether she recognizes it or not, she has undermined Mr. Patenaude’s authority and parenting time in not allowing him to make these decisions for C.
[38] The parenting history for M. is also relevant here, even though I fully appreciate that M. has her own mental health issues and parenting history with the Respondent that undoubtedly play a role in the recent difficulties in the relationship between the Respondent and M. Nevertheless, it is of concern that M. is now rarely seeing her father and that this change has come about while in the full-time care of her mother. While I take Ms. Larente at her word that she is encouraging M. to have a relationship with her father, this recent history with M. does not reassure me that if the proposed changes are made to C.’s parenting routine that the relationship he has with both parents will remain as strong as it is now.
[39] I have given very strong consideration to the consistent expression by C. to Dr. Weinberger that he wants to move to a week-about schedule. I have also given strong consideration to Dr. Weinberger’s evidence that C. is of a maturity level that allows him to evaluate what this change would mean for him, that his desire to make this change is genuine, and that he has not been influenced by either parent. I also have given very careful consideration to the evidence of Dr. Weinberger that for children of C.’s age, involvement in the decision-making that affects them is particularly important.
[40] However, I also consider Dr. Weinberger’s evidence as it relates to the Respondent’s concerns. Dr. Weinberger provided the following evidence:
a. C. is a child caught in the middle of a conflict;
b. C. has a personality with some insecurities, and that he is in a very uncomfortable position between his parents;
c. C. is keenly aware of the position he is in;
d. Teen-agers who are in the middle of a conflict may take a “keep the peace” approach, and the expression of a wish to do 50/50 parenting time may be a way for them to try to manage conflict, in addition to being an expression of the fact that they’re comfortable having both parents in their life;
e. When asked if he would agree that C. wanted to keep the peace in his family, Dr. Weinberger responded: “Well, I think in part. I wouldn’t say that that was in the majority or it would override other things and experiences. So I think it’s a component but my understanding of C. was that he really was attached to both parents in a meaningful, significant way and that his view of how that would be best responded to in asking him the question that his preference was to go half and half”;
f. That in a 50/50 scenario, compliance would be required from both mom and dad;
g. That this case did not present “a clean cut indication of a significant or enduring or definitive ability for the parents to work well together without difficulty but there were some instances where they were able to do that including texting each other, phoning each other when there was a crisis, having understanding to be able to communicate that way”. Dr. Weinberger later explained that he “was trying to suggest that there was a foundation there to work with”;
h. That the 2012 Family Court Clinic assessment outlined a very detailed history of Ms. Larente being disruptive, including criminal charges in relation to Mr. Patenaude, that this was also disclosed in the history of the CAS records, and that there is about a decade where there are serious incidents or disruptions;
i. That a person’s past parenting history tells us a lot about what a person will do, as does their profile in terms of mental health and their personality;
j. That the parents have different parenting styles, with Ms. Larente being the more permissive between them and Mr. Patenaude having more rules;
k. When asked whether because a teenager is going to be attracted to more permissive parenting, this would make parenting “really difficult for Mr. Patenaude”, Dr. Weinberger replied: “Well yes it’s going to create difficulties for him, yes. It puts him in a more negative light because he’s seen to be not just reactive but overly restrictive”;
l. That if the mother is more permissive and there’s access to funds through her, that could potentially motivate teenagers to want to live with mom;
m. That there have been “frequent”, or “a number of”, incidents of Ms. Larente undermining Mr. Patenaude’s parenting;
n. That various examples of Ms. Larente’s more recent actions had the potential to be disruptive to Mr. Patenaude’s parenting authority, including:
i. Taking C. to a medical practitioner and obtaining a prescription for him without speaking to Mr. Patenaude in advance;
ii. Telling C. that they were moving to a 50/50 schedule without first obtaining the agreement of Mr. Patenaude;
iii. Taking C. to hospital without involving Mr. Patenaude in the decision “unless it’s a dire emergency”;
iv. Unilaterally deciding C. should have a COVID test;
v. The breach of isolation after Ms. Larente’s positive Covid test resulting in C. staying with Ms. Larente for an even longer period of time.
[41] C. is 14 years old. He has been living in circumstances where I expect the conflict between his parents has been plain to him for some time. There is no easy way to ascertain to what extent C.’s expressed wish to have equal parenting time between his parents is informed by a desire to be a peace-keeper and mitigate this conflict between his parents, both of whom he loves. Even if it is not, all the circumstances that are relevant under s. 24 of the CLRA must be considered, not just C.’s views and preferences. While I regret that C. may feel that the Court has not adequately considered his views and preferences, or given them sufficient weight, I cannot endorse the parenting routine he prefers given all the factors I must consider. The dynamics in this family are such that I am not persuaded that this change will ultimately be in his best interests.
[42] In arriving at this decision, I have also considered the Applicant’s submissions about the times where the parenting routine for C. has been week-about, such as during the summer and for the period of April to August of 2020. I am not persuaded that these periods of time establish a new status quo for C. (to be clear, the Applicant has not made this argument), or that they demonstrate that this ongoing routine, which will be in effect when C. is in school, is in his best interests. I commend the parents for making the week-about routine work when it is in place. However, I find on a balance of probabilities that C.’s best interests, including the quality of the relationships he has with each parent, are better served by being primarily in his father’s care while school is in session.
[43] On this point, it is also relevant that the evidence is clear that each parent has a different parenting style. The lack of consistency between the two households is a factor that I consider. The children perceive their father as having stricter rules. Their mother is more permissive in her style. The household of each parent also offer different attractions to the children, since at their mother’s they have the advantages of life in the city which are missing when at their father’s residence. This seems to have been a factor in the recent changes in M.’s relationship with her father. I am alive to the concern that a week about arrangement may further intensify conflict arising from these differences for C. as well.
[44] It probably does not help matters that Ms. Larente has placed $2000.00 from the funds she received from the Criminal Injuries Compensation Board in relation to the alleged assault by Mr. Patenaude in 2010 into a joint account for the children and herself. It is not clear on this record what the children have been told about the source of these funds. Ms. Larente reports that M. has used some of these funds to pay for her G1 driver’s licence. It is not surprising that Mr. Patenaude is concerned about the impact of making this money available to the children.
[45] With this ruling, I do not want to diminish the very important role that Ms. Larente plays in C.’s life. His attachment to her, and hers to him, is clear. She has been a capable parent. Nor do I wish to diminish the fact that there have been many occasions where the parents appear to have been able to constructively communicate and co-parent.
[46] But the Court must decide, on a balance of probabilities, which parenting routine is best for C. at this stage of his life, and in doing so, give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of the child: s. 24(7) of the CLRA. A number of considerations feed into this determination, as I have tried to explain above. Having given it my best consideration following a careful review of the evidence, I am not persuaded that the parenting changes sought by the Applicant are in C.’s best interests and her motion is therefore dismissed. I find that the current order allows C. to have parenting time with both of his parents in a manner that is consistent with his best interests.
Conclusion
[47] For these reasons, the motion to change the parenting terms regarding C. is dismissed.
[48] Given this conclusion, the child support order may also issue. Counsel have agreed that it is based on an income for Mr. Patenaude of $69, 046, while Ms. Larente’s income of $21, 994, which is non-taxable, shall be grossed up for child support purposes to $23, 699. This results in a child support obligation payable by Mr. Patenaude for the benefit of M. to Ms. Larente of $644. Ms. Larente has a child support obligation payable to Mr. Patenaude for the benefit of C. in the amount of $190 monthly. The resulting set off amount is $454 payable by Mr. Patenaude to Ms. Larente, commencing on July 1, 2021.
[49] With respect to the issue of costs, if the parties cannot agree on a resolution of this issue, submissions of no longer than 3 pages (plus attachments) may be filed by the Respondent no later than four weeks from the date of the release of this decision. The Applicant shall have a further four weeks to respond. If counsel prefer, they may agree to an alternative schedule and so advise the Court.
The Honourable Justice Laurie Lacelle
Date: June 23, 2021