Andrew Rogers v. Rebecca Brush, 2021 ONSC 6134
COURT FILE NO.: 20-281
DATE: 20210916
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Andrew Rogers, Applicant
AND:
Rebecca Brush, Respondent
BEFORE: The Honourable Justice Laurie Lacelle
COUNSEL: Christian Pilon, Counsel for the Applicant
Anne Bellefeuille, Counsel for the Respondent
HEARD: August 19, 2021
ENDORSEMENT
Introduction
[1] Mr. Rogers and Ms. Brush are the parents of Sullivan Flin Rogers (b. June 28, 2020). He is now almost 15 months old. Mr. Rogers and Ms. Brush separated a few months after Sullivan’s birth.
[2] Earlier this year, the parties consented to a final order providing for joint custody (order dated February 9, 2021).
[3] The parenting regime so far has been set out in interim orders which were made on a without prejudice basis. The last order was made on March 22, 2021. It provided for parenting time on a schedule which was to increase on May 21, 2021 to every second week-end between Friday at 5pm and Sundays at 5pm. Exchanges were to take place at the York Centre or any other location agreed to by the parties.
[4] Mr. Rogers now brings a motion for an interim order to expand his parenting time with Sullivan and other relief, largely focused on clarifying communication for the purposes of decision-making. With respect to parenting, he seeks an order that the parties share parenting time with Sullivan on a 2-2-3 schedule, with the exchange to be held at the OPP Station in Long Sault, or any other neutral location. Alternatively, he suggests a week-about schedule. In the event shared parenting is ordered by the court, the current child support order will need to be varied as well. The orders sought are opposed by Ms. Brush, who advances her own proposal for parenting time.
Overview of the evidence
[5] The parties lived together between May 1, 2020 and August 2020. Sullivan was born in late June that year.
[6] When they resided together, the parties were living in Ingleside. After their separation in August of 2020, they continued to live on the same street. While I presume given the previous court orders and the submissions of counsel that Sullivan was primarily in the care of Ms. Brush after the separation, neither party has provided evidence in this proceeding as to how Sullivan was parented prior to the parties’ appearances in court.
[7] Mr. Rogers works in Russell, Ontario. He continues to reside in Ingleside and commutes from there to work. He has another child, Michaela, who lives with him on a week-about schedule. Michaela’s school is in Russell. This is the opposite direction of Cornwall.
[8] Ms. Brush also has a child from another relationship, Maxwell. He is in her care on a week-about schedule, although this has shifted somewhat during the pandemic so that he is more frequently in her care.
[9] Ms. Brush works for an employer based in Ottawa. While her workplace is in Orleans, her employer has agreed to a flexible home-based schedule to accommodate her parenting of Sullivan.
[10] While Ms. Brush previously resided in Ingleside, she moved to Cornwall on February 1, 2021. Even though counsel for Mr. Rogers had communicated through counsel about where she intended to move, she provided notice to Mr. Rogers of her new address in court filings served on him on February 11, 2021.
[11] By way of explanation for her move, Ms. Brush says that because the rental/real estate market was inflated, she was unsuccessful in securing a home in either Ingleside or Long Sault. By December of 2020, she recognized that her accommodations were not adequate for the children’s needs and she began to look at rental options again. Her sister, who is employed with social housing in Cornwall, made her aware of a property in Cornwall. It was ideal to address the children’s needs, so she rented it.
[12] Mr. Rogers indicates that as a result of this move, and the unilateral decision by Ms. Brush to place Sullivan in a daycare in Cornwall, it would take him and Michaela over an hour to get to Russell after dropping off Sullivan in Cornwall. As part of his plan, he proposes exchanges of Sullivan at the OPP station in Long Sault. This will save him time during his morning routine with Michaela and will allow Sullivan to continue with the same daycare provider.
[13] Prior to the parties living together, in July 2019, Mr. Rogers was convicted following his guilty plea to an assault on Ms. Brush. Ms. Brush alleges in her materials on this motion that Mr. Rogers also assaulted her during an exchange of Sullivan in December of 2020. The evidence on the motion shows that a few months after that alleged event, Ms. Brush suggested to Mr. Rogers that they might resume their relationship. Mr. Rogers says this shows her alleged fear of him is not genuine.
[14] Both parties make allegations and raise concerns about the other’s ability to parent. One of Ms. Brush’s concerns (relating to Mr. Rogers’ alleged substance abuse) was reported to the Children’s Aid Society. In a letter dated April 7, 2021, the Society noted its concern about the parental conflict that was developing but confirmed it had no protection concerns regarding Mr. Rogers’ ability to parent (Mr. Rogers states that he does not use marijuana when his children are in his care). Ms. Brush also emphasizes difficulties in communicating with Mr. Rogers and instances of alleged aggressive or violent behaviour by him, such that she is not comfortable being in his presence for exchanges. She further states that Mr. Rogers has mental health problems. Generally, her concerns are his anger management, his substance abuse, and his anxiety since it sometimes leads to panic attacks that last for hours and would render him unable to care for a child.
[15] For his part, Mr. Rogers recounts instances where Ms. Brush has said inflammatory and inappropriate things to his daughter during exchanges of Sullivan, such as “Your daddy is a fucking piece of shit and your mother is a cunt too”. She is also alleged to have called Michaela “a psycho” and told her she had mental problems. Some of these events have been captured on audio tape. Mr. Rogers also alleges there have been occasions where Ms. Brush has been verbally or physical abusive towards him.
The positions of the parties
[16] Mr. Rogers alleges that Ms. Brush is not respecting the terms of the joint custody order and that the beginnings of a pattern of alienation are evident in her behaviour. In support of this position, he emphasizes that she moved without his consent (which vastly complicates his ability to care for both his children and get to work in a reasonable period of time), she has failed to facilitate parenting time, she has registered Sullivan at a daycare without his consent, she has reported him to the Children’s Aid Society, and is generally not maximizing the relationship he has with Sullivan, if not trying to defeat it. In these circumstances, he argues that the court should make the orders he suggests to clarify how communication will work for decisions regarding Sullivan. Mr. Rogers argues that the shared parenting order he seeks will maximize Sullivan’s relationship with both of his parents, as well as the step-siblings he has in each household. Mr. Rogers further emphasizes that the difference between the parties’ positions on this motion is an additional 2 days of time that Sullivan would be in his father’s care. He says if he is a good enough parent to have Sullivan in his care for 5 days of 14, there is no basis to be concerned that an order for shared parenting would not be in Sullivan’s best interests.
[17] For her part, Ms. Brush argues that Mr. Rogers is trying to change the terms of the final order in respect of decision-making, and that he has not demonstrated a material change in circumstances since the interim parenting order was made in February of 2021. In the event the court disagrees, she submits that it is not the law that maximizing parenting time must result in a shared-parenting order. Further, the test is not whether Mr. Rogers is a good parent. With respect to the argument that she has taken steps towards alienating Sullivan from his father, she says she has followed the interim orders and there is no basis to draw the conclusion that she is undermining the relationship. Ultimately, given Sullivan's very young age, and the fact that the parenting order she proposes provides parenting time to Mr. Rogers which will promote his relationship with Sullivan, the court should find that a shared parenting routine is not in Sullivan's best interests. Ms. Brush proposes a parenting order that would provide Mr. Rogers with parenting time from Friday at 5 pm until Sunday at 5 pm in the first week, and on Wednesdays from 5 pm to Thursday at 7 am in the second week.
[18] At the conclusion of the hearing of the motion, the parties agreed they would use "Our Family Wizard" for their communications going forward.
The issues to be decided
[19] The issues to be decided by me are as follows:
a. What parenting order is in Sullivan’s best interests;
b. What child support is payable if shared parenting is ordered;
c. Should the court order further terms setting out how the parties will communicate about issues requiring their joint decision-making because doing so is in Sullivan’s best interests.
Analysis and decision
The jurisdiction issue
[20] I am satisfied that the terms sought by Mr. Rogers to clarify how the parties will communicate about decision-making do not amount to a change of the final order. I am also satisfied that the existing parenting order was made on a without prejudice basis. That either party could bring a further motion to address parenting terms is clear from the terms of the order itself, which allow for that event.
[21] Consequently, it is open to me to make the orders sought by Mr. Rogers.
The parenting order that is in Sullivan's best interests
[22] In deciding what parenting time with each of his mother and father is in Sullivan’s best interests, I apply the law set out in s. 24 of the Children's Law Reform Act to the evidence before me.
[23] There are some red flags about the beginnings of parental alienation in this case. That Mr. Rogers takes the view that Ms. Brush is not facilitating his relationship with Sullivan, and may be trying to defeat it, is not surprising given the history here.
[24] The evidence about Ms. Brush’s move to Cornwall is the most clear on this record. While not a long distance away, Ms. Brush must have understood that her move could have a significant impact upon Mr. Rogers’ ability to co-parent Sullivan given where he works and where Michaela goes to school. At a minimum, the evidence before me supports the conclusion that Ms. Brush did not consider how the move would impact on Sullivan’s relationship with his father when she made the move to Cornwall without first discussing it with Mr. Rogers. She says that the house she rented met the children’s needs and notes that it was close to Maxwell’s school. She does not say that she considered the impact on Sullivan and his relationship with his father, and I find that she did not.
[25] It is less clear on the record before me what parenting time has been withheld by Ms. Brush. The parties offer competing accounts. In any case, it appears there have not been any instances of withheld parenting time since the transition to the latest schedule in May.
[26] The facts around the enrollment of Sullivan in daycare are also in dispute. There is some evidence that Ms. Brush did seek information from Mr. Rogers about his proposed day cares and that he was not responsive. It is difficult to make findings of fact based on snippets of a text conversation. I do conclude that ultimately Ms. Brush chose the daycare for Sullivan and that there is no evidence that Mr. Rogers consented to a daycare in Cornwall.
[27] Given this evidence, and the reporting of Mr. Rogers to the Children’s Aid Society, there is reason for concern about rising levels of conflict and the extent to which Ms. Brush is willing to support the development and maintenance of Sullivan’s relationship with Mr. Rogers. This is a factor specifically set out in s. 24 of the CLRA.
[28] However, the decision about what parenting order is in a child’s best interests must include consideration of all the evidence, and all the factors listed in s. 24 of the CLRA. The law requires that I only take into account the best interests of Sullivan, and in doing so, that I consider all factors related to his circumstances, giving primary consideration to his physical, emotional and psychological safety, security and well-being.
[29] Consequently, in making my decision, I also consider that Sullivan is still very young, and he has been in the primary care of his mother since August of 2020. His age and stage of development and his need for stability are very important factors in the analysis. So is the history of his care.
[30] I also consider that there are no allegations that Ms. Brush has not followed the more recent parenting orders. This gives me confidence that she can parent in a way that recognizes Sullivan’s need to have a relationship with his father. Her proposal on this motion to expand the parenting time further also shows me that she recognizes the important role Mr. Rogers plays in Sullivan’s life, even if she has not always acted as though she understands this.
[31] It is in Sullivan’s best interests that his parenting time with his father be consistent, frequent, and of sufficient duration that the relationship can grow. While Mr. Rogers argues that he should have the maximum time possible with Sullivan, the parenting schedule also has to be consistent with Sullivan’s best interests. A shared parenting order is not the only way to promote the relationship between a parent and child – each case needs to be assessed having regard to the principles and factors set out in s. 24 of the CLRA.
[32] I consider the allegations of violence in this case. Again here, it is difficult to make findings of fact. The assault conviction is a proven instance of violence by Mr. Rogers towards Ms. Brush, though I note that it dates from before Sullivan was born. The allegations of assault or aggressive behaviour (including verbal attacks) during exchanges of Sullivan are of concern and will be addressed in my order. I do not find on this record, however, that there is a pattern of coercive or controlling behaviour by either party, or that either party poses a risk of causing harm to Sullivan. While each party has made allegations, the parenting plans presented by each and their consent to a joint custody order (when both were represented by counsel) suggests that family violence is not a significant factor in this case which impacts the issues listed in s. 24(3)(j).
[33] In all the circumstances, and on a balance of probabilities, I find that the parenting order proposed by Ms. Brush is in Sullivan’s best interests at this point in time. The structure of this order ensures that each parent has meaningful time with Sullivan every week, but it also builds on the routine that Sullivan is most accustomed to now. Given his very young age, this consistency in his routine, and building incrementally upon it, is important.
[34] However, I caution Ms. Brush that further evidence that she is acting to undermine Sullivan’s relationship with his father could lead to a different order in the future. She needs to show by her actions going forward that she is supporting the development and maintenance of Sullivan’s relationship with his father.
[35] With respect to exchanges, I find the proposal of Mr. Rogers (number 7 in the order requested in the Amended Notice of Motion) is in Sullivan’s best interests. The exchange at a police station ensures that both parties should be on their best behaviour so that Sullivan is not exposed to conflict. Moving the exchange to Long Sault will not adversely affect Sullivan in any way, and specifying that Ms. Brush is responsible for Sullivan’s transportation from the police station to daycare mitigates the impact of Ms. Brush’s move to Cornwall given Mr. Rogers’s need to get to Russell on work and school days.
[36] Given my conclusion about the parenting time, there is no need to adjust child support.
[37] With respect to the other terms sought by Mr. Rogers to clarify decision-making, I am satisfied that it is in Sullivan’s best interests to add these terms to this interim order so that the process for decision-making in the future will be clear and less likely to result in conflict which might affect Sullivan. Accordingly, the orders requested at numbers 1-5 shall issue.
[38] In concluding, I want to be clear with the parties that I am concerned about the level of conflict that is evident given their allegations about one another. I am not in a position to determine where the truth lies in respect of some of the allegations they have made about the other. I am satisfied, that Sullivan is loved and properly cared for in each of their households. Sullivan should be able to have the best of what both of his parents can offer him, and to grow up in a way that also allows him to have strong relationships with his siblings.
[39] Ms. Brush and Mr. Rogers need to be aware that even if they are good parents individually, continued conflict between them may have a significant impact on Sullivan, particularly at this stage of his development. They need to find a way to put their differences aside and work together in Sullivan’s best interests so that he can become a happy and healthy boy and adolescent. If they need help in learning how to relate to or communicate with the other parent in a healthy way, they might find assistance in Triple P parenting courses focused on parenting after separation, or in individual counselling. Where they cannot resolve a dispute, mediation is always an option, as is negotiating through counsel. If need be, they can bring their dispute to court. In all instances, however, Sullivan and his interests needs to be factored into all their decisions, and they need to be respectful of each other in their communications.
Conclusion
[40] For these reasons, Mr. Rogers’ motion is allowed in part, and dismissed in part.
[41] If counsel are unable to resolve the issue of costs, they may file written submissions no longer than 2 pages (plus attachments). Mr. Rogers shall have 4 weeks from the release of this ruling to file his submissions. Ms. Brush shall have a further 2 weeks to respond.
The Honourable Justice Laurie Lacelle
Date: September 16, 2021