Oremush v. Hickey, 2021 ONSC 6833

COURT FILE NO.: FC-18-2265

DATE: 2021/10/14

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

SHAWN OREMUSH

Applicant

– and –

DESTINY JANE HICKEY

Respondent

Christian Pilon, for the Applicant

John E. Summers, for the Respondent

HEARD: May 18, 19, 20, 21, 25, 26, 27, 28, June 8, 10 and 24, 2021

REASONS FOR JUDGMENT

AUDET J.

1This is an application in which the Applicant father seeks to change the parenting arrangements in place for the parties’ nine-year old daughter, as confirmed in a Final Order of the Quebec Superior Court of Justice on November 30, 2015. More specifically, he seeks an order granting him exclusive decision-making responsibility on all matters affecting the child and placing her in his primary care with parenting time to the Respondent mother.

2The Respondent mother seeks the dismissal of the Applicant father’s application, and the adjustment of the father’s child support obligations going back to November 2019.

3For the reasons set out below, I have decided that the child would remain in her mother’s primary care but with increased parenting time to the father pursuant to a detailed multi-directional parenting order the compliance of which – by both parties – I will continue to monitor for a period of one year as the post-trial case management judge. I also determined that it was in the best interest of the child that her mother continue to have sole decision making responsibilities on most matters related to her well-being, but not all, and I have imposed clear obligations on her part to meaningfully consult with the father on certain matters before making decisions while precluding her from making certain decisions without the father’s written consent or a court order. Finally, I adjusted the father’s child support obligations retroactive to November 2019 and confirmed the parties’ respective child support obligations going forward.

BACKGROUND

4The Applicant father, Shawn Oremush, is 35 years of age and lives in Gatineau (Aylmer), Quebec (hereinafter “the father”). The Respondent mother, Destiny Jane Hickey, is 37 years of age and lives in Ottawa, Ontario (hereinafter “the mother”). The parties were in a relationship from approximately May 2011 to October 2013 at which time they separated. Throughout their relationship, they lived in Gatineau (mainly Aylmer), Quebec. They are the biological parents of Briegha Oremush, who was born on January 28, 2012 (hereinafter “Briegha” or “the child”).

5On November 30, 2015, the Superior Court of Quebec confirmed and rendered executory an agreement reached between the parties (hereinafter the “2015 Parenting Order”) which granted the mother sole custody of the child and access to the father as follows:

a) Every second weekend from Friday 3 p.m. to Sunday 3 p.m. and every Wednesday for supper, from 3 p.m. to 7 p.m.:

b) During the Christmas Holiday each parent will have three days for Christmas with the child, from Christmas Eve at 3 p.m. to boxing day at 3 p.m. The father will have the child including Christmas on even years and the mother on odd years. For the holiday - including New Year's, from the 31st at 3 p.m. to New Year's Day 3 p.m., the father will have the child on odd years, the mother having said child on even years;

c) During Father's Day and the father's birthday the child will be with her father, if it is a weekend from 1 p.m. to 1 p.m. the following day and if it is during the week, from 3:00 p.m. for dinner until 7h00 p.m.;

d) During Mother's Day and the mother's birthday the child will be with her mother, if it's a weekend from 1 p.m. to 1 p.m. the following day and if it is during the week, after school for dinner until 7:00 p.m.;

e) On the child's birthday, said child will be with her mother on odd years and with her father on even years from 3:00 p.m. to 7:00 p.m. for her birthday dinner;

f) For the summer period, each parent will have two (2) weeks (consecutive or not) with the child. Such vacations will have to be confirmed no later than May 1st of each year;

g) Apart from the parties’ summer vacations of 2 weeks each, the parties agree to alternate weekly the custody of their child Briegha for the remaining weeks during - said summer vacation, if the defendant works day shift. The defendant undertakes to leave the daughter Briegha with her mother during the time she will be at work;

h) For the Easter and Thanksgiving long weekends, the parties agree that the mother will have the child with her on odd years and the father will have the child with him on even years;

i) For March break, the parties agree that the mother will have child with her on odd years and the father will have the child with him on even years if the defendant does not work during that said week;

j) At any other time after mutual agreement between the parties.

6The order confirmed that the father could call Briegha daily between 7:00 p.m. and 7:30 p.m. if he wished to do so, and that the parties would advise each other six months in advance if they intended to move out of the Outaouais Region. At the time, both parties (and the child) still lived in Gatineau, Quebec.

7At the time the 2015 Parenting Order was made, the father was under the protective supervision (known in Ontario as legal guardianship) of his mother, Maureen Alcorn (hereinafter “Ms. Alcorn”), pursuant to a judgment of the Quebec Superior Court of Justice dated August 17, 2005 (hereinafter “the 2005 Supervision Order”), made when the father was 21 years old. The judgement confirms that, based upon the father’s family members’ testimony and the medical and psychoeducational reports filed, the father was partially but permanently unable to ensure the protection of his person and to administer his patrimony. As a result, the agreement reached by the parties, which was later confirmed by the 2015 Parenting Order, was signed by the father and by Ms. Alcorn as his legal tutor (or guardian).

8During this 11-day trial, I was not provided with any evidence that would assist me in understanding why a supervision order was required for the father at the time he was 21 years old. All I know is that on January 14, 2019 (roughly two months after the father filed his Application to change the 2015 Parenting Order before this Court), a Notice pursuant to s. 280 of the Quebec Civil Code, R.S.C., 1985, c. C-46, issued notifying all interested parties that the father’s incapacity had sufficiently changed to justify the termination of the 2015 Supervision Order, and that unless any objection was filed within 30 days, the 2015 Supervision Order would be terminated automatically. As no objection was filed, it effectively ended on February 14, 2019.

9Shortly after the 2015 Parenting Order was made, the mother moved to Ottawa with the child. She did not give six months’ notice to the father as required by the 2015 Parenting Order. Much evidence was adduced during the trial with respect to the events that took place between November 2015 (the date of the 2015 Parenting Order) and November 2018 (the date at which the father filed the within application), which I will discuss in more detail later. What is important to say at this point is that when he initiated these proceedings, the father was only trying to enforce the terms of the 2015 Parenting Order which he alleged the mother was not following. In particular, the father alleged that the mother had unilaterally suspended his access with Briegha since April 2018.

10In his Application filed on November 20, 2018, the father was seeking the following main orders:

• An order recognizing the 2015 Parenting Order;

• A declaration that the mother was in contempt of the 2015 Parenting Order;

• An order compelling the mother to abide by the terms of the 2015 Parenting Order;

• In the alternative, an order granting the parties joint custody of the child with an equal time-sharing arrangement;

• In the further alternative, an order granting him such parenting time with the child as the court would deem to be in her best interest.

11Shortly after he filed his Application, the father brought a contempt motion seeking leave to be heard on an urgent basis to reinstate his parenting time with Briegha. Leave was denied and the parties were required to attend a case conference which was scheduled to be heard on January 23, 2019. By then, the mother had served and filed her Answer to this proceeding, seeking the dismissal of all the father’s claims and an adjustment of the father’s child support obligations. While she expressed being prepared to allow meaningful contact between Briegha and her father, she maintained that some form of reunification therapy would first be required.

12On March 19, 2019, the father’s contempt motion was heard. As stated previously, the father alleged that the mother had unilaterally suspended all parenting time between him and Briegha for almost one year. The mother, on the other hand, alleged that the father was the one who had failed to exercise his access rights, that he rarely called Briegha, and that she had made efforts and reached out to the father’s family members to encourage the father to spend time with Briegha, to no avail.

13In a decision released on March 20, 2019 by Shelston J., he arrived at the following conclusions:

22I find that based on the chronology of events as well as the statements made by the respondent in her questioning, the respondent was aware by August 26, 2018 that she was alleged to be in breach of the court order. The respondent admitted that the terms of the Quebec order were clear and that she understood them having read them many times.

23I find that the respondent intentionally and knowingly breached the court order dated November 30, 2015.

24While the respondent alleges that she has complied with advice from various healthcare professionals, she has provided no evidence in the way of a report or an affidavit from any of these healthcare professionals. The respondent unilaterally decided to suspend access.

25Court orders are to be respected especially when it concerns a child's access to a parent. This court does not condone parents using a self-help remedy to disregard a valid court order. I find that the respondent's actions were not in the best interests of her child.

26If the respondent believed that there had been a material change in circumstances requiring the suspension of visitation by the applicant, it was incumbent upon her to commence a proceeding to suspend such visitation. It was not the right of the respondent to simply disregard the provisions of the court order.

271 conclude that the respondent is in contempt of the Superior Court of Quebec court order dated November 30, 2015 by unilaterally suspending the applicant's access to his daughter.

14Having found the mother in contempt of the 2015 Parenting Order, Shelston J. considered the father’s request for a significant change in the child’s living arrangements. He concluded that it would not be in the child's best interest to fundamentally change the parenting scheme in place pursuant to the 2015 Parenting Order, at least on a temporary basis without the benefit of a full record, and he largely maintained the parenting arrangements set out in the 2015 Parenting Order. More specifically, he ordered the following:

• Commencing on Friday, March 22, 2019, the father to have parenting time with Briegha every second weekend from Friday at 6:30 p.m. until Sunday at 6:30 p.m. with the pickup and drop-off to be at the mother’s home. The paternal grandfather or the father were permitted to pick up and deliver the child for access;

• Telephone calls with the child on Monday, Thursday and Friday at 6 p.m.;

• Beginning in the summer 2019, the father was to have two weeks of summer holidays with the weeks to be consecutive or separate. The father was to advise the mother by April 26, 2019 as to which two weeks he had selected. Similarly, the mother was granted two weeks of summer holidays, either consecutive or separate, during which time the father’s access would be suspended. She was to advise the father by May 24, 2019 as to the two weeks she had selected.

15The mother was also ordered to pay costs in the amount of $15,000, the payment of which was deferred to after the trial. Finally, Shelston J. requested the involvement of the Office of the Children’s Lawyer (“the March 2020 Temporary Order”), but the OCL later declined to provide services to this family.

16From March 2019 to March 2020, the father exercised his parenting time with Briegha in accordance with the March 2020 Temporary Order, but not without difficulty. In the context of a settlement conference held on January 14, 2020 before Shelston J. (who by then was case managing this matter), and at which the mother did not attend (she was by then self-represented), the father was still alleging that the mother was not complying with the parenting time set out in the March 2020 Temporary Order. The mother was ordered to provide proof of her assertion, communicated via duty counsel, that her children were sick and that this was why she had failed to show at the settlement conference. At the subsequent conference, held on March 4, 2020, the mother had not complied with that order.

17Then, the COVID pandemic struck. In April 2020, the mother unilaterally suspended all parenting time between Briegha and her father. As a result of the suspension of in-person court appearances, and the subsequent adjournment of all matters scheduled to be heard in court, this matter did not return before Shelston J. until November 12, 2020. At that time the mother, who was scheduled to give birth within weeks, advised through her counsel that she had been diagnosed with cancer, was currently hospitalized and that her pregnancy was high risk given her cancer diagnosis. Once she had delivered the baby, she was scheduled to have surgery to address her cancer. According to her, the suspension of the father’s parenting time was justified by the serious risks of her contracting the virus, in light of her condition. The father continued to oppose the suspension of his parenting time with Briegha and proposed to care for her on a full-time basis while the mother recovered.

18In light of all this, Shelston J. allowed both parties to bring urgent motions to deal with the father’s parenting time. He also placed this matter on the May 2021 Trial List. Ultimately, a motion was not required as the mother ultimately agreed to resume in-person parenting time in accordance with the March 2020 Temporary Order. During a trial management conference held before Shelston J. on April 19, 2021, and in light of the mother having failed to provide the evidence ordered to be provided by him on January 14, 2020 (proof of the children being sick), the mother was ordered to pay costs thrown away in the amount of $3,000.

19On that same day, the father amended his Application to claim, as his primary position, sole decision-making responsibility and primary residence of Briegha, with the mother having parenting time with her every second weekend. In the alternative, he sought joint decision-making responsibility (with the father having final say in case of a dispute) and an equal time-sharing parenting schedule (week on/week off).

20The mother maintained her position that the status quo should remain in place.

THE PARTIES’ POSITION

The Applicant father

21The father states that at the time of the 2015 Parenting Order, Briegha was only three years old and his circumstances were such that he was not in a position to assume full-time care of a young child. He was working night shifts at Canada Post, he was still subject to the 2005 Protection Order, and he simply did not have the ability to care for a young child. The father states that his circumstances have since changed materially. He is no longer subject to the 2005 Protection Order, he works day shifts on a full-time basis at Canada Post, he is surrounded and supported by his entire family, and he has the support of his current partner, Sabrina, who has a daughter the same age as Briegha.

22The father takes the position that the mother has demonstrated clearly, over and again since the 2015 Parenting Order was made, that she has no intention to promote and foster a positive relationship between Briegha and her father. Indeed, the father states that the mother has engaged in parenting alienation behaviours and that she will stop at nothing to interfere with and sever his relationship with Briegha. He states that the mother has kept him in the dark in relation to all matters pertaining to Briegha, she has moved the child’s residence on multiple occasions, including from Quebec to Ontario, and changed Briegha’s school and health professionals without seeking his consent or even notifying him. She has allowed Briegha to call her various partners “dad”, and actively promoted Briegha’s right to decide whether to see her father or not.

23Finally, the father alleges that the mother has fabricated evidence and made false allegations against him solely to bolster her position in this legal proceeding that he has inferior or inadequate parenting skills, that he is a careless parent and that he poses a risk to Briegha’s safety and well-being while she is in his care. The father raises his own concerns about the mother’s ability to provide Briegha with a safe and stable life, as evidenced by her many and unstable relationships since the parties separated, Briegha’s exposure to family violence and adult conflict, and significant gatekeeping behaviours which have caused Briegha emotional harm.

24The father argues that the sole issue in this trial is whether Briegha will be given the right to have a relationship with him. If the mother retains exclusive decision-making responsibility and primary care, his relationship with Briegha will inevitably end.

The Respondent mother

25The mother wishes to maintain the status quo, whereby she continues to have sole decision-making responsibility and primary care of Briegha, and the father continues to have parenting time with her in accordance with the 2015 Parenting Order (with some minor changes). The mother states that she has consistently encouraged Briegha’s relationship with her father since the 2015 Parenting Order was made, but that over the years, it is the father who has failed to attend his parenting time consistently, often going weeks and months without showing up or initiating contact with Briegha. She said that when she unilaterally terminated access in April 2018, it was as a result of the significant emotional distress suffered by Briegha as a result of her father’s inconsistent presence in her life, and complete lack of engagement.

26The mother states that she gained a lot of insight following Shelston J.’s finding of contempt against her, and that her decision to suspend the father’s in person parenting time following the COVID outbreak was fully justified based on her very vulnerable health condition. She states that her reasons for suspending access once more in these very uncertain times were fully explained to the father and that he had agreed that this was a reasonable decision for her to make.

27In the mother’s view, this litigation is driven primarily by Ms. Alcorn, the paternal grandmother – who harbours significant resentment towards her – and not by the father himself. She says that when the parties are left to deal with matters pertaining to Briegha on their own, they have been able to get along quite well. In fact, the mother states that the father has generally been content to let her make all of the decisions related to Briegha, often failing to even respond when she sought his input. In the mother’s view, Ms. Alcorn continues to exert significant pressures over the father to pursue this litigation and financial considerations, not Briegha’s wellbeing, are at the heart of this dispute.

28The mother is of the view that Briegha has been in her primary care (and for long periods of time, her sole care) since she was born, that they have a very strong and loving relationship and that she has provided nothing but excellent care to her. In seeking to uproot Briegha from everything she has ever known (her family and siblings, her school, her community etc.) to place her in his primary care, the father is focussing on his own needs and rights as opposed to on what is best for Briegha.

PRELIMINARY COMMENTS ON CREDIBILITY

29There were three main witnesses in this trial; the mother, the father and Ms. Alcorn (the paternal grandmother). Although both parties called a small number of corroborating witnesses, the vast majority of the trial was spent on the testimony of these three main witnesses.

30I find that neither one of these witnesses, at the end of the day, had much credibility.

The father

31For reasons that remain unknown to me, the father during his testimony had real difficulty answering simple questions or remembering events that ought to have been easy to recall. For instance, his cross-examination revealed that he had not been truthful about his criminal record, having denied that he had one in his examination in chief when in fact the evidence confirmed that he had a criminal record (uttering death threats to the mother’s former boyfriend “Gio”). The father also denied having signed the agreement which led to the 2015 Parenting Order being approved by the Quebec Court, when it was clear that he signed the agreement (he later changed his answer to say that he could not recall).

32The father also made several statements – sometimes very bold assertions – which were later clearly refuted by other compelling evidence, including from his own witnesses. Examples of this included, but were not limited to, the following:

• The father claimed, in no uncertain terms, that during their relationship the mother was a drug addict and an alcoholic. Not only were those claims not proven at trial, the uncontested evidence before me is that the father could not explain why, despite his strong assertions in that regard, he chose to leave his very young child in the primary (if not sole) care of this alcoholic and drug addicted mother after the parties separated in 2013, when the 2015 Parenting Order was made (on consent), or when he filed his original Application in this litigation;

• The father denied that a social worker had completed a comprehensive parenting assessment in the context of the legal proceedings which led to the parties consenting to the 2015 Parenting Order, and apparently recommended that Briegha be under the mother’s exclusive care (I was never provided with this assessment). When faced with evidence clearly confirming that one had been completed, the father said he could not remember;

• The father claimed that he was completely denied access to Briegha after the parties’ separation, a statement that Ms. Alcorn later contradicted;

• The father claimed that the mother had failed to notify him of her intention to change Briegha’s school in Ottawa, and that she had refused to tell him where Briegha was registered in school. This later proved to be untrue as the father received a letter from Briegha’s school that year and he and members of his family had attended Briegha’s Christmas play at her school that very same year. Ms. Alcorn in her testimony confirmed that the paternal family was aware of the many changes of school(s) for Briegha – something they felt was not in Briegha’s best interests;

• The father’s story about whether he knew who Briegha’s doctor was kept changing: at times he stated that he never knew who her family doctor was, then he acknowledged that it was his own family doctor.

33There were also a number of statements made by the father, and positions taken by him, which significantly (and adversely) affected his credibility and made me question his parenting skills and ability to put Briegha’s well-being at the forefront. For instance:

• The father during his testimony made it clear that in his view, it was not his responsibility to make efforts to obtain information about Briegha: it was the mother’s sole responsibility to chase him down and provide him with that information, whether he asked for it or not. As an example, although he knew where Briegha went to school, he acknowledged that he had made no efforts whatsoever to contact her teachers or to seek out information about Briegha’s progress in school. In his view, the mother had the obligation and the responsibility to provide him with everything he needed to know about Briegha’s education, and her failure to do so ought to reflect poorly on her parenting skills;

• The father stated that if Briegha was placed in his care, he would obtain a comprehensive assessment to determine the causes of her struggles in school. He claimed that he knew nothing about the steps taken by the mother to have a psychoeducational assessment completed for Briegha. However, the evidence clearly confirmed that the mother sought the father’s support and financial assistance to obtain such an assessment on a number of occasions and that he either ignored her requests or answered that he would not pay for this;

• The father stated that if Briegha was placed in his care, he would arrange for counselling for her and would be very supportive of same. The evidence before me makes it crystal clear that when invited to attend counselling with Briegha – at the mother’s request – the father not only refused to take any part in it, he made it clear that he would not pay for any of it;

• In the father’s view, the mother was clearly to blame for having been assaulted by her former partner “Gio”;

• The father steadfastly refused to adjust his basic child support to what the Child Support Guidelines required, or to pay for any of Briegha’s special and extraordinary expenses since 2015. He stated that if the court ordered him to pay for those, then he would. Not before.

34Based on all of the above, I found it very difficult to give any weight to the father’s evidence as a whole.

Ms. Alcorn

35It was not difficult for me to conclude, as was alleged by the mother, that this litigation was driven to a large extent by the paternal grandmother, and not by the father.

36I did not find Ms. Alcorn credible as a witness for many reasons. First of all, her anger and hatred towards the mother were so acute and so obvious, it completely tainted anything she had to say about her. For instance, she referred to the mother as “inhuman”, stated that she had “destroyed her family”, “put her family through hell” and “brainwashed Briegha completely”. Conflict related to the mother’s alleged failure to pay rent to Ms. Alcorn while she lived in a property owned by her after the parties’ separation, and the mother’s alleged wrongful removal of household items belonging to Ms. Alcorn, led to litigation between them before the Quebec’s Tribunal administratif du logement. Clearly, the relationship between the mother and Ms. Alcorn has been toxic and highly conflictual.

37Undoubtedly due to their very damaged relationship, Ms. Alcorn was incapable of showing any objectivity at all while testifying about the mother. Her testimony was full of exaggerations and overstatements that were simply not supported by the evidence. She completely downplayed her own son’s wrongdoings – even those that were clear on the evidence, such as his non-payment of proper child support for Briegha – while exaggerating and overstating all of the mother’s misgivings, showing a complete inability to recognize any of her positive attributes as a parent.

38In relation to the first litigation before the Quebec Court in 2015, she could not remember if a parenting assessment had been completed by a social worker (who according to the mother had visited the father and the paternal grandmother on a number of occasions in the context of that process). When cross-examined on her role as the driving force behind the Quebec litigation – which had been unnecessarily prolonged as a result of Ms. Alcorn’s refusal to sign the agreement as the father’s legal guardian, Ms. Alcorn’s vague answers and flat denials ended up corroborating the mother’s evidence in that regard. I find as a fact that back in 2015, Ms. Alcorn refused to approve the parenting agreement that the parents had negotiated amongst themselves, and that although her own son was fully supportive of the mother having sole custody of Briegha, without her expressed consent – which she refused to give for quite some time – the litigation could not be resolved. Ms. Alcorn continued to maintain during her testimony that the 2015 Parenting Order had been imposed by the court, whereas the court order on its face makes it clear that ultimately, she signed off on the parents’ proposed agreement and the order was made on consent.

39Unfortunately, Ms. Alcorn’s understanding of the events that transpired between the parents appears to be based solely on the father’s own version of the facts that he reported to her. I find that it is important for the father to have his mother’s approval and I find as a fact that frequently, the father reported to his mother what he knew she wanted to hear, and not necessarily the complete story.

40Clearly, Ms. Alcorn was unaware of the father's attempts to reconcile with the mother in the early years after their separation. She was also unaware of all the times that the father failed to call Briegha (or failed to call at the court-ordered time, which is why many of his phone calls were missed) or failed to show up when expected, and she had no knowledge of the nature and content of the parties’ countless exchanges (in person and in writing) where the mother’s stance on various matters related to Briegha’s well-being were conveyed to the father, and during which she attempted to communicate Briegha’s needs to the father. Ms. Alcorn’s view of the events that transpired between the parties was therefore distorted, as she often was not privy to all of the relevant information.

The mother

41A significant incident occurred during the trial that completely shattered the mother’s credibility and made it clear that she was prepared to lie, cheat and deceive whenever needed to achieve her means.

42One week prior to the commencement of the trial, and after having reviewed the lengthy text message exchanges uploaded by the father as part of his evidence for the trial, the mother served and uploaded her own version of some of those text messages. Some of the text messages uploaded by the mother were very damaging to the father’s case: they included statements purportedly made by the father to the mother to the effect that he recognized that she was a better parent, that he was unable to care for Briegha the way the mother did, that he did not want to have Briegha in his care primarily or even for half of the time, and that it was his mother who was driving this case, not him.

43In his testimony, the father vehemently denied that he ever sent those text messages to the mother. He alleged that they had been fabricated by the mother and maintained that position throughout. In her evidence in chief, the mother strongly objected to the father’s allegation that she had fabricated those messages. She explained how the father’s version of the messages had been downloaded on a computer and printed out using a word processing software, which made it easy for him to remove the damning messages from his string of messages. She testified that her own copies of the text messages were screen shots (pictures) that she had made from her cell phone directly, and then emailed to her lawyer. As such, she stated, she had no ability to fabricate a different version of these messages.

44Therefore, the authenticity of the mother’s text messages became a key issue in this trial.

45On the last day of her cross-examination, the mother was questioned about those text messages. Although this trial proceeded virtually, counsel for the father asked her to retrieve her phone and to show him the damning messages directly from her phone. At first, the mother stated that she did not keep messages on her phone for this long, that she had recently deleted a bunch of them, and that it was likely that they were no longer on her phone. When forced to admit that she had sent the screen shots of the messages to her own lawyer only a few weeks before, the mother still maintained that they were likely no longer on her phone. When asked to show her cell phone to the camera and scroll down slowly so we could see how far the text message exchanges between her and the father went, it became obvious that the mother was keeping her finger on the screen of her phone to make sure it could not scroll down past a certain date.

46It took a lot of direction (including eventually by myself) for the mother to finally remove her finger from the screen and to stop interfering with her phone to allow everyone to see the string of messages. It became clear that she did, in fact, still have all of her text messages going back years.

47The mother then became very defensive and agitated. She started to question the purpose for which she was required to do this, became belligerent with opposing counsel, and quite flustered by the process. When directed to go to a specific date in July 2020, the date at which one of the very damaging messages had purportedly been sent to her by the father, she started to give all sorts of explanation as to why it “might” not be there anymore (while searching for the particular date on her phone), including that she had also exchanged many text messages with the father using her iPad (which, conveniently, was now in the possession of her parents in Nova Scotia).

48Needless to say, the damning messages could not be found on the mother’s phone. Before the father’s counsel could go to the next messages, the mother requested that we proceed immediately to the lunch break as her young baby was becoming fussy and needed to be fed. Counsel for the father strongly objected to taking an early lunch break before he was through with his questions regarding the mother’s phone, and alternatively requested to be permitted to send one of his employees to retrieve the mother’s phone to have it in his possession to continue his cross-examination. I agreed with counsel’s request and gave the mother very strict instructions that, during the lunch break, her computer needed to remain turned on and its camera pointed at her cell phone which was to be left untouched on a table where it could be seen at all times until picked up by the father’s counsel’s staff person. This was to ensure that no one would have an opportunity to alter its contents until it was picked up by the staff member. The father’s counsel (or one of his staff member) remained on the Zoom call throughout the lunch break to make sure no one touched the phone until we returned.

49When I returned from the lunch break, I was informed by the father’s counsel (this was acknowledged by the mother’s counsel who was also present on the Zoom call during that time) that the mother had remained at her computer throughout the lunch break with her baby on her lap (although she had claimed that she needed an early lunch break to feed her baby). Shortly before the father’s counsel’s staff person arrived at her home to pick up the phone, the mother was disconnected from the Zoom call for a period of 4.5 to 5 minutes. During that time, counsel could not see the phone.

50Unsurprisingly, when the phone arrived at the father’s counsel’s office, all text messages between the parties that the phone ever contained had been entirely wiped out.

51When presented with those facts, the mother vehemently denied that she was disconnected from the call for that long, insisting that her computer had just crashed, and that she had restarted it and reconnected approximately 30 seconds after it crashed. When asked again, both counsel confirmed that the mother had been disconnected from the Zoom call for almost five minutes. Once again, the mother tried to offer several reasons why the messages might have been erased before becoming once again very agitated, argumentative and defensive.

52Interestingly, this was the only time throughout this two-week trial that the mother’s computer crashed.

53From the above, I come to the following factual findings:

• The mother’s version of the text messages exchanged between her and the father is not authentic. Those messages were fabricated by the mother or someone else at her behest;

• The mother lied to the court when counsel was trying to get her to access the text messages on her phone. She deliberately tried to conceal the history of messages and, when she failed, she lied by saying that she could not access them before;

• During the lunch break, the mother intentionally disconnected from the Zoom call just long enough for her to delete all the text exchanges between her and the father that her cell phone contained. I find that she (or someone for her) erased all those messages, in clear breach of my specific order.

54Sadly enough, this is not the only reason why the mother’s testimony can be given very little weight. The evidence before me (or lack thereof) raises significant concerns about the veracity of many allegations made by the mother during the course of this litigation. For instance:

• While the mother asserts that she suffered from cancer back in the Fall of 2019 (or 2020), she failed to produce any medical evidence whatsoever supporting her allegation in that regard, despite a court order requiring her to do so;

• While the mother asserted that she failed to appear at the Settlement Conference before Shelston J. on January 14, 2020 because she and the children were ill (they allegedly contracted COVID), the mother failed to adduce any medical evidence supporting same, despite being ordered to do so by Shelston J.;

• While the mother alleged that Briegha suffered a severe concussion back in January 2020 while in the care of her father (much evidence was adduced by all witnesses in relation to this incident), which according to the mother required Briegha to travel to Toronto to be seen by specialist there, the mother completely failed to produce any medical evidence whatsoever supporting those claims, despite a court order requiring her to do so;

• I find as a fact that the mother lied to the father, to this court and to others about Briegha having “broken” her wrist during the father’s parenting time just a few weeks before the trial began in an attempt to bolster her position in this trial. I find that she continuously represented to this court that Briegha had broken her wrist when she knew full well that this was not the case (as confirmed to her by her doctor on or about April 28, 2021). When it was confirmed that Briegha’s wrist was not broken, the mother took swift steps to remove the father’s access to Briegha’s MyChart (her online medical chart) to ensure he did not have access to that information.

Conclusion

55Faced with a complete lack of credible evidence from the oral testimony provided by the three main witnesses in this matter, I had to rely principally on the documentary evidence adduced in the context of this trial, excluding those communications between the parties that I concluded were not authentic. That documentary record included voluminous emails and text messages exchanged between the parties, which were quite revealing as to the events that actually took place between them over the years. That documentary record also included third party records from the Children’s Aid Society, the police, Briegha’s schools, counsel’s communications, and some health records.

PARENTING

The Legal Framework

56The legal principles applicable to the variation of a final order related to parenting are set out in section 29 of the CLRA. It states:

Variation of orders

29 (1) A court shall not make an order under this Part that varies a parenting order or contact order unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child who is the subject of the order.

Relocation

(2) For the purposes of subsection (1), the relocation of a child in accordance with section 39.4 constitutes a material change in circumstances unless the relocation had been prohibited by a court, in which case the relocation does not, in itself, constitute a material change in circumstances.

57The test for a “material change”, as confirmed by the Supreme Court of Canada in L.M.P. v. L.S., 2011 SCC 64, is a change that is substantial, continuing and that “if known at the time, would likely have resulted in a different order”. This test was further explained in Dedes v. Dedes, 2015 BCCA 194, where the British Columbia Court of Appeal stated:

25As articulated in L.M.P., the test for material change is based not on what one party knew or reasonably foresaw, but rather on what the parties actually contemplated at the time the order was entered by agreement. A function of the material change threshold is to prevent parties from re-litigating issues that were already considered and rejected; in such cases an application to vary would amount to an appeal of the original order.

58Any parenting order that I make with regards to Briegha must be made having regard, only, to what is in her best interest. The factors to be considered in that context are set out at section 24 of the Children’s Law Reform Act., RSO 1990, c C.12:

Best interests of the child

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.

Primary consideration

(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.

Factors

(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.

Factors relating to family violence

(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.

Past conduct

(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.

Material change in circumstances

59I find that several material changes in circumstances have occurred in this case since the 2015 Parenting Order was made which allows for this court to review the parenting arrangements in place. Such changes include, but are not limited to, the following:

• In September 2016, the mother moved from Gatineau, Quebec, to Ottawa, Ontario, without giving six months’ notice to the father, in breach of the 2015 Parenting Order;

• The father is no longer subject to the 2005 Protection Order;

• The mother was found in contempt of court for unilaterally terminating the father’s parenting time;

• Since being found in contempt of court, and after the father’s parenting time resumed, the mother once again unilaterally terminated in-person contact, allegedly as a result of concerns due to COVID;

• There has been significant parental conflict since the 2015 Parenting Order was made, conflict which has perdured over the years, and to which Briegha has been significantly exposed, to her detriment.

Analysis

60Briegha has been in her mother’s primary care since her parents separated in 2013, and she was only one year old at the time (she is now 9 years old). Between 2013 and 2015, the father had little parenting time with Briegha. When he did, it was generally in the presence of the paternal grandmother or other family members. During that time, Briegha would never spend an overnight with her father, or be left alone with him for long periods of time. It was only after the 2015 Parenting Order was made that the father began having longer and more frequent, albeit irregular, parenting time with Briegha.

61Briegha now has two siblings that she loves, and who are also in the mother’s primary care. I agree with the father that the mother has not provided Briegha with much stability since the 2015 Parenting Order was made. After the parties separated the mother was in a relationship with a man named Gio, with whom she appeared to have had a very tumultuous lifestyle, and with whom she moved on a number of occasions, including from Aylmer (Qc) to Ottawa in the Fall of 2016. During her relationship with Gio, the mother gave birth to another child, Braxton, who is now 3 years old.

62At the hands of Gio, the mother was the victim of serious family violence which led to criminal charges being laid against Gio who was found guilty of assault and sentenced to some jail time. Gio’s presence in Briegha’s life also led to significant adult conflict, including between Gio and the father, and to which Briegha was exposed. Although the mother states that since their breakup Gio turned his life around, completed different courses and engaged in intense counselling, and that their relationship is now “unbelievable”, the evidence before me confirms that Briegha was exposed to the family violence and that this left deep scars in her, and also in the mother.

63When Gio was charged, the mother moved in with a friend with whom she later became romantically involved. When that relationship ended, the mother became involved with her current partner, Michael, with whom she moved in at some point in 2019, and with whom she as a third child, Kayson, who is now almost one year old. Throughout these many changes Briegha, who is only nine years old, was required to change schools four times.

64I find that the mother has generally prioritized her romantic relationships over the needs for Briegha to have stability and permanency. As will be discussed in more detail below, the mother also has little insight into how her own behaviour has significantly contributed to the parental conflict and caused Briegha to suffer, including by being constantly placed in the middle of her parents’ conflict. This said, I find that the mother, as Briegha’s primary caregiver since she was born, has done everything she could with the limited financial means she had to ensure that all of her needs were being met from a physical, emotional, health and educational perspective.

65The evidence before me makes it clear that Briegha and her mother have a very close and loving bond, and that Briegha is comfortable and at ease with her mother. Separating Briegha from her mother and from the life she has known since she was a year old, as the father proposes, which includes separating her from her two young siblings, would have a significantly negative impact on her. The court would not consider such a drastic option unless it was satisfied that Briegha was at risk of harm in the care of her mother, or that many of her needs were not being met. The father readily acknowledged during his testimony that the mother is a good mother and that she has generally been able to meet all of Briegha’s needs. His view is that imposing a complete reversal of the parenting arrangements that have been in place for Briegha for the past eight years is the only way to preserve his relationship with her. According to him, unless there is a complete reversal of the parenting arrangements currently in place, his relationship with Briegha will certainly end.

66I materially disagree with this proposition.

67I find that despite the mother’s frequent and – on at least two occasions – lengthy denials of contact between Briegha and her father, Briegha has nonetheless maintained a close and loving relationship with him. Although that relationship has been placed in jeopardy by the mother’s unilateral and wrongful denials of parenting time twice (for eight months in 2018 and then again for six months in 2020), which caused her emotional harm, when the father’s parenting time ultimately resumed Briegha was happy to see her father. All witnesses who provided evidence in this trial, including the parties themselves, agreed that Briegha is happy to see her father and that she wants to spend more time with him.

68I do not accept, as submitted by the father, that the mother has tried to alienate Briegha against her father. However, I do find that the mother has, at times, negatively influenced Briegha about her relationship with her father by exposing her to the parental conflict, and by enabling her to make decisions about her relationship with her father which was not a child’s to make. Giving her the choice to see her father or not, to refer to Gio as her dad and use his last name instead of her own (as will be discussed below), are some of the most telling examples of the type of negative influence exerted by the mother over Briegha’s views of her father. This said, the fact that Briegha still loves her father very much, and that she continues to ask for and to want to spend time with him supports a finding that while there has been negative messaging by the mother, she did not engage in parental alienation.

69Quite the contrary, I find that the mother – at least for a few years after the 2015 Parenting Order was made – made genuine efforts to ensure ongoing contact between Briegha and her father and to impress upon him the importance of being consistent in exercising parenting time with her. I find that the father, during the early years following the 2015 Parenting Order, was not consistent in exercising his parenting time with Briegha. This may have been due to his work hours (at the time he was working night shifts), his unstable mental health, his own romantic relationships or many other factors.

70It appears to me that during those early years, and despite a clear court order setting out the father’s parenting time schedule, the parties were proceeding on an “ad hoc” basis, where they would reach out to each other and agree on the parenting time that fit their respective schedule at any given time. Because the parties were not adhering to the strict word of the Parenting Order in place, and given the mother’s tumultuous relationships and frequent moves, this often led to miscommunications, cancellations on the part of both parents, refusals to allow parenting time on the part of the mother on the basis of various reasons (not always legitimate ones), or with the father simply not showing up, either because he had something else to do or because he got confused as to whether he could see Briegha or not.

71I am unable, based on the evidence before me, to determine who was at fault for this most of the time, but I am able to conclude that the mother was not solely responsible for the father’s missed parenting time. I find that the father was simply not consistent in exercising his parenting time with Briegha, and that he frequently failed to call Briegha – even when a call had been promised – going long periods of time without contacting her at all.

72At some point in the Spring of 2018, and after having reached out to the father numerous times over many months to make him understand Briegha’s emotional struggles each time he failed to show up or to call when scheduled, the mother eventually decided to cut all contact between Briegha and her father. At that time, the mother was in a relationship with Gio and from her perspective, it was better for Briegha to stop seeing her father completely rather than to constantly go through the emotional struggles of being disappointed by the father’s lack of involvement in her life, and his frequent failure to show up. Around that time, the mother “allowed” Briegha to change her last name at school to adopt Gio’s last name (I say “allowed” because the mother claimed that this was done at Briegha’s request, something I do not believe), and she positively supported Briegha’s alleged desire to refer to Gio as her “dad”. I find that the mother’s actions in that regard were wrongful and mostly motivated by spite in relation to what she perceived as the father’s lack of engagement, and her wish to prioritize the creation of a new family with Gio and their new baby, rather than by what might have been in Briegha’s best interest.

73Indeed, I find that the mother, since the 2015 Parenting Order was made, has generally considered the father’s parenting time with Briegha as an option, which could be exercised by him at her convenience, and not a court-ordered obligation to facilitate Briegha’s right to have parenting time with her father. The evidence before me makes it clear that, from the mother’s perspective, sleep overs at friends, family events on the mother’s and her partners’ sides, and other unimportant events (such as going to a medical appointment with her mother) took priority over the father’s parenting time. The mother has generally dictated when, how and where the father could see Briegha, and I got the clear sense that from the mother’s perspective, it is open to her to assert this type of control over the father’s parenting time given his perceived lack of involvement in her life. As such, the mother never hesitated to cancel the father’s parenting time, request changes or alter the schedule to accommodate her own needs and schedule or that of her family. If the father could not bend to her demands, then his time with Briegha would be skipped. If she had something better to do, then Briegha’s time with the father would be changed.

74Ultimately, in April 2018 the mother decided that it was best for Briegha to stop seeing her father altogether. It took the father eight months before he finally initiated these legal proceedings to reinstate his parenting time with Briegha. The fact that it took him eight months to act is evidence of the father’s lack of consistency and involvement in Briegha’s life, in my view. A parent who has fixed, regular and ongoing parenting time with a child would not have waited eight months to react after being completely cut off from her. I have read Shelston J.’s detailed decision in which he concluded that the mother had willingly and unilaterally terminated the father’s court-ordered parenting time for no reason and found her to be in contempt of court. The evidence adduced before me in the context of this trial does not in any way alter Shelston J.’s conclusions as set out in his decision, and I adopt them as my own for the purpose of my decision.

75Following Shelston J.’s finding of contempt against her, one would think that the mother would have thought twice before unilaterally terminating the father’s parenting time for a second time. I find as a fact that the mother, once again, resorted to self-help by unilaterally terminating in-person contact between Briegha and her father as a result of the COVID-19 pandemic. This said, I find that there were many exceptional circumstances at the time which militate in favour of a more balanced approach to the mother’s unilateral actions in March 2020.

76At the time the COVID pandemic struck, the mother states that she had only recently completed her last treatment for a kidney cancer. She also alleges that all her family members, including Briegha, had previously been sick with COVID in February 2020. She was also at that time in the early stage of her pregnancy and she alleges that some unidentified health issue made her more prone to contracting COVID. I have previously indicated that no evidence whatsoever was ever produced by the mother to support any of these allegations. Given my findings above about her overall credibility, I cannot say if any of this is real, or whether these allegations were fabricated subsequently to justify her last unilateral termination of in-person contact between Briegha and her father.

77This said, I have reviewed carefully the written communications between the parties around the Spring 2020, and I am persuaded that at the time, the mother’s concerns with regards to the pandemic were genuine. I find that the mother took reasonable steps to share and explain her concerns to the father, that she engaged in genuine discussions with him and that – at least during the first few months following the beginning of the pandemic – the father understood the mother’s concerns, and was agreeable to suspend his in-person parenting time as requested by the mother, or at the very least he did not express strong objections. I find that the mother made real efforts, early in the pandemic, to deal with this situation in a constructive way.

78The evidence makes it clear that during the summer and fall of 2020, the father was still seeing all of his family members without social distancing, he was spending a lot of time with his girlfriend Sabrina, whose young daughter was attending school in-person, and he was expressing his views to the mother that the pandemic was over and that there were no longer any risks. In several text messages, the mother – who did not share the father’s views in that regard – explained her concerns to the father, and made many offers to facilitate socially distanced visits between Briegha and her father, at the mother’s home or in the vicinity. I further find that the mother offered reasonable options to provide ongoing contact between Briegha and her father, and that as the father’s frustration grew, he did not take advantage of all the opportunities that were offered to him to see Briegha.

79As weeks and months passed, however, the mother’s continued denial of regular in-person parenting time became unreasonable and unjustified. For instance, in late summer of 2020 the mother travelled with her partner, their young children and Briegha to the Granby Zoo to spend the day there. Despite the mother’s many attempts to convince me that this visit was COVID-safe because it was a “private” tour organized through someone she knew, I do not accept her assertions in that regard. Pictures of that trip clearly show Briegha in a wave pool with dozens of other people surrounding her. If that was deemed safe for Briegha, then in-person parenting time with her father ought to have been safe enough. I find that by the end of the summer 2020, the pandemic simply became a convenient excuse for the mother to continue to deny in-person parenting time between Briegha and her father.

80This said, I find that the father is equally to blame for his inability to spend meaningful in-person parenting time with Briegha during the summer and the fall of 2020. Between May and October 2020, the mother’s counsel sent many letters to the father’s counsel in attempts to engage the father in a meaningful conversation around re-instating his in-person parenting time while putting into place proper safeguards in relation to COVID. Unfortunately, the father’s response to these efforts was an unequivocal refusal to discuss. The father’s only response, through a letter sent by his counsel to the mother’s counsel, is illustrative of the father’s “all-or-nothing” approach: “I have no obligation or desire to speak to you”. Instead of engaging in a meaningful discussion, the father waited, failed to see Briegha for about six months, and then threatened another contempt motion instead. In light of the above, the father can hardly complain for not having had parenting time with Briegha for another six months.

81I find that despite the father’s professed love and devotion to his daughter, his actual ability to respond to and meet all of her needs, including her emotional needs, is somewhat limited. The father’s plan of care for Briegha, in the event that I was prepared to transfer her into his primary care, is to continue to live in Aylmer, and to rely on the assistance of his parents who live close by, and for his current partner Sabrina to assist him as needed for transportation, before and after school child care and other such things. The father intends to register Briegha in the school closest to his home, arrange for his physician to take Briegha back as a patient, and find a good counsellor for her. He asserts that he would take steps to have Briegha’s educational needs assessed and thereafter he would keep in touch with her teachers to ensure her continued progress in school.

82The father’s stated plan and intentions, however, are difficult to reconcile with his actual actions in the past years, and with the evidence he presented at trial. For instance, although the father states that his partner, Sabrina, would support him in his full-time parenting role, she did not even testify in this trial. The father’s evidence confirms that he and Sabrina have only been together for about a year and, at the time of the trial, they did not reside together (she has her own home in Buckingham, Quebec, roughly 50 kilometres away).

83The evidence before me makes it clear that the father has never attempted to contact Briegha’s teachers to find out how she was doing in school, and how he could support her education. He has never attended one of Briegha’s parent-teacher interviews. When asked in cross-examination in what grade Briegha was, he said he was not sure. While he blames the mother for not providing him with copies of Briegha’s school report cards, the uncontested evidence is that the father never asked for copies from the mother, or from the various schools that Briegha attended.

84In November 2019 the father gained access to a letter addressed to the mother from Briegha’s school principal, raising significant concerns about Briegha’s frequent late arrivals at school. The mother explained that at the time, Briegha was experiencing high anxiety and severe behavioural issues, and she was refusing to go to school, throwing tantrums which frequently made her late for school. The mother explained that she was in constant contact with Briegha’s school, including its social worker Ms. Guay, to try and remedy this problem for Briegha. Despite having been made aware of the school’s communication to the mother in that regard, and despite having been made aware by the mother of Briegha’s struggles (tantrums, anxiety, incontinence), the uncontested evidence before me is that the father never contacted Briegha’s school to discuss the content of their letter, or find out how he could support Briegha in that regard.

85Although the father now professes that he would take steps to have Briegha’s educational needs assessed by a professional if she was placed in his full-time care, when the mother sought his financial support to obtain a psycho-educational assessment for Briegha, as recommended by the school, he flatly refused. It was also clearly the father’s view (one shared by Ms. Alcorn), that the father should not be required to do homework with Briegha on his weekends with her. The father also missed at least one of Briegha’s school events (“collection day”), causing her great disappointment, despite having been made aware of this event and having confirmed his attendance to her.

86The father also has little knowledge of Briegha’s current health and medical needs. Although Briegha’s doctor was the same as the father’s doctor until 2019, there is no evidence that the father attended any of Briegha’s appointments or ever inquired about Briegha’s overall health. In his cross-examination, the father admitted that he was not aware that Briegha was being seen by a urologist to deal with her incontinence. Although he blamed this on the mother’s continued failure to provide him with relevant information, in his cross-examination he was forced to admit that he was aware of Briegha’s issues with incontinence, and that he had never inquired about whether she was being seen by a professional for this condition. The many communications exchanged between the parents confirm that the mother has made significant efforts to keep the father appraised of relevant information and updates about Briegha’s health (including her various appointments with her urologist and psychotherapist), school and overall well-being, and that the father rarely – if ever – asked any follow up questions, raised concerns or even acknowledged receipt of that information.

87In his testimony it was obvious that the father had little understanding of Briegha’s serious struggles with anxiety, something he felt had been engineered by the mother as another means to paint him in a bad light as a father, and undermine his relationship with Briegha. Given Briegha’s ongoing exposure to adult and parental conflict, and her tumultuous family life since she was born, it is not difficult for this Court to accept that she suffers from anxiety and that she struggles emotionally, something that her mother has taken appropriate steps to address through counselling.

88Although the father now asserts that he would be fully supportive of Briegha being seen by a counsellor to assist her in transitioning from her mother’s care to his, the evidence before me makes it clear that he has never been supportive of counselling for Briegha. The father has refused to acknowledge Briegha’s need for counselling, and he has refused to participate in it or to pay for it. The text messages exchanged between the parties on this issue confirm that the mother offered the father to participate in at least one session with Briegha, and the father ignored her request. When asked in cross-examination why he had ignored that request the father answered that if the mother had been serious about this, she would have insisted more and booked an appointment for him. The evidence as a whole makes it clear that the father was fully aware of the steps taken by the mother to have Briegha seen by a counsellor, and that not only did he consider this to be unnecessary, he was adamantly opposed to participating in therapy with Briegha or to contribute to its cost. In my view, Briegha was and continues to be in dire need of counselling and she has not been receiving all the help that she needed in that regard because the father refused to contribute to its cost.

89The father has also not been prepared to allow Briegha to attend social events and scheduled activities “on his time” with her. While I appreciate that the father’s time with Briegha is precious, because it was limited, and that having to miss any of it due to scheduled activities could be frustrating, Briegha’s life, including her social life, does not and should not stop simply because she transitions from one of her parents’ home to the other’s. As she grows up and her circle of friends increases, Briegha will be enrolled in extracurricular activities and she will be invited to birthday parties and play dates, including when she is in the care of her father. The father in the past has not been supportive of Briegha attending these events when she is in his care. This has on several occasions led the mother to unilaterally change the father’s parenting time to facilitate Briegha’s attendance to such events. The father’s failure to appreciate the importance for Briegha to participate in these events, including on his time with her, demonstrates an inability to focus on what is best for Briegha, instead of what is best for him. Parents who insist on playing an important role in their child’s life should be expected to support and promote their child’s continued participation in social activities and events regardless of the parenting schedule. Failure to do so may result in the child’s resistance to spend time with that parent.

90Despite all of the above, I wish to make the following very clear. I have no concern whatsoever about the father’s ability to care for Briegha and to keep her safe while she is with him. Despite all the mother’s efforts to prove otherwise, I find that Briegha is well cared for while in her father’s care. I specifically reject the mother’s evidence to the effect that Briegha suffered a “severe” concussion as a result of riding a sled tied behind the father’s four-wheeler (or snowmobile) without a helmet, that she broke her wrist as a result of the father’s lack of supervision when she was playing on a trampoline, or that the father failed to seek appropriate medical attention following these alleged events. I find as a fact that the father has never placed Briegha at risk of harm while he had her in his care, and that neither he or any of his family members would ever do so intentionally. If Briegha indeed suffered a concussion, or if she hurt her wrist while in her father’s care, these were accidents which were not caused by the father’s or his family members’ negligence. Accidents happen. I find that the father took appropriate steps to ensure that Briegha was fine after these accidents happened, and that he showed good parenting skills in that regard. I find that the mother tends to overreact whenever something happens to Briegha while in her father’s care, and that she jumps to the most negative conclusions without taking appropriate steps, before doing so, to discuss the matter with the father.

91This said, the fact that the father was not forthcoming with the mother about these incidents, notifying her of their occurrence instead of leaving it to Briegha to report it to her – incorrectly or leaving out important details – contributed to making matters worst. While I understand the father’s reluctance to provide the mother with any kind of information that she can later use as ammunitions against him – something that she has done frequently – certain information cannot, and should not, be kept from the mother. The father’s failure to be upfront with the mother about those (minor) accidents, or to answer her questions after the fact, only led the mother to suspect the worst and fuelled her subsequent overreactions.

92Another example of the father’s lack of communication and transparency about events occurring while Briegha is in his care is what happened on December 13, 2020. That night, Briegha and her father had to be picked up by the father’s girlfriend, Sabrina, in the early hours of the night because he found himself unable drive his car all the way back to his home. After having found the father’s car by the side of the road, the police attended his home to do a wellness check and confirmed that the father was not intoxicated and that he and Briegha were fine. Although the father denies this, the content of the police occurrence report strongly suggests that the father had a panic attack while driving his car with Briegha which caused him to be sick by the side of the road and unable to drive back home. Why he was out with Briegha at 1 a.m. on a Sunday night (presumably a school night) was never explained, including during this trial. Not only did the father fail to communicate with the mother as soon as possible to notify her of these events to explain what happened and to reassure her that he and Briegha were fine, the fact that he did not caused her to assume the worst when Briegha told her about it the next day. When the mother’s counsel wrote to the father’s counsel to find out what had happened, his request for information was completely ignored.

93It goes without saying, in light of all of the above, that while the parents have enjoyed periods to time during which their relationship was positive and they were able to communicate and cooperate well in Briegha’s best interest, at other times their relationship has been unhealthy and toxic, and their ability to co-parent effectively, nonexistent. I get the strong feeling that when the parties’ ability to work together was high, the paternal grandmother was less present and/or influential in the father’s life. During those times, the father was generally happy to see Briegha whenever the mother would allow him, and to accept a very peripheral role in his daughter’ life. This conclusion is supported by the content of many text and email communications between the parties in the early years following the 2015 Parenting Order, which showed a very amicable relationship between them.

94I also get the very strong feeling that it was at the paternal grandmother’s insistence that the father finally initiated these legal proceedings in November 2018 to resume his parenting time with Briegha, and that much of the subsequent parental conflict – at least in part – may very well have been fuelled by the paternal grandmother’s influence over the father. This conclusion is supported by the fact that it is Ms. Alcorn, not the father, who kept a very detailed log (and notes) of every single visit the father ever had with Briegha between 2017 and the time of trial. It is also noteworthy that the 2005 Supervision Order was terminated only two months after the father initiated these legal proceedings, with Ms. Alcorn’s tacit consent and despite the court’s conclusion in 2005 that the father was “partially but permanently” unable to ensure the protection of his person and to administer his patrimony.

95There is no question that the within litigation has made matters much worst for these parents.

Conclusion on Parenting

96In conclusion, I find that it is in Briegha’s best interest for her mother to continue to be responsible to make all decisions in relation to her health, education, important extracurricular activities and overall well-being. However, I find that the mother abused her status as Briegha’s primary caregiver and sole decision maker, and that some limits to her ability to decide must be imposed to protect Briegha and preserve her relationship with her father. I find that it is in Briegha’s best interest that her father become more involved in all areas of her upbringing, and that the burden must be on the father to engage with the various professionals involved in Briegha’s life, including her school, her health professionals, and her activities. For this to happen, the mother must be forthcoming in providing to the father all relevant information that he cannot be expected to access on his own, as Briegha’s father. Given my finding that the mother has, in the past, abused her status as Briegha’s sole decision-maker, I have decided that it is necessary and appropriate to impose limitations on certain areas of decision-making responsibility, such as her ability to change Briegha’s residence or her school. , and her ability to request or impose changes in the father’s parenting time.

97I also find that it is in Briegha’s best interest to remain in her mother’s primary care, but to have meaningful, consistent, regular and uninterrupted parenting time with her father during the school year and holidays. I further find that it is crucial in this case to remove from the mother the ability to request or impose changes in the father’s parenting time.

98Given the highly conflictual nature of this family’s dynamics, I have made a detailed multi-directional order based on the draft orders proposed by each counsel, to which I have added provisions which I felt was in Briegha’s best interests, including a provision that I shall case-manage this matter post-trial for a period of one year to ensure both parties’ compliance with my order.

CHILD SUPPORT

99The mother seeks a retroactive adjustment of the father’s child support obligations from November 1, 2019, to present. The father’s income for those years is not dispute.

100The mother argued at trial that the reasons which motivated the father to seek primary care of Briegha were purely financial. I disagree. When he initiated this court proceeding the father was not seeking primary care of Briegha, he was only seeking the enforcement of his parenting time with her in accordance with the 2015 Parenting Order. I accept the father’s evidence that the reason why he subsequently sought primary care of Briegha was the mother’s ongoing abuse of her status as Briegha’s primary caregiver and her refusal to follow clear court orders despite having been found in contempt of court, as demonstrated by her last unilateral denial of parenting time in the summer of 2020.

101Nonetheless, I find that the father has completely failed to meet his child support obligations to Briegha, which speaks volumes about his ability to put her needs at the forefront. It is not enough for the father to pretend that by paying the $200 of child support required by the 2015 Parenting Order, he has met his financial responsibility towards Briegha. The 2015 Parenting Order clearly states that as of November 1, 2019, the parties’ agreement to reduce the father’s basic child support payments to $200 per month ended (it is not important for me to decide why the parties agreed to this in the first place) and that from that date on, the father would be required to pay the full Table amount in accordance with his income. The mother’s requests to adjust the father’s child support were many, with the first formal request being made at the time she filed her Answer to the father’s Application in January 2019. The father in his testimony recognized that he knew that his child support obligations were to be adjusted by November 2019, although he blamed his failure to do so on the mother, who according to him had the positive obligation to bring a motion to seek a change if she wanted to get a higher amount of child support.

102The father’s complete disregard for Briegha’s financial needs is further demonstrated by his refusal, since the 2015 Parenting Order was made, to make any contribution whatsoever to any of her reasonable extraordinary expenses, despite clear and ongoing requests made by the mother. He has refused to contribute to Briegha’s counselling costs, her extracurricular activities, the cost of a psycho-educational assessment and, more broadly, to anything over and above his monthly $200 payment. Instead of providing detailed information allowing the mother to seek reimbursement of Briegha’s medical and dental expenses from his health insurance plan, the father was satisfied that the mother “knew” and that she was “well aware” of the details of his plan, making it unnecessary to share any information. Fortunately for Briegha, for the past year or so she has access to the mother’s partner’s plan which assisted in her accessing counselling and other health related services. Her father ought to have taken every step necessary to afford her all available benefits under his own plan.

Conclusions on Child Support

103I find that the father is required to pay the full Table of child support amount for Briegha from November 1, 2019 to present, and that he owes arrears in that regard in the amount of $9,414 calculated as follows:

• For the period of January 1^st, 2019 to December 31^st, 2019, the father earned $54,310 and the amount of child support payable is $483.00 per month (Quebec Tables). The father paid $200 per month for a total owing of $3,396.00 ($283/month x 12 months);

• For the period of January 1^st, 2020 to December 31^st, 2020, the father earned $62,630 and the amount of child support payable is $554 per month (Quebec Tables). The father paid $200 per month for a total owing of $4,248.00 ($354/month x 12 months);

• For the period of January 1^st, 2021 to May 1^st, 2021, the father earned $62,630 and the amount of child support payable is $554 per month. The father paid $200 per month for a total owing of $1,770.00 ($354/month x 5 months).

104Commencing June 1st, 2021, the father shall pay child support to the mother in the amount of $554.00 per month, based on his 2020 income, subject to retroactive adjustment (to January 2021) by May 2022 when confirmation of his 2021 is received. The father is also required to contribute to Briegha’s special and extraordinary expenses on a go forward basis, as further detailed in my order below.

ORDER

105Based on the above, the Final Consent Order issued by the Superior Court of Quebec on November 30, 2015 is hereby replaced by the following final order:

Decision-making responsibilities

1. Except as specifically set out below, the Respondent Destiny Hickey (“the mother”), shall have sole decision-making responsibility over all matters pertaining to their child, Briegha Oremush (DOB January 28, 2012, hereinafter “the child”).

2. Despite the above, both parties may make inquiries and be given full access to information by the child's teachers, school officials, doctors, dentists, health care providers, summer camp counsellors or others involved with child, and without the need to obtain the other parent’s consent.

3. The mother shall promptly provide the Applicant, Shawn Oremush (“the father”), with any and all information relevant to the child’s well-being, including but not limited to the name and contact information of any professional involved in her care, reasonable advanced notice of any forthcoming (non-routine) appointments, and reasonable details about diagnosis/prognosis/recommended treatment, if any.

4. Despite the mother having sole decision-making responsibility for the child, she shall meaningfully consult with the father at all times (in writing) prior to making a final decision with regards to the child’s health, education, culture, religion and spirituality, and her significant extracurricular activities, and give the father’s views due consideration.

5. Except in the case of an emergency, and except as otherwise specified in this order, the mother shall communicate (in writing) the need for a decision to be made at least seven (7) days in advance, and include all the relevant information regarding the decision that has to be made. If the father does not respond within 48 hours, the mother is free to make her decision without further consultation.

6. The mother will advise the father of her final decision promptly after it has been made.

7. Where a parent has the child in their physical care (“the residential parent”), they will be responsible to make the day-to-day decisions with respect to the child and the other parent will respect the residential parent’s ability to properly care for the child during their parenting time, without interference.

Health

8. In case of a health (medical or dental) emergency, the residential parent at the time of the emergency shall be responsible to take the child to seek appropriate medical attention. The other parent shall be notified as soon as it is reasonably possible.

9. The mother is permitted to engage the child in counselling or therapy without the father’s consent. However, the father shall be consulted about the choice of any new counsellor and be permitted to participate in any intake or initial intake appointments. Either parent may participate in therapy sessions with the child but only if this is requested by the child’s counsellor.

School

10. The mother shall not change the child’s school without giving the father 60 days’ written notice of same, including detailed information about the school that she intends to register the child in, as well as the reasons for the requested change.

11. Both parents shall be listed as primary and emergency contacts for the child at her school, at all times. Both parents shall provide their email and contact information to the school and they will each ensure that the school has up-to-date emails, phone numbers and addresses so that they may be kept informed by the school.

12. Each party shall obtain their own school calendar and school notices and arrange for the school to communicate with them directly and separately if deemed appropriate by the school.

13. The parties may attend parent-teacher meetings separately, unless they agree to otherwise and in writing.

14. The parties may request that they be provided their own separate copy of report cards for the child.

15. Both parties may attend all school functions regardless of the parenting schedule.

Residence

16. The mother is hereby refrained from relocating the child’s residence outside of the Ottawa-Gatineau region without the father’s written consent or a court order.

17. The mother shall not change the child’s residence to a location that would increase the distance currently required for the father to travel from his current home to the child’s school or home, unless agreed to by the father in writing or permitted by a court order.

18. If a party proposes to change their residence within the Ottawa-Gatineau region, they shall give at least 60 days’ written notice of this change to the other parent with confirmation of the new address and the new telephone number (if changed).

Child’s name

19. The mother is hereby refrained from changing the child’s name without the father’s written consent or a court order. The child’s name shall be listed as “Briegha Oremush” on all official records, including in her medical file and at school.

Extracurricular Activities

20. The mother shall be allowed to register the child in one extracurricular activity per session (Fall, Winter and Summer) which shall not exceed 2 hours per week, unless agreed to otherwise by the parties, in writing. The father shall facilitate the child’s participation in her extracurricular activity when the child is in his care, including on weekends.

Parenting Time

Regular schedule

21. The father shall have parenting time with the child in accordance with the following schedule:

a. Every second weekend from Friday after school to Monday morning before school.

b. If there is no school on any given Friday or Monday because it is a holiday or a PD day, the father’s parenting time with the child shall begin on the Thursday, after school or on the Tuesday before school, whatever the case might be.

c. The pick-ups and drop offs shall take place at the child’s school. If the child is not in school on any given exchange day for any other reason, the pick-ups and drop-offs shall be at the mother’s residence, unless the parties agree otherwise in advance, and in writing.

Christmas Holidays

22. During the Christmas Holiday each parent will have three days for Christmas with the child, from 3 p.m. on Christmas Eve to 3 p.m. on Boxing Day. The father will have the child for Christmas in odd years (starting in December 2021) and the mother in even years (starting in December 2022).

23. During the Christmas Holiday each parent will have three days for New Year's from 3 p.m. on New Year’s Eve to 3 p.m. on January 2^nd. The mother will have the child for New Year’s in odd years (starting in 2021) and the father will have the child in even years (starting in 2022).

Fathers’ Day and Mothers’ Day

24. During Father's Day the child will be with her father, from 1 p.m. on Fathers’ Day to the next day before school.

25. During Mothers’ Day the child will be with her mother, from 1 p.m. to the next day.

Summer time

26. During the summer months (July and August), each parent will have the option to take two (2) weeks of holidays with the child, consecutive or not, with the father having first choice of summer weeks in even numbered years (starting in 2022) and the mother having first choice in odd numbered years (starting in 2023) . A parent’s choice of vacation weeks shall be confirmed in writing by no later than May 1^st of each year, failing which the other parent shall have first choice.

27. A parent’s chosen summer vacation week(s) shall begin on the Friday of his/her regular weekend (as per the regular schedule) and end at 5 p.m. the following Friday or the next (if that parent chooses to take two consecutive weeks with the child). If a parent takes his/her two summer weeks consecutively, the regular weekend schedule will change so that the child is never more than 14 days without seeing the other parent during the summer months.

March Break

28. The parties will alternate having the child in their care for the full March Break with the father having the child in even numbered years (beginning at March Break 2022) and the mother every odd-numbered years. The child’s March Break begins at 9 a.m. on the Monday and ends at 5 p.m. on the Friday of the school break. To be clear, a parent having care of the child during the March Break will not affect the regular (weekend) parenting schedule.

29. The parent who has the child in their care for the March Break will be responsible for any fees associated with the child’s daycare program or March Break camp if required during that week.

Telephone calls

30. Either parent may call the child daily when she is not in their care between the hours of 7:00 p.m. and 7:30 p.m., if they wish to do so. The child shall be free to call, text or message either parent at any time, any day, without restrictions. The residential parent shall facilitate the child’s wish to communicate with the other parent.

Other provisions

31. There shall be no change in the above parenting schedule unless both parties consent in writing, in advance.

Communication

32. The parties shall communicate exclusively via the co-parenting platform Our Family Wizard. If both parties agree to use a different co-parenting web platform, they are permitted to do so. The co-parenting platform chosen must include the following features:

a. A calendar in which the parties can track their parenting schedule, share appointment details, and submit requests for changes to parenting time;

b. A secure message exchange platform which makes it impossible for the parties to edit, delete, or retract the content of their and the other parent’s messages.

33. Both parties shall create and activate their account on Our Family Wizard (or other similar platform agreed to) within 15 days of this order.

34. Each party shall check their messages on Our Family Wizard (or other similar platform agreed to) every day, no later than by 7 p.m., and promptly respond to any communication by the other party.

35. If a matter is urgent and must be addressed before 7 p.m. on any given day, the parties may communicate via text messages or via phone.

Other parenting provisions

36. Within six months from the date of this order, the parties shall enroll in, and successfully complete, the Parenting Through High Conflict Separation and Divorce course offered by Family Services Ottawa (or its equivalent), and provide each other with proof of same upon completion.

37. Neither parent will criticize or denigrate in any way the other parent's behavior in the presence of the child and both parents will take positive steps to ensure that their extended family members and friends abide by this court-imposed obligation as well.

38. I shall case manage this matter post-trial for a period of one year. Any breach of this agreement may be brought to my attention by way of case conference or motion, including an urgent motion if/when appropriate.

Child Support

37. The father’s arrears of child support, for the period up to and including the month of May 2021, are set at $9,414.

38. Commencing on June 1st, 2021, and every month thereafter until further varied by order of the court, the father shall pay child support to the mother for the child in the amount of $554.00 per month, based on his 2020 income of $62,630.

39. The father’s child support obligation shall be adjusted retroactively to January 1 of each year, by May 30 of the year following, based on the income actually earned in any given year. To be clear, the father’s child support obligations from January 1, 2021 to and including December 1, 2021, shall be reviewed by May 30, 2022, once confirmation of the income he earned in 2021 is obtained (via income tax return and notice of assessment).

40. The parties shall exchange their respective income tax returns and notices of assessment by May 15 each year, as well as any other document that might be needed/requested to determine their respective child support obligations.

41. The parties shall share the net costs (the portion of those costs that is not covered by the parties’ or their spouses’ health insurance through their employment) of any therapy for the child, with the father paying 74% of the cost and the mother paying 26%.

42. The parties shall pay any other special and extraordinary expenses for the child in this same proportion, including one extracurricular activity per session (Fall, Winter and Summer). However, neither party shall be required to pay for any additional extracurricular activities unless they have provided their written consent in advance, which consent shall not be unreasonably withheld.

43. The father shall maintain the child as a beneficiary of his health and dental benefits available to him through his employment. Within 15 days of this order, he shall provide the mother with all relevant information about his plan and whatever documentation is necessary to allow her to submit claims for the child directly to the father’s insurer and to receive any reimbursement directly, if this is possible under the father’s plan. Otherwise, the father shall take all necessary steps to ensure that the child’s claims are duly processed and pay to the mother forthwith any reimbursement he receives from the insurer for that purpose.

44. The father shall maintain a minimum of $100,000 in life insurance naming the mother as the irrevocable beneficiary in trust for the child for so long as he is required to pay child support. In the event that he should die without this insurance in place, the amount shall be a first change against his estate. The life insurance amount that the father is required to maintain in accordance with this provision may be reviewed every three years.

COSTS

106If the parties are unable to agree on costs, I will accept written submissions not exceeding five (5) pages (exclusive of Bills of Costs and Offers to Settle) within the following timelines:

• The mother to provide by October 29, 2021;

• The father to provide by November 12, 2021;

• The mother’s brief reply, if any, to be provided by November 19, 2021.

Audet J.